In U.S. v. Lyons, No. 03-15073 (March 23, 2005), the Court affirmed the conviction and sentence of a defendant convicted of possession of four Remington .22 caliber bullets, in violation of 18 U.S.C. sections §§ 922(g)(1) and 924(e), and sentenced to 235 months’ incarceration as an armed career offender pursuant to USSG § 4B1.4(b).
The Court rejected the argument that there was no probable cause for the search of Lyons which uncovered the four bullets, because he searched for his "disorderly conduct," and was ultimately acquitted of this charge. The Court noted that the acquittal does not affect the inquiry into whether the police had probable cause to arrest. Here, under the circumstances – Lyons’ unruly conduct while the police were trying to control an unruly Ft. Myers crowd – the police had probable cause to arrest him for disorderly conduct in violation of Fla. Stat. § 877.03.
The Court also rejected the argument that Lyons should have been to introduce evidence of his acquittal for disorderly conduct in order to show the bias of the police officer who testified against him at the federal trial on ammunition possession. The Court found that the trial court did not abuse its discretion in holding this evidence "irrelevant."
Finally, the Court rejected the claim that the 235-month sentence violated the Eighth Amendment prohibition on cruel and unusual punishment. The Court noted that Lyons’ recidivism justified his classification as an armed career criminal, and the corresponding level VI criminal history category and heightened offense level. "The length of his sentence was the result of his extensive criminal history and it is well-settled that a longer sentence may be imposed on a recidivist, based on his criminal history, even if the offense of conviction is relatively minor in nature."
Thursday, March 24, 2005
Dowling: Booker waiver -- and no plain error
In U.S. v. Dowling, No. 04-10464 (March 23, 2005), the Court (Anderson, Pryor & Hill) affirmed a conviction and 240-month sentence for conspiracy to distribute cocaine.
The Court rejected a sufficiency of the evidence challenge, noting that there was "more than sufficient evidence" to support the jury’s verdict.
Turning to the challenge to the sentence, the Court found that no Booker error was preserved in the district court, because counsel did not preserve a "constitutional objection." The Court noted that counsel had noted that the jury’s special verdict only convicted the defendant of a 500 gram cocaine conspiracy. Counsel objected at sentencing that the jury verdict "under the unique facts and circumstances of this case, must be respected." The Court noted that the "unique facts and circumstances" had to do with the defendant’s statute of limitations defense, and that there was no reference to the Sixth Amendment, or citation to Apprendi, or challenge to the judge’s fact-finding authority. The Court noted that Fed. R. Crim. P. 51(b) requires a party to inform the judge not only of the action it wishes but the "grounds therefor."
Reviewing the issue for "plain error," the Court noted that "nothing in the record indicates that the judge might have imposed a different sentence in the new advisory regime." The Court recognized that the district judge expressed "some concern and an intellectual difficulty" with applying one Guideline enhancement – a cross-reference enhancement for murder – but pointed out that this enhancement made no difference in Dowling’s case, because the drug quantity and other enhancements would already have justified a sentence above the 120-month statutory maximum that was imposed. [Note : In Dowling, even though defense counsel at sentencing objected that a longer sentence shouldn’t be imposed because the jury’s special verdict on drug quantity "must be respected," the 11th Circuit found that the error in imposing sentence above the special verdict quantity wasn’t preserved, because counsel didn’t say something like "based on the Sixth Amendment," or "based on Apprendi." Yet, at the time of sentencing (pre-Booker, indeed, pre-Blakely) neither the Sixth Amendment nor Apprendi applied to Guideline enhancements. So the district judge would have been powerless to agree with a "Sixth Amendment" or "Apprendi" objection, even if it had been raised with the greatest clarity. One wonders if Dowling isn’t elevating form over substance. ]
The Court rejected a sufficiency of the evidence challenge, noting that there was "more than sufficient evidence" to support the jury’s verdict.
Turning to the challenge to the sentence, the Court found that no Booker error was preserved in the district court, because counsel did not preserve a "constitutional objection." The Court noted that counsel had noted that the jury’s special verdict only convicted the defendant of a 500 gram cocaine conspiracy. Counsel objected at sentencing that the jury verdict "under the unique facts and circumstances of this case, must be respected." The Court noted that the "unique facts and circumstances" had to do with the defendant’s statute of limitations defense, and that there was no reference to the Sixth Amendment, or citation to Apprendi, or challenge to the judge’s fact-finding authority. The Court noted that Fed. R. Crim. P. 51(b) requires a party to inform the judge not only of the action it wishes but the "grounds therefor."
Reviewing the issue for "plain error," the Court noted that "nothing in the record indicates that the judge might have imposed a different sentence in the new advisory regime." The Court recognized that the district judge expressed "some concern and an intellectual difficulty" with applying one Guideline enhancement – a cross-reference enhancement for murder – but pointed out that this enhancement made no difference in Dowling’s case, because the drug quantity and other enhancements would already have justified a sentence above the 120-month statutory maximum that was imposed. [Note : In Dowling, even though defense counsel at sentencing objected that a longer sentence shouldn’t be imposed because the jury’s special verdict on drug quantity "must be respected," the 11th Circuit found that the error in imposing sentence above the special verdict quantity wasn’t preserved, because counsel didn’t say something like "based on the Sixth Amendment," or "based on Apprendi." Yet, at the time of sentencing (pre-Booker, indeed, pre-Blakely) neither the Sixth Amendment nor Apprendi applied to Guideline enhancements. So the district judge would have been powerless to agree with a "Sixth Amendment" or "Apprendi" objection, even if it had been raised with the greatest clarity. One wonders if Dowling isn’t elevating form over substance. ]
Wednesday, March 23, 2005
Mesa: Handcuff detention ok
In Muehler v. Mena, No. 03-1423 (March 22, 2005), the Supreme Court held that the detention in handcuffs of an occupant of premises which were being search for weapons and evidence of gang membership did not violate the Fourth Amendment and therefore could not give rise to a suit under 42 U.S.C. § 1983.
The Court noted that under Michigan v. Summers, police has the authority to detain occupants of premises while a proper search is being conducted. The use of force in the form of handcuffs to detain Mena was reasonable here because the governmental interest in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion.
The Court also found no Fourth Amendment violation in the questioning of Mesa about her immigration status. Mere police questioning does not constitute a "seizure."
