FEDERAL DEFENDERS OF MONTANA Great Falls, Montana

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1 Great Falls, Montana TO: FROM: All CJA Panel Attorneys Tony Gallagher DATE: January 13, 2005 RE: Booker and Fanfan On January 12, 2005, the United States Supreme Court decided United States v. Freddie Booker and United States v. Ducan Fanfan, Nos and , respectively. The decision will work a sea change in the federal sentencing system. Holding: Part 1. [written by Justice Stevens] The Federal Sentencing Guidelines are unconstitutional. They are mandatory under Title 18 U.S.C. 3553(b); hence they create a statutory maximum for the purposes of Apprendi. The facts applied to the Guidelines must be those found by a jury beyond a reasonable doubt to be constitutionally sound. The reasoning of Blakely is equally applicable to the Federal Sentencing Guidelines. So finds a majority in part 1 of this opinion, authored by Justice Stevens and joined in by the balance of the Blakely Team, namely Justices Scalia, Souter, Thomas, and Ginsburg. Holding: Part 2. The remedy. [authored by Justice Breyer] After review of a number of potential approaches, a different majority, led by Justice Breyer, decides the Guidelines are severable. The unconstitutional flaw is fixed by invalidating only those portions of the statute that makes them mandatory. Slicing with a razor thin knife, Breyer excises 18 U.S.C. 3553(b)(1) and 3742(e) (the mandatory language) and declares the Guidelines alive and well, but advisory. Courts are to continue to take the Guidelines into account under 18 U.S.C. 3553(a)(4) (factors to be considered in imposing a sentence), but are not required to sentence within the guideline range. Justice Breyer, joined by Rehnquist, O Connor, Kennedy, and Ginsburg. The decision creates a new standard of review for sentencing appeals. In future appeals, the issue will be the reasonableness or unreasonableness of the sentence looking at the criteria of 18 U.S.C (informed by the knowledge the Congress really wanted the Guidelines to be mandatory but since they can t be judges are essentially urged to follow them anyway). This rule is to be applied to all cases presently pending on direct review, using a plain error standard and considering the harmless error doctrine. As to the actual defendants, Mr. Booker and Mr. Fanfan, the sentences were vacated and remanded to the respective district courts for re-sentencing applying the new rules. There are cross dissents by the minority group as to each part.

2 Page 2 Between the lines: In part 1, the majority makes clear that this is solely a 6th Amendment right to a jury trial issue. Mistretta remains good law; there is no separation of powers issue, and the distinction between sentencing factors and elements of a crime are distinctions without a difference under a mandatory Guideline scheme. So we have 5 of 9 saying the Guidelines are unconstitutional and gone. We begin to rejoice until we see that Ginsburg, by switching sides in part 2, creates if not a hollow victory, one which is not of the level hoped for. The Blakley Team minus Ginsburg argue for a system in which the Government includes in the charging instrument and takes to the jury the various sentencing allegations. Post-Blakely many of us were pushing for a system that would open a new world of plea bargaining plea agreements with agreed or stipulated findings, and charging instruments devoid of enhancements, effectively precluding the sentencing court from going beyond the guideline range agreed to by a defendant. Because of the nature of our District Court, that has not been possible. In fact, in the District of Montana, prosecutors have been including every possible enhancement in the charging instrument, and defendants have been faced with admitting all allegations or going to trial over the sentencing enhancements, apparently the exact Sixth Amendment jury involvement four members of the Court urge. Sentencing juries are now a thing of the past. In part two, Justice Breyer looks at the law of severability and the will of Congress. He decides (and finds four others to agree with him), that the Guideline system can and should be saved. By removing the mandatory nature of the Guidelines, we will be as close as legally possible to what Congress seeks. Breyer s choice of language and examples do not bode well for the wholesale rejection of advisory Guidelines by the District Court bench. A few choice examples (citations omitted) show us that Breyer and the majority are pushing for the sentencing judges (and the appeals court s that review them) to essentially ignore part 1 of the decision; while the Guidelines may not be mandatory, they are pretty darn close: Congress basic statutory goal a system that diminishes sentencing disparity depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction. Federal judges have long relied upon a presentence report, prepared by a probation officer, for information (often unavailable until after the trial) relevant to the manner in which the convicted offender committed the crime of conviction. Congress basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity. That uniformity does not consist simply of similar sentences for those convicted of violations of the same statute a uniformity consistent with the dissenters remedial approach. It consists, more importantly, of similar relationships between sentences and real conduct, relationships that Congress sentencing statutes helped to advance and that Justice Stevens dissent would undermine. In significant part, it is the weakening of this real-conduct/uniformity-in-sentencing relationship, and not any inexplicabl[e] concerns for the manner of achieving uniform sentences, that leads us to conclude that Congress would have preferred no mandatory system to the system the dissenters envisage.

