§110 Guidelines Sentencing, Generally
S.Ct. requires no “additional evidence” that guidelines plain error affected sentence. (110)(855) The district court, with little explanation, sentenced defendant to the low end of a 77-96 month guideline range. On appeal, the Fifth Circuit found that the range should have been 70-87 months, and this was “plain error.” Nevertheless, the panel affirmed, ruling that a defendant sentenced within what would have been the correct guidelines range must, on appeal, show “additional evidence” that the error affected his sentence. The Supreme Court reversed, in an opinion by Justice Kennedy, rejecting any “categorical” rule requiring additional evidence. The Court said that in the usual case, the “systemic” function of an incorrect guidelines range will affect a defendant’s sentence. However, the Court cautioned that rejection of the “additional evidence” rule means only that a defendant can rely on an incorrect application of the guidelines to show an effect on his substantial rights, not that the government will have to prove that every guidelines error was harmless. Molina-Martinez v. U.S., __ U.S. __, 136 S.Ct. 1338 (2016).
Commission broadens criteria for Compassionate Release. (110)(150) Title 18, U.S.C. §3582(c)(1)(A), authorizes a federal court, upon motion of the Director of the Bureau of Prisons, to reduce the prison term of a defendant if “extraordinary and compelling reasons” warrant such a reduction or the defendant is at least 70 years of age and meets certain other criteria. The Commission broadened eligibility criteria for compassionate release in §1B1.13 and encouraged the Director of the Bureau of Prisons to file a motion for compassionate release when “extraordinary and compelling reasons” exist. See U.S. Department of Justice, Federal Bureau of Prisons, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§3582(c)(1)(A) and 4205(g) (Program Statement 5050.49, CN-1). A sentence reduction may be based on the defendant’s medical circumstances (e.g., a terminal or debilitating medical condition; see 5050.49(3)(a)–(b)) or on certain non-medical circumstances (e.g., an elderly defendant, the death or incapacitation of the family member caregiver of an inmate’s minor child, or the incapacitation of the defendant’s spouse or registered partner when the inmate would be the only available caregiver; see 5050.49 (4),(5),(6)). Amendment 1, Effective Nov. 1, 2016.
2nd Circuit says extradited defendant lacked standing to argue that sentence violated diplomatic note. (110) (750) Defendant was extradited by the Republic of Colombia to face drug charges in the United States on the condition that “a sentence of life imprisonment will not be sought or imposed.” The United States agreed to the condition in a Diplomatic Note to the Colombian government. Defendant contended on appeal that his 648-month sentence violated this condition because it was effectively a life sentence. The Second Circuit held that defendant lacked prudential standing to challenge his sentence on this ground. Any individual right that defendant might have under the terms of his extradition was “only derivative through the state[ ].” Thus, he would only have standing to raise the claim that his sentence violated the terms of his extradition if the Government of Colombia first made an official protest. U.S. v. Suarez, __ F.3d __ (2d Cir. June 30, 2015) No. 14-2378-cr.
Supreme Court holds BOP may categorically deny early release to prisoners who used a firearm. (110) Under 18 U.S.C. § 3621(e)(2) (B), a federal prisoner convicted of a nonviolent offense who successfully completes a substance abuse treatment program “may” have his sentence reduced by the Bureau of Prisons (BOP). After a 1995 regulation was challenged in the courts, the BOP issued a 1997 regulation categorically excluding from early release any prisoner who possessed a firearm in connection with his offense. In a 6-3 opinion written by Justice Ginsburg, the Supreme Court held that Congress’s use of the permissive “may” in the statute gave the BOP discretion to categorically deny early release to certain kinds of prisoners. The majority held that the BOP could rely on preconviction conduct, and could make categorical exclusions rather than case-by-case assessments of each prisoner. The rule of lenity did not apply. Justice Stevens dissented, joined by Chief Justice Rehnquist and Justice Kennedy. Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714 (2001).
Supreme Court relies on legislative history in construing ambiguous criminal statute. (110) In attempting to determine what sentence was “authorized” for juveniles under 18 U.S.C. section 5037, the Supreme Court found the statute ambiguous. However, rather than construing the ambiguity in favor of the juvenile under the “rule of lenity,” Justice Souter, in an opinion joined by Chief Justice Rehnquist, and Justices White and Stevens, examined the legislative history of the statute and its predecessors, and concluded that the statute was not ambiguous after all. Justice Scalia, in an opinion joined by Justices Kennedy and Thomas concurred in the judgment, but argued that it was “not consistent with the rule of lenity to construe a textually ambiguous penal statute against a criminal defendant on the basis of legislative history.” Justices O’Connor and Blackmun dissented on other grounds. U.S. v. R.L.C., 503 U.S. 291, 112 S.Ct. 1329 (1992).
1st Circuit holds law of the case doctrine barred defendant from challenging fine. (110) On his first appeal, defendant challenged his base offense level, but not his fine. The 1st Circuit affirmed the sentence, but remanded to consider an intervening change in the guidelines. At resentencing, defendant received a reduced sentence. His cost of imprisonment fine was also reduced to reflect the shorter prison term. Seven months later, he moved for reconsideration on the ground that the cost of imprisonment fine under § 5E1.2 was invalid. The 1st Circuit upheld the denial of the motion for reconsideration, ruling that the “law of the case” doctrine barred defendant from challenging the fine. A legal ruling at one stage of a case, unchallenged on appeal, becomes the law of the case for future stages of the same litigation, and the party is deemed to have forfeited the right to challenge that ruling later. U.S. v. Connell, 6 F.3d 27 (1st Cir. 1993).
1st Circuit holds that appropriate sentence within authorized range is a question for the District Court. (110) Defendant received a 55-month sentence, which was within the appropriate range, but was not the minimum sentence. The 1st Circuit held that it is up to the District Court to deter-mine where to sentence within the guideline range. U.S. v. Lawrence, 889 F.2d 1187 (1st Cir. 1989).
1st Circuit rules that 3-year guideline sentence is equivalent to 9-year sentence under the old law. (110) First Circuit Judge Breyer, who is a member of the Sentencing Commission, together with Judge Torruella and Ninth Circuit Judge Reinhardt, concluded that a guideline “sentence of three years actually served (without the possibility of parole) is roughly comparable to a pre-guideline sentence of about nine years (assuming that parole is granted as soon as the offender is eligible for it).” Accordingly they found that a three year sentence for contempt was “plainly unreasonable.” U.S. v. Underwood, 880 F.2d 612 (1st Cir. 1989).
1st Circuit holds that judges who sit on the Sentencing Commission need not automatically recuse themselves in all guideline cases. (110) In a concurring opinion, Circuit Judge Breyer, a member of the Sentencing Commission, explained why he should not have to automatically recuse himself from a guideline case. In a brief opinion, he stated that while he would automatically recuse him-self in cases which involved serious legal challenges to the guidelines, he would not do so in typical cases. However, he said that he would entertain any motions for recusal that were made. U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).
2nd Circuit says court is not bound by diplomatic note assuring extraditing government that U.S. would not seek life sentence. (110) In seeking defendant’s extradition from Colombia, the U.S. provided Colombia with a diplomatic note, assuring Colombia that if defendant was convicted, “the United States executive authority … will not seek a penalty of life imprisonment …. The Government of the United States also assures the Government of Colombia that, should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against [defendant], the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years.” The district court imposed a life sentence, and defendant argued that the diplomatic note constituted an absolute assurance that he would not be sentenced to a life term. The Second Circuit held that the diplomatic note did not bind the district court, and thus it did not abuse its discretion when it sentenced defendant to a life sentence. The note expressly contemplated the possibility that a sentencing court might impose a sentence of life imprisonment. However, a district court should not ignore the consequences of an extradition agreement. Courts should “temper their discretion” in sentencing an extradited defendant with deference to the substantive assurances made by the U.S. to an extraditing nation. Nonetheless, the Judiciary does not surrender its independence to the Executive Branch. U.S. v. Baez, 349 F.3d 90 (2d Cir. 2003).
2nd Circuit remands to amend written judgment to conform to oral sentence. (110) Defendant’s oral sentence required him, as a condition of supervised release, to pay a fine previously assessed by the City of New York Environmental Control Board. However, the written judgment imposed a federal fine, payable to the Board, and distinct from any preexisting fine. Where an unambiguous oral sentence conflicts with the written judgment, the constitutional rights of a defendant to be present at sentencing dictates that the oral pronouncement of sentence must control. See U.S. v. DeMartino, 112 F.3d 75 (2d Cir. 1997). In cases of such conflict, Fed. R. Crim. P. 36 authorizes a district court “at any time, to amend the written judgment so that it conforms with the oral sentence pronounced by the court.” Accordingly, the Second Circuit remanded to the district court for amendment of the written judgment pursuant to Rule 36. U.S. v. A-Abras Inc., 185 F.3d 26 (2d Cir. 1999).
2nd Circuit refuses to apply rule of lenity where substance seized was undeniably crack cocaine. (110) Defendants were sentenced under 21 U.S.C. § 841(b)(1)(A)(iii), which imposes severe penalties for possession of “cocaine base,” rather than the more lenient provisions in § 841(b)(1)(ii)(II), which applies to “cocaine, its salts, optical and geometric isomers, and salts of isomers.” They argued that U.S. v. Jackson, 968 F.2d 158 (2d Cir. 1992) created a statutory ambiguity by adopting an all-inclusive, scientific definition of cocaine base that includes not only crack, but all other non-salt forms of cocaine. They asserted by in defining cocaine to include all non-salt forms of cocaine, the court selected a definition of cocaine base that applies equally to cocaine in the lower penalty provision. The Second Circuit refused to apply the rule of lenity since it was undisputed that the substance seized here was crack cocaine, and that Congress intended for the higher penalties to apply to crack cocaine. Regardless of whether defendants were correct concerning the ambiguity, there was no doubt about which penalty Congress intended to apply to their conduct. Because the statute was not unclear applied to defendants, they could not claim the benefit of the rule of lenity. U.S. v. Fields, 113 F.3d 313 (2d Cir. 1997).
2nd Circuit holds mandate rule barred reopening enhancement issue on remand. (110) In defendant’s first appeal, a Second Circuit panel vacated defendant’s sentence because the district court’s loss finding was not adequately supported. On remand, the district court recalculated the loss. In his second appeal, defendant for the first time challenged a § 2F1.1(b)(2) enhancement for more than minimal planning. The Second Circuit held that the mandate rule barred the district court from reopening the enhancement issue, since the initial opinion did not call for de novo sentencing. The mandate rule bars a district court from reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals. Defendant in his first appeal failed to raise the issue he now sought to litigate. Where the sentence is vacated and remanded for reconsideration of a specific issue, the mandate rule prevents hearing an issue not raised in the initial appeal. Since the appellate opinion did not call for de novo resentencing, the new issue could not be raised on remand. U.S. v. Stanley, 54 F.3d 103 (2d Cir. 1995).
2nd Circuit holds that guideline range is binding unless departure is appropriate. (110) Defendants all had a guideline range of 24-30 months. The district court sentenced them to terms well below the guideline range, stating that the guidelines are only one factor to be considered in imposing a sentence, and that 24-30 months imprisonment was greater than necessary to achieve the general punishment purposes in 18 U.S.C. § 3553(a). The Second Circuit held that § 3553 requires a court to sentence within the applicable guideline range unless a departure is appropriate. The language of subsection (b), which directs a court to impose a guideline sentence, is mandatory, not precatory. This interpretation does not render subsection (a) immaterial. The factors listed in (a) inform the court’s determination of the appropriate sentence within a guideline range. U.S. v. Deriggi, 45 F.3d 713 (2d Cir. 1995).
2nd Circuit finds joint sentencing memo did not violate right to “individualized sentencing.” (110) Defendant argued that his statutory right to “individualized sentencing,” 18 U.S.C. section 3553(c), was violated by the trial court’s preparation of a joint sentencing memorandum and order to explain why he imposed life imprisonment on defendant and two of his co-defendants. The 2nd Circuit found this claim “completely without merit.” The sentencing memorandum separately addressed defendant and each of his co-defendants and identified specific reasons for defendant’s sentence. U.S. v. Amato, 15 F.3d 230 (2nd Cir. 1994).
2nd Circuit remands despite sentence within proper range because of judge’s pretrial remarks. (110) Prior to trial, the district judge threatened to impose the maximum sentence if he concluded that defendant went to trial without “a good defense.” Defendant had a guideline range of 262 to 327 months, and received a 320-month sentence. The government moved to remand the case, and the 2nd Circuit wrote an opinion only to make clear the inappropriateness of the judge’s threat. The judge’s pretrial remarks created an unacceptable risk that the sentence was impermissibly enhanced above an otherwise appropriate sentencing norm to penalize the defendant for exercising his constitutional right to stand trial. U.S. v. Cruz, 977 F.2d 732 (2nd Cir. 1992).
2nd Circuit upholds increase in pre-guidelines sentence to make up for incorrect enhancement on guidelines count. (110) Defendant’s original sentence was based on both guidelines and pre-guidelines counts. On his first appeal, the 2nd Circuit reversed a guidelines enhancement which had resulted in a 10-month increase in defendant’s sentence, and remanded for re-sentencing. On remand, the district court added 10 months to defendant’s non-guidelines sentence and thus resentenced him to precisely the same total prison term originally imposed. The 2nd Circuit affirmed, since the prior opinion explicitly recognized the district court’s authority to so increase the non-guidelines sentence. The remand was intended to resolve the factual question of whether the district court would have given a larger sentence on the non-guidelines counts if it had realized the enhancement was improper. U.S. v. Hornick, 963 F.2d 546 (2nd Cir. 1992).
2nd Circuit holds that sentencing court must consider illegally seized evidence provided it was not seized to enhance sentence. (110) The 2nd Circuit held that a sentencing court must consider evidence seized in violation of the 4th Amendment, provided that the evidence was not seized for the express purpose of enhancing a defendant’s sentence. The benefits of providing sentencing judges with reliable information about the defendant outweigh the likelihood that allowing consideration of illegally seized evidence will encourage unlawful police conduct. Absent a showing that officers obtained evidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing, even if that evidence was seized in violation of the 4th Amendment. U.S. v. Tejada, 956 F.2d 1256 (2nd Cir. 1992).
2nd Circuit affirms sentence in excess of six months despite original order which limited imprisonment to six months. (110) After defendant violated an injunction, the district court issued an order to show cause why he should not be held in criminal contempt, and punished by not more than six months in custody. Since defendant was a fugitive, he was never served with this order. After authorities located him, a new judge issued a new order to show cause, which did not limit the term of imprisonment. At the time of the plea, the court informed defendant that he was facing a term of imprisonment in excess of six months. Defendant was sentenced to 37 months. On appeal, he claimed that this violated due process. The 2nd Circuit upheld the sentence, noting that the original order expired when defendant failed to appear. He was arrested on the subsequent order, which did not limit the term of imprisonment. U.S. v. Lohan, 945 F.2d 1214 (2nd Cir. 1991).
