The Hacking Group, a company in Italy which provides tracking software used by the DEA and anti-drug forces in other countries, has been hacked. It's emails have been published, including one that shows the DEA has been intercepting every IP address in Colombia. More here.
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The criminal law world has been awaiting the Supreme Court decision in U.S. v. Claiborne and U.S. v. Rita, which address unresolved questions from the Booker case (argued in the Supreme Court by TalkLeft contributor TChris) which ruled the federal sentencing guidelines are no longer mandatory.
The issue in the Claiborne case is whether a sentence below the guideline range must be justified by extraordinary circumstances. Scotus Blog reports:
The case of Claiborne v. U.S. (docket 06-5618) was heard by the Court on Feb. 20, along with a second Guidelines case (Rita v. U.S., 06-5754). The cases were heard in tandem because they both test what sentence under the Guideline may be treated as "reasonable" when challenged on appeal. The Clairborne appeal asks whether a sentence below the Guideline range is presumed to be reasonable, while the Rita case asks whether a sentence within a Guideline range is presumed to be reasonable.
But today the Public Defender's office representing Claiborne confirmed he was shot to death in Saint Louis in recent days.
So what happens to his case?
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Before the Supreme Court's Booker decision, federal courts were required to follow the federal sentencing guidelines. The guidelines required judges to enhance sentences to punish for crimes the judge believed were related to the crime of conviction, even though the additional crimes weren't proved to a jury beyond a reasonable doubt. Under the post-Booker regime, judges could impose any "reasonable" sentence after considering the guidelines and a number of other factors.
After Booker made the guidelines advisory, some federal appellate courts did their best to restore their mandatory nature by announcing that guideline-compliant sentences are presumptively reasonable while reversing sentences that weren't as harsh as the guidelines recommended. In today's NY Times, Linda Greenhouse spotlights two cases that will be argued before the Supreme Court today -- cases challenging the presumption that guideline sentences are reasonable.
The presumption “simply resurrects the system rejected in Booker,” Thomas N. Cochran, an assistant federal public defender in Greensboro, N.C., told the court in the brief he filed on behalf of Victor A. Rita Jr., the defendant in one of the two new cases.
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The Booker decision gave federal judges an opportunity to craft sentences that are appropriate to the offender and offense, guided but not bound by the federal sentencing guidelines. Appellate courts after Booker are to review sentences for reasonableness.
Many federal appellate courts have undermined the Booker decision by reversing sentences that fall below the advisory guideline sentence, and some have gone so far as to deem a guideline sentence presumptively reasonable, while giving less deferential scrutiny to sentences that are more lenient than the guidelines suggest. (Courts seem less troubled by sentences that exceed the advisory guideline.) These decisions have the practical effect of restoring the binding force of the guidelines, recreating the constitutional problem that Booker purported to solve: mandatory punishment for crimes that are never proved to a jury. (TalkLeft background on the Booker decision is collected here.)
The Supreme Court on Friday accepted review of two cases that question whether within-guideline sentences deserve more deferential review than those that fall outside the guidelines.
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Federal judges have more discretion to impose reasonable sentences than they had before the Supreme Court's Booker decision, but the limits of that discretion remain unclear. We know only that federal sentences must not be "unreasonable."
Was it unreasonable to sentence Michael Martin to 7 days of incarceration? The Eleventh Circuit thinks the sentence was just as unreasonable as the original imposition of straight probation, which it reversed. District Judge U.W. Clemon is testing the limits of his discretion, and might have kept ratcheting the sentence up a week at a time if the Eleventh Circuit hadn't tossed him off the case (decision here in pdf).
Michael Martin is a former HealthSouth executive who pled guilty to conspiracy to commit securities fraud and mail fraud.
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The Milwaukee Journal Sentinel takes on Wisconsin's Jim Sensenbrenner, who wants to take away the sentencing discretion that the Supreme Court handed to federal judges with the Booker decision:
He mustn't. The old system straitjacketed judges too much, such as Utah's U.S. District Judge Paul Cassell, known as a hard-line conservative. He lamented from the bench that he had no choice but to put a first-time offender in prison for 55 years for dealing marijuana. Justice demands that judges be allowed to exercise discretion. Otherwise, you may as well replace him or her with a computer program.
The Journal Sentinel recognizes that judicial discretion is an essential balance to prosecutorial discretion.
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Drug War Chronicles reports that despite the Supreme Court's decision in U.S. v. Booker which made the federal sentencing guidelines advisory rather than mandatory, drug sentences are getting longer.
In a report on post-Booker sentences issued last week, the US Sentencing Commission found that most judges in most cases continued to sentence in accord with the now "advisory" guidelines. According to the report, about 67,000 people were sentenced in the federal courts in the past year, and their average sentence of 58 months was actually higher than the 57-month average of the previous year. Sentences below the guidelines have increased, but only minimally, from a little over 9% to just over 15%.
Both Law Prof Doug Berman of Sentencing Law and Policy and I are quoted in the article.
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Via Sentencing Law and Policy, the 277 page final report of the U.S. Sentencing Commission on the impact of the Supreme Court decision in Booker v. U.S. which made the guidelines advisory rather than mandatory is now available free online. (pdf) Every federal criminal defense lawyer will want a copy.
