Monday, January 31, 2005

Circuit Vacates Grant of Habeas Based on Prosecution's Use of Incriminating Statement Obtained during Un-Mirandized Pedigree Questioning of Defendant

Jose Rosa v. Frank McCray, Docket No. 04-2188 (2d Cir. Jan. 27, 2005) (Miner, Cabranes, and Straub) (Op. by Miner) (Dissent Op. by Straub)

Facts: On September 5, 1997, the victim ("V") was robbed at gunpoint by two men. V subsequently went to the police and described one of the robbers -- the one carrying the gun --as having "brown hair, with the ends slightly lighter."

The following day, V saw petitioner Rosa standing on the sidewalk. Though Rosa's hair appeared to be blonde, V identified him as the man who robbed her at gunpoint. V called the police, who promptly arrested Rosa.

At the police station, the same detective who had interviewed V the previous day asked Rosa a series pedigree questions while completing the on-line booking form. These questions were not preceded by Miranda warnings. "As to Rosa's hair color, [the detective] -- noticing that Rosa's hair was bright blonde, including the roots -- asked Rosa: 'What is your real hair color?'" Unfortunately, Rosa responded: "Brown. I colored my hair yesterday." (emphasis added).

During a hearing to determine whether the statement could be admitted, the detective admitted that he had spoken with the V the day before Rosa's arrest, and that she had described the gun-toting robber as having brown hair. However, the detective denied that he had intended to elicit incriminating information by asking Rosa the question regarding his "real hair color," claiming instead that he simply wanted "to ascertain the correct color of arrestee's hair" to complete the on-line booking form.

The trial judge allowed the statement to be introduced at trial, and the prosecutor emphasized it to the jury as evidence of Rosa's consciousness of guilt. Apart from this statement, the only other evidence offered by the state was the V's testimony pointing to Rosa as the robber. No physical evidence was introduced. The jury convicted Rosa.

After exhausting his state remedies, Rosa filed a § 2254 petition in the S.D.N.Y. Judge Motley granted the writ, finding that the detective should have known that his inquiry regarding the natural color of Rosa's hair was reasonably likely to evoke an incriminating response from Rosa, and therefore that Miranda warnings should've been given beforehand. Judge Motley also found that the erroneous admission of Rosa's statement was not harmless.

Held: The Second Circuit reversed. The Court began by noting the seeming tension between the rule of Miranda, which requires the now-familiar warnings whenver the police engage in "interrogation" -- i.e., conduct "that th[ey] should know are reasonably likely to elicit an incriminating reponse from the subject" -- and the rule permitting pedigree questioning following arrest without a prior Miranda warning. Resolving this potential tension, the Court ruled that "recognizing a booking exception to Miranda does not mean . . . that any question asked during the booking process falls within that exception." Rather, the Miranda rule applies even to pedigree questions: "The police may not ask questions, even during booking, that are designed to elicit incriminating questions." And to determine whether the police violated Miranda during pedigree questioning requires an "objective inquiry: Under the circumstances, should the police have known that asking the pedigree questions would elicit incriminating information?" The subjective intent of the detective or officer, though relevant to the inquiry, is not conclusive.

Applying this rule, Judge Miner found that (1) the incriminating information provided by Rosa in his response to the detective's question concerned when he dyed his hair, not his true hair color; and (2) the detective could not reasonably have expected that Rosa would volunteer this bit of information when he simply asked, "What is your real hair color?" Although the detective reasonably should have expected Rosa to provide an answer concerning his real hair color, Judge Miner explained, "[t]he fact that Rosa's hair was dyed a different color was not necessarily incriminating." Rather, the incriminating information -- volunteered by Rosa -- "was the fact that he had dyed it recently -- indeed, on the day of the robbery." (emphasis in original). And because "Rosa offered the critical piece of timing-related information voluntarily and outside the scope of the question" posed by the detective, who "could not reasonably have expected Rosa to offer [this] additional inculpatory information," the statement was admissible despite the lack of Miranda warnings.

Judge Straub dissented, disagreeing with Judge Miner on the critical issue of whether the detective reasonably should have known that his question would elicit incriminating information. Specifically, Judge Straub found that "any answer resposive to the question 'what is your real hair color?' would have constituted an 'incriminating response'." The only 2 answers Rosa could have given would both have been incriminating: (1) he could have answered truthfully that his real hair color was brown, which would've been incriminating because the V had described the robber as having brown hair; or (2) he could've lied and said that his hair was really blonde, "and the state could have used the answer against him at trial." As Judge Straub concluded, Miranda warnings were required because the detective "should have expected that his question about real hair color was likely to elicit an incriminating response because he knew -- or should have known -- that hair color was a central issue in the case."