2nd Circuit conforms sentence to oral pronouncement. (110) Although the district court orally sentenced defendant to a term of 86 months, the written judgment erroneously said 87 months. The 2nd Circuit granted defendant’s request, unopposed by the government, to amend the judgment to conform with the oral pronouncement. U.S. v. Castro-Vega, 945 F.2d 496 (2nd Cir. 1991).
4th Circuit distinguishes sentencing entrapment from sentencing manipulation. (110) Defendants argued that they were denied due process where police made purchases for the purpose of manipulating their base offense levels, and that this was a ground for departure. In rejecting this claim, the 4th Circuit distinguished between sentencing entrapment and sentencing manipulation. Sentencing entrapment involves overcoming the will of an individual predisposed only to dealing small quantities of drugs. A necessary element of sentencing entrapment, missing here, is the defendant’s lack of predisposition. Under sentencing manipulation, the defendant’s predisposition is irrelevant; the focus is on the motives of law enforcement. It is not outrageous for the government to continue to purchase narcotics from a willing seller. The government requires no motive other than its responsibility to enforce the criminal laws, to justify an extended investigation. Moreover, the district court is not required to speculate as to the motives of police. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
4th Circuit says district court was not permitted on remand to revisit merits of guilty plea. (110) In U.S. v. Bell, 974 F.2d 537 (4th Cir. 1992), appeal after remand, 5 F.3d 64 (4th Cir. 1993), (Bell I), the 4th Circuit rejected a downward departure and remanded for resentencing within the guideline range of 87 to 108 months imprisonment. On remand, rather than follow the mandate, the district court vacated defendant’s guilty plea to sexual exploitation of children, and dismissed the indictment. The 4th Circuit reversed. The mandate in Bell I unambiguously directed the court to impose a sentence within the specified guideline range. The district court’s finding that conviction under the statute required proof of a commercial purpose was erroneous, and therefore the court erred in revisiting defendant’s guilty plea. U.S. v. Bell, 5 F.3d 64 (4th Cir. 1993).
4th Circuit holds that a district court may sua sponte correct a guideline sentence only within the time for filing a notice of appeal, and only after notice to the defendant. (110) The 4th Circuit held that a district court may correct an acknowledged and obvious mistake on its own motion under Rule 35 only during the period in which either party may file a notice of appeal. Here, the district court had imposed a term of probation, but its stated sentence was not the one which it intended to impose. It subsequently changed its commitment order. The time for filing a notice of appeal had not yet expired. It was proper for the court to change the sentence on its own motion. However, the modification should have been made in the public forum after proper notice to the defendant had been given. Since no notice occurred, the case was remanded for resentencing. The modified sentence of imprisonment followed by probation was nevertheless correct. U.S. v. Cook, 890 F.2d 672 (4th Cir. 1989).
5th Circuit says defendant is not entitled to appointed counsel for retroactivity motion. (110) Defendant moved to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on a 1993 amendment to § 2D1.1(c). He argued that the district court erred in not appointing counsel to represent him on his motion to reduce sentence. The Fifth Circuit held that defendant was not entitled to appointed counsel because a post-conviction motion to reduce a sentence in light of a guideline amendment is not an “ancillary matter” under 18 U.S.C. § 3006A(c). Moreover, the Sixth Amendment right to counsel extends only through the defendant’s first appeal. U.S. v. Whitebird, 55 F.3d 1007 (5th Cir. 1995).
5th Circuit upholds organizer enhancement based on co-conspirators’ inadmissible confessions. (110) Six people arrested by border patrol agents confessed that they had been hired by defendants to transport marijuana across the border. Although these confessions were inadmissible at trial, they were used at defendants’ sentencing to impose a leadership enhancement under section 3B1.1(c). The 5th Circuit affirmed the reliance upon the inadmissible confessions. Evidence that is inadmissible at trial may be considered in a sentencing hearing. The confessions had sufficient indicia of reliability, since they corroborated each other. Additionally, defendants rested separately from the other group of co-conspirators in the holding cell, dressed differently from the other group, and responded differently to police questioning. U.S. v. Rojas-Martinez, 968 F.2d 415 (5th Cir. 1992).
5th Circuit upholds Parole Commission’s application of sentencing guidelines to prisoner transferred from Mexico. (110) Under 18 U.S.C. sections 4106A(b)(1)(A) and (B) and 28 C.F.R. § 2.62(g), the Parole Commission should determine a release date for prisoners transferred from foreign countries by applying the U.S. sentencing guidelines as if the offender were convicted in a United States district court of the statutory offense most similar to the foreign conviction. Section 4106A(b)(2)(A) allows the transferred offender to appeal the Parole Commission’s determination to the court of appeals in which the offender is imprisoned. Here, the 5th Circuit found no error in the Parole commission’s application of the career offender guideline to this prisoner who was convicted in Mexico of the equivalent of possession of marijuana with intent to distribute. The court also rejected the prisoner’s constitutional challenges to the authority of the Parole Commission to set sentences. Hansen v. U.S. Parole Commission, 904 F.2d 306 (5th Cir. 1990).
5th Circuit affirms that effective date of guidelines was November 1, 1987. (110) Defendant argued that the effective date of the guidelines was December 19, 1987 and not November 1, 1987 because of a provision forbidding the guidelines from taking effect until 6 months after the Sentencing Commission transmitted its report to Congress for review. The 5th Circuit held that the guidelines’ effective date was November 1, 1987 because the guidelines were submitted to Congress on April 13, 1987. Only a supplementary report was submitted on June 18, 1987 and the court found no legislative history to indicate anything other than that the six month period was to begin running in April. U.S. v. Woolford, 896 F.2d 99 (5th Cir. 1990).
5th Circuit rules that sentencing enhancement need not be alleged in indictment. (110) The 5th Circuit held that an enhancement for possession of a firearm during a drug offense need not be pled in an indictment charging a drug conspiracy. Under McMillan v. Pennsylvania, 477 U.S. 79 (1986), the possession of a firearm during a drug offense is a permissible sentence enhancement, rather than an additional element of the offense. Thus, it was proper for the indictment to track the statutory language of the offense without reference to the enhancement. U.S. v. Shaw, 883 F.2d 10 (5th Cir. 1989).
6th Circuit upholds 100:1 sentencing ratio for cocaine powder and cocaine base. (110) Defendant urged the court to reverse the law of the circuit and hold the crack cocaine sentencing ratio unconstitutionally vague. He pointed to new scientific evidence suggesting that there is no meaningful distinction between crack cocaine and powder cocaine. The Sixth Circuit found that it was bound by circuit precedent to uphold the ratio. Moreover, the guidelines are not subject to a vagueness attack. Since there is no constitutional right to sentencing guidelines, the limitations put on a judge’s discretion by the guidelines do not violate a defendant’s right to due process by reason of vagueness. Judge Jones concurred separately to air his concerns about the “acute societal impact” of the sentencing ratio. U.S. v. Smith, 73 F.3d 1414 (6th Cir. 1996).
6th Circuit holds that district court had no jurisdiction to resentence under the guidelines sua sponte after Mistretta. (110) Before the Supreme Court upheld the guidelines in Mistretta, defendant received a three-year sentence under the pre-guidelines law, and no alternative sentence. Neither defendant nor the government appealed the sentence. After the Supreme Court found the guidelines constitutional, and 134 days after the entry of judgment in defendant’s case, the district court, sua sponte, entered a second judgment of conviction and sentence pursuant to the sentencing guidelines. The 6th Circuit held that the district court was divested of jurisdiction in the case when the time for appeal had expired. There was no legal authority for the district court to re-invoke its jurisdiction to enter a second judgment increasing the sentence defendant was already serving. Chief Judge Merritt dissented, finding that the pre-guideline sentence entered by the district court was nothing more than a conditional sentence. U.S. v. Martin, 913 F.2d 1172 (6th Cir. 1990).
7th Circuit says low sentence does not make defendant a "prevailing party" under Hyde Amendment. (110) Under the so-called Hyde Amendment (which appears as a note to 18 U.S.C. § 3006A), a defendant who qualifies as a "prevailing party" can obtain attorney's fees if he shows that the government's position was vexatious, frivolous, or in bad faith. Defendant pleaded guilty to health care fraud and tax fraud. At sentencing, the district court rejected the government's request for an 18-year sentence and sentenced defendant to five years' probation. Defendant then sought attorney's fees under the Hyde Amendment. The Seventh Circuit characterized defendant's position as "frivolous," and held that a defendant who pleads guilty is not a prevailing party even if the sentence is light. U.S. v. Sriram, 482 F.3d 956 (7th Cir. 2007).
7th Circuit says resentencing was properly limited to obstruction of justice enhancement. (110) On defendant’s first appeal, the Seventh Circuit rejected all but one of his challenges to his sentence. The district court had relied on an improper basis for an obstruction of justice enhancement. In remanding, the court stated that “the sentence is vacated and the case is remanded for resentencing on the issue of obstruction of justice.” After resentencing, defendant appealed the district court’s refusal on remand to hear arguments outside the obstruction of justice issue. The Seventh Circuit affirmed, finding it had limited its remand to resentencing only on the obstruction of justice issue. The only open issue was the obstruction enhancement. The previous appellate opinion summarily rejected all of defendant’s other sentencing claims; therefore the law of the case doctrine barred the district court from reconsidering these issues. U.S. v. Polland, 56 F.3d 776 (7th Cir. 1995).
7th Circuit sees no error in imposing, at resentencing, adjustment not imposed before. (110) Defendant was resentenced after appeal. At the first sentencing, the district judge had declined to enhance the sentence for obstruction notwithstanding defendant’s escape attempt. On resentencing, a second judge, imposed the adjustment. On appeal, defendant argued that this was error because the first judge had explicitly considered the adjustment and decided not to make it. The 7th Circuit noted, however, that the first judge had denied the adjustment because of confusion over whether the guidelines authorized it. Since the law on that point had since been clarified, it was proper to include the adjustment. U.S. v. Connor, 992 F.2d 1459 (7th Cir. 1993).
7th Circuit orders defendant to be resentenced by different judge. (110) Defendant’s original sentence was reversed by the 7th Circuit in an unpublished order because it found the district judge did not adequately explain his reasons for an upward departure. The district judge resentenced defendant, and on his second appeal, the 7th Circuit again reversed and remanded because it found that the extent of the departure was unjustified. In remanding, the appellate court ordered defendant to be sentenced by a different judge. At the first resentencing, the district judge said he was in a foul mood because he did not like to redo sentences, did not like the appellate court’s handling of defendant’s first appeal, and did not like the guidelines. Given this, the 7th Circuit thought it would be “exceedingly difficult to convince [defendant] that he [could] receive justice in sentencing at the hands of this judge.” U.S. v. Thomas, 956 F.2d 165 (7th Cir. 1992).
7th Circuit rejects comparison to pre-guidelines sentence as grounds for upward departure. (110) In 1982, under pre-guidelines law, defendant received a 10-year sentence for threatening the life of the President. Defendant was convicted in 1990 for a similar offense, and was sentenced under the guidelines. The sentencing judge said that giving defendant less than another 10 years for the renewed threats would “not only deprecate the seriousness of this repeat offense behavior, but also would represent a disparate sentence.” The 7th Circuit rejected this as a ground for an upward criminal history departure. A five-year guideline sentence might be more severe than a 10-year pre-guideline sentence, since there is no parole and good time credits have been cut back severely. “It would perpetuate the disparities that the guidelines aim to root out to use pre-guideline sentences as benchmarks for sentence under the new rules.” U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).
7th Circuit rejects argument that North Carolina v. Pearce requires a court to consider mitigating conduct that occurred between sentencings. (110) Defendant argued that the Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711 (1969) requires a sentencing court to consider aggravating and mitigating conduct that occurs during the interim period between sentencing and resentencing. The 7th Circuit rejected the argument, holding that “Pearce only teaches that the Constitution does not preclude a sentencing court from considering subsequent aggravating or mitigating conduct.” [emphasis added] U.S. v. Brick, 905 F.2d 1092 (7th Cir. 1990).
7th Circuit rules that resentencing is required in wake of Mistretta despite district court’s “alternative” sentence. (110) Although it found the guidelines to be unconstitutional, the District Court announced the sentences it would have imposed had the guidelines been upheld. The 7th Circuit nevertheless remanded the cases for resentencing after the Mistretta decision, rejecting the government’s argument that the district judge had imposed alternative sentences. U.S. v. Feekes, 879 F.2d 1562 (7th Cir. 1989).
8th Circuit judge urges use of sentencing councils. (110) In a per curiam opinion, the Eighth Circuit affirmed the district court's denial of credit for acceptance of responsibility, even though "some judges may have granted the reduction." Judge Bright concurred but wrote separately to suggest that federal judges, particularly in multi-judge districts, should institute sentencing councils similar to those that existed before the guidelines, citing Shari Saidman Diamond and Hans Zeisel, Sentencing Councils: A Study of Sentencing Disparity and its Reduction, 43 U. Chi. L. Rev. 109 (1975). Judge Bright noted that the authors reported that New York sentencing judges changed their sentences based on their colleagues' input in about one-third of the cases brought before the council. U.S. v. Ayala, 610 F. 3d 1035 (8th Cir. 2010).
8th Circuit says Gall does not apply retroactively to final convictions. (110) In Gall v. U.S., 552 U.S. 38 (2007), the Court set the standard of review that a court of appeals must apply in reviewing the sentence imposed by the district court. Defendant, whose conviction became final before the Court decided Gall, argued that the decision should apply to all decisions that were final before Gall was issued. The Eighth Circuit rejected this argument, finding that Gall was not an interpretation of 18 U.S.C. § 3553 that would have applied to all cases, and that it did not apply retroactively to already-final convictions. U.S. v. Hodge, 602 F.3d 935 (8th Cir. 2010).
8th Circuit chastises district court for expressing disdain for guidelines. (110) The district court departed downward for two antitrust defendants, on grounds that were both proper and improper. In remanding, the 8th Circuit noted that at sentencing, the district court repeatedly and outwardly displayed its disdain for the sentencing guidelines. The appellate court had “serious concerns” about the district court’s comments, particularly its comments suggesting that it would not apply the guidelines. The guidelines are law and a district court does not have discretion to disregard a particular guideline it does not like. The record provided great uncertainty about whether the district court carried out its duty to follow and apply the guidelines. This uncertainty was another reason remand was necessary. U.S. v. Haversat, 22 F.3d 790 (8th Cir. 1994).
