Feeney
Amendment struck down
By
David Ziemer
Wisconsin Law Journal
March
29, 2006
In
reviewing [the Feeney Amendment] in light of Booker, we conclude that it violates
the Sixth Amendment by mandating a sentence within the range recommended by the
Sentencing Guidelines.
Hon. Kenneth F. Ripple
Seventh Circuit |
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.”
| What
the court held Case:
U.S. v. Grigg, No. 05-2484, & U.S. v. Martinez-Martinez, No. 05-2713. Issue:
Is the Feeney Amendment barring downward departures in cases involving sensitive
crimes constitutional? Is
a sentence for illegal re-entry unreasonable, because the district in which the
defendant was prosecuted does not have fast-track procedures, when other districts
do? Holding:
No. The Sixth Amendment bar on mandatory sentencing guidelines applies. No.
Given Congress' explicit recognition that fast-track procedures in some districts
would cause discrepancies, a sentence cannot be deemed unreasonable merely because
it was imposed in a district without such procedures. |
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 determine 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.
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.