Commentary: While I agree with Judge Straub that the majority's perception of what portion of Rosa's statement was "incriminating" is too narrow, the holding of the case is ultimately a good one for the defense. Rosa confirms that there is no true "pedigree exception" to the Miranda rule. Rather, the question is always the same: Did the police engage in questioning or conduct that, objectively viewed, would elicit incriminating information? If so, then Miranda warnings are required, even if the questioning took place within the context of booking or in the form of pedigree questioning.

Bank Larceny Not a "Qualifying Federal Offense" Under the Old DNA Act

United States v. Peterson, No. 03-1454 (2d Cir. Jan. 10, 2005):


Government bloodsuckers may not force a probationary defendant to submit a DNA sample under the old DNA Act where his original conviction was for bank larceny. At the time Peterson was sentenced, the DNA Act required that all persons convicted of a "qualifying federal offense" were to submit a DNA sample while on supervised release, parole or probation (the Act was subsequently amended on October 30, 2004 making "any felony" a qualifying offense). The district judge dismissed the government's petition to summon Peterson to a probation violation hearing, finding that bank larceny was not a qualifying federal offense. The appeal raised two issues: (1) whether the government was authorized to appeal a district court's ruling dismissing a petition for a probation violation hearing; and (2) was bank larceny a qualifying federal offense? The answers were (1) yes and (2) no.

The Opinion:

The first question was resolved by an examination of the various authorities for government appeals. After finding that neither 18 U.S.C. Section 3742(b)(permitting government appeals of sentencing decisions in criminal cases) nor section 3731 (permitting appeals of specified decisions in criminal cases) authorized the government's appeal, the Court turned to 28 U.S.C. 1291 which permits appeals "from all final decisions of the district courts."

As a general rule section 1291 does not authorize government appeals in criminal cases. After determining that this case was in fact a criminal case, however, the Court found that an appeal was authorized under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) which states that appeals are allowed "from a small number of criminal orders analagous to civil orders" which are "sufficient[ly] independent from the main course of prosecution to warrant treatment as plenary orders." The Court found that the dismissal of a probation violation was such an order "collateral to the main course of prosecution" and was therefore appealable.

The Court then sided with Peterson on the merits of his claim that bank larceny (18 U.S.C. 2113(b)) was not a qualifying offense. At the time, the DNA Act stated that a qualiftying offense included "an offense involving robbery or burglary (as described in chapter 103 of such title, sections 2111 through 2114, 2116, and 2118 through 2119)". The Court held that a plain reading of the statute did not include bank larceny which is distinct from robbery or burglary.

Creating Perverse Incentives for Lackluster Advocacy in the New York Court of Appeals? The Second Circuit's Exhaustion Jurisprudence, Cont'd.

(By guest blogger Darrell Fields, Associate Counsel, Appeals Bureau of the Federal Defender Division):

In Galdamez v. Keane, No. 03-2595, 2005 WL 15136 (2d Cir. Jan. 4, 2005) (Op. by Sotomayor), the Second Circuit held that a New York prisoner seeking habeas corpus relief (28 U.S.C. § 2254) had exhausted all of the claims he had raised in his Appellate Division briefs simply by asking the New York Court of Appeals for leave to appeal and then sending his Appellate Division briefs to that Court. His lawyer accomplished this by sending two cryptic letters to New York’s highest court. The lawyer’s first letter noted that he was enclosing a copy of the Appellate Division decision affirming Galdamez’s conviction and stated that "appellant hereby requests leave to appeal to this Court." The second letter merely stated that he was enclosing "the briefs submitted to the Appellate Division together with the decision affirming the conviction."

Pursuant to its usual practice, the Court of Appeals assigned Galdamez’s application to a particular judge and sent Galdamez’s lawyer a letter identifying the judge (who would decide whether to grant leave to appeal) and telling the lawyer that he had three weeks to write the judge about the case. The Court specified that in his letter to the judge, the lawyer should give particular attention "to identifying reviewability and preservation issues."

