Booker
case comes home
By
David Ziemer
Wisconsin Law Journal
Feb.
9, 2005
The
ramifications of the U.S. Supreme Court's decision last month in U.S. v. Booker,
to future cases, and to those on collateral review, were explored last Thursday
in Waukesha by a panel that included T. Christopher Kelly, the Madison lawyer,
who successfully argued the Booker case, and Professor Douglas A. Berman, who
runs the premier Blakely weblog, Sentencing Law and Policy, dedicated to "all
things Blakely." In Booker, the court held the federal sentencing guidelines
unconstitutional.
The
panel also included William H. Theis, Chief Appellate Lawyer for the Federal Defender
Program in the Northern District of Illinois, and Brian T. Fahl, Associate Federal
Defender in Milwaukee, who worked on the Booker case with Kelly.
“There
is no frivolous argument that a defense attorney can make now.” Douglas
A. Berman
Ohio State University |
A
freewheeling tone to confronting the as-yet undetermined effects of Booker was
set early on by Berman, who declared that in light of Booker and Blakely v. Washington,
124 S.Ct. 231 (2004), "there is no frivolous argument that a defense attorney
can make now."
One
of the major issues left unresolved by Booker, the panelists noted, is the role
that the guidelines are to have, now that they are only advisory, rather than
mandatory, but still must be calculated as before.
Two
schools of thought have emerged in the district courts: the first is that set
forth in U.S. v. Wilson, (D.Utah, Jan. 13, 2005), treating the guidelines as defining
a presumptive sentence; the second is that of Judge Lynn Adelman in Milwaukee
that courts should consider all of the 18 U.S.C. 3553(a) factors, set forth in
U.S. v. Ranum, (E.D.Wis., Jan. 19, 2005), and that the guideline sentence is merely
one factor to consider.
Two
other recent district court decisions have adopted the same approach as in Ranum,
U.S. v. Meyers, 2005 WL 165314 (S.D.Iowa, Jan. 26, 2005); and U.S. v. West, 2005
WL 180930 (S.D.N.Y., Jan. 27, 2005), and Adelman issued another decision consistent
with Ranum, as the discussion was being held: U.S. v. Jose Galvez-Barrios, No.
04-CR-14 (Feb. 2, 2005).
Kelly
argued that Ranum was correct, and that Booker not only does not hold that the
guideline determination is presumptive, but that to give the guideline calculation
that effect may constitute a finding of fact in violation of the Sixth Amendment
right to a jury, just as mandatory guidelines did in Booker.
Where
a district court judge declares that he will not vary from the advisory guideline
range, absent exceptional circumstances that would have supported a departure
previously, the Sixth Amendment argument is available.
All
the Booker court did say, Kelly observed, is that the sentencing court must "carefully
consider" the guideline determination.
Another
unresolved issue is the proper burden of proof and procedural protections to apply
at sentencing hearings. Arguably, the procedural requirements of the Fourth, Fifth
and Sixth Amendment should now be applied to any fact used at sentencing —
right to confront witnesses, exclude consideration of suppressed evidence, etc.
In
addition, Booker was not just about the Sixth Amendment right to a jury trial
but about due process, and thus, the beyond a reasonable doubt standard is more
appropriate than the preponderance standard that has been in use.
“If
you are appealing a sentence you don’t like, you probably won’t be happy with
the result.” William
H. Theis
Federal Defender Program |
Berman
noted that the Sentencing Reform Act sets forth no burden of proof, and that the
preponderance of the evidence standard was adopted by the Sentencing Commission,
rather than Congress, and is arguably subject to challenge. The greater the impact
that a single finding of fact will have on a sentence, the stronger the argument
that due process may require a higher burden of proof.
The
standards of review on appeal are also not clear. The panelists noted Justice
Stephen G. Breyer's opinion for the majority on the issue of remedy states that
sentences are to be reviewed for "reasonableness." However, Theis noted,
18 U.S.C. 3742(f)(2), which governs sentences not covered by the now-excised subsec.
(e), refers to "plainly unreasonable" sentences.
Theis
acknowledged that he does not know whether the statutory definition should control
or the Breyer opinion, or even whether there is any difference, given the minimal
number of court decisions reviewing subsec. (f)(2).
The
best place to begin, in determining the appropriate standard for appellate review,
Theis asserted, was the cases listed in the Breyer opinion that govern sentences
imposed after revocation of supervised release, for which the guidelines have
always been advisory.
However,
Theis observed, "the message of those cases is — if you are appealing
a sentence you don't like — is that you probably won't be happy with the
result." The cases affirm the sentences at issue, provided the district court
meets minimal procedural requirements: (1) recognizes that the guidelines are
advisory rather than mandatory; (2) acknowledges the existence of sec. 3553(a)
factors; (3) refers to some of those factors in light of the facts; and (4) does
not exceed the maximum sentence.
If
appellate courts apply the same standard of review to initial sentences, there
will be no grounds for review unless the sentencing judges thinks they are mandatory,
or refuses to recognize the sec. 3553(a) factors as relevant.
However,
Theis set forth grounds for adoption of a different standard. First, he noted
that the stakes in revocations of supervised release are always very low, with
only a few years at issue, while in initial sentencing, the stakes are decades
in prison.
Theis
acknowledged that, on the day before the panel, the Second Circuit became the
first circuit to weigh in on the reasonableness issue, and made it clear that
it had no intention of "micromanaging" sentences. U.S v. Crosby, No.
03-1675 (Feb. 2,2005).
Theis
stated, however, that, in his experience, the Seventh Circuit has historically
been more active than other circuits in reviewing sentences.
The
second big issue for appellate review of sentences is retroactivity.
For those
defendants who have already filed one petition for collateral review, Theis advised
the audience that they are stuck. The only ground for which a party could receive
permission to even raise the issue would be if the U.S. Supreme Court explicitly
stated that Booker is retroactive, which it has not.
For
prisoners filing their first sec. 2255 motion, retroactivity was an option, until
the Seventh Circuit decided U.S. v. McReynolds, No. 04-2520, on Feb. 2. In McReynolds,
the Seventh Circuit held, "Booker does not apply retroactively to criminal
cases that became final before its release on January 12, 2005. That date, rather
than June 24, 2004, on which Blakely v. Washington, 124 S.Ct. 2531 (2004), came
down, is the appropriate dividing line; Blakely reserved decision about the status
of the federal Sentencing Guidelines, see id. at 2538 n.9, so Booker itself represents
the establishment of a new rule about the federal system."
Theis
advised the audience to raise the issue anyway, and not accept McReynolds as the
last word on the issue.
Theis
noted that the McReynolds decision resulted from a consolidation of three pro
se petitions, that were not even sec. 2255 motions, but requests for certificates
of appealability. Rather than merely declining to issue certificates of appealability,
however, the court rushed in and decided the retroactivity issue, despite its
complexity, and the absence of any briefing from counsel on the issue.
The
limitlessness of the potential grounds that can be raised was the overriding theme
of the conference. Berman declared, "We are working from the ground up, and
the world looks very different from here than when working from the top down."
David
Ziemer can be reached by email.
