Friday, July 29, 2005

The "Three Amigos": alternative sentences, harmless Booker error, and the reasonableness standard

The Sixth Circuit has joined the 1st, 3rd, 4th, 7th, 8th, and 10th Circuits in finding that the announcement of alternative sentences by the district court can render Booker error harmless. United States v. Christopher No. 04-3946 (6th Cir. July 28, 2005) (Rogers, C.J., Sutton, C.J., and Forester, D.J.) (opinion available here).

This case was on appeal for the 2nd time. Originally, the district court had sentenced the defendant after adopting the PSR which had recommended a total offense level of 20. The court sentenced the defendant to 33 months’ imprisonment and a three-year period of supervised release. It also ordered him to pay $1,573,062.50 in restitution. The defendant appealed and the 6th Circuit reversed finding that the district court had not made adequately specific findings concerning the amount of loss. United States v. Christopher, No. 02-4004, 91 F.App’x 471, 477 (6th Cir. Mar. 4, 2004).

Upon resentencing, the probation officer revised the PSR and recommended a custody range of 30-37 months, based on a total offense level of 19. The defendant objected to the PSR’s findings on the amount of loss pursuant to Blakely. The district court adopted the PSR’s recommendations as to offense level and amount of loss and sentenced him to 30 months, the low end of the range. The court gave two alternative bases for imposing the sentence due to what the court described as "the sentencing mess that has been created by the Supreme Court." The court gave the defendant one sentence "under the guidelines" and one "under the statute." Thus, the district court imposed a “statutory sentence” identical to the one issued under the Guidelines, “in the event an appellate court finds that the Sentencing Guidelines should not be applicable.” The district court, however, failed to anticipate the Supreme Court's decision in Booker that made the Sentencing Guidelines advisable, rather than throwing them out altogether.

Despite explicitly finding that the district court erred in each of the alternative sentences under Booker, the Sixth Circuit concluded that the alternative sentences by the district court rendered any Booker error harmless, "because of the way in which the district court imposed [the] alternative sentences." The panel found that the court’s alternative sentence "makes clear that either in the absence of the Guidelines or in an advisory Guidelines system, the district court would have imposed on Christopher the same sentence as the mandatory Guidelines required."

The panel then examined whether the sentence was reasonable citing United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005) and United States v. Webb, 403 F.3d 373, 382 (6th Cir. 2005). Although the district court wholly failed to mention the factors set forth in 18 U.S.C. § 3553(a), the panel felt that it was "understandable" because the case had been remanded for a re-determination of the amount of loss. Moreover, the panel felt that it was the defendant's burden to show which statutory factors the district court should have considered and how they would have made a difference in the defendant's sentence.

Does this case call into question the reasonableness standard previously set forth in Jackson and Webb? It may, given that this panel appears to put an affirmative duty on the defendant to show, on appeal, how the district court's sentence would have been different, rather than requiring the district court to explicitly state the 18 U.S.C. § 3553(a) factors and the reasons for the sentence that was imposed as set forth in Jackson.

Thursday, July 28, 2005

Sixth Circuit has sent mixed messages about whether a defendant "admits" to PSR facts by not objecting to them.

As a previous post mentioned, a Sixth Circuit panel recently issued an unpublished decision holding that a defendat "admits" to PSR facts by not objecting to them. United States v. Bondurant, No. 04-5935, (6th Cir. 7/13/2005). But that holding is questionable in light of prior Sixth Circuit decisions.

United States v. Oliver, 397 F.3d 369 (6th Cir.), r’hrg en banc denied, 2005 U.S. App. LEXIS 8415 (6th Cir. May 6, 2005). In Oliver, the defendant was convicted on drug trafficking charges. Id. at 374. During his trial, the jury was presented with evidence that, after Oliver’s arrest, he left a Community Alternatives Program (CAP). Id. The jury did not explicitly find that Oliver had left the CAP. Id. Oliver’s PSR proposed a two-level enhancement under § 3C1.1 for obstructing justice by leaving the CAP. Id. Oliver did not object to the PSR’s factual allegation that he left the CAP. See id. at 374, 381 n.4. Rather, he objected that leaving the CAP legally did not constitute an obstruction of justice. Id. at 374. The District Court imposed the enhancement. Id. On appeal, Oliver raised for the first time a Blakely objection to the enhancement, arguing that it was improperly based on a finding of fact. Id. at 377. The Court held that the District Court plainly erred by enhancing Oliver’s sentence under a mandatory Guidelines regime based on a judge-found fact. Id. at 378.

United States v. Bucheit, 2005 U.S. App. LEXIS 9805 (6th Cir. May 23, 2005) (taking the same approach as Oliver while specifically noting that the defendant failed to object to the PSR’s factual allegations)

Bondurant's approach contradicts the plain language of Rule 32, which states that the district court is making “findings of fact” when it adopts undisputed PSR allegations, not that it is merely acknowledging admissions. Fed. R. Crim. P. (32)(i)(3)(A). Rule 32 is not the equivalent of Federal Rule of Civil Procedure 36, which creates a procedure for procuring admissions through a litigant’s silence. Rather, it merely creates a procedure for permitting the sentencing court to make factual findings based on the hearsay evidence in a PSR when the criminal defendant does not object.