The lawyer did not submit anything to the judge. Consequently, he did nothing to assist the Court of Appeals judge in assessing whether an issue worthy of leave was presented by the case, and only the barest minimum in advocating for leave to appeal on behalf of his client. The New York Court of Appeals issued a certificate denying Galdamez leave to appeal. On Galdamez’s subsequent § 2254 petition, the Second Circuit concluded his lawyer had exhausted all of the claims set forth in the Appellate Division briefs.

The Circuit discussed its line of exhaustion cases involving New York prisoners whose lawyers -- unlike Galdamez’s -- actually took the trouble of preparing and submitting a letter to the individual judge assigned to review the leave application to argue why certain claims particularly merited the court’s review. In many of those cases, however, the Circuit construed the lawyers’ additional submissions to the individual judge as abandoning claims presented in the Appellate Division briefs. Under Circuit law, if a letter is written to the individual judge, only those claims raised in that letter are deemed exhausted, even though the Appellate Division briefs had also been submitted to the court. The assumption is that a New York Court of Appeals judge -- on receiving the lawyer’s additional submission -- would not thereafter bother to review the Appellate Division briefs. Under the Circuit’s view, the lawyer must incorporate by reference those claims in the Appellate Division briefs that were not specifically discussed in the letter to the individual judge. But the Circuit has not construed attorneys’ efforts at incorporating by reference broadly. Compare Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir. 2000) (incorporation by reference sufficient) with Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000) (incorporation by reference not sufficient). Thus, under the Circuit’s jurisprudence, the leave application has become a trap for the lawyer who does more than just the bare minimum of presenting to the New York Court of Appeals the lower court decision and the briefs and asking for leave to appeal.

A footnote in the Circuit’s opinion, however, provides hope that the Circuit is beginning to appreciate the potential unreality of its jurisprudence in this area, a jurisprudence in which the more conscientious lawyer who makes the extra effort of advocating for leave to appeal to the individual judge can be less effective -- for the purpose habeas corpus law -- than a lawyer who does not bother to make any arguments whatsoever to the judge. The footnote notes that the Circuit’s jurisprudence rests on "surmises" about the behavior of Court of Appeals judges in reviewing leave applications. The Circuit also appeared to recognize that, at some level, its exhaustion jurisprudence has negative implications about how conscientiously New York Court of Appeals judges review leave applications: "As we strive for comity, however, we should be vigilant against overreaching, lest we imply a lack of conscientiousness on the part of the highly competent Court of Appeals." The Circuit noted that, "[i]n the proper circumstances, we would consider certifying this important question to the Court of Appeals itself." It declined to do so here, however, because the exhaustion question was not determinative.

A Foley Square "Time Warp"? A Post-Booker Guidelines Decision.

United States v. Sash, No. 04-0499 (2d Cir. Jan. 26, 2005) (Walker, Miner, and Cabranes) (Op. by Miner).

In this opinion, issued two weeks after the Supreme Court's decision in Booker (see entry below), the Second Circuit engages in a detailed analysis of Section 2B1.1(b)(9)(C)(ii) of the Guidelines, which calls for a 2-level enhancement when the offense "involved . . . the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification." The Court rejected the defendant's argument that his conduct -- replicating police badges for police officers -- did not trigger the enhancement because it did not involve true identify theft, holding that the plain language of the Guideline controlled.

What's interesting about the opinion is not what it discusses, but what it doesn't discuss -- namely, Booker (or even Blakely). The original sentencing occurred in January 2004, but surely the defense attorney made a Blakely-based argument at some point during the appellate process. In any event, the January 26, 2005, opinion is entirely silent as to Blakely and Booker -- it doesn't even include a boilerplate referencing Chief Judge Walker's August 6, 2004, order regarding Blakely.

In any event, this opinion demonstrates one potentially great benefit of Booker: Hopefully, in the post-Booker era, none of us will have to sift through such mind-numbing, and entirely pointless, Guidelines minutia again. Of course, the correct Guideline range must first be calculated, even under Booker. But it's very hard to imagine that either advocates or courts will spend so much energy on -- or have the patience for -- parsing ambiguous Guidelines language when, ultimately, the range is just advisory anyway.

