Vol. 12, No. 2	Covering Cases Published in the Advance Sheets through Jan. 10, 2005

Booker

• It appears that the floodgates have now opened, and we are being inundated - on a daily basis - with a growing number of decisions interpreting various aspects of the Supreme Court’s ruling in U.S. v. Booker. Those decisions reflect varying - and often contentious - positions on many open Booker issues; and they unquestionably suggest that the law and the procedures governing sentencing in the Federal system are a long way from being resolved.

  The sheer volume of new decisions being handed down at the current pace also means that lawyers and defendants will have a difficult time keeping up with the rapidly changing Booker landscape; and, for that reason, we will continue to maintain a Circuit-by-Circuit listing of all the new Booker cases at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/ and we will attempt to summarize the most significant of the new cases each week in this Newsletter.

  In the meantime, the political fallout from this decision is also being felt: the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines," which will commence on Feb. 10, 2005.

'Confess-All' Sex Therapy Treatment Violates the Fifth Amendment

• Citing the Fifth Amendment’s protections against self-incrimination, the Ninth Circuit, in Antelope, upheld a constitutional challenge to forced participation in an increasingly popular sex offender treatment program which requires the participants to give details of their sexual history, without any immunity from prosecution. In reaching that conclusion, the Court stated that it had “no doubt that any admissions of past crimes would likely make their way into the hands of prosecutors.”

Ballistics Evidence Satisfies Daubert Standards of Reliability

• In Hicks, the Fifth Circuit rejected the defendant’s contention that ballistics evidence used by the Government at trial and expert opinion testimony from its ballistics expert were unreliable and should have been excluded under Rule 702 of the Fed.R.Evid., finding that the scientific criteria for such evidence was well established and met all of the reliability standards for scientific evidence as established in Daubert v. Merrell Dow Pharms., Inc.
  

The Administrative Office of the U.S. Courts has now confirmed that, effective as of January 14, 2005, the Bureau of Prisons has closed all of its Intensive Confinement Centers (also known as Boot Camps) - without any advance notice and without soliciting the views of the Judicial Conference or the Office of Probation and Pretrial Services.

Last week we commented that the pace of reported decisions interpreting the Supreme Court’s blockbuster sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) had been much slower than many had expected. We now rue those words as the Federal courts have begun to spew out new Booker decisions at such a rapid pace that it is hard to keep up. The new cases show that the courts needed time to digest and analyze the Supreme Court’s complex and surprising ruling in Booker; and they also show that the lower courts are already locked into some pretty contentious debates over in meaning of Booker and the future course of sentencing in the federal courts.

For those unable to devote their entire days to debating every Booker-related nuance, we suggest out own Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/Index.cfm/, which contains, among other things a Circuit-by-Circuit listing of all the Booker decisions that have been reported to date, together with the full text, and brief summaries, of all that latest cases, as well as numerous other current Booker-related resources that are updated on a daily basis.

The reigning guru and lead commentator on Booker continues to be Prof. Douglas Berman of Ohio State University. His Web site, Sentencing Law and Policy at http://sentencing.typepad.com/, has become the CNN of the Booker world. Not only does he post commentaries and Booker-related news several times a day, a distinguished and growing group of lawyers and other legal luminaries is using his site as the communications channel of choice to post commentaries on each new case that is released. Thus, Prof. Berman recently commented as follows:

“[T]eams of circuit and district judges are assembling and tussling in fascinating jurisprudential battles over Booker. In the circuit courts, the battle is over plain error and who may can secure resentencing after Booker. In the district courts, the battle is over how much weight to give the (advisory) guidelines in sentencings after Booker. Though neither battle can be summarized in a few sentences (both now comprise hundreds of pages of opinions), it is valuable to note how the battles both reflect questions of perspective. Let me explain:

“The Booker Battle over plain error: process versus outcomes

“In the decisions of Hughes from the Fourth Circuit and Oliver from the Sixth Circuit and Crosby from the Second Circuit, we see circuits courts particularly concerned with the process through which sentences are imposed. Since courts conducting sentencings before Booker did not use — really could not have possibly used — the unexpected new 3553(a)-centered process established for federal sentencing by Booker, these courts are inclined to require or permit post-Booker resentencings.

