Booker and the Ex Post Facto Clause

United States v. Shawndale L. Jamison, No. 05-1045 (July 20, 2005): At his plea, Mr. Jamison admitted to a small quantity of drugs, but at sentencing he disputed the larger amount of drugs put forward by the probation officer as relevant conduct. The district court did not grant Mr. Jamison a jury trial on this issue, but accepted the probation officer’s calculation of the weight of the drugs and imposed the sentence that this weight of drugs would produce under the guidelines. It justified this result by claining that it was treating the guidelines as advisory. (The Seventh Circuit’s opinion is not very clear as to the facts, but it appears from the docket sheet that the sentencing in this case took place after the Circuit opinion in Booker, but before the Supreme Court’s opinion.) This "advisory" use of the guidelines does not seem to have been the sort of advisory use later set forth in the Booker remedial opinion. Rather, the judge seems to have calculated the guidelines, not giving the defendant any Booker protections, and then imposed a sentence consistent with the guidelines, but in no way guided by the section 3553(a) factors.

Booker has made the guidelines advisory in a much different sense. Mr. Jamison could have sought relief on that basis, but that would have only put him back before a judge who was determined to give him a high sentence. Instead, Mr. Jamison argued that, since he committed his crime before the Supreme Court’s decision in Booker, he was entitled to be sentenced under mandatory guidelines. He further insisted that, in applying the guidelines, the judge should have granted him the constitutional rights established by the Booker merits opinion. It was, he claimed, a denial of due process and a violation of the ex post facto clause to base a sentence on advisory guidelines.

In a brief opinion, the Court ruled that Mr. Jamison had fair notice that dealing drugs was a crime and fair notice that he could face up to 20 years in prison. Although Booker certainly changed his exposure to punishment, it did not create a crime where none had existed and did not increase the maximum sentence. Receiving a sentence higher than an unadjusted guidelines sentence denied him neither due process nor the protection of the ex post facto clause. The Court joined the Fifth and the Eleventh Circuits in rejecting his argument. The Court did not give serious consideration to the argument that Booker certainly affected this defendant’s maximum sentence in this case. For the weight of drugs that he acknowledged were involved, the maximum sentence was proscribed by the guidelines and could go higher only if a jury found beyond a reasonable doubt that a higher amount was involved. In slighting this argument, the Court ignored the key teaching of Blakely and of Booker.

Jamison’s case raises still another question about the meaning of Booker that only the Supreme Court can definitively resolve. This issue was never presented to the Booker Court, probably since the Booker Court(s) took the case in such an unpredictable direction. Until the Supreme Court takes up this issue, counsel should be preserving it in cases where it could make a difference, i.e., cases where the government is seeking extensive enhancements that drive the advisory guidelines upward.

Hearsay in Sentencing; Looming Ex Post Facto Issue on Choice of “Book”

United States v. Devon Roche, No. 04-1475 (July 11, 2005): The Court concluded that the confrontation clause, as most recently discussed in Crawford v. Washington, has no place at sentencing. When the government introduces hearsay at sentencing, the only limits are found in the due process clause and in the guidelines requirement that the information have "sufficient indicia of reliability to support its probable accuracy." U.S.S.G. sec. 6A1.3(a).

Mr. Roche also raised the argument that the district court had used the wrong edition of the guidelines, in violation of the ex post facto clause. In dictum, the Court stated, "It is doubtful that the ex post facto clause plays any role after Booker. . . [T]he Court in Booker demoted the Guidelines from rules to advice." The Court then quickly remarked that it did not need to resolve what effect Booker has on the ex post facto analysis, since it did not believe that the newer edition of the guidelines changed the calculations to Mr. Roche’s disadvantage.

Correcting a Sentence under Rule 35(a)

United States v. Lloyd Baldwin, No. 03-3721 (July 12, 2005): The district court calculated Mr. Baldwin’s guidelines and sentenced him to 78 months on each of four counts, the sentences to run concurrently. After sentencing, the court realized that the maximum sentence on each count was 60 months. It then amended the judgment to impose 60 months on one count and 18 months on the other counts, the 18 months consecutive to the 60 months. Under Federal Rule of Criminal Procedure 35(a), the court has seven days after the pronouncement of sentence to correct "clear error." Because the court acted outside this deadline, the amendment to the judgment was ineffective, and the Court remanded to correct the original sentence, which was illegal.