Dismissal of § 2254 Petitioner's First Habeas Petition by Reason of Tardiness Renders Future Petitions "Second or Successive" under § 2244(b)

Murray v. Greiner and Arce v. Fischer, Nos. 01-3833, 02-3574 (2d Cir. Jan. 5, 2005) (Leval & Cabranes, and Garaufis, D.J.) (Op. by Leval) :

This decision simply extends Villanueva v. United States, 346 F.3d 55 (2d Cir. 2003), holding that dismissal of a § 2255 petition on grounds of untimliness under § 2244(d) (establishing 1-year period to file such a petition) renders subsequent petitions "second or successive" within the meaning of § 2244(b) (and thus subject to its nearly impossible to satisfy gatekeeping requirements), to § 2254 petitions filed by state prisoners. The reasoning is that (1) the dismissal of a habeas petition will render subsequent petitions "second or successive" if the petition was "adjudicated on the merits"; (2) dismissal of a prior petition on grounds that presented a "permanent and incurable" bar to federal review qualifies as an adjudication on the merits; and (3) dismissal of a prior petition as tardy under the statute of limitations set forth in § 2244(d) presents a "permanent and incurable bar" to review the claim, and thus quaifies as an adjudication on the merits rendering a subsequent petition "second or successive."

Tuesday, January 25, 2005

Second Circuit Rejects Connecticut's Effort to Vacate Stay of Execution

Michael B. Ross, by next friend Gerard A. Smyth, v. Theresa Lantz, No. 05-8900 (2d Cir. Jan. 25, 2005) (Sack, Katzmann, and Hall) (per curiam)

FACTS: Michael Ross, convicted of murder in Connecticut, was scheduled to be executed on Wednesday, January 26, 2005, at 2 a.m. Ross (a so-called death penalty "volunteer") has declined to challenge his death sentence, but lawyers from the state public defender's office filed a habeas petition pursuant to 28 U.S.C. § 2254 on his behalf as "next friend." The public defender's office contends that Ross is not mentally competent to surrender his post-conviction rights. It presented testimony to Chief Judge Chatigny (of the District of Connecticut) from a psychiatrist indicating that Ross may not have been competent when he decided to forgo further challenges to his conviction and sentence due to years of seclusion on death row.
Yesterday, January 24th, Chief Judge Chatigny granted a stay of execution in order to hear more evidence concerning Ross's competency. Connecticut immediately asked the Second Circuit to vacate that stay. The Circuit heard oral argument at 2 p.m. today, January 25th, and issued an opinion within 3 hours.

HELD: The Court dismissed Connecticut's appeal and refused to vacate the stay, remanding the case back to Judge Chatigny for further proceedings to determine whether the state public defender qualified as Ross's "next friend" (and thus had standing to file the 2254 petition). The Circuit concluded that it did not have an adequate basis to review the standing question based on the record before it.

The determination of whether the state public defender's office qualified as "next friend", in turn, hinges primarily on whether "Ross is in fact not competent to forgo his right to bring habeas corpus proceedings." Slip Op. at 3; see Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990) ("next friend" must show, inter alia, that "the real party in interest cannot appear on his own behalf to prosecute the action" because of "inaccessibility, mental incompetence, or other disability"). Thus, the real effect of the Court's decision is the affirmation of Judge Chatigny's stay of execution pending a final determination of mental competency. As the Court concluded, "such proceedings on Ross's competence are appropriate as part of the district court's effort properly to decide the issues of standing and jurisdiction." Slip op. at 3.

In sum, because the standing question and the merits question both depend on Ross's competence, the Second Circuit's decision to remand for further factfinding on the standing question has the ultimate effect of upholding Judge Chatigny's decision to stay execution pending a final determination on Ross's competence. The Court "urge[d]" Judge Chatigny to "conduct such proceedings as expeditiously as reasonably practicable." Slip op. at 4.

UPDATE 1: On Thursday, January 27th, the Supreme Court, w/out comment but by a 5-4 vote, granted Connecticut's request to vacate the stay.

A new execution date has been set -- 2:01 a.m. on Saturday, January 29th (i.e., late this evening). However, Judge Chatigny apparently had also entered a 10-day TRO, which would prevent the execution. Thus, the case is now back before the Second Circuit, which will hear argument today (Friday, January 28th) on whether to dissolve the TRO.

UPDATE 2: Today, Friday, January 28th, the 2nd Circuit heard oral argument on whether the TRO issued by Judge Chatigny in the case brought by Ross's father should be dissolved. Shortly after the argument, the Court issued a decision vacating that TRO. The sole apparent basis for the decision was the fact that the Supreme Court had vacated the district court's stay of execution on Thursday, and there was no reason to believe that it wouldn't do the same regarding the TRO. (Of course, since the Superme Court gave no explanation for why it vacated the stay, this is just speculation).

