The Ex Post Facto Clause In The Post-Booker World

The following is my article (with Charles Clayman) in today's New York Law Journal entitled "The Ex Post Facto Clause In the Post-'Booker' World."

July 01, 2009

"Fascinating "and "intriguing" are not words typically used when referring to the United States Sentencing Guidelines or the U.S. Constitution's ex post facto clause. But that's precisely how U.S. District Judge Lewis A. Kaplan recently described the question of whether the ex post facto clause continues to apply to the Guidelines in the wake of United States v. Booker, which rendered the Guidelines advisory rather than mandatory.

Before Booker, the issue was relatively straightforward. Courts were required to apply the Guidelines manual in effect on the sentencing date unless its use caused a problem under the ex post facto clause by suggesting a harsher punishment than that recommended by the Guidelines manual in effect on the date that the offense of conviction was committed. Today, the choice is not as clear. Since Booker, at least one circuit court has held that use of the Guidelines manual in effect on the sentencing date never poses an ex post facto problem because courts are no longer bound by the Guidelines. (The U.S. Department of Justice has also adopted this view.) By contrast, numerous other courts have found that Booker did not change anything, and that the same potential ex post facto problems persist, even though the Guidelines are now only advisory.

This question remains unresolved in the U.S. Court of Appeals for the Second Circuit. Indeed, the Second Circuit recently noted in United States v. Johnsonthat continued applicability of the ex post facto clause to the Guidelines "remains an open question to be decided in the appropriate case." To more fully explore the issue in anticipation of such an "appropriate case," this article will: (1) describe how the ex post facto clause applied to the Guidelines before Booker; (2) detail the conclusions reached by those courts that have found it no longer applicable to the Guidelines; and (3) explain why courts should continue its application even in the post-Bookerworld.

Before "Booker"

In Miller v. Florida the U.S. Supreme Court observed that a law that "makes more onerous the punishment for crimes committed before its enactment" violates the ex post facto clause. Deriving its understanding from a 1798 Supreme Court decision, Calder v. Bull, the Miller court observed that the clause was included in the Constitution to insure that "legislative enactments give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." It also noted that "almost from the outset, we have recognized that central to the ex post facto prohibition is a concern for the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated."

Based on these principles, the Miller court found that a law violates the ex post facto clause if it: (1) is "retrospective," that is, if it "appl[ies] to events occurring before its enactment"; and (2) "disadvantage[s] the offender affected by it." Applying this standard to the Guidelines, the Second Circuit held in United States v. Gonzalez (a pre-Booker case) that "an amendment to a guideline that occurs after the commission of an offense is a violation of the ex post facto clause if it works to the detriment of a defendant."

This analysis is reflected in the Guidelines themselves. According to U.S.S.G. §1B1.11(a), courts are required to "use the Guidelines Manual in effect on the date that the defendant is sentenced." Similarly, 18 U.S.C. §3553(a)(4)(A)(ii) provides that courts should use the manual "in effect on the date the defendant is sentenced." But those directives are effectively neutralized by U.S.S.G. §1B1.11(b)(1), which provides that "[i]f the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed."

"United States v. Demaree"

Many courts have continued to apply the ex post facto clause to the Guidelines even after Booker.  However, the U.S. Court of Appeals for the Seventh Circuit held in United States v. Demaree that district courts need not. More specifically, the Demaree court adopted the view that the ex post facto clause applies only to those laws and regulations that bind, but not to those—like the now advisory Guidelines—that merely advise. In doing so it relied on its own decision in United States v. Rocha, in which it found that the Guidelines' advisory nature "remove[d] the foundation" for application of the ex post facto clause.  The Seventh Circuit also cited the U.S. Court of Appeals for the Sixth Circuit's decision in United States v. Barton, in which that court suggested in a footnote that "[n]ow that the Guidelines are advisory, the Guidelines calculation provides no [] guarantee of an increased sentence, which means that the Guidelines are no longer akin to statutes in their authoritativeness."

