Saturday, April 30, 2005

A Blanket Order concerning Appeals with Unpreserved Booker Errors

Yesterday, April 29th, the Court issued the following blanket order, which applies to all appeals raising a Booker claim in which the error was not preserved (i.e., primarily cases in which the sentencing occurred before Blakely was decided in June 2004). It states, in is cryptic entirety,

"John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced the following: In cases pending on direct review involving appeals of sentences imposed prior to United States v. Booker, 125 S. Ct. 738 (2005), in which the sentencing judge’s error in applying the Sentencing Guidelines mandatorily was not preserved for appellate review by an appropriate objection, the Court will be receptive to motions agreed to by all parties to the appeal to remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), without the need for briefing of the merits of the appeal. However, any panel to which such motions are presented has the prerogative to dispose of such motions as the panel deems appropriate."

I confess that I am not sure what this 2-sentence order means. On the one hand, the first sentence merely states the obvious: Haven't we all been seeking Crosby remands on consent rather than filing full merits briefs? On the other hand, the second sentence seems to take away somewhat what the first sentence gives: Any individual Panel hearing such consent motions may grant, deny, or do anything else it deems approrpiate to such motions. Huh?

Suggested interpretations are welcome.

Friday, April 29, 2005

The Guidelines Grind Continues, even after Booker

United States v. Maloney, Docket No. 03-1753 (2d Cir. April 28, 2005) (Jacobs, Pooler, Sotomayor) (Op. by Sotomayor): Some of us had hoped that Booker, rendering the Guidelines-derived range merely advisory, would put an end to the mind-numbing analyses of poorly drafted Guidelines provisions churned out by the Circuit each week. Such hopes had been increased by the Court's decision in Rubenstein (see Blog below), in which the Court explained that because reasonableness is now the end-all-and-be-all for determining whether a sentence will be upheld on appellate review (rather than the correct application of the Guidelines), and because whether a sentence is reasonable or not is not necessarily dependent on whether it flowed from a correctly calculated Guidelines range, the Court has the authority to overlook Guidelines disputes and simply affirm or vacate a sentence based on its reasonableness (or lack thereof).

In Rubenstein, the Court decided that it would in fact address & resolve the Guidelines dispute in that case because given the significance of that particular dispute (involving a 4-level enhancement), "the influence of [the erroneous imposition of the enhancement] is likely to be so pronounced that it could cause resentencing after remand to be unreasonable." Op. 19. The Court used the same justification in Capanelli to reach a Guidelines issue where a 5-level enhancement was in dispute. The lesson seemed to be that if the Guidelines dispute involved only a 1 or 2-level difference, the Court would skip the dispute and simply evaluate the sentence itself under Booker's reasonableness standard. Such an outcome would please many advocates tired of arguing over one Guidelines technicality after another.

More recently, however, the Court in Fagans (see Blog below) used a different "test" to determine whether Guidelines disputes would be resolved on appeal. That case explained that if the Guidelines dispute is easily resolved, then the Court would address it; but if the dispute were difficult, the Court may simply undertake a reasonableness analysis.

In Maloney, however, the Court undertakes neither the Rubenstein evaluation ("Is the Guidelines dispute significant?") nor the Fagans assessment ("Is the Guidelines dispute difficult to resolve?"). Rather, the Court says simply: "We reach the double counting issue notwithstanding the fact that the Guidelines are now only advisory, (citing Booker), because the district court on remand remains under an obligation to consider 'the sentence that would have been imposed under the Guidelines,' (citing Crosby)." Op. at 5. Oy. Does this mean that every Guidelines dispute must be resolved? One shudders to think.

In any event, the actual Guidelines dispute is simple: Does the 2-level enhancement under 2B1.1(b)(7)(C) (applicable where the conduct involved the violation of a prior judicial order) apply when the offense of conviction is 18 U.S.C. § 228, which punishes anyone who fails to "pay a support obligation with respect to a child who resides in another State ..." The answer is yes. Although this of course constitutes "double counting" in common parlance, it is not impermissible double counting because, as the Court ruled, the Guidelines intended for such double counting.

Wednesday, April 27, 2005

Circuit Enforces Appeal Waiver, Entered into before Blakely or Booker, to Dismiss Booker Challenge on Appeal

United States v. Morgan, Docket No. 03-1316 (2d Cir. April 27, 2005) (Straub, Pooler, Parker) (Op. by Parker): You win some, you lose some. A mixed bag for defendants from the Circuit today: a good decision in Fagans, and an awful one in Morgan. In a short opinion -- issued "on reconsideration" -- that is equally short on reasoning or analysis, the Circuit joined the 2 or 3 other circuits that have decided this issue and held that an appeal waiver, even if it was entered into before either Blakely or Booker was decided, will be enforced and thus will bar an appeal raising a Booker claim. This is the central passage:

"Morgan entered into his plea agreement [which included a waiver of his right to appeal any sentence within a stipulated range] after Apprendi v. New Jersey, 530 U.S. 466 (2000), but before Booker/Fanfan. Thus, there is every reason to assume that Morgan had knowledge of his Apprendi rights at the time he entered into the plea agreement. That Morgan did not, by contrast, have knowledge of his rights under Booker/Fanfan makes no material difference. His inability to foresee that subsequently decided cases would create new appeal issues does not supply a basis for failing to enforce an appeal waiver. On the contrary, the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements."

Op. at 3-4.

A Preserved Blakely / Booker Error Warrants Resentencing (and Not Merely a Crosby Remand)

United States v. Fagans, Docket No. 04-4845-cr (2d Cir. April 27, 2005) (Newman, Cabranes, Pooler) (Op. by Newman): This is the most recent of a long line of opinions authored by Judge Newman that discuss the application of Booker to cases pending on review. It answers an open question about whether a Crosby remand (i.e., a proceeding in which the district court decides whether to resentence) or whether a full resentencing is the appropriate remedy when the defendant raised a Blakely-based objection at sentencing. And the lesson is simple: If your client raised a Blakely objection to the Guidelines at sentencing (regardless of whether the objection was made in the form of a "Blakely-ized Guidelines" objections or in the form of a "Guidelines as a whole are unconstitutional" objection) , then you get a full resentencing and not merely a Crosby remand. Fagans also discusses a couple of other issues, including one related to criminal history.

(1) Primarily, Fagans holds that where the defendant at sentencing contended that certain Guidelines enhancements -- including those based on facts concerning his criminal history -- could not be applied in light of Blakely, a subsequent Booker claim is considered preserved on appeal. Because the standard of review is, therefore, not "plain error," Crosby's remedy -- the remand proceeding wherein the district court decides whether s/he would have imposed a materially different sentence had s/he been aware of the Booker regime of advisory Guidelines -- is inapplicable. Rather, a good ol' remand for resentencing -- with the defendant present and perhaps an updated PSR -- is required.

Two steps must be taken before reaching this conclusion, however, but Fagans somewhat mysteriously only specifically addresses one (and that merely in a footnote). The first is whether a Blakely argument, made at or before sentencing, that certain enhancements could not be applied because the facts underlying them were not proved beyond a reasonable doubt (or admitted by the defendant), but that the Guidelines are otherwise applicable, is sufficient to preserve a Booker claim, raised on appeal, that the district court erred in treating the Guidelines as mandatory rather than advisory. Here, it appears that the defendant never argued below for what we all know now as the Booker remedy. Nonetheless, the Court concluded that the error was preserved: "Although the Defendant's objection, based on Blakely, to the compulsory use of the Guidelines could be viewed as limited to preserving a Sixth Amendment objection, we think he sufficinetly alerted the District Court to his claim that it was unlawful to use the Guidelines in a compulsory manner." Op. at 4-5 n.1.