The Court remanded the case for consideration of Mesa’s argument that the length of her detention violated the Fourth Amendment.
The Court noted that under Michigan v. Summers, police has the authority to detain occupants of premises while a proper search is being conducted. The use of force in the form of handcuffs to detain Mena was reasonable here because the governmental interest in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion.
The Court also found no Fourth Amendment violation in the questioning of Mesa about her immigration status. Mere police questioning does not constitute a "seizure."
The Court remanded the case for consideration of Mesa’s argument that the length of her detention violated the Fourth Amendment.
Brown v. Payton
In Brown v. Payton, No. 03-1029 (March 22, 2005), the Supreme Court held that, under the deferential AEDPA standard for federal review of state decisions, the California Supreme Court did not render a decision contrary to, or unreasonably applying, federal law, when it declined to find a constitutional violation in the prosecutor’s incorrect statement in closing argument in the death phase of the trial that a jury could not take account in mitigation of anything that happened after the crime, i.e, the defendant’s post-offense rehabilitation. The trial court gave a standard § (k) instruction that "any other" extenuating factor could be considered.
The Court noted that in Boyde v. California, it had upheld the § k instruction, and that the California Supreme Court had relied on Boyde in affirming the defendant’s sentence. The found that the California Supreme Court had applied Boyde to a different set of facts and could not therefore, under AEDPA, be found to be contrary to established federal law.
The Court noted that in Boyde v. California, it had upheld the § k instruction, and that the California Supreme Court had relied on Boyde in affirming the defendant’s sentence. The found that the California Supreme Court had applied Boyde to a different set of facts and could not therefore, under AEDPA, be found to be contrary to established federal law.
Garcia: Convictions affirmed; somes sentences vacated
In U.S. v. Garcia, No. 03-10350 (March 22, 2005), the Court (Edmondson, Wilson, Restani b.d.) affirmed convictions for conspiracy to manufacture marijuana plants, and for maintaining a place for the purpose of manufacturing marijuana, in violation of 21 U.S.C. §§ 846 & 856(a)(1).
The Court rejected sufficiency of the evidence challenges. The Court noted that credibility determinations regarding the testifying co-conspirators were the exclusive province of the jury. The Court further found other evidence sufficient evidence.
The Court also rejected one defendant’s argument that evidence should not have been admitted because it pertained to the other defendants, not to him. The Court noted that the evidence was clearly relevant to the co-defendants, that the jury was instructed to consider each charge separately, and that the jury was able to do so because it acquitted on some counts.
The Court further rejected the argument that prejudicial argument of co-counsel during closing should have been the basis for a mistrial. The Court noted that the jury was instructed that the arguments of counsel were not evidence. Further, considering all the evidence, the comments did not prevent the jury from making a reliable judgment.
The Court also rejected the argument that an "accessory after the fact" jury instruction should have been given, because one defendant’s conduct consisted only in dismantling a grow house. The Court noted this did not prejudice the defense, which was free to argue, and did argue, that dismantling a grow house does not prove manufacture of marijuana or maintenance of a grow house.
The Court noted the district court refused to consider granting a defendant a "safety-valve’ sentence reduction below the mandatory minimum solely because the defendant had not been completely debriefed prior to sentencing, and even though the defendant asked for a continuance of the sentencing in order to be able to be debriefed and qualify for safety valve. The Court rejected the government’s argument that U.S. v. Brownlee, 204 F.3d 1302 (11th Cir. 2000) established a jurisdictional rule that precludes consideration of safety-valve if the proffer is presented after the commencement of the sentencing hearing. The Court found the language in Brownlee to be dicta. Further, the defendant’s failure to be fully debriefed "was due to a misunderstanding." In these circumstances, the district court had discretion to continue the sentencing to allow a debriefing, and the case was remanded for the district court to consider the safety valve request.
Finally, the Court recognized that the sentencing enhancement based on the number of marijuana plants violated Booker, because the jury specifically found in a special interrogatory verdict that a defendant was not responsible for more than 100 plants, but the judge at sentencing nonetheless fond this number by a preponderance of the evidence. This sentence was therefore vacated and remanded for resentencing.
The Court rejected sufficiency of the evidence challenges. The Court noted that credibility determinations regarding the testifying co-conspirators were the exclusive province of the jury. The Court further found other evidence sufficient evidence.
The Court also rejected one defendant’s argument that evidence should not have been admitted because it pertained to the other defendants, not to him. The Court noted that the evidence was clearly relevant to the co-defendants, that the jury was instructed to consider each charge separately, and that the jury was able to do so because it acquitted on some counts.
The Court further rejected the argument that prejudicial argument of co-counsel during closing should have been the basis for a mistrial. The Court noted that the jury was instructed that the arguments of counsel were not evidence. Further, considering all the evidence, the comments did not prevent the jury from making a reliable judgment.
The Court also rejected the argument that an "accessory after the fact" jury instruction should have been given, because one defendant’s conduct consisted only in dismantling a grow house. The Court noted this did not prejudice the defense, which was free to argue, and did argue, that dismantling a grow house does not prove manufacture of marijuana or maintenance of a grow house.
The Court noted the district court refused to consider granting a defendant a "safety-valve’ sentence reduction below the mandatory minimum solely because the defendant had not been completely debriefed prior to sentencing, and even though the defendant asked for a continuance of the sentencing in order to be able to be debriefed and qualify for safety valve. The Court rejected the government’s argument that U.S. v. Brownlee, 204 F.3d 1302 (11th Cir. 2000) established a jurisdictional rule that precludes consideration of safety-valve if the proffer is presented after the commencement of the sentencing hearing. The Court found the language in Brownlee to be dicta. Further, the defendant’s failure to be fully debriefed "was due to a misunderstanding." In these circumstances, the district court had discretion to continue the sentencing to allow a debriefing, and the case was remanded for the district court to consider the safety valve request.
Finally, the Court recognized that the sentencing enhancement based on the number of marijuana plants violated Booker, because the jury specifically found in a special interrogatory verdict that a defendant was not responsible for more than 100 plants, but the judge at sentencing nonetheless fond this number by a preponderance of the evidence. This sentence was therefore vacated and remanded for resentencing.