3 Page 3 Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing, i.e., to increase the likelihood that offenders who engage in similar real conduct would receive similar sentences. The statutes reasonably assume that their efforts to move the trial-based sentencing process in the direction of greater sentencing uniformity would have a similar positive impact upon plea-bargained sentences, for plea bargaining takes place in the shadow of (i.e., with an eye towards the hypothetical result of) a potential trial. That, too, is why Congress, understanding the realities of plea bargaining, authorized the Commission to promulgate policy statements that would assist sentencing judges in determining whether to reject a plea agreement after reading about the defendant s real conduct in a presentence report (and giving the offender an opportunity to challenge the report). This system has not worked perfectly; judges have often simply accepted an agreedupon account of the conduct at issue. But compared to pre-existing law, the statutes try to move the system in the right direction, i.e., toward greater sentencing uniformity. Because plea bargaining inevitably reflects estimates of what would happen at trial, plea bargaining too under the dissenters system would move in the wrong direction. That is to say, in a sentencing system modified by the Court s constitutional requirement that sentencing factors be found by a jury beyond a reasonable doubt; plea bargaining would likely lead to sentences that gave greater weight, not to real conduct, but rather to the skill of counsel, the policies of the prosecutor, the caseload, and other factors that vary from place to place, defendant to defendant, and crime to crime. Compared to pre-guidelines plea bargaining, plea bargaining of this kind would necessarily move federal sentencing in the direction of diminished, not increased, uniformity in sentencing. Such a system would have particularly troubling consequence with respect to prosecutorial power. Until now, sentencing factors have come before the judge in the presentence report. But in a sentencing system with the Court s constitutional requirement engrafted onto it, any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge entirely. Prosecutors would thus exercise a power the Sentencing Act vested in judges: the power to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment. Congress would not have enacted sentencing statutes that make it more difficult to adjust sentences upward than to adjust them downward. What have we really won? 1. The guidelines are advisory so with solid advocacy, fair judges and maybe some helpful facts, we should be able to avoid the real injustice of some guideline applications without having to go through the downward departure dance. The PROTECT Act is a nullity (at least for now). 2. Potentially we may have increased plea bargaining room. We may even consider a revival of binding pleas under Rule 11(c)(1)(C), although I don t hold out much hope for that.

4 Page 4 3. Client s can again admit to the statutory elements without automatically conceding all the Guideline enhancements. 4. We have a new unreasonableness standard of review on appeal. Potentially all sentences become reviewable, even when within the applicable (but advisory) Guideline range. Of course the cynic in me expects the circuits to hold that a sentence within the advisory guideline range is per se reasonable. What have we lost? 1. The Government will not have to plead or prove to a jury beyond a reasonable doubt sentencing enhancements either adjustments or departures. 2. We are back to preponderance and hearsay-based findings in the PSR, potentially adopted wholesale by the district court. Acquitted counts again return to be potentially included in the advisory Guideline range. 3. On appeal, sentences can be reasonable despite being beyond the guideline range or based on a faulty guideline finding. For example, I can envision a future appellate panel saying: The district court was incorrect in the relevant conduct calculation, but under the totality of the circumstances the sentence is not unreasonable. Twenty year sentence affirmed. 4. For those who wanted it, our last best chance to get rid of the Guidelines has slipped away. But we must be careful what we wish for. For some of us, not having the Guidelines to restrain the district judge is a bad thing. Perhaps this advisory system will be enough to both satisfy Congress and give judges increased flexibility in the right cases in some parts of the district. What to do now? 1. This is a major opinion. It is long, 126 pages. It will take some reading and re-reading. All defense attorneys should take time to digest it and use the dissents when possible. 2. Listen to the trial court and see what the judge s take is on this. Do they feel they have new flexibility? Are the judges open to sentencing outside/below the Guideline range? Note: On January 13, Chief Judge Molloy exercised his new flexibility in his first post- Booker sentencing to the defendant s advantage. Judge Haddon used his new discretion, too: he went beyond a month Guideline range and sentenced a defendant to 180 months. 3. Keep an eye on Congress. The current situation could be short lived. As Justice Breyer points out, Ours, of course, is not the last word: The ball now lies in Congress court.

