Have the Mandatory Guidelines Been Reenacted?

United States v. Rattoballi, Docket No. 05-1562-cr (2d Cir. June 15, 2006) (Walker, Winter, Jacobs): Someone please wake us up: We read this opinion and had a nightmare that we lived either in another Circuit or in an alternate universe in which Booker had never happened. In an extraordinary act of law-making that flouts Booker and contradicts core post-Booker caselaw in the Second Circuit, including Crosby and Fernandez, C.J. Walker, along with former and future C.J.s Winter and Jacobs, writes as if on a clean slate (and as if this were the 7th or 8th Circuits rather than the 2nd) and overturns, for the first time since Booker was decided 17 months ago, a sentence as substantively unreasonable (i.e., just too short). Cynics will not be surprised that this occurred on a Government appeal of a below-the-range sentence, rather than a defendant's appeal of an above-the-range sentence.

The result is bad enough. But the opinion contains even worse general language that seemingly elevates the Guidelines range to a first-among-equals status in relation to the other 3553(a) factors and suggests that any non-Guidelines sentence will be treated skeptically on appeal. To support these assertions, which are not supported by Second Circuit precedent (and contradict, at least, Fernandez's holding that the advisory range deserves no presumptive treatment either at sentencing or on appellate review), C.J. Walker's opinion conspicuously relies almost exclusively on cases decided by the 1st, 7th, and 8th Circuits. Rattoballi has made new law in this Circuit, and new law that contradicts Crosby and Fernandez. We strongly urge defense counsel to seek en banc rehearing.

The essential facts are these. Defendant is the owner of a 12-employee printing company. To obtain and retain business from various advertising agencies, Rattoballi paid kickbacks, in the form of luxury goods and services (as well as cash), to the agencies' executives, especially one Mosallem of Grey Global. In exchange, the ad execs would steer their respective agency's printing business to defendant's company. To further curry favor with the ad execs, Rattoballi participated in a bid-rigging scheme that profitted the execs personally. The relevant events occurred from 1990 to 2001.

Rattoballi was charged with conspiracy to rig bids, in violation of the Sherman Act, and with mail-fraud conspiracy. He pled guilty pursuant to a cooperation agreement. He agreed to give truthful information, in particular, against Mosallem, and to testify against the latter if necessary. Mosallem later pled guilty, and we assume that Rattoballi's cooperation contributed to this result.

However, while preparing for Mosallem's trial, the Government discovered that Rattoballi had understated the amount of his kickbacks to Mosallem during proffer sessions. When confronted, Rattoballi admitted that he gave cash to Mosallem, as well as an $87,000 watch. Rattoballi also admitted that he discussed the Government's investigation with Mosallem, and that Mosallem asked him not to reveal the additional kickbacks to prosecutors.

At sentencing, the applicable range was 27 to 33 months, which included a 2-level reduction for acceptance of responsibility. The Government apparently urged a within-the-range sentence (we assume no 5K1.1 motion was made), and defense counsel sought a below-the range sentence.

Judge Griesa agreed with the defense and imposed a sentence of 1 year's home confinement, 5 years' probation, and $155,000 restitution. The court gave the following reasons for its sentence: (1) Rattoballi had pled guilty and "admitted the full range of his misconduct"; (2) the three-year investigation and prosecution had taken a toll on defendant and on his business; (3) his business would be destroyed if he were imprisoned; (4) not imprisoning Rattoballi would assist in the payment of restitution; and (5) Mosallem was the prime mover in the scheme and "exerted an enormous amount of pressure" on defendant to participate.

C.J. Walker examines each of the reasons and finds them deficient. Op. 20-24. But before doing so, he lays out the general contours of "substantive" reasonableness review on appeal -- i.e., review of whether a sentence is unreasonably long or short. And in so doing, he acts as if writing on a clean slate and ignores Second Circuit law while citing out-of-Circuit cases inconsistent with Second Circuit law.

After initially citing Crosby for the innocuous proposition that district courts must consider the Guidelines range after Booker, Op. 13, C.J. Walker's opinion then leaves the Second Circuit entirely. The opinion first claims, citing only to 1st and 7th Circuit opinions, that a judge may "not import [his/her] own philosophy of sentencing if it is inconsistent" with the 3553(a) factors. This is harmless taken at face value, but as the opinion later reveals, what C.J. Walker really means is, "inconsistent with the Guidelines range and policy statements."

Relying principally on the 1st Circuit (as well as the 4th, 7th, and 8th), C.J. Walker next asserts that "The guidelines cannot be called just another factor in the statutory list, 18 U.S.C. 3553(a), because they are the only integration of the multiple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges." Op. 14. In addition to being new law, and new law that contradicts the language and spirit of Booker and Crosby (as well as Canova, Fleming, and Fernandez), this statement is flat wrong on all three subsidiary points: (1) the plain language of 3553(a) gives no priority to the Guidelines range or policy statements; nor does Booker; (2) far from "integrat[ing]" many of the 3553(a) factors, the Guidelines ignore or contradict the other factors (e.g., it ignores most relevant offender characteristics (age, health, prior good works) and considers only defendant's past bad acts. Moreover, even the Commission itself has admitted that the Guidelines' treatment of crack vs powder cocaine, as well as the Career Offender guidelines, cause unwarranted disparities); and (3) as Judge Cabranes and Professor Stith point out in "Fear of Judging," the myth of the Sentencing Commission's empiricism and rationalism is just that -- pure myth.

If the opinion ended there, it would have been bad enough. But C.J. Walker goes further, establishing for the first time that "we will view as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant, but instead reflect attributes common to all defendants." Op. 16. Nowhere in Booker or 3553(a) can such a principle be found. The opinion's sole explanation for this claim, rather, is that "[d]isparate sentences prompted the passage of the Sentencing Reform Act and remain its principal concern." Id.