Smith: Plain Maxwell Commerce Clause Error
In U.S. v. Smith, No. 03-13639 (March 18, 2005), the Court (Tjoflat, Roney, Hill) reversed the conviction of a defendant convicted of producing child pornography, and possessing child pornography, in violation of 18 U.S.C. §§ 2251(a) & 2252A(a)(5)(B) on the ground that, as applied, the statutes exceeded Congress’ Commerce Clause power.
The Court noted that the only connection to interstate commerce was the fact that the paper on which the photos were printed was received from out of state. Citing U.S. v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (vacating child pornography conviction where the only interstate commerce nexus was the fact that the disks on which the images were stored had traveled, when blank, in interstate commerce), the Court held that the defendant’s conviction was "plain error."
The Court recognized that, notwithstanding Maxwell, the defendant would have waived the Commerce Clause issue if he had failed to raise it in his initial brief, under U.S. v. Levy, but, liberally construing an initial brief which never mentioned Commerce Clause caselaw but made a Commerce Clause argument, the Court held that the issue was not waived. Plain error applied because the issue was waived in the district court, because trial counsel merely argued that the statute should not be interpreted to extend to Smith’s conduct, not that the statute was unconstitutional as applied to Smith’s conduct.
Applying the Maxwell Commerce Clause analysis, the Court found that there was nothing "commercial or economic" about Smith’s conduct of taking pornographic photos of minors, an activity the Court found distinct from the wheat production at issue in Wiockard v. Filburn, 317 U.S. 111 (1942). The Court rejected the argument that the statute’s "jurisdictional hook" sufficed to satisfy the Commerce Clause, noting that the hook, which required a showing that materials had been shipped in interstate commerce, encompassed every case imaginable.
Applying "plain error" analysis, the Court found that the error in convicting Smith met all four of the "plain error" criteria, noting that it would harm the public reputation of the criminal justice system to brush aside the limits the Constitution places on the Federal Government.
The Court noted that the only connection to interstate commerce was the fact that the paper on which the photos were printed was received from out of state. Citing U.S. v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (vacating child pornography conviction where the only interstate commerce nexus was the fact that the disks on which the images were stored had traveled, when blank, in interstate commerce), the Court held that the defendant’s conviction was "plain error."
The Court recognized that, notwithstanding Maxwell, the defendant would have waived the Commerce Clause issue if he had failed to raise it in his initial brief, under U.S. v. Levy, but, liberally construing an initial brief which never mentioned Commerce Clause caselaw but made a Commerce Clause argument, the Court held that the issue was not waived. Plain error applied because the issue was waived in the district court, because trial counsel merely argued that the statute should not be interpreted to extend to Smith’s conduct, not that the statute was unconstitutional as applied to Smith’s conduct.
Applying the Maxwell Commerce Clause analysis, the Court found that there was nothing "commercial or economic" about Smith’s conduct of taking pornographic photos of minors, an activity the Court found distinct from the wheat production at issue in Wiockard v. Filburn, 317 U.S. 111 (1942). The Court rejected the argument that the statute’s "jurisdictional hook" sufficed to satisfy the Commerce Clause, noting that the hook, which required a showing that materials had been shipped in interstate commerce, encompassed every case imaginable.
Applying "plain error" analysis, the Court found that the error in convicting Smith met all four of the "plain error" criteria, noting that it would harm the public reputation of the criminal justice system to brush aside the limits the Constitution places on the Federal Government.
Tuesday, March 15, 2005
Diaz habeas petition denied
In Diaz v. Dep’t of Corrections, No. 04-12795 (March 14, 2005), the Court (Edmondson, Marcus, Pryor) denied habeas relief to a Florida inmate sentenced to death for a 1979 murder. The Court rejected a number of claims of ineffective assistance of appellate counsel. As to each claim, the Court noted the deferential AEDPA standard that applied, and concluded that no ineffective assistance occurred because the claim Diaz pressed would clearly have failed if raised on direct appeal in the Florida courts.
The Court also rejected the claim that shackling Diaz during the trial, employing extra security, and ordering that all potential jurors be searched deprived him of a fair trial. The Court noted that Diaz’ violent history warranted the security measures.
The Court also rejected the argument that Diaz’ counsel was ineffective during the sentencing phase, concluding that counsel made an adequate investigation, and made conscious tactical decisions at sentencing.
The Court also rejected the claim that shackling Diaz during the trial, employing extra security, and ordering that all potential jurors be searched deprived him of a fair trial. The Court noted that Diaz’ violent history warranted the security measures.
The Court also rejected the argument that Diaz’ counsel was ineffective during the sentencing phase, concluding that counsel made an adequate investigation, and made conscious tactical decisions at sentencing.
Monday, March 14, 2005
Frye: Booker challenge waived in appeal waiver
In U.S. v. Frye, No. 03-16377 (March 11, 2005), the Court vacated in part its prior published opinion in Frye dated February 10, 2005. The Court deleted the portion of its prior opinion which had rejected Frye’s Blakely challenge to his sentence on the ground that the sentencing court could have inferred the facts supporting the sentence from the facts admitted at Frye’s guilty plea. [Note: As Richard Klugh noted in an earlier email, this portion of the original Frye opinion had become problematic in light of the Supreme Court’s recent indication in Shepherd v. U.S. that a sentencing court does not enjoy unlimited power to draw inferences about the factual basis for a conviction]. In its place, the Court inserted a discussion holding that the defendant’s waiver of his right of appeal encompassed a waiver of his right to challenge his sentence on Booker grounds. This waiver foreclosed Frye’s challenge to his sentence.
Tuesday, March 08, 2005
Lebovitz: Affirming Enhancements for Attempt Sex w/ Minor
In U.S. v. Lebovitz, No. 04-10185 (March 4, 2005), the Court (Anderson, Roney, Carnes) the Court affirmed a 110-month sentence for a defendant convicted of violating 18 U.S.C. § 2423(b) by crossing state lines with the intent to have sex with a minor.
The Court rejected the argument that USSG § 2A3.1 was not the appropriate guideline for setting Lebovitz’ offense level. The Court pointed out that § 2A3.2 expressly states that § 2A3.1 should be applied if the offense involved attempted criminal sex abuse. Here, the defendant had attempted to have sex with a minor by stating his intent to do so in writing, and by crossing state lines with jewelry and condoms to meet with an eleven-year old (no meeting occurred: the defendant was caught in a police sting).