The other step that must be taken before reaching the conclusion of remand-for-resentencing is the harmless error standard. The mere fact that the defendant has preserved an error for appellate review doesn't automatically warrant vacatur of the judgment and remand for resentencing. Rather, such a result is required only if the Government cannot satisfy its burden of proving to the "reviewing court [that] , on the record as a whole, . . . that the error did not affect the district court’s selection of the sentence imposed." Williams v. United States, 503 U.S. 193, 203 (1992).

Fagans contains no discussion of harmless error, however. Rather, it simply concludes that because the error is preserved, remand for resentencing is required.

My 2 cents: Most likely, Fagans did not undertake a harmless error analysis because the Second Circuit had already concluded in earlier cases that it is impossible to determine whether a court that sentenced the defendant under the pre-Booker scheme would have imposed the same sentence had it been aware of Booker, e.g., Crosby, 397 F.3d at 117-118, and, therefore, that the Government could not possibly satisfy its burden under the harmless error standard. As Crosby explained, for instance:

"Without knowing whether a sentencing judge would have imposed a materially different sentence, under the circumstances existing at the time of the original sentence, under the circumstances existing at the time of the original sentence, if the judge had discharged his or her obligations under the post-Booker/Fanfan regime and counsel had availed themselves of their new opportunities to present relevant considerations, an appellate court will normally be unable to assess the significance of any error that might have been made. Perhaps in some cases an appellate court could make an educated guess as to the likely outcome of a remand, but that guess might be wrong, absent a clear indication at the original sentencing supporting the inference that the same sentence would have been imposed under the post-Booker/Fanfan regime."

Crosby, 397 F.3d at 117-118. Accord United States v. Williams, 399 F.3d 450, (2d Cir. 2005) ("[A]s a reviewing court[,] we do not know what the sentence would have been absent the error.").

(2) Fagans also discusses an issue touched upon by recent cases such as Rubenstein and Capanelli (see Blog entries below): Whether the Court should resolve Guidelines disputes even though it is remanding for resentencing anyway, or whether it should allow the district court to resolve these disputes in the first instance. Of course, either solution is plausible because while "[i]n many circumstances, an incorrect calculation of the applicable Guidelines range will taint not only a Guidelines sentence, ... but also a non-Guidelines sentence, which may have been explicitly selected with what was thought to be the applicable Guidelines range as a frame of reference," Fagans, Op. at 5, whether a sentence will ultimately be upheld as reasonable is not necessarily dependent on whether it was imposed pursuant to a correctly or incorrectly calculated Guidelines range, see Rubenstein.

In Rubenstein, the Court seemed inclined to resolve this question by evaluating the significance of the Guidelines dispute to the ultimate sentence. Thus, for instance, it decided to resolve a dispute concerning a 4-level enhancement in Rubenstein (and a 5-level enhancement in Capanelli) because "the influence of [the erroneous imposition of the 4-level enhancement] is likely to be so pronounced that it could cause resentencing after remand to be unreasonable." Op. 19. The implication is that more minor Guidelines disputes (for instance, one that involves whether the defendant falls in one or the other of two adjacent ranges) would not be resolved on appeal. In contrast, Fagans resolves this issue by examining how much work the appellate court might have to do, rather than the potential influence of the Guidelines dispute on the ultimate sentence. As the opinion explains,

"If the issue concerning the correctness of a Guidelines calculation is difficult, an appellate court might understandably prefer not to resolve the issue upon an initial appeal of a pre-Booker sentence and instead to remand ... for resentencing [or for a Crosby remand, depending on whether the error is preserved]. On the other hand, if the Guideline calculation issue is not difficult, it might often be preferable to adjudicate the calculation issue prompty so that subsequent sentencing proceedings will occur in light of a correct calculation."

Op. at 5-6. And because the Gudelines issues in Fagans's appeal were easily answered, the Court resolved them before remanding for resentencing.

(3) Finally, Fagans discusses an issue that has already drawn attention from Professor Berman's remarkably thorough and always up-to-date (really, how DOES he do it?) blog: the scope of the prior conviction exception to the Apprendi / Blakely rule, as announced in Almendarez-Torres. Professor Berman focuses on a passage in Fagans, in which the Court approved of the PSR's inclusion of 2 criminal history points based on the fact that the defendant was on probation when he committed the underlying offense: "While the exact scope of the phrase 'fact of a prior' conviction has yet to be determined, see Shepard v. United States, the conviction itself, and the type and length of a sentence imposed seems logically to fall within this exception." Op. at 7.

Yes, this language is quite broad, perhaps too broad in including not just "the conviction itself," but also "the type and length of a sentence" under the Almendarez-Torres umbrella (leaky though it is). But it is not really much to be excited about, given that the discussion simply concerns the calculation of the now-advisory Guidelines range and thus do not implicate any Sixth Amendment issues. Moreover, it is nothing new -- the Second Circuit has long included such peripheral facts concerning criminal history within the Almendarez-Torres exception. E.g., United States v. Santiago, 268 F.3d 151 (2d Cir. 2001). It will take a clear ruling from the Supreme Court before the Circuit changes its mind in this area.

Friday, April 22, 2005

Government's Breach of Plea Agreement Leads to Resentencing

United States v. Vaval, No. 04-121-cr (April 12, 2005)(Winter, Sotomayor, and Parker)(op. by Winter). In this opinion, the Court addressed two important issues regarding guilty plea practice – the sufficiency of the allocution and the government’s obligations under a plea agreement.

Troy Vaval and his confederates made arrangements to sell firearms to a confidential informant. When the CI showed up to close the deal, Vaval and the others robbed him, stealing the buy money, his wallet and jewelry, and his car.

Vaval pled guilty to one count of robbery of federal property with a dangerous weapon, pursuant to a plea agreement. The agreement listed the relevant statutory maxima, but had "N/A" next to the line for restitution. In addition, although the government retained the right to describe to the court Vaval’s criminal conduct, it agreed to "take no position concerning" where within the applicable guideline range Vaval should be sentenced, and promised not to seek an upward departure. The agreement excused the government from these provisions only if new information relevant to sentencing came to light or Vaval breached the agreement.

During the plea allocution, the court never advised Vaval that he faced a mandatory restitution order. Later, in response to a question from defense counsel, the government ratified its promises that it would not engage in sentencing advocacy.

At sentencing, however, the prosecutor became an advocate. First, he argued for a higher role adjustment than that contained in the plea agreement, claiming that the mistake was due to a misunderstanding of the law. The court rejected this, and adopted the range contained in the plea agreement. Then, when given a second chance to speak, the prosecutor (1) argued that criminal history category to which Vaval was assigned was too low, characterizing his history as "appalling,"(2) called the defendant’s own statement in mitigation "disingenuous," and(3) gave a lengthy, and most damning, description of the offense and Vaval’s conduct, asking the judge to "consider all of that" when deciding on the appropriate sentence.