And it gets worse. The opinion goes on to say that "several other circuits have endorsed the rule that requires district courts to offer a more compelling accounting the farther a sentence deviates from the advisory Guidelines range." Op. 18. Here, at last, the panel begrudgingly (if only implicitly) recognizes that it is not writing on a clean slate and that the Second Circuit has already rejected this position, as both Crosby and Fernandez held that the Guidelines hold no presumptively correct status, either at sentencing or on appellate review.

The opinion thus does not go so far as to adopt the rule in this case. But it then disingenuosly states that "we have yet to adopt such a rule in this circuit," id., and denigrates sentences deviating signficantly from the advisory range as "marginal sentences" that may require "a compelling statement of reasons that reflect consideration of 3553(a) and set forth why it was desirable to deviate from the Guidelines." Op. 19. This is an extraordinary departure from Second Circuit law (no pun intended). Nowhere is Fernandez mentioned, of course.

Query: What's the difference between a rule that requires "a compelling statement of reasons" to justify "deviat[ion] from the Guidelines" and a rule that requires the showing of exceptional circumstances to justify "departure from the Guidelines"? If the latter rule violates the Sixth Amendment, as the Supreme Court held in Booker, surely the former does as well.

The opinion's specific discussion of the factors relied upon by Judge Griesa is no better. First, it reasserts the claim that the district court erred by relying upon factors "common to all defendants." Op. 20. It then asserts that the court ignored a Guidelines policy statement suggesting that alternatives to confinement are inappropriate for antitrust offenders. Op. 21 (citing U.S.S.G. 2R1.1, cmt. n.5. Of course, the opinion makes no mention of 3553(a)(3), a statute explicitly requiring the sentencing court to consider the "kinds of sentences" available in imposing sentence.

Even worse, the opinion adds dicta in a footnote that would fully reenact the mandatory Guidelines regime invalidated by Booker. The opinion states that it is unclear from the record whether Judge Griesa relied on offender factors, such as vocational skill or employment record, in deviating from the Guidelines. Op. 22 n.4. It describes such factors as having been deemed “not ordinarily relevant” to the sentencing determination by the Commission and by Congress. It then gratuitously says that "to the extent that the district court relied upon these factors, however, it did not point to any circumstances extraordinary to Rattoballi . . . ." Id. (emphasis added). These "improper factors" therefore cannot be looked to in determining the reasonableness vel non of the sentence. Id. If there is any difference between the Guidelines-dominated world envisoned by this dicta and the Guidelines-dominated world struck down in Booker, we would love to know.

Finally, the opinion concludes that Judge Griesa relied too heavily on Rattoballi's history and characteristics under 3553(a)(1), asserting that "those considerations are neither sufficiently compelling nor present to the degree necessary to support the sentence imposed." Op. 25. It cites as support a 6th Circuit opinion holding that the district judge gave "too much weight" to the defendant's history and characteristics," and states that "a sentence must reflect consideration of the balance of the 3553(a) factors; unjustified reliance upon any one factor is a symptom of an unreasonable sentence." Id. (Except, apparently, when that factor is the Guidelines range or policy statements). That this statement contradicts Fernandez's holding that the weight to be accorded any particular 3553(a) factors rests entirely within the district judge's discretion is nowhere mentioned.

As stated at the outset, en banc rehearing of this decision is appropriate in light of its inconsistency with cases such as Crosby and Fernandez. The decision's seeming resurrection of the mandatory Guidelines regime also, of course, contradicts Justice Stevens's merits majority opinion in Booker.

Corrections Department May Not Unilaterally Add Term of Supervision to Sentence, even if Such Term Is Mandated under Law

Earley v. Murray, Docket No. 04-4098-pr (2d Cir. June 9, 2006) (Walker, Leval, Sotomayor): This seems an easy case, though the learned district judge somehow got it wrong. The Circuit (by the Chief, no less) reverses the district court and grants the writ to the habeas petitioner, concluding that state courts acted contrary to clearly established Supreme Court law (i.e., Hill v. U.S. ex rel. Wampler, 298 U.S. 460 (1936)) when they upheld the Department of Correctional Services's ("DOCS") unilateral post-sentencing decision adding a 5-year term of post-release supervision to Earley's sentence, even though the sentencing judge did not impose such a term either at sentencing or in the written judgment of conviction. Wampler held that "the only sentence known to the law is the sentence or judgment entered upon the records of the court" and that "until corrected . . . it says what it was meant to say, and this by an irrebuttable presumption." 298 U.S. at 464. Wampler established the principle that "the judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment." Op. 8; see id. ("The only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect."). The DOCS's unilateral amendment of Earley's sentence contradicts this principle.

It is irrelevant that the 5-year term of supervision was required under state law at the time of Earley's sentencing. See N.Y. Penal Law § 70.45. The appropriate remedy for the error, the Court explained, was for the state "to move to have the offending sentence vacated and the defendant resentenced by a judge" under N.Y. Crim. Proc. Law § 440.40. Thus, when DOCS discovered the error in Earley's judgment, "the proper course would have been to inform the state of the problem, not to modify the sentence unilaterally." Op. 11. And because "[t]he imposition of a sentence is a judicial act, . . . [t]he additional provision for post-release supervision added by DOCS is a nullity."

The outcome is especially sweet for Mr. Earley, who is currently incarcerated for violating the conditions of, you guessed it, the very same term of post-release supervision. The Circuit directs the district court (after first determining whether Earley's petition is timely under AEDPA, an issue the lower court left unresolved) to "issue a writ of habeas corpus excising the term of post-release supervision [] and relieving him of any subsequent penalty or other consequence of its imposition." Op. 12. And while the Circuit's "ruling is not intended to preclude the state from moving in the New York courts to modify Earley's sentence to include the mandatory term" of supervision, the plain language of § 440.40 requires such motions to be filed within one year of the entry of judgment, a deadline long ago passed in this case.

Is the Circuit's Website Not-So-Appealing?