Continued Viability

The Seventh Circuit's reasoning in Demaree is, admittedly, somewhat alluring. After all, if the Guidelines are now only advisory and courts are not required to follow them, what's the harm in calculating a sentencing range using the Guidelines manual in effect on the date of sentencing—even if it suggests a longer prison term? Notwithstanding its superficial appeal, Demaree is not persuasive. It ignores the realities of sentencing in the post-Booker world and contravenes well-established legal principles.

First, the existence of increased sentencing discretion as a result of Booker does not necessarily foreclose an ex post facto claim. Even under an advisory Guidelines regime, proper calculation of the applicable range of imprisonment continues to play an important role in the sentencing process. As described by the Supreme Court in Gall v. United States, a "district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range." District courts must, according to Kimbrough v. United States treat the Guidelines as "the starting point and the initial benchmark." Indeed, the Second Circuit in United States v. Crosby specifically directed that proper computation of the applicable Guidelines range is the first of two steps in the sentencing process.

Thus, practically speaking, the Guidelines continue to exert substantial influence on the outcomes of criminal sentencing proceedings. They provide an "anchor" for judges and strongly impact the ultimate sentence imposed. As the court in United States v. Lewis put it, defendants are necessarily "disadvantaged by the more onerous Guidelines in effect at the time of [] sentencing" because the court's "consideration of applicable grounds for variance or departure begins at a higher level." If "a review of the presentence report and arguments of counsel yields no articulable basis to stray from the calculated guideline range, the sentencing court is necessarily nudged in the direction of the Guidelines."

But that's not all. The Supreme Court confirmed in Rita v. United States that appellate courts may apply a presumption of reasonableness to district court sentences calculated in conformity with the Guidelines. As a result, district court judges in those circuits that have adopted such a presumption are more likely to sentence within the Guidelines to avoid the increased scrutiny that likely would result from the imposition of a sentence outside the Guidelines. (The Second Circuit has not adopted a presumption of reasonableness.)

All of the foregoing is confirmed by the U.S. Sentencing Commission. Its "2008 Sourcebook of Federal Sentencing Statistics" (issued in 2009) reports that Booker and 18 U.S.C. §3553 were responsible in 2008 for only approximately 10 percent of all federal sentences falling outside applicable Guidelines ranges.

Second, disregarding the ex post facto clause directly contravenes what for years has been standard sentencing practice in the Second Circuit. Both before and after Booker the Second Circuit has regularly and consistently conducted ex post facto analyses when faced with claims that Guidelines manuals in effect on the sentencing date produced harsher results than those in effect on the date offenses were committed. Indeed, the Second Circuit specifically noted in United States v. Kilkenny (decided two years after Booker) that "[w]hen application of the Guidelines in effect at the time of sentencing would result in a more severe penalty than would application of the Guidelines in effect at the time the offense was committed, the Ex Post Facto Clause requires the use of the earlier version of the Guidelines."

Third, similarly, the weight of authority outside of the Second Circuit strongly favors continued application of the ex post facto clause to the Guidelines. For example, the U.S. Court of Appeals for the Sixth Circuit held in United States v. Duane that "this court has continued to examine the ex post facto implications of applying a revised version of the Guidelines retroactively." Likewise, the U.S. Court of Appeals for the Tenth Circuit found in United States v. Thompson that "the ex post facto clause bars the sentencing court from retroactively applying an amended guideline provision when that amendment disadvantages the defendant." And the U.S. Court of Appeals for the Eighth Circuit noted in United States v. Carter that, even after Booker, it has still "recognize[d] that retrospective application of the Guidelines implicates the ex post facto clause." Indeed, the Eight Circuit in Carter, the Sixth Circuit in Duane and the U.S. Court of Appeals for the First Circuit in United States v. Gilman specifically considered and rejected Demaree.

Conclusion

Until the "appropriate case" presents itself, district courts in the Second Circuit should continue to use the Guidelines manual in effect on the date an offense is committed if use of the Guidelines manual operational at the time of sentencing triggers an ex post facto violation. And when the Second Circuit eventually considers such a case, it should reject Demaree's reasoning as representing not only a break from longstanding practice in federal courts nationwide, but also as inconsistent with the reality of sentencing in the federal system, even after Booker.