The judge sentenced the defendant at the top of the range.

The Court’s Decision
Vaval’s first argument was that he was entitled to get his plea back because he was not advised by the court that he faced mandatory restitution. The Court of Appeals made short work of this, noting that the presentence report correctly indicated that full restitution was mandatory. Although Vaval could have moved to withdraw his plea when he saw that, he did not, which the Court viewed as a sure sign that he would still have gone ahead with the plea if he had been advised of the restitution requirement by the district judge. The Court thus concluded that the Rule 11 violation did not amount to plain error.

The Court was a good deal more sympathetic to his argument that the government had breached the plea agreement at sentencing. Although the agreement permitted the government to "advise" the court of information relevant to sentencing, including Vaval’s criminal conduct, here the prosecutor went further, for example in his highly negative characterizations of Vaval’s criminal history and contrition. Also of significance was the fact that the prosecutor’s comments came after the district court had already calculated the guideline range, leaving little doubt that the prosecutor’s true intent was either to obtain a departure or to influence the court’s decision about where to sentence Vaval within that range, both of which were clearly barred by the agreement.

The Court concluded by going into an detailed examination of the available remedies. There are some cases where no remedy is appropriate – for example, where the breach has previously been cured by specific performance, or where the breach iwas so minor that it did not cause the defendant to suffer any meaningful detriment.

Where the government has breached a pledge to refrain from sentencing advocacy, some remedy is required, and the defendant need not affirmatively show that his sentence was increased as a result of the breach. In this situation, the remand can be either for resentencing before a different judge or withdrawal of the plea depending on the circumstances.

In Vaval’s case, the Court concluded that a resentencing before a different judge was the appropriate remedy because it would fully cure the breach.

Wednesday, April 20, 2005

On Mail Fraud, Property and Cheap Gas

Oscar Porcelli v. United States, Docket No. 04-2000-pr (2d Cir. April 12, 2005): Those driving automobiles in the New York area in the early 1980's will remember Oscar Porcelli fondly as the owner of the Gaseteria chain of discount gas stations, an operation that was able to charge prices for gas significantly lower than all other outlets. The reason for that ability, it turned out, was that Porcelli simply failed to collect state sales taxes on the gas he sold while filing false sales tax returns. Although this conduct was at worst a misdemeanor under New York law, it led to Porcelli's conviction in Federal court of one count of Rackeetering (RICO) and numerous counts of mail fraud. It also led (alas!) to the demise of the Gaseteria chain and to a whole lot of post-conviction litigation.

On direct appeal in 1989, the Circuit recognized that it "pushed the law" to its outer limits to subject Porcelli to a RICO conviction for conduct that was at most a misdemeanor under state law, but affirmed the conviction nonetheless. Judge Newman dissented on the ground that there was no "deprivation" of property (or attempted deprivation) under McNally v. United States, 483 U.S. 350, since Porcelli never even tried to collect the sales taxes from his customers and never obtained or attempted to obtain property belonging to the state.

The Circuit upheld the conviction twice against subsequent post-conviction attacks based on developments in New York law, the first, a holding that the state had no property interest in checks for taxes due where it had not previously obtained possession of those checks, and the second a holding that taxes due the state were not property of the state prior to being remitted.

In this, his third post conviction proceeding, seeking a writ of coram nobis, Porcelli claimed that the U.S. Supreme Court decision in Scheidler v. NOW, 537 U.S. 393, holding that interference with the use of property was not the "obtaining" of property punishable by the Hobbs Act, had undercut his conviction. The Circuit rejected this contention rather quickly, simply holding that the mail fraud statute, unlike the Hobbs Act, punished "any scheme or artifice to defraud, or for obtaining money or property ...." Whether this is an adequate answer to Porcelli's complaint is hardly clear, however, since the crux of Porcelli's arguments has always been that not only did he not obtain, but that he never tried to obtain, the money due in sales taxes.

Indeed, the Court appeared to recognize the problem by going on to address Porcelli's complaint that his conviction was simply wrong because what the Circuit had previously found sufficient to uphold it -- that by deception he concealed the state's cause of action for unpaid taxes from it -- was not an obtaining or an attempt to obtain property from the state. (An analogous deprivation was, of course, not sufficient to be "obtaining" in Scheidler.) The Court, recognizing that this was an "attractive" argument, essentially rejected it as having come too late.

Following this last (or perhaps only most recent) Porcelli installment, it is a little difficult to tell what exactly the Court holds the gist of the property deprivation in the case to be. The Court appears to abandon its former reliance on Porcelli's concealment of a cause of action as the crux of the crime and to return to the notion that "taxes owed to governments .. [are] "property" within the meaning of the mail and wire fraud statutes." But, as Judge Newman explained originally, in Porcelli's case that does not seem to be applicable, since he did not obtain or try to obtain the state's tax revenues; he just passed on the savings to his customers. So, the Court's only real answer may be that it is "too late in history" to think clearly about Porcelli's case at last; it certainly fails to give any other clear justification of its jurisprudence as applied to Porcelli's case.

Tuesday, April 19, 2005

Some Choice Dicta about the Reasonableness Standard

United States v. Susan Godding, Docket No. 04-3643 (2d Cir. April 19, 2005) (Oakes, Kearse, Sack) (per curiam): Many of us are waiting for a definitive say from the Circuit about the meaning of Booker's reasonableness standard of review, beyond the generic statements in Crosby and Fleming that reasonableness is a "flexible" concept and that the Circuit will "exhibit restraint, not micromanagement" in performing this appellate function. This odd little case is, unfortunately, not that definitive statement. Nonetheless, the Circuit -- while ultimately simply remanding for a Crosby determination by the district court -- suggests that the sentence imposed, as well as some remarks made by the district court at the original sentencing, were unreasonable.

The opinion tells us very little about the offense or the defendant. Ms. Godding worked for a bank and, over a 5-year period, managed to embezzle over $366,000 from her employer. Although her Guidelines range was 24 to 30 months, the district court downwardly departed (pre-Booker) to a sentence of one day's imprisonment, followed by 5 years' supervised release (with the special condition that the first six months be spent in home detention). The opinion does not discuss what grounds the district court relied upon in departing.

The Government appealed, initially arguing that nothing in the record justified a departure. After Booker was decided, however, the Government moved for a Crosby remand.

The Circuit granted that motion. In so doing, however, the Court expressed strong disapproval of some remarks made by the district court at the sentencing. Specifically, while stating that it was not relying on this as a basis for departure, the district court criticized the victim bank for having so lax a system of security and internal control as to allow the defendant to commit her crime over a 5 year period. As the Circuit put it, "[w]hile the court noted that it was not considering the bank's failure in this regard as a factor relevant to a departure, and that it did not consider it a factor in sentencing, it expressed its view that the significance of the pilferage could be attributed to the bank's failure to act sooner." Op. at 5.

The Circuit was "most troubled" by this statement. Id. It warned "that consideration of such a factor and the conclusion that it, and not the defendant's volitional acts, rendered the sum embezzled in this case more significant than it otherwise would have been, would lead us to question the reasonableness of a non-guideline sentence." Id.