Howard Bashman (of the must-read How Appealing blog) wrote this critique of the Second Circuit's website in a recent article for law.com ranking the websites of the various federal Circuits:

"My final bit of criticism is reserved for the New York City-based 2nd U.S. Circuit Court of Appeals, which allows visitors to access newly issued opinions via three types of searches. Unfortunately, those different methods often produce different results. There's no reason why an appellate court's Web site should require users to perform three searches to ensure that they have seen all newly issued opinions. The 2nd Circuit's site is alone among the federal appellate courts in creating this potentially confusing situation."

(Click here for the entire article). Unlike some courts, moreover, the Second Circuit's website does not allow on-line access to briefs (contra the 7th and 8th Circuits) or allow users to hear audio recordings of oral arguments (same). Nor does it contain a daily summary of decisions rendered (contra the 8th). Needless to say, Howard did not rank the Second Circuit's site as one of the better ones.

Yet Another Misreading of Apprendi and Ring and Their Application to New York’s Persistent Felon Statute

Brown v. Miller, Docket No. 05-5014-pr (2d Cir. June 7, 2006) (Cabranes, Sotomayor, Raggi): In this disappointing opinion, the Circuit relies on the same ad hoc reasoning it first used in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005) (click here for our discussion), to reject the habeas petitioner’s claim that his sentence, imposed after the sentencing court determined that he was a persistent felon under N.Y. Penal Law § 70.10, violated the Sixth Amendment. The sole difference between this case and Greiner is that while this petitioner’s conviction became final after both Apprendi and Ring, the Greiner petitioner’s conviction became final after Apprendi but before Ring. This difference, in turn, alters the question presented on federal habeas in light of the AEDPA: While the question in Greiner was whether the state court’s decision upholding § 70.10 was an unreasonable application of Apprendi, the question here is whether the state court’s identical determination in this case was an unreasonable application of both Apprendi and Ring. The Circuit concludes that this is a distinction without significance and follows Greiner in rejecting the petition.

Section 70.10 requires two findings by the judge before s/he may impose the enhanced sentence: [1] the defendant must have been "previously convicted of two or more felonies," and [2] the judge must be "of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest." New York Penal Law § 70.10(2). In light of Apprendi’s holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the petitioner in Greiner argued that his enhanced sentence, based in part on finding [2], violated Apprendi. (Finding [1], of course, fits squarely under the Almendarez-Torres exception to the Apprendi rule).

The Circuit rejected this argument in Greiner, concluding that the state court did not act unreasonably in determining that the "amorphous" finding that a persistent felon sentence is required "to serve the public interest" differed from the kind of fact-finding at issue in Apprendi. While Apprendi "involved findings of specifically enumerated facts that were necessary to increase sentencing ranges," 409 F.3d at 534, the New York statute involved "a vague, amorphous assessment of whether, in the court’s ‘opinion,’ ‘extended incarceration and life-time supervision’ of the defendant ‘will best serve the public interest.’" Id. (quoting § 70.10(2)).

The Circuit relies on the same ad hoc distinction, found nowhere in the Supreme Court’s cases, to dismiss the petition in this case. Nowhere does the Circuit explain why such a distinction should make a difference for Sixth Amendment purposes. If a court cannot impose a greater sentence based on a narrow judicial finding that the defendant committed the crime for racist reasons, as in Apprendi, why should it be permitted to do the same based on a broader judicial finding that "the nature and circumstances of his criminal conduct" (§ 70.10) warrants such a sentence? Opportunities for circumvention of the Apprendi rule abound under the Circuit’s "amorphous" evasion of the Sixth Amendment.

Greiner is thus bad enough. But as this Blog noted, it is arguably defensible given that the universe of relevant precedents under AEDPA was limited to Apprendi. As Judge Gleeson pointed out in granting the writ in one of the cases consolidated in Greiner (only to be overturned by the Circuit), however, § 70.10 is functionally "identical" to the capital sentencing scheme struck down in Ring v. Arizona. Brown v. Greiner, 258 F. Supp.2d 68, 92 (E.D.N.Y. 2003). In the Arizona scheme ruled unconstitutional by Ring, a sentence of death -- though theoretically authorized by a jury verdict convicting a defendant of first-degree murder -- was unavailable without a judge finding at least one aggravating circumstance and the "absence of sufficiently substantial mitigating circumstances." 536 U.S. 584, 592 (2002). The latter finding is no less amorphous than finding [2] under § 70.10. Even assuming the validity of the Circuit’s "amorphousness" rescue of the state court in Greiner, therefore, no such assistance is available to the state court here, which acted after Ring was decided.

The Circuit’s sole response to this is that even Ring "involved a statute that required the sentencing judge to find some specified fact before imposing an enhanced sentence." Op. 9. Ring, of course, did not rely on this point in striking down the Arizona law. Nor did it distinguish the required finding of "one aggravating circumstance" from the required finding of the "absence of sufficiently substantial mitigating circumstances" in ruling that the statute as a whole violated Apprendi and the Sixth Amendment.

The sole bright spot is the Court’s explicit acknowledgment that the question of whether § 70.10 violates the Sixth Amendment in light of Blakely and Booker, in addition to Apprendi and Ring, remains open. Op. 9 fn.3. Additionally, the opinion does not rely upon or otherwise address the New York Court of Appeals’s equally but differently misguided decision in People v. Rivera, 5 N.Y.3d 61 (2005), which upheld § 70.10 against an Apprendi-Ring-Blakely-Booker challenge on direct appeal. Rivera did so by essentially rewriting the statute to permit an enhanced sentence based solely on finding [1] (and thus placing § 70.10 safely under the Almendarez-Torres umbrella). Op. 7. Click here for our critique of Rivera.

We Win!

Zedner v. United States, Supreme Court Docket No. 05-5992 (June 5, 2006): A big Congratulations to Ed Zas of this Office, as well as to Barry Leiwant and Sean Hecker, for winning the long and hard-fought appeal in Zedner. In a 9-0 decision by Justice Alito reversing the Second Circuit (click here for our critique of the Circuit's decision), the Court held that the protections of the Speedy Trial Act cannot be prospectively waived by the defendant and that harmless error analysis is not applicable when a district court makes no findings on the record to support an "interests of justice" exclusion under 18 U.S.C. § 3161(h)(8).