Bernard Madoff Sentence: 150 Years (Or 1,800 Months)

You can read the news reports, watch the news, skim the blogs, etc.  But nothing substitutes for knowing precisely what happened in Judge Chin's courtroom this morning.  For those who are interested in the unvarnished view, here is the transcript from Bernard Madoff's June 29, 2009 sentencing hearing.

Failure To Abide By "Transitional Supervision" Not A Violent Felony Within The Meaning of ACCA

United States v. Mills, Docket No. 07-0308-cr (2d Cir. June 26, 2009)

Mills challenged a district court's finding that he qualified for ACCA sentencing because of his prior Connecticut escape conviction.  Specifically, Mills was released from Connecticut prison and placed in "transitional supervision," under which he was authorized to reside in a private residence.  By statute, however, he remainder under the jurisdiction of the Connecticut Commissioner of Correction, and was required to satisfy conditions similar to those required of parolees, including reporting regularly to a community enforcement officer.  Mills failed to appear as required after his initial report date.  Thus, he was charged with escape.

Under Taylor v. United States, 495 U.S. 575 (1990) courts are required to take a "categorical approach" when determining whether an offense qualifies as a "violent felony" under the ACCA.  But where a statute encompases crimes that would qualify both as violent felonies and crimes that would not -- like the Connecticut statute at issue here, which defined escape as both an affirmative escape from custody or a mere failure to return -- courts can make a limited inquire into which part of the statute the defendant was convicted of violating.  So, when the Second Circuit combined its limited inquiry into Mills' conduct (he basically walked away) and the Supreme Court's decision in Chambers v. United States, 129 S.Ct. 687 (2009) (finding that a failure to report or failure to return is not a violent felony under the ACCA) . . . well, you can imagine what happened.  Reversed and remanded for resentencing.  Even the Government conceded the mistake.

Post-Offense Rehabilitation (And Cooperation) Result In Wide Variance

United States v. Cadle, No. 04-CR-750 (JBW), 2009 WL 1764980 (E.D.N.Y. June 11, 2009)

Short Note:

Cadle pled guilty to conspiring to import cocaine into the United States, an offense for which she faced an advisory Guidelines range of 37 to 46 months imprisonment.  She cooperated with the Government, and received a 5K1.1 Letter.  And she was sentenced to three years probation.

Why?  "The offense took place almost five years prior to this sentencing.  The defendant's actions since that time demonstrate significant rehabilitation.  Cadle has pursued an education and devoted herself to her family responsibilities.  Her cooperation with the government was robust and helped lead to the conviction of a major cocaine trafficker."

A Good Man Catches A Break

United States v. Medeiros, No. 08-CR-0696 (JBW), 2009 WL 1764981 (E.D.N.Y. June 18, 2009)

Short Note:

Medeiros pled guilty to illegal re-entry into the United States.an offense for which he faced an advisory Guidelines range of 70 to 87 months imprisonment.  He received a sentence of 24 months home detention.

Why?  "Important considerations include the defendant's good work history, his college education and intelligence, and his support of his family.  He has been caring for his wife, who suffers from a serious health condition."  Oh, and there's the likely post-release deportation too.

No Surprise: Procedural Error Based On District Court's Adoption Of Two Different Advisory Guidelines Ranges

United States v. Hossain, No. 08-3805-cr (2d Cir. June 24, 2009)

Hossain complained about procedural error in his sentencing hearing -- specifically, the district court "erred by not calculating and identifying the applicable Sentencing Guidelines range and by failing to state the reasons for his sentence in open court."  The Second Circuit agreed that the district court's "sparse statements at the sentencing hearing and subsequent adoption of two different PSR addenda (and accordingly two different Guidelines ranges) in two separate Statements of Reasons, constitute unreasonable procedural error."  This "lack of clarity unduly frustrates the purposes of § 3553(c) -- to inform the defendant, the public, and relevant prison/probation officers of the reasons for imposition of a particular sentence and to permit meaningful appellate review." 

