In U.S. v. Houston, No. 04-16524 (July 19, 2006), the Court rejected a Batson challenge to a conviction, but reversed the sentence on the basis of Booker error.
Pointing out that five out of the prosecution’s six peremptory strikes struck blacks from the venire, Houston claimed that improper race discrimination affected jury selection. The Court found no improper motive in the striking of one of the venirepersons for being asleep during voir dire. As to the four others, the Court accepted the prosecution’s explanation that all had a family member who had been convicted of a crime. The Court rejected Houston’s claim that blacks tend to have more family members convicted of crimes, holding that this "disparate impact" argument was not persuasive in the Batson context, which looks at motives. Further, other evidence – the race of the prosecutor (black), his being forthcoming and non-evasive supported a finding that his reasons were neutral, and not an invalid "sorting device" to hide discrimination.
The Court pointed out that the defense did not question the prosecutor’s reasons for keeping white jurors who also had family members with convictions. Hence, since the defendant bore the burden of proof, the Court had no basis for questioning the prosecutor’s credibility on this basis.
Turning to the sentence, the Court noted that the district court followed the Guideline instruction to impose the statutory maximum (in Houston’s case, 360 months) when the Guideline sentence exceeded the statutory maximum. The Court rejected the Government’s argument that the error was harmless, finding that the district court "very clearly" imposed a Guideline sentence. The Court reached the same conclusion regarding the sentence on a second count of conviction, for which the district court, again adhering to the Guidelines instruction, imposed a consecutive sentence at the mandatory minimum. The Court vacated the sentence and remanded for resentencing.