Vol. 12, Nos. 12 & 13	Covering Cases Published in the Advance Sheets through Mar. 28, 2005

Booker

• The big news on the Booker front this past week was the sneak legislative attack mounted by Rep. James Sensenbrenner (R-Wis.) and the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security on the sentencing laws. The Subcommittee surreptitiously amended and then quickly passed an otherwise innocuous “drug sentencing” bill (H.R. 1528); and the clear purpose of the last minute, late-at-night amendments was to emasculate Booker by creating a Guideline-based mandatory minimum sentencing system, with fixed and more onerous penalties for most crimes and massive curbs on virtually any form of judicial sentencing discretion in the Federal courts.

  Included in last week’s list of 79 new lower court Booker decisions were the following noteworthy additions: U.S. v. Pimintel - another tour de force from Judge Gertner in which she questioned the continued use of “acquitted conduct” when sentencing criminal defendant’s post-Booker, notwithstanding the Supreme Court’s 1997 decision in U.S. Watts which declared the practice constitutionally sound; and In Re: Olopade - a decision from the Third Circuit which denied a prisoner’s request to file a second or successive habeas petition on the grounds that he could not make a prima facie showing that Booker constitutes "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” under the standards set forth in 28 U.S.C. § 2255. Interestingly, however, the Third Circuit left open the question of whether Booker applies retroactively to prisoners who were in the initial stages of their § 2255 petitions as of January 12, 2005.
  

BOP Enjoined From Terminating its Shock Incarceration Program

• In Castellini, Judge Saris of the D.Mass. enjoined the Bureau of Prisons from unilaterally terminating its Shock Incarceration (or Intensive Confinement Center) Program until it has complied with the Administrative Procedure Act.
  

Eleventh Circuit Upholds Florida's Strict Felon Disenfranchisement Law

• In Johnson, the Eleventh Circuit, sitting en banc, upheld a controversial 1868 Florida law that generally permanently bars some 600,000 convicted Florida felons from voting - even after they have finished serving their prison sentences. The Court firmly rejected dual challenges that the law violates the Equal Protection Clause of the 14th Amendment and that it violates Section 2 of the Federal Voting Rights Act.
  

Improper Government Sentencing Advocacy Requires Remand for Resentencing

• In Vaval, the Second Circuit held that improper Government sentencing advocacy constituted a breach of the plea agreement and required vacating the sentence and a remand for resentencing before a different judge even when, as here, it was clear that the district judge “was not influenced by the government’s arguments.”

U.S. v. Booker - Update

Angered by the refusal of Federal judges to bow down to their politically expedient legislative forays that dishonor the Constitution, a faction of hard-core conservative legislators have petulantly undertaken a new gambit to cripple the judiciary. Last week, a number of Congressmen crafted a series of radical changes to the Federal sentencing system, using the cover of one of those patently absurd and cynically disingenuous “God-and-Motherhood” statutory names that entrenched politicians are afraid to vote against.

Led by the headstrong Rep. James Sensenbrenner (R-Wis.), the legislators first sneaked a number of provisions into H.R. 1528 (a bill known as the “Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004") and then raced to have the bill passed by the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security before anyone had a chance to understand its scope or assess its merits.

Eschewing debate and discussion, H.R. 1528 flew through a rump Subcommittee vote on April 12; and it is now scheduled to be considered by the full House Judiciary Committee as early as this coming week. With momentum building in Congress to rein in judges deemed to be too “activist” or “liberal” by Republican standards, and based on the success Congress had in passing the Feeney Amendment, it is hard to predict where this bill could go.

What is clear, however, is that this classic display of legislative buffoonery has little to do with the politically appealing mantras of drug treatment or protecting children. The undisguised purpose of this legislative coup is to sever virtually any semblance of judicial discretion from the Federal sentencing system; and to convert the Federal Sentencing Guidelines into a system of mandatory minimum sentences through a “Booker-fix” provision.

Of course, evidencing a shocking disdain for truth and accuracy, Congressman Sensenbrenner quickly denied that his legislative proposals were an attempt to reverse U.S. v. Booker; and his office actually sent out a press release stating that the chief goal of the legislation was to "establish procedures to assure that there is an adequate appellate and public record so that courts of appeals can apply the new Booker 'reasonableness' standard of review and so that Congress can review the sentencing practices as it considers a Booker fix."