This critique was odd enough, given that the district court explicitly said that its criticism of the bank was not in any way a factor in its sentencing decision. (And doesn't the Circuit always take such statements by the district court at face value, no matter how ludicrous?) But the Circuit did not stop there, and went on to criticize the sentence simply for its brevity. As it stated, "Furthermore, we are more broadly concerned that the brevity of the term of imprisonment imposed by this sentence does not reflect the magnitude of the theft of nearly $366,000 over a five-year period." Op. at 5.

It is hard to draw a proper lesson from this decision -- other than that district courts should watch what they say. The interesting parts of the opinion are all dicta, and the opinion does not give us enough facts about the defendant or her crime to evaluate whether the sentence was appropriate.

A potentially troubling aspect of the opinion, though, is that the district court actually had a good point: Too often, the Guidelines' tunnel-vision focus on quantity (be it loss amount or drug weight) as the determining factor in sentencing is irrational. The district judge rightly criticized such a sentencing philosophy as too "simplistic," and correctly noted that it was "fallacious" to equate quantity with culpability. Op. at 4. This is the same criticism made by other judges and academics, including Judge Lynch in his very fine opinion in Emmenegger, 329 F. Supp.2d 416 (S.D.N.Y. 2004). As Judge Lynch put it in a case involving perhaps very similar facts as this one, the Guidelines often place

"undue weight on the amount of loss involved in the fraud. . . . To a considerable extent, the amount of loss caused by [a] crime is a kind of accident, depending as much on the diligence of the victim's security procedures as on Emmenegger's cupidity. Had Emmeenegger been caught sooner, he would have stolen less money; had he not been caught until later, he would surely have stolen more. Nothing about the offense indicates that Emmenegger set out to steal $300,000, no more and no less. Rather, he took advantage of his position to steal various amounts from time to time. The rough magnitude of the theft is relevant to sentencing, but the particular amount stolen is not as significant."

329 F. Supp.2d at 427 (emphasis added). And reading between the lines of Godding, it seems that this is exactly what the district judge was trying to say.

Of course, the Circuit did not directly attack such a criticism of the Guidelines; it only, technically, criticized the district court's "blame-the-victim" approach. But it is worrisome nonetheless.

Monday, April 18, 2005

Circuit Affirms Grant of Habeas, and Clarifies the Exhaustion Standard

Jackson v. Edwards, Docket No. 03-2805 (2d Cir. April 14, 2005) (Newman, Sack, Parker) (Op. by Parker): In this case, the Circuit affirms a grant of habeas by Judge Weinstein, and in so doing clarifies an issue regarding exhaustion. The substantive issue is fact specific -- it concerns whether the defendant was entitled to a justification charge during his state trial for homicide and criminal possession of a weapon. Readers interested in that issue should consult the opinion. Suffice it to say that the Second Circuit concluded that, under the specific facts of this case, the state trial court violated the defendant's Due Process right when it refused to give a justification charge.

The exhaustion question concerned whether the defendant's brief to the Appellate Division "fairly presented" the federal Due Process claim -- the subject of the instant habeas petition -- when it "argued only that the trial court's refusal to instruct the jury on the defense of justification violated New York law and failed to cite the federal Constitution, federal case law, or state law employing federal constitutional analysis." Op. 9. After surveying recent Supreme Court and Second Circuit case law relevant to the issue, the Court explained that it was an open question whether a defendant needed to "indicate [a] claim's federal nature [where] the standards for adjudicating the state and federal law claims were identical." Op. at 11. The Court then concluded that the defendant did in fact "fairly present" the Due Process issue even though he raised only state-law claims to the Appellate Division.

The reason for this seems rather obvious: Where state and federal claims "share the same legal standard," as here, the rationale underlying the exhaustion requirement -- the desire to let state courts have the first opportunity to correct their own errors -- are easily met by a presentation of "only" the state claim to state courts. As the Second Circuit explained, the defendant "did not explicitly have to tell the state court that he was presenting a federal due process claim because, by raising his state law claim, he necessarily gave the Appellate Division a fair 'opportunity to pass upon and correct alleged violations of [his] federal rights.'" Op. at 14.

Saturday, April 16, 2005

Circuit Again Vacates an Erroneous Enhancement without Conducting Reasonableness Review

United States v. Capanelli, Docket Nos. 03-1376 & 03-1439 (2d Cir. April 14, 2005) (Oakes, Jacobs & Cabranes) (Op. by Jacobs): In this opinion, the Circuit -- as it did recently in United States v. Rubenstein, No. 03-1721 (see Blog, below) -- vacates an erroneously imposed 5-level Guidelines enhancement; exercises its discretion to correct the error and remand for resentencing without conducting Booker's reasonableness review; and leaves open (again) the question of whether a sentence imposed pursuant to an erroneously calculated Guideline range could nonetheless be reasonable. Thus, the Big Question posed by Rubenstein -- whether a sentence imposed upon an erroneously calculated Guidelines range could nonetheless be upheld on appeal as reasonable (and, conversely, whether a sentence imposed pursuant to a correctly calculated range could nonetheless be vacated on appeal as unreasonable) -- remains unanswered.

Defendant was convicted after trial of conspiring to rob a federal credit union, a conspiracy that was foiled long before the actual robbery was to have occurred. The main question on appeal was whether a 5-level enhancement for possessing or brandishing a firearm during a robbery was applicable. Although no actual firearm was used (since the robbery never occurred), the district court imposed the enhancement on the theory that it was "reasonably foreseeable" to the defendant that a firearm would be used by one of the conspirators in furtherance of the robbery. See U.S.S.G. § 1B1.3(a)(1)(B).

The Circuit concluded that this was the wrong legal standard where the conduct supporting the enhancement did not actually occur. Relying on § 2X1.1's specific language (that in a conspiracy offense, a court should include "any adjustments . . . for any intended conduct that can be established with reasonable certainty") and the application note explaining this language (A.N. 2 to 2X1.1: "The only specific offense characteristics ... that apply are those that are determined to have been specifically intended or actually occurred"), Judge Jacobs ruled that the 5-level enhancement is applicable only "where it can be established with reasonable certainty that the conspirators specifically intended that a firearm be brandished or possessed, although it is unnecessary that any brandishing or possessing actually occurred." Op. at 8 (emphases in original). The language in 1B1.3 relied upon by the district court -- that a conspirator is liable for all "reasonably forseeable" acts "that occurred" in furtherance of the conspiracy by a co-conspirator -- was not relevant here, the Court explained, because no firearm was actually possessed or brandished. And although the facts in this case may well have supported an enhancement even under the correct standard (i.e., that there was a "reasonable certainty" that the conspirators specifically intended to possess or brandish a firearm during the contemplated robbery), the Court remanded to allow the district court to determine in the first instance whether the enhancement is appropriate under the correct legal standard. Op. at 11-12.

And, as noted already, the Court cautioned that its decision in this case to correct the error & remand for resentencing without conducting reasonableness review does not foreclose the possibility that a sentence resulting from an incorrectly calculated range can nonetheless be upheld as reasonable under Booker. Op. at 12. It simply notes that because "the influence of this error is likely to be so pronounced that it could cause resentencing after a remand to be unreasonable," citing Rubenstein, it would remand for imposing of a new sentence under a correctly calculated Guidelines range. Id.