One final note: The sentence was obviously vacated and remanded for resentencing.  But the Second Circuit denied Hossain's request that it be assigned to a different judge.  Specifically, it found that "reassignment is not necessary in the circumstances presented, either for reasons of bias or to preserve to appearance of fairness."

Second Circuit: No Problem That Defendant And His Counsel Didn't See PSR Addendum Because They Saw A Government Letter Referencing Same

United States v. Simmons, No. 08-4031-cr (2d Cir. June 24, 2009)

Simmons argued on appeal that he was denied due process because his attorney did not receive a copy of an addendum to his PSR when he appeared for resentencing (and therefore did not have an opportunity to contest the factual assertions contained therein).  The Second Circuit found Simmons claim to be "unavailing."  Specifically, it found that the PSR addendum was referenced in a Government letter to the Court that his attorney received, and that Simmons was therefore aware of it and had an opportunity to challenge the new factual assertions (relating primarily to post-offense conduct while in custody).  Accordingly, the Second Circuit was "confident that Simmons received ample notice of the contents of the USPO's supplemental memorandum."  (Emphasis in original.)

The Second Circuit may be right.  Simmons' counsel may have known about the PSR addendum because it was referenced in the Government's letter.  Simmons counsel may have had an opportunity to respond to the Government's assertions and the actual assertions in the PSR addendum.  Indeed, maybe Simmons' attorney should have asked for the PSR addendum.  The fact remains, though, that it was not provided to Simmons or his attorney, and they did not have an opportunity to review or comment on it.  And that strikes this reader as a bit unfair.

It's Difficult To Register As A Sex Offender If You're Homeless

United States v. Akin, No. 08-CR-613 (JBW), 2009 WL 1743925 (E.D.N.Y. June 15, 2009)

Short Note:

Akin pled guilty to a single-count indictment charging that he traveled interstate and failed to update his sex offender registration, an offense for which he faced an advisory Guidelines range of 18 to 24 months imprisonment after the Court determined that the PSR's criminal history category calculation (IV) overstated the his actual criminal background.  He was sentenced to time served (unclear from the decision as to how much time that was). 

Why?  "The defendant was homeless for ther period of time during which he failed to comply with the" sexual offender reporting requirements."  While not excusing his conduct, the Court found that "his transient status . . . partially explain it."  Additionally, Akin "expressed his desire to find work in the local area and lead a productive, law-abiding life" and stated his "willingness to comply with all conditions of supervision"

Bottom End Of The Guidelines For "Primary Caregiver"

United States v. Dey, No. 07-CR-725 (JBW), 2009 WL 1720956 (E.D.N.Y. June 18, 2009)

Short Note:

Dey pled guilty certain gambling offenses, and faced an advisory Guidelines range of 6 to 12 months imprisonment (Zone B).  He received a sentence of 6 months home detention.  Why?  "While the offense is serious, the defendant is the primary caregiver for his children and demonstrated a good work history prior to his becoming disables due to beng hit by a car."

A Truly Sad Story And A Non-Guidelines Sentence

United States v. Torres, No. 08 Cr. 1062-01 (RWS), 2009 WL 1619640 (S.D.N.Y. June 4, 2009)

Torres pled guilty to one count of conspiracy to distribute and possession with intent to distribute crack.  Based on her advisory Guidelines offense level of 23 and criminal history category of VI (which was based on 15 total criminal history points that, in turn, was based on 19 arrests/convictions), Torres faced an advisory Guidelines range of imprisonment of between 92 and 115 months.  She was, however, sentenced to 36 months imprisonment based on her extraordinarily sad personal history, which bears quoting in full here:

Torres has led an extremely difficult life. She was one of six children born of a relationship between a mother who struggled with drug abuse and an absentee father. She was raised by a grandmother who was verbally abusive and abused alcohol.

