Vol. 12, No. 6
Covering Cases Published in the Advance Sheets through Feb. 7, 2005

Booker

Supreme Court

Ninth Circuit Holds Crawford v. Washington Is Retroactive

Antiterrorism - Jose Padilla Ordered Charged of Freed


Booker Boxscore
Past Week's New Decisions - 65 Total Since Jan. 12, 2005 -  238

U.S. v. Booker - Update

As can be seen in our “Booker Boxscore”, the decisions interpreting the Supreme Court’s landmark decision in U.S. v. Booker, 125 S.Ct. 736 (Jan. 12, 2005) are coming in at a fast and furious pace; and, although keeping up with that torrent of new decisions is difficult, several trends are becoming apparent. So far, the courts have universally agreed that Booker may not be applied retroactively to collateral appeals - thus sorely disappointing prisoners across the country who were hoping for some Booker relief on their habeas petitions.

At the same time, the Circuit Courts so far seem most concerned about what Judge Posner described in U.S. v. Paladino (see below) as “the application of the plain-error doctrine to appeals from sentences rendered under the federal sentencing guidelines before the Supreme Court ruled that they are advisory rather than mandatory.”

That issue has embroiled the Circuit Courts in a debate that has led to a three-way conflict, the nature of which was succinctly described by Vladimir Rodriguez, the defendant in U.S. v. Rodriguez, 2005 U.S. App. LEXIS 1932 (11th Cir. Feb. 4, 2005) (See P&J, 01/24/05), who has recently filed a Petition for a Writ of Certiorari with the Supreme Court. In his petition (a copy of which is posted on our Website), he stated:

“Barely one month after [Booker], the Circuits have fallen into a sharp threeway conflict . . . . The Third, Fourth, Sixth, and Ninth Circuits have followed a rule under which a sentence longer than the maximum Guidelines sentence justified by the facts found by the jury or admitted by the defendant almost always constitutes plain error requiring resentencing. The First and Eleventh Circuits have adopted a rule under which such sentences almost never constitute plain error. And the Second Circuit [in U.S. v. Crosby] has adopted a third approach: remanding in every case to ask the district court to make the plain error determination. This conflict affects a massive number of cases, and concerns an important issue that is squarely and cleanly presented here.”

Shortly after the Rodriguez Petition was filed, the Seventh Circuit joined the fray by issuing its decision in Paladino, in which it endorsed, at least in principle, the approach taken by the Second Circuit in Crosby. Because Paladino was written by Judge Posner (who is generally considered to be one of the giants among the appellate judges in America), and because he addressed the three conflicting Circuit approaches to plain error in considerable detail, we have set forth below a lengthy excerpt from his decision because it helps to bring some clarity to the nature of the current Circuit conflict on this plain error dispute:

U.S. v. Paladino, 2005 U.S. App. LEXIS 3291 (7th Cir. Feb. 25, 2005) (Judge Posner)

In this case, the Seventh Circuit consolidated several cases in which the district courts had enhanced the defendants’ sentences on the basis of facts not determined by the jury, but where the defendants had failed to raise any Booker objection before the district court. On appeal, the defendants all argued that their sentences violated the Sixth Amendment right to trial by jury, as interpreted by Booker.

The Government conceded that the sentences violated the Sixth Amendment as interpreted by Booker, but argued that, since the defendants could not prove otherwise, the district judges’ error in thinking themselves bound by the Guidelines was not a plain error, and therefore the Seventh Circuit should affirm the sentences.

Writing for the Court, Judge Posner observed that the problem was that the reviewing court would seldom know what the district court would have done had the objection been brought to its attention at the proper time. After identifying a few examples in which the district court might have made its views known, he wrote:

“The only practical way (and it happens also to be the shortest, the easiest, the quickest, and the surest way) to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge. We agree, therefore, with the Second Circuit's ruling in United States v. Crosby, 2005 WL 240916, at *11 (2d Cir. Feb. 2, 2005), that what an appellate court should do in Booker cases in which it is difficult for us to determine whether the error was prejudicial is, while retaining jurisdiction of the appeal, order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence. If so, we will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable, the standard of appellate review prescribed by Booker. The proviso is important; the mere reimposition of the original sentence does not insulate it from appellate review under the new standard.

“If, on the other hand, the judge states on limited remand that he would have imposed a different sentence had he known the guidelines were merely advisory, we will vacate the original sentence and remand for resentencing. In formulating the statement (whether the judge's conclusion is that he would, or would not, adhere to the original sentence), ‘the District Court should obtain the views of counsel, at least in writing, but “need not” require the presence of the Defendant, see Fed.R.Crim.P. 43(b)(3). Upon reaching its decision (with or without a hearing) whether to resentence, the District Court should either place on the record a decision not to resentence, with an appropriate explanation,’ United States v. Crosby, supra, at *13, or inform this court of its desire to resentence the defendant. (By ‘should’ in the quoted passage we understand ‘must.’) We will then vacate the sentence and, ‘with the Defendant present, [the district court shall] resentence [the defendant] in conformity with the SRA [and] Booker/Fanfan, . . . including an appropriate explanation, see § 3553(c).’ Our procedure is not identical to that set forth in Crosby, though it is very close. Crosby envisages the district judge as vacating the original sentence if the judge wants to resentence the defendant. Under our procedure, since we retain jurisdiction throughout the limited remand, we shall vacate the sentence upon being notified by the judge that he would not have imposed it had he known that the guidelines were merely advisory.

