We are moving!

Just in time for out annual assembly, PRACDL is moving to a new Typepad address, which will allow us to do much more with our blog. We are halfaway in the construction and process so please bear with us and visit us at PRACDL Blog. Our membership roster has increased dramatically in the past few weeks, as have our membership benefits. But even more important, there seems to be an urgency on the part of criminal defense lawyers about the need to have PRACDL be a strong presence.

Terry v. Menifee, No. 04-4505, 004 WL 2434978 (S.D.N.Y. Nov. 1, 2004) follows Goldings v. Winn and Elwood v. Jetter

We posted on Elwood v. Jetter here, and on Goldings v. Winn, here ("Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)"), here ("A Healthy Exchange on Goldings v. Winn"), and most recently here ("Goldings v. Winn: Update from Peter Goldberger via BOP Watch").

Now this in via Howard O. Kieffer at BOPWatch:

On November 1, 2004, Chief Judge Michael B. Mukasey (SDNY), in Terry v. Menifee, No. 04-4505, 2004 WL 2434978 (S.D.N.Y.), found that the statutory interpretation underlying the BOP's current policy regarding limiting CCC placement to the last 10% of one's sentence to be erroneous.

The court found that the BOP is entitled to deference ("some deference") in its interpretation and, while making it clear to note that it was not requiring placement in a CCC, it granted the petition and required reconsideration for CCC placement consistent with the factors BOP considers, etc. The Court stated that: The First and Eighth Circuits, the only Courts of Appeals that have spoken on the matter so far, have invalidated the BOP's new policy on the ground that the BOP's interpretation of the statutes is erroneous. See Elwood v. Jetter, No. 04-2253, 2004 WL 2331643 (8th Cir. Oct. 18, 2004); Goldings v. Winn, 383 F.3d 17, No. 03-2633 (1st Cir. Sept. 9, 2004). The SDNY in Terry ordered the respondent (Warden) to reconsider, promptly and in good faith, the appropriateness of transferring Mr. Terry to a CCC in light of the factors deemed appropriate by the BOP, without reference to the BOP policy promulgated in December 2002. It bears emphasis that this order's effect is to restore discretion to the BOP under it's pre-December 2002 policy over designation and transfer of federal prisoners. The order does not purport to establish Mr. Terry's entitlement to placement in a CCC.

As Todd Bussert, who has participated in several of these cases, also wrote at BOPWatch:

Judge Mukaskey's is one in a long line of written opinions from the SDNY invalidating the rule change, dating back to Judge Wood's decision in Greenfield v. Menifee [in] October, 2003. Notably, while the vast majority of the judges within that district have granted relief to the petitioner-prisoners, that is, directing BOP to reconsider their halfway house placement dates in a manner consistent with Judge Mukaskey's order, the government has not appealed one of its losses.

In terms of the proposed change published in the Federal Register in August, which Howard previously posted to the list, officials at the Rules Unit in Washington report that the earliest a new rule, with an effective date, might be issued is late January, and maybe not until next Spring.

Given that the October 18 deadline for comments has passed, those interested in seeing BOP's halfway house practices return to their pre-December 2002 form are encouraged to contact your Congressperson and express a position. Who knows, maybe the new AG will have a different opinion about the legality of BOP's historic practices than his/her predecessor.

Not believing that they have been previously posted at BOPWatch, comments from the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers, responding to the August notice, can be found on FAMM's site here.

Also, Corrections.com recently wrote about the "The Halfway House Debate." The article, includes some compelling findings by the Urban Institute about bipartisan support for reentry initiatives.

If anyone has any information as to how this has played out with any inmates housed at MDC-Guaynabo, please leave a comment to this post, or e-mail PRACDL.

Thanks to BOPWatch and it's great contributors for the information.

First Circuit's Leadership Role in Blakely Strikeouts

As noted by Professor Douglas Berman at Sentencing Law & Policy here, with the opinion in United States v. Fraser, 2004 WL 2537410, No. 04-1100 (1st Cir. Nov. 10, 2004), the First Circuit maintained its status "as a leader in affirming convictions over Blakely objections on plain error grounds." No liberals at the First!* The Circuit Judges, who share the Courthouse with the Judges from the District of Massachusetts, must wonder at times whether they are from a different planet.

See also our previous post: "Is Pedro Martinez pitching at the First Circuit?"

* I hope none of the Circuit Judges takes offense at missing out on being labeled with the "L" word.

PRACDL Assembly - November 17, 2004 at 6:00 p.m.

This is to remind all new and renewing PRACDL members of our assemby scheduled for November 17th from 6:00 to 9:00 p.m. at Café Al Fresco - G-11 O'Neill St.

The members of the PRACDL Board will be elected at that time. We want all PRACDL members to participate, so please set aside November 17th from 6:00 to 9:00 p.m. and join us for some formalities and a lot of fun with the best folk in town - the criminal defense bar.

Te esperamos. No falles.

Order for Empanelment of 2 Juries for Capital Case: One non-Death-Qualified for Guilt Phase, the Other Death-Qualified for Penalty Phase

In a first of a kind, U.S. District Judge Nancy Gertner has entered a Memorandum and Order Re: Bifurcation in United States v. Darryl Green, et al.,Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004) -a capital case- whereby there will be two juries, one non-death qualified to decide guilt or innocence, and a second death-qualified jury to, if necessary, decide on punishment.

Is Pedro Martinez pitching at the First Circuit?

The First Circuit is throwing out left and right all Blakely claims raised for the first time on appeal by applying plain error and even discussing whether the claims have been waived rather than forfeited by not having been raised earlier. Feels as if Pedro Martinez were pitching for the First Circuit.

On Monday, November 1st, 2004 the Circuit issued three opinions dealing blows to appellants' Blakely claims. See United States v. Del Rosario, No. 02-2377 (1st Cir. Nov. 1, 2004), United States v. Martinez-Bermudez, No. 02-2419 (1st Cir. Nov. 1, 2004), and United States v. Stearns, No. 03-2340 (1st Cir. Nov. 1, 2004).

And today another Blakely claim struck out in United States v. Coyne, No. 03-2013 (1st Cir. Nov. 4, 2004) (not for publication).

This is certainly not Ameline-land.

New White Collar Crime Blog

We welcome the new White Collar Crime Prof Blog, at which -starting today- distinguished law Professors Ellen Podgor and Peter Henning "will make daily postings on issues related to White Collar Crime. The Blog will discuss current investigations and indictments, criminal and civil enforcement cases, and issues related to the scope of the criminal law."

We have added a link to our sidebar, as we think this will be a very useful blog.

BOP's Residential Drug Abuse Treatment Program (RDAP)

With many thanks to Howard O. Kieffer of BOPWatch, we refer counsel to a list of the BOP's facilities offering Residential Drug Abuse Treatment Program (RDAP), with the caveat that the list is not up to date, as the Allenwood and Devens facilities no longer have the program. In addition, one Low facility has been added (to the RDAP list): FCI Elkton. The FCI Terminal Island is being "remissioned" as a Low (it was formerly a Medium facility). Also, be aware that Lompoc's program is conducted in Spanish only.

The link also provides you with answers to frequently asked questions regarding BOP's Drug Treatment Programs.

We once more encourage all counsel to sign up for the BOPWatch group.

Acquittal by judge draws criticism

U.S. District Judge Joseph Tauro (D.Mass.) is being attacked for granting a defense motion pursuant to Fed.R.Crim.P. 29 at the close of the government's case in chief in a money laundering case against a lawyer.

The Boston Globe article cites prosecutors' and former prosecutors' complaints about D.Mass. Judges granting Rule 29 motions too frequently. But the article does not discuss the facts of the case, or whether there was sufficient evidence on all elements of the charged offense to let the case go to the jury. Nor is there any input from defense attorneys, which may have offered a more balanced view to prosecutors' knee-jerk reaction.

