Vol. 12, Nos. 3 & 4	Covering Cases Published in the Advance Sheets through Jan. 24, 2005

Booker

• The Supreme Court’s landmark decision in U.S. v. Booker may have created a furor of activity and an atmosphere of confusion in the lower courts, but so far the conversion of the Guidelines from a mandatory system to an “advisory” one has not had a significant impact on the sentences that have been imposed post-Booker. According to testimony given last week to a House Judiciary subcommittee by U.S. District Judge Hinojosa, the Chairman of the U.S. Sentencing Commission, just nine (9%) percent of the 733 sentences handed down in the three weeks after Booker was decided did not comply with the Guidelines.

  This past week the Federal courts began releasing a flood of new decisions - and we still haven’t had a single published ruling of significance from the First, Third, Fifth and D.C. Circuits. The sheer volume of new decisions has created what Prof. Doug Berman has described as a “disparate mess”; and the pace at which new decisions are being handed down makes it difficult to keep track of the rapidly changing Booker landscape. For that reason, we 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 continue to highlight the most significant new developments each week in this Newsletter.

  The cases make clear that Booker has left a lot of unanswered questions and that there are some significant disagreements developing among both the Circuit courts and the district courts on a number of critical issues - several of which are addressed below.

  In addition, both Congress and the U.S. Sentencing Commission have been holding hearings to assess the impact of Booker on the Federal system and to make suggestions about what should be done to prevent Booker from dismantling some 18 years of work based on a mandatory Guideline system; but it is far too early to tell where those hearings are going.
  

Unconditional Guilty Plea Does N ot Bar Subsequent Challenge to the Sufficiency of the Indictment

• In Hedaithy, the Third Circuit held that a defendant who entered an unconditional guilty plea was entitled to challenge for the first time on appeal the sufficiency of the superseding indictment on the basis that the specific facts alleged in the indictment did not amount to a criminal offense. In so ruling, the Court rejected the Government’s contention that the Supreme Court’s decision in U.S. v. Cotton required a different outcome.

Anti-Bootlegging Statute Held Unconstitutional

• In Martignon, Judge Baer of the S.D.N.Y. held that the Federal anti-bootlegging statute (18 U.S.C. §2319A), which provided perpetual copyright-like protection for live performances, conflicted with the “fixation” and “durational” limitations of the Copyright Clause, and thus was unconstitutional.
  

It is now one month since the Supreme Court released its landmark sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005), and it is becoming increasingly clear that Booker has opened a Pandora’s Box of questions and issues. The Federal courts have begun to churn out Booker rulings at such a prodigious rate that makes it difficult to keep up with the latest developments.

In that connection, we remind our readers that we maintain a complete and current Circuit-by-Circuit listing of all reported Booker decisions at www.ussguide.com/members/BulletinBoard/Booker/Index.cfm/, where we also post, on a daily basis, the full text, and brief summaries, of all those cases.

Prof. Douglas Berman, probably the most prolific commentator on Booker, has described the current scene as “a disparate mess” - at least with respect to the appellate handling of the so-called “pipeline cases.” (See, “Sentencing Law and Policy,” Feb. 14, 2005 at www.sentencing.typepad.com/.)

One somewhat surprising aftereffect of the “Booker mess” has been that, even though the Guidelines are now advisory only, so far there has not been any dramatic shift away from the sentencing ranges recommended by the Guidelines. In testimony before a House Judiciary subcommittee last week, U.S. District Judge Ricardo Hinojosa of Texas, the Chairman of the U.S. Sentencing Commission, reported that:

“As of February 4, 2005, the Sentencing Commission has received and analyzed sentencing documents for 733 cases sentenced on or after January 12, 2005, the date of the Booker decision. . . . This very early preliminary data since Booker seems to indicate that courts are sentencing pursuant to the Federal Sentencing Guidelines in the overwhelming majority of cases. Only 7.8 percent of the cases appear to be sentenced below, and only 1.3 percent appeal to be sentenced above, the applicable guideline sentencing range based upon sentencing authority established in Booker. Therefore, courts sentenced pursuant to the Federal Sentencing Guidelines system as a whole, including upward and downward departure policy statements contained in the Guidelines Manual, in 90.9 percent of the cases analyzed for this period.”

