Vol. 12, No. 14	Covering Cases Published in the Advance Sheets through Apr. 4, 2005

Booker

• The United States Sentencing Commission has joined the growing list of critics of H.R. 1528 - the sentencing bill that was surreptitiously rushed through the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security last week. Calling the Booker-fix provisions of that Bill a “hasty, piecemeal” response to post-Booker issue, the Commission urged Congress hold additional hearings on the specific sentencing provisions of H.R. 1528 and the state of federal sentencing generally - and advocate a bipartisan, bicameral approach. At the same time, another new sentencing proposal has emerged in Congress in the form of H.R. 1279 which, among other things, would expand the definition of a “crime of violence” to include drug trafficking crimes that carry mandatory minimum sentences.

  Among the most noteworthy of last week’s list of 91 new lower court Booker decisions were the following: U.S. v. Rodriguez - a ruling from the Eleventh Circuit denying a rehearing en banc of its prior decision that established the nation’s most restrictive plain error standard for Booker errors; but the 92-page opus is principally noted for Judge Carnes’ plaintive reaction to Judge Posner’s stinging criticism that the Circuit’s unforgiving plain error policy “condemn[s] some unknown fraction of criminal defendants to serve an illegal sentence”; and U.S. v. Tabor - a decision by Judge Knopf (D.Neb.) in which he debunked, in a somewhat amusing fashion, the growing tendency of defense lawyers to overuse the all-encompassing “not greater than necessary” punishment credo set forth in 18 U.S.C. § 3553(a) as the sole justification for every post-Booker sentence.
  

The Scope and Timing of Brady and Jencks Act Disclosures

• The Acosta case from the D.Nev. is noted for Judge Mahan’s detailed discussion of two important discovery issues: what is the scope of the Government’s duty to disclose exculpatory evidence before trial?; and how should conflicts between the duty to disclose and the Jencks Act be reconciled?
  

Ninth Circuit Holds that the PLRA Cannot Be Used to Block Constitutional Grievances

• In Ngo, the Ninth Circuit joined the debate (and the Circuit split) on the jurisdictional scope of the Prison Litigation Reform Act’s strict exhaustion requirements; and it held that a prison’s administrative grievance proceeding “can in no way be the ‘main event’ in a prisoner’s attempt to have a constitutional violation redressed.”
  

Drug Indictment Dismissed With Prejudice Due to Unjustified Speedy Trial Act Violations

• Citing the Government’s “willful negligence” in waiting for 15 months after arresting a defendant before bringing an indictment, Judge Hurd of the N.D.N.Y. ordered an indictment dismissed with prejudice in the Peppin case, since otherwise the Speedy Trial Act would be rendered “a paper tiger with no teeth.”

U.S. v. Booker - Update

In last week’s issue of P&J, 03/28/04, we noted that a number of disgruntled Congressional legislators have mounted a stealth attack on the Supreme Court’s landmark ruling in U.S. v. Booker, 125 S.Ct. 736 (Jan. 12, 2005), by tacking on to a largely unrelated and otherwise innocuous House bill a series of dramatic legislative proposals that would radically change the Federal sentencing system. The Bill in question was H.R. 1528 - with the euphonious (albeit disingenuous) name of “Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004.” Not only would H.R. 1528 undo most of what Booker has done by converting the Guidelines back to a mandatory system, it would prohibit virtually any semblance of judicial discretion in the sentencing process and it would add a broad range of new mandatory minimum sentences for Federal crimes.

Fortunately, due to the vigilant reaction of groups like the NACDL and FAMM in reporting on and exposing the full details of H.R. 1528, the push to enact that Bill into law may have been slowed somewhat. Certainly their opposition helped to snap the United States Sentencing Commission (USSC) out of its lethargic state of inaction. On April 19, the USSC sent a mildly critical letter to the House Committee on the Judiciary in which it expressed at least some general concerns about H.R. 1528, stating in part:

“H.R. 1528 appears to address sentencing issues in light of the Supreme Court's Booker decision in a hasty, piecemeal fashion. The Commission is concerned that the specific sentencing provisions set forth in H.R. 1528 will hamper the ability of Congress and others to devise a systematic approach to the constitutional concerns raised in Booker and the overall purposes of sentencing. If Congress decides at some point to pursue legislation specifically addressing the Booker decision, we hope that it will preserve the core principles of the Sentencing Reform Act and, to the extent possible, avoid a wholesale rewriting of a system that has operated well for nearly two decades. We believe the Sentencing Reform Act was a landmark piece of legislation and the resulting guidelines have made significant strides in furthering the Act's goals. . . . We urge Congress to continue its deliberative approach to sentencing reform - including perhaps additional hearings on the specific sentencing provisions of H.R. 1528 and the state of federal sentencing generally - and advocate a bipartisan, bicameral approach.”