8th Circuit finds no sentencing manipulation despite 12 transactions with increasing drug quantities. (110) Over a nine month period, an undercover agent made 12 drug purchases from defendant, starting with a $25 purchase of one-fifth gram of crack, and ending with 218.6 grams of cocaine. The 8th Circuit rejected defendant’s sentencing entrapment claims. It is legitimate for police to continue to deal with someone in order to establish that person’s guilt beyond a reasonable doubt or to probe the depth and extent of a criminal enterprise. The course of transactions here showed a legitimate pattern of increasing amounts of drugs culminating with the final 218 gram sale, which indicated that police did no more than persist in ascertaining what quantity defendant was willing and able to deal. Defendant’s arguments that he was entrapped into selling crack rather than cocaine and into accepting food stamps were not properly sentencing entrapment arguments, but rather theories of entrapment on the elements of his crime. The jury rejected these theories. U.S. v. Shephard, 4 F.3d 647 (8th Cir. 1993).
8th Circuit protests draconian guideline sentence for first-time drug offender. (110) The 8th Circuit rejected defendant’s challenge to the determination of his offense level, noting that it had previously rejected identical arguments from his co-conspirators. Senior Judge Bright concurred separately to question the 235-month sentence imposed by the guidelines on this first-time drug offender. Defendant, who came from a stable background and a good family, would spend almost 20 years in prison. Judge Bright asked whether “the draconian sentences for first offenders demanded by the guide-lines make any sense in the face of strong evidence that a prisoner could be rehabilitated rather than virtually destroyed by a lengthy incarceration?” U.S. v. Appleby, 975 F.2d 1384 (8th Cir. 1992).
8th Circuit permits district court, on remand, to consider new challenges on same issue. (110) The district court originally ruled that defendant was a career offender, but that he was not an armed career criminal because his 1970 breaking and entering conviction did not qualify as a predicate felony under 18 U.S.C. section 924(e). In the first appeal, the 8th Circuit affirmed that defendant was a career offender, but held that the 1970 convictions qualified as a predicate felony under section 924(e). Thus, the “armed career criminal” issue was remanded. At resentencing, defendant raised new grounds as to why he was not an armed career criminal and career offender. The district court re-fused to consider new evidence relating to these issues, but on appeal, the 8th Circuit reversed, noting that its previous opinion did not find that defendant was an armed career criminal, it simply held that the 1970 conviction did qualify as a predicate felony under section 924(e). Thus the district court was free to consider any new arguments relating to defendant’s armed career criminal status. However, the career offender issue was foreclosed by the previous opinion. U.S. v. Cornelius, 968 F.2d 703 (8th Cir. 1992).
8th Circuit rejects collateral attack where defendant failed to challenge non-guidelines sentence in direct appeal. (110) At sentencing, the district court held the guidelines unconstitutional, and gave defendant a 15-year non-guidelines sentence for his drug conviction. Following the Supreme Court’s decision in Mistretta v. U.S., 488 U.S. 361 (1989), the 8th Circuit reversed the ruling that the guidelines were unconstitutional, but affirmed defendant’s non-guidelines sentence. Defendant did not seek review of that decision, but later attacked his sentence in this habeas corpus action, arguing that his sentence exceeded the appropriate guideline range. The 8th Circuit rejected argument, ruling defendant’s failure to challenge his sentence in the direct appeal meant that he could not now collaterally attack his sentence. U.S. v. Serpa, 930 F.2d 639 (8th Cir. 1991).
8th Circuit holds that neither entrapment nor prosecutorial misconduct should mitigate sentence of “admittedly guilty” defendant. (110) Defendant argued that the district court erred in refusing to consider substantial evidence of government misconduct, either as a mitigating factor war-ranting a downward departure, or as an offset to any aggravating factor the court found. The 8th Circuit found no outrageous misconduct, but added that in light of defendant’s guilty plea, “the government’s conduct, as it might relate to a violation of due process or a defense of entrapment, is no longer material to his guilt.” The court saw “no warrant for the argument that governmental or prosecutorial misconduct should mitigate the sentence of an admittedly guilty defendant.” U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit rules that no new sentencing hearing is required where defendant was given a “two track” sentence prior to Mistretta. (110) The district court held the guidelines unconstitutional, and accordingly sentenced the defendant pursuant to a “two track” approach. Thus, in its “determination of alternate sentence” the district court found that defendant would have been sentenced to a term of 132 months imprisonment had he been sentenced under the guidelines. After the guidelines were upheld in Mistretta v. U.S., 488 U.S. 361 (1989), the 8th Circuit upheld the use of the “two track” procedure. The court held that no new sentencing hearing was required. It simply vacated the pre-guidelines sentence and remanded for resentencing “consistent with the alternative sentence of 132 months set forth in the district court’s Nov. 22, 1988 order.” U.S. v. Wright, 904 F.2d 403 (8th Cir. 1990).
8th Circuit rejects argument that guidelines require jury to be instructed as to sentencing. (110) Defendant argued that the jury instructions were inaccurate because they did not explain in detail to the jury how sentencing procedures would operate under the new sentencing guidelines -- in particular, the loss of parole and the possible term of imprisonment. She also argued that the guidelines have stripped the court of its discretion so it was incorrect to tell the jury that the judge would determine the sentence. The 8th Circuit rejected these arguments, reaffirming that it is proper for a court to caution the jury not to consider punishment, and ruling that the guidelines “restrict, but do not take away, the trial court’s discretion.” U.S. v. Thomas, 895 F.2d 1198 (8th Cir. 1990).
8th Circuit holds that no new sentencing hearing is required where court imposed alternative guideline sentence. (110) Because the district court had held the guidelines unconstitutional, it imposed a non-guideline sentence, but also announced the proper sentence under the guidelines to be served if the guidelines were upheld on appeal. The government appealed, and while the case was on appeal, the U.S. Supreme Court held the guidelines constitutional. The 8th Circuit vacated the sentence and remanded stating that no new sentencing hearing was necessary, even though the guideline sentence was 18 months greater that the non-guideline sentence. “All that is necessary is the issuance of a new commitment order.” U.S. v. Warner, 894 F.2d 957 (8th Cir. 1990).
8th Circuit approves of dual track sentencing procedure to avoid remands. (110) A convicted counterfeiter and felon in possession of a firearm received a non-guideline sentence after the district court held the guidelines unconstitutional. However, the court imposed an alternate guidelines sentence to avoid the necessity of resentencing should the guidelines be upheld on appeal. The 8th Circuit approved of this procedure, and remanded for the execution of a new commitment order formally embodying the guideline sentence earlier announced. There was no due process violation in this procedure. Everyone was aware of what was going on and a full evidentiary hearing had been held, thus rendering the need for further findings prior to the imposition of a guidelines sentence unnecessary. U.S. v. Shibley, 889 F.2d 803 (8th Cir. 1989).
9th Circuit finds court adequately considered guidelines before imposing sentence. (110) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court said that it believed that the guidelines would provide "poor advice" in light of defendant's long record of recidivism, and that the guidelines were "not going to guide" the district court in imposing sentence. The court nevertheless calculated the guidelines and imposed a sentence below the guidelines range. The Ninth Circuit held that the district court properly used the guidelines as a starting point and did not fail to give adequate weight to the guidelines. U.S. v. Quintero-Junco, __ F.3d __ (9th Cir. June 12, 2014) No. 13-10087.
9th Circuit says crime victims have the right to speak at sentencing. (110) Under 18 U.S.C. § 3771(a)(4), a crime victim has “the right to be reasonably heard” at criminal proceedings, including a defendant’s sentencing. Two defendants pleaded guilty to swindling numerous victims. At the first defendant’s sentencing, the court allowed the victims to speak, but at the second defendant’s sentencing, the court declined to hear the victims. The court explained that it had reviewed victim impact statements and that testimony from the victims would not affect the court’s sentence. A victim petitioned for mandamus, and the Ninth Circuit held that the right to be heard means the right to speak. The court held that the victim’s right was not vindicated by being able to speak at the first defendant’s sentencing. Kenna v. U.S. Dist. Court for C.D. Cal., 435 F.3d 1011 (9th Cir. 2006).
9th Circuit holds that court may order U.S. Attorney to compile reports for Sentencing Commission. (110) Under 28 U.S.C. § 994(w) (1), the chief judge of each judicial district “shall ensure” that within 30 days of entry of judgment, “the sentencing court submits to” the Sentencing Commission “a written report of the sentence.” To satisfy that obligation, the United States District Court for the District of Montana issued a standing order requiring the U.S. Attorney, within 20 days after sentencing in every case, to assemble and file with the court clerk a report of sentence. The government challenged this order, arguing that the order exceeded the court’s statutory and inherent authority and violated the separation of powers. The Ninth Circuit held that the district court had statutory authority to order the government to prepare the report, and that such an order does not violate the separation of powers. U.S. v. Ray, 375 F.3d 980 (9th Cir. 2004).
9th Circuit says inclusion of certain provisions in a statute implies the exclusion of others. (110) The Ninth Circuit held that it is a “general rule of statutory construction” that “the inclusion of certain provisions in a statute implies the exclusion of others.” See Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169, 1177 (9th Cir. 1999). Thus, the court held that because 21 U.S.C. § 860 is not included in the list of statutes to which the “safety valve” applies, Congress intended to exclude § 860. U.S. v. Kakatin, 214 F.3d 1049 (9th Cir. 2000).
9th Circuit holds agency’s interpretation of statute it administers is entitled to deference. (110) The Ninth Circuit ruled that an “agency’s interpretation of a statute that it is entrusted to administer is entitled to considerable weight unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’” Tang v. Reno, 77 F.3d 1194, 1196-97 (9th Cir. 1996). The panel held that these strictures had force even though the Bureau of Prison’s interpretation appeared only in a “Program Statement” – an internal agency guideline – rather than in published regulations subject to the rigors of the Administrative Procedure Act. See Reno v. Koray, 515 U.S. 50, 61 (1995). As the Supreme Court said in Koray, “BOP’s internal agency guideline, which is akin to an ‘interpretive rule’ that ‘do[es] not require notice and comment,’ is still entitled to some deference, since it is a ‘permissible construction of the statute.’” Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000).
9th Circuit looks behind “plain meaning” to avoid “absurd” result. (110) In authorizing a district court to impose conditions of supervised release, 18 U.S.C. § 3583(d) specifically refers to certain subsections of the probation statute, 18 U.S.C. § 3563(b). Conspicuously absent however, is any reference to subsection § 3563 (b)(11), which permits a court to impose confinement in a community treatment center or halfway house as a condition of probation. Accordingly, in the present case, defendant argued that a court could not impose confinement in a community treatment center as a condition of supervised release. The Ninth Circuit rejected the argument, holding that despite the apparent clarity of the statute, the omission of subsection (11) was a “clerical error,” and “an inadvertent casualty of [the] complex drafting process” involved in enacting the mandatory Victim Restitution Act of 1996. The court thus looked behind the “plain meaning” of the statute in order to avoid an “absurd” result. U.S. v. Bahe, 201 F.3d 1124 (9th Cir. 2000).
9th Circuit applies statutory construction rules of “expressio unius” and “surplusage.” (110) The Ninth Circuit found it significant that § 6B1.2(a) explicitly permits dismissed or uncharged conduct to be considered “relevant conduct” under § 1B1.3, but the Commission did not include a similar provision regarding upward departures under § 1B1.4. See Longview Fibre Company v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (explaining interpretive principle of “expressio unius est exclusio alterius”). In addition, the panel noted that if a court could depart upward based on uncharged or dismissed conduct in a plea bargain, this would render pointless the requirement in § 6B1.2(a) for the court to accept a plea agreement only if it determines that the remaining charges adequately reflect the seriousness of the actual offense behavior. The panel said it would not “ascribe to the Sentencing Commission the intent to render a section of the Guidelines mere surplusage.” See U.S. v. Fiorillo, 186 F.3d 1136 (9th Cir. 1999) (“One provision of a statute should not be interpreted in a manner that renders other sections of the same statute ‘inconsistent, meaningless, or superfluous’”). U.S. v. Lawton, 193 F.3d 1087 (9th Cir. 1999).
9th Circuit finds most analogous offense was manslaughter for prisoner transferred from Mexico. (110) Defendant, a U.S. citizen, was convicted in Mexico of “homicidio simple.” She was transferred to the United States to complete her sentence pursuant to the Treaty on the Execution of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 20 U.S.T. 7399. Under the law, the U.S. Parole Commission was required to compute a guideline sentence for her. The Commission found that the most analogous U.S. crime was second degree murder and sentenced her accordingly. On appeal, however, the Ninth Circuit held that the facts did not show that she acted with malice and therefore the comparable U.S. offense was voluntary manslaughter. The Parole Commission found that defendant was in an extremely irrational and paranoid state of mind when she killed the victim. Malice cannot exist in such circumstances. Kleeman v. U.S. Parole Commission, 125 F.3d 725 (9th Cir. 1997).
9th Circuit says $50 special assessment prevents sentences from being truly concurrent. (110) In Ray v. U.S., 481 U.S. 736, 737 (1987) (per curiam), the Supreme Court held that because $50 special assessments must be imposed on each count of conviction under 18 U.S.C. § 3013 and Guideline § 5E1.3 the sentences imposed on each count are not truly concurrent. Accordingly, in the present case, the Ninth Circuit held that resentencing was required on four reversed bank fraud counts even though defendant was sentenced concurrently to the same sentence on other counts. U.S. v. Nash, 115 F.3d 1431 (9th Cir. 1997).
9th Circuit holds cross-references in 2K2.1 depend on whether gun was merely “present” or “actually used.” (110) Defendant was convicted of using and carrying a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1). The applicable guideline is § 2K2.1. Subsection (c)(1)(A) provides a cross-reference if the firearm was used or possessed “in connection with the commission” of another offense. And subsection (b)(5) provides for a four level increase if the firearm was used or possessed “in connection with” another felony offense. The Ninth Circuit found no ambiguity between these two sections that would require application of the rule of lenity. Instead, the court held that the difference in wording suggests that “only subsection (b)(5) be applied when firearms are merely present in connection with another offense, and that subsection (c)(1)(A) also be applied when firearms are actually used in connection with the commission of another offense.” (emphasis added) The case was remanded for an evidentiary hearing on the “connection” between the firearms and the drug trafficking offenses. Judge Rymer concurred in the judgment. U.S. v. Myers, 112 F.3d 406 (9th Cir. 1997).
9th Circuit applies rule of lenity to sentencing guidelines. (110) The Ninth Circuit noted that the rule of lenity applies to the sentencing guidelines as well as to penal statutes. As stated in U.S. v. Martinez, 946 F.2d 100, 102 (9th Cir. 1991), “the rule of lenity requires that we infer the rationale most favorable for the defendants and construe the guidelines accordingly.” Applying the rule in this case, the panel held that the term “crime of violence” in immigration guideline, §2L1.2, should be interpreted to include the effective date provision in the statute to which the guideline referred. U.S. v. Fuentes-Barahona, 111 F.3d 651 (9th Cir. 1997).
9th Circuit finds judge was not collaterally estopped from departing upward. (110) Defendant argued that the District Court was collaterally estopped from departing upward for uncharged Pennsylvania state crimes because the District Court in Pennsylvania did not depart when confronted with the same uncharged state crimes. The Ninth Circuit found no merit in the argument, because the Pennsylvania district court’s discretionary decision not to depart was not appealable by the government, and therefore it had no way to fully litigate the issue in Pennsylvania. Moreover, the Pennsylvania District Judge did not make any adverse “ultimate fact” determinations in declining to depart. U.S. v. Salemo, 81 F.3d 1453 (9th Cir. 1996).