The only remedy for the Speedy Trial violation here, the Court held, is dismissal of the indictment (either with or without prejudice). Let us hope that wiser heads prevail on remand and end this long, sad saga.

Jury Must Be Unanimous that RICO Predicate Was Not Proved to Yield an Acquittal; Lack of Unanimity Results in Hung Jury

United States v. John A. Gotti, Docket No. 05-6872-cr (Walker, Leval, Sotomayor): This is the opinion the Court promised in February when it rejected Gotti, Jr.'s interlocutory appeal. Gotti claimed that his retrial on two RICO counts was barred by the Double Jeopardy Clause because the jury at his first trial could not unanimously agree that the Government had proved the existence of at least two predicate racketeering acts. Gotti argues that because the Government thus failed to prove the "pattern of racketeering activity" element of the RICO offense, he was entitled to acquittal on the RICO charges (and thus could not be re-prosecuted on these charges at a new trial under the Double Jeopardy Clause).

The Circuit rejects this "extraordinary argument," adhering to the general rule that jury unanimity is required for either conviction or acquittal. Op. 6 (citing Fed. R. Crim. P. 31(a) ("The verdict must be unanimous."). Thus, "lack of unanimity as to two predicate acts results in a hung jury and a mistrial, not a judgment of acquittal." Id.

Ignore If You Have Something Better to Do

United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006) (Sotomayor, Wesley, Hall) (per curiam): This Blog is puzzled once more by the Court's decision to issue a published decision rather than a summary order in this case (while giving seemingly more deserving appeals the ol' back-of-the-hand summary order treatment). Here, the Court rejects Hilario's two challenges to his sentence (for importing ecstasy), challenges that -- at least as described in the opinion, or unless this Blog is missing something -- seem to straddle the silly-to-frivolous line.

First, Hilario claims that the district court erred because it departed downward by only 26 months to account for the 26 months that he previously spent in a Belgian jail for a "related offense." Hilario claims that the court should have departed downward by an additional 4 months because he "might have earned [the 4 months as good-conduct credit] had he served his 26-month Belgian sentence in [a] federal prison" rather than a Belgian jail. Op. 2. The Court rejects this argument by pointing out that "good-time credit earned by a defendant is determined by the BOP based on a prisoner's behavior while incarcerated in a BOP-controlled environment" and "Hilario was previously incarcerated in a foreign jail" not run by the BOP. Id. [Of course, one wonders why the Court did not simply say, "You got 26 months 'credit' for the 26 months you served. Why should you get any more credit?" Maybe we are missing something.]

Second, Hilario claims that the district court should've given him a lower sentence under Section 3553(a)(6) because of the "possibility," based on "anecdotal evidence and past experience," that a co-defendant "might be transfered pursuant to treaty to Belgium ... and may receive a lesser sentence than he would for the same conduct in the United States." Op. 3. The Court rejects this argument by pointing out that, even assuming that co-defendant disparity could be considered under § 3553(a)(6) (once again leaving this question open), the district court considered Hilario's argument and its refusal to give a lower sentence on this basis was not an abuse of discretion. Op. 3-4. This was especially so given that Hilario's argument was "wholly speculative" and not based on any facts in the record. Id.

Readers are welcome to suggest in the "Comment" section what this Blog has missed.

Sentence Vacated Where Record Suggests that District Court May Not Have "Considered" the Section 3553(a) Factors

United States v. Toohey, Docket No. 05-4688-cr (2d Cir. May 17, 2006) (Winter, Cabranes, Raggi): In light of the Circuit's extremely lax standard for determining whether a sentencing court has fulfilled its obligation to "consider" the Section 3553(a) factors in imposing sentence as required by Booker, see, e.g., United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (appellate court will assume that the requisite consideration has been made, even where record is silent); United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (same), this may be the first decision by the Circuit vacating a sentence on the ground that record suggests that the district court failed to consider the Section 3553(a) factors in imposing the 15-month sentence (the bottom of the applicable Guidelines range). But the circumstances were odd and unlikely to recur with any frequency: The sentencing followed two earlier remands in which the Circuit vacated below-the-range sentences, and the district court's comments at sentencing suggests that it may have misunderstood that a Guidelines sentence was somehow required by the Circuit's earlier decisions. See Op. 5. In any event, the Court ruled that "where the record indicates misunderstanding by a district court as to the statutory requirements and the sentencing range or ranges that are arguably appliable, or misperception about their relevance, we may conclude that the requisite consideration has not occurred." Op. 4.

And in a footnote, the Circuit once again dodges (i.e., leaves open) the question of whether co-defendant disparity may be considered under Section 3553(a)(6) in imposing a non-Guidelines sentence. Op. 7 n.1.

Another Habeas Win Based on Exclusion of Defendant's Family Members from Courtroom

Smith v. Hollins, Docket No. 03-2250-pr (2d Cir. May 15, 2006) (McLaughlin, Sack, Koeltl (by desig'n)): This decision is but the latest in a long line of Second Circuit cases in which the Circuit has "expressed its strong devotion to the preservation of an individual's right to have family and friends present at his trial" and granted habeas based on the exclusion of the defendant's family members from the courtroom. Op. 13 (citing numerous cases from 1994 (Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994)) to 2006 (Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) (click here for our discussion of Miller)). It is also further evidence that neither state courts nor state prosecutors pay any attention to the Second Circuit. In this case, in which the state trial occurred in 1997, the judge and the ADA should have known better than to exclude the defendant's brother and sister from the courtroom during the testimony of the state's two essential witnesses (the undercover who did the "buy" in this typical buy-and-bust case, and the "ghost" who shadowed him) based on nothing more than generalized speculation. E.g., Miller, Op. 13 ("[a]ny alleged threat posed by a family member to an undercover's safety or effectiveness must be established by more than mere speculation. Instead, the trial court must make a particularized inquiry into whether exclusion of the family member was necessary to advance an overriding interest.") (emphasis in original).

