Monday, May 30, 2005

Sixth on Booker


[NOTE: This is an updated version of a previously posted article]

On January 15, 2005, the United States Supreme Court threw a loop into federal criminal sentencing. In United States v. Booker and United States v. Fanfan, 125 S.Ct. 738 (2005), the Court made clear that Sixth Amendment applies to the federal sentencing guidelines scheme that was created by the Sentencing Reform Act of 1984. The Court then severed and invalidated 18 U.S.C. § 3553(b), the provision within the Sentencing Reform Act that required judges to impose sentences within the sentencing guidelines ranges, except in limited circumstances.

In the aftermath of Booker, the Sixth Circuit has issued a steady stream of opinions in cases with Sixth Amendment issues. This article surveys the key published decisions issued by the Sixth Circuit through May 30, 2005.

Plain Error
Starting in United States v. Davis, the Sixth Circuit repeatedly finds that plain error exists where the district court imposed sentencing guideline enhancements based solely on judicial factfinding under the then-mandatory sentencing guidelines scheme. See United States v. Davis, 397 F.3d 340 (6th Cir. 2005); United States v. Oliver, 397 F.3d 369 (6th Cir. 2005); United States v. Barnett, 398 F.3d 516 (6th Cir. 2005); United States v. Milan, 398 F.3d 445 (6th Cir. 2005); United States v. Yagar, Nos. 5151/5264 (6th Cir. 4/18/05); United States v. Jones, No. 03-6239 (6th Cir. 2005); United States v. Alva, No. 03-5175 (6th Cir. 4/26/05); United States v. Pugh, 405 F.3d 390 (6th Cir. 2005); United States v. Frederick, No. 03-1895 (6th Cir. 5/5/05); United States v. Harmon, No. 03-1925 (6th Cir. 5/12/05); United States v. Davidson et al., Nos. 03-6544/6549 (6th Cir. 5/18/05).

Both Oliver and Barnett provide in-depth analysis of the requirements for appellate review and remand of an otherwise forfeited error: (1) there must be error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Oliver, 397 F.3d at 378. Barnett makes clear that prejudice should be presumed, particularly when a defendant received a sentence at the bottom of the mandatory sentencing guideline range. Barnett, 398 F.3d at 398; see also, United States v. Moncivais, No. 02-6457 (6th Cir. 3/24/05); United States v. Hamm, No. 03-5658 (6th Cir. 3/8/05); United States v. Sanders, No. 04-3181 (6th Cir. 4/20/05). Even when a defendant received a mid-range sentence, the Booker error affected substantial rights and affects the fairness, integrity, and public reputation of the judicial proceedings. United States v. Jackson, No. 03-2493 (6th Cir. 3/24/05); United States v. Hudson, No. 04-5096 (6th Cir. 4/22/05) (sentence imposed under mandatory scheme that was slightly above the midpoint of the sentencing range is not "clear and specific evidence" that court would not impose lower sentence under advisory scheme).

Even in cases where the judge’s findings of fact appears to be supported by the record, the case still should be remanded for re-sentencing so that each party may "argue for the exercise of the district court’s discretion" under the newly advisory scheme. United States v. Hines, 398 F.3d 713 (6th Cir. 2005); see also, United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (remanding where it is "at least possible" that judge would have sentenced defendant to lower sentence under an advisory guideline scheme); United States v. McCraven,__F.3d__, 2005 U.S. App. LEXIS 4450 (6th Cir. 3/17/05)(finding it prudent to remand under new advisory guidelines, even though defendant had admitted facts underlying enhancement); United States v. Poole, No. 04-5016 (6th Cir. 5/10/05) (remanding for resentencing even though all recommended enhancements were based on criminal history).

Only in rare cases will the presumption of prejudice, which requires a remand for re-sentencing, be overcome. In United States v. Webb, the presumption of prejudice was rebutted by the clear and specific evidence in the record: (1) Webb merely received the sentence he bargained for with the specific recommendations in his agreement; (2) at sentencing, the district court referred to Webb as a "menace" and considered an upward departure; and (3) the court sentenced Webb to the maximum sentence possible in the applicable guideline range. Webb, __F.3d__, 2005 U.S. App. LEXIS 5420 (6th Cir. 4/6/05). The Webb court categorized this as an "exceptional" case, and it is unlikely that these ugly facts will surface in most other cases.1

The plain error determination is important for the many defendants who did not make Booker-type objections at the district court, but now have cases pending on appeal. If a defendant has a genuine Booker issue, but is raising it for the first time on appeal, he should still get relief. If defense counsel has not raised the Booker claim in his appellate brief already, he should file a supplemental letter brief pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure raising all Booker claims. See Oliver, 397 F.3d 369, fn.1 (6th Cir. 2005) (where defendant had not raised Sixth Amendment issues in his briefs but filed 28(j) letters after Supreme Court decided Blakely and Booker); United States v. McCraven,__F.3d__ , 2005 U.S. App. LEXIS 4450 (March 17, 2005) (same). Although "generally suspicious" of new claims raised for the first time at oral argument, the Sixth Circuit has considered at least one Booker claim raised only at oral argument. United States v. Trammel, No. 03-6652 (6th Cir. 4/8/05).

Prior Record Enhancements
Citing Booker’s exception for "the fact of prior conviction," and without specifying how broad or narrow that term is, the Sixth Circuit held that sentencing enhancements based solely on "criminal history" do not violate the Sixth Amendment. United States v. Poole, No. 04-5016 (6th Cir. 5/10/05); see also United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (finding no Sixth Amendment violation where defendant challenged the failure to submit prior convictions to jury for determining whether he qualified as Armed Career Criminal).