Two points about Rule 35(a) bear noting: the 7-day period begins to run from the date when sentence is pronounced, not when it is entered on the docket. The Seventh Circuit, in conflict with other Circuits, had previously used the date of docketing as the trigger for the Rule 35(a) remedy, but Rule 35(a) was amended in 2004 to disapprove the Seventh Circuit reading. Second, the judge must act within the 7-day period. It is not enough to file the motion within the 7-day period. Counsel must insure that a timely motion is ruled on in a timely fashion.

Bye, Bye, Booker

United States v. Mykytiuk, No. 04-1196 (July 7, 2005): On a Paladino remand, the district judge indicated that his original 150-month sentence would remain the same, notwithstanding Booker. This sentence was within the guidelines. The Seventh Circuit then examined this sentence for its reasonableness.

The Court acknowledged that it could not, consistent with Booker, presume that a guidelines sentence was always reasonable. Yet it did not wish to jettison the work of the Sentencing Commission. "The best way to express the new balance . . . is to acknowledge that any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness." Continuing, "This is a deferential standard. . . The defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable as measured against the factors set forth in section 3553(a). . . . While we fully expect that it will a rare Guidelines sentence that is unreasonable the [Supreme] Court’s charge that we measure each defendant’s sentence against . . . section 3553(a) requires the door to be left open for this possibility."

United States v. Lavell Dean, No. 04-3172 (July 7, 2005): This opinion, issued the same day as Mykytiuk, offers much the same message, but also suggests some possibilities for defense counsel to consider.

The defendant was sentenced after the Seventh Circuit opinion in Booker but before the Supreme Court’s opinion. The district judge raised the base offense level on the basis of allegations that a gun was involved and that the gun was stolen. The judge then considered the actual sentence in light of various aspects of the defendant’s background.

The Seventh Circuit found error in the district judge’s making guidelines calculations on the basis of allegations in the PSR. If there is a dispute about facts, the defendant must be given the chance to present testimony.

But the defendant’s major contention was that the judge did not fully consider the sec. 3553(a) factors. The Court rejected the argument that the judge must consider all the 3553(a) factors, even those not invoked by the defendant in a particular case. But in rejecting this argument, the Court seems to have gone a little further. Relying on its remarks in United States v. George, 403 F.3d 470 (7th Cir. 2005), the Court emphasized that ". . . it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less." The judge’s duty to consider the factors set forth in sec. 3553(a) is not a duty to make and put on the record findings as to those factors.

The Court immediately qualified this last statement. "Explicit factfinding is required . . . if . . . contested facts are material to the judge’s decision. A judge who thinks that a particular contested characteristic of a defendant may be decisive to the choice of sentence, such as the defendant’s mental or emotional state, must resolve the factual issue in the usual way, that is, by making findings on the basis of evidence . . ."

This qualification comes with its own qualification: "This does not mean trial by jury, proof beyond a reasonable doubt, . . . evidence that satisfies . . . the Federal Rules of Evidence, or any other such formalities."

There is a further cross-current in the opinion. After repeating that the judge need give little explanation for imposing a sentence within the guidelines, the Court stated, "But the defendant must be given an opportunity to draw the judge's attention to any factor listed in section 3553(a) that might warrant a sentence different from the guidelines sentence. . ." This would seem to mean that if a judge imposes a sentence with no explanation or a formulaic explanation, counsel should attempt to draw the court out into making an explanation. Even though these decisions might suggest that the judge need give no explanation for a guidelines sentence, the judge may find it difficult, when pressed, to hide behind ". . . because I say so."