“The Sixth Circuit, in United States v. Milan, 2005 WL 309934 (6th Cir. Feb. 10, 2005), rejected Crosby on the ground that the Supreme Court in Booker had remanded the case for resentencing. But in so ruling the Sixth Circuit overlooked the fact that the government had waived the argument that Booker's appeal was governed by the plain-error standard, as we had noted in our decision in Booker, which the Supreme Court affirmed. United States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004). The Supreme Court made no ruling, express or implied, on the proper standard of plain-error analysis in cases such as this.

“The Eleventh Circuit, while agreeing with the Second that it is impossible for a reviewing court to know what sentence a district judge would have given had he known the guidelines were merely advisory, concluded that this means that a defendant in such a case cannot show that his substantial rights have been affected; cannot, therefore, establish plain error. United States v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005). Given the alternative of simply asking the district judge to tell us whether he would have given a different sentence, and thus dispelling the epistemic fog, we cannot fathom why the Eleventh Circuit wants to condemn some unknown fraction of criminal defendants to serve an illegal sentence. Crosby is the middle way between placing on the defendant the impossible burden of proving that the sentencing judge would have imposed a different sentence had the judge not thought the guidelines mandatory and requiring that all defendants whose cases were pending when Booker was decided are entitled to be resentenced, even when it is clear that the judge would impose the same sentence and the court of appeals would affirm.” (Some internal citations omitted).


* * * Non-Booker Issues * * *

Roper v. Simmons, No. 03-633 (U.S. Sup. Ct. 03/01/2005) (Justice Kennedy)

In another case that shows the evolution of judicial thinking about the death penalty, a bitterly divided Supreme Court held, by a 5-to-4 vote, that the Constitution categorically bars capital punishment for offenders who committed the capital crime before the age of 18. “Today,” the majority reasoned, "society views juveniles as categorically less culpable than the average criminal."

The ruling will move some 72 people off death row in 12 states, 29 of whom were in the State of Texas. The ruling also effectively represents a dramatic about-face for the Court which, only 16 years ago, upheld the imposition of the death penalty on persons who were between the ages of 16 and 18 at the time the capital crime was committed. (See, Stanford v. Kentucky, 492 U.S. 361 (1989)).

Writing for the majority in the instant case, Justice Kennedy said that the new decision was necessary to keep pace with the “evolving standards of decency” that for the past 50 years have shaped the Court’s view of what constitutes cruel and unusual punishments. Justice Kennedy observed that not only did 30 states - five more than 16 years ago - now reject the death penalty, but that “it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.”

Since 1990, he noted, only seven countries outside the United States have executed people for crimes they committed as juveniles; and all seven - China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen - now disavow the practice.

Kennedy also said that: “From an moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” And in a statement that aroused anger from the four dissenting judges, Kennedy said that it was proper for the Court to refer to international legal trends as “respected and significant confirmation” of the Court’s ruling.

Justice Scalia, who wrote the majority decision in Stanford, wrote a bitter and caustic dissent that was joined by Justices Rehnquist and Thomas. Scalia was particularly infuriated with the majority’s invocation of international law and the “consensus” against executing juveniles. He accused the majority of selectively invoking that international consensus for certain purposes while ignoring it in other contexts, such as abortion rights. He argued that “[t]o invoke alien law when it agrees with one’s thinking and ignore it otherwise is not reasoned decision making, but sophistry.”

He then concluded: “The Court . . . proclaims itself sole arbiter of our Nation’s moral standards, and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.”

Justice O’Connor wrote a separate dissent in which she took issue with both the majority and Justice Scalia. While she noted that, as a legislator, she would be “inclined to support” a minimum age of 18 for capital punishment, she argued that she could not find a constitutional basis for doing so as a judge.

On the other hand, she pointedly disagreed with Justice Scalia’s isolationist view of the relevance and legitimacy of foreign legal developments. She wrote: “This nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.”


Padilla v. Hanft, Civ. No. 2:04-2221-26AJ (D.S.C. 02/28/05) (Judge Floyd)

On remand from the Supreme Court in Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004), District Judge Henry Floyd has ruled that the Government must release Jose Padilla, the American citizen it has been holding in a Naval brig in Charleston, SC for nearly three years without filing any criminal charges against him.

While Judge Floyd agreed that “it is true that there may be times during which it is necessary to give the Executive Branch greater power than at other times,” he concluded that the Government had greatly overstepped its authority by seeking to detain Padilla simply by designating him an “enemy combatant,” without any form of judicial review. He pointedly reminded the Government that “[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." (Citing Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2650 (2004)).

After reviewing the law and the facts of this case, Judge Floyd ruled that he had no choice but to reject the President’s claim of authority to detain Padilla without charging him with a crime. “To do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties.” He then emphatically concluded:

“The Court finds that the President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant. . . . The difference between invocation of the criminal process and the power claimed by the President here, however, is one of accountability. The criminal justice system requires that defendants and witnesses be afforded access to counsel, imposes judicial supervision over government action, and places congressionally imposed limits on incarceration.

In an earlier proceeding in this case, the Second Circuit also found that President Bush lacked the constitutional authority to hold a U.S. citizen as an "enemy combatant" for an indefinite period, without legal rights and without any criminal charges filed. (See, Padilla ex rel. Newman v. Rumsfeld, 352 F.3d 695 (2003)). That ruling was set aside when the Supreme Court ruled last June that Padilla had filed his habeas challenge in the wrong court. The case then shifted to South Carolina, where Padilla is being held, and he filed the instant habeas petition.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
48
260
21,448
District Courts
29
145
11,959

 


Copyright © 2005 Punch and Jurists, Ltd.