Thursday, September 29, 2005

Sixth Circuit: Recall mandate to apply Booker? No way.

In US v. Saikaly, -- F.3d --, 2005 Fed.App. 0402P, (6th Cir. Sept. 28, 2005) (No. 01-4001)(opinion available here), the Sixth Circuit issued an order rejecting the defendant's effort to use a motion to recall the mandate to have Booker applied to a case that became final in 2004. The panel noted that the 1st, 2d, 7th, and 10th Circuits all have ruled similarly.

The panel's order, however, wholly ignores the Ninth Circuit's recent ruling in United States v. Crawford, -- F.3d --, 2005 WL 2030497 (9th Cir. Aug. 24, 2005), ( opinion available here ) which appears to allow the use of these motions to recall the mandate as a means to have Booker applied to cases that were final before January 2005. The Ninth Circuit's Crawford decision indicated that some defendants may obtain a form of what Prof. Berman calls "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing. Prof. Berman's always thoughtful and insightful analysis of this issue is available here and here.

Tuesday, September 27, 2005

Good Time Credit -- BOP's interpretation affirmed

The Sixth Circuit, in Petty v. Stine, --- F.3d ---, 2005 WL 2258042, 2005 Fed.App. 0396P, (6th Cir. September 19, 2005) (No. 05-5379), (opinion available here), held that the BOP's interpretation of 18 U.S.C. §3624(b), the "good-time credit" statute, is reasonable. This statute permits the BOP to award federal prisoners 54 days of "good-time credit" per year, to be awarded based on time actually served by the prisoner. Mr. Petty filed a 28 U.S.C. §2241 petition challenging the manner in which the BOP calculates good-time credit. He argued that the credit should be awarded based on the sentence imposed, not the time actually served. Unfortunately for Mr. Petty, (and all other federal prisoners in the Sixth Circuit), the Court held that the BOP's interpretation was reasonable. The Sixth Circuit joins with the 1st, 3rd, 4th and 7th Circuits in this view.

Tuesday, September 06, 2005

Let's Booker Brainstorm Together

The remedy provided by Booker makes the federal Sentencing Guidelines no longer mandatory. Now, a district court must impose a reasonable sentence considering the applicable guideline range in an advisory manner among the statutory factors set forth in 18 U.S.C. § 3553(a). So, how do we convince the federal judges we practice before what we believe is a reasonable sentence IS in fact a reasonable sentence? We must do it together through Booker brainstorming. The Sixth Circuit covers Ohio, Michigan, Kentucky and Tennessee - big states & lots of districts within those states. Booker brainstorming is but one way we talented criminal defense lawyers in these states can help each other. We should strive to continue to share our ideas in a group effort to do the best job we can for our clients. I encourage you to e-mail these ideas to me as well for collection and distribution -

Sentencing Disparity for Crack Cocaine - Pre-Booker, we all tried it, and we all failed in an effort to challenge the harsher guideline ranges for crack cocaine on grounds of due process, etc. Booker opens a door that has been shut for so long. We can now argue that this same sentencing disparity warrants a sentence below the advisory guideline range. See 18 U.S.C. § 3553(a)(6) ("the need to avoid unwarranted sentencing disparity"). In the right case with the right facts, this argument will indeed work. Ask CJA Panel Attorney David M. Eldridge who recently convinced Judge Greer to reject the advisory career offender guideline range for Nicholas Clay who was convicted by a jury of conspiring to distribute 50 grams or more of crack cocaine. See United States v. Clayton Wilkins, et. al, No. 2:03-CR-73 (ED TN Apr. 15, 2005) . Judge Greer imposed a reasonable sentence - 156 months imprisonment followed by 4 years of supervised release, down from the applicable advisory career offender guideline range of 360 months to life imprisonment. In a sentencing memorandum submitted to the court before the sentencing hearing, David details the disparity in treatment of crack cocaine and powder cocaine in the application of mandatory minimum terms of incarceration and sentencing guideline calculations, often called the 100 to 1 quantity ratio (50 grams of crack is treated the same as 5,000 grams of powder cocaine). He cited a recent study by the United States Sentencing Commission documenting the disparity, see U.S. Sentencing Commission, Fifteen Years of GuidelinesSentencing, pp. xv-xvi (Nov. 2004) (available on the Commission’s website at: In that study, the Commission reports that "the harms associated with crack cocaine do not justify its substantially harsher treatment compared to powder cocaine." David did not rely on the sentencing disparity alone. He also presented a full mitigation workup within the sentencing memorandum after having received CJA funds for a mitigation specialist. See United States v. Clayton Wilkins, et. al, No. 2:03-CR-73 (ED TN Mar. 15, 2005) (Sentencing Memorandum). The sentencing disparity simply gave Judge Greer the means by which to reach the end he wanted, a lesser more reasonable sentence. Several other district courts have applied this sentencing disparity argument to reach a more reasonable sentence below the advisory guideline range. See United States v. John Smith, ___ F. Supp.2d ___, 2005 WL 549057, *6-*10 (ED Wis. Mar. 3, 2005); Simon v. United States, ___ F.Supp.2d ___, 2005 WL 711916, (ED NY Mar. 17, 2005); United States v. Harris, 2005 US Dist. LEXIS 3958 (DC Mar. 7, 2005).

Discretionary Departures on Appellate Review -- No Jurisdiction?

Today, the Sixth Circuit held, in US v. Puckett, No. 04-5988 (6th Cir. Sept. 6, 2005) ( opinion available here), that the Court lacks jurisdiction to review discretionary denials of departures. The Court stated:

In light of our own precedent, and the recent decisions by the other circuits, we hold that ... although the sentence departed from may be reviewed under Booker, we shall not review decisions of a district court not to depart downward unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.

What does this holding mean for sentences in a post-Booker world? Prof. Berman, in a post here, argues that such a conclusion cannot "be sensibly squared with the new reasonableness standard of review that Booker creates." As Prof. Berman notes, this raises critical issues with respect to how the Court will review so-called "variances" in sentences under the new regime.

In light of Judge Rogers' dissent, however, this holding may not even address Booker review, as it appears to upon first glance. Judge Rogers notes that the defendant raised the Booker issue in reply and the majority refused to remand the case for consideration in light of Booker.