Bondurant's approach may violate a defendant's Fifth Amendment right against self-incrimination, which prevents the sentencing judge from drawing adverse inferences from the defendant's silence at sentencing. See Mitchell v. United States, 526 U.S. 314 (1999)

Tuesday, July 26, 2005

Definition of "Aggravated Felonies" for Guidelines Enhancement in Illegal Re-entry Cases Clarified

United States v. Palacios-Suarez, No. 04-4187 (6th Cir. 7/22/05) (Moore, & Restani (U.S.Ct.Int.Tr.), JJ.; Nelson, J., concurring)

Defendant was convicted in Ohio and Kentucky of possession of controlled substances, both of which were, in the state courts, felonies. His Guidelines were increased under §2L1.2(b)(1)(C) based on a finding that these convictions amounted to "aggravated felonies". Defendant argued that, since these offenses would've been misdemeanors if prosecuted under federal law, they couldn't be considered "felonies" for purposes of this enhancement.

Held: a state felony conviction which does not contain a trafficking component must be punishable as a felony under federal law in order for it to constitute an "aggravated felony" under the Immigration and Nationality Act (INA), and, thence, for purposes of the enhancement under §2L1.2(b)(1)(C). Since both prior convictions would have been treated as misdemeanors under 21 U.S.C. § 844(a), they could not be counted as "aggravated felonies" for purposes of the enhancement. In so ruling, Judge Moore, noting the Circuit split on this issue, adopted the "hypothetical felony" approach of the 2nd, 3rd and 9th Circuits. In so doing, the panel rejected the "guideline approach" of the 1st, 4th, 5th, 8th, 10th, and 11th Circuits. The opinion, while dense with competing statutory and Guidelines definitions, is well-reasoned and well-presented. Congratulations to AFPD Richard Smith-Monahan of Cincinnati who briefed and argued the case.

Thursday, July 14, 2005

Failure to object to PSR facts constitutes Booker "admission"

In a per curiam unreported opinion, United States v. Bondurant, No. 04-5935, (6th Cir. 7/13/2005)(Boggs, C.J., Gibbons, C.J., Quist, D.J. (WD Mich.)), a panel of the Sixth Circuit held that Bondurant's Sixth Amendment rights were not violated under United States v. Booker, __U.S.__, 125 S.Ct. 738 (2005), because there were no factual objections to the presentence report. The panel affirmed the district court's Guideline applications. Yet, the panel vacated and remanded the sentence "for resentencing under Booker." The panel, citing to United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005), found that there was plain error in the sentence because it was given "under the presumption that the Guidelines were mandatory."

The panel asserts that there were no objections to the facts contained in the PSR and that these "admissions" properly lead to an enhanced advisory Guideline range. In footnote 1 of the opinion, the panel asserts that Bondurant's objections "rested upon a Blakely argument and not that the facts contained in the presentence report were inaccurate." Id. n. 1. The panel cited, in part, to the Sixth Circuit's recent opinion in United States v. Williams, __ F.3d__, 2005 WL 1384355, at *2 (6th Cir. June 9, 2005), in finding that Bondurant "admitted the facts that gave rise to the enhancements." Even if the Blakely objection was insufficient to challenge the facts of the PSR, the panel never discusses how Booker contemplates that the failure to object to facts contained in a PSR are proper admissions sufficient to warrant Guideline enhancements under the Sixth Amendment.

Furthermore, the panel's citation to Williams is inaccurate. Williams pled to an indictment that contained the facts of the enhancement. Specifically, Williams had admitted to using a computer in the commission of his offenses, a fact that was charged in the indictment, and which resulted in a 2 level enhancement under the Guidelines. Williams, at *3. Bondurant, on the other hand, made a Sixth Amendment objection to the process in which the facts were determined under the then existing precedent of Blakely v. Washington, __U.S.__, 124 S.Ct. 2531 (2004). Thus, Bondurant squarely contested the procedure used by the district court to find that these facts were indeed accurate, which can hardly be characterized as an admission or failure to object.

This case, although unreported, raises serious questions about what can be considered an admission under Booker. This is an area that has not received much attention in the Sixth Circuit, yet, but surely will in the future. Practitioners would be wise to write PSR objections with this unreported case in mind.

Tuesday, July 12, 2005

Booker - "Crime of Violence" Determination Can Be Made By Judge
United States v. Hollingsworth, No. 04-6172 (6th Cir. 7/11/05) (Gilman, Clay & Cook, JJ.) (Held: the determination by the district court that a particular prior conviction of the defendant’s is a "crime of violence" does not violate the constitutional prohibition against judicial fact-finding in Booker as certain aspects of the character of prior convictions are so basic as to be implicit in the fact of a prior conviction, and a prior conviction’s character as violent is one of those; remanded based on previous mandatory nature of the Guidelines.)

Booker - No Waiver of Booker Issues in Original Plea Agreement
United States v. Amiker, No. 03-6001 (6th Cir. 7/11/05) (Ryan, J., Boggs, C.J., & Rogers, J.) (Held: to the extent that Bradley suggests that one who had agreed to be sentenced under the Guidelines waives his right to appeal under Booker, such holding is limited to the facts in Bradley where it was but one consideration supporting the finding of waiver; the Supreme Court in Booker said that where a defendant pleads guilty, the government is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact-finding; consent to judicial fact-finding cannot be found in an ordinary plea agreement; at the time of defendant’s plea agreement and sentencing, all plea agreements required, either explicitly or implicitly, that a defendant agree to sentencing under the Guidelines; where this agreement is spelled out, we see no reason to imply consent to judicial fact-finding; also questioning holding in Gilliam distinguishing between relief for Sixth Amendment errors but not for mandatory application of the Guidelines.)