Tuesday, February 28, 2006

Learn from the Doctor, Portland Oregon Federal Defender What to Do for What He Calls the "Presumption of Reasonableness Virus" (PRV)

Check out the Ninth Circuit's blog by Portland Oregon Federal Defender Steve Sady addressing what he calls the Presumption of Reasonableness Virus (PRV) that has infected this and several other circuits. http://circuit9.blogspot.com/2006/02/guidelines-appeals-presumption-of.html

Also, NACDL has submitted an amicus brief in the First Circuit case addressing presumptive reasonableness that is now being considered en banc. See United States v. Lenny Jimenez-Beltre, No. 05-1268 (1st Cir. 2006) (en banc rehearing)

Wednesday, February 22, 2006

How a Guidelines sentence can be unreasonable

United States v. Martin, No. 04-6428 (Feb. 21, 2006). This case provides two useful theories to note for future use. First, in his concurrence, Judge Martin suggests that a Guidelines sentence may be unreasonable when common sense and fairness calls for imposing a criminal-history category that is less than what the Guidelines formally call for. Second, the majority opinion explains how the meth precusor conversion ratio guideline, and perhaps other guidelines, could be successfully challenged on procedural grounds.

Judge Martin starts by lamenting how the Court has unwisely interpreted USSG 4A1.2(a)(2)'s provision that defines what is a "related" offense for purposes of calculating criminal history. Indeed, counsel for the government was asked at oral argument for an example of two offenses that could be "related" under the current doctrine: "Counsel had no idea." Judge Martin finds an example in Dr. Evil from Austin Powers (because he has announced his precise common scheme before embarking on his plan), and notes the absurdity that the commonplace insophisticated federal offender who commits a string of similar crimes to support a habit is treated more harshly than a Dr. Evil because that offender's crimes will not be deemed related. "It seems to me we apply the antithesis of common sense in these cases."

Judge Martin goes on to explain that the sentencing court must calculate the Guidelines by treating such offenses as not "related;" however, the sentencing court is then obligated to impose "a sentence sufficient, but not greater than necessary to comply with the purposes" set forth in 3553(a). "That is, a district court may look beneath the specific criminal history score and determine whether [the defendant's series of offenses] merit the increase sentence that the Guidelines suggest."

Finally, and most importantly, it seems that Judge Martin suggests that, in certain circumstances, it would be unreasonable for purposes of appellate reveiw for a sentencing court to decline to impose a sentence shorter than the suggested Guidelines range: "In such circumstances [where the related-offense doctrine overstates the criminal history], there is nothing that would preclude a Guidelines sentence from being declared unreasonable."

The majority opinion gives an important roadmap for a challenge to the Guideline's 2:1 ratio for meth precursors. Anyone with a meth-precursor case can try to mount a renewed challenge to this Guideline using the rule in Martin. Martin indicates that the ratio would be found to be invalid if the defendant can prove that the DEA report upon which the Sentencing Commission relied when arriving at the 2:1 ratio does not contain scientific data.

Martin also establishes a new rule that may be useful in challenging other guidelines: When Congress describes a procedure for the Commission to arrive at a guideline, then the Commission must follow that procedure to the letter or else the guideline is invalid. The burden of proof of deviation from the required procedure is on the party challenging the guideline.

Wednesday, February 15, 2006

Crawford Not For Sentencing

In United States v. Katzopoulos, the Sixth Circuit affirmed the district court's imposition of sentence. The most important holding is that the confrontation clause does not apply at sentencing. The Court also found that district court's alternative sentence not violative of Booker under its previous holding in Christopher.

In Katzopoulos, the defendant argued that pursuant to the Supreme Court’s 2004 ruling in Crawford v. Washington, the district court’s admission of a postal inspector’s hearsay evidence at the sentencing hearing, which helped establish the sentencing enhancements, as a violation of his Sixth Amendment right to confrontation. 541 U.S. 36 (2004).

In denying defendant's claim, the Sixth Circuit indicated that the issue was still somewhat in the air in that it has not been specifically addressed by the Supreme Court. I suppose we all need to object at sentencings to preserve the issue and then continue to appeal the issue until the Supremes finally make an affirmative ruling on this issue.

The following is a quote from the opininon that may come in handy when arguing against the use of the testimonial hearsay not subject to prior cross examination:

"Courts have questioned the continuing validity of allowing testimonial hearsay at sentencing post-Crawford and post-Booker. The Eleventh Circuit noted, "[w]hile [the Crawford rule] may eventually be extended to the sentencing context, that has not happened yet." Chau, 426 F.3d at 1323. In ruling that Crawford did not apply at the sentencing in the particular case, a West Virginia District Court stated, "[f]or hotly contested issues, however, the truth-seeking function of the Confrontation Clause deserves attention at sentencing." United States v. Gray, 362 F.Supp.2d 714, 725 (2005). This Court has recently stated that "[i]t is an open question in this circuit whether our rule that ‘confrontation rights do not apply in sentencing hearings. . . ’ applies after Crawford." Ston, 432 F.3d at 654 (quoting Silverman, 976 F.2d at 1510). Though the cases may be a broad signal of the future, there is nothing specific in Blakely, Booker or Crawford that would cause this Court to reverse its long-settled rule of law that Confrontation Clause permits the admission of testimonial hearsay evidence at sentencing proceedings.