The Court rejected the argument that a four-level enhancement under § 2A3.1(b)(2)(A), for attempted sex with a minor under the age of 12, should not have been imposed because the minor in this case was fictitious. The Court noted that it had upheld convictions based on the low age of the fictitous minor victim, and held that Guideline sentence enhancements could also qualify on this basis. Intent, rather than actual harm, is the relevant basis for the enhancement, the Court explained.
The Court rejected the defendant’s contention that it was impermissible double counting to increase his sentence for possessing ten or more pornographic items and also for use of a computer to obtain the items. The Court noted that the two guidelines serve different purposes: one is aimed at well-established connection between possession of illegal pornographic items and child molesting. The other aims to punish the use of a computer, a device which greatly facilitates the viewing of child pornography. These are two different kinds of harms.
The Court also rejected the argument that it was impermissible double counting to increase the sentence based on possessing 300 to 600 child pornography items when the sentence had already been enhanced for possessing more than 10 items. The Court noted that the enhancement for possessing more than 300 items was adopted after the enhancement for possessing more than 10 items. The Court found no implied repeal of the more than 10 item enhancement when the more than 300 item enhancement was adopted. To the contrary, Congress meant to increase the punishment for possessors of large numbers of images. No double counting therefore occurred.
The Court rejected the argument that USSG § 2A3.1 was not the appropriate guideline for setting Lebovitz’ offense level. The Court pointed out that § 2A3.2 expressly states that § 2A3.1 should be applied if the offense involved attempted criminal sex abuse. Here, the defendant had attempted to have sex with a minor by stating his intent to do so in writing, and by crossing state lines with jewelry and condoms to meet with an eleven-year old (no meeting occurred: the defendant was caught in a police sting).
The Court rejected the argument that a four-level enhancement under § 2A3.1(b)(2)(A), for attempted sex with a minor under the age of 12, should not have been imposed because the minor in this case was fictitious. The Court noted that it had upheld convictions based on the low age of the fictitous minor victim, and held that Guideline sentence enhancements could also qualify on this basis. Intent, rather than actual harm, is the relevant basis for the enhancement, the Court explained.
The Court rejected the defendant’s contention that it was impermissible double counting to increase his sentence for possessing ten or more pornographic items and also for use of a computer to obtain the items. The Court noted that the two guidelines serve different purposes: one is aimed at well-established connection between possession of illegal pornographic items and child molesting. The other aims to punish the use of a computer, a device which greatly facilitates the viewing of child pornography. These are two different kinds of harms.
The Court also rejected the argument that it was impermissible double counting to increase the sentence based on possessing 300 to 600 child pornography items when the sentence had already been enhanced for possessing more than 10 items. The Court noted that the enhancement for possessing more than 300 items was adopted after the enhancement for possessing more than 10 items. The Court found no implied repeal of the more than 10 item enhancement when the more than 300 item enhancement was adopted. To the contrary, Congress meant to increase the punishment for possessors of large numbers of images. No double counting therefore occurred.
Booker issue waived when not raised in initial brief
In U.S. v. Dockery, No. 03-16388 (Mar. 3, 2005), the Court (Birch, Dubina, Marcus), on remand from the United States Supreme Court for further consideration in light of Booker, applying U,S. v. Ardley, 242 F.3d 989 (11th Cir. 2001) held that it need not consider the Booker case because the defendant had failed to raise the issue in his initial brief. The Court therefore reaffirmed its earlier affirmance of the defendant’s sentence.
Wednesday, March 02, 2005
No Booker error when Guideline max was imposed
In U.S. v. Curtis, No. 02-16224 (11th Cir. Feb. 28, 2005), the Court modified a footnote in its prior opinion, 380 F.3d 1308 finding no plain error in an alleged Blakely violation at sentencing. The Court stated that Curtis could not satisfy the third prong of its plain error analysis announced in Rodriguez. The Court noted that Curtis had been sentenced at the high end of the Guideline range. This action was inconsistent with any suggestion that the sentencing judge might have imposed a lower sentence had the Guidelines been advisory.
Monday, February 28, 2005
Double Jeopardy: Smith v. Massachusetts
In Smith v. Massachusetts, No. 03-8661 (Feb. 22, 2005), the Supreme Court held that Double Jeopardy principles barred a trial judge, after granting a motion finding insufficient evidence supported a gun count against a defendant when the prosecution rested its case, to change his mind and reconsider the issue after the defense rested.
The Court noted that the trial judge’s ruling on the defense motion regarding the insufficiency of the evidence was in effect an acquittal. The ruling resolved some of the factual elements of the offense charged. And even if the jury was the primary factfinder in the case, the trial judge still resolve factual issues when ruling on Rule 29-type motion.
The Court found that the acquittal triggered Double Jeopardy protection. First, the prosecution, after the ruling, did not make or reserve a motion for reconsideration, or seek a continuance. Further, the Massachusetts rules of procedure did not authorize the trial court to defer ruling on the motion. In addition, a defendant is prejudiced when the trial continues and he labors under the mistaken impression that he does not face a risk of conviction as to a certain count. This mistaken impression could lead the defendant to present inadvisable defenses, for example, admitting guilt on the acquitted count. It could also impact how co-defendants present their defense. The Court explained: "The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority." The Court noted the dissent’s contention that the defendant suffered no prejudice in this case when the judge reconsidered his ruling, but stated: "requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause – even when the acquittal was erroneous."
The Court noted that the trial judge’s ruling on the defense motion regarding the insufficiency of the evidence was in effect an acquittal. The ruling resolved some of the factual elements of the offense charged. And even if the jury was the primary factfinder in the case, the trial judge still resolve factual issues when ruling on Rule 29-type motion.
The Court found that the acquittal triggered Double Jeopardy protection. First, the prosecution, after the ruling, did not make or reserve a motion for reconsideration, or seek a continuance. Further, the Massachusetts rules of procedure did not authorize the trial court to defer ruling on the motion. In addition, a defendant is prejudiced when the trial continues and he labors under the mistaken impression that he does not face a risk of conviction as to a certain count. This mistaken impression could lead the defendant to present inadvisable defenses, for example, admitting guilt on the acquitted count. It could also impact how co-defendants present their defense. The Court explained: "The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority." The Court noted the dissent’s contention that the defendant suffered no prejudice in this case when the judge reconsidered his ruling, but stated: "requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause – even when the acquittal was erroneous."