In any event, the Circuit stayed its decision / order dissolving the TRO "until Sunday, January 30, 2005, at 12:01 A.M., in order to permit Plaintiff-Appellee Ross to seek such further review as he may deem warranted." Thus, unless Connecticut asks the Supreme Court to vacate this stay, the current execution date (2:01 a.m. on Saturday, January 29th) will have to be moved back. However, because Monday, January 31st is the final date on which the state can execute Ross on the current death warrant, only a short delay is likely -- unless of course the Supreme Court upholds the TRO.

Second Circuit Finally Puts an End to Judge Kram's Practice of Conducting Pleas and Sentencings in Her Robing Room

United States v. Carlos Goiry and Luz Marina Munoz, Nos. 02-1010, 03-1061 (2d Cir. Jan. 24, 2005) (No. 02-1010: Walker, Cardamone, and Straub) (No. 03-1061: Winter, Straub, and Lay) (Opinion by Straub).

FACTS: In two cases consolidated on appeal, the defendants-appellants both entered guilty pleas and were sentenced by Judge Shirley Kram of the Southern District of New York. Judge Kram conducted the guilty plea proceeding (in one case) and the sentencing (in the other case) in her robing room, located just off her courtroom. As anyone who has practiced before Judge Kram knows, this is her standard practice.

Judge Kram did not make any findings to justify her actions, nor did she notify the public that she intended to close these proceedings. None of the parties objected to Judge Kram's decision to conduct the proceedings in her robing room.

HELD: Conducting plea and sentencing proceedings in the robing room "infringed on the First Amendment right of access of the public and the press." Slip Op. at 24. In order to do so in the future, the judge must (1) "make specific, on the record findings . . . demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest," id. at 18 (quotations omitted), and (2) ensure that the public is sufficiently notified in advance of a potential closure by "promptly" putting a closure motion on the docket sheet, id. at 19. The Court also ruled that the closed proceedings violated Rule 11's requirement that guilty plea proceedings be conducted in "open court," id. at 27, and 18 U.S.C. § 3553(c)'s requirement that "[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence," id. at 31.

REMEDY: "Based on the unique circumstances presented by [these] cases, we, in the exercise of our supervisory powers, vacate the plea and sentence proceedings not held in open court in these cases and remand both cases to the District Court for further proceedings to be held in the public courtroom." Slip Op. at 25.

COMMENTARY: Although the holding appears straightforward (i.e., that the strong presumption of open proceedings applies to guilty plea proceedings and sentencings, and can be overcome only upon a showing of compelling need and with prior notice), this is a very odd opinion. Given that the press was not a party to this case, why didn't the Court simply rule that the defendants' Sixth Amendment right to a public trial was violated by the closures? The Court specifically avoided the Sixth Amendment issue, however, commenting that it did not need to address this question "[b]ecause we choose to remand the case under our supervisory powers." Slip Op. at 26.

One suspects that the Court avoided a Sixth Amendment public trial analysis -- despite its obvious relevance -- because it did not wish to open the floodgates for the hundreds (if not thousands) of defendants who suffered through the same fate before Judge Kram. Regardless, it seems that a defendant whose plea or sentencing proceeding was conducted by Judge Kram can rely upon this case's analysis and reasoning to satisfy the 4-part test of Waller v. Georgia, 467 U.S. 39 (1984), and thus demonstrate that the court violated his or her Sixth Amendment right to a public trial. Such an error, of course, is not subject to harmless error review. Id. at 49; see Guzman v. Kelly, 80 F.3d 772, 776 (2d Cir. 1996).

Monday, January 17, 2005

United States v. Booker, No. 04-104 (U.S. Sup. Ct. Jan. 12, 2005): A Day-After Analysis

I. The Holding:

1. Stevens for a 5-justice majority: The rule of Apprendi and Blakely – that the maximum sentence a judge may impose is the maximum sentence authorized on the basis of facts reflected in the jury verdict or admitted by the defendant – applies to the Sentencing Guidelines.
A. That is, Booker holds that the top of the Guideline range, as determined solely by facts found by the jury or admitted by the defendant at a guilty plea, constitutes the "statutory maximum" for Apprendi-Blakely purposes.
B. Thus, a judge may not impose a sentence higher than the top of this range based on facts that s/he alone has found.

