Wednesday, December 28, 2005

Standard of Proof Post-Booker

Reasonable doubt standard of proof in federal sentencing may continue to be alive and well post-Booker. This issue is one that may need to be preserved for further appellate review. In the face of business as usual post-Booker in many districts, a district court in Nebraska last month issued a decision on Fifth Amendment grounds holding that "it is not ‘reasonable’ [under Booker] to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt." United States v. Okai, ___ F. Supp.2d ___, 2005 WL 2042301 (D. Neb. 2005); see also United States v.Kelley, 335 F.Supp.2d 031 (D. Neb. 2005).
In Okai, the defendant pled guilty post-Booker without a plea agreement to using counterfeit securities. The indictment to which the defendant pled did not allege relevant conduct and instead charged a single incident of using counterfeit securities. The Presentence Investigation Report considered relevant conduct to increase the amount of loss. At sentencing, the defendant contested the loss for which he was being held accountable which exceeded his admissions during and after the plea entry at sentencing. The defendant objected citing Apprendi, Blakely, and Booker, arguing that these cases required prior notice and that the standard of proof be beyond a reasonable doubt relative to matters not admitted by the defendant.
The Okai district court imposed a sentence at the guideline range based only on the loss to which the defendant agreed. The government though given an opportunity at sentencing failed to introduce any evidence with respect to the controverted facts. The Okai opinion provides a good summary of issues relating to burden of proof that remain alive post-Booker. In reaching its decision, the district court noted that the Booker opinion ruled only on the Sixth Amendment right to jury trial, not the Fifth Amendment’s requirement of proof beyond a reasonable doubt. The court emphasized that certain facts are so important, regardless of whether they are characterized as elements or not, that a heightened certainty of beyond a reasonable doubt should apply. To avoid a constitutional ruling, the court instead conducted a Booker reasonableness analysis, stating, "[W]hatever the constitutional limitation on the advisory sentencing scheme, the court finds that it is not ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt."
The Okai case is merely a building block for defense attorneys to use in future cases. The reasoning in this case should apply equally if not more so in cases involving acquitted conduct. Whether courts can continue to use acquitted conduct in a post-Booker world is a question that needs to continue to be asked and at some point should be answered. Courts seem to be receptive to the concept that a district judge in conducting a Booker reasonableness analysis should not overrule a jury’s determination of not guilty. For instance, Judge J. Ronnie Greer (ED TN - Greeneville) in the case of United States v. Sheridan McMahan imposed a sentence within the lower calculated guideline range rather than the higher advisory guideline range provided for by the drug quantity calculated based on relevant conduct for which he had been acquitted by a jury. Though Judge Greer couched his decision more in terms of guidelines departure language, the case nonetheless represents one in which Booker has given relief to a defendant. The McMahan case had been pending on appeal when the Booker decision came down, resulting in a remand for resentencing in light of Booker.

Tuesday, December 27, 2005

Nothing was Stirring, Not Even a Mouse

As we come back from the holidays and continue our celebration until the new year, it is good to know that all is quiet at the appellate level for the Sixth Circuit. No new opinions have been released today. The most recently released criminal case will be of benefit to all defense lawyers who wish to argue sentencing disparities as a Booker factor for sentencing. It will also be insightful for those who represent illegal aliens and wish to argue sentencing disparity created by the lack of fast-track sentencing procedures in our districts.
In United States v. Juan Miguel Hernandez-Cervantes, No. 05-5414 (6th Cir. Dec. 23, 2005) (unpublished opinion), the Sixth Circuit affirmed the sentence imposed after conducting a Booker reasonableness review. Hernandez-Cervantes had argued that his sentence should be reduced to assimilate like sentences imposed in jurisdictions that had adopted fast-track sentencing procedures. It also rejected a claim that the refusal to lower the sentence violated the separation of powers by refusing to fast-track a sentence except on the Attorney General’s recommendation.
Of interest in the case is that the Sixth Circuit acknowledges that a disparity indeed occurs by the use of these fast track programs. The disheartening news is that the Sixth Circuit, albeit in an unpublished opinion, ultimately concludes the PROTECT Act is dispositive of the fast-tracking sentence disparity. Though not addressing the specific issue of whether fast-track disparity is an acceptable basis for sentence disparity, see fn.1, it recognized that sentencing disparity in general is among the § 3553(a) factors to be considered post-Booker. Noting that the defendant had presented no other arguments in support of a lesser sentence, the district court declined to deviate from the guidelines explaining that the defendant had committed several other serious crimes.
What this case should serve to remind us defense lawyers is to combine our § 3553(a) factors to achieve our sentencing goals. Don’t just put one egg in your basket. If you do, the government (or worse yet), the judge, may put other eggs in that basket that you don’t want in there. We need to put lots of OUR eggs in that basket, and if you run out of room, fill up several more baskets. You never know if the judge might pick up one or all of your baskets. At a minimum, the judge will have to think more about what kind of eggs he likes.