Bottom line is expect to lose at the district court, expect to lose at the Sixth Circuit, file for writ and hopefully by the time that the Supreme Court finally decides the issue your case is still ongoing. If you fail to do this, your client may be out of luck if there is no retroactive application.

[Thank you to attorney Ned Germany of the Memphis Federal Public Defender's Office for this post]

Wednesday, February 08, 2006

Williams' "Per Se" Rule Clarified

The Sixth Circuit's caselaw on the scope of "reasonbleness" review was advancing in a fairly straight line until the release of United States v. Williams, __ F.3d __, No. 05-5416 (6th Cir. 2006), on January 31, 2006, appeared to throw a wrench in the works by announcing that a sentence within the Guidelines range would heretofore be considered per se reasonable. In a decision released today (February 8, 2006), however, another panel of the Court clarifies the holding in Williams. United States v. Foreman, No. 04-2450 (6th Cir. 2/8/06) (found here, http://caselaw.lp.findlaw.com/data2/circs/6th/042450p.pdf) addresses a Booker remand and concludes by holding the following:

Finally, in United States v. Williams, we held that a Guidelines sentence is afforded a
presumption of reasonableness. – F.3d –, No. 05-5416 (6th Cir. January 31, 2006). Although this statement seems to imply some sort of elevated stature to the Guidelines, it is in fact rather unimportant. Williams does not mean that a sentence outside of the Guidelines range – either higher or lower – is presumptively unreasonable. It is not. Williams does not mean that a Guidelines sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors. A sentence within the Guidelines carries with it no implication that the district court considered the 3553(a) factors if it is not clear from the record, because, of course, under the Guidelines as mandatory, a district court was not required to consider the section 3553(a) factors. It would be unrealistic to now claim that a Guideline sentence implies consideration of those factors.

Moreover, Williams does not mean that a sentence within the Guidelines is reasonable if there is no evidence that the district court followed its statutory mandate to "impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing in section 3553(a)(2). Nor is it an excuse for an appellate court to abdicate any semblance of meaningful review. Appellate review is more important because the Guidelines are no longer mandatory. Under the mandatory Guideline system, appellate review was not integral to assuring uniformity. Now, with the advisory Guidelines and more sentencing variables, appellate review is all the more important in assuring uniformity and reducing sentencing disparities across the board. See S. REP. NO. 98-225, at 151 (1983); United States v. Mickelson, – F.3d –, 2006 WL 27687 (8th Cir. January 6, 2006).

United States v. (Marco) Foreman, No. 04-2450 (6th Cir. 2/8/06), Slip Op. at pp. 5-6.

While this decision is more in keeping with the Circuit's decisions before Williams having to do with the scope of review for "reasonableness", and is, therefore, helpful in soothing the waters that Williams had disturbed, it appears to hold that Williams doesn't say what it says. While one might be tempted to argue that Foreman violates the Court's rule that one panel cannot overrule the decision of another panel (only the en banc court can), see, Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir. 1985); and Meeks v. Illinois Central Gulf R.R., 738 F.2d 748, 751 (6th Cir. 1984), there is an argument that Williams violated the rule first and that Foreman only restores the proper balance. (See, Randy Alden's January 31st post "Peer Pressure? Guidelines Presumptively Reasonable in the Sixth Circuit" and comment by this author that follows) The Foreman decision is consistent with the Court's earlier decisions in United States v. Webb, 403 F.3d 373, 385 fn 9 (6th Cir. 7/19/05), and United States v. McBride, __ F.3d __, 2006 WL 89159 (6th Cir. 1/17/06), in describing "reasonableness" review as a process related to the 3553(a) factors, and not one that is overly-deferential to the Guidelines.

What all of this may presage is an en banc review of Williams. It is anticipate that a petition for rehearing will be filed in Williams and the decision in Foreman may make it more likely than not that the full court would be willing to grant rehearing to clear up any lingering confusion. The refusal to grant rehearing en banc could be taken as approval of Foreman's clarification of the Williams ruling. Stay tuned for more on that!

Footnote 1 of the decision in Foreman contains an important point for keeping sentencings in district court in perspective: "It is worth noting that a district court’s job is not to impose a 'reasonable' sentence. Rather, a district court’s mandate is to impose 'a sentence sufficient, but not greater than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task." Foreman, Slip Op. at p. 5.

Wednesday, February 01, 2006

Proposed Demise of the Proof Brief

The proof brief may soon be a distant memory. The Sixth Circuit has proposed changes to the local rules that would eliminate the proof brief and change the way the joint appendix is prepared. Comments on the proposed amendments may be submitted to the court until Friday, February 10. This is the notice posted on the Sixth Circuit's website:

Notice of Proposed Amendment to Sixth Circuit Rules 28, 30, and 31The United States Court of Appeals for the Sixth Circuit is proposing a change in the procedures for the filing of the briefs of parties, by eliminating the “proof” brief requirement addressed in Rules 28 and 31. In addition, the appendix procedure addressed in Rule 30 would be modified.To effect these changes the court has preliminarily approved, subject to later modification if warranted, several amendments to the local rules. By clicking on the following links to Sixth Circuit Rules 28, 30, and 31, you will be able to view the text of each rule in its current form (text in black) and the proposed amendment (text in red). Rule 28 , Rule 30, Rule 31The court will be accepting comments on the proposed rule amendments until Friday, February 10, 2006. Comments can be e-mailed to ca06-rules_comments@ca6.uscourts.gov or sent by mail to the Clerk's Office.