Vol. 13, Nos. 45 & 46	Covering Cases Published in the Advance Sheets through Nov. 13, 2006

New Supreme Court Rulings

• By a vote of 8 to 1, the Supreme Court held in Lopez that, at least for the purposes of determining whether a crime constitutes an “aggravated felony” under the Immigration and Nationality Act, a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that federal law.
  
  
  
• In Musladin, the Supreme Court held that the Ninth Circuit had erroneously granted habeas relief to a defendant whose murder victim’s relatives attended the trial wearing buttons with the victim’s picture on them, on the narrow grounds that the Supreme Court had never “clearly established” the law on that topic, the jurisdictional requisite for granting habeas relief under the AEDPA.
  
  

The Fourth Amendment, the Never-Ending War on Terror, and the "Special Needs" Doctrine

• The Cassidy case from the Second Circuit is another testament to the near total abdication of power by the courts to Government officials who now determine with increasing regularity when a “special need” exists in the war on terror that justifies another departure from the constitutional protections of the Fourth Amendment.
  

Booker Developments: Mostly Churning Water While Waiting for the Supremes

• The Ninth Circuit has decided to postpone indefinitely its previously scheduled en banc review of U.S. v. Zavala and U.S. v. Carty pending the Supreme Court’s expected review of the Booker reasonableness standards, due to the “overlap of the issues involved.
  
  
  
• In Spears and Williams, the Eighth and Eleventh Circuits, respectively, have declined to review en banc the current 100:1 crack-cocaine ratio that applies to Federal sentences.
  
  
  
• In the brief Rodriguez Pena and Lorenzo decisions, neither the First nor the Eleventh Circuits were persuaded that Booker permits a sentencing court to consider the post-sentencing rehabilitative conduct of a defendant when resentencing him or her.
  
  
  
• In Gilmore, the Second Circuit held that the failure of a sentencing court to provide prior notice of an upward variance constitutes plain error that warrants reversal and a remand for resentencing.
  
  

Some of the Bail Restrictions in the Adam Walsh Child Protection Act Held Unsonstitutional

• In Crowell, Magistrate Judge Foschio of the W.D.N.Y. ruled that certain provisions of the recently enacted (and little debated) Adam Walsh Child Protection and Safety Act of 2006 were unconstitutional. The provisions in question, which amended the Bail Reform Act, were held to violate the Excessive Bail Clause of the Eighth Amendment, procedural due process guaranteed by the Fifth Amendment, and the separation of powers doctrine.

Lopez v. Gonzales, No. 05-547 (U.S. Sup.Ct. Dec. 5, 2006) (Justice Souter)

In this 8 to 1 ruling (Justice Thomas was the lone dissenter), the Supreme Court held that a state felony conviction for simple drug possession does not qualify as an "aggravated felony" for purposes of the Immigration and Nationality Act (INA). In so ruling, the Court rejected the Government’s interpretation of the immigration laws that a noncitizen is subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.

The INA lists as an "aggravated felony" the "illicit trafficking in a controlled substance . . . including a drug trafficking crime” (8 U.S.C. § 1101(a)(43)(B)), but does not define "drug trafficking crime." However, 18 U.S.C. § 924(c)(2) defines "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act" (CSA).

It has been the position of the Government (and some of the Circuits) that the term “any felony” meant any crime that was considered a felony either under Federal law or in the state where the prosecution took place. In that circumstance, a conviction for simple possession could become a drug trafficking offense and hence an aggravated felony. Under current immigration laws, once an immigrant has been convicted of an aggravated felony, he or she is stripped of various protections, including the right to seek relief from automatic deportation (known as “cancellation from removal”), the right to seek asylum, and the right ever to return to the United States.

Jose Antonio Lopez, the petitioner in this case, is a Mexican who had been a permanent resident in the United States since 1990. In 1997 he pled guilty in a South Dakota state court to the crime of aiding and abetting another person’s possession of cocaine. That crime is a felony under South Dakota law, although the analogous offense is a misdemeanor under Federal law.

Lopez served 15 months in a state prison, after which an immigration judge ordered him removed, under the provisions of 8 U.S.C. § 1229b(a)(3), which provides that the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. The Board of Immigration Appeals affirmed, and the Eighth Circuit affirmed in a decision reported at Lopez v. Gonzales, 417 F.3d 934 (8th Cir. Aug. 9, 2005) (“Lopez I”).

The Supreme Court granted certiorari to resolve a conflict among the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant, but as a misdemeanor under the CSA.

In reversing the Eighth Circuit’s ruling in Lopez I, Judge Souter, writing for the majority, concluded that the Government’s interpretation of the definition of “aggravated felony” was based on a strained and implausible reading of the definition of a “drug trafficking crime.” He bluntly stated that there were a few things wrong with the Government’s interpretation “the first being its incoherence with any commonsense conception of ‘illicit trafficking,’ the term ultimately being defined.” He continued:

“Reading § 924(c) the Government's way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government's position. . . . Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean ‘just what [he chose] it to mean -- neither more nor less,' and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.”