Judged by the plain language contained in parts of H.R. 1528, Congressman Sensenbrenner’s cynical protestations ring both hollow and false; and others have been far more accurate and forthright in detailing the terms and impact of H.R. 1528. To see through the cynical legislative charade and the political ruse that Sensenbrenner and his minions are attempting to perpetrate, we urge our readers to study the bill and to read what other respected commentators and defense organizations have reported is buried in the bill’s far-reaching text.

For example, the NACDL has warned that Section 12 of H.R. 1528 would:

• eliminate the requirement that sentencing courts consider, among other factors, “the need for the sentence imposed . . . to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”;

• prohibit sentencing judges from relying on virtually every one of the 35 grounds for a below-range sentence - except to calculate a guideline range or impose a sentence at or above the bottom of that range;

• prohibit courts from sentencing below the guideline range based on defendant cooperation except upon motion of the Government;

• establish new procedural requirements for courts intending to impose a below-range sentence (except in cases involving government cooperation motions or fast-track dispositions). Courts would have to provide 20 days' advance notice, setting forth in detail the legal rationale for the sentence. The court must also permit briefs and conduct evidentiary hearings, at which information regarding defendants who have benefited from government-initiated leniency would not be admissible. Below-range sentences would have to be supported by clear and convincing evidence, and the court must prepare a detailed statement of reasons justifying the sentence; and

• prohibit courts from delegating to prosecutors certain reporting requirements under the PROTECT Act (another misnamed “God-and-Motherhood” statute).

Families Against Mandatory Minimums (FAMM) added that H.R. 1528 also would:

• Make the sale of any quantity of any controlled substance (including anything greater than five grams of marijuana) by a person older than 21 to a person younger than 18 subject to a ten-year federal mandatory minimum sentence.

• Create a new three-year mandatory minimum for parents who witness or learn about drug trafficking activities, targeting or even near their children, if they do not report it to law enforcement authorities within 24 hours and do not provide full assistance investigating, apprehending, and prosecuting the offender.

• Create a new 10-year mandatory minimum sentence for any parent committing a drug trafficking crime in or near the presence of their minor child.

• Mandate life in prison for persons 21 years or older convicted a second time of distributing drugs to a person under 18 or convicted a first time after a felony drug conviction has become final.

• Increase to five years the federal mandatory minimum sentence for the sale of a controlled substance within 1,000 feet of a school, college, public library, drug treatment facility (or any place where drug treatment, including classes, are held), or private or public daycare facilities - in short, almost anywhere in cities across the U.S.

• Eliminate the federal "safety valve," granting it only when the government certifies that the defendant pled guilty to the most serious readily provable offense (the one that carries the longest sentence), and has "done everything possible to assist substantially in the investigation and prosecution of another person," and would prohibit the federal "safety-valve" in cases where drugs were distributed or possessed near a person under 18, where the defendant delayed his or her efforts to provide substantial assistance to the government, or provided false, misleading or incomplete information.

On other fronts, the number of new lower court decisions interpreting the Supreme Court’s landmark decision in U.S. v. Booker, 125 S.Ct. 736 (Jan. 12, 2005) continues to rise, reaching 629 reported decisions from the lower courts in the 13 weeks since Booker was decided; and the U.S. Sentencing Commission has noted that, during the 12-week period from Jan. 12 through April 5, 2005, there were 8,968 Federal sentencings in which district courts considered the impact of Booker.

Because space and time do not permit a detailed analysis of all the many new and significant Booker decisions that are reported on a daily basis, we remind our readers that we post the full text and brief summaries of each significant new Booker decision, listed alphabetically by Circuit, on our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/.

Clearly, the most significant new Booker ruling of the past week was Judge Nancy Gertner’s decision in U.S. v. Pimental, Crim. No. 99-10320-NG (D.Mass. April 15, 2005). In that case, Judge Gertner explored at length "the continued vitality of the Supreme Court's decision in U.S. v. Watts, 519 U.S. 148 (1997), which upheld an increased sentence for the defendant based on acquitted conduct, in light of its recent decision in Booker." Here are just a few highlights from her decision:

“United States v. Booker substantially undermines the continued vitality of United States v. Watts both by its logic and by its words. It makes absolutely no sense to conclude that the Sixth Amendment is violated whenever facts essential to sentencing have been determined by a judge rather than a jury, Blakely v. Washington, 124 S.Ct. 2531, 2538 (2004), and also conclude that the fruits of the jury’s efforts can be ignored with impunity by the judge in sentencing. . . .