5 Page 5 4. For cases indicted with sentencing allegations, move to strike the enhancement language (anything that is not an element of the offense) as surplusage. We may have to go to trial more. 5. For new cases you will need to still do the full Guideline analysis, but consider all sentencing arguments that are now available without the nettlesome downward departure standard. 6. For cases post-plea, but pre-sentencing, look at the terms of the plea agreement, if any. Have you waived Blakely issues? Does this mean you are under a mandatory Guideline system or just that the terms of the agreement still apply? Is the sentencing court now free to sentence outside the Guidelines, despite the plea agreement? Is a due process argument available based on the client s expectations of the pre-booker negotiated settlement? 7. For those client s in a post-sentence status, it currently appears that if the case is still on direct appeal, sentencing issues can be raised and the plain error standard will allow some but not all to be considered. But consider what you or the client seek. The Guidelines also served as a cap on many sentences. In some of our divisions, a post-booker sentence on remand could be ugly perhaps so ugly as to be unreasonable. If still on direct appeal on a sentencing issue, it can be argued that error that is plain at the time the reviewing court reviews it is plain error. See Johnson v. United States, 117 S.Ct (1997) ( "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"). Plainly, the application of mandatory sentencing guidelines is error after Booker. Furthermore, review of a Booker error on appeal is not merely for unreasonableness as to sentences imposed in violation of Booker; instead, review is de novo under the pre- Booker jurisdictional law. The plainness of the error established, the second prong of plain error review: Did the error affect substantial rights? Well, the last paragraph of the remedial majority opinion in Booker suggests that harmless error review may not even apply where there was a Sixth Amendment violation (of the Stevens-majority opinion of Booker). Thus, by definition, in those cases where a non-jury-found element raised the defendant s guidelines, substantial rights were affected. As for the third prong and the discretion component of the plain error analysis, every case will have to ride on its individual facts and the real possibility that the district court simply would not have imposed such a harsh sentence if it were not bound (impermissibly) by the guidelines. 8. When it comes to sentencing, structure your sentencing arguments in terms of reasonableness, avoid emotional pleas, and track what is necessary under the Congressional mandate in 18 U.S.C I think that the big challenge now is our thinking and getting the judges to think outside the Guidelines box. First, we challenge the factual basis for applying the different guideline enhancements, then we argue why the enhancement should not apply anyway. We should also, use our best efforts to persuade the probation officers to include potential mitigating factors in the PSRs. Point out how reasonable it would be to do so.

6 Page 6 Second, we use the good 3553 sentencing factors (e.g., history and characteristics of the defendant, providing a just punishment, a sentence sufficient but not greater than necessary, etc.) to try to get a lower sentence. We can take on all sorts of guideline issues, e.g., the arbitrariness of criminal history calculations, career offender status, sentences now consecutive to parole or probation revocation sentences. We can have real sentencing hearings, with defense witnesses. We probably should never waive appeal unless we have a stipulated sentence, which means more work for AUSA s. Recent public comments may work their way into sentencing memoranda or arguments as you see fit. In an article published January 13, 2005, in the DAILY INTERLAKE, Chief Judge Molloy said This is a new day. The Supreme Court has spoken. The Chief Judge feels that the Booker decision does not grant absolute discretion, but some discretion. The paper also says that the Chief Judge thinks that Booker will encourage prosecutors and defense attorneys to advocate more for a position in sentencing based on each case s unique facts, rather than following a mathematical scale. In the same article, U.S. Attorney Bill Mercer was woeful, saying the guidelines were intended to bring uniformity to what a defendant might receive from judge to judge. Mr. Mercer said the pre-eminent goal of sentencing [the Guidelines] was minimization of disparity in the sentences of defendants with similar criminal records who had committed similar crimes no matter where they committed the crime... disparity in sentencing outcomes will once again occur. We may have ex post facto arguments if the Government tries to go above the guidelines for cases in the sentencing pipeline before Booker was decided. Anyway, instead of getting beat down by the guidelines, we now can do a lot of new, creative lawyering. 9. Post-Blakley many defendants did well. However, Mr. Fanfan is going to be re-sentenced and it looks like his time will increase dramatically. If the Government has not appealed or cross appealed, clients should realize that there is a solid risk of an increased sentence if for example the court excluded some enhancements under Blakely. Those enhancements could return at re-sentencing. 10. Finally, I do not read this opinion as opening the door to a plethora of petitions under 28 U.S.C that are beyond the one year time frame. I am sure this will be a controversial issue, but my read of the opinion does not result in the opening of the floodgates it simply does not invite retroactive application. This memorandum serves as only a starting point. I am sure there will be various takes on the decision. FDOM will endeavor to provide you with any new thoughts and novel applications. Panel meetings to discuss Booker and brainstorm Booker issues will be scheduled soon. Good luck to all of us. ARG/ C:\Documents and Settings\Jen\Desktop\Applications\Bkr_FnFn_xtrct