September 29, 2004

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.

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.

September 28, 2004

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?

September 27, 2004

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!
More comments later.

September 26, 2004

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

September 23, 2004

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.

September 22, 2004

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


(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.

September 21, 2004

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.
* 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 . . .

September 18, 2004

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.

September 14, 2004

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.

September 11, 2004

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