9th Circuit defers to agency’s interpretation of its own regulations. (110) Relying on a U.S. Forest Service Handbook, Circuit Judges D.W. Nelson and Noonan and District Judge Tanner said, “[w]e give deference to the specific policy determinations of an administrative agency unless they are arbitrary, capricious, or manifestly contrary to statute.” AFB Freight System, Inc., v. N.L.R.B., 114 S.Ct. 835, 839 (1994). Moreover, the court said it “must give substantial deference to an agency’s interpretation of its own regulations.” Thomas Jefferson Univ. v. Shalala, 114 S.Ct. 2381, 2386 (1994). Thus, the court construed the regulation consistently with the Forest Service Handbook. U.S. v. Strong, 79 F.3d 925 (9th Cir. 1996).
9th Circuit says “rule of lenity” does not apply unless statute has a grievous ambiguity.” (110) The Ninth Circuit held that the rule of lenity in the sentencing context means that a court “will not interpret a federal criminal statute so as to increase the penalty it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” U.S. v. Bland, 961 F.2d 123, 128 (9th Cir.), cert. denied, 113 S.Ct. 170 (1992). The rule of lenity is “not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act, such that even after a court has seized everything from which aid can be derived it is still left with an ambiguous statute.” U.S. v. Crowell, 9 F.3d 1452, 1455 (9th Cir. 1993), cert. denied, 115 S.Ct. 138 (1994). “A statute is not ambiguous simply because it is possible to construe [it] narrowly . . . . Nor does a division of judicial authority necessarily trigger the rule.” U.S. v. LeCoe, 936 F.2d 398, 402 (9th Cir. 1991). The court found no ambiguity here. U.S. v. Butler, 74 F.3d 916 (9th Cir. 1996).
9th Circuit says when statute is unambiguous, judicial inquiry is complete except in rare cases. (110) A court may not ignore the plain words used by Congress unless the literal application of the statute would produce a result “demonstrably at odds with the intention of its drafters.” In this case, defendant asked the court to construe the “safety valve,” 18 U.S.C. §3553(f), to permit relief from the harsh results of applying the mandatory minimum sentence where the criminal history consisted of two minor offenses and the defendant paid his fines and successfully completed his probationary terms. The Ninth Circuit found no ambiguity in the statute, saying that even if the result was harsh, “only Congress can provide a remedy.” The “rule of lenity” serves only as an aid in resolving an ambiguity; “it is not to be used to beget one.” U.S. v. Valencia-Andrade, 72 F.3d 770 (9th Cir. 1995).
9th Circuit says unrelated sentence imposed after original sentence is a “prior sentence.” (110) After defendant’s federal sentence was imposed, he pleaded guilty in state court to unrelated crimes he committed earlier. While this case was on appeal, he was sentenced on the unrelated charges in state court. Thereafter, this case was remanded for resentencing, and on resentencing, the district court considered the unrelated state sentence as a “prior sentence” under the sentencing guidelines. On appeal, defendant argued that the date of his original sentence was a “watershed” date, so the later sentence should not have been counted as a “prior sentence” at resentencing. The Ninth Circuit found no merit in this argument, noting that the scope of the remand was not limited and that the district court did not consider post sentencing conduct but simply a post sentencing sentence. Since the underlying conduct preceded the original sentencing, it was proper to treat the state sentence as a “prior sentence” on resentencing. U.S. v. Klump, 57 F.3d 801 (9th Cir. 1995).
9th Circuit finds sentencing guidelines clarified ambiguity in statutory penalty. (110) Defendant argued that his 1985 conviction was not an aggravated felony within the meaning of 8 U.S.C. §§ 1101(a)(43) and 1326(b)(2) because he served less than 90 days for the offense. The 9th Circuit agreed that the plain language of § 1101(a)(43) could be read to define an aggravated felony as “any illicit trafficking in any controlled substance . . . for which the term of imprisonment . . . is at least five years.” Nevertheless this ambiguity was overcome by the commentary to guideline § 2L1.2 which uses nearly identical language but separates the list of crimes with semicolons rather than commas, “thus unambiguously limiting the five year term of imprisonment requirement to violent felonies.” The court concluded that since these guidelines were in effect at the time defendant entered the country illegally, “the penalties for reentering the country following a drug offense . . . were not ambiguous.” U.S. v. Arzate-Nunez, 18 F.3d 730 (9th Cir. 1994).
9th Circuit reiterates that guidelines do not apply to pre-November 1987 conduct. (110) The Ninth Circuit found no error in the district court’s refusal to sentence defendant pursuant to the Sentencing Guidelines where the conduct occurred between 1984 and 1986. The guidelines apply only to offenses committed on or after November 1, 1987. U.S. v. Molinaro, 11 F.3d 853 (9th Cir. 1993).
9th Circuit deletes language stating that rule of lenity does not apply to sentencing. (110) In its original opinion in this case, the 9th Circuit held that the rule of lenity “concerns itself with the definition of the crime and not with the level of punishment.” On November 9, 1993, the court amended its opinion to delete this language and to substitute instead the following sentence: “We have no occasion to employ the Rule of Lenity, however, because we find that Congress had expressed its ‘clear intent to impose more severe penalties for carrying more dangerous weapons.’“ U.S. v. Martinez, 7 F.3d 146 (9th Cir. 1993).
9th Circuit applies rules of statutory construction to the sentencing guidelines. (110) It is a basic rule of statutory construction, “that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless.” Moreover, the court avoids “any statutory interpretation that renders any section superfluous and does not give effect to all the words used by Congress.” The 9th Circuit held that these same principles apply to the sentencing guidelines. U.S. v. Powell, 6 F.3d 611 (9th Cir. 1993).
9th Circuit rejects rule of lenity in interpreting statute authorizing the guidelines. (110) The 9th Circuit rejected the defendant’s argument that in interpreting 28 U.S.C. §994(h)(2)(B), regarding career offenders, the court should apply the rule of lenity in favor of the defendant. The 9th Circuit pointed out that section 994 “is not a criminal statute in the sense that it proscribes certain conduct.” Rather it simply directs the Commission to “promulgate and distribute” the sentencing guidelines. Thus the court’s role is simply to decide whether the Sentencing Commission’s interpretation of section 994 is “sufficiently reasonable.” U.S. v. Rivera, 996 F.2d 993 (9th Cir. 1993).
9th Circuit says letter classifications in §3581 do not preempt statutory maximum penalties. (110) In 18 U.S.C. §3581(b), Congress set the maximum terms for criminal offenses that are graded by letter. Defendant argued that because bank robbery is a Class C felony, his guideline sentence of 14 years violated the 12-year maximum sentence for Class C felonies in section 3581. Relying on U.S. v. Schiffbauer, 956 F.2d 201, 202 (9th Cir.), the 9th Circuit held that the penalties in section 3581 “apply only to offenses that are assigned letter classifications in the statutes describing them.” They do not apply to statutes like the bank robbery statute which includes a maximum sentence within its terms. U.S. v. Rivera, 996 F.2d 993 (9th Cir. 1993).
9th Circuit says failure to warn of possible career offender sentence was ineffective assistance. (110) The 9th Circuit held that counsel’s failure to warn defendant, before he entered his guilty plea, of the risk he might be sentenced as a career offender, fell below the level of professional competence required by the Sixth Amendment. The case was remanded to the district court to permit the defendant to show “that there is a reasonable probability, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” The court said this was a “highly fact specific question, best considered in the first instance by the district court.” Risher v. U.S., 992 F.2d 982 (9th Cir. 1993).
9th Circuit holds that statutory sentence controls, if different from the guidelines. (110) Relying on the Commentary to section 5G1.1, the 9th Circuit held that when a statute requires a sentence different from that set by the guidelines, the statute controls. Thus, the district court properly treated defendant’s prior convictions as three separate convictions, even though they were imposed at the same sentencing hearing. Defendant’s sentence for being an armed career criminal under 18 U.S.C. section 924(e) was proper even if his prior convictions would have been treated differently under the sentencing guidelines. U.S. v. Lewis, 991 F.2d 524 (9th Cir. 1993).
9th Circuit refuses to look at legislative history where the guideline was clear on its face. (110) Where the language of a statute is clear and fails to compel an absurd result, courts should not examine legislative history. The 9th Circuit held that this rule applies to the sentencing guidelines as well. When a statute is clear and fails to compel an absurd result, the court “will look no further than the face of the statute.” Moreover, “an analysis of legislative history is proper only to solve, not to create an ambiguity.” U.S. v. Ford, 989 F.2d 347 (9th Cir. 1993).
9th Circuit says plain language of statute controls. (110) The Ninth Circuit noted that criminal statutes are construed narrowly. The court looks first to the statute’s language and then to the legislative history. The plain meaning of the statute controls absent clear legislative intent to the contrary. Thus in this case, the plain language of the statute compelled the conclusion that 18 U.S.C. §1961 (10’s offenses are incorporated into §1956(c)(7). U.S. v. Taylor, 984 F.2d 298 (9th Cir. 1993), superseded on other grounds as stated in U.S. v. Martin, 278 F.3d 988 (9th Cir. 2002).
9th Circuit says “letter grade” system of Crime Control Act of 1990 did not affect statutory penalties. (110) As part of the Crime Control Act of 1990, Congress enacted 18 U.S.C. 3559 which grades felonies from A through E and misdemeanors from A through C, and prescribes the maximum penalty for each grade of offense. In this case, the defendant argued that section 3559 had reduced the maximum sentence for robbery from 20 to 12 years. The 9th Circuit rejected the argument, noting that Congress has never implemented the letter grading system, and in any event, under section 3559(b), the maximum term specified in the statute describing the offense is controlling. U.S. v. Schiffbauer, 956 F.2d 201 (9th Cir. 1992).
9th Circuit refuses to apply “rule of lenity” in interpreting the term “sophisticated.” (110) The rule of lenity “applies both to the interpretations of the substantive ambit of criminal prohibitions and to the penalties they impose.” “The mere possibility of articulating a more narrow construction of a criminal statute, however, is not sufficient to trigger lenity.” In this case, the issue turned on whether the term “sophisticated” had a well-recognized meaning. Although the guidelines do not define the term, the 9th Circuit followed the 5th and 11th Circuits in holding that the term was sufficiently clear to allow the higher base offense level under guideline section 2M5.2 to be applied to defendants who ex-ported intermediate ballistic missile components. U.S. v. Helmy, 951 F.2d 988 (9th Cir. 1991).
9th Circuit holds that “rule of lenity” applies when interpreting the guidelines. (110) The 9th Circuit held that the “rule of lenity requires that we infer the rationale most favorable to the appellants and construe the guidelines accordingly.” Accordingly, the defendant’s sentence was reversed. U.S. v. Martinez, 946 F.2d 100 (9th Cir. 1991).
9th Circuit finds that 40-year “old law” sentence is shorter than 30-year guideline sentence. (110) The district court had sentenced defendant to a 40 year term in case the guidelines were found unconstitutional. Defendant argued that the 40 year term, after good time credits, was shorter than the 30 year term imposed under the guidelines. He argued that his guidelines sentence should bear some relationship to the alternative sentence. The 9th Circuit rejected the argument, finding no requirement that alternative sentences be proportional. The court noted that as a matter of fact the defendant’s 30 year guidelines sentence would be only 5 years longer than the 40 year alternative sentence. U.S. v. O’Neal, 937 F.2d 1369 (9th Cir. 1991).
9th Circuit rules that “weapon” clause was merely a sentence enhancement and need not be alleged in indictment. (110) Petitioner argued that the district court erred in sentencing him for using a “deadly or dangerous weapon” while assaulting a federal officer in violation of 18 U.S.C. § 111, because the indictment failed to allege the elements of the “weapon” clause. The 9th Circuit rejected the argument, holding that the language and structure of § 111 suggests that the “deadly or dangerous weapon” clause is strictly a sentencing provision. Thus it was not required to be alleged in the indictment, nor proven beyond a reasonable doubt. The court also upheld the constitutionality of this sentencing provision. U.S. v. Young, 936 F.2d 1050 (9th Cir. 1991).
9th Circuit holds that defendant’s release from custody did not render remand moot. (110) Defendant had served the full amount of his prison term before his case was remanded for resentencing. In footnote 8 of its amended opinion, the 9th Circuit held that this did not render the remand moot because his sentence “may still have collateral consequences.” See U.S. v. Drabeck, 905 F.2d 1304 (9th Cir. 1990), rehearing en banc granted, 915 F.2d 1404 (9th Cir. 1990); cf. U.S. v. Kincaid, 898 F.2d 110 (9th Cir. 1990). “For instance . . . if [defendant] is convicted of a future crime, 3 points will automatically be added to his criminal history category at that point because the district court in this case sentenced him to a prison term in excess of 13 months.” U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990).
9th Circuit holds that non-guideline sentence imposed before Mistretta may be collaterally attacked. (110) After the 9th Circuit held the guidelines unconstitutional, the defendant was sentenced to five years in custody. If the guidelines had been applied his maximum sentence would have been 21 months. After the Supreme Court upheld the guidelines in Mistretta v. U.S., 488 U.S. 361 (1989), the defendant moved for reconsideration of his sentence under Fed. R. Crim. P. 35(b). The 9th Circuit agreed with the district court that the current version of Rule 35(b) did not permit reexamination of the defendant’s sentence. Nevertheless, the court held that the defendant could have petitioned the court to correct the sentence under 28 U.S.C. § 2255. The case was remanded to enable the district court to evaluate the motion as a petition under 28 U.S.C. § 2255. U.S. v. Eatinger, 902 F.2d 1383 (9th Cir. 1990).
9th Circuit holds period during which district court may modify or revoke judgment is tolled while defendant is a fugitive. (110) During his narcotics trial defendant escaped from custody, but trial continued, resulting in conviction. The government then indicted defendant for his failure to appear. Four years later the government moved to dismiss both the new indictment and the narcotics conviction; the motions were granted. Several months later the government moved to reinstate the conviction, stating that only the dismissal of the failure to appear indictment had been intended. The conviction was reinstated. Four years later the defendant was recaptured in Mexico, returned to the United States, and sentenced to twenty years. Defendant claimed that the reinstatement was untimely. The 9th Circuit held that the district court has jurisdiction to modify or revoke a judgment within the time allowed for appeal — in this case 30 days. Treating the motion for reinstatement as a motion for reconsideration, the court held that the time allowed for appeal was tolled for the period defendant was a fugitive. Judge O’Scannlain concurred specially, on the grounds that the U.S. Attorney could not dismiss a charge after a conviction has resulted. U.S. v. Villapudua-Perada, 896 F.2d 1154 (9th Cir. 1990).