Thus, it is impossible for us to comment on whether the judge acted correctly in the specific case. However, anyone practicing criminal law before the federal courts knows that there are very, very few cases that actually go to trial. This is so because in most cases the evidence is overwhelming, and defendants seek to cut their losses. Of the few cases that do go to trial, the government wins a huge portion of these as well. However, it should not be surprising to anyone that a few defendants do go to trial because they understand -after consulting with their attorneys- that the government does not have sufficient evidence on all elements of the offense. Even then, almost all cases tried do manage to get past defendants' motions for acquittal and to jury verdict, and this happens even when a properly grounded Rule 29 motion should have been granted by the Court. Each and every reversal on insufficiency of evidence grounds is precisely an appellate court telling the prosecutors that the evidence was lacking, insufficient, on at least one element of the offense charged, and telling the court that it should have granted the Rule 29 motion made by the defense. Would the Boston Globe care to publish how many federal cases get reversed annually on such grounds?

We also take issue (and this is rare) with Professor Douglas Berman's guarded speculation at Sentencing Law & Policy that Judge Tauro "might have been more inclined to acquit because he thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted." While Professor Berman calls this speculation on his part, we think it would have been better left unsaid. It just feeds -without any basis in fact- into prosecutorial claims of judicial abuse. Haven't we had enough Feeney Amendments?

Update: Professor Berman has referenced our post as an update to his post linked to above, but argues that our comment to the effect that his comments as to speculating as to whether the harsh penalties the defendant would have faced may have caused Judge Tauro to grant the motion for acquittal "would have been better left unsaid" is contrary to "[his] strong commitment to transparency (discussed here) [which] entails that few if any points will be 'left unsaid' on this blog." I have no problem with transparency, and am wholeheartedly in favor of it. However, I still feel that, without even knowing what the penalties were or the evidence in the case was, the speculation as to what may have prompted the Judge's actions are not proper. So, we respectfully dissent from Professor Berman's views on this one without more facts. Yes, the facts do matter.

Elwood v. Jeter, No. 04-2253 (8th Cir. October 18, 2004)

In Elwood v. Jeter, No. 04-2253 (8th Cir. Oct. 18, 2004) (Bureau of Prison's policy of limiting prisoner placement in Community Corrections Centers to the lesser of six months or ten percent of the prisoner's sentence is based on an erroneous interpretation of 18 U.S.C. Sections 3621(b) and 3624(c) and is invalid) we have an 8th Circuit follow-up on Goldings v. Winn, No. 03-2633 (1st Cir. Sept. 9, 2004), which we first posted on here, then here, and most recently here. Elwood cites both to Goldings and a number of district courts that have also ruled likewise. These are all cases you should know to assist your clients.

Booker & Fanfan Oral Argument Transcript

You may now access the Booker & Fanfan oral argument transcript before the supreme Court.

Keeping the lid on Pandora's Jar - by the Bard of the Short Circuit

Circuit Judge Selya's opinion for the First Circuit panel in United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004) turns down -rightfully so- a Government interlocutory appeal from a district court's order refusing to grant the Government a trial continuance in a three year old case. Finding that the Appellate Court lacked jurisdiction, Judge Selya refuses to construe 18 U.S.C. § 3731 in a manner "that otherwise would open Pandora's jar, [n.2] ..." Id. at 9.

[n. 2] Although the more common allusion is to "Pandora's box," that usage is apparently erroneous. Zeus, determined to avenge himself on Prometheus, presented this femme fatale to Epimetheus (Prometheus' brother), first arming her with a jar containing all the evils of the world. After Epimetheus foolishly accepted the gift, Pandora proceeded to open the jar, thereby loosing a panoply of torments upon humanity. See R. Warner, Encyclopedia of World Mythology 29-31 (1975). As with so many things in life, however, there is another view. See Edith Hamilton, Mythology 86 (1942).

United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004), at n. 2 (p. 9). The government through it's own "Executive Branch faux pas de deux" caused the conundrum, by allowing, in fact causing, a necessary witness (Spera) to be deported to Italy. The prosecutor did not realize this until shortly before the scheduled trial (3 years in the making), and requested a continuance to depose the witness in Itlay. The district Court did not oblige, denying the requested continuance.

As said, the denial of the continuance left insufficient time to depose Spera abroad, and so the district court sensibly denied as moot the government's ancillary request for leave to take such a deposition. In its reply brief, the government recasts its argument to focus on this point. It seems to suggest that the district court artfully avoided ruling on its request to depose Spera by couching its decision in terms of the denial of a continuance. Government's Reply Br. at 4. This is empty rhetoric: it was the government that framed the central issue around its perceived need to postpone the trial. Thus, the suggestion that the court, by some thaumaturgical [means magical] feat of legal legerdemain [means sleight of hand, tricks of a stage magician, trickery of any sort, deceit], used the denial of a continuance as a masking device to insulate its exclusion of Spera's testimony from appellate review, is totally unfounded.

Id. at 20-21. This is a good case for the defense to have at hand. And for your vocabulary as well.

7th Circuit is Afraid of the Briar Patch?

In United States v. LaGiglio, No. 04-2934 (7th Cir. Oct. 8, 2004), an appeal by the government, and an opinion by Judge Posner (who wrote the Booker majority opinion),

[a] jury convicted Bonnie LaGiglio of conspiracy to impede collection of taxes by the Internal Revenue Service, 18 U.S.C. § 371, an offense for which the federal sentencing guidelines prescribe a base offense level of 10; but, consistent with the guidelines, the judge increased LaGiglio’s offense level by a total of 11 because of the amount of the government’s tax loss and LaGiglio’s use of sophisticated means to commit the crime, and sentenced her to 41 months in prison.

The level 10 translated into a sentence of 12 months, and defendant had already served that much. She had requested that she be released pending her appeal, and the district court had denied her request. She then requested that the 7th Circuit order her released. The Circuit remanded the case to the district court in light of Blakely and Booker, and the district court ordered her released. It is from that decision that the government then appealed. Because the district court

did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

(emphasis added). I have never understood why the 7th Circuit had to leave the decision whether the proper route was to convene sentencing juries, or whether to use the guidelines at all to the district courts, and this obviously inlcudes the issue of severability which they passed over in Booker. The answers could and should have come from the 7th Circuit in Booker and they did not, instead passing it up to the Supreme Court and/or the lower courts. Is the 7th Circuit afraid of the briar patch?

U.S. v. Perez, Crim. No. 04-86-P-H (D.Me. October 5, 2004) - Judge D. Brock Hornby

In a recently issued Procedural Order in U.S. v. Ramon Perez, Crim. No. 04-86-P-H,(D.Me. October 5, 2004), U.S. District Judge D. Brock Hornby, refused to accept a defendant's guilty plea when defendant, through counsel, informed that he wanted to plead guilty to the conspiracy charge, "but wanted a jury trial as to the drug quantities and on the scope of the conspiracy. [n.2]" We quote practically the totality of the opinion, since we find it deals with day-to-day problems confronting each one of us practicing before the U.S. District Courts.

The Superseding Indictment charges this defendant with being a member of a conspiracy [n.1] involving at least five kilograms of cocaine. That quantity activates the section of the narcotics statute with the highest statutory drug sentencing category, 21 U.S.C. § 841(b)(1)(A). In a “Sentencing Allegation,” the Superseding Indictment also charges that this defendant is “accountable for at least 15 kilograms of cocaine.” That quantity increases the United States Sentencing Guideline (“Guideline”) sentencing range and is also designed to comply with the First Circuit’s requirement in United States v. Colon-Solis that in a drug conspiracy case, “any sentence imposed must be accompanied by particularized findings as to the drug amounts attributable to, or foreseeable by, the appellant.” 354 F.3d 101, 104 (1st Cir. 2004).

Judge Hornby goes on to discuss the pre-Apprendi situation, and compares it with the post-Apprendi world, and then the still uncertain post-Blakely world.