As a matter of note, the Supreme Court had also granted certiorari in a companion case involving the same interpretive question but in the context of the Federal Sentencing Guidelines rather than the INA. (Toledo-Flores v. U.S., No. 05-7664 (U.S. Sup. Ct. Dec, 5, 2006)). The Court dismissed the Toledo-Flores case in a one-sentence order stating that the "writ of certiorari is dismissed as improvidently granted."

The conflicting signals the Court sent in these two cases immediately raised some concerns that the Supreme Court was suggesting a different approach about the meaning of an aggravated felony depending on whether that issue arises in the context of the immigration laws or the Guidelines. Those concerns are accentuated by the fact that several Circuits have concluded that a state possession felony is an aggravated felony in the Guidelines context.

See, for example, "State Felony Conviction for Simple Drug Possession Is Not an 'Aggravated Felony' within Meaning of the Immigration and Nationality Act," by Yuanchung Lee, as posted on the Second Circuit Blog on Dec. 6, 2006; and "Lopez: the Supreme Court reverses Ninth Circuit law on possession as an aggravated felony," by Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Oregon, as posted on the Ninth Circuit Blog on Dec. 5, 2006.

However, the consensus seems to be that the Court’s ruling in Lopez applies to both the immigration laws and the Guidelines; and both Yuanchung Lee and Stephen Sady make persuasive arguments to that effect in their commentaries cited above.

U.S. v. Spears, No. 05-4468 (8th Cir. Dec. 5, 2006) (En banc) (Judge Riley)
U.S. v. Williams, No. 05-13205 (11th Cir. Dec. 13, 2006) (En banc) (Per Curiam)

Ever since Congress enacted the Anti-Drug Abuse Act of 1986, Federal law has treated persons convicted of possession or use of powder cocaine vastly differently than persons convicted of possession or use of crack cocaine - even though the two forms of the drug are chemically indistinguishable. Effectively, Congress differentiated between the two forms of cocaine, concluding crack cocaine was more addictive and produced more health and social problems.

Based on that premise, Congress established what has become known as the “100:1 crack-cocaine ratio.” Although that ratio is often - erroneously - referred to as a sentencing ratio, it actually refers to the relative quantities of powder cocaine and crack cocaine required to trigger similar penalties - and not to the length of the sentences imposed.

Thus, offenses involving 5 kilograms of powder cocaine and 50 grams of crack cocaine both trigger the statute's ten-year mandatory minimum sentence. Similarly, offenses involving 500 grams of powder cocaine and 5 grams of crack cocaine trigger the statute's five-year mandatory minimum sentence. Congress differentiated between the two forms of cocaine, concluding crack cocaine was more addictive and produced more health and social problems.

Since its inception, the 100:1 quantity ratio has been highly controversial; and has generated enormous debates among jurists and within the Sentencing Commission itself (which has unsuccessfully tried several times to convince Congress to reduce - significantly - the 100:1 ratio. Many judges have even bluntly concluded that the crack/cocaine sentencing disparity unconstitutionally discriminates against blacks who are subjected to a policy of unconscious racism. (See, e.g., Judge Cahill’s brilliant decision in U.S. v. Clary, 846 F.Supp. 768 (E.D.Mo. Feb. 11, 1994)).

Judge Riley’s opinion in Spears contains an excellent review of the legislative and judicial history and purpose of the 100:1 ratio; and his analysis helps to put in focus the re-emergence of the debate over the wisdom and fairness of that ratio in the wake of the Supreme Court’s sentencing decision in U.S. v. Booker, 543 U.S. 220 (2005). He explained:

“Because Booker eliminated the mandatory application of the Guidelines and directed district courts to impose sentences in accordance with the factors set forth in 18 U.S.C. § 3553(a), Booker, 543 U.S. at 311-14, district courts have varied from the now-advisory Guidelines by substituting a ratio other than 100:1, reasoning the 100:1 quantity ratio results in a sentence ‘greater than necessary’ to reflect the interests of 18 U.S.C. § 3553(a)(2).”

Despite the impetus created by Booker to reconsider the wisdom and fairness of the 100:1 ratio, the appellate courts have universally been loathe to reopen the crack-cocaine debate; and most of the Circuit court have quickly - and often perfunctorily - vacated any and all lower sentences that have been granted, instructing the district courts that they may not tinker with the Congressionally-imposed 100:1 ratio.

Consistent with that approach, the Eighth and Eleventh Circuits declined, in these two decisions, to grant any en banc review of panel rulings that rejected any changes in the crack-cocaine sentencing standards based on Booker. What is noteworthy about both decisions are the dissenting opinions of Judges Bye and Barkett.