Here, the judge allowed Smith's mother, common-law wife, and child to remain in the courtroom but excluded his brother and sister. This distinction was arbitrary and the exclusion of Smith's siblings unjustified: His brother and sister lived in Queens while the underlying offense occurred in Bushwick (Brooklyn) and the undercover and ghost's present and future undercover activities were limited to areas in Brooklyn. Op. 15. Neither witness knew Smith's family, had been threatened by them, or had any reason to believe that they presented a danger to the witnesses' safety or future effectiveness as undercovers.

The Circuit also rejected the district court's alternative holding that any error in violating Smith's Sixth Amendment public-trial right was harmless, re-affirming that the "denial of a public trial is a 'structural' error . . . not subject to harmless error analysis." Op. 16 (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996)). The Circuit noted that, instead, "when addressing whether an unjustified closure is a Sixth Amendment violation, a 'triviality standard' is the proper benchmark." Op. 16. Those interested in this fascinating distinction will have to consult the opinion at pages 16 to 18 (E.g, "We affirm the conviction not because the Sixth Amendment error was harmless, but because the closure was so trivial as to not implicate the concerns and values of the Sixth Amendment" -- got it?). Suffice it to say that the Circuit held here that the exclusion of Smith's siblings was not a "trivial" violation of the Sixth Amendment, due not least in part to the fact that the undercover and the ghost were the state's two essential witnesses. Op. 17-18.

Rather than simply granting the writ, however, the Circuit remands the case to allow the district court to conduct a last-ditch effort (in the form of a hearing) to save the conviction (i.e., to see whether the evidentiary gap authorizing the siblings' exclusion can be closed). Op. 18 (citing Nieblas v. Smith, 204 F.3d 29 (2d Cir. 1999)). This remedy seems misguided and a waste of time, since the state trial court already conducted a full hearing on the same issue in which both the undercover and ghost testified. And their testimony was thorough and complete, even if insufficient to justify the exclusion of Smith's siblings. One gets the sense that the Court simply doesn't want to grant the writ because of the perceived "windfall," Op. 18, that Smith will receive. Judge Sack, in fact, explicitly states in a short concurrence that "the looming possibility of . . . the windfall of a new trial . . . is . . . a matter of concern" to him. Op. 21. This Blog suggests that maybe the Court should be more concerned about state judges and state prosecutors' ignorance, willful or otherwise, of well-established law.

Plea Vacated for Lack of Factual Basis Where Defendant, Charged with Cocaine Conspiracy, Allocuted Solely to Marijuana Conspiracy

United States v. Adams, Docket No. 04-5391-cr (2d Cir. May 10, 2006) (Cardamone, McLaughlin, Pooler): This opinion does not break new ground, but is a good reminder that while the substantive distribution offense under the drug laws, e.g., 21 U.S.C. § 841(a), does not (as the law currently stands) require proof that the defendant knew the type and quantity of drugs he was selling or carrying for purposes of sentencing under the enhanced penalty provisions of § 841(b), the same is not true of the conspiracy offense under § 846. In order for a defendant charged with drug conspiracy under § 846 to be sentenced under the enhanced penalties of § 841(b)(1)(A) for cocaine, for instance, the Government must prove to a jury that the particular defendant either knew or reasonably should have known that the conspiracy he joined involved distribution of five or more kilograms of cocaine. It is not enough that the conspiracy involved, as a factual matter, the distribution of five or more kilos of coke. United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) (defendant liable for amount of drugs distributed by co-conspirators only if defendant knew about the quantity or if it was reasonably forseeable to him); accord United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003).

Here, Adams was arrested and charged with an § 846 conspiracy involving 5 kilograms of cocaine, after 659 kilos of coke were found in a truck and after the driver told the Government that Adams recruited him to drive the truck. Adams pleaded guilty to this charge, even stipulating in a plea agreement that he should be sentenced as if five kilos of coke were involved. At his guilty plea, however, Adams maintained that he did not know that cocaine was going to be in the truck. Adams claimed that he thought that about 90 pounds of marijuana were going to be on the truck, not cocaine. The district judge nonetheless accepted his guilty plea, finding it sufficient that Adams knew that some kind of illegal drugs were going to be on the truck, and subsequently sentenced him to the 10-year minimum under 21 U.S.C. § 841 (b)(1)(A).

The Circuit vacates Adams' plea, finding that it lacked a factual basis under Rule 11(b)(3) because Adams did not allocute sufficiently to the knowledge element in light of Martinez and because nothing in the record at the time of the plea otherwise filled this gap. The Circuit rejected the district court's finding, made after a post-plea hearing held in response to Adams' motion to withdraw his guilty plea, that Adams reasonably should have foreseen that more than five kilos of coke were at issue, on the ground that the factual-basis requirement can be met only by the defendant's allocution or by "any facts on the record at the time of the plea proceeding." Op. 12 (emphasis added); see id. 14 (citing United States v. Andrades, 169 F.3d 131, 134 (2d Cir. 1999), for proposition that "a sufficient factual basis must be determined at the time the plea is accepted, thus an after-the-fact hearing will not suffice").

Co-Defendant Disparity as Basis for Non-Guidelines Sentence Lives Another Day

United States v. Flores, Docket No. 05-2385-cr (2d Cir. May 3, 2006) (Kearse, Raggi, Restani (by desig'n)): This opinion affirms Flores's conviction for conspiring to import heroin and his 210-month sentence, discussing along the way (1) the standards for tolling the statute of limitations under 18 U.S.C. § 3290 based on the defendant's "fl[ight] from justice"; (2) whether testimony by cooperating witnesses alone, without independent corroboration, is sufficient to convict the defendant; and (3) whether the 210-month sentence is reasonable given that Flores's brother Chepe, who appeared to be equally culpable, received only a 120-month sentence (imposed by a different judge). The bulk of the opinion is spent on the tolling question, Op. 5-16, but this Blog will focus on the sentencing issue.

