Wednesday, August 21, 2013

Finally, clarity on the FSA, or wait, no

In the Sixth Circuit, does the Fair Sentencing Act apply retroactively to reduce sentences of individuals who received mandatory minimum sentences before the FSA was passed? You could be forgiven for not knowing the answer to that question. Indeed, as time has worn on, the answer has changed from "Maybe" to "Duh" to "Maybe" to "Probably No" to "No" to "Maybe" to "Yes?" to "Yes!" and all the way back to "Probably No." Thanks to yesterday's published Doe case, the answer is now "Hawuhh?" followed by a qualified "Maybe."

Doe recognizes a fact that is delightfully obvious: Congress could not possibly have wanted to create a system so blatantly inequitable as to continue incarcerating people under mandatory minimums that it deemed "unfair" and, er "racist," while retroactively lowering a whole bunch of other sentences for exactly the same reason. "But wait a minute," you wonder aloud, fictitiously, "Didn't Blewett already address this, and wasn't Blewett taken up en banc?" It's funny you should ask that to your computer screen just now, because Doe bends over backwards to avoid addressing that! Well, Judge Keith's majority opinion does. And it does this by suggesting that its logic only applies to cases where the defendant receives a substantial assistance departure. Its too-complicated-to-summarize-here logic, however, relies on the fact that all sentences --- including statutory mandatory minimums --- are "based on the guidelines" because the guidelines incorporate statutory minimums into their calculations. For this reason, Judge Cole's concurrence recognizes that this logic would apply to all mandatory minimum sentences, not just those involving substantial assistance. Judge Cole also recognizes that the deeper, more "profoundly difficult and divisive" question regarding all mandatory minimum sentences will be addressed en banc.

Only Judge Rogers in his dissent is so brave as to utter the shibboleth: Blewett. Judge Rogers recognizes that this case has the same effect as Blewett but for different reasons. He also "regrets" that he must dissent, suggesting that perhaps the Doe logic could resolve the Blewett problem, or maybe Doe and Blewett could join their powers to form a sort of FSA Voltron and vanquish all foes.

And what of the Joiner opinion, published on the very same day? Doesn't it say exactly the opposite thing that Doe is saying? Well, yes, it certainly seems to. Life's just funny that way, I suppose, as are the Constitution, the sentencing guidelines, and Congressional lawmaking.

So what is a defender --- or a person sentenced to a 20-year mandatory-minimum who is languishing in prison largely because her race dictated the punishment she received for a crime similar to many other, lesser-punished crimes --- to do? Wait, advocate, and hope. The wheels of justice are grinding slowly, as they always do, but they seem to be pointed in more or less the right direction.

Wednesday, August 14, 2013

Career Offender guideline unconstitutionally vague

Well, no. Sorry for the teaser headline. But the Sixth Circuit's rationale in United States v. Woodruff, 12-5240 sounds an awful lot like Justice Scalia's dissent in Sykes.

Mr. Woodruff had been deemed a Career Offender based in part on a Tennessee conviction for facilitation of the sale of cocaine. His trial attorney did not object to the pre-sentence report, nor did the attorney object at Mr. Woodruff's sentencing hearing. Mr. Woodruff appealed. Because of the lack of objections, Mr. Woodruff's claim regarding facilitation was reviewed for plain error.

The Sixth Circuit ruled Mr. Woodruff was right - facilitation of the sale of cocaine is NOT a "controlled substance offense" for purposes of the Career Offender guideline. However, it affirmed his sentence.

You see, the definition of "facilitation" is highly technical, and varies between circuits that have ruled on it (2nd and 8th), the Guidelines, Black's Law Dictionary, and other sources, so the district court's error could not have been "plain." "The state of the law was both uncertain and not obvious at the time of the decision."

Whether the guidelines are subject to the same Constitutional standards as statutes might be debatable. But Woodruff brings to mind these principles:

When an edict requires “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings,” that edict is unconstitutionally vague. United States v. Williams, 553 U.S. 285, 306 (2008). Vagueness may invalidate a criminal law for violating the Fifth Amendment due process protections if it fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” and/or if it authorizes or encourages “arbitrary and discriminatory enforcement.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999)(citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). “A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.” Id. (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966)).