Thursday, May 05, 2005

Findings of Fact in Sentencing

United States v. Ruben Arroyo, Case No. 03-3113 (05/05/2005): May the judge rely on the findings of fact in the PSI? This opinion contains a good review of the pertinent case law, which allows the judge to adopt, even implicitly, the facts stated in the PSI as long as they are completely and coherently stated. Unfortunately, the defendant in this case did not object to the district court’s reliance on a PSI that was less than informative, and the Court found the PSI adequate enough to withstand plain error analysis.

Counsel should be thinking about two broader questions, which, given the procedural posture of this case, the Court did not consider. When the judge merely states a conclusory fact, e.g., more than 500 grams of cocaine as relevant conduct, is it satisfactory that the PSI has a complete and coherent explanation of the facts leading to this conclusion? The cases allow the reviewing court to assume that the district judge relied on the PSI. For such an important matter, it is not too much to ask that the judge explicitly rely on the PSI. Circuit Rule 50 requires the judge to provide a statement of reasons; assuming that someone else’s reasons are the judge’s reasons is a hollow substitute.

Second, after Blakely, Booker, and Crawford, is there any room for a procedure in which certain facts are set forth in the PSI, and the defendant must then challenge those facts in order to put them into play? The PSI often merely parrots the government’s version of the offense, which is merely a set of allegations, sometimes of very dubious merit. The current rule waters down and shifts the burden of proof.

The Perils of a Full Booker Remand

United States v. Jeffrey L. Goldberg, Case No. 03-3955 (05/05/2005): The Court took pains to warn the defense bar of the perils of a full Booker remand. Counsel at oral argument expressed the view that on a full remand the district court could not impose a sentence any higher than the original sentence. Counsel relied on the line of cases involving vindictive resentencing. The Court cautioned that those cases were not apposite. Since a full remand would involve a sentencing under a different regime, that of advisory guidelines, a district court could give a higher sentence without necessarily being vindictive. Mr. Goldberg received a Paladino remand.

Possession of a Firearm in Furtherance of a Drug Crime

United States v. Pedro L. Castillo, Case No. 02-3584 (05/03/2005): In its first major statement on the amended version of 18 U.S.C. §924(c)(1)(A), the Court stressed that the mere presence of a weapon at the scene of a drug crime, without more, is insufficient to prove that the gun was possessed "in furtherance of" a drug crime. There must be proof that the charged weapon did something to promote the charged drug offense. The opinion contains a lengthy analysis of the legislative history and cases from other Circuits. The Court ultimately found that the government presented enough evidence to satisfy its burden.

Mr. Castillo also argued that the instructions on the in furtherance element were insufficient. The Court found that his objections to the instructions were not properly preserved; hence, it reviewed under a plain error standard. In performing this plain error analysis, the Court made two points that would have much less weight in a case where proper objection had been made. First, it suggested that correct statements of the law contained in the parties’ final arguments were sufficient guidance for the jury. Normally, an incomplete statement of the law is not rehabilitated by the arguments of counsel. The judge, not the attorneys, instruct on the law. Second, the Court observed that "in furtherance of" is not so special a term that a jury needs instruction. Given the Court’s lengthy and learned analysis of the statute, it seems very unrealistic to think that the average high school graduate will know the meaning of the phrase without help from the district judge’s instructions. The Court even acknowledged that it would be preferable for the instructions to define this element.

Shepard and Almendarez-Torres Reconciled

United States v. Tek Ngo, Case No. 04-2662 (05/05/2005): Mr. Ngo was declared a career offender on the basis of two armed robbery convictions. He maintained that the two convictions should be counted as only one. The district judge made a finding that the two convictions were not related. The Court held that only a jury could make that finding. Almendarez-Torres allows a judge to find the fact of conviction. But if there is a question beyond the fact of conviction, such as the relatedness of one conviction to another, then Shepard gives the defendant a right to jury trial, unless a court record establishes the facts in dispute or the defendant admits the facts in dispute. In Mr. Ngo’s case, the question arose in the context of a guideline calculation, but the Seventh Circuit pointedly noted that its reading of Shepard would equally apply to non-guidelines situations.