Duncan: No plain error despite acquittal
In U.S. v. Duncan, No. 03-15315 (Feb. 24, 2005), the Court (Anderson, Birch & Land b.d.), vacating its prior published opinion, held that the defendant could not satisfy the "substantial rights" third prong of "plain error" because he could not show that he would have received a lesser sentence but for the Booker error of sentencing him under a mandatory regime. The court also rejected the defendant’s "creative" ex post facto argument.
In an opening footnote, the Court noted that the defendant was "not entitled" to have the Court address challenges to enhancements under Apprendi other than those raised in his initial brief, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004). [Query: can one argue that because Booker, unlike Apprendi, is the type of intervening change in controlling law dictating a different result that a district court must consider nothwithstanding the "law of the case," Booker, unlike Apprendi, is not waived by the failure to raise it in an initial brief on direct appeal.]
Citing U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), the Court reiterated that Booker error consists not of enhancements based on judge, not jury, findings, but on the use of a mandatory Guidelines regime. The Court noted that Judge Breyer’s portion of Booker, which made the Guidelines advisory, "essentially changes what is authorized by a jury verdict – from the sentence that was authorized by mandatory Guidelines to the sentence that is authorized by the U.S. Code." The Court noted that the maximum sentence for Duncan’s offense was life. Hence, his actual life sentence did not exceed the maximum.
Further, Duncan could not show an adverse impact on his "substantial rights." The Court recognized that Duncan had been sentenced on the basis of a greater drug quantity than provided in the jury’s special verdict. However, the Court noted that, post-Booker, it is still permissible, under an advisory regime, for a judge to increase a sentence based on acquitted conduct. The Court noted U.S. v. Watts, 519 U.S. 148 (1997) and stated: "Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury’s verdict." [Query: how can an acquittal, post-Booker, be construed to "authorize" any increment in punishment?]
Rejecting the views of other circuits, the Court noted that plain error analysis must apply the remedy portion of Booker retroactively. The Court found no discussion of plain error in Booker and did not read an implied finding of plain error in the disposition of the case. The Court found that Duncan could not meet the third prong of plain error because, as he admitted, there was nothing in the record to suggest that the defendant would have imposed a lower sentence under an advisory system.
Finally, the Court rejected the ex post facto argument that Booker could not be applied retrospectively to increase the statutory maximum. The Court pointed out that in the U.S. Code life was the maximum punishment at the time Duncan committed his offense. Thus, the U.S. Code gave Duncan fair warning of the potential punishment for his offense.
In an opening footnote, the Court noted that the defendant was "not entitled" to have the Court address challenges to enhancements under Apprendi other than those raised in his initial brief, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004). [Query: can one argue that because Booker, unlike Apprendi, is the type of intervening change in controlling law dictating a different result that a district court must consider nothwithstanding the "law of the case," Booker, unlike Apprendi, is not waived by the failure to raise it in an initial brief on direct appeal.]
Citing U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), the Court reiterated that Booker error consists not of enhancements based on judge, not jury, findings, but on the use of a mandatory Guidelines regime. The Court noted that Judge Breyer’s portion of Booker, which made the Guidelines advisory, "essentially changes what is authorized by a jury verdict – from the sentence that was authorized by mandatory Guidelines to the sentence that is authorized by the U.S. Code." The Court noted that the maximum sentence for Duncan’s offense was life. Hence, his actual life sentence did not exceed the maximum.
Further, Duncan could not show an adverse impact on his "substantial rights." The Court recognized that Duncan had been sentenced on the basis of a greater drug quantity than provided in the jury’s special verdict. However, the Court noted that, post-Booker, it is still permissible, under an advisory regime, for a judge to increase a sentence based on acquitted conduct. The Court noted U.S. v. Watts, 519 U.S. 148 (1997) and stated: "Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury’s verdict." [Query: how can an acquittal, post-Booker, be construed to "authorize" any increment in punishment?]
Rejecting the views of other circuits, the Court noted that plain error analysis must apply the remedy portion of Booker retroactively. The Court found no discussion of plain error in Booker and did not read an implied finding of plain error in the disposition of the case. The Court found that Duncan could not meet the third prong of plain error because, as he admitted, there was nothing in the record to suggest that the defendant would have imposed a lower sentence under an advisory system.
Finally, the Court rejected the ex post facto argument that Booker could not be applied retrospectively to increase the statutory maximum. The Court pointed out that in the U.S. Code life was the maximum punishment at the time Duncan committed his offense. Thus, the U.S. Code gave Duncan fair warning of the potential punishment for his offense.
Booker plain error satisfied!
In U.S. v. Shelton, No. 04-12602 (Feb. 25, 2005), the Court (Carnes, Hull, Marcus) concluded that no Sixth Amendmetn Booker violations occurred during sentencing, but remanded for resentencing because the district court erred in sentencing under a mandatory Guidelines regime, and the defendant established a reasonable probability that the district court would have imposed a lesser sentence but for the mandatory Guidelines regime.
The Court noted that after the defendant pled guilty to crack cocaine trafficking and § 924(c) charges, the sentencing court "expressed its disapproval of the [190-month] sentence." The sentencing court commented that Shelton’s sentence was "very, very severe." The sentencing court noted that "unfortunately" the Guidelines criminal-history calculation took into account each of the defendant’s past charges and do not take into account the fact that the sentences imposed on these charges were short as a result of such factors as the youth of the defendant or the amount of drugs involved. The district court later noted that Congress had taken "a very, very hard stance when it comes to guns and drugs," and most significantly indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."
Reviewing the issues for plain error (Shelton raised Booker issue for the first time in his initial brief), the Court found no error in the district court’s reliance on prior convictions to increase the defendant’s sentence, noting that Almendarez-Torres remains good law.
The Court also found no error in the sentencing court’s reliance on drug quantities no alleged in the indictment, pointing out that the defendant admitted to these drug quantities at his plea colloquy, and citing U.S. v. Frye, 2005 WL 315563 (11th Cir. Feb. 10, 2005).