Admittedly those figures are very preliminary [they represent sentencing data from only 74 of the 94 Federal district courts], but, if that trend continues, Congress may be persuaded to wait before it takes some precipitous action to undo Booker.

In a recent posting, Prof. Berman summarized some of the developing Booker issues by describing what he perceived as two types of Booker error, as follows:

“I believe each part of the Booker opinion defines a different type of error. Justice Stevens' opinion explains that there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on facts not admitted by the defendant or proved to a jury beyond a reasonable doubt. Justice Breyer's opinion explains that, given the Court's finding of constitutional error, there was a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory with heightened attentiveness to the instructions of 3553(a).

“Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding. But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory and was imposed without heightened attentiveness to the instructions of 3553(a). Indeed, the cases before SCOTUS define these realities: Booker's sentence included judicial fact-finding so it involved both constitutional error and statutory error; Fanfan's sentence was not based on judicial fact-finding so it involved only statutory error. Both cases were remanded for resentencing.”

“The Booker remedial instructions: In his final paragraph, Justice Breyer explains that "we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review." I think that means that both constitutional and statutory errors must be recognized and remedied in all federal cases not yet final. However, Justice Breyer also suggests that reviewing courts will be able to ‘apply ordinary prudential doctrines’ to ensure that not ‘every appeal will lead to a new sentencing hearing.’ And here is how Justice Breyer explains the application of these prudential doctrines:

‘[Reviewing courts can determine] whether the issue was raised below and whether it fails the "plain-error" test. [And] in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.’

“What I think Booker means for pipeline cases: Putting all these pieces together, I believe circuit courts, in cases with constitutional error, can and should apply plain error analysis if the Sixth Amendment was not raised below. However, even if the plain error standard is not satisfied OR if a sentence did not involve ‘a Sixth Amendment violation,’ circuit courts still must, because of statutory error, apply harmless error analysis to determine if resentencing is still warranted AND also must review every sentence for reasonableness even if application of ‘ordinary prudential doctrines’ makes resentencing unnecessary.” (Emphasis in original).

Among the more significant Booker-related cases that were published last week were the following:

U.S. v. Ameline, 2005 U.S. App. LEXIS 2032 (9th Cir. Feb. 9, 2005) (Judge Paez)

The defendant, Alfred Ameline, pled guilty to the possession of a detectible amount of methamphetamine. He was sentenced to 150 months in prison, based on the district court’s determination, by a preponderance of the evidence, that he was responsible for 1,603 grams of methamphetamine. Ameline strenuously objected to that calculation, arguing, inter alia, that it was based on multiple layers of unreliable hearsay evidence.

In a decision previously reported at 376 F.3d 967 (Ameline I) (see, P&J, 06/28/04), a divided panel held that, based upon the Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004), Ameline’s sentence violated his Sixth Amendment right to have the facts underlying the sentence found by a jury by proof beyond a reasonable doubt. Accordingly, the Court vacated Ameline's sentence and remanded for resentencing with directions, inter alia, that, if necessary, a jury determine the amount of drugs attributable to him.

Once the Supreme Court issued its decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005), the Ninth Circuit granted Ameline’s petition for a rehearing. In the instant case (Ameline II), the Court concluded as follows:

“Our original opinion was consistent with Booker's holding that the Sixth Amendment as construed in Blakely applies to the Sentencing Guidelines. It was at odds, however, with the Court's severability remedy that eliminated the mandatory nature of the Sentencing Guidelines. Applying Booker to the present case, we conclude that (1) the Court's holding in Booker applies to all criminal cases pending on direct appeal at the time it was rendered; (2) because Ameline did not raise a Sixth Amendment argument at the time of sentencing we review for plain error; (3) Ameline's sentence violated the Sixth Amendment and constituted plain error; and (4) the error seriously affected the fairness of Ameline's proceedings. Accordingly, we vacate Ameline's sentence and remand for resentencing.