Flores claims that his 210-month sentence is unreasonable because of its disparity with his brother's 120-month sentence. This is so even though Flores actually faced a Guidelines range of 262 to 327 months, and the district judge imposed a non-Guidelines sentence (of 210 months) because of its concern about disparity with Chepe's sentence. Flores's claim on appeal, therefore, was that the district judge did not sufficiently consider the disparity and did not impose a sufficiently low sentence to reduce that disparity.

The Circuit rejects this argument, pointing out that even assuming that co-defendant disparity (as opposed to nationwide disparity) is an appropriate consideration under § 3553(a)(6), "the weight to be given such disparities, like the weight to be given any § 3553(a) factor, 'is a matter firmly committed to the discretion of the sentencing judge and is beyond our [appellate] review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.'" Op. 24 (citing Fernandez (click here for our discussion of that case)). Again relying on Fernandez, the Court emphasizes that on reasonableness review, which is "akin to [an] 'abuse of discretion'" standard, it will not "substitut[e] its judgment for that of the sentencing judge." Op. 24.

And in upholding the sentence, Judge Raggi signals some discomfort with the district judge's decision even to reduce the sentence to 210 months based on Chepe's sentence, twice noting that because the Government did not cross appeal, the Court has no occasion to rule on the propriety of the reduction. Op. 23 & 25. Nonetheless, Judge Raggi notes that while the Circuit has "not ruled, post-Booker, as to whether [§ 3553(a)(6)] permits district courts to consider sentencing disparities between co-defendants in the same case," Op. 22-23 (citing Fernandez), "this Court [] recognized [pre-Booker] that Congress's primary concern in enacting § 3553(a)(6) was to minimize sentencing disparities nationwide." Op. 22. Judge Raggi further points out that the district judge here would have been well warranted in not reducing Flores's sentence at all because he was not similarly situated to his brother. While Chepe pled guilty and showed the existence of extraordinary family circumstances at sentencing, Flores fled from justice, went to trial and asserted his innocence, and did not show that his incarceration would exceptionally affect his family members. Op. 24-25.

Maximum Sentence upon Revocation of Probation Is Same as Maximum for Original, Underlying Offense

United States v. Goffi, Docket No. 05-3329-cr (2d Cir. May 4, 2006) (Kearse, Sack, Stanceu (by desig'n)): The Circuit finally holds what most have long assumed -- that the maximum sentence upon revocation of probation (as opposed to supervised release) is the maximum for the original, underlying offense. Surprisingly, this was technically an open question in the Circuit until this decision, in which the Second joins many other circuits in so holding. Op. 9-10. Those interested in the statutory parsing can look to pages 7 to 8.

In this case, Goffi was originally sentenced to 5 years' probation after pleading guilty to embezzlement. While on probation, he pleaded guilty in state court to child molestation. The same misconduct led to revocation of probation in federal court, upon which he was sentenced to 24 months' imprisonment. Though this sentence exceeds the 6 to 12 months Guidelines range Goffi originally faced for the embezzlement conviction (when the Guidelines were mandatory), and though the court did not indicate an intent to depart upwardly, it was well below the 10-year statutory maximum for embezzlement (i.e., the maximum set forth in the U.S. Code -- not the Blakely "statutory maximum"), and thus lawful.

Goffi also argued that the district court violated 18 U.S.C. § 3553(c)(2) in imposing the 24-month sentence, which was 6 months greater than the top of the Chapter 7 "policy statement" range, by failing to articulate a "specific reason" for this sentence. The court had stated only that it imposed this sentence "because of the criminal conduct that gave rise to the violation and the need to protect society." Op. 5.

The Circuit rejected this argument, finding that even this bare-bones statement was sufficient. As it explains: "Here, the district court explained that it was sentencing Goffi to a term of imprisonment in excess of that recommended by the pertinent policy statement because of the seriousness of his offenses and the need to protect society. The district court thus explained 'the specific reason for the imposition of a sentence different from that described.'" Op. 6 (quoting § 3553(c)(2)).

Nonetheless, in a truly pointless gesture, the Circuit remands the case for amendment of the written judgment because the court failed to comply with § 3553(c)(2)'s "written statement" requirement. See 18 U.S.C. § 3553(c)(2) (requiring the "specific reasons" orally stated to also be "stated with specificity in the written order of judgment"). Though the Circuit had earlier ruled that failure to abide by the written-statement requirement does not require remand where the sentence is otherwise reasonable, United States v. Fuller, 426 F.3d 556, 567 (2d Cir. 2005), the Panel here explained that "it is the better course, while affirming the substance of the judgment of the district court, to return the case to the district court for the sole purpose of amending its written judgment to comply with Section 3553(c)(2)." Op. 6 n.2. Oh how sweet it is, when Justice is served.

The Circuit Is a Thorn in the Defendant's Side, but Booker May Come to His Rescue

United States v. Thorn, Docket No. 03-1602(L) (2d Cir. April 27, 2006) (Jacobs, Sotomayor, Hall): A very bad day for Mr. Thorn. In this opinion, involving an appeal by Thorn and a cross-appeal by the Government following a resentencing in the wake of an earlier Circuit decision in the same case, United States v. Thorn, 317 F.3d 107 (2d Cir. 2003), the Circuit (1) rejects all of Thorn's challenges to his sentence on the ground that they are either barred by the law of the case doctrine (because they are foreclosed by the earlier decision) or waived because he failed to raise them at the initial sentencing, and (2) accepts all of the Government's arguments -- that the district judge on remand erred in (a) failing to impose an abuse-of-trust enhancement and (b) departing downwardly because Thorn's conduct was (allegedly) not within the heartland of money laundering offenses and because Criminal History Category II (allegedly) significantly overstated the seriousness of his criminal past. None of the issues appears to break new ground.

