Friday, August 05, 2005

Booker Update: Episode III

In the last couple of months the handling of Booker claims by the Sixth Circuit has settled out into a fairly predictable pattern, with a few exceptions here and there. Objections to the alteration of the "plain error" standard are no longer being noted, and the examinations of whether or not plain error is involved have become shorter and shorter until, in some cases, they are simply stated as a conclusion.

Generally speaking, those cases in which there was a Sixth Amendment violation and there is no clear evidence of an inclination by the district court not to sentence higher, the cases are being remanded under the holding in Oliver. (See Remand, below) In those cases where there is no Sixth Amendment violation, but in which the district court treated the Guidelines as mandatory and there is no clear evidence the court wouldn’t sentence higher, remand is being granted under the holding in Barnett. (See Remand, below) Some cases cite to both decisions without distinction, despite the foundational differences in Oliver and Barnett. See, e.g., United States v. Franklin, No. 03-2439 (6th Cir. 7/19/05), 2005 WL 1706957; United States v. Dexta, No. 03-6602 (6th Cir. 7/28/05), 2005 U.S.App. 15508; United States v. Tate, No. 03-3498 (6th Cir. 6/10/05), 2005 WL 1385461 (unpublished); United States v. (Belita) Bush, No. 04-3613 (6th Cir. 6/15/05)2005 WL 1400197 (unpublished).

Some cases have also been remanded because they had petitions for certiorari pending when Booker was decided, and were remanded by the Supreme Court to the Court of Appeals for further consideration in light of the opinion in Booker. United States v. Dunbar, 411 F.3d 668(6th Cir. 6/8/05) (Order) (On certiorari, the judgment was vacated and remanded for consideration in light of Booker; the case is, therefore, remanded to the district court for re-sentencing); and, United States v. (James S.) Oliver, No. 03-5586 (6th Cir. 7/12/05), 2005 WL 1639613 (On certiorari, the judgment was vacated and remanded for consideration in light of Booker; the case is, therefore, remanded to the district court for re-sentencing).

While the great majority of cases are being remanded for re-sentencing, there are still a handful of cases in which remand is being denied, based either on the facts or on waiver grounds. (See No Remand, below) In some cases, denial of remand was based on the fact that, given the mandatory minimum nature of the sentences, Booker wouldn’t change the sentence. (See No Remand, below) We are also beginning to see those cases that were sentenced in between Blakely and Booker (and before Koch) in which the district judges were imposing alternative sentences and the impact that is having on remand (or no). See, e.g., United States v. Briceno, No. 04-4493 (6th Cir. 6/22/05), 2005 WL 1513101 (unpublished).

Attacks on sentencing enhancements based on the nature of prior convictions have been roundly rebuffed. United States v. Thomas, No. 04-5871 (6th Cir. 7/12/05), 2005 WL 1634374 (unpublished) (Rejecting application of Booker to determination of "controlled substance offense" for career offender purposes); United States v. Butler, No. 04-5899 (6th Cir. 6/22/05), 2005 WL 1515361 (unpublished) ( life imprisonment sentence for "third strike" drug offender); United States v. Zabawa, No. 03-2592 (6th Cir. 6/7/05), 2005 WL 1386485 (unpublished) (following Barnett's holding re a district court's characterization of a prior conviction as a "violent felony"). Despite this, though, some cases have still been granted remand for reconsideration after Booker. See, e.g., United States v. McKinney, No. 04-6083 (6th Cir. 7/1/05), 2005 WL 1579505 (Armed Career Criminal Act); United States v. Pearson, No. 04-5906 (6th Cir. 7/12/05), 2005 WL 1634437 (unpublished) (Armed Career Criminal Act); United States v. Sawyers, 409 F.3d 732 (6th Cir. 2005) (ACCA); United States v. Thomas, No. 04-5871 (6th Cir. 7/12/05), 2005 WL 1634374 (unpublished) (career offender); but, see, United States v. Zabawa, No. 03-2592 (6th Cir. 6/7/05), 2005 WL 1386485 (unpublished) (ACCA; no remand).

Finally, there has also been some discussion of the scope of remand and statutory problems left unresolved by Booker (see, Williams, below), and what "reasonable" might mean in post-Booker appellate review (see, Jackson and Christopher, below).

REMAND

Remanded based on Sixth Amendment violation under Oliver.