In our opinion, if the USSC wants to reclaim its relevance, it will have to speak out more forcefully on these devious and hasty attempts to recreate the Federal sentencing system.

While the fate of H.R. 1528 is still up in the air, some legislators have opened up a new front in their assault on the role of the Judiciary in sentencing. A different sentencing bill (H.R. 1279) is wending its way through Congress - this one with the deceitful name of “The Gang Deterrence and Community Protection Act of 2005.” As noted on the FAMM Website, “one of the most troubling provisions of [H.R. 1279] is that it expands the definition of a ‘crime of violence’ to include drug trafficking crimes that carry mandatory minimum sentences. This provision alone could impact thousands of defendants by further preventing judges from considering the individual facts of the case and the individual's role in it at sentencing.”

With thanks to Professor Douglas Berman of Sentencing Law and Policy, we have posted on our Website a copy of what Prof. Berman describes (with understatement) as “an interesting research paper that apparently is making the rounds in Washington to support the enactment of mandatory minimum penalties in the wake of Booker.” While Prof. Berman has been unable to identify the authors of that mysterious document, which is entitled simply "Mandatory Minimum Penalties," he did comment that its clear purpose is to “promote” the mandatory minimum penalties appearing in H.R. 1279.

The confluence of the legislative efforts contained in H.R. 1528 and H.R. 1279 show that the efforts to undo Booker will be concerted; and, for the most part, they will be in the form of highly secretive and un-debated add-ons to other deceitfully named “God and Motherhood” bills that their sponsors know most Congressmen will be afraid to oppose.

In the meantime, the pace of new Booker decisions continues to rise. As noted in our chart above, last week there were 91 new reported Booker decisions from the lower courts. The Supreme Court also remanded another 34 lower court decisions for reconsideration in light of Booker - bringing to 614 the number of specific rulings that the Supreme Court has vacated and remanded to date based on 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 on the Internet at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/.

There were a few decisions this past week that were particularly noteworthy. First, in U.S. v. Rodriguez, No. 04-1276, 2005 U.S. App. LEXIS 6629 (11th Cir. Apr. 19, 2005) (Rodriguez II), Judge Carnes lashed out at some of the growing criticism of his rigid plain-error stance on Booker appeals. Earlier, in a decision written by Judge Carnes and reported at 398 F.3d 1291 (Rodriguez I), the Eleventh Circuit essentially concluded that almost no Booker error could ever 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.

That approach was roundly criticized by a number of courts - the most significant of which was Judge Posner’s scathing attack in U.S. v. Paladino, 401 F.3d 471 (7th Cir. Feb. 25, 2005), where he accused the Eleventh Circuit of being stuck in an "epistemic fog" and commented "we cannot fathom why the Eleventh Circuit wants to condemn some unknown fraction of criminal defendants to serve an illegal sentence."

In Rodriguez II, the Eleventh Circuit declined, over the dissent of Judges Tjoflat and Barkett, to grant a rehearing en banc to its ruling in Rodriguez I. However, the highlight of this ruling was Judge Carne’s spirited defense of his strict interpretation of the plain error standards in the context of unpreserved Booker error, as set forth in Rodriguez I; and his pointed comments show that he was clearly wounded by Judge Posner’s remarks. If one has any questions about the full panoply of plain error questions raised by Booker, they are covered ad nauseam in this rambling 92-page decision.

On a different front, we note Judge Knopf’s highly entertaining ruling in U.S. v. Tabor, 2005 U.S. App. LEXIS 6649 (D.Neb. Apr. 18, 2005). Previously, at least two judges have concluded that Booker opens up the possibility of reevaluating the onerous prison sentences mandated by the Guidelines for crack cocaine offenses compared with powder cocaine offenses. (Under the Guidelines, it takes 100 times as much powder cocaine as crack cocaine to trigger the same mandatory penalties.)