Emphasizing that the defendant timely raised his Booker issues in his initial brief on direct appeal, the Court found error in the reliance on mandatory Guidelines: "Although the district court followed the correct sentencing procedure when it sentenced Shelton, the Supreme Court has now excised the mandatory nature of the Guidelines in Booker." The error is now "plain" in light of Booker. Finally, the error affected the defendant’s substantial rights, because the sentencing court "expressed its view several times that the sentence required by the Guidelines was too severe, and noted that "unfortunately" the criminal history computation overstated the defendant’s criminal background. Further, the court sentenced the defendant to the bottom of the Guidelines range. Thus, the defendant established a "reasonable probability" of a lesser sentence under a non-mandatory system.
The Court concluded that the fourth prong of plain error was also met, because the error seriously affected the fairness integrity or public reputation of judicial proceedings. The Court distinguished U.S. v. Curtis, 380 F.3d 1308 (11th Cir. 2004), which had held that the fourth prong of plain error was not satisfied by a Blakely error, noting that this portion of Curtis was an "alternative ruling," that Curtis had found no "substantial rights" impact (unlike Shelton), and that the Curtis panel had assumed that the error merely involved a Sixth Amendment violation, not the use of a mandatory system, as Booker provided.
The Court noted that after the defendant pled guilty to crack cocaine trafficking and § 924(c) charges, the sentencing court "expressed its disapproval of the [190-month] sentence." The sentencing court commented that Shelton’s sentence was "very, very severe." The sentencing court noted that "unfortunately" the Guidelines criminal-history calculation took into account each of the defendant’s past charges and do not take into account the fact that the sentences imposed on these charges were short as a result of such factors as the youth of the defendant or the amount of drugs involved. The district court later noted that Congress had taken "a very, very hard stance when it comes to guns and drugs," and most significantly indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."
Reviewing the issues for plain error (Shelton raised Booker issue for the first time in his initial brief), the Court found no error in the district court’s reliance on prior convictions to increase the defendant’s sentence, noting that Almendarez-Torres remains good law.
The Court also found no error in the sentencing court’s reliance on drug quantities no alleged in the indictment, pointing out that the defendant admitted to these drug quantities at his plea colloquy, and citing U.S. v. Frye, 2005 WL 315563 (11th Cir. Feb. 10, 2005).
Emphasizing that the defendant timely raised his Booker issues in his initial brief on direct appeal, the Court found error in the reliance on mandatory Guidelines: "Although the district court followed the correct sentencing procedure when it sentenced Shelton, the Supreme Court has now excised the mandatory nature of the Guidelines in Booker." The error is now "plain" in light of Booker. Finally, the error affected the defendant’s substantial rights, because the sentencing court "expressed its view several times that the sentence required by the Guidelines was too severe, and noted that "unfortunately" the criminal history computation overstated the defendant’s criminal background. Further, the court sentenced the defendant to the bottom of the Guidelines range. Thus, the defendant established a "reasonable probability" of a lesser sentence under a non-mandatory system.
The Court concluded that the fourth prong of plain error was also met, because the error seriously affected the fairness integrity or public reputation of judicial proceedings. The Court distinguished U.S. v. Curtis, 380 F.3d 1308 (11th Cir. 2004), which had held that the fourth prong of plain error was not satisfied by a Blakely error, noting that this portion of Curtis was an "alternative ruling," that Curtis had found no "substantial rights" impact (unlike Shelton), and that the Curtis panel had assumed that the error merely involved a Sixth Amendment violation, not the use of a mandatory system, as Booker provided.
Thursday, February 17, 2005
Booker not retroactive for 2255
In Varela v. U.S., No. 04-11725 (Feb. 17, 2005), the Court (Birch, Barkett, Hull) held that Blakely v. Washington, and, by extension, Booker, is not retroactive to cases on collateral review pursuant to Teague v. Lane, 489 U.S. 288 (1989).
Varela, whose conviction became final on May 15, 2000 (Apprendi was decided on June 26, 2000), brought a § 2255 motion challenging his sentence under Apprendi. The district court denied the motion, and, on appeal, the Eleventh Circuit granted a motion for a certificate of appealability to decide whether Blakely (now Booker) could apply retroactively.
Varela argued that Blakely (now Booker) should apply retroactively because its rule is "implicit in the concept of ordered liberty," and therefore qualified as "one of those very cases that should be determined to be retroactive to matters on collateral attack."
Citing Schriro v. Summerlin, 124 S.Ct. 2519 (2004), which analyzed the Ring rule under Teague, the Court noted that, as in Schriro, the rule announced in Booker was a "prototypical procedural rule." The jury vs. judge rule was not a watershed rule of criminal procedure. The Court joined McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005) in concluding that Booker does not apply retroactively to cases on collateral review. The Court concluded: "Booker’s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."
Query: Is it still possible to argue, in light of Varela, in a § 2255, that Blakely and Booker do not announce a "new" rule. Note that Ring announced a new rule because it overruled Walton v. Arizona. But Blakely and Booker, arguably, merely applied the old Apprendi rule.
Also, Varela’s conviction became final pre-Apprendi. But what about defendants whose convictions became final after Apprendi (of after Blakely): for post-Apprendi defendants, is there any "new" rule in Blakely or Booker? And what about the distinction that in Ring, the defendant still had the benefit of a beyond-a-reasonable-doubt standard, unlike the defendant in Varela? And what of the substantive law change wrought by Booker, not addressed in Varela?
Varela, whose conviction became final on May 15, 2000 (Apprendi was decided on June 26, 2000), brought a § 2255 motion challenging his sentence under Apprendi. The district court denied the motion, and, on appeal, the Eleventh Circuit granted a motion for a certificate of appealability to decide whether Blakely (now Booker) could apply retroactively.
Varela argued that Blakely (now Booker) should apply retroactively because its rule is "implicit in the concept of ordered liberty," and therefore qualified as "one of those very cases that should be determined to be retroactive to matters on collateral attack."
Citing Schriro v. Summerlin, 124 S.Ct. 2519 (2004), which analyzed the Ring rule under Teague, the Court noted that, as in Schriro, the rule announced in Booker was a "prototypical procedural rule." The jury vs. judge rule was not a watershed rule of criminal procedure. The Court joined McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005) in concluding that Booker does not apply retroactively to cases on collateral review. The Court concluded: "Booker’s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."