On a first look, this decision is terrible news for Thorn. His initial sentence of 65 months was already increased to 168 months by the district judge on remand in light of Thorn I. And on remand following this decision (Thorn II), his Guidelines range will be even higher (though the opinion does not indicate just how much higher).

However, Booker may come to Thorn's rescue. Because even the resentencing occurred before Booker, the district judge, though forced by Thorn II to use a much higher Guidelines range than it prefers, will have discretion on remand to impose a non-Guidelines sentence that achieves the same result it earlier achieved through (what some may consider) a manipulation of the Guidelines. Reading between the lines, it's clear that this district judge does not believe that Thorn -- whose misconduct consists of Clean Air Act violations involving the disposal of asbestos -- truly deserved even a 168 month sentence and will likely impose a lower non-Guidelines sentence on remand. And if that happens, we can hardly wait for Thorn III!

Court Reverses Conviction for "Assault by Voicemail" but Upholds Charge of Willfully Oppressing a Person in Connection with Revenue Laws

United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff)

Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused them. In the police car on the way to the precinct, she told the detectives that "she had the 'ability to initiate investigations and audits into the[ir] tax histories'" and that she had co-workers who held a grudge against the police whom she could tell to audit their tax returns. For this, she was charged with willfully oppressing a person under color of law while acting in connection with a revenue law of the United States. 26 U.S.C. § 7214(a). Ms. Temple was subsequently fired from her job and made a telephone call to the official who had recommended her firing. The official received a voicemail message about nineteen hours after it was left, threatening to "fuck you up, you faggot bitch." For this, she was charged with "forcibly" assaulting or intimidating the official.
18 U.S.C. § 111. The district court granted a judgment of acquittal on the oppression charge, holding that it was not under "color of law," since she was not acting under any actual authority, was not even "apparently" empowered to punish the officers, and that the officers were laughing at her taunts; it upheld the "forcible" assault or intimidation charge, however.

The Circuit reversed both rulings of the district court. It found fairly easily that the threat to "fuck up" an official left on his voicemail many hours before the message was finally received did not involve the "immediate or imminent threat" necesessary for a conviction for "forcible" intimidation. That was despite the threatened official's testimony that he was "basically petrified" after receiving her call because he was aware of her actions at the time of her arrest and that he had "great concerns about [his] own safety."

The Circuit reversed the judgment of acquittal on the oppression count, however. It held that Ms. Temple's employment by the IRS clothed her with "indicia of authority" and that she made a "specific and direct threat under the guise of apparent authority." It noted that the officers were unaware that Temple probably did not have authority to initiate any audit of their tax status.

Judge Wesley concurred, writing to express his concern that the court's reliance on its prior decision in United States v. Giordano, 442 F.3d 30 (2d Cir. 2006), had allowed "a victim's subjective beliefs or fears about a defendant's ability to or willingness to use his or her public position to cause harm" to be the basis for a finding that a defendant was acting "under color of law." Judge Wesley stated that he would hold that Temple's threats were under color of law without regard to the police detectives' subjective beliefs or fears about her actions. He urged that the color of law inquiry be based on "objective criteria."

Constructive Possession of Firearm Suffices to Disqualify Defendant from Safety-Valve Relief

United States v. Barraza, Docket No. 05-1454-cr (2d Cir. May 2, 2006) (Walker, Leval, Sotomayor): It's hard to believe that this isn't a settled issue in the Circuit, but apparently it's not. In this opinion, the Court rules that for purposes of determining whether a defendant qualifies for safety-valve relief under § 5C1.2, as well as for the 2-level reduction under § 2D1.1(b)(9), a finding that the defendant constructively possessed a firearm, "based on his personal dominion and control over that weapon," Op. 7 (emphasis in original), renders the defendant ineligible for such relief under § 5C1.2(a)(2) (listing as one requirment for safety-valve relief that "the defendant did not . . . possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense."). The Court reasoned that since constructive possession is as good as actual possession in every other context, see Op. 7-8 (citing example of § 924(c)(1), § 922(g), and U.S.S.G. § 2D1.1(b)(1)), the same should be true for safety-valve eligibility. And in this case, the evidence was sufficient to uphold the district court's finding that Barraza personally exercised dominion and control over a stash house where two guns were stored, Op. 9-10, and thus that the court properly denied safety-valve relief.

A caveat: The Court reminds us that whether a defendant is disqualified from the safety valve based on the possession of a gun (and thus also ineligible for the 2-level reduction under § 2D1.1(b)(9)) is a different question from whether a defendant should receive a 2-level enhancement under § 2D1.1(b)(1) for possessing a gun or dangerous weapon. Because the latter has a wider reach -- since it can be triggered by relevant conduct such as a co-defendant's reasonably foreseeable possession of a firearm -- than the former (§ 5C1.2(a)(2) concerns solely the "defendant['s]" possession of a firearm, see § 5C1.2 comment no. 4), a defendant who receives the 2-level enhancement under 2D1.1(b)(1) may nonetheless be entitled to safety-valve relief under some circumstances. Op. 6 (citing cases from other Circuits). Though this opinion does not definitely resolve this question for the Second Circuit (since Barraza personally possessed a firearm, albeit constructively), the law seems clear on this distinction.

The Mother of all Pyrrhic Victories

United States v. Wallace, Docket No. 03-1777 (L) (2d Cir. April 27, 2006) (Walker, Cardamone, Parker): The Circuit disposes of most of Wallace and co-defendant Thomas's challenges to their conviction and life sentences (imposed on the drug conspiracy and murder-during-a-drive-by-shooting counts) in a simultaneously issued summary order. In this published decision, the Court vacates one of two § 924(c) convictions, applying the rule adopted in United States v. Finley, 245 F.3d 199, 207-08 (2d Cir. 2001) ("[C]ontinuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct" amounts to a single unit of prosecution, and thus only one § 924(c) conviction is sustainable). The application of Finley to the facts of this case is questionable -- the predicates for the two § 924(c) counts were an arguably distinct drug conspiracy and a drive-by-shooting (committed after the unfortunate victim stole drugs from the defendants). But who are we to quibble; those interested in finding out whether the predicate offenses were indeed "so inseparably intertwined" as to trigger the Finley rule can consult pages 7-10 of the opinion.