Thursday, December 15, 2005

Greetings and Apologies

T'is the season to be overwhelmed, and I am there. My apologies to the readers for failing to make regular posts this week.
Following is a list of some websites, most of which you probably visit, that provide some interesting reading and may give you ideas for creating defenses and sentencing arguments:
http://sentencing.typepad.com: At this point, everyone probably has Professor Berman's site bookmarked. I find it fun to see what scholars see as the important issues.
http://www.alanellis.com: Alan Ellis has many helpful sentencing hints. He also publishes a book about the federal prisons that is a good resource.
http://groups.yahoo.com/group/BOPWatch: I was not familiar with this one, but it has some good links and provides a forum for chatting.
http://www.nacdl.org: Everyone should be a member.
http://www.ussc.gov: This is an interesting site to visit. You can also sign up so that they send you bulletins about what is going on with the Sentencing Commission. The latest addition is the 2004 Source Book, a compilation of useful and not so useful statistics for FY2004.

Monday, December 12, 2005

Habeas Update

HABEAS UPDATE: Susanne Bales, Research and Writing Attorney, FDSET
During the most recently ended 2004 term, the United States Supreme Court handed down several rulings of interest to habeas and capital defense practitioners. In Roper v. Simmons, the Court decided that the execution of juvenile offenders violates the Eighth Amendment’s ban on cruel and unusual punishment. 125 S.Ct. 1183 (2005). The practical impact of the opinion was to remove seventy-two people from deathrow. www.deathpenaltyinfo.org. The opinion is important (and also controversial) because it relies upon international law in holding that execution of juvenile offenders violates standards of decency. Also, the opinion is significant because it relies upon mental health evidence showing the juvenile brain is not completely formed and thus decision making ability is diminished. Practitioners undoubtedly will use the reasoning of Simmons to argue the Eight Amendment bans execution of the severely mentally ill.
The Supreme Court also reviewed ineffective assistance claims. In Rompilla v. Beard, the Court held that in a death penalty case, counsel has an absolute duty to review court records regarding prior convictions which may be used in aggravation. 125 S.Ct. 2456 (2005). The Court relied heavily upon ABA Standards for Criminal Justice in determining counsel’s duty. In Florida v. Nixon, on the other hand, the Court refused to find per se ineffectiveness in a capital case, where counsel conceded guilt without his client’s permission. 125 S.Ct. 551 (2004).
Two Batson claims were well-received by the Court. In Miller-El v. Dretke, the Supreme Court granted deathrow inmate Miller-El a new trial in light of the strong evidence of racial bias during jury selection. 1255 S.Ct. 2317 (2005). The opinion is noteworthy for its scathing criticism of the state court’s’ review of the claim, stating its holding of no discrimination "blinks reality." In a similar case, Johnson v. California, the Court found unconstitutional California’s standard for reviewing Batson claims. 125 S.Ct. 2410 (2005). The Court found the burden of proof placed upon the defendant was too demanding.
The Court also addressed several highly technical procedural issues regarding the Anti-Terrorism Effective Death Penalty Act. Those cases will be discussed in a future post.

Friday, December 02, 2005

For Whom Supervised Release Tolls

If you practice within the Sixth Circuit, and represent non-U.S. citizens in federal criminal proceedings on occasion, read on. Several years ago, in US v. Isong, 111 F.3d 428 (6th Cir. 1997) (and despite vehement opposition from AFPD Sumter Camp), the Sixth Circuit ruled that district courts have authority to order that a term of supervised release be tolled while a defendant is deported from the United States.

The Sixth Circuit is the ONLY circuit that has expressly approved the tolling of a defendant’s term of supervised release while the defendant is deported. Three other federal circuits subsequently ruled that this tolling practice exceeds the statutory authority of the court. See United States v. Balogun, 146 F.3d 141 (2nd Cir. 1998); United States v. Juan-Manuel, 222 F.3d 480 (8th Cir. 2000); United States v. Okoko, 365 F.3d 962 (11th Cir. 2004).

As the other circuits recognized, 18 USC § 3624(e) provides that: "the term of supervised release commences on the day the person is released from imprisonment." The statute provides just one exception to this rule: "[the] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." Section 3624(e) "is clear, direct and requires no interpretation: ‘The term of supervised release commences on the day the person is released from imprisonment.’" United States v. Cook, 329 U.S. 335, 338 (3d Cir. 2003). By tolling in cases where the defendant is deported, courts exceed their statutory authority.

Nonetheless, in the Middle District of Tennessee (where undersigned counsel practices), in all cases where the defendant will be deported after imprisonment, the federal probation office recommends in the pre-sentence report that the court impose a special condition that the term of supervised release be tolled. The district court judges regularly impose this special condition, although several judges have declined to do so in individual cases based on mitigating facts. The use of tolling also has been reported in the Southern District of Ohio, and no doubt elsewhere within within the Sixth Circuit.

Given the circuit split and the compelling logic of the cases from the Second, Eighth, and Eleventh Circuits, defense counsel in the Sixth should object to tolling in each case where it is proposed. Who knows, this could be the case that gets you to the that big court in DC.