Query: Is it still possible to argue, in light of Varela, in a § 2255, that Blakely and Booker do not announce a "new" rule. Note that Ring announced a new rule because it overruled Walton v. Arizona. But Blakely and Booker, arguably, merely applied the old Apprendi rule.
Also, Varela’s conviction became final pre-Apprendi. But what about defendants whose convictions became final after Apprendi (of after Blakely): for post-Apprendi defendants, is there any "new" rule in Blakely or Booker? And what about the distinction that in Ring, the defendant still had the benefit of a beyond-a-reasonable-doubt standard, unlike the defendant in Varela? And what of the substantive law change wrought by Booker, not addressed in Varela?
Wednesday, February 16, 2005
922(g) not a crime of violence
In U.S. v. Johnson, No. 04-16502 (Feb. 14, 2005), the Court (Tjoflat, Dubina, Cox) granted the defendant’s interlocutory appeal, holding that a conviction for being a felon-in-possession in violation of 18 U.S.C. § 922(g) does not qualify as a "crime of violence" within the meaning of 18 U.S.C. § 3156(a)(4), and therefore was not a basis (as the district court ruled) for denying release after a guilty plea and pending sentencing.
The Court rejected the argument that a § 922(g) charge involves a substantial risk of physical force and therefore qualifies as a "crime of violence." The Court recognized a circuit conflict on this issue, and sided with the courts which focused on the nature of the § 922(g) offense. The Court reasoned that illegal possession of a firearm by a felon did not inherently involve a risk of physical force. The Court noted that a felon’s possession of a firearm did not necessarily pose a greater risk of physical force than a non-felon’s possession, pointing out that some felons are convicted of non-violent felonies. The Court noted that in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court reasoned that a DUI conviction could not count as an offense involving a risk of harm because the harm was not a "natural outcome of an illegal use of force." The Court contrasted § 922(g) with a burglary, an offense which "necessarily creates a substantial risk of violence."
The Court therefore remanded the case to the district court, for reconsideration of whether the defendant should be released pending sentencing.
The Court rejected the argument that a § 922(g) charge involves a substantial risk of physical force and therefore qualifies as a "crime of violence." The Court recognized a circuit conflict on this issue, and sided with the courts which focused on the nature of the § 922(g) offense. The Court reasoned that illegal possession of a firearm by a felon did not inherently involve a risk of physical force. The Court noted that a felon’s possession of a firearm did not necessarily pose a greater risk of physical force than a non-felon’s possession, pointing out that some felons are convicted of non-violent felonies. The Court noted that in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court reasoned that a DUI conviction could not count as an offense involving a risk of harm because the harm was not a "natural outcome of an illegal use of force." The Court contrasted § 922(g) with a burglary, an offense which "necessarily creates a substantial risk of violence."
The Court therefore remanded the case to the district court, for reconsideration of whether the defendant should be released pending sentencing.
Monday, February 14, 2005
No Booker error when defendant waives appeal
In U.S. v. Grinard-Henry, No. 04-12677 (Feb. 11, 2005), the Court denied a defendant’s Booker-based motion for reconsideration of the Court’s order dismissing his appeal, finding that the defendant had waived his right of appeal as part of his plea agreement.
The Court noted that the appeal waiver preserved the defendant’s right to appeal a sentence "above the statutory maximum." Reaffirming its recent holding in U.S. v. Rubbo, 2005 WL 120507 (11th Cir. Jan. 21, 2005), the Court held that this language referred only to the relevant statutory maximum, not to the Guideline maximum as construed in Blakely/Booker. The Court further noted that the appeal waiver preserved the defendant’s right to appeal "a sentence in violation of law apart from the sentencing guidelines." The Court found that this language did not permit the defendant to raise a Booker challenge to the application of the sentencing guidelines. The Court pointed out that at his plea colloquy the defendant acknowledged the district court’s power to impany any sentence "pursuant to the sentencing guidelines."
The Court noted that the appeal waiver preserved the defendant’s right to appeal a sentence "above the statutory maximum." Reaffirming its recent holding in U.S. v. Rubbo, 2005 WL 120507 (11th Cir. Jan. 21, 2005), the Court held that this language referred only to the relevant statutory maximum, not to the Guideline maximum as construed in Blakely/Booker. The Court further noted that the appeal waiver preserved the defendant’s right to appeal "a sentence in violation of law apart from the sentencing guidelines." The Court found that this language did not permit the defendant to raise a Booker challenge to the application of the sentencing guidelines. The Court pointed out that at his plea colloquy the defendant acknowledged the district court’s power to impany any sentence "pursuant to the sentencing guidelines."
No Booker error when defendant admits facts
In U.S. v. Frye, No. 03-16377 (11th Cir. 2005), the Court found affirmed the conviction and sentence of a defendant who pled guilty to using a firearm in connection with a drug felon offense in violation of 18 U.S.C. § 924(c), attempt to manufacture more than 50 grams of methamphetamine, and manufacture of more than 500 grams of methamphetamine.
The Court rejected the argument that the plea was involuntary because of irreconciliable differences between the defendant and his lawyer, noting that the record of the plea colloquy showed that Frye was not pleading guilty involuntarily.
The Court also rejected the argument that the defendant could not be convicted of violating § 924(c) because he was not convicted of an underlying drug felony offense. The Court joined other circuits which have held that an actual violation of a drug felony statute is not necessary to establish a § 924(c) violation. § 924(c) does not require that a defendant be convicted of, or even charged with, a predicate offense.
Reviewing the factual resume at the plea colloquy, the Court further rejected the argument that the § 924(c) guilty plea was supported by insufficient facts.
Finally, the Court found no Booker violation in the imposition of sentencing enhancements for being an organizer in the conspiracy, or for risk of harm to human life or the environment, based on factors that were neither admitted by him nor proved beyond a reasonable doubt. The Court found that the factual resume submitted to the district court as part of the plea colloquy supported the two enhancements. Frye admitted to the conduct underlying the sentence enhancements. The sentence therefore did not violate Booker.
The Court rejected the argument that the plea was involuntary because of irreconciliable differences between the defendant and his lawyer, noting that the record of the plea colloquy showed that Frye was not pleading guilty involuntarily.
