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United States v. Ray, 578 F.3d 184 (2d Cir. 2009) There was a 15 (that's right -- 15) year gap between a decison by the Second Circuit reversing Ray's sentence and remanding for resentencing, and the actual resentencing hearing, at which Ray was sentenced to six months of community confinement. Check out the decision for all the details concerning the basis for the ruling, but the bottom line is that the Second Circuit found that the 15 year delay violated Ray's right under the due process clause of the Fifth Amendment to "speedy sentencing." And although it did not directly decide the issue, the Second Circuit indicated that the appropriate remedy for a speedy sentencing violation is a sentence of time served (particularly where the delay in imposition of a custodial sentence "threatens to undermine her successful rehabilitation").
United States v. Freeman, Docket No. 08-1886-cr., 2009 WL 2430667 (2d Cir. Aug. 10, 2009) On appeal, Freeman challenged the district court's application of a four level enhancement for the possession of images containing sadistic or masochistic conduct. See U.S.S.G. 2G2.2(b)(4) ("If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels"). Freeman did not prevail. Indeed, the Second Circuit held that "when a District Court makes an objective determination that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, the court establishes an adequate basis for the application of the enhancement set forth in section 2G2.2(b)(4)." More specifically, the Second Circuit relied on its prior decision in United States v. Delmarie, 99 F.3d 80 (2d Cir. 1996), finding that that case set forth two principles. First, the determination of whether an image is sadistic . . . is an objective one." As the Second Circuit explained: the purpose of the act depicted [and] the reaction of the actor are irrelevant to this determination. A sentencing court need not determine whether the people depicted in the image are deriving sexual pleasure from the infliction of pain; nor need it gauge whetehr the viewer of the picture is likely to derive pleasure from the fact that the image displays painful sexual acts. There is also no need for the sentencing court to determine either why the defendant possessed the images or whether he derived pleasure from them. . . . In sum, the subjective intent of those depicted in the image and of those who view the image are entirely irrelevant to the application of this enhancement. All that matters, as the text of the relevant provision of the Guidelines makes clear, is whether the material portrays masochistic conduct or other depictions of violence. This determination must e made based on an objective analysis of the material in question.
Second, the Second Circuit found that "if a sentencing court finds that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, that court need not make any additional findings in order to impose a four-level enhancement" under Section 2G2.2(b)(4) of the Guidelines.
United States v. Amico, 573 F.3d 150 (2d Cir. 2009) Amico and the Government disputed the question of whether a 2001 amendment to the Guidelines applies retroactively. Specifically, Section 2F1.1(b)(7)B) of the 1998 Guidelines states, in relevant part, that if the offense "affected a financial instuitution and the defendnat derived more than $1,000,000 in gross receipts from the offense, increase by 4 levels." In 2002, this section of the Guidelines was amended to state, in relevant part, that if "the defendant derived more than $1,000,000 in gross receipts from one of more financial institutions as a result of the offense, increase by 2 levels." The Second Circuit joined the Seventh Circuit in finding that the amendment substantively changes an unambiguous provision of the Guidelines, and therefore does not apply retroactively. (If, by contrast, the amendment had been found to be a clarification, it would have applied retroactively.)
United States v. Santano, No. 07-CR-874 (JBW), 2009 WL 1956227 (E.D.N.Y. July 6, 2009)
Short Note: Santano pled guilty to a narcotics offense. Although he did not initially qualify for safety valve relief, he ultimately did. And the Court determined that he faced a Guidelines range of 87 to 108 months imprisonment. He was ultimately sentenced, however, to 37 months imprisonment.
Why? "The offense is serious. The defendant was a member of a gang that disturbed the peace and threatened the safety of a public housing project. He was extremely young during the time of his involvement in this drug sales operation. He has the benefit of considerable support from his family, who expressed that they are moving to a different community to assist in Santano's continued rehabilitation and reintegration into society. His former employer indicated that Santano is a talented barber and would have a job in his shop available to him upon his release. He is an intelligent individual who appears capable of leading a productive, law-abiding life."
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.
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.
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"
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."
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.
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