Torres has had a long history of drug addiction, which started when she was introduced to marijuana by her uncle at age 11. The same uncle introduced her to crack at 12, and sexually abused her for three months during that time. She began using crack regularly at age 16. Torres was sent to a group home by her grandmother when she was 15, but has lived on the streets or with friends and associates since she was 16.

Torres has two children, David, age 10, and Kriestien, age 7. David was taken away from Torres at birth because David tested positive for drugs, and she has not seen him in several years. During her pregnancy with her son Kriestien, who was the result of a rape, Torres stopped using drugs. Kristein is currently living with Defendants' sister, age 20, and mother, who continues to struggle with addiction.

Torres suffers from asthma in addition to seizures that she attributes to her drug use.

Torres has never participated in a drug treatment program. She has expressed a desire to seek rehabilitation for her drug addiction. In addition, she has participated in GED classes for the past 6 months while incarcerated at the MDC and expressed an interest in becoming a productive member of society upon her release.

Because a Guidelines term of incarceration would not serve the goals of the penal system with respect to this Defendant, a downward departure from the Guidelines is appropriate.

Contrition / Family Circumstances And A Non-Guidelines Sentence

United States v. Guzman, No. 08-CR-332 (JBW), 2009 WL 1617942 (E.D.N.Y. June 2, 2009)

Guzman pled guilty to count two of a twelve-count indictment charging a scheme to defraud a bank.  For his offense, Clark faced an advisory Guidelines range of imprisonment of 33 to 41 months.  Yet he was sentenced to a year-and-a-day.  Why?  "The defendant appears to be contrite and has close family relationships."

Family Circumstances And A Non-Guidelines Sentence

United States v. Clark, No. 08-CR-332 (JBW), 2009 WL 1617939 (E.D.N.Y. June 10, 2009)

Clark pled guilty to count two of a twelve-count indictment charging a scheme to defraud a bank.  For his offense, Clark faced an advisory Guidelines range of imprisonment of 45 to 51 months.  Yet he was sentenced to a year-and-a-day.  Why?  "The defendant has strong family connections, assisting his siblings who have serious psychiatric illnesses.  He provides financial and other support to them and his stepson, who is a member of the armed forces."

Role Enhancements And RICO

United States v. Ivezaj, Docket No. 06-3112-cr-(L), et al., (2d Cir. June 11, 2009) (found here)

Ivezaj challenged his sentence on the ground that any aggravating role enhancement the district court applied should have been based on his conduct as alleged in the underlying predicate acts, rather than his role in the RICO enterprise as a whole.  The Second Circuit disagreed.

Specifically, it found that "a defendant's role adjustment is to be made on the basis of the defendant's role in the overall RICO enterprise."  More specifically, first, it found that analyzing a defendant's role in the overall RICO conspiracy "makes a good deal more sense than considering his role in each underlying predicate."  Second, it found that "the language of the Guidelines is clear that the requirement to look at each individual act in a RICO offense is only for purposes of establishing the base level offense, not for applying the Chapter Three adjustments."

Judge Sotomayor And The Sentencing Guidelines

There is much out there (just consult the major news outlets) concerning Judge (and proposed Justice) Sotomayor. 

For those who are interested in her sentencing jurisprudence, attention should be paid to Doug Berman's Sentencing Law and Policy blog, in which he (among other things) opened up an interesting discussion of Judge Sotomayor's opinion in United States v. Cavera, 550 F.3d 180 (2d Cir. 2008).  As Doug put it, her "Cavera opinion [is] a fascinating and remarkable piece of judging.  The opinion should be read closely not only by sentencing fans, but by everyone seeking a truly informed perspective on the type of jurist that Judge Sotomayor now is."  I agree.

Adding briefly to that discussion (which is well worth reading), I thought it might make sense to set forth here what I consider to be the most important quotations from Judge Sotomayor's strong work in Cavera as it gives insight into her view of the role of appellate courts in the post-Booker world:

"I dissent from the majority's overly deferential review of the district court's variance, on general policy grounds, from the Sentencing Guidelines . . . ."