In both U.S. v. Smith, 359 F.Supp.2d 771 (E.D.Wisc. Mar. 3, 2005) and Simon v. U.S., 2005 U.S. Dist. App. 4551 (E.D.N.Y. Mar. 17, 2005), Judges Adelman (E.D.Wisc.) and Sifton (E.D.N.Y.) expressed views that strict adherence to the Guideline sentencing ranges for crack offenses would produce sentences that were “greater than necessary” to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a), and would also create an unwarranted disparity between defendants convicted of possessing powder cocaine and defendants convicted of possessing crack cocaine. Thus, both Judges departed downward from the Guideline ranges specified for crack offenses and imposed lower sentences.

In Smith, Judge Adelman imposed a sentence of 18 months (instead of the Guideline recommended sentence of 121-151 months) for a crack offense; and, in Simon, Judge Sifton reduced a crack sentence from 322 months to 262 months based on Booker.

In Tabor, Judge Knopf noted that he, too, was troubled by the crack-cocaine sentencing disparity. “For more than a decade, I have been deeply troubled by, and have written critically about, the crack cocaine Guidelines.” Nevertheless, after extensive briefing on the issue in this case, he concluded that the crack Guidelines should be given heavy weight after Booker. He wrote:

“Finding no plainly superior reason to do otherwise, I will apply the crack Guidelines and impose a prison sentence within the otherwise applicable Guideline range. Although the Sentencing Commission and many judges (including me) disagree with Congress on this point, the crack cocaine Guidelines represent a reasoned and reasonable policy choice by Congress that should be given substantial deference. When that deference is properly recognized, the crack Guidelines should be implemented without judicial alteration.”

Judge Knopf’s decision contains an excellent review of the history and the purposes of the crack cocaine penalties; but its real contribution to the post-Booker debate relates to the mandate contained in § 3553(a) that sentences should be “sufficient, but not greater than necessary” to comply with the four sentencing factors listed in § 3553(a)(2). On that issue, Judge Kopf somewhat amusingly commented:

“If a criminal defense lawyer invokes the 'not greater than necessary' chant one more time as the raison d'etre for a sentence below the Guidelines, I am likely to throw up. What the hell does 'not greater than necessary' really mean? Please do not refer me to 18 U.S.C. § 3553(a)(2) as if it provided a concrete answer for individual cases. Centering a sentence on the words 'not greater than necessary' is the judicial equivalent of reading tarot cards — neither the legitimacy of the sentence nor the truth of the reading can be proved or disproved by rational means. More to the point, why should anyone trust one unelected judge like me to provide ad hoc definitions of this virtually meaningless and circular abstraction unencumbered by the lodestar of the Guidelines? Booker tells me to use discretion. It does not tell me to pick sentences out of the air by fixating on the phrase 'not greater than necessary' as an excuse to sentence below the Guidelines."

Ngo v. Woodford, No. 03-16042 (9th Cir. 03/24/05) (Judge Pregerson)

Viet Mike Ngo, who is serving a life sentence in the California state prison system, was placed in administrative segregation as punishment for alleged "inappropriate activity" with volunteer Catholic priests. As a condition of being placed back in the general prison population, he was subjected to several restrictions, including a prohibition against corresponding with a former Catholic Chapel volunteer.

Ngo appealed the disciplinary action; but the prison's Appeals Coordinator rejected Ngo's appeal as time-barred on the grounds that Ngo had not filed his appeal within fifteen working days of "the event or decision being appealed." Six days after the rejection, Ngo filed a second grievance contending that his appeal was in fact timely. Ngo claimed that because he was appealing the continuing nature of his punishment, there were a series of continuing violations, and his appeal should not be time-barred. The Appeals Coordinator again rejected his appeal on the same untimeliness ground.

Ngo then filed a civil rights action in Federal court pursuant to the provisions of 42 U.S.C. § 1983; but Judge Fogel of the N.D.Cal. dismissed the action after finding that Ngo had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 (PLRA).

On appeal, the Ninth Circuit was asked to determine whether a failure to exhaust in a timely manner a prison's administrative remedies under the PLRA procedurally barred a subsequent suit in district court. Although that question was a matter of first impression for the Ninth Circuit, four other circuits have ruled on whether an untimely administrative appeal satisfies the PLRA's exhaustion requirement. The Sixth Circuit has previously held that it does; while the Third, Seventh, and Tenth have held that it does not.