In Spears, Judge Bye forcefully argues that Congress rushed through the 100:1 ratio during the Reagan-era crack hysteria and that any possible justification for the disparity has since been debunked. He also argued that Booker opened the door to using a different formula, and that the that the full court should have affirmed the district court’s use of a more moderate 20:1 ratio in this case.

In Williams, Judge Black wrote a lengthy opinion concurring in the Court’s refusal to grant any rehearing en banc of the 100:1 quantity ratio based on Booker. What is most interesting about her opinion is her total failure even to address the so-called “parsimony provision” of 18 U.S.C. 3553(a) - namely that Federal judges are required to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [18 U.S.C. § 3553(a)].”

In her dissent, Judge Barkett argued that, in light of Booker, the 100:1 ratio is now discretionary; and she forcefully stated:

“[T]he differentiation between crack cocaine and powder cocaine is simply a guideline. Under Booker, the recommended guideline range for crack cocaine must be considered like any other guideline range. That is, like all other guidelines, it cannot be considered mandatory; it is to be considered advisory; it must be considered in conjunction with all of the other factors listed in § 3553(a). There is nothing in Booker, the Sentencing Reform Act, nor in any other law that exempts the crack guidelines from the dictates of Booker. Accordingly, if a district court concludes, upon consideration of all of the § 3553(a) factors, that the crack guidelines overstate the seriousness of a particular defendant's offense, we may not reverse solely on the basis that the district court was obligated to follow the guidelines.”

In our opinion, the debate about crack-cocaine sentencing goes on -and nothing will happen until Congress decides that it is safe at last to reexamine some of the questionable - but politically popular - premises that led it to create the 100:1 ration in the first place.

U.S. v. Rodriguez Pena, No. 06-1679 (1st Cir. Dec. 11, 2006) (Per Curiam)
U.S. v. Lorenzo, 05-16119 (11th Cir. December 08, 2006) (Per Curiam)

Both of these cases address, inter alia, whether a sentencing court may properly consider any post-sentencing rehabilitative efforts of the defendant when resentencing that defendant, in light of the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005).

In 2000, before Booker was decided, the Sentencing Commission adopted U.S.S.G. § 5K2.19, which states:

“Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that offense. (Such efforts may provide a basis for early termination of supervised release under 18 U.S.C. § 3583(e)(1)).”

Despite that language, many commentators have argued that, post-Booker, a sentencing Court should be permitted to consider post-sentencing rehabilitative efforts of a defendant because (a) the Guidelines are no longer mandatory, and (b) the language of 18 U.S.C. 3553(a)(1) specifically permits a court to consider “the history and characteristics of the defendant.”

Neither of these courts was persuaded by such arguments. In its brief per curiam decision in Lorenzo, the Eleventh Circuit stated:

“Lorenzo and the district court assert that consideration of post-sentencing behavior falls within § 3553(a)(1), which includes ‘the history and circumstances (Sic!)of the defendant,’ but we are not persuaded that § 3553(a)(1) contemplates post-sentencing history and characteristics. Consideration of post-sentencing behavior also directly contravenes two factors under § 3553.”

In a similarly brief per curiam decision in Rodriguez- Pena, the First Circuit stated:

“[D]efendant [also] seeks a sentence reduction because of his extensive post-judgment rehabilitation. Yet such conduct, while commendable, has nothing to do with the lowering of the sentencing range by the Commission, as required by § 3582(c). Accordingly, such rehabilitation provides no basis either for a sentencing reduction in its own right, or for a further downward departure where a § 3582(c) reduction is ordered for some other reason.” (Internal citations omitted).

U.S. v. Gilmore, No. 05-6195-cr (2nd Cir. Dec. 8, 2006) (Per Curiam)

Rule 32(h) of the Fed.R.Crim.P. states: “Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.”

Ever since the Supreme Court devised its magical “save-the-Guidelines” solution in U.S. v. Booker, 543 U.S. 220 (2005) by holding that the Guidelines are merely advisory, the Circuits have split on the issue of whether the mandate contained in Rule 32(h) still applies to upward “variances” under the newly constituted Guidelines. To date, four Circuits (the Third, Seventh, Eights and Eleventh) have formally held that Rule 32(h) does not apply to Booker variances; while five (the Second, Fourth, Sixth, Ninth and Tenth Circuits) have held that Rule 32(h) does apply to Booker variances. (See, “Sixth Circuit adds to split on Rule 32(h),” by Prof. Doug Berman, as posted on Sentencing Law and Policy on Nov. 30, 2006.)

In U.S. v. Anati, 457 F.3d 233 (2d Cir. 2006), the Second Circuit previously held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the § 3553(a) factors) prior to sentencing.

