Vol. 11, No. 52	Covering Cases Published in the Advance Sheets through Dec. 27, 2004

• The Supreme Court’s surprising two-part decision in U.S. v. Booker has already created a huge groundswell of commentary, conflicting interpretative analyses, and a large number of unanswered questions that will be battled out in the courts for some time to come. Initially, the judges, commentators and politicians have seemed anxious to rush to judgment in an effort to predict the long-term impact of Booker on sentencing - both politically and legally; but it is becoming increasingly clear that neither the debate nor the war over sentencing is over.

In one sign of what can be expected in the coming months, on Jan. 24, 2005, the Supreme Court published 87 pages of summary orders, disposing of nearly 450 cases that had been held for its ruling on the constitutionality of the Federal Sentencing Guideline. The lower courts were told to look again at those cases in light of the Court's ruling in Booker.

One of the most significant new rulings last week was Judge Adelman’s (E.D.Wisc.) insightful ruling in Ranum, where he departed from a Guideline sentencing range of 36-47 months to a year and a day, after concluding that Booker requires the sentencing courts to consider “all of the § 3553(a) factors, not just the guidelines.” Of particular note, Judge Adelman took sharp issue with Judge Cassell’s rigid interpretation of Booker in U.S. v. Wilson, in which he concluded that, after Booker, courts may depart “only in unusual cases for clearly identified and persuasive reasons.”

To help keep track of what has already happened as well as what will certainly will be an enormous and steady flow of judicial activity for a long time to come, we have now activated our special Booker Resource Center on the Internet. That site, which is updated on a daily basis, includes a listing (by Circuit) of all the new Booker decisions reported on LEXIS.

• In Martinez, by a vote of 7-to-2, the Supreme Court held that Federal law prohibits the indefinite detention of some 700 Cuban refugees who entered the U.S. during the Mariel boatlift in 1980. The Court granted relief to two Cubans who had completed serving their prison sentences for crimes committed in the U.S. but who can’t be deported back to Cuba because Cuba refuses to take them back.
  
  
• In a decision involving the statutory interpretation of complex set of immigration laws, the Supreme Court held in Jama, by a 5-to-4 vote, that the absence of a functioning central government in Somalia, capable of giving its consent, did not prevent the U.S. from deporting a native Somali back to his home country after committing crimes in the United States.
  
  
• In Whitfield, a unanimous Supreme Court held that the Government can obtain a conviction for a money-laundering conspiracy without the need to prove that any of the conspirators engaged in a single overt act to carry out the scheme.

Somewhat like a tsunami, the aftermath of the Supreme Court’s ruling in U.S. v. Booker, No. 02-104, 2005 U.S. LEXIS 628 (Jan. 12, 2005) is beginning to swamp the Federal courts; and it is clear that just keeping pace with the fast-moving developments in that historic case will be difficult at best. In that vein, we have now activated our special Booker Resource Center on the Internet, which is available to all of our online subscribers. That site is updated on a daily basis and contains many useful Booker resources, including briefs, legal memoranda, and a listing (by Circuit) of all the latest Federal cases interpreting that complex and far-reaching decision.

The most significant new Booker decision last week was Judge Lynn Adelman’s wonderfully cogent ruling in U.S. v. Ranum, No. 04-CR-31 (E.D.Wisc. Jan. 19, 2005). In 13 thoughtful pages, Judge Adelman explained why he decided to sentence the defendant to a year and a day in prison, rather than to the term of 37-to-46 months that would have been applicable under the Guidelines a week earlier. Judge Adelman explained that, following Booker:

“Sentencing will be harder now than it was a few months ago. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not as an invitation to do business as unusual.”

Of particular interest, Judge Adelman noted a different and clearly more flexible approach to sentencing after Booker than that which Judge Paul Cassell had espoused in his earlier decision in U.S. v. Wilson, 2005 U.S. Dist. LEXIS 735 (D.Utah Jan. 13, 2005). With his typical clarity, Judge Adelman explained:

“The directives of Booker and [18 U.S.C.] § 3553(a) make clear that courts may no longer uncritically apply the guidelines and, as one court suggested, ‘only depart . . . in unusual cases for clearly identified and persuasive reasons.’ United States v. Wilson, Case No. 2:03-CR-0082, 2005 WL 78552, at *1 (D. Utah Jan. 13, 2005). The approach espoused in Wilson is inconsistent with the holdings of the merits majority in Booker, rejecting mandatory guideline sentences based on judicial fact-finding, and the remedial majority in Booker, directing courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore. For example, under § 3553(a)(1) a sentencing court must consider the ‘history and characteristics of the defendant.’ But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. § 5H1.1, his education and vocational skills, § 5H1.2, his mental and emotional condition, § 5H1.3, his physical condition including drug or alcohol dependence, § 5H1.4, his employment record, § 5H1.5, his family ties and responsibilities, § 5H1.6, his socio-economic status, § 5H1.10, his civic and military contributions, § 5H1.11, and his lack of guidance as a youth, § 5H1.12. The guidelines' prohibition of considering these factors cannot be squared with the § 3553(a)(1) requirement that the court evaluate the ‘history and characteristics’ of the defendant. The only aspect of a defendant's history that the guidelines permit courts to consider is criminal history. Thus, in cases in which a defendant's history and character are positive, consideration of all of the § 3553(a) factors might call for a sentence outside the guideline range.