All in all, these two decisions do much to unravel Booker. If a sentence within the guidelines is rebuttably presumed to be reasonable, then the difference between advisory guidelines and mandatory guidelines is razor-thin. The Seventh Circuit says that the presumption is rebuttable, but how can the defendant rebut the presumption if the judge is not obliged to give reasons for the sentence imposed? In essence, the district judge can say, "Trust me, I’ve given this a lot of thought, and a guidelines sentence of 360 months is reasonable." The courts (and litigants) would never accept that a judge could resolve a civil suit with a general finding as to liability or damages. It is a mystery why criminal defendants must accept this level of justice. Circuit Rule 50 does not distinguish between criminal and civil cases. There is a suggestion in Dean that a full statement of reasons would be more work for the judges, but this can hardly be a legitimate rationale for the Court’s holding. In civil cases judges make written findings of fact and conclusions of law that go on for many pages. Is a dispute over a sale of widgets more important than the decision where someone will spend the next few years of his or her life? Until the Supreme Court explicitly approves this type of approach, counsel should continue to make a record, file appeals, and seek certiorari. You can be sure that if the Supreme Court disapproves this practice, those counsel who did not press the issue will be met with the retort, "You didn't preserve the issue."

Apprendi and the Use of Special Verdicts

United States v. Lissett Rivera, No. 02-3238 (June 16, 2005): Section 841 of Title 21, U.S. Code, ties both minimum and maximum mandatory penalties to specified amounts of drugs. The greater the quantity, the higher the penalties.

Lissett Rivera was charged with a conspiracy that had two objectives: distribution of five or more kilograms of cocaine, and distribution of 50 grams or more of cocaine base. Under the statute, these amounts trigger the highest mandatory sentences.

The jury was presented with a special verdict form. If it found the defendants guilty, it had to specify whether the conspiracy involved less than 500 grams of cocaine, more than 500 grams but less than five kilos, or five or more kilos. There was a similar interrogatory regarding cocaine base. These interrogatories dealt with the overall amounts of drugs and said nothing about any one defendant’s agreement to any particular amount of drugs.

The jury convicted and found that the conspiracy involved five or more kilos of cocaine and 50 grams or more of cocaine base.

At sentencing, the district court found that Ms. Rivera had agreed to only three kilos of cocaine, which exposed her to a mandatory minimum of five years in prison. Employing the sentencing guidelines, the district court sentenced her to 97 months in prison. Ms. Rivera appealed the district court’s guidelines calculations (minor role and use of a gun), but did not appeal the finding as to three kilos. With the Supreme Court’s decision in Booker intervening, she asked for a limited remand under the authority of Paladino. The government did not file a cross appeal.

The Seventh Circuit refused a Paladino remand. As it saw the matter, she should have received at least ten years in prison, and a Paladino remand could do her no good. According to the Court, once the jury made its finding that the conspiracy involved five or more kilos of cocaine, Ms. Rivera was subject to a ten-year mandatory minimum. After Apprendi, a district court cannot make findings that conflict with the jury's findings. The Court helpfully offered the observation that Ms. Rivera could have avoided exposure to a ten-year sentence if she had argued to the jury that her agreement was as to a lesser amount of drugs, which "might have led the prosecutor to request a lesser-included-offense instruction. . ."

This analysis sounds reasonable, except for one troubling fact found in the record, but not acknowledged in the Court’s opinion. Ms. Rivera had asked for the district court to pose an additional special interrogatory that would have called for a jury finding as to the amounts of drugs to which she had agreed. This request was rejected, since the district court mistakenly believed that only it could make that finding. So Ms. Rivera had tried to do exactly what the Seventh Circuit had suggested, but, despite her best efforts, the jury had never made a finding that she had agreed to a conspiracy involving five or more kilos.

Putting aside the result as it affected Ms. Rivera, it is clear that in future cases counsel must be keen to obtain jury findings that place limits on their clients’ involvement in a conspiracy. Although the Court’s opinion refers to the possibility of the government’s seeking a lesser included offense instruction, defense counsel may want to seek such an instruction. (Consider the alternative: "Acquit my client and turn her loose, because she agreed to only three kilos, not five kilos, as charged in the indictment." Not very attractive.)