Thursday, April 14, 2005

Circuit Rejects Defendant's Effort to Assert Standing to Challenge Search of Stash House by Relying Only on Government's Allegations

United States v. Watson, Docket No. 03-1709 (2d Cir. April 12, 2005) (Kearse, Cabranes, Korman) (Op. by Cabranes): In Watson, the Circuit affirms a district court's denial, pre-hearing, of a defendant's motion to suppress the fruits of an allegedly illegal search of a residence. The decision is noteworthy for practitioners because it limits a defendant's ability to challenge a search where he is unwilling (usually for strategic reasons) to claim that he owned or occupied the place where the evidence was seized -- i.e., that he had "a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128 (1978).

The defendant in this case, Roger Watson, was charged with a series of drug and gun offenses based, in part, on evidence seized pursuant to a search of a basement apartment located at 33-18 Fish Avenue in the Bronx. The defendant moved to suppress the evidence seized during the apartment search, claiming that the search warrant was deficient in some respect (the opinion doesn't spell out how). But rather than having the defendant allege in his affidavit that he owned or lived in the Fish Avenue apartment -- something he presumably wasn't keen to fess up to given what was found there -- the defense tried to rely exclusively on the government's theory of the case to establish his standing to challenge the search. The defense explained in an attorney affirmation that the warrant itself stated that the apartment was used by an individual named "J.D. Scullarchi," and that (1) the superceding indictment listed "Skilarchie" as an a/k/a for Watson, and (2) a Marshal's form provided to the defendant in discovery listed the Fish Avenue apartment as one of Watson's prior residences. Finally, the attorney affirmation made the general claim that "Roger Watson would have an expectation of privacy and, as such standing to contest a search pursuant to a search warrant which authorized the search of his person as well as his residence or former residence."

The defendant was in something of a catch 22, obviously: He wanted to challenge the propriety of the search of a stash house, which the government was going to claim belonged to him, without admitting under oath that it was his. The district court rejected the defendant's effort, holding that a hearing wasn't necessary because the defendant had failed to meet his burden of proving that he had an expectation of privacy in the place searched. The Circuit agreed, noting that the factual claims in the attorney affirmation were insufficient: "That the search warrant listed a person who may be defendant among those who 'utilized' 33-18 Fish Avenue does not come close to showing that defendant 'owned the premises or that he occupied them and has dominion and control over them by leave of the owner.'" (Quoting United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990)). The panel also seemed distressed by the fact that, at trial, the defendant offered testimony to the effect that he did not reside at the Fish Avenue apartment; in other words, that he was trying to have his cake and eat it too.

The take-away is that a defendant cannot "challenge the search of a residence merely because he anticipated that the Government will link the objects recovered in that search to defendant at trial." But while a defendant cannot have it both ways, the government can. Here, the government presumably opposed the suppression motion on the ground that the defendant had not alleged that he used the apartment, even though the government intended to prove at trial that he had. Because the defendant has the burden of proof in establishing standing, he is the one who has to make the choice.

Friday, April 08, 2005

Circuit Slams the Habeas Door: Booker Not Applicable to Cases that Became Final before January 12, 2005

Guzman v. United States, Docket No. 03-2446-pr (2d Cir. April 8, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): Disappointing though hardly surprising, the Circuit ruled today that Booker does not apply to any cases that became final before January 12, 2005, the day Booker was decided. For those who prefer the jargon, the Court concluded that the rule established in Booker -- described simply as calling for an advisory Guidelines system rather than a binding one (following the Seventh Circuit's similarly slanted characterization in McReynolds) -- is (1) new (i.e., was not "dictated by" either Apprendi or Blakely); (2) procedural (rather than substantive); and (3) not within the "watershed" exception to Teague's bar against retroactive application of a new procedural rule to cases that became final before the rule was announced. Little new ground is trod by the opinion; it largely relies on earlier decisions reaching the same result.

Guzman is a particularly loud slam of the habeas door. A good argument could be made, for instance, that it was Blakely that announced the new rule (which Booker simply applies to the Guidelines), and thus that anyone whose case became final after June 24, 2004, could make a Blakely argument in a habeas petition. The universe of such defendants is, granted, small. Under Guzman, however, it becomes practically nonexistent: The only defendants who can benefit from Booker are those whose cases became final after January 12, 2005, and there are likely few among this crowd who suffer a Booker error.

Thursday, April 07, 2005

A Post-Booker First? Circuit Vacates a Sentence as Unreasonable under Booker

United States v. Doe, Docket No. 04-1973 (2d Cir. April 5, 2005) (Wesley, Hall, and Mukasey, D.J.): In this unpublished summary order, the Circuit vacates a sentence as unreasonable under Booker. This is, to my knowledge, the first instance of a post-Booker reversal under the reasonableness standard in the Second Circuit.

Because it is merely a summary order, only a few facts can be gleaned. The defendant was convicted of two counts of making false statements on a passport application. He refused to disclose his true name throughout the proceedings, including to the Probation Office. The PSR determined that the applicable Guidelines range was 6 to 12 months, and recommended a sentence of "time served" since defendant had been in custody for nearly 18 months by the time of sentencing. Defendant had no apparent criminal history.

Judge Duffy -- no great surprise -- imposed a 10-year sentence (the statutory maximum). Apparently, the good judge upwardly departed to the statutory maximum because of the defendant's refusal to disclose his true identity.

The Circuit concluded that this sentence was unreasonable, "[i]n light of the crime charged, the sentencing range recommended, Doe's lack of any provable criminal history (based on fingerprint checks), and the district court's inadequate balancing of these factors against the perceived threat posed by Doe." The Circuit specifically noted that although Doe's intransigence regarding his name was "vexing" and "potentially obstructive" of the immigration process, it did not justify a 10-year sentence. Finally, the Circuit remands the case to a different judge for resentencing. Lucky Mr. Doe.

Comment: Too much should not be made of this decision. Apart from being non-precedential, the case almost certainly involved a pre-Booker sentencing. And even under pre-Booker law, Judge Duffy's draconian sentence -- representing a 10-fold increase over the top of the Guidelines range -- would likely have been vacated as unreasonable under 18 U.S.C. § 3742(e)(3)(C) (no longer in effect after Booker).

Wednesday, April 06, 2005

The Concurrency Mess

Abdul-Malik v. Hawk-Sawyer, Docket No. 04-3877-pr (2d Cir. April 5, 2005) (Jacobs, Calabresi, Rakoff, D.J.) (Op. by Jacobs): As anyone who has ever had a client serving both a federal and a state term of imprisonment knows, federal law concerning how to account for concurrency between (or, god forbid, among ...) these sentences is a complicated and irrational mess. In this decision, the Circuit confronts this shameful area of law and calls out to Congress to clean up the mess it created. While affirming the district court's order dismissing the petitioner's § 2241 petition -- which challenged the Bureau of Prison's refusal to designate his state prison facility as the place for service of his federal sentence under 18 U.S.C. § 3621(b) -- the Court concludes by directing the Clerk of Court to transmit a copy of the opinion to the "Chairs and Ranking Members of the House and Senate Judiciary Committees," with the hope that Congress can at long last inject some sense into this critical but overlooked area of law.

Abdul-Malik was arrested by the state of New York in 1992 and held in custody pending trial. While in state custody, he was indicted federally on unrelated charges. While the state case was still pending, Malik was writted into federal court ("borrowed" by the feds pursuant to a writ of habeas corpus ad prosequendum) to face the federal charges. Eventually, he was convicted and sentenced in federal court to 30 years' imprisonment. At sentencing, the federal court did not indicate whether the sentence would run concurrently with or consecutive to any future state sentence.