Before Apprendi v. New Jersey, 530 U.S. 466 (2000), the sentencing judge determined the applicable drug quantities (and thereby the statutory maximum and minimum penalty and the guideline range) whether a conviction was by a jury or by a guilty plea. In other words, before Apprendi I could probably have accepted a partial plea somewhat along the lines the defendant proposes, but I as the judge would have made the determinations about drug quantity and its impact on the sentence.

After Apprendi, in cases that went to trial, the judge submitted the question of conspiracy drug quantity to the jury (to determine beyond a reasonable doubt). The jury’s answer determined the applicable statutory maximum. United States v. Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003). But the judge still determined (on his/her own and by a preponderance of the evidence) the drug quantity pertinent to the individual defendant and thus the applicability of any mandatory minimum sentence and the governing guideline range (within the statutory maximum). See id. For defendants who pleaded guilty, the sentencing judge alone determined all those issues, except the statutory cap, which was controlled by what the Indictment or Information charged. See United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002). Although Apprendi resulted in verdict questions to juries about drug quantity, such questions generally were asked only if the jury had found guilt on the underlying offense. I have been unable to find any case where a defendant was permitted to plead guilty and then proceed to jury trial on drug quantity alone. [My Comment: Don't Booker (7th Cir.) and Ameline (9th Cir.) carry any weight here? Both Courts left open the possibility of sentencing juries.]

As a result of Blakely v. Washington, 124 S. Ct. 2531 (2004), the active judges in this District have ruled that a defendant is entitled to a jury trial and proof beyond a reasonable doubt as to all sentence-enhancing factors except criminal history. But there remains widespread disagreement and uncertainty across the country on what Blakely demands for federal sentences. Just yesterday the United States Supreme Court heard oral argument in a case from this District, United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-105), and another from the Seventh Circuit, United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-104). Everyone hopes that early Supreme Court decisions in these two cases will clear up the confusion engendered by Blakely. In the meantime, however, this defendant has said through counsel that he does not want to await the Supreme Court rulings before proceeding. Because he is entitled to proceed without delay, see 18 U.S.C. § 3161, I must determine what procedure to follow in light of Blakely. I have been unable to find any cases directly on point. I therefore work from basic principles.

Since “[a]n indictment must set forth each element of the crime that it charges,” Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the “elements” of the crime. A defendant had to plead guilty to the entire offense or not at all, and a court could not, over the government’s objection, accept a plea to a lesser included offense. United States v. Edmonson, 792 F.2d 1492, 1498 (9th Cir. 1986). The defendant here says that pleading guilty to conspiracy covers the “elements” in this case. I do not believe that “scope” of the conspiracy can be extracted from the elements of the offense as that term has been used conventionally and therefore I would not entertain a partial plea that contested the scope of the conspiracy. [n. 3] Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996). Apprendi taught us that where drug quantity elevated the statutory maximum sentence, it had to be proven beyond a reasonable doubt to the jury. But judges could still make all other drug quantity determinations at sentencing. See, e.g., United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir. 2002). In the post-Blakely world, however, all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. Have they thereby become “elements of the offense”? Since drug quantity now must be proven to a jury beyond a reasonable doubt regardless of what it is called, the old debate over whether it is an “element” seems to have lost significance. [n. 4] It certainly does not help resolve the issue before me. [n.5] Therefore, I consider other factors.

It will be difficult for the government to try the issues of conspiracy scope and drug quantity without simultaneously presenting a good deal of evidence about the conspiracy itself. Permitting a plea of guilty to the conspiracy, but not the scope or quantity, therefore, will produce disputes at the resulting trial over what is material versus what is unduly prejudicial evidence. [n.6] The appellate cases generally have said that defendants cannot stipulate their way out of the government’s right to try a case the way it was charged. See Old Chief v. United States, 519 U.S. 172, 186-87, 190-92 (reiterating standard rule, but holding that the defendant’s legal status as a felon is different and that the government can be compelled to accept such a stipulation). This background counsels in favor of sustaining the government’s objection to the partial plea as it affects both scope and drug quantity.

I cannot see any prejudice to the defendant in declining his partial plea. The primary benefit to the defendant in the proposed partial plea is the possibility of obtaining a reduced sentence for acceptance of responsibility under Guideline 3E1.1. That of course will depend on what the jury and I [n.7] conclude about relevant conduct after trial. But if the defendant elects at trial to admit the conspiracy (as he proposes to do in his partial guilty plea), and contests only the drug quantity and scope of the conspiracy before the jury, he should be able to make the same arguments about acceptance of responsibility to me at sentencing. [n.8] True, there may be somewhat more work for his lawyer in preparing for a broader trial (practically speaking the dimensions of the trial will probably not vary a lot) but, since the defendant has a court-appointed lawyer, this factor is an expense to the taxpayer, not the defendant.

After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). “A court may reject a plea in exercise of sound judicial discretion.” Id. at 262. I conclude that the defendant cannot enter a partial plea of guilty while reserving the issue of conspiracy scope for a jury trial. The ability to reserve drug quantity is a closer question. But I also conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.

[n. 1] A conspiracy to possess and possess with intent to distribute.

[n. 2] This is specifically not a case where the defendant is willing to plead guilty to the offense and stipulate that the judge may determine the relevant sentencing facts, a possibility suggested by Blakely v. Washington, 124 S. Ct. 2531, 2541 (2004). The defendant also wants to go to trial on venue, but a guilty plea would waive his right to jury trial on venue. See United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001). Since I am rejecti ng the plea of guilty, however, the defendant may continue to press his venue challenge at trial.

[n.3] The Superseding Indictment does not allege any particular scope for the conspiracy beyond the quantity allegations. Presumably the defendant knows what the government will state in its prosecution version for a factual basis for the plea at any Rule 11 proceeding and is unwilling to agree to the government’s version.

[n.4] As recently as Jones v. United States, 526 U.S. 227, 232 (1999), the Court said: “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.”

[n.5] The debate creates certain ironies. The government takes the position that sentence - enhancing factors are not “elements” because nationally the government has argued that Blakely does not apply to federal sentencing. But it wants me not to accept the partial plea, an argument that would be easier to make by calling them elements that the defendant must admit to in order to plead guilty. The government has carefully refrained from doing so. The defendant faces the same dilemma in reverse.

[n.6] It will also save only minimal court time at best.

[n.7] Blakely does not seem to restrict the judge’s role in downward adjustments of the Guideline range such as 3E1.1 permits.

[n.8] It is already too late to get the third point under 3E1.1(b) because of the late stage of the proceedings (the jury has been empaneled).

Now that the argument as to whether a particular fact that enhances the guideline offense level is an element, a sentencing factor, or Mary Jane, is irrelevant, as we are dealing at worst with functional equivalents of elements of aggravated offenses as we go up the offense level, we should all be insisting that with indictments that charge merely "in excess of 5 kilograms" but offer no specific amount, the indictments are insufficient as a matter of law to submit the issue to the jury beyond the 5 kilograms, i.e., that any higher amount had to be specifically alleged, since we are no longer dealing with the post-Apprendi and pre-Blakely situation in which the sole concern was whether the indictment charged and the jury found an amount to trigger a maximum of 20 or 40 years or life. Instead each offense level in the drug quantity table is an, if you will, aggravated version of the lower offense, and had to be specifically charged. Just some food for thought. Any comments will be greatly appreciated.

If you want a copy of the PDF file, please e-mail PRACDL at our new e-mail address link at sidebar. We hope to soon be moving to a sytem where we can actually upload all our own PDF's files and where we can actually categorize them. Until then, please be patient.

Must Read for the Judiciary

There's a natural inclination on the part of the Judiciay -I suppose- to view things in a light that is favorable to the prosecution. Ken Lammers has this post at CrimLaw about a 4th Circuit district Judge's ruling on a suppression of evidence. Would that all of our Judges thought of imitating this judge's example a bit more often. I'd probably settle for just every once in a great while.