United States v. Caraway, No. 04-5115 (6th Cir. 2005) (remanding without discussion based on Oliver and the government’s concession at oral argument); United States v. Merkosky, No. 02-4332 (6th Cir. 6/14/05), 2005 WL 1400201 (unpublished) (remanded for re-sentencing for Sixth Amendment violation for increasing sentence for drug quantity and obstruction of justice, and finding plain error under Oliver analysis); United States v. (Bryan) Miller, No. 03-6496 (6th Cir. 6/14/05), 2005 WL 1389191 (unpublished) (though enhancements based on facts admitted by the defendant do not violate Booker’s rule, the admissions that defendant made as part of his plea agreement are not sufficient to support either of the enhancements imposed by the district court; the Sixth Amendment violation in this case constitutes plain error; Judge Batchelder noting her disagreement with what she sees as Oliver’s shifting of the burden on plain view from the defense to the government); United States v. Canon, No. 04-5310 (6th Cir. 6/17/05), 2005 WL 1432778 (finding Sixth Amendment violation based on enhancements for amount of loss, more than minimal planning and number of victims, and remanding under Oliver); United States v. (Armand) Wright, No. 04-1685 (6th Cir. 6/17/05), 2005 WL 1432969 (unpublished) (since defendant conceded the drug quantity in the district court that enhancement cannot justify a remand under Booker; however, the contested enhancements for possession of a firearm and obstruction of justice would so qualify; based on those enhancements and holding in Oliver, remand is appropriate); United States v. Penson, No. 04-3482 (6th Cir. 7/1/05), 2005 WL 1579499 (unpublished) (remanded where, after Booker, both parties agree that appellant’s sentence constituted plain error and that remand was appropriate under Oliver); United States v. Malone, No. 04-6352 (6th Cir. 7/7/05), 2005 WL 1579780 (unpublished) (remanding for re-sentencing under Oliver based on the Sixth Amendment violation based on the Guidelines loss calculation determined by the district court); United States v. (Ivan) Smith, No. 04-3422 (6th Cir. 7/12/05), 2005 WL 1653440 (unpublished) (remanding based on obstruction of justice enhancement; finding plain error under Oliver, noting the sentence in the middle of the range); United States v. (Willard) Smith, No. 04-5334 (6th Cir. 7/18/05) , 2005 WL 1704949 (unpublished) (finding Sixth Amendment violation for vulnerable victim and organizer/leader enhancements, and plain error under Oliver, and remanding for re-sentencing); United States v. Franklin, No. 03-2439 (6th Cir. 7/19/05), 2005 WL 1706957 (finding Sixth Amendment violation for the multiple upward adjustments plainly erroneous under Oliver and the use of mandatory Guidelines clearly erroneous under Barnett and remanding for re-sentencing); United States v. Walls, No. 03-1272 (6th Cir. 7/21/05), 2005 USApp. Lexis 15393 (unpublished) (Finding Sixth Amendment violation based on several enhancements neither admitted by him or proved to a jury, vacating and remanding under Oliver for re-sentencing); United States v. Brika, No. 02-4329/04-3982 (6th Cir. 7/27/05), 2005 WL 1761524 (remanding for re-sentencing as plain error under Oliver based on multiple judicially-applied enhancements); United States v. Dexta, No. 03-6602 (6th Cir. 7/28/05), 2005 U.S.App. LEXIS 15508 (remanding under Oliver and Barnett based on enhancements for drug quantity and obstruction of justice when neither were based on facts admitted by the defendant or found by the jury); United States v. Tate, No. 03-3498 (6th Cir. 6/10/05), 2005 WL 1385461 (unpublished) (Remanding, after plain error analysis after finding Sixth Amendment violations under Oliver, for re-sentencing under advisory Guidelines scheme); United States v. (Belita) Bush, No. 04-3613 (6th Cir. 6/15/05), 2005 WL 1400197 (unpublished) (Remanding after finding Sixth Amendment violation for enhancing fraud sentence for abuse of position of trust, and finding plain error under Barnett)

No Sixth Amendment violation, but remanded under Barnett because sentenced under mandatory Guidelines.