Abdul-Malik was then returned to state custody. He was eventually convicted and sentenced to 17 years' imprisonment. The state court indicated that this sentence was to run concurrently with the federal sentence. And because the state had "primary jurisdiction" over Malik (since it arrested him first), he began serving his sentence in state custody.

Because the state court's desire for concurrency has no effect on the BOP's calculations, and because the federal judge did not indicate concurrency, however, the end result was that the sentences would run consecutively to each other. Thus, Abdul-Malik asked the BOP to designate the state prison where he was serving his state sentence as the place for service of his federal sentence as well. The BOP possesses such authority under 18 USC § 3621(b). See McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998).

Unfortunately for Malik, the BOP turned him down in an exercise of discretion. The result of this decision was stark: After Abdul-Malik served his 17-year state sentence, he would be taken to a federal prison to begin service of his 30-year federal sentence. Although the state judge wished for the state sentence to run concurrently with the federal sentence, this desire would not be realized.

Abdul-Malik then filed a § 2241 petition challenging the BOP's determination. The district court dismissed the petition, and the Second Circuit affirmed, finding that the law was clear in vesting the BOP with discretion over § 3621(b) designations.

In so doing, however, Judge Jacobs reviewed the law in this area and noted numerous problems surrounding it -- including serious federalism concerns (because the feds refuse to abide by the state court's desire for concurrency) and separation of powers concerns (because the executive (in the form of the BOP) both prosecutes and decides the length of the sentence). Thus, Judge Jacobs asks the Clerk to send Congress a copy of the opinion, as the law in this area "raises fundamental questions that may warrant congressional attention."

Those interested in additional legal details should read the opinion. Suffice it to say that the mess Abdul-Malik found himself in is not unique. Indeed, there are numerous permutations on this problem, depending on at least the following considerations: (1) Who has primary jurisdiction over the defendant? (2) Which court sentences first? and (3) What did the courts say when they imposed the sentences? The only commonality among the diverse array of situtations is a lack of rationality.

Had Abdul-Malik been arrested by the feds first but all the other facts remained the same, for instance, he would be in his desired situation: He would first serve his 30-year federal sentence in a federal prison, and at the completion of this sentence, he would be taken to state custody and likely released shortly thereafter.

Similarly, if all facts remained the same except for the ordering of the sentencings -- i.e., had Abdul-Malik been sentenced first in state court, and then in federal court (and assuming that the second sentencing court (here, the federal court) again indicates that the federal sentence should run concurrently with the earlier state sentence) he would also be in the desired situation. Abdul-Malik would serve the 17-year state sentence first, but the BOP would start credit him with all of this time to give effect to the federal court's desire for concurrency.

Finally, even on the facts as given, a simple procedure could have yielded the state judge's desire for concurrency: Surrender primary jurisdiction over Abdul-Malik to the feds. After sentencing Malik, the state judge could have ordered him released on his own recognizance (or on a one-dollar bail), at which time the federal detainer (arising from the previously imposed federal sentence) would be triggered. Abdul-Malik would then be taken to federal custody to begin service of his federal sentence in a federal prison. And because the state judge ordered the state sentence to run concurrently, the state authorities would credit him with this time. (Caveat: It may be necessary in such a situation to somehow have the defendant's state bail / ROR "revoked", so that he can get state prison credit immediately).

There is, of course, no rational distinction between these hypotheticals and Abdul-Malik's actual situation. Abdul-Malik will nonetheless end up doing an extra 17 years in prison as a result of the irrelevant fact that he was first arrested by the state, or the equally fortuitous fact that he was sentenced first by the federal court. Let's hope that Congress heeds the Circuit's call to clear up this irrational and unfair mess.

Update: It has been brought to my attention (courtesy of Jennifer Brown) that the mess in Abdul-Malik could have been avoided if the federal district judge at the original federal sentencing simply stated, at the time that sentence is imposed, that it is his (or her) intent that the federal sentence commence immediately (i.e., as of the date of the federal sentencing). Apparently, where the judge includes this magic language at sentencing and in the judgment, the BOP will begin running the defendant's federal sentence, even if he is held in state custody (as in Abdul-Malik's case). Moreover, there is a possibility that the same result can be achieved even now: The federal judge can state on the record and include in an amended judgment that, when s/he imposed sentence imposed years ago, s/he intended for Abdul-Malike's federal sentence to begin running as of that date.

Tuesday, April 05, 2005

Deductive Logic Comes to the Second Circuit: The Meaning of an "Either/Or" Adjudication by a State Appellate Court for a Subsequent Habeas Petition

DeBerry v. Portuondo, Docket No. 03-2418 (2d Cir. April 4, 2005) (Walker, Oakes, and Pooler) (Opinion by Pooler) (Concurrence by Walker): In this case, the Second Circuit affirms the district court's denial of a § 2254 petition filed by a state prisoner claiming that the prosecutor violated the rule of Batson v. Kentucky, 476 U.S. 79 (1986), in using his peremptory challenges to strike African-Americans from the jury at petitioner's murder trial. Readers interested in the Batson issue should read the opinion for themselves. This Blog will focus on another issue touched upon by this case: What is the effect on a subsequent habeas petition when the claim advanced in the habeas was originally rejected by a state appellate court simply as "either" unpreserved for appellate review "or" without merit?

This is an issue that has been kicking around for awhile in the Circuit, and there is clearly a tension between cases issued by different panels. DeBerry unfortunately does not resolve the dispute, which is highlighted by Chief Judge Walker's fascinating concurrence. A warning may be necessary at this point: This is seriously soporific stuff, likely of interest only to those concerned with habeas minutiae.

A very brief discussion of the facts is required. DeBerry and a co-defendant were convicted at trial of murder, and they appealed to the Appellate Division, raising among other things a Batson claim. The Appellate Division affirmed the convictions, stating with respect to the Batson claim only that it was "either unpreserved for appellate review (citing cases) or [] without merit." The New York Court of Appeals denied leave to appeal.

DeBerry subsequently filed a § 2254 petition in federal court, raising a Batson argument. After conducting a reconstruction hearing, the district court denied the petition.

Judge Pooler wrote for the Court and affirmed the lower court's dismissal of the habeas. In so doing, she made two interesting procedural determinations, both of which flow from the Appellate Division's terse "either / or" rejection of the Batson claim. First, Judge Pooler rejected the state's argument that the Batson claim was procedurally defaulted, concluding that there was no clear statement by the Appellate Division that it was rejecting this claim on the basis of New York's claim-preservation rule. Second, Judge Pooler concluded that AEDPA deference was not warranted on the Batson claim, because it was also not clear that the Appellate Division had adjudicated this claim "on the merits." In his concurrence, Judge Walker finds no fault with the first determination, but argues that the second conclusion is logically inconsistent with the first. Although this argument has surface appeal ("If the state court did not dismiss the claim on procedural grounds, it must have done so on the merits!"), it is ultimately wrong.