In the instant case, the Second Circuit extended is holding in Anati and held that the failure of the sentencing court to provide the advance notice required by Anati constitutes "plain error" warranting reversal and remand for resentencing, even where the defendant failed to object to the lack of notice at sentencing.

Ultimately, we assume that this dispute among the Circuits will be resolved by the Supreme Court.

U.S. v. Crowell, No. 06-M-1095 (W.D.N.Y. Dec. 7, 2006) (Magistrate Judge Foschio)

In the 09/11/06 issue of P&J, we presented a brief analysis of some of the most controversial provisions contained in the little-debated, 83-page, election year law entitled “The Adam Walsh Child Protection and Safety Act of 2006” (CPSA), which became effective on July 27, 2006. In the instant case, Magistrate Judge Foschio addressed a series of constitutional challenges to some of the new, mandatory pretrial release conditions contained in the CPSA; and, in this powerful and persuasive ruling, he emphatically concluded that a number of those provisions were unconstitutional.

The three defendants in this consolidated case were charged in separate actions with the possession and/or distribution of child pornography in violation of various Federal statutes. After they were initially released on bail, the court became aware that some of the new amendments to the Bail Reform Act (18 U.S.C. § 1341 et seq.) contained in the CPSA required the imposition of a series of additional mandatory conditions of release on each defendant, including specifically: (1) electronic monitoring; (2) restrictions on personal associations, place of abode and travel; (3) avoiding contact with the alleged victim of the crime and potential witnesses; (4) regularly reporting to pretrial services; (5) complying with a specified curfew; and (6) refraining from possessing a firearm, destructive device or other dangerous weapon. (18 U.S.C. § 3142(c)(1)(B)).

Upon becoming aware of the new mandatory conditions of release, the defendants challenged the proposed modification of their release conditions under the CPSA as in violation of procedural due process, the separation of powers doctrine, and the Eighth Amendment's Excessive Bail Clause. [For the benefit of our readers, we have posted online the defendants’ Memorandum of Law in support of their constitutional objections, and the Government’s Response thereto.]

Judge Foschio commenced his discussion of the defendants’ constitutional challenges by observing that:

“the understandable legislative desire to suppress the potential to continue the misconduct by persons while on release pending trial on such charges does not allow Congress to override fundamental constitutional safeguards of the accused who, despite the reprehensible nature fo the offenses, continue to enjoy the presumption of innocence in setting conditions of release.”

In large part, Judge Foschio relied on the Supreme Court’s seminal decision on the Bail Reform Act, U.S. v. Salerno, 481 U.S. 739 (1987), to support his conclusions; but he also caustically rejected a number of the Government’s patently far-fetched arguments to support the constitutional validity of the little-debated provisions of the CPSA at issue. For example, at one point he rejected one of the Government’s arguments as “ intriguing but, ultimately, unpersuasive”; and, another time, he bluntly stated: “Careful review of the text of the Bail Reform Act and the Court's reasoning in Salerno, however, reveals no support for the Government's expansive assertion of congressional power.”

In the end, Judge Foschio agreed with the defendants that the amendments of the CPSA at issue, particularly in light of their mandatory nature, violate procedural due process required by the Fifth Amendment, violate the separation of powers doctrine, and violate the Excessive Bail Clause of the Eighth Amendment. Thus, he wrote that the imposition of the challenged conditions “on all defendants charged with certain crimes, regardless of the personal characteristics of each defendant and circumstances of the offense, without any consideration of factors demonstrating that those same legitimate objectives cannot be achieved with less onerous release conditions, will subject a defendant, for whom such conditions are, in the court's judgment, unnecessary, to excessive bail in violation of the Eighth Amendment.”

He also concluded that the CPSA’s mandate that imposes certain pretrial release conditions, “based solely on the nature of the particular crimes charged, directly restricts the judicial discretion Congress sought to enlarge in both the Bail Reform Acts of 1966 and 1984, and which the Supreme Court has recognized as paramount to meet the requirements of procedural due process in the bail-setting process in federal courts.”

Finally, Judge Foschio concluded that, by enacting the CPSA,

“Congress has unambiguously imposed upon the federal judiciary a specific rule to be applied in determining the release of a defendant charged with specified offenses, thereby denying to the court the exercise of its judicial authority to set such conditions. In so doing, Congress has commandeered the court into acting as its agent for purposes of imposing the targeted release conditions. Since the Constitution was adopted, the setting of bail in federal criminal cases, with minor exceptions, has been recognized as representing the quintessential exercise of judicial power. . . . As such, the [CPSA] Amendments unmistakedly and unduly encroach upon the judicial function, exclusively reserved by Article III of the Constitution to the Judicial Branch, in violation of the separation of powers established by the Constitution's framework.”

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