"None of the district court's stated grounds for its variance were adequately supported by objective criteria.  Consequently, the sentence should be vacated and the case remanded."

"In the case before us, 'closer review' is warranted because the district court 'varie[d] from the Guidelines based solely on the judge's view that the Guidelines range fail[ed] to properly reflect [18 U.S.C.] 3553(a) considerations . . . .  Although its contours remain imprecise, 'closer review' must amount to more than the majority's excessive deference to the district court's decision, which risks a regression of the sentencing process to the 'greatest deficiencies of the pre-Guidelines regime,' namely 'its failure to provide for review of the decisions of sentencing judges and its failure to ensure that the sentencing judge's exercise of discretion was informed by authoritative criteria and principles.'"

"Closer review is warranted where, as happened in this [case], a district court implements a policy decision applicable to a wide class of offenders that is at odds with the Sentencing Commission."

"Closer review is also appropriate because the judge's sentence, in addition to being in tension with the Sentencing Commission, was not grounded in the district court's 'discrete institutional strengths.' . . .  The district court's competence wanes as it moves from a case's particularities evaluated through the framework of 3553(a) to overarching considerations of criminal jurisprudence."

"Appellate courts must not abdicate their responsibility to ensure that sentences are based on sound judgment, lest we return to the 'shameful' lack of parity . . . which the Guidelines sought to remedy."

Second Circuit: No Below New Guidelines Sentences On Crack Resentencings

United States v. Savoy, Docket No. 08-4900-cr (2d Cir. May 27, 2009) (found here)

The Second Circuit (including Judge Sotomayor) considered the question of whether Section 1B1.10 of the Guidelines (the Sentencing Commission's policy statement regarding the reduction of sentences pursuant to an amended Guidelines range) precludes sentencing a defendant below an amended Guidelines range. 

Specifically, Section 1B1.10 of the Guidelines provides that courts may reduce a defendant's sentence if the Sentencing Commission subsequently reduces the applicable Guidelines range of imprisonment.  It further provides that a district court, when considering whether a reduction is warranted, "shall determine the amended guideline range that would have been applicable to the defendant  if the amendment(s) to the guidelines . . . had been in effect at the time the defendant was sentenced."  And it provides that, save for exceptions not applicable to Savoy, "the court shall not reduce the defendant's terms of imprisonment [in crack cocaine cases] to a term that is less than the minimum of the amended guideline range . . . ."

Thus, the question before the Second Circuit was "[w]hether courts are required to construe the 'shall not' language of Section 1B1.10(b)(2)(A) as advisory rather than mandatory in light of Booker and its progeny" -- an open question in the Second Circuit.  Joining several of its sister circuits, the Second Circuit found that it is not required to consider it advisory.  Rather, the Second Circuit held that Section 1B1.10 is "binding on sentencing courts," and held that "district courts lack the authority when reducing a sentence pursuant to [Section] 3582(c)(2) to reduce that sentence below the amended Guidelines range where the original sentence fell within the applicable pre-amendment Guidelines range."

A Series Of Procedural Errors

United States v. Weisberg, No. 07-CR-066A, 2009 WL 1373676 (W.D.N.Y. May 15, 2009)

A United States District Judge was compelled to reverse and remand the sentencing decision of a United States Magistrate Judge after discovering several procedural errors.  The lesson to be learned is this: Make a good record.

First, the magistrate judge "erroneously presumed that a within-the-Guidelines sentence should be applied absent exceptional circumstances.  In his initial sentencing decision, the Magistrate Judge found that '[t]he factors defendant suggests should warrant either a downward departure or imposition of a non-Guidelines sentence, collectively are not so extraordinary to justify a departure.'  This was error ebcause the Supreme Court made clear in Gall that post-Booker, there is no requirement that a sentencing court find 'extraordinary circumstances' in order to justify the imposition of a non-Guidelines sentence."

Second, the magistrate judge "erroneously applied a presumption of reasonableness to the advisory Guidelines range. . . .  [T]he Supreme Court has made clear that no presumption of reasononableness should be applied by the sentencing court."