9th Circuit finds that augmentation of Arizona contempt sentence after pronouncement violated state expectation of finality. (110) Under federal law, a judge may “ordinarily increase the sentence, provided the defendant has not yet begun serving that sentence.” However, Arizona superior courts have no authority to modify a lawful sentence once orally pronounced. Thus, the defendant here had a legitimate expectation of finality in his Arizona contempt sentence, and the Superior Court’s subsequent amendment of his sentence so that no “two-for-one” credit could be given, violated the double jeopardy clause. Stone v. Godbehere, 894 F.2d 1131 (9th Cir. 1990).
9th Circuit rules that judge may not enhance sentence because of defendant’s failure to implicate others. (110) Defendants argued that the district court improperly enhanced their sentences because of their non-cooperation with the government. The 9th Circuit agreed that a judge may not enhance a defendant’s sentence because of his failure to implicate others, but ruled that in this case the judge “did not indicate that he was punishing . . for non-cooperation.” The judge did comment that defendant’s “priorities were misplaced and that if he wished assistance he should consider being candid with the authorities.” But the court of appeals found “nothing improper about these comments.” U.S. v. Smith, 893 F.2d 1573 (9th Cir. 1990).
9th Circuit rules that failure to challenge accuracy of presentence report before sentencing waives court’s jurisdiction. (110) Defendant failed to challenge the accuracy of a presentence report when the district court ruled on his rule 32 motion. In a per curiam decision, the 9th Circuit ruled that because defendant did not raise the issue below and offered no reason for failing to do so, the district court’s denial of the Rule 32 motion was not an abuse of discretion. The court added that a sentence that falls within the statutory maximum will not be reviewed absent constitutional concerns. U.S. v. Catabran, 884 F.2d 1288 (9th Cir. 1989).
10th Circuit applies guidelines to Mexican crime. (110) Defendant, a U.S. citizen, was convicted in Mexico and transferred to the United States pursuant to the Prisoner Transfer Treaty. In determining defendant’s time in prison, the 10th Circuit held that the Parole Commission must apply the sentencing guidelines, and that application was subject to normal appellate review. Credit for time served in Mexico, however, is determined in a different manner and must be the subject of a habeas corpus challenge rather than a direct appeal from the Parole Commission. The court rejected the Parole Commission’s argument that service credits are to be deducted only from the foreign sentence. Trevino-Casares v. U.S. Parole Commission, 992 F.2d 1068 (10th Cir. 1993).
10th Circuit denies discovery of unpublished data considered by Sentencing Commission. (110) Defendants moved for leave to discover data used by the Sentencing Commission in formulating the guidelines, claiming that discovery was necessary to show that their circumstances fell outside the mathematical or statistical model used by the Commission in formulating base offense levels. The 10th Circuit affirmed the denial of the motion, finding that discovery of Com-mission files or deliberations was prohibited by 18 U.S.C. section 3553(b). This provides that in determining whether a circumstance was adequately taken into consideration by the Commission in formulating the guidelines, the court shall consider only the guidelines, policy statements and official commentary of the Commission. Discovery of the guideline formulation process would be an intrusion into a quasi-legislative rulemaking function delegated by Congress solely to the Commission. Any conclusion drawn from such discovery would be an usurpation of the Commission’s power. U.S. v. Leroy, 984 F.2d 1095 (10th Cir. 1993).
10th Circuit holds that zero months imprisonment may be imposed where statute prohibits a term of probation. (110) Defendant pled guilty to misapplying funds of a FDIC-insured bank, in violation of 18 U.S.C. section 656. This was a Class B felony, and under section 3561(a)(1), Class B felons may not be sentenced to a term of probation. Defendant had a guideline range of zero to six months. The district court, believing that section 3561(a)(1) required a term of imprisonment, sentenced defendant to 30 days in a halfway house and a three year term of supervised release. The 10th Circuit remanded for resentencing, since the district court erroneously believed that a term of imprisonment was required. A sentence of zero months imprisonment is not literally a sentence of probation. Section 656, under which defendant was convicted, gives the court the option of imposing a fine or imprisonment or both. If section 3561(a)(1) were read as requiring a term of imprisonment, it would conflict with section 656, which clearly grants the option of no imprisonment. In such a case, the more specific statutory provision is controlling. U.S. v. Elliott, 971 F.2d 620 (10th Cir. 1992).
10th Circuit rejects vindictive sentence claim since total sentence after appeal was shorter. (110) Defendant was originally sentenced to 20 years on three counts, 10 years concurrent on another count, a five-year concurrent sentence on another count, and a five-year sentence on an additional count, to run consecutively. He successfully appealed and was resentenced. On remand he was sentenced to 10 years on one count, plus two five-year consecutive sentences. He complained because the five year term of imprisonment which originally was to run concurrently to his other sentences was changed after remand to run consecutively. The 10th Circuit rejected the claim of vindictive resentencing since after remand, defendant actually received a total sentence which was lighter. His original sentence totaled 25 years imprisonment, while on remand, he was sentenced to a total of 20 years. U.S. v. Sullivan, 967 F.2d 370 (10th Cir. 1992).
10th Circuit refuses to review alternate sentence under 1988 guidelines since defendant was properly sentenced under 1990 guidelines. (110) The 10th Circuit refused to review defendant’s claim that the court erred in imposing a 12-year alternate sentence under the 1988 guidelines. Since the district court properly sentenced defendant under the 1990 guidelines, the propriety of the alternate sentence under the 1988 guidelines was not necessary. The application of the 1990 guidelines did not violate the ex post facto clause. Defendant pled guilty to a conspiracy commencing at least as early as 1984 and continuing until the return of the indictment on January 10, 1991. U.S. v. Burger, 964 F.2d 1065 (10th Cir. 1992).
10th Circuit finds no error in court’s comment that defendant’s conviction would not necessarily result in incarceration. (110) Defendant was convicted of giving false statements to the FBI and to the grand jury. In response to defense counsel’s statement during closing argument that defendant should not be sent to prison for his misstatements, the district court noted that defendant’s conviction would not necessarily result in incarceration. Defendant contended that this deprived him of a fair trial. The 10th Circuit found no error. This discussion concerned only Count I, the charge of making false statements to the FBI. Under guideline § 2F1.1, the base offense level is 6. With a criminal history of I, and assuming no other adjustments, this resulted in a guideline range of 0 to 6 months. Therefore, with respect to this count alone, defendant would not necessarily face incarceration, and the court did not err in correcting defense counsel’s statement. Moreover, it was improper for defense counsel to inform the jury of the defendant’s possible punishment. U.S. v. Jones, 933 F.2d 807 (10th Cir. 1991).
10th Circuit holds that defendant has no legitimate expectation of finality in an illegal sentence. (110) The district court originally held the guidelines unconstitutional, and imposed the maximum five year sentence. Defendant appealed and obtained a remand after Mistretta was decided. The district court then departed upward from the guidelines and imposed the same five year sentence. The defendant argued that the new sentence violated double jeopardy because a guideline sentence is harsher because of provisions prohibiting or decreasing such variables as parole, good time, and meritorious work performance credit. The 10th Circuit assumed that the guideline sentence was more severe, but rejected defendant’s double jeopardy argument. The court held that a defendant “can acquire no legitimate expectation of finality in an illegal sentence because such a sentence remains subject to modification.” The court also noted that it was the defendant himself who initiated the appeal of the original pre-guidelines sentence. U.S. v. Jackson, 903 F.2d 1313 (10th Cir. 1990), reheard en banc, 921 F.2d 985 (10th Cir. 1990).
10th Circuit holds defendant need not be advised of guidelines, even under prior version of Fed. R. Crim. P. 11(c)(1). (110) The 10th Circuit rejected defendant’s argument that the district court violated Fed. R. Crim. P. 11(c)(1) by failing to advise him that the sentencing guidelines would determine the range of his sentence, and that the range would be related to the quantity of marijuana involved in his offense. At the time defendant was sentenced, Rule 11(c)(1) required the sentencing court to inform a defendant of any mandatory minimum penalty and the maximum possible penalty provided by law. It did not require the court to discuss the guidelines. The court’s failure to inform defendant that the guidelines would apply was not the “functional equivalent” of a failure to inform him of a statutory minimum sentence. U.S. v. Gomez-Cuevas, 917 F.2d 1521 (10th Cir. 1990).
10th Circuit holds that guidelines must be interpreted as if they were a statute. (110) The Tenth Circuit held that “the Sentencing Guidelines must be interpreted as if they were a statute or a court rule.” Thus the court will “follow the clear, unambiguous language if there is no manifestation of contrary intent.” The “Sentencing Guidelines are an integrated, comprehensive, and systematic scheme to replace the former system of federal sentencing.” U.S. v. Goldbaum, 879 F.2d 811 (10th Cir. 1989).
11th Circuit finds no requirement to use lighter sentence from different statute. (110) Defendants were convicted of assisting in the unauthorized decryption of satellite cable programming in violation of 47 U.S.C. § 605(e)(4). They were sentenced under section 2B5.3, the guideline applicable to violations of 47 U.S.C. § 605. Defendants argued that because their conduct could have been prosecuted under 18 U.S.C. § 2512, a part of the Wiretap Act that overlaps § 605(e)(4), the district court should have imposed the lighter sentence they would have received under that guideline. The 11th Circuit rejected this contention. When an act violates more than one criminal statute, the government may prosecute under either so long as it does not discriminate against any class of defendants. In exercising that discretion, the prosecutor may consider the penalties available upon conviction. The guidelines do not limit this prosecutorial discretion. U.S. v. Howard, 13 F.3d 1500 (11th Cir. 1994).
D.C. Circuit holds documents of advisory committee to Sentencing Commission are not public records. (110) In 1992, the Sentencing Commission established an Advisory Working Group in Environmental Sanctions to develop and recommend proposed guidelines to the Commission. After the Advisory Group decided to conduct its meetings in private, the Washington Legal Foundation filed suit seeking access to the internal documents and memoranda the Advisory Group developed or relied upon in formulating its recommendations. The D.C. Circuit held that the Advisory Group’s docu-ments were not public records subject to the common law right of access. Therefore, the court was not required to balance the government’s interest in keeping the documents secret against the public’s interest in disclosure. A “public record” is a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance. The documents here were not created or kept for this purpose. Although the Advisory Group functioned in an official governmental capacity, it had a very limited mission. The Group’s final report is available to the public, as are the public comments submitted to it. Washington Legal Foundation v. U.S. Sentencing Commission, 89 F.3d 897 (D.C. Cir. 1996).
D.C. Circuit rules suspended sentences are not permitted under the guidelines. (110) Defendant contended that the six-month suspended sentence imposed upon her was not authorized by law. The D.C. Circuit agreed, ruling that the sentencing guidelines no longer permit suspended sentences. Accordingly, defendant’s suspended sentence was vacated. U.S. v. Mastropierro, 931 F.2d 905 (D.C. Cir. 1991).
Articles discuss need for changes in criminal justice policy and sentencing. (110) A series of interesting articles in the Federal Sentencing Reporter suggest changes that might be made by Congress after the 2008 elections. In separate articles, Brian W. Walsh, Robert C. Scott and Erik Luna discuss overcriminalization, crime prevention and drugs. Claire McCaskill, Isabel Gomez, and Jonathan Wroblewski describe re-entry programs. Molly M. Gill talks about clemency reform. Michael Wolff suggests way to cut recidivism and Roger K Warren argues for evidence-based sentencing. Reform of the Justice Department is covered by former prosecutors Samuel W. Buell, Laurie Robinson, David DeBold, and Kyle C. Barry. Reform of the grand jury system is advocated by John Wesley Hall. The post-Booker "advisory" sentencing guidelines are critiqued by defense attorney James E. Felman, prosecutor John C. Richter, professor Kate Stith, former prosecutor William Otis, professors Michael O'Hear and Paul Hofer, and attorney Dan Small. Legislative proposals are briefly discussed by Senator Patrick Leahy and Representative Lamar Smith. Defense attorney Amy Baron-Evans urges changes to the Sex Offender Registration and Notification Act. Frank O. Bowman, American Criminal Justice Policy in a "Change" Election, 20 FED. SENT. REP. 289 (June, 2008).
Commission modifies guideline allowing Bureau of Prisons to reduce sentences of certain prisoners. (110) Guideline § 1B1.13 implements 28 U.S.C. § 994(t) by providing that, upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment if, after considering the factors in 18 U.S.C. § 3553(a), the court determines that — (1) (A) extraordinary and compelling reasons warrant the reduction; or (B) the defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned; (2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and (3) the reduction is consistent with this policy statement. On May 1, 2007, the Commission modified this guideline to provide four examples of circumstances that would constitute "extraordinary and compelling reasons" for purposes of 18 U.S.C. § 3582(c)(1)(A). Amendment 698, effective November 1, 2007.
Commission implements statute allowing reduction for 70-year-old prisoners who have served 30 years. (110) The Commission added a new policy statement at § 1B1.13, permitting a court, on motion of the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A), to reduce the term of imprisonment of any prisoner who is at least 70 years old who has served at least 30 years in prison. Amendment 1, effective November 1, 2006.
Articles set out Constitution Project’s proposed reform of the federal Sentencing Guidelines. (110) A series of articles in the Federal Sentencing Reporter summarize the Constitution Project Sentencing Initiative, which is a diverse group of sentencing and criminal justice professionals chaired by former Attorney General Edwin Meese and former Deputy Attorney General Philip Heymann. The group has produced a set of “Principles for the Design and Reform of Sentencing Systems,” and two reports, which are available at www.constitutionproject.org. The reports make recommendations for reforming the Sentencing Guidelines if Congress decides to enact new legislation in response to the Supreme Court’s decision in U.S. v. Booker, 243 U.S. 220 (2005), which made the guidelines advisory. A Working Group has drafted model guidelines that are individually authored by Frank Bowman, Michael O’Hear, Mary Price, Nora Demleitner, Steve Chanenson and Beverly Dyer. These model guidelines are set out in the Federal Sentencing Reporter. Frank O. Bowman, III, ‘Tis a Gift to Be Simple: A Model Reform of the Federal Sentencing Guidelines, 18 FED. SENT. REP. 301 (2006).
Article says Booker shows need for sentencing reform. (110) Professor Frank Bowman argues that the opinions in U.S. v. Booker, 543 U.S. 220 (2005) and U.S. v. Blakely, 124 S. Ct. 2531 (2004) show that the guidelines have failed due to structural flaws that cannot be mended without fundamental reform. He suggests that, under the guidelines, power has consolidated in the hands of prosecutors at the case level, resulting in an increasing disconnect between the sentences the rules ostensibly require and the sentences actually imposed. He contends that these problems are integral to the existing guidelines system and will not be alleviated by the post-Booker system of “advisory” guidelines. Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 COLUMBIA L. REV. 1315 (2005).