“To provide guidance to the district court in resentencing Ameline, we also address Ameline's challenge to the district court's ruling that he bore the burden of disproving the amount of methamphetamine that the Presentence Report (‘PSR’) attributed to him.”

Among the significant highlights of this decision were the following holdings:

• Almost every case will survive plain error review on appeal. ("Accordingly, it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime. This is not such a case.")

• A district court must engage in a Guideline analysis, but that is only one part of the Section 3553(a) inquiry. More significantly, previously impermissible departures now can be considered. ("Thus, under the post-Booker discretionary sentencing regime, the advisory guideline range is only one of many factors that a sentencing judge must consider in determining an appropriate individualized sentence. For instance, the Sentencing Guidelines' limitations on the factors a court may consider in sentencing -- e.g., the impermissible grounds for departure set forth in Section 5K2.0(d) -- no longer constrain the court's discretion in fashioning a sentence within the statutory range.")

• The district court must consider the 3553(a) factors, such as "the nature and circumstances of the offense and the history and characteristics of the defendant." "In addition, the court must consider the relevant Sentencing Commission policy statements and the need to avoid unwarranted sentencing disparities and provide restitution to victims."

• The government bears the burden of proof for any fact that the sentencing court would find necessary to determine the base offense level; and facts contained in the PSR cannot be treated as presumptively accurate. (“Although the district court is not bound by the Sentencing Guidelines range, basic procedural fairness, including the need for reliable information, remains critically important in the post-Booker sentencing regime.”)

U.S. v. Labastida-Segura, 2005 U.S. Dist. LEXIS 1835 (10th Cir. 02/04/2005) (Judge Kelly)
U.S. v. Rodriguez, 2005 U.S. Dist. LEXIS 1832 (11th Cir. 02/04/05) (Judge Carnes)

One of the major Booker disagreements that has developed among the Circuit courts relates to the burden of proof required to obtain a remand for a resentencing based on a Booker error. That issue is critical because the answer will directly control the flow of remands - and therefore the workload of the lower courts - that will result from Booker.

To determine whether a remand based on Booker is appropriate, the Circuit courts rely upon a “plain error” analysis. If the defendant can establish that his pre-Booker sentence resulted in “plain error,” a remand for resentencing is appropriate; otherwise, he is out of luck.

Under long-established standards, federal appellate courts have only "a limited power to correct errors that were forfeited because [they were] not timely raised in [the] district court." U.S. v. Olano, 507 U.S. 725, 731 (1993) (citing Fed. R. Crim. P. 52(b)). Thus, an appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights. Then, if all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, “but only if (4) the error ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings’." Johnson v. U.S., 520 U.S. 461, 466 (1997).

In applying the plain error analysis, the courts have ended up in two camps. A majority of the Circuits seem to favor an approach that would generally grant remands in most Booker cases. That approach was typified by the Ninth Circuit’s ruling in U.S. v. Ameline, where the Court conclude that “it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime.” (Emphasis added).

At the other extreme is the “sparing” approach to remands taken by the Eleventh Circuit in Rodriguez, where the court essentially concluded that almost no Booker error could even be deemed to be plain error because no defendant would ever be able to establish, by a preponderance of the evidence, that the Booker error at issue affected his substantial rights - since he would be unable to show what the district court would have done (a) under a system that it could not have conceived of at the time, and (b) based on arguments no counsel could have made at the time.

The interesting feature of these two cases is that they graphically show how different courts can use identical legal arguments to reach totally contradictory legal conclusions - perhaps proving that sometimes the law is not a science, but rather an arena in which the results govern the legal reasoning.

Both courts agreed that it was virtually impossible to predict what the sentencing judges would have done had they known about Booker at the time of sentencing: In Rodriguez, Judge Carnes agreed that “We just don’t know [what the district court would have done].” In Labastida-Segura, Judge Kelly wrote: “We simply do not know that the district court would have done after hearing from the parties.”