“In contrast, Bruce from the Sixth Circuit and especially Rodriguez from the Eleventh Circuit show circuit courts concerned particularly with sentencing outcomes. Since post-Booker sentencing outcomes can — and perhaps often will for some classes of defendants — mirror pre-Booker outcomes, these courts are inclined to neither require nor permit post-Booker resentencings.

"This battle is especially intriguing since both the plain error standard and the Booker decision mixes procedure and substance. For that reason, I am especially drawn to the Second Circuit's middle-ground approach in Crosby which calls for limited remands to allow district courts to reconsider whether it should conduct full resentencings. But then again, I am also moved by the Eleventh Circuit's funny observation in Rodriguez that the Second Circuit has called for "a do-over to decide if there should be a do-over." . . .

“The Booker Battle over guidelines' weight: system-wide versus case-specific

“In the views of Judge Cassell in Wilson I and Wilson II and Judge Kopf in Wanning, the work of the US Sentencing Commission in the guidelines fully reflects the 3553(a) purposes of punishment and judges should not readily seize upon those purposes to justify a ‘variance’ from the now-advisory guidelines. In other words, for Judges Cassell and Kopf, the system-wide view on purposes provided by the USSC should predominate in individual cases and thus the guidelines should still be given ‘heavy weight.’

“But Judge Adelman in Ranum and Judge Pratt in Myers identify in various ways how they think the guidelines fail to fully reflect the 3553(a) purposes of punishment. Consequently, they clearly believe a case-specific view on purposes should predominate in individual cases and thus the guidelines should be one of the many important considerations that now come to bear at sentencing.”

Beyond Prof. Berman’s comments, there were a number of other significant and/or interesting Booker rulings during the past week, including the following:

McReynolds v. U.S., 2005 U.S. App. LEXIS 1638 (7th Cir. Feb. 1, 2005) (Judge Easterbrook)

In a ruling that will strike dismay in the hearts of most prisoners, the Eighth Circuit has concluded that Booker is not to be applied retroactively to cases which became final (meaning all direct appeals were concluded) before January 12, 2005 (the date of the Booker ruling). Judge Easterbrook, who wrote the Court’s decision, stated in part:

"We conclude, then, that 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, so Booker itself represents the establishment of a new rule about the federal system."

Green v. U.S., 2005 U.S. App. LEXIS 1652 (2nd Cir. Feb. 2, 2005) (Per Curiam)

"In Booker, the Supreme Court noted that its holdings in that case apply to 'all cases on direct review' but made no explicit statement of retroactivity to collateral cases. Booker, 125 S. Ct. at 769. Thus, neither Booker nor Blakely apply retroactively to Green’s collateral challenge. Accordingly, Green’s application to file a second or successive Section 2255 petition is denied."

U.S. v. Harris, No. 03-6207 (6th Cir. Feb. 8, 2005) (Judge Moore)

Here the Court held that the mandatory minimum provisions based on the type of firearm, as contained in 18 U.S.C. § 924(c)(1)(B), are not binding on a sentencing court unless the type of firearm involved is charged in the indictment and proved to a jury beyond a reasonable doubt. The Court explained:

"We conclude that the tradition of treating firearm type as an element, . . . , the sharply higher penalties involved, . . . , and the serious constitutional problems that would result from a contrary conclusion, . . . , are together sufficient to overcome the presumption, based on the structure of the statute, that § 924(c)(1)(B) is intended to set out sentencing factors rather than elements of separate crimes.

"Having determined that the firearm types set out in the § 924 Firearm-Type Provision are elements of separate crimes, rather than sentencing factors, we must conclude that Booker does require that § 924 Firearm-Type Provision enhancements be charged in the indictment and proved to a jury beyond a reasonable doubt. We emphasize that our holding on this issue is narrow. We do not address the general constitutionality of mandatory-minimum sentences imposed through judicial fact-finding, a practice explicitly approved by the Supreme Court prior to Booker when traditional sentencing factors, rather than elements, are involved. . . . Instead, we hold only that in light of Supreme Court precedent distinguishing those aspects of crimes traditionally considered elements from those traditionally considered sentencing factors, the § 924 Firearm-Type Provision mandatory minimum is not binding on a sentencing court unless the type of firearm involved is either admitted by the defendant or charged in the indictment and proved to a jury beyond a reasonable doubt. [FN 5]

"[FN 5] We emphasize that, in light of [the Supreme Court's decision in] Harris , this holding does not apply to the mandatory-minimum sentences relating to firearm brandishing and discharge in § 924(c)(1)(A)(ii)-(iii) (the ‘§ 924 Brandishing/Discharge Provisions’), which continue to bind sentencing judges." (Internal citations omitted).