The first consequence of the Appellate Division's "either / or" adjudication for the habeas case creates little controversy: It means that the habeas court cannot conclude that the claim has been procedurally defaulted. As the Supreme Court has held, for a federal court to dispose of a habeas claim as procedurally defaulted, the state appellate court’s reliance on the independent state procedural bar must be "clear from the face of the opinion." Coleman v. Thompson, 501 U.S. 722, 735 (1991). In other words, "federal habeas review of a state court’s rejection of federal claims is allowed where the state has not ‘clearly and expressly state[d] that its judgment rests on a state procedural bar.’" Fama v. Commissioner, 235 F.3d 804, 809 (2d Cir. 2000), quoting Harris v. Reed, 489 U.S. 255, 263 (1989). Indeed, Fama -- cited by Judge Pooler on this very point -- specifically addressed the effect of the Appellate Division's terse "either / or" rulings: "[W]hen a state court uses language such as '[t]he defendant’s remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." 235 F.3d at 809; see Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992) (concluding that where the Appellate Division opined only that a claim was either unpreserved or meritless, "[t]he state court did not clearly and expressly state whether it had examined the merits of the missing witness claim or had relied on a procedural default . . . [and so the] claim is properly subject to federal habeas corpus review").

It is the second consequence of the Appellate Division's "either / or" ruling that generated the dispute between Judge Pooler and Judge Walker in this case -- its effect on AEDPA's deferential standard of review. Thus, after determining that a claim made in a habeas petition has not been procedurally defaulted, the habeas court must then determine whether AEDPA’s standard of review is applicable. As § 2254(d)(1) explicitly states, AEDPA's deferential standard (permitting a grant of habeas only where, inter alia, the state court's decision "involved an unreasonable application of clearly established federal law as determined by the Supreme Court) is triggered only when a claim had been "adjudicated on the merits in State court proceedings." If the claim had not been "adjudicated on the merits" by the state court, then no AEDPA deference is warranted and the habeas court will simply review the claim de novo.

In several cases, the Second Circuit has held that where it is impossible to discern from either the language of the state court opinion or from the record itself whether the court rejected the claim on procedural or merits-based grounds, "a federal court should not give AEDPA deference to the state appellate court’s ruling." Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). Indeed, Miranda specfically analyzed a claim rejected by the Appellate Division using the same, terse "either / or" language used in this case, and concluded that "[w]here it is 'impossible to discern the Appellate Division's conclusion on the [] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Id. at 178. Miranda left open the possibility that in some cases, even where the Appellate Division employed its cryptic "either / or" language to reject the claim raised in the habeas petition, "the record [will] make[] it clear [] that a given claim had been properly preserved for appellate review." Id. In such cases, the habeas court should "conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division," id., and thus apply AEDPA deference in evaluating the habeas claim.

Relying on Miranda, Judge Pooler concluded that AEDPA deference was not warranted in this case because (1) the Appellate Division simply stated that the Batson claim was "either" procedurally defaulted "or" meritless, and (2) nothing in the record "makes it clear [] that [the Batson] claim had been properly preserved." Op. at 16-17. Unfortunately, Judge Pooler then went on to say that she did not need to resolve this issue, since the habeas petition was correctly dismissed using either the pre-AEDPA de novo standard or AEDPA's deferential standard, since there was no Batson violation. Op. at 18.

Judge Walker's concurrence focuses on Judge Pooler's conclusion that AEDPA deference was not applicable, and claims that this is logically inconsistent with her determination that the Batson claim was not procedurally defaulted. Judge Walker uses truth-function deductive logic to illustrate his argument, an effort that warms the heart of this former philosophy graduate student.

Judge Walker argues thus. Concurrence at 24. First, the Batson claim raised in the habeas petition was either (A) rejected on procedural grounds or (B) rejected on the merits, by the Appellate Division. Second, Judge Pooler's finding that the claim was not procedurally defaulted is tantamount to a finding of "not A". Q.E.D., the conclusion must be "B" -- i.e., the claim was rejected on the merits. And, therefore, AEDPA deference is warranted. [For those keeping score at home, this argument would be written as follows in standard truth function logic: Premise I: A v B; Premise II: ~A; Conclusion: B]. As Judge Walker puts it in plain English,

"The state court says its decision is based on either A (claim unpreserved) or B (fails on the merits). Fama creates a presumption that where the record provides no further indication of whether it was A or B, then the habeas court should presume it is not A (the claim is not unpreserved). Logic compels the conclusion that the state court must have decided the claim on the basis of B (the claim fails on the merits)."

Concurrence at 24. And, thus, AEDPA deference is warranted. Judge Walker cites to Ryan v. Miller, 303 F.3d 231 (2d Cir. 2003), for support. There, the Court broadly opined that if the claim was not procedurally defaulted, it must have been adjudicated on the merits for AEDPA purposes.

Clever as it is, the argument fails. The failure stems from a mis-statement of one of the premises. Specifically, while Judge Walker claims that Fama requires a habeas court confronted with an "either / or" ruling from the Appellate Division to "presume that . . . the claim is not unpreserved," this is not an accurate characterization. Rather, Fama simply applies Coleman's clear statement rule concerning procedural default: A habeas court should conclude that a claim has been procedurally defaulted only where the state court has "clearly and expressly state[d] that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263. Thus, a conclusion that the Batson claim was not procedurally defaulted in the habeas proceeding is tantamount only to a determination that no clear statement demonstrates that the state court rejected this claim on procedural grounds. Such a conclusion is not equivalent to a finding that the state court in fact rejected the claim on the merits.

A similar "clear statement rule" governs whether AEDPA deference is triggered. As noted, the Second Circuit held in cases such as Miranda that where it is impossible to determine whether the state court adjucated the claim on the merits or on procedural grounds, AEDPA deference is not warranted. Thus, a conclusion that AEDPA deference is not warranted is not equivalent to a finding that the claim was in fact rejected on procedural grounds by the state court. Rather, it simply means that the state court did not clearly and expressly reject the claim on the merits.

That is the flaw in Judge Walker's seemingly airtight argument. While it is true that a habeas claim must have been (in some metaphysical sense) either (A) rejected on procedural grounds or (B) rejected on the merits by the state court, a conclusion that the claim is not procedurally defaulted in a subsequent habeas proceeding is not equivalent to a conclusion that the claim was in fact not rejected by the state court on procedural grounds. Rather, it is merely a finding that no clear statement exists demonstrating that the state court rejected the claim on procedural grounds. Conversely, when a habeas court rules that AEDPA deference is not warranted, this conclusion means only that no clear statement exists demonstrating that the state court rejected the claim on the merits; it does not mean that the claim was rejected on procedural grounds.

Looked at in this light, Judge Pooler's seemingly inconsistent conclusions are in fact perfectly consistent (and, dare we say, logical). Where no clear statement exists to demonstrate the basis of the state court's rejection of the habeas claim, the claim is not procedurally defaulted and AEDPA deference is not warranted.

Monday, April 04, 2005

Yet Another Supreme Court Decision on AEDPA's One-Year Clock

Johnson v. United States, No. 03-9685 (U.S. April 4, 2005) : In a 5-4 decision, the Supreme Court by Justice Souter ruled that when a petitioner files a § 2255 petition based on a claim that his federal sentence was improperly enhanced by a state conviction that was vacated subsequent to the federal sentencing, AEDPA's one-year statute of limitations starts running as of the date that the petitioner receives notice of the state court order vacating the predicate state conviction. However, the Court also ruled that a petitioner can take advantage of this rule only if he has sought vacatur of his state conviction with due diligence after the district court has entered judgment in the federal case. Because the petitioner Johnson waited more than 3 years after entry of judgment in the federal case to file a motion in state court to vacate the predicate convictions, and proffered no excuse for the delay apart from his status as a pro se litigant, the Court concluded that "Johnson fell far short of reasonable diligence in challenging the state conviction" and thus that his § 2255 was untimely.