Articles examine impact of Booker on sentencing. (110) A series of articles in the Federal Sentencing Reporter analyze the impact of the Supreme Court’s decisions in U.S. v. Booker, 543 U.S. 220 (2005) and U.S. v. Blakely, 124 S. Ct. 2531 (2004). Professor Douglas Berman says Booker presents a unique opportunity to “focus on first principles” while still drawing on the collected wisdom of nearly three decades of sentencing reform. Kim Hunt and Michael Connelly, Executive Directors of the District of Columbia and Wisconsin Sentencing Commissions, respectively, point out that nine states and the District of Columbia had advisory guidelines before Booker, and they argue that advisory guidelines can be successful at the federal level. Oregon Judge Michael Marcus complains that the major players in the post-Booker debate “share one flaw: They all refuse to embrace ‘public safety’ (or ‘crime control’) goals as a primary and coherent purpose of sentencing.” Professor Michael O’Hear argues that if the guidelines are changed, the present reliance on numerous enhancing “offense charac-teristics should rejected in favor of broad factors such as “dangerousness and mens rea.” Professor Stephanos Bibas explores whether the Booker/Blakely Sixth Amendment rule is procedural or substantive. Defense attorney James Felman proposes changes to Rules 16 and 32, Fed. R. Crim. P. to require full reciprocal discovery of all information the parties intend to rely on at sentencing. Attorney Phillip C. Zane warns that applying Booker’s Sixth Amendment holding in a mandatory guidelines system would undermine punishing corporations by fines for serious financial crimes. The issue also includes the Executive Summary of the Sentencing Commission’s fifteen-year assessment of the Federal Sentencing Guidelines, and the Commission’s preliminary findings regarding the impact of Blakely on sentencing practices. Douglas Berman, The Booker Aftershock, 17 FED. SENT. REP. 231 (April, 2005).
Guidebook to Federal Prisons. (110) Sausalito, California defense attorney Alan Ellis and his colleagues have published their revised guidebook for federal prisons for 2002. The 400-page book contains descriptions of facilities and programs available at each of the 93 federal prisons. It provides updates on most areas of prison life, and includes information on securing a favorable prison placement, practice tips for defense attorneys and a chapter on “How To Do Time.” Alan Ellis, J. Michael Henderson and Samuel A Shummon, FEDERAL PRISON GUIDEBOOK (2002).
Article highlights risk of disparity from differences in defense counsel under the guidelines. (110) Professor Douglas Berman argues that differences in defense counsel can have a significant impact on sentencing outcomes under the guidelines. He suggests that it is difficult for defense counsel to understand the complex guideline system and fears that “the guidelines have transformed federal sentencing from a system, once rightly condemned as lawless, into a system now burdened with too much law.” He encourages the Commission to return to its “long-stalled simplification project,” and to “look for ways to further structure the discretion of actors in the guidelines system to ensure that the most critical determinates of the exercise of sentencing discretion are the pertinent features of the defendant’s case, rather than the particular efforts of the defendant’s counsel.” Douglas A. Berman, From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel under Guidelines’ Sentencing, 87 IOWA L. REV. 435 (Jan. 2002).
Articles discuss pardon power and sentencing policy. (110) Fourteen articles and 17 appendix documents comprehensively discuss the pardon power and its relationship to sentencing policy, with particular focus on President Clinton’s controversial pardons at the end of his term as President. Editors are Professors Dan Freed and Steven Chanenson, with Guest Editor, former Pardon Attorney Margaret Love. The articles discuss the history of the pardon power, case studies of particular pardons, and the relationship of the guidelines to the pardon process. The Rules governing the pardon process are included, as well as other instructive documents and commentary by experts. Daniel J. Freed and Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 FED. SENT. RPTR. 119 (Nov/Dec 2000, Jan/Feb 2001).
Article discusses guidelines issues that are particularly useful for defense attorneys. (110) Three defense attorneys focus on 13 guidelines issues that may be helpful in reducing the defendant’s sentence. For example, they note that a defendant who confesses upon arrest may be eligible for the third level reduction for acceptance of responsibility even if he later recants, and defendants may also be eligible for a downward departure for diminished capacity or “sentencing entrapment.” They also discuss defendants’ eligibility for various Bureau of Prisons programs, noting that eligibility can be affected by decisions made during plea bargaining. Finally, they cover recent habeas cases. Alan Ellis, James H. Feldman, Jr., and Karen Landau, Baker’s Dozen, Part II, Advice for the Advocate, ABA CRIMINAL JUSTICE 56 (Spring, 2001).
Commission moves Introduction to a historical note and creates new guideline to explain its authority. (110) The Commission created a new guideline, § 1A1.1 (Authority), that clearly sets forth the Commission’s authority to promulgate guidelines, policy statements and commentary. The amendment also moved in toto Chapter One, Part A, as in effect November 1, 1987, to the commentary as a historical note. Relevant portions on the introduction regarding departures were incorporated into the background commentary to section 5K2.0. Amendment, 651.
Advice to the new Commissioners. (110) The Federal Sentencing Reporter devotes an entire issue to advice for the new Sentencing Commissioners. Second Circuit Judge Jon Newman urges a rethinking of “fundamental guideline issues.” Ninth Circuit Judge Alex Kozinski argues that the Commission should “overrule” Koon because departures are becoming the norm rather than the exception. Professor Richard Frase compares state and federal guideline systems. Professor Michael Tonry urges reconsidering “the guidelines’ worst features – the excessive detail and rigidity, the 43-level grid, the relevant conduct provisions [and] the over-emphasis on imprisonment.” Professors Ronald Wright and Marc Miller argue that “two key guidelines concepts – the assertion that the guidelines ‘mirrored’ past practice and encompass the ‘heartland’ of offenses – are both false.” Professor Nora Demleitner suggests looking to other countries for novel perspectives on sentencing. Professor Aaron Rappaport complains that the Commission has “consistently avoided articulating its vision concerning the purposes of punishment.” Former Commissioner Michael Goldsmith cautions that “the Commission’s ability to implement reforms is constrained by numerous practical and political realities.” Professor Frank Bowman suggests that the Commission should work as a team, invigorate the staff and transform itself into a politically effective institution. Professor Candace McCoy seeks a revamped research agenda. Federal Defender Daniel Stiller focuses on curing the “arbitrariness” of the substantial assistance guideline. Federal Defender Gerald Smith argues for an “in/out guideline” to permit a judge to decide if probation would be appropriate before turning to the sentencing grid. Federal Defender Jon Sands says the role of rehabilitation should be revisited. Kyle O’Dowd, of Families Against Mandatory Minimums, urges reassessment of quantity-based drug sentences. Finally, former Probation Officer Francesca Bowman says the “safety-valve” should be made retroactive. Douglas Berman, Editor, Advice to the New Commissioners, 12 FED. SENT. RPTR. 63 (Sept./Oct. 1999).
Article tells defense lawyers how to secure a favorable federal prison for the defendant. (110) Defense attorneys Alan Ellis and Samuel Shummon, co-authors of the FEDERAL PRISON GUIDEBOOK, explain the policies of the Federal Bureau of Prisons for designating and placing prisoners after conviction. They describe the process of “scoring” the defendant to determine the appropriate security level, and emphasize the advantages of voluntary self-surrender to the designated institution. Inmates who are found to have “public safety factors” (PSF) will be designated to more secure institutions. The authors also emphasize the importance of ensuring that inaccurate information in the presentence report is corrected because “virtually all correctional designations and other correctional decisions” are based on it. The authors suggest it is not a good idea to downplay a defendant’s substance abuse problems because statutory law now provides for reduction of a sentence up to one year for a non-violent inmate who has successfully completed a residential drug treatment program in a BOP facility. 18 U.S.C. § 3621(e)(2). The inmate, however, will generally not qualify for the program unless the presentence report documents a history of substance or alcohol dependency or abuse. Alan Ellis, Samuel A. Shummon, and Sharon Han, Federal Prison Designation and Placement: An Update, A.B.A. CRIMINAL JUSTICE (Summer 2000) 46-50.
Articles discuss severity of sentencing guidelines. (110) A series of articles in the Federal Sentencing Reporter discuss the difficult question of establishing the proper level of severity for the sentencing guidelines. Commission staffers Paul Hofer and Courtney Semisch examine and document changes in federal sentence severity between 1980 and 1998. DOJ Antitrust Attorney Cindy Alexander and Professors Jennifer H. Arlen and Mark A. Cohen chart the effect of the sentencing guidelines on the penalties for public corporations. Professors Peter H. Rossi and Richard A. Berk summarize the findings in their recent study of the public’s views of “just punishment,” which was conducted under the auspices of the Sentencing Commission. In response, Professors Dierdre Golash and James P. Lynch question whether public opinion should guide sentencing policy, while acknowledging that public opinion data can be useful. Probation Administrator Barbara Meierhoefer notes that the severity of federal sentences is “driven by drugs,” and questions whether the severity of drug sentences is “a result of purpose or chance.” Finally, Professor John Kramer, the former Staff Director of the Sentencing Commission, urges the Commission to study state guidelines systems, such as Pennsylvania, and to re-examine each of the guidelines in Chapter 2. Aaron Rappaport, (Ed.) The State of Severity, 12 FED. SENT. RPTR. 3 (July/August 1999).
Book describes federal prison facilities. (110) Defense attorneys Alan Ellis and Samuel Schummon have published a useful guidebook describing every prison facility in the federal prison system. The book gives the rated capacity and population, vocational and apprenticeship programs and policies regarding visiting, telephone and law library usage. The book also discusses counseling services, health services, education, housing, religious services and commissary privileges. Alan Ellis and Samuel Schummon, Federal Prison Guidebook (1998).
Article rejects critics of guidelines, but says drug sentences are too long. (110) Professor Frank O. Bowman offers a rebuttal to critics who say the sentencing guidelines are a failure, but he agrees there are problems with the “sheer length” of narcotics sentences. He argues that the “lurk-ing danger to the entire Guidelines enterprise is that the process of creating guidelines has moved discretion away, not merely from judges in particular, but from the entire class of persons who work in the criminal justice system daily and thus deal with defendants face-to-face as human beings.” The guidelines system “has shifted the locus of sentencing power away from all of the courthouse actors to the Sentencing Commission in Washington which makes the rules, to the courts of appeals which interprets the rules in splendid judicial isolation, and to the Justice Department’s national policy apparatus (as distinct from United States Attorney’s offices) which lobbies both the Commission and Congress, and to Congress which exercises veto power over the entire rule making system.” Frank O. Bowman, III, The Quality of Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1966 WISC. L. REV. 679 (1996).
Book suggests ways to improve federal sentencing guidelines. (110) Professor Michael Tonry, in a chapter on the federal sentencing guidelines, argues that the guidelines are a “policy failure.” He describes how the Commission went about developing the guidelines, and “why the commission failed.” He then suggests that the guidelines are “salvageable” without a statutory change. He suggests seven changes: (1) eliminate the prosecutor’s sole authority to move for substantial assistance departures, (2) follow the statutory presumption against incarceration for first offenders, (3) treat probation as a separate option, not as zero months imprisonment, (4) eliminate “relevant conduct” and “real offense” sentencing, (5) provide for intermediate punishments like house arrest, intensive probation, and community service, (6) don’t make guideline sentences match statutory mandatory minimums, and (7) provide fewer levels in the sentencing table. Michael Tonry, Sentencing Matters, (Oxford Univ. Press, 1996).
Article suggests Commission could interpret “25 percent” rule to make guidelines more flexible. (110) The Sentencing Reform Act of 1984 required that “[i]f a sentencing range specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25% or six months.” 28 U.S.C. § 994(b)(2). In its Revised Draft guidelines in January, 1987, the original Commission interpreted the 25% Rule as applying only to the Sentencing Table, and therefore allowed judges to choose among a range of offense levels for certain sentencing factors, (e.g. 1-5 levels for the use of a weapon). However the Department of Justice persuaded the Commission that the 25% Rule applies to all steps in the sentencing process. Thus, the guidelines were re-written to limit the flexibility allowed for each factor to two levels or less. Recently, however, the Committee on Criminal Law of the Judicial Conference submitted to the Commission a memorandum from the General Counsel’s office of the Administrative Office of the Courts urging reconsideration of the 25% Rule. Catherine Goodwin, Assistant General Counsel, summarizes the debate, and includes the Administrative Office’s memorandum in her article. Catherine M. Goodwin, Background of the AO Memorandum on the 25% Rule, 8 FED. SENT. RPTR. 109 (1995).
District Judge says 11(e)(1)(c) plea agreement for specific sentence is not governed by guide-lines. (110) New York District Judge Weinstein ruled that when the parties enter into an agreement for a specific sentence under Rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure, the case is not governed by the sentencing guidelines. Thus, if the court accepts the plea agreement, it may sentence outside the guideline range without identifying reasons for departure. In the present case, defendant was one of twelve defendants who pled guilty pursuant to a “global” plea agreement that called for a specific sentence of 188 months. Although the guidelines would have required a thirty year sentence, the judge accepted the plea agreement, and sentenced defendant to 188 months. U.S. v. Aguilar, 884 F.Supp. 88 (EDNY 1995).
New York District Court says defendant gets benefit of amended guidelines where original sentence is “vacated.” (110) The court of appeals found it unclear whether the district court understood it could depart for extraordinary family circumstances. Instead of remanding for clarification, however, the court of appeals “vacated” the judgment. On remand, the district judge noted that this may have exceeded the limited scope of review in 18 U.S.C. § 3742(f), and was inconsistent with the court’s treatment of similar cases. Nevertheless, the court felt obliged to resentence the defendant “de novo,” giving her the benefit of the 3-level reduction for acceptance of responsibility even though that amendment is not retroactive. The defendant thus obtained a lower sentence on remand even though the district court reaffirmed its refusal to depart for extraordinary family circumstances. U.S. v. Ekhator, 853 F.Supp. 630 (E.D.N.Y. 1994).
Symposium addresses “Sentencing Guidelines and Guidance.” (110) Apart from the federal system, many jurisdictions now have adopted sentencing guidelines or some other method to provide guidance to sentencers. In a symposium issue, several authors address topics of significance in providing sentencing guidance. Julian V. Roberts examines the role of criminal record under the federal sentencing guidelines. Other topics addressed include the purposes of punishment reflected by the Minnesota sentencing guidelines, reasons to mitigate a defendant’s sentence, alternatives to incarceration, conditional sentences, and the guideline amendment process. Authors include Andrew J. Ashworth, Richard S. Frase, Dirk Van Syl Smit, Andrew Von Hirsch, Martin Wasik, and Ronald F. Wright. Symposium, Sentencing Guidelines and Guidance, 13 CRIMINAL JUSTICE ETHICS 3-66 (Winter/Spring 1994).