United States v. Jefferson, No. 03-2546 (6th Cir. 6/3/05), 2005 WL 1386471 (unpublished) (although appellant raised Blakely in his brief and filed supplemental brief citing Booker, since he didn’t raise the issue at his sentencing hearing, review is for plain error; under Barnett, error was plain, particularly where district court commented on restraint imposed on it by precedent in fashioning sentence); United States v. (Marsha) Hughes, No. 04-5659 (6th Cir. 6/8/05), 2005 WL 1389567 (unpublished) (remanding for re-sentencing under Barnett where request for remand made on appeal due to now-advisory nature of the Guidelines [no discussion of plain error beyond cite to Barnett]); United States v. Meeker, 422 F3d. 736 (6th Cir. 6/17/05) (remanding under Barnett for failing to treat the Guidelines as advisory, despite fact that district court departed upward 6 levels); United States v. Whitehead, No. 04-1831 (6th Cir. 6/17/05), 2005 WL 1693708 (remanding under Barnett based on the government concession as to defendant's convictions for felon-in-possession and possession with intent to distribute cocaine, but refusing to remand defendant's 924(c) conviction due to the mandatory minimum sentence imposed); United States v. Akers, No. 02-6033 (6th Cir. 6/17/05), 2005 WL 1432743 (unpublished) (after receipt of counsel’s Anders brief, Court requested a letter brief addressing validity of defendant’s sentence in light of Booker; finding plain error, remanded for re-sentencing pursuant to Barnett); United States v. Broucek, No. 04-2451 (6th Cir. 6/22/05) (unpublished), 2005 WL 1515364 (Remanded for re-sentencing despite sentence above the Guidelines range because district court premised its sentencing decisions on the fact that the Guidelines were mandatory); United States v. Grenoble, No. 04-3469 (6th Cir. 6/29/05), 2005 WL 1524447 (finding plain error under Barnett based on the failure to sentence under advisory Guidelines and remanding based on his sentence at the low end of the Guidelines range); United States v. McKinney, No. 04-6083 (6th Cir. 7/1/05), 2005 WL 1579505 (unpublished) (although error might have been harmless because fact-based enhancements were subsumed by the application of Armed Career Criminal, remanded because district court might impose a lower sentence under the now discretionary scheme); United States v. Pearson, No. 04-5906 (6th Cir. 7/12/05), 2005 WL 1634437 (unpublished) (remanding under Barnett because of mandatory nature of Guidelines, despite application of Armed Career Criminal Act); United States v. Bondurant, No. 04-5935 (6th Cir. 7/14/05) (unpublished) (finding no Sixth Amendment violation, despite several upward adjustments, because defendant admitted to the facts; although defendant made a Blakely objection before the district court, he did not contest at sentencing the facts on which the enhancements in the PSR were based; the district court is allowed to accept as true all factual allegations in a PSR to which the defendant does not object; therefore, there was no Sixth Amendment violation; however, under Barnett, it was still plain error to sentence defendant under a mandatory sentencing scheme, so the case is remanded for re-sentencing); United States v. Henderson, No. 04-1285 (6th Cir. 6/17/05), 2005 WL 1432847 (unpublished) (upholding the waiver of appeal in defendant’s plea agreement, where he agreed not to challenge the constitutionality of the Guidelines, to his Sixth Amendment argument, but remanding for re-sentencing based on the mandatory nature of the Guidelines, despite the fact that, due to the mandatory minimum, there would only be a 1-month difference in the Guidelines range); United States v. Garner, No. 04-5532 (6th Cir. 7/20/05) (unpublished) (remanding under Barnett based on the mandatory nature of the Guidelines, and noting the sentence imposed at the low end of the Guidelines); United States v. Bernal-Aveja, No. 04-3743 (6th Cir. 7/21/05), 2005 WL 1693961 (remanding under Barnett based on the mandatory nature of the Guidelines, the sentence imposed at the low end of the Guidelines and the district court's expressions of sympathy for the reasons that defendant illegally re-entered the United States); United States v. Sawyers, 409 F3d. 732 (6th Cir. 2005) (ACCA case being remanded for reconsideration of the validity of one of the qualifying convictions; while noting that Booker did not render invalid the ACCA, the Court notes that the district court can also address the sentencing guidelines in light of Booker, etc.); United States v. Thomas, No. 04-5871 (6th Cir. 7/12/05), 2005 WL 1634374 (unpublished) (Rejecting application of Booker to determination of "controlled substance offense" for career offender purposes, but remanding; defendant’s Sixth Amendment objection to the career offender determination was broad enough to preserve for appeal his challenge to the sentence based on Booker, especially given the sentence at the low end of the range); United States v. Gales, No. 04-5800 (6th Cir. 6/28/05), 2005 WL 1515096 (unpublished) (remanded under Booker based on government’s concession for resentencing under non-mandatory Guidelines); United States v. Rone, No. 04-5682 (6th Cir. 7/27/05), 2005 U.S.App. LEXIS 15505 (unpublished); United States v. Durham, No. 04-5666 (6th Cir. 7/27/05) (unpublished); United States v. (Andre) White, No. 04-1393 (6th Cir. 8/2/05) (unpublished) (no Sixth Amendment violation where defendant, during his guilty plea, admitted all facts necessary to apply the challenged Guidelines enhancement, thus establishing those facts without need for "judicial determination"; but remanding under Barnett based on mandatory nature of Guidelines).