“Further, § 3553(a)(2)(D) requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care in the most effective manner. This directive might conflict with the guidelines, which in most cases offer only prison. See U.S.S.G. § 5C1.1 (describing limited circumstances in which court can impose sentence other than imprisonment). In some cases, a defendant’s educational, treatment or medical needs may be better served by a sentence which permits the offender to remain in the community.

“In addition, § 3553(a)(7) directs courts to consider ‘the need to provide restitution to any victims of the offense.’ In many cases, imposing a sentence of no or only a short period of imprisonment will best accomplish this goal by allowing the defendant to work and pay back the victim. The guidelines do not account for this. In fact, the mandatory guideline regime forbid departures to facilitate restitution. United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir. 1994).

“Finally, in some cases the guidelines will clash with § 3553(a)’s primary directive: to ‘impose a sentence sufficient, but not greater than necessary to comply with the purposes’ of sentencing.

“In sum, in every case, courts must now consider all of the § 3553(a) factors, not just the guidelines. And where the guidelines conflict with other factors set forth in § 3553(a), courts will have to resolve the conflicts.”

In Brief

BOP - Good Time Credits: Perez-Olivo v. Chavez, No. 04-1486 (1st Cir. 01/07/05) - Joining with the Seventh Circuit’s recent decision in White v. Scibana, No. 04-2410, 2004 WL 2749863 (7th Cir. Dec. 2, 2004) (P&J, 11/08/04) (Scibana II), the First Circuit has rejected an inmate’s challenge to the Bureau of Prisons’ calculation of the “good time” credits available to Federal prisoners under 18 U.S.C. § 3624(b)(1). That statute states that inmates are eligible to receive 54 days of goof time credits “at the end of each year of the prisoner’s term of imprisonment” - but there has long been a highly technical dispute about the meaning of the phrase “term of imprisonment” which has led a number of defense attorneys to argue that the BOP has effectively been shortchanging prisoners by seven days of “good time” for each year.

In White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wis. 2004) (P&J, 04/05/04), Judge Crabb sided with the inmates and concluded that the BOP had indeed been miscalculating the good time credits. The Seventh Circuit, however, quickly reversed that ruling in Scibana II.

In the instant case, the First Circuit concurred with the ruling in Scibana II. It concluded that the phrase "term of imprisonment" as used in § 3624(b) is ambiguous, and that this ambiguity cannot be resolved by looking at either the context of the statute as a whole or the statute's legislative history. Then, applying the principles established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Court held that the BOP's interpretation of that statute was reasonable under the Administrative Procedures Act. Thus, it affirmed the district court’s denial of any relief to the petitioner based on the BOP’s calculation of good time credits - a ruling that probably sounds the death knell on any further court challenges to the BOP’s calculation of good time credits under § 3624(b)(1).

Expungement of Convictions: U.S. v. Flowers, 389 F.4d 737 (7th Cir. 2004) - In 1996, when she was 18 years old, the defendant drove two co-defendants to and from a house, where they burned a cross while wearing white sheets, in an attempt to intimidate a white woman who was living there from associating with a Black man. The defendant, who had no prior criminal record, pled guilty to a single count of interfering with housing rights on account of race, in violation of 42 U.S.C. § 3631(b)(1); and she was sentenced to a year’s probation. Following her conviction, the defendant turned her life around: among other things, she attended college and received a degree; she became a firefighter and achieved the rank of Lieutenant; and she completed a course of study as a practical nurse and passed her state boards.

In 2004, she filed a motion with the district court seeking expungement of her criminal record “in order to prevent it from limiting her ability to find employment in her field.” Judge Phil Gilbert of the S.D.Ill. granted the motion, ordering expungement of the records maintained by the judicial branch pursuant to the provisions of 28 U.S.C. § 534.

On the Government’s appeal, the Seventh Circuit reversed. The Court emphasized that expungement is an “extraordinary” remedy and that “unwarranted adverse consequences” must be “uniquely significant in order to outweigh the strong public interest in maintaining accurate and undoctored records.” (Id., at 739). The court then concluded that the instant case represented “no more than a routine, valid criminal conviction with the usual attendant consequences”; that the defendant had not presented any evidence of actual loss of employment opportunities; and that . Based on those factors, it concluded that the district court had abused its discretion in granting the expungement order.

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