Feeney Amendment struck down

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The Seventh Circuit issued two major Booker decisions last week concerning the PROTECT Act. In one, the court held that the Feeney Amendment is unconstitutional.

In the second, the court held that a district court is not required to impose a below-Guideline sentence to a defendant convicted of illegal reentry, even though the defendant would have received one if convicted in a district that has adopted fast-track procedures for such cases.

Grigg

In 2004, Nicholas Grigg was convicted of one count of possession of child pornography, in violation of 18 U.S.C. 2252(a)(4)(B).

At sentencing, Grigg requested a sentence below the guidelines, based on a variety of mental problems.

U.S. District Court Judge J.P. Stadt-mueller rejected this request and imposed the minimum guideline sentence of 37 months imprisonment, and two years supervised release. “Congress,” the court explained, “has seen fit in the PROTECT Act and the Feeney Amendment, basically, to prohibit departures from Sentencing Guidelines.”

The court acknowledged that U.S. v. Booker, 543 U.S. 220 (2005), and other cases “no longer technically make the Guidelines mandatory,” but found that the PROTECT Act and the Feeney Amendment “virtually prohibit judges from departing from the otherwise applicable Sentencing Guidelines.”

The government sought clarification whether the court’s position was that it lacked authority to go outside the Guidelines, and the court responded “No,” explaining that it was aware of its “authority in appropriate cases to fashion what [it] believe[s] to be a reasonable sentence in any case.”

However, the court added, “Congress created the Protect Act” because it is, “in the vernacular, ‘damn mad’ at judges who were continually putting people on probation because they had the wherewithal to bring in an expensive psychiatrist and say, ‘This isn’t going to happen again.’”

Grigg appealed, and, in a decision by Judge Kenneth F. Ripple, the Seventh Circuit held the Feeney Amendment unconstitutional, remanding the case back to Judge Stadtmueller.

PROTECT

In 2003, Congress enacted the Pro-secutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), codified at 18 U.S.C. 3553(b)(2)(2004)).

The provision — named the “Feeney Amendment” — restricts the authority of district courts to depart from the Sentencing Guidelines in sexual offense and child pornography cases. It provides that, when sentencing defendants for crimes involving children and sexual offenses, the court “shall impose a sentence” within the guidelines, unless it finds mitigating circumstances that have “been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28.”

In 2005, the U.S. Supreme Court held in Booker that mandatory application of the Sentencing Guidelines violates the Sixth Amendment, by increasing a sentencing range based on facts found by a judge, rather than a jury. Accordingly, the court excised 18 U.S.C. 3553(b)(1) from the statute.

The Seventh Circuit held that the Feeney Amendment also violates the Sixth Amendment for the same reason, and excised subsec. (b)(2).

The court explained, “In reviewing sec. 3553 (b)(2) in light of Booker, we conclude that it violates the Sixth Amendment by mandating a sentence within the range recommended by the Sentencing Guidelines. It was precisely this requirement that the Supreme Court found constitutionally objectionable in Booker. Given the similarities between the two subsections, we believe the same objections voiced by that Court also apply to sec. 3553(b)(2).

The court concluded the remedy is also the same as in Booker: excising the mandatory language and replacing it with an advisory system under which sentences are reviewed for reasonableness.

The court added that courts, in sentencing defendants, “ought to give respectful attention to Congress’ view that crimes such as Mr. Grigg’s are serious offenses deserving serious sanctions.”

Turning to Grigg’s sentence, the court found that it could not de
termine whether the district court treated the Feeney Amendment as mandatory or not. At one point, the court had called the Guidelines “advisory,” but also called this a “very unique area of the law.”

Accordingly, the court issued a limited remand pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), for the district court to state whether it regarded the Feeney Amendment as mandatory, and whether it wishes to resentence Grigg.

Martinez

In the second case, Hector Martinez-Martinez pleaded guilty in Indiana federal court to reentering the United States after having been deported following a conviction for an aggravated felony, in violation of 8 U.S.C. 1326(a), (b)(2).

At sentencing, Martinez requested a sentence of 24 months’ imprisonment or less, contending that a longer sentence would create a sentencing disparity between himself and similarly situated defendants prosecuted in districts that employ a “fast-track” sentencing program for this crime.

The district court rejected Martinez’s request and sentenced him to 41 months’ imprisonment — the bottom of the advisory guideline range.

Martinez appealed, arguing his sentence was unreasonable in light of 18 U.S.C. 3553(a), but the Seventh Circuit affirmed in a decision by Judge Ripple.

Fast-Track

Fast-tracking is a procedure that began in states bordering Mexico, where district courts were experiencing high case loads due to immigration matters. Prosecutors offered defendants reduced sentences via motions for downward departure in exchange for pre-indictment guilty pleas.

Subsequently, when Congress passed the PROTECT Act, it sanctioned the use of fast-tracking, by authorizing the Sentencing Commission to draft a guideline authorizing a downward departure of up to 4 levels. The Commission then developed U.S.S.G. 5K3.1 pursuant to the Act.

Nevertheless, the Seventh Circuit held that the absence of a fast-track procedure does not render sentences imposed without such a departure unreasonable.

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The Congressional report that accompanied the Act stated that it was intended to provide relief to districts suffering an extraordinary strain on resources. The report also states that its recognition of such programs “does not confer authority to depart downward on an a hoc basis in individual cases.”

The court thus concluded, “given Congress’ explicit recognition that fast-track procedures would cause discrepancies, we cannot say that a sentence is unreasonable simply because it was imposed in a district that does not employ an early disposition program.”

The court also noted that the First Circuit has suggested that it is never reasonable to depart downward based on disparities due to the absence of a fast-track program. U.S. v. Martinez-Flores, 428 F.3d 22, 30, n.3 (1st Cir. 2005).

The court did not adopt that reasoning, but did hold that a sentence cannot be considered unreasonable, solely because a downward departure was not granted. After reviewing the sentence for reasonableness, pursuant to U.S v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005), the court found that Martinez failed to rebut the presumption of reasonableness, and affirmed.

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David Ziemer can be reached by email.