Mandatory Minimums
Already, the Sixth Circuit has recognized that Booker concerns arise in connection with some statutorily mandated minimum sentences. In United States v. Harris, the Sixth Circuit found that in order to impose an enhanced mandatory minimum sentence based on the type of firearm involved under 18 U.S.C. § 924(c)(1)(A), the type of firearm must be charged in the indictment and proven to a jury beyond a reasonable doubt. United States v. Harris, 397 F.3d 404 (6th Cir. 2005).

Impact of Plea Agreements
Plea agreements entered pre-Booker may affect a defendant’s ability to seek relief for an otherwise viable claim. Whether a defendant "admitted" a fact (and therefore obviated the need for jury fact-finding), may depend on the specific wording of plea agreement. See United States v. Murdock, 398 F.3d 491 (6th Cir. 2005) (defendant’s factual admissions in plea agreement concerning amount of loss were sufficient to authorize district court’s sentencing determination); Webb, 2005 U.S. App. LEXIS 5420 (6th Cir. 4/6/05)(finding that the district court properly applied sentencing enhancements where the defendant had admitted those facts by way of his recommendations in the plea agreement and factual admissions at the plea colloquy).

In one case where a defendant’s plea agreement stipulated to his status as a career offender and waived his right to appeal, the Sixth Circuit rejected the defendant’s argument that he should be re-sentenced in accordance with Booker. United States v. Bradley,__ F.3d __, 2005 WL 549087 (6th Cir. March 10, 2005). The Bradley Court explained that even when "developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature." Id; see also, United States v. Hunyady, No. 04-1325 (6th Cir. 5/17/05) ("because Hunyady has waived his right to file an appeal from his sentence, we need not consider any claims that he might otherwise have had" under Booker)

"Reasonableness" of the Sentence
In determining the reasonableness of the sentence imposed, the appellate court must consider the length of the sentence, the factors evaluated, and the procedures employed by the district court in reaching its sentence. So, a sentence is unreasonable if the district court fails to consider the applicable guidelines range or other factors listed under 18 U.S.C. 3553(a). In Webb, the Sixth Circuit declined to set out a rigid definition of "reasonable" or specific procedures that a district judge must employ. Finding that nothing suggested that Webb's sentence was unreasonable, the court noted that the district judge properly calculated and considered the guidelines; properly considered other pertinent 3553(a) factors; took into account other characteristics of Webb such as his lack of education and substance abuse problems; and did not appear to select the sentence arbitrarily, base the sentence on impermissible factors, or give unreasonable weight to any pertinent factor. United States v. Webb, __F.3d__, 2005 U.S. App. LEXIS 5420 (6th Cir. 4/6/05).

Webb also rejects the government’s favorite post-Booker argument– that a sentence within the applicable guideline range is per-se "reasonable." In Footnote 9, the Webb majority states that "[w]hile we decline to indicate what weight the district courts must give to the appropriate Guidelines range, or any other Section 3553(a) factor, we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of "reasonableness". . . but is also inconsistent with the Supreme Court's decision in Booker, as such a standard 'would effectively re-institute mandatory adherence to the Guidelines.'" (citations omitted).

To facilitate appellate review for reasonableness, the district court must provide sufficient analysis of its reasons for the sentence imposed. In United States v. Jackson, No. 04-3074 (6th Cir. 5/24/05), the Sixth Circuit remanded the case for further findings, in addition to the list of seven reasons already provided by the district court, so it could determine whether the sentence of three years’ probation was reasonable (the original guideline range was 27-33 months). The Jackson panel indicated that "Booker requires an acknowledgment of the defendant’s applicable Guidelines range as well as a discussion of the reasonableness of a variation from that range."

Reasonableness of Revocation Sentences
Under pre-Booker law, the Sixth Circuit upheld sentences imposed for revocations of supervised release unless they were "plainly unreasonable." In United States v. Johnson, No. 04-1538 (6th Cir. 4/15/05), the Court considered whether it instead should apply Booker’s new "reasonableness" standard to its review of supervised release violations. Because the 18 month sentence was appropriate under either standard applied, the Sixth Circuit declined to decide whether or not it should adopt a new standard for supervised release violations.Restitution
The Sixth Circuit recently acknowledged that "there is some question as to whether Booker requires us to reconsider our analysis of criminal defendant’s jury trial rights with respect to restitution orders." United States v. McDaniel, 398 F.3d 540 (6th Cir. 2005).

Collateral Relief
So far, the news from the Sixth Circuit is mixed for defendants attacking their pre-Booker sentences through a Motion To Vacate or Correct pursuant to 28 U.S.C. § 2255. In Humphress v. United States, the Sixth Circuit concluded that Booker created a new rule of criminal procedure which does not apply retroactively to convictions that have become final on direct appeal. Humphress v. United States, 398 F.3d 855 (6th Cir. 2005). However, if a defendant’s case is still pending on direct appeal when the law changes favorably, and defense counsel fails to argue the new change in law, the attorney may be deemed ineffective. Ballard v. United States, __F.3d__ , 2005 WL 549087 (6th Cir. March 10, 2005).

Other Cases
In United States v. Wesley, No. 04-1626 (6th Cir. 5/18/05), a Sixth Circuit panel declined an opportunity to determine whether the imposition of a career-offender enhancement under U.S.S.G. § 4B1.1 violates the Sixth Amendment.

United States v. Gibson, Nos. 03-6592-95 et al (6th Cir. 5/24/05), which involved a 28 count multi-defendant indictment and jury trial for illegal coal mining operations, contained a number of sentencing enhancement issues, but strangely, no Booker analysis.

In addition to the decisions discussed above, the Sixth Circuit continues to issue numerous unpublished post-Booker decisions which may contain situations analogous to those in your particular cases. AFPD Sumter Camp of Nashville has posted to this blog a detailed analysis of unpublished post-Booker decisions.

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