Goldings v. Winn Update from Peter Goldberger via BOP Watch

Peter Goldberger, has updated information on Goldings v. Winn, as reflected from this post at BOPWatch:

On 9/9/04 the First Circuit released its lengthy opinion in Goldings v. Winn, totally invalidating the BoP's policy limiting designation of CCCs for service of sentences of imprisonment, as well as its practice of limiting CCC utilization at the end of sentences to no more than 10% of the time to be served (not to exceed 6 mos.). On 9/27/04, according to the appellate docket, the DOJ informed the First Circuit that it would not be petitioning in this case for rehearing, and informing the Court 'that the Bureau of Prisons staff have been instructed to commence re-evaluation of Appellant's placement.'

Accordingly, on 9/30/04 the Court issued its mandate to the district court for enforcement of the decision. The Goldings decision is now binding precedent on all district judges and on all Bureau institutions and personnel within the First Circuit (Mass., NH, ME, RI and PR). Hopefully, it will also be highly persuasive precedent in all the rest of the federal districts throughout the country.

-- Peter Goldberger,
Ardmore, PA

We had earlier posted information on Goldings v. Winn here ("Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)") and here ("A Healthy Exchange on Goldings v. Winn").

Also at BOPWatch, Howard O. Kieffer apparently confirms Peter Goldberger's belief as to the persuasiveness of Goldings v. Winn:

In the face of the 1st Circuit's Goldings opinion, with oral argument scheduled for next Friday (October 8, 2004), and the panel disclosed (Tashima, Paez and Pregerson), the Gov't has agreed to "allow" service of a Zone C sentence in a CCC, instead of a prison camp - in exchange for the dismissal of the appeal.

Not only will they "let" her serve the sentence in a CCC, but the CCC of her choice. This is exactly what they did with Montgomery in the 6th Circuit in July. Of course, the Gov't doesn't have to agree to any stipulated order "reversing" the denial of habeas and remanding for implementation of the parties' agreement that she be designated to the CCC for the full term of her sentence. And of course, they also do not have to even make a request that the underlying District Court decision be depublished.

This appeal would have/could have invalidated the Bureau's policy limiting designation of CCCs for service of sentences of imprisonment within the Ninth Circuit (as the First Circuit has done recently).

Sounds all good! We have asked Howard O. Kieffer to provide us with the case citations or docket numbers for the 9th Circuit and will update as soon as we get them.

UPDATE: Howard O. Kieffer at BOPWatch reports here:

The case is Benton v. Ashcroft, 272 F.Supp.2d 1139 (S.D.Cal. 2003), where Judge Moskowitz essentially adopted the BOP’s 10% Rule in its entirety. In large part he reasoned that the BOP’s new policy was interpretive, rather than substantive, in nature, and thus was exempt from the notice and comment requirements of the APA.

The Docket No. for the Ninth Circuit appeal from this decision is 03-56343.

While the oral argument is not yet off calendar, it is a done deal but for the 9th Circuit granting the motion for voluntary dismissal. The prosecutor would not agree as part of this deal to a vacatur of the district court decision but he said it was something we could address at a later point. There are now documents in the court record which indicate, however, that BOP did not apply this rule to this client, thus undermining their "no discretion to deviate" argument.

• Howard O. Kieffer
• Federal Defense Associates
• Santa Ana, California

Many thanks to Peter and Howard for the information. I have in past days notified the Acting Attorney Advisor at MDC-Guaynabo (Puerto Rico) as to whether they were aware of the decision and whether they were acting in accordance with the ruling. I have gotten no reply from the Acting Attorney Advisor, and there is a new Attorney Advisor who hails from the U.S. Attorney's Office but I do not even know if he has already commenced working there. I will write them again. Perhaps a inquiry from our Federal Public Defender (who also sits on PRACDL's Board -- are you reading Joe?) might get a faster response. Will post as soon as I have an answer. Or, if anyone else does, please add a comment to this post.

More Blakely Plain Error Analysis by 1st Cir. in U.S. v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004)

The First Circuit keeps fidgeting with Almendarez-Torres. In United States v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004) the First Circuit also handled a Blakely claim which involved the continuing vitality of Almendarez-Torres.

Having plead guilty to a one count information, Cordoza-Estrada was convicted of re-entering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and sentenced to eighteen months of imprisonment and three years of supervised release.

He appealed his sentence, arguing that his prior conviction for a simple assault was a misdemeanor under New Hampshire law and should not have been treated as an “aggravated felony” under § 1326(b)(2) or U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(C) (Nov. 2002). He also argued that his sentence was invalid under Blakely v. Washington, 124 S.Ct. 2531 (2004).

Moving on to the Blakely claim,

The day before oral argument, Appellant filed a letter pursuant to Local Rule 28(j) arguing that the sentence was unlawful on the ground that Blakely v. Washington, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), undermine the Supreme Court’s ruling in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that the prior “aggravated felony” language of 8 U.S.C. § 1326(b)(2) refers to a sentencing enhancement, not to an element of the offense. The letter also advocated that Appellant should be resentenced because post-Blakely, the Federal Guidelines are merely advisory.

Since Appellant’s argument depends upon a decision that did not exist at the time of briefing, a 28(j) letter is a perfectly appropriate avenue by which to present it –- such letters are intended to provide the court with new authority. See Freeman v. Barnhart, 274 F.3d 606, 609 (1st Cir. 2001) (accepting Rule 28(j) letter making new arguments where they could not have been made before and the relevant statute permitted court to order new evidence taken at any time). The Government does not argue that the issue was raised in an untimely manner and has filed a Rule 28(j) letter in response.

The parties agree that the standard is plain error. Under the plain error test, an appellant “‘bears the burden of demonstrating (1) an error, (2) that is plain, (3) that affects substantial rights (i.e., the error was not harmless), and (4) that seriously undermines the fairness, integrity, and public reputation of judicial proceedings.’” United States v. McCormack, 371 F.3d 22, 29 (1st Cir. 2004) (quoting United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 48 (1st Cir. 2004)).

In Apprendi, the Supreme Court stated: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). Blakely did not disturb the distinction between “the fact of a prior conviction” and other facts that “increase the penalty for a crime beyond a prescribed maximum.” Blakely, 124 S. Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge’s consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction. See United States v. Cotton, 535 U.S. 625, 632 (2002) (in a review of an Apprendi error, holding that the “third inquiry usually means that the error must have affected the outcome of the district court’s proceedings”).

Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was “plain.” Compare United States v. Duncan, __ F.3d __, 2004 WL 1838020, at *3-*5 (11th Cir. August 18, 2004) (holding that any Blakely error was not “plain” under the plain error standard of review) with United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (holding the contrary).

In determining whether the error was plain, the Supreme Court has explained: “Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. See, e.g., United States v. Booker, 375 F.3d 508 (7th Cir. 2004) (Posner, J.) (holding the Guidelines unconstitutional) (Easterbrook, J., dissenting), cert. granted, ___ S. Ct. ___, 2004 WL 1713654; United States v. Hammoud, ___ F.3d ___, 2004 WL 2005622 (4th Cir. Sept. 8, 2004) (en banc) (upholding the Guidelines) (Wilkinson, J., Shedd, J., Widener, J., concurring; Motz, J., Michael, J., Gregory, J., dissenting); United States v. Koch, ___ F.3d ___, 2004 WL 1899930 (6th Cir. Aug. 26, 2004) (en banc) (upholding the Guidelines) (Martin, J., Daughtrey, J., Moore, J., Cole, J., Clay, J., dissenting). Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal. Because the trial judge’s sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.

Affirmed.

So what exactly does it take to get past the Frist Circuit, other than a writ of certiorari?

U.S. v. Savarese - First Circuit Applies Plain Error to Blakely Claim

In U.S. v. Savarese, No. 04-1099, 2004 U.S. App. LEXIS 19824 (1st Cir. September 22, 2004), a case involving the interpretation of section 2B3.1 of the U.S. Sentencing Guidelines, which provides for a two-level enhancement of a defendant's offense level if the defendant engaged in carjacking. -see U.S. Sentencing Guidelines Manual § 2B3.1(b)(5)(2003) - the defendant also raised a Blakely claim. While the decision is an issue of first impression on the USSG § 2B3.1(b)(5), and should ber read if for no other reason than that, we refer herein to the Court's handling of the Blakely claim.