Justice Kennedy dissented, joined by the very odd line-up of Justices Stevens, Scalia, and Ginsburg. The dissent agreed with the majority that AEDPA's one-year clock should begin running as of the date that petitioner receives notice of the state court order vacating the state conviction, but rejected the additional requirement of due diligence in seeking the state remedy.

The lesson of Johnson is relatively simple. Defendants sentenced under a statute (e.g., 18 U.S.C. § 922(e), the Armed Career Criminal Act) or a Guidelines provision (e.g., §4B1.1, the Career Offender Guideline) that call for an enhancement of the federal sentence based on a prior state conviction (or convictions) who wish to eventually challenge their federal sentences under § 2255 must exercise "reasonable diligence" in seeking to vacate the predicate convictions once judgment has been entered by the district court. The key point to remember is that due diligence is measured from when the federal judgment of conviction is entered, not when the judgment becomes final (i.e., when the appeal has been affirmed and cert. has been denied).

Can an Incorrectly Calculated Guidelines Sentence Be Reasonable under Booker (or Vice-Versa)? Second Circuit Asks, but Does Not Answer, the Question

United States v. Rubenstein, Docket No. 03-1721 (2d Cir. March 31, 2005) (Cardamone, Jacobs, and Cabranes) (Op. by Jacobs):

Introduction: In this case, the Court rejects a legal challenge to the defendants' conviction for improperly removing asbestos under the Clean Air Act, but vacates their sentences because of an improperly imposed 4-level enhancement. In so doing, the Court "express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable" and thus affirmed on appeal regardless of the error, Opinion at 13, but chose to vacate the pre-Booker sentence anyway (rather than engage in Booker's reasonableness analysis) "because we think that the influence of this error is likely to be so pronounced that it could cause resentencing after remand to be unreasonable." Op. at 19.

In a concurrence, Judge Cardamone tantalizingly opines that "it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasaonble upon consideration of other factors" listed under Section 3553(a), concurring Op. at 2 (emphasis added). He further suggests that in future cases where sentencing occurred after Booker, vacatur will not be automatic even where the Guidelines range was miscalculated because "[t]hose sentences will be reviewed for reasonableness, and [] an incorrectly calculated Guidelines sentence might nonetheless be reasonable . . . ." Id.

Discussion: The defendants -- a father and son -- are Hasidic Jews who "live in an insular religious community of Hasidic Jews." Op. at 3. They owned and operated a building in Brooklyn. After a third party signed a 49 year, $50 million lease for the building, the defendants began removing asbestos located throughout the building. They simply asked a few men who worked for them to do the removal and did not tell the workers that the material was asbestos. The workers removed the asbetos without any safety equipment and then improperly disposed of the asbestos.

At the defendants' trial for violating the Clean Air Act for improper removal of asbestos, 42 U.S.C. § 7413(c)(1), defense counsel asked the court to charge the jury that the defendants can be found guilty only if they were aware of the existence of regulations governing asbestos removal. The trial court rejected this request, since the Second Circuit has held that "the government need only prove that a defendant knew that the material being removed was asbestos" to sustain a conviction under this section (and need not prove that a defendant was aware of laws and regulations governing asbestos removal). Op. at 10 (discussing United States v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001)). The defendants nonetheless argued below and on appeal that because "they belong to an insular religious community of Hasidic Jews in which asbestos is not a subject of interest," there should be an exception to Weintraub for them. Op. at 10.

The Court quickly rejected this argument, holding that Weintraub's "presuppos[ition] [of] knowledge that asbestos is a regulated material" is not "a rebuttal presumption." Op. at 10-11. One violates § 7413(c)(1) if s/he removes asbestos improperly and knows that the material is asbestos, regardless of whether s/he is aware of the illegality of his or her own conduct. Alternatively, the Court looked to the facts of the case and ruled that even if some sort of good-faith defense were available, these particular defendants were not entitled to a charge to this effect because the evidence adduced at trial clearly showed that the Rubensteins were well aware that asbestos was a closely regulated substance. Op. at 11.

The Court vacated the defendants' sentences, however, after concluding that the district court improperly imposed a 4-level enhancement under § 2Q1.2(b)(4) (applicable if "the offense involved transportation, treatment, storage, or disposal" of a hazardous substance "without a permit or in violation of a permit"). The Court ruled that the enhancement was improper because the "offense" at issue -- the Clean Air Act -- did not require the defendants to obtain a permit for the disposal of asbestos. Op. at 18. It was irrelevant that New York State regulations required a permit for the transportation and disposal of asbestos, since the enhancement is triggered only where the "'offense involve[d]' activity in violation of a permit." Id.

What is more interesting than this substantive holding is the Court's discussion of why it decided to vacate the sentences rather than simply evaluate them for reasonableness, in accordance with Booker. (Of course, since the sentencing predated Booker, a remand would be required pursuant to Crosby in any event, but that's another story). Indeed, the Court specifically "express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable," which determination would obviate the need for vacatur and remand. Op. at 13. The Court decided to vacate the sentences in this case because it concluded that "the influence of [the erroneous imposition of the 4-level enhancement] is likely to be so pronounced that it could cause resentencing after remand to be unreasonable." Op. 19.

In a concurrence, Judge Cardamone criticized the majority for suggesting (at one point) that vacatur is somehow "necessary" -- rather than merely discretionary -- when the Guidelines range is miscalculated. Post-Booker, Judge Cardamone pointed out, a correctly calculated Guidelines range "is but one factor to be considered under 18 U.S.C. § 3553 in reviewing [the] reasonableness" of a sentence on appeal. Concurrence at 1. Thus, "it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasonable upon consideration of other factors" under § 3553(a). Id. at 2. Conversely, "[b]y the same token, an incorrectly calculated Guidelines sentence might nonetheless be reasonable." Id. Judge Cardamone thus concluded that because sentences imposed after Booker "will be reviewed for reasonableness, and because an incorrectly calculated Guidelines sentence might nonetheless be reasonable, vacatur of a sentence based on Guidelines errors would not automatically be warranted." Id.

Comment: This case discusses, but does not settle, a critical question left open in the wake of Booker (and Crosby). That question is either (1) whether a sentence imposed upon an incorrectly calculated Guidelines range is necessarily unreasonable, or (conversely) (2) whether a sentence imposed upon a correctly calculated Guidelines range is necessarily reasonable. The majority opinion does not answer the question, but suggests that reasonableness review on appeal is not entirely dependent upon whether the Guidelines range was correctly calculated in the first place. Judge Cardamone's concurrence does indeed answer the question: A correctly calculated Guidelines range is but one factor to consider under reasonableness analysis, and thus a sentence could be upheld as reasonableness even where the Guidelines range was incorrectly calculated (and, conversely, a sentence could be vacated as unreasonable even where the Guidelines range was correctly calculated). The concurrence, however, is of course not binding on future panels.