2. Breyer for an entirely different 5-justice majority: The remedy for the Blakely violation in Booker’s case is simply to strike / excise two statutory provisions – 18 U.S.C. § 3553(b) and 18 U.S.C. § 3742(e). All else allegedly remains ...
A. § 3553(b) stated that "the court shall impose a sentence of the kind, and within the range [established by the Sentencing Guidelines], ... unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result" in a different sentence. That is, § 3553(b) was the statutory provision making the Guidelines binding on district judges.
B. § 3742(e) described how and by what standard of review an appellate court was to evaluate a sentencing appeal.

II. The Result (for Sentencing Courts):

1. The Guidelines are no longer binding, and only advisory. As the Breyer majority states, "So modified, the Federal Sentencing Act . . . makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U.S.C. § 3553(a)(4), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a)." Breyer Op. at 2.

2. § 3553(a) is now King / Queen: It directs what a sentencing court should do and consider in determining and imposing an appropriate sentence.

3. "Parsimony command": § 3553(a) discusses numerous "factors to be considered in imposing sentence," listed below, but prefaces everything with the"The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."

4. The seven categories of factors a court must consider, under § 3553(a), are:
1. "The nature and circumstances of the offense and the history and characteristics of the offender," id. (a)(1);
2. The need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," id. (a)(2);
3. "The kinds of sentences available," id. (a)(3);
4. The kinds of sentence and the sentencing range established by the Sentencing Commission via the Sentencing Guidelines, id. (a)(4);
5. Any pertinent policy statements issued by the Sentencing Commission, id. (a)(5);
6. The need to avoid unwarranted sentence disparities among similarly situated defendants, (a)(6); and
7. The need to provide restitution, (a)(7).

5. After Booker, a sentencing court need only "consider" the applicable Guideline range, and any policy statements in the Guidelines, as one of several factors relevant to the ultimate sentencing decision. Under § 3553(a), the Guidelines are listed only as factors 4 & 5.

A. Breyer Op. at 17: So excised, "[t]he Act [] requires judges to consider the Guidelines ‘sentencing range . . .’, the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, [and] the need to provide restitution to victims. [It also] requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care."

B. See also Breyer Op. at 21: "The district courts, while not bound to apply the Guidelines, must consult the Guidelines and take them into account when sentencing."

C. The dissenting opinions also comment on what the Breyer majority now requires of sentencing courts, and indeed spell out the post-Booker sentencing world much more thoroughly than Breyer’s majority opinion (assuming we can take the dissent’s characterization of Breyer’s majority opinion at face value ...):

i. Stevens dissent at 30: "[J]udges must still consider the sentencing range contained in the Guidelines, but that range is now nothing more than a suggestion that may or may not be persuasive to a judge when weighed against the numerous other considerations listed in 18 U.S.C.A. § 3553(a)." (Emphasis in original).

ii. Scalia dissent at 3: "[T]he plain effect of the remedial majority’s decision . . . [is that] district judges will no longer be told they ‘shall impose a sentence . . . within the range’ established by the Guidelines. § 3553(b)(1). Instead, under § 3553(a), they will need only to ‘consider’ that range as one of many factors, including ‘the need for the sentence . . . to provide just punishment . . . , afford adequate deterrence . . . , and to protect the public . . ."

iii. Scalia dissent at 3, continued: Crucially, § 3553(a) "provides no order of priority among all those factors, but since the three just mentioned are the fundamental criteria governing penology, the statute – absent the mandate of § 3553(b)(1) – authorizes the judge to apply his own perceptions of just punishment, deterrence, and protection of the public even when these differ from the perceptions of the Commission members who drew up the Guidelines."(emphases added).

iv. Scalia dissent at 4, continued: "[T]he sentencing judge, after considering the recited factors (including the Guidelines), has full discretion, as full as he possessed before the Act was passed, to sentence anywhere within the statutory length. If the majority thought otherwise – if it thought the Guidelines not only had to be ‘considered’ (as the amputated statute requires) but had generally to be followed – its opinion would surely say so." See also id. at 4 n.4 (although "the Guidelines represent what the Sentencing Commission ‘finds to be better sentencing practices,’ . . . the Commission’s view of what is ‘better’ is no longer authoritative, and district judges are free to disagree – as are appellate judges.").