Yet, that absence of certainty led to two dramatically different conclusions.

In Rodriguez, the Eleventh Circuit stated:

“[I]n applying the third prong [affecting substantial rights], we ask whether there is a reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding fashion by the sentencing judge in this case. The obvious answer is that we don't know. If the district court judge in this case had the liberty of increasing or decreasing Rodriguez's sentence above or below the guidelines range, he might have given Rodriguez a longer sentence, or he might have given a shorter sentence, or he might have given the same sentence. The record provides no reason to believe any result is more likely than the other. We just don't know.

“Because we don't know, the Supreme Court's Jones decision is controlling. It tells us that where the effect of an error on the result in the district court is uncertain or indeterminate -- where we would have to speculate -- the appellant has not met his burden of showing a reasonable probability that the result would have been different but for the error; he has not met his burden of showing prejudice; he has not met his burden of showing that his substantial rights have been affected.

In sharp contrast to that view was the Tenth Circuit’s ruling in Labastida-Segura, where the Court stated:

“We must apply the remedial holding of Booker to Mr. Labastida-Segura's direct appeal even though his sentence does not involve a Sixth Amendment violation. . . . The district court plainly sentenced Mr. Labastida-Segura under the Sentencing Guidelines viewing them as mandatory. Although the Supreme Court indicated that not every guideline sentence contains Sixth Amendment error, and not every appeal requires resentencing, in this case (where the error was properly preserved) we cannot conclude that the error is harmless. Here, where it was already at the bottom of the guidelines range, to say that the district court would have imposed the same sentence given the new legal landscape (even after consulting the Sentencing Guidelines in an advisory capacity) places us in the zone of speculation and conjecture: we simply do not know what the district court would have done after hearing from the parties. Though an appellate court may judge whether a district court exercised its discretion (and whether it abused that discretion), it cannot exercise the district court's discretion.” (Internal citations omitted).

In short, not knowing what the district court would have done had it known about Booker prohibited a remand in one case and required a remand in the other. Ah, the wondrous vagaries and mysteries of Booker-based justice!

In Brief

Capital Case Juries: U.S. v. Williams, No. 05-20080 (5th Cir. 02/14/05) - Adopting the logic and legal principles used by Judge Nancy Gertner in her brilliant landmark decision, U.S. v. Green, 343 F.Supp.2d 23 (D.Mass. 2004) (P&J, 10/11/04), Judge Vanessa Gilmore ordered separate juries for the trial and death penalty phases of this capital case. She probably forgot that she was in Texas, where the imposition of the death penalty has become a sporting pastime.

In any event, a panel from the Fifth Circuit quickly rejected Judge Gilmore’s Order of Bifurcation, holding that it was contrary to the Federal Death Penalty Act, 18 U.S.C. §§ 3591-98. The panel concluded that “only in four limited circumstances may a different or new jury be empaneled solely for sentencing: (A) where the defendant pleads guilty; (B) where the defendant chooses a bench trial for phase one; (C) where ‘the jury that determined the defendant's guilt was discharged for good cause’; or (D) where, after initial imposition of the sentence, reconsideration is necessary.”

The panel made only a fleeting, footnote reference to Judge Gertner’s decision in Green, stating:

“Williams’s pleadings in the trial court also purported to rely on a recent federal district court decision, now on appeal, that authorized a bifurcated jury in a death penalty case. United States v. Green, 343 F. Supp. 2d 23 (D. Mass. 2004), appeal filed, No. 05-1014 (1st Cir., Jan. 27, 2005). The Green court justified its ruling in part on a statistical proffer concerning the probability of exclusion of black jurors in Massachusetts from a death-qualified jury. Williams suggested that, given a chance for discovery, he would make a similar proffer in this case. It is too late. He made his initial motion for a bifurcated jury last October. He has forfeited this claim of error by failing to pursue it further in the district court or in this court.”

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