The Ninth Circuit agreed with the approach taken by the Sixth Circuit in Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003), where that court held that a prisoner exhausts all available administrative remedies when he finishes "one complete round of the prison [grievance] process," regardless whether he filed a timely appeal. (Thomas, id., at 733). The court explained that the PLRA's exhaustion provision is "a benefit accorded to state prisons, an opportunity to satisfy those inmate grievances the state wishes to handle internally." (Thomas, id., at 726.) According to the Sixth Circuit, when filing a late claim, a prisoner fulfills the letter and spirit of the PLRA by providing the state an opportunity to review the claim. If the state refuses to consider the claim, then this decision should not "handcuff the federal courts in adjudicating cases involving important federal rights."

In the instant case, the Ninth Circuit concluded that “the PLRA exhaustion requirement tends to resemble administrative exhaustion. Thus, the reasons for utilizing procedural default doctrine in the habeas context are generally irrelevant to prisoner suits under the PLRA. There is no need for us to convert a rule governing the timing of lawsuits into one that bars them entirely.“ The Court also commented:

“We recognize that procedural bars will certainly filter out some suits brought by prisoners. But neither can we be blind to ‘the serious impact on prisoners with legitimate claims who are unrepresented, unschooled in litigation, and often ill-equipped to negotiate an administrative system far harsher in its procedural requirements than state or federal courts’."

Of particular interest, the panel also took several measured swipes at the rationale of and the justification for the PLRA. Thus, for example, it pointedly noted:

"The PLRA significantly altered how and when prisoners could file suits in federal courts to challenge the conditions of their confinement. Despite the PLRA's impact on more than a million prisoners, hardly any legislative history exists behind its enactment. See 142 Cong. Rec. S2285-02 at S2296 (daily ed. Mar. 19, 1996) (statement of Sen. Kennedy) ('The PLRA was . . . never the subject of a committee mark-up, and there is no Judiciary Committee report explaining the proposal. The PLRA was the subject of a single hearing in the Judiciary Committee, hardly the type of thorough review that a measure of this scope deserves.')."

In Brief

Presentence Reports: U.S. v. Robinson, 357 F.Supp.2d 523 (N.D.N.Y. 2005) - Many defense lawyers are reluctant to fight too hard to correct what they consider to be insignificant inaccuracies that often appear in a presentence report (PSI). They assume (understandably) that (a) raising such issues will only tick off the judge, and (b) the items in question won’t have any impact on the sentence. There are, however, two good reasons why it makes sense to correct such inaccuracies. First, the BOP will comb through the PSI to find any excuse to impose more onerous restrictions on the defendant while in prison (including such things as the security level of the prison itself and the types of jobs for which the defendant may be eligible). Second, as this case shows, once the PSI has been issued, it becomes carved in stone for all future purposes. Citing the provisions of Rule 32 of the Fed.R.Crim.P. and numerous cases, Judge Kahn observed that “a district court lacks subject matter jurisdiction over challenges to the PSI once the sentence has been imposed.” (Id., at 524)

Supervised Release - Early Termination: U.S. v. Norgaard, 357 F.Supp.2d 1274 (W.D.Wash. 2005) - Eureka! We have finally found a published decision in which a court actually granted a defendant’s motion, pursuant to 18 U.S.C. § 3583(e)(1), for early termination of supervised release. That statute permits the court to grant such early termination at any time after the expiration of one year of supervised release if the court is satisfied that such action is warranted by the conduct of the defendant and comports to the interests of justice.

However, before leaping to cite this case as a precedent, here are some of the reasons cited by Judge Bryan in support of his decision to cut short the defendant’s three-year term of supervised release after he had served 17 months: “Norgaard is 71 years old, and lives with his 70 year old wife. He has cooperated fully with his probation officer. He completed an intensive drug and alcohol course in prison. He has given 15 random urine samples which have tested negative for controlled substances. There is little likelihood that continued supervised release will afford an additional deterrence or is needed to protect the public. Norgaard and his wife both receive pensions and so there is no need to provide him with educational or vocational training, medical care, or other correctional treatment.” (Id., at 1276).

Frankly, we never heard of a single defendant who received any “educational or vocational training, medical care, or other correctional treatment” while on supervised release - but it sure sounds good.

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