Updates in the world of sentencing
FYI: In United States v. Pennavaria, --- F.3d --- (3d Cir. Apr. 24, 2006), the Third Circuit rejected the argument that application of the Booker remedy to defendants that committed their offenses pre-Booker violates the ex post facto clause.
As you well know, the Supreme Court has drastically altered federal sentencing with the issuance of its decision in United States v. Booker, 125 S. Ct. 738 (2005) on January 12, 2005.
The Sentencing Commission has recently released a report on the impact of the decision on federal sentencing. Access it here.
On Valentine's Day, 2006, the Third Circuit issued an important Booker decision in United States v. Cooper. The decision addresses numerous issues facing the federal district and circuits courts at sentencing and on appeal, post-Booker. The decision holds that the circuit court does have appellate jurisdiction to review sentences imposed within the guidelines for reasonableness. Also, the decision states that, unlike some of its sister circuits, the Third Circuit will not afford sentences within the sentencing guidelines with a presumption of reasonableness. Finally, the Court makes it clear that the district courts, in imposing sentences, must give meaningful consideration to the § 3553(a) factors, beyond the guidelines. For a more thorough analysis, see the Third Circuit Blog. And, as always, for the most up-to-date developments in sentencing law, see Sentencing Law & Policy. UPDATE: The government appears to be seeking en banc review of the Cooper decision.
The very next day, February 15, 2006, the Third Circuit issued another important Booker decision in United States v. Leahy. In Leahy, the Court, en banc, decided 6-5 that the Sixth Amendment's right to a trial by jury does not apply to forfeiture or restitution. The restitution analysis is especially interesting, as Circuit Judge McKee, in his dissent, adeptly takes the majority to task for its conclusions. For a more thorough analysis of the case, again see the Third Circuit Blog.
The Third Circuit has made a practice of remanding all cases where a defendant was sentenced under the mistaken understanding that the Federal Sentencing Guidelines were mandatory. For the latest information on the recent rulings of the Third Circuit, see the Third Circuit Blog:
Essentially, Booker rules that the holding in Blakely does affect the Federal Sentencing Guidelines. However, rather than grafting the requirements of Blakely onto the Guidelines, the Court has simply made the Guidelines advisory. Judges must consult the Guidelines during sentencing, but they are not bound to give a Guidelines sentence. They may or they may not. What this means is that judges have continued to perform judicial fact-finding at sentencing under a preponderance of the evidence standard. Rather than just making the argument that such fact-finding is unconstitutional, we can also argue that certain enhancements or relevant conduct or sentences are unreasonable. That is, because, on appeal, district court sentencing decisions will simply be reviewed for reasonableness.
Basically, sentencing courts have been given a great deal of discretion at sentencing proceedings. While courts are likely to continue to follow the guidelines, do not simply accept such as routine. Brainstorm ideas as to why your client, on a case-by-case basis, should not be sentenced under the guidelines, but should receive a lesser sentence. Be creative. Unless Congress reacts, the increased discretion afforded to the sentencing courts allows you a better opportunity to humanize your clients, and present more mitigating facts/evidence at sentencing in support of your client's interests. Always feel free to call the office with questions/comments.
Also, please check out this compilation of sentencing strategies in the post-Booker world, created by the Philadelphia Defender Association:
Since the decision, our office has made numerous arguments, written and oral, at sentencing. Likewise, our office has filed numerous appeals challenging the constitutionality and/or reasonableness of our clients' sentences. Feel free to contact the office for help in your practice.
Also, do not forget that statutory sentencing "enhancements" present the same Sixth Amendment problems as they did pre-Booker. Thus, arguments must be made that such statutes as the Armed Career Criminal Act, 18 U.S.C. § 924(e), are unconstitutional due to the requisite judicial fact-finding currently being conducted under such statutes. The scope of the prior conviction exception has been thoroughly narrowed and questioned by the Supreme Court. Thus, it would be unwise to concede anything. Similarly, fact-finding that is arguably or obviously outside the scope of the fact of a prior conviction should be challenged as violating the Sixth Amendment. Principles of constitutional avoidance lend further support to these arguments. Had enough? Contact our office for advice and assistance. We are eager to help those willing to defend the rights of the indigent.
For an argument that the court should consider the crack/powder cocaine disparities in guideline sentencing, see our May newsletter, available on our CJA Newsletters page.
Another valuable source for developments in sentencing is the following website:
Also, here are some other helpful links/resources for arguments to be made during sentencing:
Facing a resentencing after Third Circuit remand? Consider this brief outline for resentencing.
Also, if you want to make the due process/ex post facto argument, demanding a "Blakely-ized" sentence, read: this.
A lot of these arguments are not simple, so please, feel free to contact the office for assistance.