Finally, the magistrate judge "was not required to sentence the defendant within the advisory Guidelines range unless he articulated a specified policy disagreement with the Guidelines.  While it is true that such a disagreement may provide a reason for imposing a non-Guidelines sentence . . . it does not follow that the failure to disagree with the policy statements mandates the sentence be within the advisory Guidelines range."

Non-Guidelines Sentence Based On Defendant's History And Characteristics

United States v. Bello, No. 08-CR-801 (JBW), 2009 WL 1310791 (E.D.N.Y. May 5, 2009)

Bello pled guilty to a narcotics offense for which the Guidelines indicated a 37 to 46 month term of imprisonment (Level 21).  Bello, however, qualified for 2 level reduction pursuant to Sections 2D1.1(b)(11) and 5C1.2 of the Guidelines, thereby reducing his advisory Guidelines range to 30 to 37 months (Level 19).  The court, however, sentenced him to 18 months imprisonment based principally on his history and characteristics.  Here is how the court described it:

The offense is serious: the defendant ingested numerous heroin-filled pellets for importation into the United States.  He is a highly intelligent and hard working young man who has accepted responsibility for his criminal actgions.  He has been the financial provider to his family since he was a teenager; his mother, infant son, and son's mother in the Dominican Republic have faced significant hardship in his absence.

Letter to the Editor -- New York Times

Here's a link to my letter to the editor published in today's edition of the New York Times in response to an op-ed last week by former Attorney General John Ashcroft concerning deferred prosecution agreements.  Or, for those who don't want to follow the link, here's the letter in its entirety (best read after reading Ashcroft's op-ed, though):

Re: "Bailout Justice" (Op-Ed, May 5):

John Ashcroft correctly notes that deferred-prosecution agreements can effectively police, without destroying, corporate recipients of federal bailout money that engaged in criminal conduct.  But let's not forget that the agreements demanded when Mr. Ashcroft was attorney general came at a steep price.

Among other things, companies were forced to waive the attorney-client privilege, fire employees who declined to cooperate, and refuse payment of legal fees for workers before they were found to have done anything wrong.

Today, as pressure builds for stern action against corporate wrongdoing, the Department of Justice must resist the temptation to follow in Mr. Ashcroft's footsteps.  Rather, it should strictly adhere to its new guidelines for corporate prosecutions, adopted in August of last year, that protect against abusive deferred-prosecution agreements, like those that Mr. Ashcroft backs.

Harlan J. Protass
New York, May 5, 2009

The writer is a criminal defense attorney and an adjunct professor at the Benjamin N. Cardozo School of Law, Yeshiva University.

Chutzpah

United States v. Ferraris, No. 08-5116-cr (2d Cir. May 6, 2009) (found here)

Unless I'm missing something, the Second Circuit's short decision says it all:

Defendant-Appellant Mark Ferraris challenges as unreasonable his sentence, which includes imprisonment for 36 months.  He pled guilty to a charge of conspiracy to distribute at least 1,000 kilograms of marijuana.  The District Court granted a downward departure from the Guidelines range of 87 to 109 months.  The claim that the sentence is unreasonable is entirely without merit.

Every Variance Counts

United States v. Pender, No. 07-CR-874 (JBW), 2009 WL 1181052 (E.D.N.Y. May 1, 2009)

Pender faced an advisory Guidelines range of 135 to 168 months for his role in a crack distribution ring,but was sentenced "only" to 120 months imprisonment.  15 months might not sound like a lot of time in light of the fact that Pender is facing 10 years in prison.  But it is.  Indeed, my experience is that variances of even a month or two can be extremely important to criminal defendants -- Every day outside of prison is a good one.  And, moreover, my experience is that criminal defendants understand what they're up against when the time comes for sentencing, and are thrilled when their lawyers are even able to knock a few months off of a sentence based on the 18 U.S.C. 3553 factors.  So, use every possible opportunity to make the arguments necessary to save a little time.