Though the decision may be of use to future litigants, it is meaningless to Wallace and Thomas. Not only were they sentenced to life imprisonment on other, unaffected counts; even regarding the two § 924(c) counts (one of which must now be vacated), while the sentencing judge imposed a 10-year sentence on each because the weapon was discharged, see 18 U.S.C. § 924(c)(1)(A)(iii), he ran the sentences concurrently (a no-no under § 924(c)(1)(D)(ii), see Op. 11). The sole benefit to the defendants from their victory in the Circuit, therefore, is a $100 savings in the special assessment.

DOJ Reverses Course: Government Agrees that Notice Is Required before Court Can Exceed Guidelines Range (whether via Departure or via 3553(a) Factors)

We recently received a copy of a letter written by the Criminal Division of the Department of Justice, addressed to the Clerk of the First Circuit, in which the Government adopts the position -- directly contrary to its earlier view -- that Fed. R. Crim. P. 32 requires prior notice to the parties if a court intends to exceed the Guidelines range at sentencing, whether via a traditional departure or via a consideration of the § 3553(a) factors pursuant to Booker. As the Government writes, "the sentencing court does have an obligation to provide prior notice before deviating from the Guidelines range on a ground that was not identified in the presentence report or by the parties. . . . [A] district court should provide notice to the parties when it is contemplating a sua sponte deviation (whether upward or downward) from the advisory Guidelines range." Letter at 1-2.

This was big news to us, since the Government has argued on several pending appeals that notice was required only when a court departs from the advisory range, and not when a court imposes a "non-Guidelines" sentence above (or below) the range. It is also somewhat unusual given that the only Circuit to have resolved this question in a published opinion -- the Eighth -- concluded that notice is not required if the court imposes a non-Guidelines sentence outside the advisory range. United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005).

In our view, the Government's new position not only accords with the law (especially in light of the Supreme Court's reading of the earlier version of Rule 32(h) in Burns v. United States, 501 U.S. 129 (1991)), but also makes perfect sense from its "pro-Guidelines" perspective. If one wants the Guidelines to remain foremost (i.e., "presumptive") in the sentencing court's eye, as the Government obviously does, what better way to achieve that goal than to require the court to give advance notice of its intent to do so (as well as its reasons for doing so)? Such a requirement likely will have the effect of deterring some busy district courts from imposing non-Guidelines sentences. And since statistics indicate that more non-Guidelines sentences are of the below-the-range variety (rather than the above-the-range type), a reading of Rule 32 to require prior notice any time such sentences are contemplated will benefit the Government more than defendants in the long run.

NB: Please email me if you want a PDF version of the Government's letter.

Restitution Unaffected by Apprendi-Blakely-Ring-Booker

United States v. Reifler, Docket No. 03-1244 (L) (2d Cir. April 18, 2006) (Kearse, Jacobs, Calabresi): Guest Blogger wanted: Anyone wishing to throw in his or her 2 cents about this 164 page opinion should email me. I can't even make myself print it out, much less read it. (At least this week ...)

But sentencing fans can skip to page 104 of the opinion to see the Court reject, at long last, an Apprendi-Ring-Blakely-Booker challenge to the restitution order (which includes amounts not found by a jury or admitted by the defendant). The first two arguments proffered by the Court are plain bizarre -- non-sequiturs, really -- and the third is simply a repeat of the post-hoc rationale first invented in Fruchter (that the Apprendi rule does not apply to restitution because there is no "maximum" under the restitution statute).

Lifetime Supervised Release Upheld for Child Porn Offender

United States v. William Hayes, Docket No. 05-2321-cr (2d Cir. April 18, 2006) (Winter, Calabresi, Pooler): The Circuit upholds a lifetime supervised release term imposed upon Mr. Hayes, who pled guilty to transporting child porn in interstate commerce in violation of 18 U.S.C. § 2252A. That Hayes must first serve 151 months in prison and will be 68 years old by the time of his release did not require a different result. In upholding the sentence, the Circuit relied inter alia on (1) the policy statement in Section 5D1.2(b)(2) (recommending the statutory maximum term of supervised release where the defendant is convicted of a sex offense); (2) the fact that Hayes was convicted in state court of molesting a 12-year-old girl more than a year after the events underlying the federal case; and (3) a Congressional finding that sex offenders are far more likely to recidivate than other offenders, and that "recidivism rates do not appreciably decline as [sex] offenders age." Op. 4. Your tax dollars at work, ladies and gentlemen.

Evidentiary Hearing Required Where Government May Have Denied 5K1.1 Letter Based on Known Pre-Agreement Misconduct

United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig'n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government's refusal to file a § 3553(e) / § 5K1.1 letter was made in bad faith. In United States v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992), the Court sensibly ruled that the Government cannot refuse to file a 5K letter on the basis of facts known to it at the time the agreement was executed. As the Court explained there, "Not only would it be unfair for the government to rely upon . . . known, pre-agreement circumstances as reasons for not moving [under 3553(e) / 5K], it would have been fraudulent to have induced a defendant's plea with a promise that the government already knew it was not going to keep." Id.

In this case, the record was unclear as to whether the Government's refusal to file a 5K letter for Doe was based on information it already possessed when it entered into the cooperation agreement. Of the 4 reasons proffered, 2 were clearly based on misconduct that the Government knew about when it entered into the agreement. Because it was unclear from the record whether the Government knew about the other 2 purported reasons before entering the agreement, the district court should have conducted an evidentiary hearing before denying Doe's request for specific performance. See Knights, 968 F.2d at 1487 (defendant need only make a "showing of bad faith" to trigger evidentiary hearing).