[...] However, we conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.

The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese’s sentence for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”); see also United States v. Cotton, 535 U.S. 625, 631 (2002) (holding that an Apprendi violation can be considered under plain error analysis); United States v. Duncan, ___ F.3d ___, ___, 2004 WL 1838020, at *2 (11th Cir. Aug. 18, 2004) (“[B]ecause Duncan failed to raise a Sixth Amendment argument below, our review is limited to determining whether setting the base offense level based upon the sentencing judge’s finding of cocaine base constitutes plain error in light of the Supreme Court’s holding in Blakely.”); United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (“Because Ameline did not object to his sentence on the grounds that the Sentencing Guidelines or the procedures used to determine the material sentencing facts were unconstitutional under Apprendi, or on the ground that the material sentencing facts were not alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt, we review for plain error.”); United States v. Donnelly, 370 F.3d 87, 92 (1st Cir. 2004) (reviewing a sentencing enhancement for plain error where the defendant failed to address the second element of the enhancement in his objection).

In determining whether an error is plain, the court considers four factors:


[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Cotton, 535 U.S. at 631-32 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)) (internal quotation marks, alterations, and citation omitted). We conclude that at least the last of these four requirements has not been satisfied.

One cannot fault the First Circuit, since it is abundantly clear that appellant never raised any objection to any of the facts underlying any of his Blakely claim on appeal.

Sending you all to Macondo Law to "Revised - A bit on Booker & Fanfan, and looking back on Mistretta and Apprendi"

I invite you to visit Macondo Law and check out the following post Revised - A bit on Booker & Fanfan, and looking back at Mistretta and Apprendi which I think you will find interesting. I would also urge you to post your comments there which may help grasping which way the Court will go on the two issues now facing it in Booker and Fanfan:

1. Blakely's application to the federal guidelines; and
2. Severability of the Guidelines and/or the Sentencing Reform Act.

Who do you think are the swing votes and why?

Solicitor General submitted the United States' Reply Brief in Booker & Fanfan

Today the Solicitor General submitted the United States' reply brief in Booker & Fanfan. One of the questions that has been looming is whether the Solicitor General will reply merely to the arguments raised in the respondents' briefs or whether it will address the arguments in the briefs submitted in support of respondents by amici. Let me read it first!

• United States' Reply Merits Brief in Booker & Fanfan (via Sentencing Law & Policy)

More comments later.

PACER Fee Increase

PACER has announced here that

A fee increase from 7 cents per page to 8 cents per page for public access to court electronic records (PACER) was approved by the Judicial Conference of the United States at its September 2004 session. The fee increase applies to all systems (CM/ECF, PACER, RACER, etc.) and will become effective January 1, 2005. The 30 page cap on case-related documents and reports (excluding transcripts) will remain in effect. However, the maximum cost will be $2.40. The new fee schedule is available by clicking here.

If you have any questions, please contact the PACER Service Center at pacer@psc.uscourts.gov.

Reminder: Roundtable Discussion - Friday, Sept. 24th at 3:30 p.m. @ Federal Public Defender's

Please remember that the roundtable discussion with the our distinguished U.S. Magistrate Judges is scheduled for Friday, September 24, 2004, at 3:30 p.m. at the Federal Public Defender's office. We have now been given a topic - "The Practice of Law in Our District" - which I assume means that practice here is somewhat sui generis.

Civil Forfeiture & Appointment of Counsel under CAFRA

I know many of you are well versed in matters of civil forfeiture. However, for those that are not, and wish an easy reading recent case from the First Circuit that will give you some idea of how it operates post-CAFRA (Civil Asset Forfeiture Reform Act of 2000), I refer you to today's opinion in United States v. One Parcel of Real Property with Buildings, Appurtenances and Improvements known as 45 Claremont St., located in the City of Central Falls, Rhode Island, (Maria Benavides, Claimant, Appellant), No. 03-2630 (1st Cir. September 21, 2004) (per curiam) (unpublished).

I would also remind all that Title 18, U.S. Code, Section 983(b) allows the court to authorize counsel representing a defendant pursuant to the provisions of the Criminal Justice Act, Title 18, U.S. Code, Section 3006A, to also represent said defendant in a related judicial civil forfeiture action once defendant has fulfilled certain prerequisites. We set forth the relevant statutory language.

§ 983. General rules for civil forfeiture proceedings

(b) REPRESENTATION. --

(1)(A) If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the person is represented by counsel appointed under section 3006A of this title in connection with a related criminal case, the court may authorize counsel to represent that person with respect to the claim.

(B) In determining whether to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors as--

(i.) the person’s standing to contest the forfeiture; and
(ii.) whether the claim appears to be made in good faith.

* * *

(3) The court shall set the compensation for representation under this subsection, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title.

18 U.S.C. § 983(b).

A Healthy Exchange on Goldings v. Winn

I am posting an exchange from the BOPWatch listserve, which directly pertains to the Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004) we covered in an earlier post here, and which I believe may be of assistance to all of us.

The question raised by one of the listserve members was as follows:

Once a person is in BOP custody, can an attorney help them get transferred from a camp to 1/2 house or home detention?

One client is young man with fraud conviction & no priors who didn't make it at boot camp (not sure why he wanted boot camp as his sentence was 1 yr & 1 day). Anyway, now he is at Jesup & the family wants to hire me to help him get 1/2 house or home detention. He has served 6 months...I don't want to take their money if there is nothing I can do--I always understood that it was up to the case mgr & warden at the institution to make that transfer...

Other client is 65 yr old grandmother with severe heart problems.(documented). She was originally designated to Alderson, but now has been transferred to FMC Ft. Worth. She has a 15 month sentence for perjury--no prior record.

Any insight very appreciated.

The initial answer provided by Howard O. Kieffer was as follows:

Absent other facts, the Bureau's current practice is to limit CCC placement to 10% of the sentence as imposed. I would caution you not to take the money - at least under the scenario that you have posted.

I would be happy to discuss this area generally with you, as I am sure a few others here would, as we work regularly in this area.

Then Peter Goldberger, one of the attorneys in Goldings made the following comment:

As one of the attorneys to whom Howard is referring, I guess I should respond, too. It is actually unusual for me to disagree with Howard on questions like this, but in this instance I do. The BOP's current practice, limiting CCC placement to the last 10% of the good-time-adjusted sentence (so it is actually even less than "10% of the sentence as imposed"), is based on a legal misinterpretation of the governing statutes. Most judges have ruled that the BoP's current interpretation is wrong -- including most notably a unanimous panel of the First Circuit on 9/9 in Goldings v Winn. Most judges say that the BoP has full discretion to grant more than 10%, and have noted that before the Ashcroft Justice Dept imposed this new, bogus interpretation in 12/02 the BoP routinely gave up to 6 months in many cases.

If you want to challenge the current policy on legal grounds, a knowledgeable post-conviction attorney can definitely help. Most of the unsuccessful challenges have been brought pro se, or by lawyers who didn't know what they were doing. As one who has followed this litigation pretty closely from the beginning (and who has won many of them), I am not aware of any cases out of the Southern District of Georgia, where Jesup is located. (There is some good Northern District precedent, however.) That's what matters, since the vehicle you use is a habeas petition under sec 2241.

If all you're asking is whether a lawyer can help by intervening with the unit team, however, I would agree that the answer is probably No. In addition, based on the facts you gave, your client is probably not a good CCC candidate anyway. Many CCCs don't take referrals with serious health issues. And I'm guessing she's not going to be using the CCC as a base to look for a job. You and she might be better off suggesting that they give her the full 10% in home confinement, and that they send her directly there. If you're interested in the litigation option, however, you can contact me, or any of several other attorneys on this list.