NO REMAND

No remand based on mandatory minimum sentence that would remain unaffected despite Booker.

United States v. Whitehead, No. 04-1831 (6th Cir. 6/17/05), 2005 WL 1693708 (refusing to remand defendant's 924(c) conviction due to the mandatory minimum sentence imposed); United States v. Goliday, No. 04-3834/3897 (6th Cir. 6/8/05), 2005 WL 1389532 (unpublished) (no remand where defendant sentenced to 20-year mandatory minimum on one count and Blakely/Booker error on other count would not reduce total sentence below 20 years as sentences for two counts were ordered to run concurrently); United States v. Butler, No. 04-5899 (6th Cir. 6/22/05), 2005 WL 1515361 (unpublished) (defendant sentenced to life imprisonment as "third strike" drug offender; Held: the jury specifically found the drug amounts beyond a reasonable doubt and prior convictions need not be proven to a jury beyond a reasonable doubt; moreover, defendant admitted his previous drug felony convictions at trial; therefore, his Sixth Amendment claim has no merit because he was sentenced to a statutory mandatory minimum; no remand).

No remand because enhancement based on prior convictions doesn’t implicate Booker remedy.

United States v. Butler, No. 04-5899 (6th Cir. 6/22/05), 2005 WL 1515361 (unpublished) (defendant sentenced to life imprisonment as "third strike" drug offender; Held: the jury specifically found the drug amounts beyond a reasonable doubt and prior convictions need not be proven to a jury beyond a reasonable doubt; moreover, defendant admitted his previous drug felony convictions at trial; therefore, his Sixth Amendment claim has no merit because he was sentenced to a statutory mandatory minimum; no remand); United States v. Zabawa, No. 03-2592 (6th Cir. 6/7/05), 2005 WL 1386485 (unpublished) (following Barnett's holding that a district court's characterization of a prior conviction as a "violent felony" as defined by the ACCA did not violate the defendant's Sixth Amendment rights under Booker).

No remand because proof, per Barnett, that district court would not have sentenced lower on remand.

United States v. Loggins, No. 04-5477 (6th Cir. 6/6/05), 2005 WL 1385932 (unpublished) (no Sixth Amendment violation based on 12-level enhancement for loss because value of vehicles stolen was included in the presentence report; defendant did not object to the PSR findings, and is therefore deemed to have admitted the facts therein; although district court erred in determining sentence based on presumption that Guidelines were mandatory, no remand because defendant didn’t argue that district court erred by treating the Guidelines as mandatory; also, substantial rights not affected where district court not only "actually considered" an upward departure, but in fact departed upward); United States v. Briceno, No. 04-4493 (6th Cir. 6/22/05), 2005 WL 1513101 (unpublished) (there is no Sixth Amendment violation at issue here, as the district court did not engage in fact-finding that would increase the sentence above that statutorily allowed by the facts proven to the jury; although the court did sentence defendant under the mandatory Guidelines, it indicated that the defendant would have received the same sentence absent the existence of the Guidelines; no remand; the district court’s sentence, which included a 6-level downward departure to a 5&5 split sentence was "reasonable"); United States v. Lepird, No. 04-6093 (6th Cir. 7/26/05), 2005 U.S.App. LEXIS 15393 (unpublished) (remand denied where, although the district court violated the Sixth Amendment by enhancing defendant’s sentence based upon a factual finding to which defendant did not admit, the error was harmless because the court indicated it would impose the same sentence even if the Guidelines were declared unconstitutional; though the court said nothing about what it would do under an advisory Guidelines regime, the record makes clear that the court considered the Guidelines and imposed a reasonable sentence); United States v. Christopher, No. 04-3946 (6th Cir. 7/28/05), 2005 U.S.App. LEXIS 15428 (the district court issued two alternative sentences: one in the event that the Guidelines remained binding in the aftermath of Blakely, and the other in the event that the Guidelines were invalidated; the two sentences were identical; any error in defendant's sentence was harmless, because the district court adequately conveyed that it would impose the same sentence in the absence of mandatory sentencing enhancements; as noted in the unpublished opinion in Strbac, when a district court imposes alternative, identical sentences, one under a regime in which Guidelines enhancements are not mandatory, the harmlessness of any Booker error is established).