III. The Result (for Appellate Courts):

1 The Breyer majority excises the different standards of review found in § 3742(e), and replaces it with a unitary standard of "reasonableness." See Breyer Op. at 22 ("The courts of appeals review sentencing decisions for unreasonableness.").

2. Breyer opaquely tells appellate courts to "determine whether the sentence is unreasonable with regard to § 3553(a). § 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. These factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Breyer Op. at 19.

3 When a sentence will be considered "unreasonable" on appellate review is anyone’s guess. However, Scalia in his dissent points out that, whatever reasonableness may ultimately mean in this context, it cannot mean that a sentence that deviates from the Guidelines range will be deemed unreasonable. As he puts it, "[A]ny system which held it per se unreasonable (and hence reversible) for a sentencing judge to reject the Guidelines is indistinguishable from the mandatory Guidelines system that the Court today holds unconstitutional." Scalia Dissent at 10.

IV. The Almendarez-Torres Exception to the Apprendi-Blakely Rule?

1 No explicit discussion, but Stevens’s majority opinion closes with the oft-repeated description of the Apprendi rule, which includes the Almendarez-Torres exception. See Stevens Op. at 20 ("[W]e reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.").

2 Practically, however, since Guidelines are now only advisory, this issue doesn’t really matter much anymore.

V. Mandatory Minimums?

1 No mention of Harris in Booker, though McMillan is cited in Stevens’ opinion as an example of the recent trend – turned back by the Apprendi / Blakely line of cases – of "increasing possible sentencing ranges" based on judge-found facts. Stevens Op. at 11.

2 But see Stevens’s dissent at 8-9, seeming to authorize a Bowman-type fix (which relies on viability of Harris and the minimum-vs-maximum distinction).

VI. Some Quick Thoughts on Post-Booker Sentencing Proceedings:

1 What if a district judge slavishly follows the Guidelines in imposing sentence? (See, e.g., Judge Cassell’s recent opinion in United States v. Wilson, Docket No. 2:03-CR-00882 (D. Utah Jan. 13, 2005)).
A. There’s an argument that if a judge follows the now advisory Guidelines too closely, the Guidelines become de facto "statutory maxima" under the Blakely rule, and thus prohibited.
i. As Stevens noted in his majority opinion, the fact that downward departures are potentially available do not save the Guidelines from being "mandatory" and thus infirmity under the Blakely rule. Stevens Op. at 9-10.
ii. Thus, an argument can be made that an interpretation of the Guidelines, post-Booker, as creating a presumptively correct sentence subject to deviation only in the "exceptional" case has the same Sixth Amendment problem.
B. In any event, nothing in Booker justifies giving the Guidelines range a "presumptive" correctness.
i. Breyer’s Opinion only states that the sentencing court should "consider" and "consult" the Guidelines. It does not say that the Guidelines are a starting point, benchmark, etc.
ii. Scalia’s Dissent correctly notes that under § 3553(a), the provision that now governs federal sentencing, there is " no order of priority among all those factors" listed.

2 Since Guidelines are only advisory, there should be no bar to using any factors prohibited (or discouraged) by the Guidelines in arguing for a lower sentence.
A The various factors listed in Section 5H of the Guidelines are all now potentially relevant to sentencing: E.g., age, education & vocational skills, emotional & mental condition, military / civic / charitable service, and lack of guidance as a youth.
B Also, factors that previously warranted a lower sentence only if present to an "exceptional" degree – e.g., family circumstances – no longer need to meet the "exceptional" standard to warrant a lower sentence.
C Any other factors you can think of can potentially be relevant: E.g., surrender of a suppression motion, economic costs of incarceration, and "collateral" costs already borne by your client (e.g., deportation, loss of livelihood, etc.).

3 Relatedly, there’s an argument to be made that the resulting sentence should be lower than the Guidelines sentence because the Sentencing Commission, in coming up with the applicable Guidelines sentence, specifically excluded all the factors recited above, which are now relevant.
A. Also, as pointed out in Scalia’s dissent, the sentences called for by the Guidelines are the product of a policy decision by the Sentencing Commission to create sentences "‘significantly more severe than past practice’ for the ‘most frequently sentenced offenses in the federal courts.’" Scalia Dissent at 3, quoting Sentencing Commission’s recent report ("Fifteen Years of Guidelines Sentencing (2004)).
B And "[i]f those policy decisions are no longer mandatory, the sentence judge is free to disagree with them." Id.