-- Peter Goldberger, Ardmore, PA

Howard O. Kieffer replied:

I absolutely agree with Peter. However, I was ignoring (for a moment) the unlawful practice (I said practice - NOT policy) that the Bureau is still intent on relying on, because of the stated facts: short sentence and (in the other client's case) health issues.

On a practical note, these are not particularly good facts for this type of litigation - and time would be short - so it really depends upon resources - not just dollars, but knowledge. Do contact Peter, if the resources are there.

One additional note of caution: The Bureau requires inmates that it is transferring to CCCs sign a statement that they are responsible for their own medical care. While in reality, this probably is not true (as they are still in BOP custody), no signature - no transfer. If the inmate won't be seeking employment while at the CCC (because of documented health reasons or disability), most CCCs will be vigilant in seeing that they are moved to home confinement (if they otherwise qualify) as soon as possible (so they can generate income from a working inmate who will pay 25% subsistence).

By the way, even on a short year and a day sentence, the ICC (boot camp) would have had a significant benefit (if successfully completed).

Todd Bussert, another of the attorneys in Goldings, then added the following:

Just to throw in my two cents, as someone also involved with this litigation: In terms of anyone on this list considering, or offering advice on, this type of litigation, it is important to recognize that prevailing on the legal merits (i.e., obtaining a decision that holds the 10% restriction unlawful) does NOT automatically mean that a federal prisoner serving a sentence of 70 months or less (those for whom the 10% restriction is a real issue) will receive a six-month halfway house placement. As Peter notes, judges invalidating the 10% rule have found that BOP does have discretion to provide more in terms of halfway house placement. At the same time, almost every court has referred the issue back to the petitioner's parent institution for a reconsidered CCC date. And, though many BOP institutions, prior to December 2002, regularly made pre-release CCC transfers of six months before a prisoner's projected release date, that was not necessarily the norm at every institution, nor what one should expect on reconsideration.Whether or not one's reconsidered date is made in good faith (i.e., without regard to the policy change and consistent with the institution's past practices) is another question entirely, and one into which many courts have been reluctant to inquire further.

Also, there are CCCs that accept retired individuals and/or those on disability; they simply want 25% of the benefits check. As many on this list can attest, securing a direct home confinement placement is not easy since most CCCs, which oversee the home confinement, want to 'get a feel' for a person before approving the move. Finally, the need to assume responsibility for medical care can often be handled by a family member in the community sending a letter to the case manager taking on the financial burden.

Todd Bussert

And Howard O. Kieffer concluded with the following:

And Todd is just as right. In my initial response - as someone involved in this type of litigation - I knew there was an absence of facts in what was initially presented. Accordingly, one couldn't even consider whether retroactivity was an issue or many other things that are also fact driven. At the end of the day, the time that it takes to pursue these remedies, the shortness of the sentence and the great amount of discretion that would still remain - even if successful (before becoming moot) seemed to indicate that it wasn't the best case for expending great resources.

One thing that this discussion has shown is that we have great resources. I am sure that Lynn never contemplated getting this type of discourse. We have even made some of the blogs with this one. Thanks again to Lynn, Peter and odd.

• Howard O. Kieffer

I hope this helps you all a bit. Thanks to BOPWatch for the exchange, and particular thanks to the learned attorneys in this matter for sharing your knowledge with us all.

As a final matter, I would urge all of you to sign up for BOPWatch since you can get a lot of very helpful information for your clients as well as many hints on how to help them best. Furthermore, you can ask questions about particular matters and get lots of ideas on how best to deal with it.

Briefs filed Today by Respondents Booker, Fanfan and their Amici

Here are the links to the merits briefs filed today by respondents Booker and Fanfan and their amici. The links to the petitioner's (United States) and amici's (US Sentencing Commission, and Senators Hatch, Kennedy & Feinstein) briefs can be found in this post.

• Brief for Petitioner Booker *
  
• Brief for Petitioner Fanfan *
  
• Brief for Amicus NACDL in support of petitioners Booker & Fanfan *
  
• Brief for Amicus FAMM in support of petitioners Booker & Fanfan *
• Brief for Amicus NAFD in support of petitioners Booker & Fanfan *
• Brief for Amicus NYCDL in support of petitioners Booker & Fanfan *
• Brief for Amicus Washington Legal Foundation in support of petitioners Booker & Fanfan *
  

* All briefs are via Sentencing Law & Policy, with many thanks to Professor Berman.

A reply brief, if any, is to be filed by the Solicitor General on or before 3 p.m., Monday, September 27, 2004. Oral argument is set for Monday, October 4, 2004. And a decision will issue on . . .

Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)

. . . In other words, a "place of imprisonment" is a penal or correctional facility that is a place of imprisonment.

That is the government's circular definition pressed upon the First Circuit in Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004), in a faulty attempt to exclude community correction centers (CCCs) from the meaning of place of imprisonment and, thus, from 18 U.S.C. § 3621(b). This a very important decision for the federal criminal defense bar, and even more important for those of us practicing in the First Circuit. Just to give a glimpse of what the case is about, here is an excerpt:

The policy change that is the subject of this lawsuit was required by a December 13, 2002 Memorandum Opinion from the Department of Justice Office of Legal Counsel, which declared unlawful the BOP's prior practice of placing federal prisoners in community confinement to serve all or part of their sentences. Goldings argues that the BOP's policy is based on an erroneous interpretation of two statutory provisions of the Sentencing Reform Act of 1984, 18 U.S.C. § § 3621(b) and 3624(c). According to this interpretation, these two provisions limit the BOP's discretion to place prisoners in CCCs to the lesser of the last six months or ten percent of their terms of imprisonment. Although the change in policy has generated a flood of lawsuits in the federal district courts, no court of appeals has yet spoken on the validity of the BOP's new policy. We do so here and conclude that the new policy is contrary to the plain meaning of 18 U.S.C. § 3621(b).

When Goldings entered federal custody, the BOP considered prisoners for placement in community correction centers near the end of their sentences, for up to six months, pursuant to a longstanding practice.[1] In addition, the BOP had a policy of placing in CCCs some low-risk, non-violent federal offenders who had been sentenced to short periods of imprisonment, including for periods of more than six months, particularly if the sentencing court so recommended.

[1] Goldings' complaint alleged that the BOP routinely considered "the vast majority" of inmates for placement in CCCs for periods in excess of the last ten percent of their sentences. In their memorandum filed in support of their motion to dismiss, the defendants disagreed with Goldings' characterization but acknowledged that at least some prisoners were placed in CCCs for periods in excess of ten percent of their terms of imprisonment. We accept Goldings' characterization as true, as we must in reviewing the dismissal of a complaint pursuant to Rule 12(b)(6). Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004).

Id. at pp. 2-3.

. . . Under § 3621(b), the BOP has discretionary authority to designate any available penal or correctional facility that meets minimum standards of health and habitability as the place of a prisoner's imprisonment, and to transfer a prisoner at any time to such a facility. A community correction center is a correctional facility and therefore may serve as a prisoner's place of imprisonment.

Id. at 24.

. . . [W]e hold that 18 U.S.C. § 3621(b) authorizes the BOP to transfer Goldings to a CCC at any time during his prison term. The BOP's discretionary authority under § 3621(b) is not subject to the temporal limitations of 18 U.S.C. § 3624(c). We vacate the order of the district court granting the defendants' motion to dismiss and remand for further proceedings consistent with this opinion.

Id. at 24-25.

And this, from a comment posted on BOPWatch by Peter Goldberger, one of the attorneys representing amici National Association of Criminal Defense Lawyers, Criminal Justice Act Board, and Families Against Mandatory Minimums Foundation:

Under the First Circuit's reasoning the BOP policy of not entertaining any front-end requests for direct designation is as invalid as its erroneous back-end limitation of CCC time to 10%. Home confinement eligibility, however, remains at 10% of the good-time adjusted sentence. As it applies to the back-end release phase, the decision is binding only for federal prisoners confined in Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico. For front-end (initial designation) cases, it should be binding for sentencing judge recommendations under consideration by Community Corrections Managers and Regional Directors housed within those states (and PR), as well as arguably (but not certainly) for sentencings out of federal courts sitting in those states and PR. The opinion is so strong and thorough, however, that it is bound to be influential on judges elsewhere. Under the logic of the opinion, the BOP can probably go forward with their pending proposal to publish a regulation restricting their own exercise of discretion in this respect, but there are some legal arguments against that, in addition to the strong policy arguments.