Republicans in Congress have been toying with the idea of making all sentences mandatory minimums to avoid having judges issue sentences below the guidelines. Hopefully, this report will show that's not necessary.
The majority of federal cases continue to be sentenced in conformance with the sentencing guidelines. National data show that when within-range sentences and government-sponsored, below-range sentences are combined, the rate of sentencing in conformance with the sentencing guidelines is 85.9 percent. This conformance rate remained stable throughout the year that followed Booker.
....The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased.
If the cart ain't broke, don't fix it.
Cheers for U.S. District Court Judge Gregory Presnell in Orlando, FL.
Sentencing Law and Policy reports that in US v. Hamilton, (pdf) No. 6:05-cr-157-Orl-31JGG (M.D. Fla. Mar. 16, 2006), the Judge refused to apply the draconian federal crack cocaine guidelines because they are irrational in comparison to the severity of the offense. Using the Booker case (argued in the Supreme Court by TalkLeft co-blogger TChris) that rendered the guidelines advisory rather than mandatory, Judge Presnell ruled:
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The Supreme Court will bravely step once again into the quicksand of sentencing law. The Court will decide what impact the Blakely and Booker decisions have on California law. (TalkLeft background on the cases is collected here.)
The Supreme Court rulings say judges can't increase a maximum possible prison sentence based on their own factual conclusions, rather than the findings of a jury or admissions made by a defendant in a guilty plea. ...
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When the federal sentencing guidelines were still binding on judges, a judge would sometimes sentence apologetically, explaining that the sentence was required by law even if undeserved. Judge John E. Steele in Florida told Elizabeth Thompson that her 30 year sentence was unfair. His complaint wasn't unusual.
Steele's statement was not unlike statements made by many federal judges, both conservative and liberal, around the country who complained for years that the sentencing guidelines forced them to hand down excessively long sentences.
Thompson was fortunate that Judge Steele voiced his disapproval of the result.
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After the Supreme Court's Booker decision, federal judges have discretion to impose the sentence that they believe best advances the goals of sentencing, even if that sentence is less than the sentencing guidelines advise. But just how much discretion do they have? We may soon find out, as the government appeals the 22 year sentence imposed on Ahmed Ressam for conspiracy to commit a terrorist act, among other crimes. (TalkLeft background here.)
Ressam had struck a deal with federal prosecutors to provide information against other terror suspects in exchange for a shorter sentence. But at his sentencing on July 27, prosecutors asked for [a 35 year] term on the grounds that he had failed to work with them and jeopardized cases they were building against other terror suspects.
In a surprise move, Coughenour sentenced Ressam to 22 years, saying that he believed the sentence reflected "the fairness and transparency of the U.S. justice system."
If it sounds to you like the government is sucking on sour grapes, you're probably right. The court of appeals will review the sentence to decide whether it's "reasonable," a standard of review that should be highly deferential to the sentencing judge, who was in the best position to evaluate Ressam.
The real question in this case is whether federal sentencing should be controlled by district court judges or (as has long been the case) by prosecutors. The answer should come in several months.
Those who have followed the Booker case know that the Supreme Court made the federal sentencing guidelines advisory, freeing federal judges to impose sentences that are less (or, unfortunately, more) harsh than the guidelines formerly required. (Those who haven’t followed the case can catch up here.)
The Court’s decision will benefit some defendants, but – you heard it here first – it didn’t benefit Booker, who was resentenced today to a term of 30 years, the same sentence that the district court originally imposed. Booker’s counsel, who happens to be writing this, was disappointed, to say the least.
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This is from an email alert sent out this morning by the National Association of Criminal Defense Lawyers:
A disastrous "Booker fix" is scheduled for hearing and markup this afternoon before the House Crime Subcommittee. The provision, sneaked into a drug sentencing bill (H.R. 1528), would effectively make the guidelines a system of mandatory minimum sentences. If this provision is enacted, there will be almost nothing left of judicial discretion in sentencing: it would eliminate virtually every basis ever relied on by a judge to depart downward. If it were to pass, the Supreme Court likely would find the new "Guidelines" would be subject to constitutional challenge on almost the same grounds as Booker, and, after another year or two of uncertainly, we likely would be right back to where we are today. Due to a complete lack of reasonable notice, the judiciary, practitioners, academics and other experts have been denied the opportunity for meaningful input.
More information is available from NACDL here, and analysis from sentencing expert Doug Berman is here and here. In this post, Prof. Berman asks the insightful question: "Is this Booker fix a symptom of the post-Schiavo attack on the judiciary?"
Tell your congressional representative: Just say no to bad sentencing laws.
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Law review articles about the Supreme Court's Blakely and Booker decisions are sprouting like wildfire. Law Prof Doug Berman at Sentencing Law and Policy has a roundup.
There are also seminars around the country. TChris, our contributing blogger, who was counsel for Booker and who argued the case in the Supreme Court, is on the road a lot these days, speaking at CLE seminars and providing tactical advice. The AFDA is held this seminar in Los Angeles last week. Check out the agenda portion at the bottom for a good description of what's at stake.
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