Maryland District Court rules that defendant is not entitled to a special verdict as to quantity of narcotics or extent of role in conspiracy in order to determine base offense level under guidelines. (110) Defendant asked the court to submit special interrogatories to the jury as to whether her role in the conspiracy continued beyond the effective date of the guidelines and the quantity of drugs involved. The district judge ruled the special verdicts are not provided for in Fed. R. Crim. P. 31 unless criminal forfeiture is involved. Furthermore, a defendant’s Sixth Amendment right to a jury trial only entitles her to a jury determination of issues pertaining to guilt or innocence, not punishment. To give the jury the power to determine issues pertaining to sentencing would entirely eliminate the judicial sentencing function, which has already been largely curtailed by the guidelines. U.S. v. Sheffer, 700 F.Supp. 292 (D.Md. 1988).
Articles view guidelines as a criminal code. (110) A series of articles assess the extent to which the guidelines have displaced the federal criminal code by largely rendering the offense of conviction irrelevant to sentence. The articles address whether such a task is more properly the province of a democratically elected institution, whether the guidelines are preferable to the Model Penal Code’s system of guided discretion, the extent to which the guidelines are the product of the federal criminal code reform effort of the 1970s, the denigration of mens rea concepts under the guidelines, the departure of the guidelines from the federal criminal code’s implicit assumption that prosecutors and judges would exercise discretion to differentiate among offenders of differing culpability, and recent legislation permitting the avoidance of mandatory minimums in some cases. Symposium, Thinking about Guidelines as a Criminal Code, 7 FED. SENT. RPTR. 112-32 (1994).
Articles discuss issues raised by 1993 annual report. (110) A pair of articles discuss issues raised by the Commission’s 1993 annual report on the guidelines. Avern Cohn advocates that the availability of “judge identifiers” in sentencing data would illuminate the operation of the guidelines and permit an easier assessment of the extent to which disparity continues under the guidelines regime. Douglas Berman notes that the Commission has now acknowledged its role as a “Guidelines Supreme Court” to resolve circuit splits. He suggests that the Commission, like a court, should issue written opinions when resolving such conflicts. The 1993 Annual Report, 7 FED. SENT. RPTR. 137-50 (1994).
Article recommends guidelines reforms. (110) Marc Miller canvasses the objections that have been raised to the sentencing guidelines. Noting the recent addition of new commissioners, he advocates that the time is ripe for major reforms to the guidelines system. Reform is needed to deal with the problems of inflexibility, complexity, prosecutorial control of sentences, sentence severity, and the role of relevant conduct. In addition, the Commission should become a more useful clearinghouse for sentencing information. A period of study followed by significant proposed changes would be preferable to immediate but modest tinkering with the system. Marc Miller, Rehabilitating the Federal Sentencing Guidelines, 78 JUDICATURE 180-88 (1995).
Article criticizes transformation of probation officer’s role. (110) A student author argues that the guidelines have radically changed the role of the probation officer in federal sentencing. The rehabilitative model of criminal justice gave rise to the probation movement, and the probation officer under that system was responsible for assessing the defendant’s potential for rehabilitation. The guidelines reject the rehabilitative model, however, and the probation officer now primarily assesses the characteristics of the particular offense. As a result, probation officers occupy a “strained position.” Note, The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows, 104 YALE L.J. 933-66 (1995).
Articles examine circuits’ approaches to guidelines. (110) A series of articles survey developments in guidelines law within the different circuit courts. The articles reveal the circuits’ varying receptivity to departures, in particular those premised on the claim that defendant’s conduct was “aberrant.” They also note differing approaches to the use of dismissed counts and the use of the guidelines’ amendment on LSD carrier media to construe mandatory minimum statutes. Similarities and Inconsistencies Among the Circuits, 1994-1995, 7 FED. SENT. RPTR. 224-66 (1995).
Articles discuss role of criminal law defenses at sentencing. (110) Even if insufficient to preclude conviction altogether, criminal law defenses may be relevant at the sentencing stage. A series of articles address this issue. Among the defenses discussed are self-defense, duress, coercion, diminished capacity, provocation, and entrapment. Criminal Law Defenses at Sentencing, 7 FED. SENT. RPTR. 168-213 (1995).
Article urges consideration of civil forfeitures at sentencing. (110) Sandra Guerra argues that certain civil forfeitures actually serve the purposes commonly pursued by the criminal law. The forfeiture statutes should be reformed to permit only remedial forfeitures to be brought in civil actions, with punitive forfeitures permitted only after conviction for a criminal offense. Even without this reform, sentencing judges should depart downward to take account of any punitive forfeiture imposed on a defendant, and the Sentencing Commission should amend the guidelines to require judges to take account of such forfeitures. Sandra Guerra, Reconciling Federal Asset Forfeitures and Drug Offense Sentencing, 78 MINNESOTA L. REV. 805-56 (1994).
Articles examine DOJ charging and plea policies. (110) A series of articles canvass the varying approaches taken by the Department of Justice over the years to control prosecutors’ discretion in charging and plea bargaining. The articles explore the impact of a 1993 memorandum from Attorney General Janet Reno on prior policy requiring charging the most serious readily provable offense. The articles also examine whether fairer plea practices could be achieved through use of binding pleas under Fed. R. Crim. P. 11(e)(1)(c). Department policy statements from 1980 through 1993 are reprinted, as is correspondence between Reno and Sen. Orrin Hatch regarding Reno’s 1993 memorandum. Justice Department Guidance for Prosecutors: Fifteen Years of Charging and Plea Policies, 6 FED. SENT. R. 298-353 (1994).
Article assesses reasons for racial disparities in sentencing. (110) Douglas C. McDonald and Kenneth E. Carlson undertake a statistical study of the reasons why blacks’ maximum prison sentences have been 41 percent longer than whites’ sentences since implementation of the guidelines. Some of the difference may be explained by the greater percentage of blacks who are convicted of drug offenses, which are punished severely. Other differences are explained by factors such as criminal record or role in the offense. The most important factor, however, was that blacks are convicted of crack offenses much more frequently than whites, and the crack offenses carry especially heavy penalties. Two other articles in the same issue of the Federal Sentencing Reporter assess McDonald and Carlson’s findings. Douglas C. McDonald and Kenneth E. Carlson, Why Did Racial/Ethnic Sentencing Differences in Federal District Courts Grow Larger Under the Guidelines?, 6 FED. SENT. RPTR. 223-26 (1994).
Article reviews differing “sentencing personas” of circuits. (110) In an essay reviewing the sentencing decisions of each of the federal circuits, Nora Demleitner argues that the circuits have developed separate “sentencing personas.” Some are exemplified by deference to the Commission, some by deference to trial judges, and some by an effort to protect defendants’ interests. Particular attention is paid to the reasoning required by the trial court to justify deference. Nora Demleitner, The Nonuniform Development of Guideline Law in the Circuits, 6 FED. SENT. RPTR. 239-41 (1994).
District Judge expresses a “sense of utter futility in presiding over drug prosecutions.” (110) In an address delivered on March 24, 1993 to the Merchants Club in New York City, Senior District Judge Whitman Knapp of the Southern District of New York expressed his “sense of utter futility in presiding over drug prosecutions.” “It is simply a matter of taking minnows out of a pond; the thousands of dollars and hours spent in processing the particular minnows on trial have absolutely no effect on the life of the pond they used to inhabit.” Judge Knapp suggested that the mandatory minimum sentences and the sentencing guidelines themselves “arose out of the legislative frustration at the disastrous reverses experienced in the war against drugs.” Referring to the work of economist Milton Friedman, Judge Knapp agreed that “the criminalization of narcotics in no way cuts down on the demand, but raises the price, with the inevitable result of increased supply.” Whitman Knapp, The War on Drugs 5 FED. SENT. RPTR. 294 (1993).
District Judge removes himself from drug cases. (110) In a letter to the other judges of the Eastern District of New York dated April 12, 1993, Senior District Judge Jack Weinstein expressed his “sense of depression about much of the cruelty I have been party to in connection with the ‘war on drugs.’“ He indicated that he had “no feeling of certainty about how this drug problem should be handled.” Nevertheless, “I have taken my name out of the wheel for drug cases.” He indicated that like Judge Knapp, he would likely take drug cases for trial from other judges “but will transfer the matter back to the referring judge for sentencing.” He indicated that he “simply cannot sentence another impoverished per-son whose destruction has no discernable effect on the drug trade.” He said he wished he were in a position to propose some solution, but “I am just a tired, old judge who has temporarily filed his quota of remorselessness.” Weinstein, Jack B., Memorandum to Judges, 5 FED. SENT. RPTR. 298 (1993).
Article summarizes new ABA sentencing standards. (110) Kevin R. Reitz and Curtis R. Reitz, co-reporters for the recently adopted third edition of the American Bar Association’s Criminal Justice Standards for Sentencing Alternatives and Procedures, review the highlights of the new standards. The standards continue the ABA’s opposition to mandatory minimum sentences. They endorse formation of an agency to perform an “intermediate function” between the legislative resolution of basic policy decisions and the judicial role of imposing sentence in particular cases. They also advocate offense-of-conviction sentencing as opposed to the federal reliance on facts not proved as part of the offense of conviction. The standards provide a sound basis on which the federal system could be reformed. Kevin R. Reitz and Curtis R. Reitz, The American Bar Association’s New Sentencing Standards, 6 FED. SENT. RPTR. 169-73 (1993).
Article reviews ABA sentencing standards. (110) David Boerner argues that all sentencing guidelines systems are controversial because they clearly permit certain values to trump others in sentencing, while indeterminate sentencing permits individual judges to vindicate their own policy preferences. Accordingly, he concludes that some disagreement should be expected regarding the American Bar Association’s newly adopted third edition of the Criminal Justice Standards for Sentencing Alternatives and Procedures. Perhaps the greatest accomplishment of the standards is their separation of the structure of sentencing from the sentencing policies those structures implement. Additionally, the standards mark a significant advance by describing in detail the range of sanctions legislatures should permit in addition to incarceration. David Boerner Bringing Law to Sentencing,” 6 FED. SENT. RPTR. 174-77 (1993).
Article faults guidelines’ application to women. (110) Myrna S. Raeder argues that the guidelines’ goal of gender neutrality has resulted in a system that unjustly ignores the factors that are integral to the lives of many female offenders and neglects the needs of children whose mothers are convicted. Courts should encourage departures for pregnant offenders, single parents, and others with primary parenting responsibilities. Moreover, the guidelines currently pay inadequate attention to the possibility that women may engage in crime because of coercion by their spouses or boyfriends, including battering. The increase in penalties for property crimes and the reduced reliance on family and community ties designed to reduce race, class, and other disparities have also adversely affected women. Myrna S. Raeder, Gender and Sentencing — Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 PEPPERDINE L. REV. 905-90 (1993).
Article assesses independent federal sentencing research. (110) Professors Marc Miller and Daniel J. Freed provide a summary of a series of articles which address problems with the data collected by the Sentencing Commission. For example, though substantial assistance motions often arise after sentencing, the Commission keeps track only of motions made before the imposition of sentence. Data available to researchers is inadequate to permit them to assess whether the guidelines are being properly applied. In addition, the articles argue that the Commission is unduly restrictive in releasing information. Marc Miller and Daniel J. Freed, The Unfulfilled Potential for Independent Federal Sentencing Research, 6 FED. SENT. RPTR. 3-5 (1993).
Article explores ambiguities in 1992-93 Supreme Court cases. (110) Ronald F. Wright observes that, despite earlier indications to the contrary, the Court has accepted a role in shaping federal sentencing law. The cases resolved during the term however, leave important questions unanswered. Stinson v. U.S., 113 S. Ct. 1913 (1993), leaves open how much deference must be given to commentary that accompanies a policy statement rather than a guideline. It also raises questions about what degree of inconsistency between commentary and a guideline will justify ignoring the commentary. U.S. v. Dunnigan, 507 U.S. 87 (1993) leaves unresolved which defendants should not have their sentences enhanced for perjury. Also unclear is the importance of a passing remark in Smith v. U.S., 113 S.Ct. 2050 (1993), suggesting that the Commission’s view of the meaning of a sentencing statute is irrelevant to determining the meaning of the statute. Ronald F. Wright, Federal Sentencing Law in the Supreme Court’s 1992-93 Term, 6 FED. SENT. RPTR. 39-42 (1993).
Article surveys Commission’s approach to conflicting applications of guidelines. (110) Judge William W. Wilkins, Jr., Chair of the Sentencing Commission, and John R. Steer, General Counsel to the Commission, note the Supreme Court’s view that the Commission is primarily responsible for addressing conflicts in guideline application. The authors emphasize the importance of this task, arguing that unresolved differences in guidelines interpretation effectively increase the sentencing range in contravention of Congressional limits. The authors outline how the Commission tracks judicial decisions to identify areas of disagreement and explains the Commission’s actions in several areas. William W. Wilkins and John R. Steer, The Role of Sentencing Guideline Amendments in Reducing Unwarranted Sentencing Disparity, 50 WASHINGTON & LEE L. REV. 63-88 (1993).
Article critiques governmental power to affect sentence in undercover investigations. (110) A student author notes the ability of law enforcement officials to influence a defendant’s sentence by arranging undercover investigations so as to affect application of the guidelines, especially by influencing drug quantities. Arguing that this power undermines the goal of reducing sentence dis-parity, violates public policy, and may violate due process, the author advocates expanding the entrapment and outrageous government conduct defenses or allowing departures when investigations or sting operations are unduly manipulated by law enforcement. The author reviews cases considering whether governmental manipulation should be taken into account in sentencing. Note, The Federal Sentencing Guidelines’ Failure to Eliminate Sentencing Disparity -- Governmental Manipulations Before Arrest, 1993 WISC. L. REV. 187-230.
Article assesses “real-offense” sentencing. (110) Kevin R. Reitz compares “conviction-offense” sentencing with “real-offense” sentencing systems like the federal sentencing guidelines, in which the sentence is based on facts not proved at trial. Real-offense systems typically use fewer procedural safeguards in finding facts at sentencing than are employed at trial, and they also permit a sentence to be based on facts rejected by the jury’s acquittal on certain counts or embraced in counts that were dismissed before trial. Reitz argues that these approaches are permissible under existing constitutional law, but that they should be rejected as a matter of legislative policy. Kevin R. Reitz, Sentencing Facts -- Travesties of Real-Offense Sentencing, 45 STANFORD L. REV. 523-73 (1993).
Articles address 1992 reports on guidelines. (110) In 1992, both the Sentencing Commission and the General Accounting Office produced detailed studies of the sentencing guidelines system. The Sentencing Commission concluded that the guidelines have produced significant reductions in disparity, while the GAO report concludes that significant data limitations preclude determining whether overall disparity has been reduced. In the November/December 1992 issue of the Federal Sentencing Reporter, a series of articles from academics, practitioners, and judges reviews the reports, largely questioning whether the reports demonstrate that disparity has been reduced and whether the guidelines have had that effect. 5 FED. SENT. RPTR. 123-68 (1992).