The Court also rejected the argument that the defendant could not be convicted of violating § 924(c) because he was not convicted of an underlying drug felony offense. The Court joined other circuits which have held that an actual violation of a drug felony statute is not necessary to establish a § 924(c) violation. § 924(c) does not require that a defendant be convicted of, or even charged with, a predicate offense.
Reviewing the factual resume at the plea colloquy, the Court further rejected the argument that the § 924(c) guilty plea was supported by insufficient facts.
Finally, the Court found no Booker violation in the imposition of sentencing enhancements for being an organizer in the conspiracy, or for risk of harm to human life or the environment, based on factors that were neither admitted by him nor proved beyond a reasonable doubt. The Court found that the factual resume submitted to the district court as part of the plea colloquy supported the two enhancements. Frye admitted to the conduct underlying the sentence enhancements. The sentence therefore did not violate Booker.
Tuesday, February 08, 2005
Bartering drugs for gun is not "use" of gun
In U.S. v. Montano, No. 03-11950 (Feb. 4, 2005), the Court (Barkett, Hill & Forrester, b.d.) held that bartering drugs to obtain a firearm cannot constitute "use" of a firearm within the meaning of 18 U.S.C. § 924(c). The Court recognized the circuit conflict on this issue. However, the Court found no "active employment" of a firearm when drugs are being used to obtain it, and the firearm is never actually obtained (the defendant bartered with an undercover law enforcement official). The defendant merely passively viewed the firearms, and then never again came into view of them, and never possessed them, either actually or constructively. Moreover, Montano could not, as a matter of law, conspire with government officials in the commission of an unlawful act.
The Court noted, however, that Montano was pressing this issue for the first time in a § 2255 motion and,had pled guilty to the § 924(c) offense and not challenged this on appeal. Therefore, to overcome his procedural default, had to show not just factual innocence of the § 924(c) but "actual innocence," i.e., that he was actually innocent of the other charges which the government dismissed in exchange for his guilty plea to the § 924(c) offense. The Court remanded the case for this determination.
The Court noted, however, that Montano was pressing this issue for the first time in a § 2255 motion and,had pled guilty to the § 924(c) offense and not challenged this on appeal. Therefore, to overcome his procedural default, had to show not just factual innocence of the § 924(c) but "actual innocence," i.e., that he was actually innocent of the other charges which the government dismissed in exchange for his guilty plea to the § 924(c) offense. The Court remanded the case for this determination.
11th Circuit Booker Plain Error
In U.S. v. Rodriguez, No. 04-12676 (Feb. 4, 2005), the Court (Carnes, Marcus, Fay) upheld a sentence against a Booker challenge on "plain error" review.
First addressing Rodriguez’ preserved error, the Court rejected the argument that the sentencing court erred in its calculation of drug quantity, finding that the court’s estimate was "anything but erroneous."
Turning to the Booker issue, the Court noted that to establish "plain error" a defendant had to show not only that there was "error," and that the error was "plain," but also that the error affected "substantial rights." The Court recognized that there was "error" and that the error was "plain" but noted that a substantial rights violation required showing that the error undermined confidence in the outcome. The Court noted that in Jones v. U.S., 527 U.S. 373 (1999), the Supreme Court had stated that where the effect of an alleged error in a faulty jury instruction’s effect on the jury is "uncertain," and one cannot say whether the error worked to the defendant’s detriment, the error does not affect a defendant’s substantial rights.
The Court further noted that since, post-Booker, the sentencing court could have imposed the now-invalid guideline drug enhancements based on its discretion to impose a sentence within the statutory range, it was uncertain whether the defendant was worse off as a result of the Sixth Amendment violation. The Guidelines remained an "important factor" for the Court’s decision.
The Court found that it did not know whether, in imposing sentencing under advisory Guidelines, a sentencing court would have imposed a lesser sentence on Rodriguez than the mid-guideline range of 109 months that it imposed. [Query: Is there a meaningful difference between uncertainty, as in Jones, over an event in the past, e.g. how a jury instruction affected a jury’s verdict, and an event in the future, as in Rodriguez, over how a changed sentencing regime might affect a resentencing? Is this the key difference between the past and the future: for the past, the doors have closed, but for the future, even when the situation objectively is hopeless, isn’t there always still room for hope?]. The Court found that it was not necessarily prejudicial error for a court to have believed that a sentence was mandatory, if the court could have imposed the same sentence under a discretionary regime. The Court recognized the conflict of its reasoning with decisions of the Second, Fourth and Sixth Circuit, but found these decisions unpersuasive.
First addressing Rodriguez’ preserved error, the Court rejected the argument that the sentencing court erred in its calculation of drug quantity, finding that the court’s estimate was "anything but erroneous."
Turning to the Booker issue, the Court noted that to establish "plain error" a defendant had to show not only that there was "error," and that the error was "plain," but also that the error affected "substantial rights." The Court recognized that there was "error" and that the error was "plain" but noted that a substantial rights violation required showing that the error undermined confidence in the outcome. The Court noted that in Jones v. U.S., 527 U.S. 373 (1999), the Supreme Court had stated that where the effect of an alleged error in a faulty jury instruction’s effect on the jury is "uncertain," and one cannot say whether the error worked to the defendant’s detriment, the error does not affect a defendant’s substantial rights.
The Court further noted that since, post-Booker, the sentencing court could have imposed the now-invalid guideline drug enhancements based on its discretion to impose a sentence within the statutory range, it was uncertain whether the defendant was worse off as a result of the Sixth Amendment violation. The Guidelines remained an "important factor" for the Court’s decision.
The Court found that it did not know whether, in imposing sentencing under advisory Guidelines, a sentencing court would have imposed a lesser sentence on Rodriguez than the mid-guideline range of 109 months that it imposed. [Query: Is there a meaningful difference between uncertainty, as in Jones, over an event in the past, e.g. how a jury instruction affected a jury’s verdict, and an event in the future, as in Rodriguez, over how a changed sentencing regime might affect a resentencing? Is this the key difference between the past and the future: for the past, the doors have closed, but for the future, even when the situation objectively is hopeless, isn’t there always still room for hope?]. The Court found that it was not necessarily prejudicial error for a court to have believed that a sentence was mandatory, if the court could have imposed the same sentence under a discretionary regime. The Court recognized the conflict of its reasoning with decisions of the Second, Fourth and Sixth Circuit, but found these decisions unpersuasive.
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