No remand – Other

United States v. Sloan, 411 F3d. 643 (6th Cir. 6/3/05) (no remand where defendant did not raise Booker issue, defendant had already served custodial sentence (and length of supervised release is already discretionary), and no "indication from the defendant that he seeks such relief"); United States v. (Orlando) Jackson, No. 04-3015 (6th Cir. 8/2/05) (unpublished) (finding Booker issue to be moot where defendant had already been released from BOP custody).

No Remand - Waiver of Appeal in Plea Agreement

United States v. Luebbert, 411 F3d. 602 (6th Cir. 6/1/05) (finding that provision of defendant's plea agreement "waiv[ing] the right to appeal his sentence on any ground ... other than any sentence imposed in excess of the statutory maximum" referred to upper limit of statute charged in the indictment, and not upper limit of applicable Guidelines range, and, therefore, applied to Sixth Amendment Booker claim as well); United States v. Ginn, No. 04-5321 (6th Cir. 6/9/05), 2005 WL 1389575 (unpublished) (no Booker review due to appeals waiver in plea agreement); United States v. Clark, No. 04-5896 (6th Cir. 6/10/05), 2005 WL 1385462 (unpublished) (approving withdrawal of Booker claim where plea agreement contained waiver of all appeal rights except for reserved suppression issue); United States v. Hicks, No. 03-2393 (6th Cir. 6/14/05), 2005 WL 1400203 (unpublished) (no Booker review where plea agreement contained provision that, if defendant was sentenced within the Guidelines range or less, he waived any right to appeal the conviction or sentence, despite district court’s comments that he wanted to give defendant a shorter sentence, but couldn’t do so under the Guidelines; the change of law in Booker is insufficient to undermine the validity of Hick’s plea agreement); United States v. Burgess, No. 03-4234 (6th Cir. 6/22/05), 2005 WL 1515327 (unpublished) (no Booker review due to appeals waiver in plea agreement; no ineffective assistance of counsel based on counsel’s failure to predict the decisions in Blakely and Booker).

Remand - Scope of

United States v. Williams, 411 F3d. 675 .(6th Cir. 2005) (defendant objected to the particular Guideline used in this child pornography case, and sought remand under Booker; resolution of the case required deciding which version of the Guidelines should be used on remand; Held: Booker complicates this inquiry because, while the Supreme Court excised § 3742(e) in its remedy in Booker, it left intact § 3742(f) and (g); the former provides that the court of appeals must remand a case for further sentencing proceedings where it finds that a sentence was imposed as a result of an incorrect application of the Guidelines; the latter provides that a district court to which a case is remanded shall re-sentence in accordance with 3553 except that it shall apply the guidelines that were in effect on the date of the original sentencing; we believe that the most appropriate post-Booker understanding of these sections is to require the district court, upon remand, to consult the same Guidelines under which the district court originally sentenced the defendant; the range that results from that consultation is an advisory range).

Sentencing -- Post-Booker -- "Reasonableness"

United States v. Jackson, 408 F3d. 301 (6th Cir. 5/24/05) (the district court granted defendant's motion for 8-level downward departure and the government appealed; Held: prior to Booker the district court's explanation of the reasons for its grant of defendant's request for downward departure would almost certainly have been problematic under the Guidelines; Booker, however, greatly change the realm of federal sentencing; the issue is now what quality of analysis and explanation, if any, is necessary where the district court exercises its discretion to vary a defendant's sentence from the applicable range provided by the now-advisory Guidelines; ultimately, Booker requires that the sentence imposed be reasonable; district courts are required to consider the applicable Guidelines sentence range, but only as one factor of several laid out in 3553(a); in this case, the district court's reasoning did not include any reference to the applicable Guidelines provisions or further explication of the reasons for the particular sentence imposed; even post-Booker, the list provided by the district court, without any accompanying analysis, is insufficient to justify the sentence imposed, as it renders our reasonableness review impossible; 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; the district court must consider the advisory provisions of the Guidelines and the other factors identified in 3553(a); on remand, to the extent that the district court in re-sentencing relies on factors which are deemed by the Guidelines to be prohibited or discouraged, the district court will need to address these provisions and decide what weight, if any, to afford them in light of Booker); United States v. Christopher, No. 04-3946 (6th Cir. 7/28/05), 2005 U.S.App. LEXIS 15428 (reviewing the sentence for "reasonableness"; a sentence may be unreasonable when the district judge fails to consider the applicable guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration [citing Webb].)

[author's note: in those cases with more extensive discussion of the holdings, I have tried to use, as much as possible, the language of the opinions. In those cases, I have excised quotation marks, internal cites, etc. in order to focus on the holding.]

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