Article examines judge’s experience in following guidelines. (110) Judge Michael M. Mihm reveals his experiences when forced to choose between applying the guidelines faithfully and imposing what he regards as a just sentence. His approach is to follow the guidelines faithfully rather than to engage in “creative sentencing” whereby a sentence is set “only by twisting and turning the application of the guidelines.” In the long-run, however, he feels that faithful application may hasten sweeping guideline reform likely to result from the pressures of a mounting prison population. In the interim, Judge Mihm advocates that judges write the Commission about problems they perceive with the guidelines, and that judges actively comment on proposed amendments. Michael M. Mihm, The Roles and Responsibilities of the Judiciary in the Implementation of the Sentencing Reform Act of 1984, 5 FED. SENT. RPTR. 174-76 (1992).
Article proposes solutions to “excessive uniformity.” (110) While debate about the guidelines often focuses on whether they have reduced unwarranted disparity, Stephen J. Schulhofer argues that the greater problem is the guidelines’ grouping together of dissimilar defendants. He outlines solutions available to the Commission and the courts under the current statutory scheme. For example, he argues that the guidelines’ emphasis on drug quantities, together with a relevant conduct provision that is sometimes construed so as to make low-level conspirators responsible for drug quantities distributed to others by their suppliers, result in small-time offenders and more important distributors receiving similar guideline offense levels. Schulhofer advocates changes in both the relevant conduct and the drug quantity provisions. He also recommends increasing the size of available role-in-the-offense reductions for higher offense levels, treating more offender characteristics as relevant in sentencing, and loosening departure standards. Stephen J. Schulhofer, Excessive Uniformity -- and How to Fix It, 5 FED. SENT. RPTR. 169-73 (1992).
Article suggests Supreme Court has underestimated impact of guidelines. (110) Ronald F. Wright summarizes the four guidelines cases decided by the Court during that period. He predicts that the cases will have a limited but positive impact on guidelines administration. The opinions themselves, however, demonstrate that the Court does not view the guidelines as having significantly changed federal sentencing. In light of this apparent lack of sophistication, Wright concludes that it may be best that the Court thus far has chosen only to review relatively unimportant guidelines cases. Ronald F. Wright, The Law of Federal Sentencing in the Supreme Court’s 1991-92 Term, 5 FED. SENT. RPTR. 108-11 (1992).
Article disputes some claims of excessive disparity, focuses on excessive uniformity. (110) Stephen J. Schulhofer rigorously examines the methodology employed by Judge Gerald W. Heaney in an earlier work concluding that the guidelines had increased disparity. Schulhofer disputes many of Heaney’s conclusions. While Schulhofer agrees that there is evidence of guidelines cir-cumvention, he concludes that this phenomenon does not demonstrate an increase in disparity. Guide-lines circumvention is a symptom, Schulhofer argues, of excessive uniformity under the guidelines -- the tendency of the guidelines to treat unlike offenders similarly. This tendency is particularly pronounced in drug cases, but is exacerbated in all cases by courts’ unduly grudging view of their departure powers. Stephen J. Schulhofer, Assessing the Federal Sentencing Process -- The Problem is Uniformity, not Disparity, 29 AM. CRIM. L. REV. 833-73 (1992).
Article explores alternate perspectives on sentencing reform. (110) Barbara S. Meier-hoefer argues that tensions between notions of individualized justice and systemic justice explain why certain sentencing issues are difficult to resolve. The author notes the interplay between reducing un-warranted disparity and providing for sufficient sentencing flexibility. She also examines the conflict be-tween procedural and comparative aspects of the concept of fairness. For example, she argues that proposals to move toward an “offense of conviction” model for sentencing favors perceived procedural fairness over the goal of reducing sentencing disparity. She proposes alternatives that might balance these interests in a more satisfactory way. Barbara S. Meierhoefer, Individualized and Systemic Justice in the Federal Sentencing Process, 29 AM. CRIM. L. REV. 889 (1992).
Article explains guidelines’ philosophy and evaluates their success. (110) Judge William W. Wilkins, Jr., Chairman of the United States Sentencing Commission, provides an overview of the important policy questions the Commission faced in formulating guidelines and a review of how the Commission resolved them. Among those issues were achieving proportionality, choosing between “real offense” and “charge offense” sentencing, the impact of a defendant’s prior criminal history, the use of data related to prior judicial sentencing patterns, and the extent to which individual offender characteris-tics should be relevant to sentence. Judge Wilkins concludes that the guidelines have been beneficial, relying on a 1991 Commission study to argue that the guidelines have reduced disparity in sentencing. William W. Wilkins, The Federal Sentencing Guidelines — Striking an Appropriate Balance, 25 U.C. DAVIS L. REV. 571-86 (1992).
Article examines reasons for guideline complexity. (110) Ronald F. Wright notes that the guidelines have frequently been criticized as unduly complicated, and that calls have been made to simplify them. Wright explores the reasons that complex rules are chosen, concluding that the Com-mission may have adopted its current approach in part because of fear that sentencing judges would not sentence offenders uniformly if given simpler but vague guidelines. While simple but specific rules could confine judicial discretion, Wright argues that such guidelines might omit important factors from consid-eration in formulating a sentence. Accordingly, he concludes, complexity may be preferable to its likely alternative. Ronald F. Wright, Complexity and Distrust in Sentencing Guidelines, 25 U.C. DAVIS L. REV. 617-37 (1992).
Article surveys how guidelines have changed practice. (110) Owen S. Walker argues that sentencing under the guidelines has created so much litigation as to offset any advantage achieved in the areas of honesty and uniformity. Walker gives examples from several case files to demonstrate how fairly simple cases nevertheless can raise myriad guidelines issues. These issues have greatly de-creased the number of cases that courts, prosecutors, and defenders can handle, Walker argues. He suggests two possible reforms: permitting the parties to compromise disputed guidelines issues rather than litigating them, and replacing the guidelines altogether with a system that relied instead on involving multiple judges in sentencing decisions. Owen S. Walker, Litigation-Enmeshed Sentencing -- How the Guidelines Have Changed the Practice of Federal Criminal Law, 25 U.C. DAVIS L. REV. 639-58 (1992).
Article examines guidelines under economic lens. (110) Kenneth G. Dau-Schmidt evaluates the costs of the guidelines system and the preexisting system of unfettered discretion. Noting that the costs of employing rules are highest in the context of complex decisions, Dau-Schmidt suggests that Congress could best meet its goals by replacing some of the current rules with more flexible standards that leave greater discretion to sentencing judges. Kenneth G. Dau-Schmidt, An Agency Cost Analysis of the Sentencing Reform Act -- Recalling the Virtues of Delegating Complex Deci-sions, 25 U.C. DAVIS L. REV. 659-78 (1992).
Article canvasses and analyzes legislative history of the guidelines. (110) Kate Stith and Steve Y. Koh review the series of bills beginning in 1975 and culminating in the Sentencing Reform Act of 1984. They argue that the reform process began as a liberal anti-imprisonment and antidiscrimination measure but eventually was passed as a more conservative law-and-order crime control measure. They also claim that Congress failed to resolve significant sentencing issues, delegating them to the Sentencing Commission. Finally, they maintain that the federal judiciary failed to persuade Congress of the risks of transferring sentencing authority to the Commission. Kate Stith, and Steve Y. Koh, The Politics of Sentencing Reform — The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223-90 (1993).
Article describes 1992 amendments to Guidelines (110) Paul J. Hofer, Senior Re-search Associate, Federal Judicial Center, describes the 1992 amendments to the guidelines which will take effect November 1, 1992 unless Congress affirmatively dissents. He gives particular attention to amendments responsive to Judicial Conference recommendations, i.e. alternatives to incarceration, departures, relevant conduct, and acceptance of responsibility. He also discusses the amendments to the plea bargaining guidelines and offers insight into why some proposed amendments were not adopted. Paul J. Hofer, Commission Sends 31 Amendments to Congress, 4 FED. SENT. RPTR. 310 (May-June, 1992).
Article critiques guidelines interpretations, cites efforts at evasion. (110) Professor Daniel J. Freed argues that the guidelines often require sentences that conflict with participants’ impres-sions of a just sentence and that judges have insufficient opportunities to depart from the guidelines in such situations. As a result, Freed claims, judges, prosecutors, and probation officers have discovered means to evade guidelines sentences. Freed argues that some of the problems with the guidelines result from the appellate courts’ failure to distinguish policy statements from guidelines, to test the adequacy of Commission consideration before forbidding departure based on a factor, and to implement the statutory instruction to “reduce unwarranted disparity.” Freed suggests a revised system. Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L. J. 1681-1754 (1992).
Proceedings of sentencing conference reported. (110) In February 1992, the Yale Law Journal hosted a conference on the Federal Sentencing Guidelines. The keynote address of the conference, and summaries of the remarks by other speakers, were printed in the Yale Law Journal. Frankel stressed the paucity of knowledge about what works at sentencing and advocated continued study. Other speakers addressed the history and structure of the guidelines, sentencing and the war on drugs, the allocation of discretion under the guidelines, and the future of the guidelines. Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration 101 YALE L. J. 2043-75 (1992).
Article critiques guidelines and offers alternative. (110) A student author argues that the guidelines approach “improperly fosters judicial abdication of the duty of responsible and conscientious sentencing.” The author also questions whether disparity before the guidelines was as serious a problem as is sometimes portrayed, and suggests that the guidelines fail to cure disparity because they focus only on judicial discretion. The author recommends that the Commission set sentences for certain paradigm cases. Sentencing in actual cases would be performed by rotating three-judge panels, which would explain their sentences in relation to the Commission’s paradigm cases. Appellate review would remain available. Note, Reestablishing the Federal Judge’s Role in Sentencing, 101 YALE L. J. 1109-34 (1992).
Article applies administrative law notions to sentencing issues. (110) Ronald F. Wright summarizes his earlier article about how principles of administrative law should inform assess-ment of the Sentencing Commission’s work. Wright argues that the administrative law focus helps clarify what kinds of justification are necessary before a guideline should preclude departure, what level of def-erence should be given to the Commission’s reading of a sentencing statute, and what kinds of procedures should be followed by the Commission. In a response, Kevin Cole takes issue with Wright’s apparent preference for guidelines justified by empirical evidence. Ronald F. Wright, The United States Sentencing Commission as an Administrative Agency” 4 FED. SENT. RPTR. 134-36, 140-41 (1991).
Article argues guidelines’ failures and due process concerns. (110) Judge Gerald W. Heaney summarizes his earlier article claiming that the guidelines have failed to decrease sentencing disparity, have led to sentences that vary with the race of the offender, and have raised serious due process concerns by pegging sentences to facts not alleged in the indictment, not subject to the requirements of proof beyond a reasonable doubt by a jury, and not governed by the confrontation protections applicable at trial. In a response, Judge William W. Wilkins, Jr., argues that Heaney’s conclu-sions are based on skewed case samples and that guideline procedures are more protective of defendants than were preguideline procedures. Gerald W. Heaney, The Reality of Guidelines Sentencing: No End to Disparity, 4 FED. SENT. RPTR. 142-50 (1991).
Article argues that Commission’s critique of mandatory minimums applies equally to guidelines themselves. (110) The Sentencing Commission’s Report, “Mandatory Minimum Penalties in the Federal Criminal Justice System,” criticizes mandatory minimum sentencing statutes for shifting discretion from judges to prosecutors, increasing judicial workload, punishing less culpable of-fenders as seriously as more culpable offenders, and providing incentives for judges and prosecutors to avoid the mandatory sentences. Professor Michael Tonry lauds the Commission’s research design and critique of the effect of mandatory minimum sentences. But Tonry disputes the Commission’s claim that the guidelines themselves escape identical criticism. He argues that limitations on departures and other factors have led the guidelines to have the same vices and suggests that key features of the guidelines be reconsidered with an eye toward greater flexibility. Michael Tonry, Mandatory Minimum Penalties and the U.S. Sentencing Commission’s “Mandatory Guidelines,” 4 FED. SENT. RPTR. 129-33 (1991).
Article critiques guidelines’ emphasis on harms. (110) Albert W. Alschuler summarizes his earlier article challenging the emphasis on resulting harm in computing guidelines sentences. He argues that the nature of the guidelines system is likely to produce such emphases, be-cause it is easy to write guidelines in terms of harm but difficult to describe “the appropriate influence of situational and personal characteristics on punishment.” In a response, Judge Morris E. Lasker and Katherine Oberlies disagree with the conclusion that situational and personal characteristics cannot be captured in sentencing guidelines and argue that Alschuler’s criticisms about the guidelines’ severity could be accommodated within the guidelines system. Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 4 FED. SENT. RPTR. 161-68 (1991).
Article notes possible reasons for expanding factors considered under guidelines. (110) In a book review, Deborah Young suggests reform of the guidelines based on a study of preguidelines sentencing, S. Wheeler, K. Mann & A. Sarat, Sitting in Judgment: The Sentencing of White-Collar Criminals (1988). According to the study, preguidelines sentencing was not as unprincipled as is commonly depicted; indeed, judges tended to agree on the factors that were important in determining sentence. Among those factors were specific characteristics of the offender’s situation that, Young notes, are often difficult to consider under the guidelines system. Further development of the guidelines system to accommodate such factors might be warranted, Young concludes. Deborah Young, Federal Sentencing: Looking Back to Move Forward, 60 CINN. L. REV. 135-51 (1991).
Article finds increased disparity after guidelines. (110) Joel Waldfogel attempts a new approach to measuring sentencing disparity. Rather than controlling for the circumstances of particular offenses and offenders, the author studies the average sentences imposed by individual judges within particular judicial districts, relying on sample size and random case assignment to distribute evenly types of cases and offenders. The author concludes that disparity has increased since implementation of the guidelines in two districts and has remained the same in the other district studied. Joel Waldfogel, Aggregate Inter-Judge Disparity in Federal Sentencing: Evidence from Three Districts (D.Ct., S.D.N.Y., N.D.Cal.), 4 FED. SENT. RPTR. 151-54 (1991).
Article reviews proposed 1992 amendments. (110) Ronald Weich summarizes a number of proposed amendments currently under consideration by the Commission. He notes that several of the amendments continue the Commission’s trend of moving toward a real offense system by cross-referencing charges on which the defendant is convicted to other guidelines that more accurately reflect the evidence against the defendant. He also notes that other amendments that would increase sentences for particular offenses are subject to criticism on the grounds that they are unaccompanied by empirical data suggesting the need for such enhancements and analyses of the impact of the proposed changes on prison populations. Ronald Weich, Proposed 1992 Guidelines Amendments,” 4 FED. SENT. RPTR. 239-40 (1992).
Article urges recognizing role of prosecutorial discretion. (110) In one of a group of articles on local conditions, the former U.S. Attorney for the Southern District of California discusses the need for prosecutorial discretion in balancing between resources and crime in a border district. He argues that “[a]ny efforts to bring a particular district’s sentencing practices into line with the national average would require the different branches of government to ensure that the district had the resources necessary to deal with the level of crime that it faces.” William Braniff, Local Discretion, Prosecutorial Choices, and the Sentencing Guidelines, 5 FED. SENT. RPTR. 309-16 (1993).