“Sentencing today - even post-Booker - is still profoundly influenced by the rules, namely the Guidelines. That is what the remedy opinion admonishes; that is what the post-Booker case law suggests. It is, in effect, a hybrid regime - neither purely discretionary nor mandatory Guidelines. And that fact has certain consequences in terms of the significance of acquitted conduct, and more generally, the procedural protections at sentencing.

“To consider acquitted conduct trivializes ‘legal guilt’ or ‘legal innocence’ - which is what a jury decides - in a way that is inconsistent with the tenor of the recent case law. . . when a court considers acquitted conduct it is expressly considering facts that the jury verdict not only failed to authorize; it considers facts of which the jury expressly disapproved. . . .

“Even if Watts emerged unscathed from Booker, and a judge may consider all facts, including acquitted conduct, the standard of proof to be applied should be beyond a reasonable doubt. As I noted above, we are in a hybrid regime, neither fish (totally indeterminate) nor fowl (totally mandatory.) Whether the Guidelines are presumptively reasonable, carefully considered, or something in between, they continue to play a critical role. Certain facts like the amount of loss continue to assume inordinate importance in the sentencing outcome. So long as they do, they should be tested by our highest standard of proof.”

Castellini v. Lappin, Civ. No. 05-10229-PBS (D.Mass. 04/12/05) (Judge Saris)

In 1990, Congress created a boot camp program, also known as the Shock Incarceration Program, codified at 18 U.S.C. § 4046. The Sentencing Commission promulgated U.S.S.G. § 5F1.7 the following year, giving sentencing judges discretion to recommend placement in boot camp. To qualify, the defendant must be serving a relatively short sentence for a non-violent offense and have no more than a minor criminal history. Under the BOP’s regulations, qualified prisoners can receive up to six months of sentence reduction and extended home confinement after serving six months of the term of imprisonment in a regimented, military-style facility and a follow-up period in a halfway house.

Then, on January 14, 2005, without any warning or notice, the Bureau of Prisons (BOP) unilaterally announced - in a memorandum to judges, prosecutors, and defenders - that the program was being terminated.

In this case, plaintiff Richard Castellini was sentenced to 21-months incarceration with a recommendation that his sentence be served in the federal boot camp program. After the BOP announced the cancellation of that program, Castellini moved, pro se, for a temporary restraining order to prevent the BOP from terminating the boot camp program. He argued that an injunction was the appropriate remedy since he was likely to succeed on the merits of his case, because the BOP's termination of the program exceeded the BOP's authority, violated the notice-and-comment requirements for agency rulemaking under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and violated the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3. After a hearing, Judge Saris granted the relief requested on the latter two theories and prohibited the BOP from terminating the boot camp program.

For a detailed discussion of the legal issues underlying this case, we highly recommend the comments posted on the Ninth Circuit Blog by Steve Sady, the Chief Deputy Federal Public Defender from Portland, OR, which include an analysis of “several layers of additional arguments that should foreclose termination of the [boot camp] program in the absence of Congressional action.”

Johnson v. Governor of Florida, No. 02-14469 (11th Cir. 04/12/05) (En Banc) (Judge Kravitch)

In the United States, there are currently some 4.7 million people - more than two (2%) of the entire adult population and more than thirteen (13%) of all adult black males - who are barred from voting because they have prior felony convictions. Thirty-five states have enacted a hodgepodge of laws that disenfranchise felons for at least some time after they have been released from prison. One of the most controversial and onerous of those laws is the one that exists in Florida. That law, first enacted in 1868, generally bans felons from voting unless they are granted clemency by the Florida Clemency Board (which virtually never happens). As a result, there are today, in Florida, some 600,000 ex-cons who cannot vote. (See, generally, “Felons and the Right to Vote,” a New York Times Editorial, July 11, 2004).

This case involves the latest chapter of a Fourteenth Amendment Equal Protection Clause challenge and a Section 2 Voting Rights Act ("VRA") challenge to Florida's felon disenfranchisement law. The plaintiffs filed this class action on behalf of all Florida citizens who have been convicted of a felony and have completed all terms of their incarceration, probation, and parole but who are barred from voting under the state's felon disenfranchisement law. The defendants are members of Florida's Clemency Board.

Eleven judges rejected the Equal Protection Clause claim, holding that the plaintiffs had failed to prove any “contemporaneous” from 1868 that the disenfranchisement law was motivated by intentional discrimination. Ten judges also rejected the plaintiffs’ argument that Section2 of the Voting Rights Act extended to considering claims of racial discrimination regarding the disenfranchisement of felons, concluding that there was nothing in the legislative history of that Act to show that Congress intended to reach state felon disenfranchisement laws.

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