U.S. v. Huerta-Rodriguez, 2005 U.S. Dist. LEXIS 1398 (D.Neb. Feb. 1, 2005) (Judge Bataillon)

In this important and thoughtful discussion of a defendant’s due process rights at sentencing in the aftermath of Booker, Judge Bataillon observed, inter alia:

“Although the advisory Guidelines system does not arouse Sixth Amendment concerns to the extent that a mandatory Guidelines system does, . . . this is not to say that there are no longer any constitutional constraints on sentencing under Booker, even as applied to the now-advisory Guidelines system. The Due Process Clause is implicated whenever a judge determines a fact by a standard lower than ‘beyond a reasonable doubt’ if that factual finding would increase the punishment above the lawful sentence that could have been imposed absent that fact. Booker does not alter these due process constraints on sentencing. . . .

“In order to comply with due process in determining a reasonable sentence, this court will require that a defendant is afforded procedural protections under the Fifth and Sixth Amendments in connection with any facts on which the government seeks to rely to increase a defendant's sentence. . . .

“There is no authority to support the contention that a defendant can consent to a change in the burden of proof for a criminal prosecution. This is so because the burden of proof is not the defendant's to waive. . . .

“The court is cognizant that the limits of due process are defined with reference to the line that separates an element of a crime from a sentencing factor. . . . That line remains blurred after Booker. In view of the uncertainty surrounding this issue, the court will err on the side of caution in protecting a criminal defendant's constitutional rights. Just as a court should construe a statute to avoid a constitutional infirmity if possible, . . . prudence dictates that the court should adopt sentencing procedures that lessen the potential that a sentence will later be found unconstitutional.”

U.S. v. Nellum, 2005 U.S. Dist. LEXIS 1568 (N.D.Ind. Feb. 3, 2005) (Judge Simon)

The 57-year old defendant in this case was convicted of distributing crack-cocaine; and his Guideline sentencing range was 168-210 months. In explaining his reasons for imposing a sentence of 108 months, Judge Simon stated:

"The Court considered the need for the sentence to reflect the seriousness of the offense and the need to deter Nellum and others from committing further crime. See § 3553(a)(2). The factors in this category weighed heavily in mitigating the defendant's sentence. Perhaps most important, the defendant is fifty-seven years old. If the Court were to give him a guideline sentence he would be over the age of seventy at the time of his release. The sentence of 108 months protects the public, provides just punishment and adequate deterrence. See § 3553(a)(2). If all goes as expected, with a sentence of 108 months, Nellum will be released from prison when he is roughly 65 years old.

“The likelihood of recidivism by a 65 year old is very low. In fact, according to a United States Sentencing Commission Report released in May, 2004, 'Recidivism rates decline consistently as age increases. Generally, the younger the offender, the more likely the offender recidivates.' See U.S.S.C., Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines, at 12, http://www.ussc.gov/publicat/Recidivism-General.pdf. As the report states, 'Among all offenders under age 21, the recidivism rate is 35.5%, while offenders over age 50 have a recidivism rate of 9.5%.' Id."

In Brief

Supervised Release - Special Conditions: U.S. v. Wise, 391 F.3d 1027 (9th Cir. 2004) - The defendant, who pled guilty to attempting to defraud the Social Security Administration, appealed from the imposition of a special condition of supervised release that barred her from having contact with children under the age of 18 years of age. Citing the defendant’s “lurid history,” the Court rejected her contention that the condition was inappropriate simply because it was unrelated to her offense of conviction. The Court observed that, under 18 U.S.C. §§ 3583(d)(1) and 3553(a)(2)(C), a sentencing court “may order conditions of supervised release, not only if they are related to the offense of conviction, but also if they are ‘reasonably related’ to other factors, such as the need ‘to protect the public from further crimes of the defendant’."

The Court did, however, vacate the special condition and remand the case for further action by the sentencing court, holding that “where a condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, so that counsel and the defendant will have the opportunity to address personally its appropriateness.“ (Id., at 1033).

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