The amici who intervened to help pro se petitioner Goldings (who is at Devens) were NACDL, FAMM, and the Massachusetts CJA Board. Volunteer counsel for that effort were Todd Bussert (New Haven), Charles Rankin (Boston), and myself (Philadelphia), with support from Mary Price at FAMM.

-Peter Goldberger, Ardmore, PA

Of these amici, the First Circuit noted the following at n. 2:

[2] The National Association of Criminal Defense Lawyers, Criminal Justice Act Board, and Families Against Mandatory Minimums Foundation participated in oral argument as amici on behalf of the pro se plaintiff. We appreciate their assistance.

We join the First Circuit in thanking amici and their attorneys.

Mystery Mini-Seminar and Roundtable Discussion

A mystery mini-seminar roundtable discussion will be held on September 24th at 3:30 p.m. at the Federal Public Defender's Office. The speakers will be all 4 of our U.S. Magistrate Judges. If you plan to attend, you should contact Ms. Mildred Ward by e-mail or telephone or fax as soon as possible.

I refer to this as a mystery, because the notice sent by Ms. Ward does not provide any particular topic, so I guess maybe it is a surprise.

We're back!

For previous visitors, we are sorry to inform that all previous posts were lost in cyberspace. To all new visitors, this is a group blog of the Puerto Rico Association of Criminal Defense Lawyers. -I'm waiting for them to regroup. I'll play the role of the blog administrator and editor, and hope they do more posting than I do.

Tom Lincoln
Administrator

Booker/Fanfan Briefs Filed Today by petitioner United States, and by amici USSC and Senators Hatch, Kennedy and Feinstein

Briefs filed today in Booker/Fanfan:

• United States' brief in Booker and Fanfan, (via Sentencing Law and Policy);
• U.S. Sentencing Commission's amicus brief in Booker and Fanfan; and
• amicus brief by Senators Hatch, Kennedy and Feinstein which Professor Berman has posted at Sentencing Law and Policy.
  

Campbell v. U.S., No. 02-2387 (1st Cir. August, 25, 2004)

In Campbell v. United States, slip op. No. 02-2387 (1st Cir. August 25, 2004) (not for publication), the Court, in denying a Certificate of Appealability to one who had his 2255 motion denied, stated, in part, as follows:

Finally, Campbell is not entitled to a COA to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). On appeal, this court held that there was no Apprendi violation because Campbell was sentenced below the statutory maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C). In his § 2255 motion, Campbell argued that appellate counsel should have argued that Apprendi was violated because Campbell's base offense level under the sentencing guidelines was enhanced based on the drug quantity. He has now filed an addendum to his COA memorandum in which he asks that Blakely "be applied in evaluating the arguments which he has placed before the court." Notice of Supplemental Authority, p. 1.

This case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review. Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. See United States v. Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095 (2004). Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because "First Circuit jurisprudence on this point ha[d] been well established." Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel. [1]

Campbell's request to proceed IFP is granted, but his request for a COA is denied. The appeal is terminated.

[1] To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.

While this is an unpublished opinion, and denied appellant the relief he sought, it is notable that the Court never states Blakely does not apply to the federal sentencing guidelines. Instead, it talks about appellant having to await for the Supreme Court to hold that Blakely applied retroactively to cases on collateral review, and not even if Blakely is first held to apply to the federal sentencing guidelines.

Important Request from NACDL

I'm including here a request from Barry Scheck, on behalf of NACDL:

If and when the Supreme Court holds that Blakely v. Washington applies to the Federal Sentencing Guidelines (and maybe sooner), Congress may act quickly to pass "corrective" legislation. Some proposals under consideration would make the current sentencing system much worse -- for example, by prescribing a presumptive sentence at the statutory maximum for every offense, with the burden on the defendant to prove mitigating facts to reduce the sentence. To combat a hasty response and to provide a compelling case for sentencing fairness, the NACDL needs to highlight cases where the Sentencing Guidelines have caused disturbing inequity in federal sentencing.

WE NEED YOUR HELP TO IDENTIFY CASES WHERE:

• acquitted and/or uncharged conduct unfairly and significantly increased the sentence;
• extremely dubious evidence was relied upon to significantly increase the sentence;
• relatively low-level participants in a conspiracy were sentenced far in excess of the leaders and organizers of the conspiracy;
• the prosecutor unfairly wielded his or her power by manipulating charges, drug weights or loss amounts for the sole purpose of unfairly increasing the possible sentence; or
• other abuses were caused either by the Guidelines or in the name of the Guidelines.

We are particularly interested in cases involving white-collar or non-violent offenders. You can respond to Kyle O'Dowd, NACDL Legislative Director, at Kyle@nacdl.org.

Please give as much information about these cases as possible, including the district, the docket number, case captions, defendants' names and the lawyers involved. Pleadings, transcripts or decisions (or citations thereto) that highlight the inequity of the case are particularly helpful.

Thank you,

Barry Scheck
President

Now, review some of your cases and see if you have any information that might be responsive to NACDL's request.

Wrong severability analysis, again --and-- why would you use an unconstitutional guideline as advisory?

I have been informed that Judge García-Gregory has held that Blakely applies to the sentencing guidelines and has held them unconstitutional in their entirety, but will use them as, well, "advisory." This is all hearsay information, but Rachel promised a real run-down on each Judge's stance and I'm still waiting for her report to be posted.

Now, why would a Judge use the guidelines as "advisory" if he finds them unconstitutional? What exactly does a Judge mean when he says he will consider the guidelines as advisory? And I have a further question: Why is the severability analysis being done solely on the sentencing guidelines, rather than on the statute (the Sentencing Reform Act)? If we view the guidelines as agency regulations, the ususal thing that happens when the Courts examine a regulation and find it unconstitutional is that they simply discard it, period. The agency will come up with a new regulation that will comply, or none at all. And if the Courts do any severability analysis it is not within the regulations themselves, but in the statute, here the SRA. So why are all these courts not doing this? Am I missing something here?

US v. Kincade (9th Cir. August 18, 2004) - mandatory DNA profiling and the 4th Amendment

Recommended reading: U.S. v. Kincade, No. 02-50380 (9th Cir. August 18, 2004). Topic: whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.

As the majority opinion states:

Pursuant to the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub. L. No. 106-546, 114 Stat. 2726 (2000), individuals who have been convicted of certain federal crimes and who are incarcerated, or on parole, probation, or supervised release must provide federal authorities with “a tissue, fluid, or other bodily sample . . . on which a[n] . . . analysis of th[at sample’s] deoxyribonucleic acid (DNA) identification information” can be performed. 42 U.S.C. §§ 14135a(c)(1)-(2); id. at §§ 14135a(a)(1)-(2). Because the Federal Bureau of Investigation (“the Bureau”) considers DNA information derived from blood samples to be more reliable than that obtained from other sources (in part because blood is easier to test and to preserve than hair, saliva, or skin cells), Bureau guidelines require those in federal custody and subject to the DNA Act (“qualified federal offenders”) to submit to compulsory blood sampling. See Nancy Beatty Gregoire, Federal Probation Joins the World of DNA Collection, 66 Fed. Probation 30, 31 (2002). Failure “to cooperate in the collection of that sample [is] . . . a class A misdemeanor,” punishable by up to one year’s imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571 & 3581.

The Court's opinion is written by Judge O’Scannlain; there is a concurrence by Judge Gould; and very strong dissents by Judge Stephen Reinhardt, and Judge Alex Kozinski; as well as by Judge Hawkins. This are very interesting opinions, not just for your criminal cases, but for some awarness of the dangers of technological advances and reliance on the Government's good use of the same, or said in the dissenter's words, "the slippery slope."

First Circuit Watch: Court finds Blakely argument inapplicable, waived, and forfeited

In United States v. Carlos Lopez , No. 03-1767 (1st Cir. August 19, 2004), the Court indicated at n. 1:

Counsel for appellant submitted two letters pursuant to Fed. R. App. P. 28(j) in which he asserted that, under Blakely v. Washington, 124 S.Ct. 2531 (2004), this court should strike down the federal sentencing guidelines and remand this case. Blakely held that a sentence that was enhanced on the basis of factors found by the judge, rather than the jury, violated the defendant's constitutional right to trial by jury. The appellant in this case, however, received the minimum statutory sentence, and counsel has offered no explanation as to why Blakely would apply. The argument is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 28 (1st Cir. 2003) (issue deemed forfeited by failure to marshal pertinent facts or engage in reasoned analysis).

So, we still do not have "guidance" from the First Circuit, but neither do we have any dumb orders saying that the guidelines should be continued to be applied as if Blakely had never been decided. In other words, the First still believes that the blind ought not to lead the blind.

USSC Staff Members Think Court Will Uphold Guidelines ... (and they're pooling their money to buy the Brooklyn Bridge)

Oops! Apparently I don't know what I'm talking about when I say I cannot imagine the Supreme Court not applying Blakely to the federal sentencing guidelines. Check out this post at Sentencing Law and Policy, where it is reported that

Various staff members of the U.S. Sentencing Commission now believe that it is most likely the Supreme Court will uphold the guidelines. Nevertheless, they are planning for legislative options in the event that the guidelines are struck down. Part of that planning will be based on a comprehensive and empirically rigorous 15-Year Review of the current guideline system. The review, prepared by the staff and now being considered for possible adoption by the commissioners, tries to identify the strong and weak points of the guidelines in carrying out the purposes of the 1984 Sentencing Reform Act.

Does this mean that these various staff members believe that the Court will not apply Blakely at all to the federal sentencing guidelines? Or does it mean they believe the Court will apply it but that they think the Court will come down the side of severability? What is the basis for believing the Court would not extend Blakely to the guidelines? I suspect that this is all wishful thinking, for it is hard for me to conceive that the Blakely majority would now backtrack. There are no principled grounds to do so, only pragmatic ones, and Blakely was anything but pragmatic. You just can't explain it away.

Blakely and the Loss of Intellectual Honesty in Some Circuits

For all my differences with many of the views of Justice Scalia, in Blakely he took the bull by the horns and decided according to law, instead of figuring political or practical consequences. After all, the dissent by Justice O'Connor is really a pathetic cry for not rocking the boat, rather than a reasoned legal argument.

I can understand the desire of appellate judges to let the Supreme Court go first, but why then issue these rulings saying Blakely does not apply to the federal sentencing guideline rather than wait. In my view, quite frankly, these are orders and opinions lacking in intellectual honesty. Maybe I am being too harsh, but that is the way I see it. It is difficult for me to imagine that a Judge can really believe the Supreme Court will not extend Blakely to the federal sentencing guidelines. If the impact were not as big, I'm certain we would have been seeing a lot more intellectual honesty. In this sense, the district courts who have struggled with this issue, and who must impose sentences with defendant in front of them, are the ones who have shown by and large the most intellectual honesty.

As for the First Circuit, at least they have not come down with any sort of opinion on the matter, which is a lot better than what some appellate courts have done.

Today's Read: "To Sever or Not To Sever? Why Blakely Requires Action by Congress"

At Sentencing Law and Policy Professor Berman has posted a link here to an article by University of Chicago Professor Albert W. Alschuler entitled "To Sever or Not To Sever? Why Blakely Requires Action by Congress." It is interesting reading, and it proposes Congressional action on the guidelines to accommodate Blakely. It is critical of those who say "go slow" - i.e., Professor Berman and others - as well as of those who favor mandatory minimums. He says that regardless of how the Supreme Court resolves the issue of severability, it is hard to imagine that the Court would not apply Blakely to the federal sentencing guidelines. He also discusses the various solutions attempted by the Courts, particularly the district courts. I quote now from the Conclusion to the article:

Blakely has generated shock and awe among those lawyers, academics, and judges who think entirely in consequentialist terms (which is to say, nearly all of them). This decision was breathtakingly unpragmatic. Congress may well see Blakely as a dare (and an opportunity) to push voters' anti-crime hot-buttons, to engage in a urinating contest with the Supreme Court, and to make federal sentences even more monstrous than they already are. Blakely and the Constitution of the United States leave room for Congress to do dreadful things, and in the area of criminal justice, Congress often has.

A practical difference between jurists who call themselves pragmatists and jurists who don't, however, is that non-pragmatists are more ready to say, "Not my job" (or, if you prefer, to respect the limitations of their office). Although non-pragmatists are typically seen as the champions judicial restraint (and often see themselves that way), Blakely illustrates how a non-pragmatic stance may produce action when a pragmatist judge would tremble and dive for a hole. True restraint (that is, true respect for the limits of the judicial office) may consist of deciding legal questions as legal questions without giving extraordinary weight to the political consequences of one's decisions.

The answer to the question, "Does the Constitution entitle defendants to have the facts that make them eligible for increased sentences determined by juries beyond a reasonable doubt?," cannot be, "Yes, if wise leaders in Congress are likely to respond by approving guided discretionary sentencing or the submission of some sentencing issues to juries, and no if those yahoos are likely to enact new mandatory minimum sentences." Moreover, although legislation is entitled to a presumption of constitutionality, the answer to the constitutional question does not depend on whether Congress - in the year of George Orwell's prophesy - approved a difficult-to-dismantle regime of push-button sentences determined by bureaucrats and administered by prosecutors, probation officers, and judges rather than jurors. Law is not all politics.

Judge Gertner recently observed, "While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act . . . or of the Guidelines. . . . The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis." [1]

In Blakely v. Washington, the Supreme Court did its job. Congress should do its.

[1] Muffleman, 2004 U.S. Dist. LEXIS 14114 at *6 (D. Mass. 2004).

A urinating contest between Congress and the Supreme Court? There are only 9 Justices and only 5 in the Blakely majority. Wouldn't this be unfair? Well, perhaps not, if one thinks of that "lone employee of the State" accompanied by 4 more and how much havoc they can wreak if they wish to. According to Justice O'Connor, that lone employee of the State plus four of his colleagues were able to produce "a No. 10 earthquake," one that has never been measured in the Richter scale. So if I were Congress, I'd think twice before starting that contest. In any event, the rest of the article is a very interesting read.

I am surprised at one thing in this article, and it is the shallowness with which it treats the severability analysis. Despite the first part of the title, "To Sever or Not to Sever" I must conclude that the emphasis is more on the legislative solution the author proposes. And if the purpose is to have some influence in Congressional action or reaction to Blakely, the "urinating contest" bit is hardly something that will get it referred to in a public hearing.

Comments on US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004)

In U.S. v. Leach, No. 03-CR-114-H (N.D. Ok. August 13, 2004), Chief Judge Holmes follows the same approach he followed in U.S. v. O'Daniel which we commented upon here, inasmuch as he granted defendant the opportunity to withdraw the pre-Blakely plea and, when defendant did not, took this to mean that it was a voluntary and intelligent plea, as well as a waiver of a jury as fact-finder, and then proceeded to sentence her using the guidelines - to some extent - but not in full, as he did used the beyond a reasonable doubt standard rather than the preponderance of the evidence.

While I applauded his decision to use the beyond a reasonable doubt standard, as well as the reasons he gave for doing so, I am beginning to think that Chief Judge Holmes has found a curious way of forcing defendants to play his game of applying the guidelines but using the beyond a reasonable doubt standard through what one commentator at Sentencing Law and Policy referred to as a "trick question" - i.e., the opportunity to withdraw the pre-Blakely plea, and then using their refusal to withdraw the plea as a knowing and voluntary waiver of the jury trial right to find the facts.