From a Federal Perspective:
Sentencing Litigation in the Aftermath of Booker

Since 1984, federal sentencing has been a creature of the Guidelines. Historically, to be an effective advocate for a defendant at any stage of the proceedings, it was necessary to contemplate the impact of litigation strategies on the ultimate, potential Guidelines calculation. Today, this high stakes game of chess involves even greater foresight and creativity than ever before.

On January 12, 2005, the Supreme Court rendered its decision in the consolidated cases of United States v. Booker and United States v. Fanfan, 125 S.Ct. 738 (2005). The ruling consisted of two (2) separate and distinct majority opinions.
 
In the first majority opinion, authored by Justice Stevens, the Court declared that the decision in Blakely v. Washington, 124 S.Ct. 2531(2004) applied to the mandatory Federal Sentencing Guidelines. In essence, the Court found that the Guideline range that is supported solely by facts found by the jury or admitted by the defendant operates as the “statutory maximum” for Apprendi purposes. Consequently, all other sentencing enhancements based upon judicial fact finding and using the mandatory Guidelines would pose an irreconcilable affront to the Sixth Amendment right to jury trial.
 
In second majority opinion, authored by Justice Breyer, the Court determined that the unconstitutional federal sentencing scheme could be remedied by excising the statutory provisions of the Sentencing Reform Act of 1984 (SRA) that made the Guidelines mandatory.1 By judicially reconstructing the SRA legislation, the Court rendered the Guidelines “effectively advisory” in all cases. Consequently, the Guideline computation is but one of several sentencing components to be considered under 18 U.S.C. § 3553(a).

In a post-Booker sentencing, the district court must begin its analysis by recognizing that the ideal Section 3553(a) sentence should be “sufficient, but not greater than necessary,” to strike a balance among the four (4) legislative sentencing purposes: (1) retribution; (2) deterrence; (3) protection of the public; and, (4) rehabilitation. 18 U.S.C. § 3553(a)(2). These cornerstones form the foundation of any 18 U.S.C. 3553(a) sentence.

Next, in fashioning an equitable sentence that serves these criteria, the district court must weigh (to some extent) all of the Section 3553(a) factors, as follows: (1) the nature and circumstances of the offense and the history and characteristics of the defendant;” (2) “the kinds of sentences available;” (3) the Guidelines; (4) the need to avoid unwarranted sentencing disparity; and, (5) the need to provide restitution where applicable.  18 U.S.C.  § 3553(a)(1), (a)(3), (a)(5)-(7).

In practice, the non-Guideline considerations change the landscape of federal sentencing by allowing the criminal defendant to put on proof of mitigation that has long since been ignored by the Guidelines. Nonetheless, .Presentence Investigation Reports continue to pay heed only to the Guideline component, and the government routinely takes the position that the Guidelines yield a presumptively correct sentence. Despite this prevailing tunnel vision, federal defense practitioners are poised to make headway with the district and appellate courts alike.

Cases are being remanded by the Sixth Circuit and the United States Supreme Court for re-sentencing in accordance with the dictates of Booker. For defendants who have been in custody during their appeals, the posture of their case affords them the unique opportunity to argue that the time already served accomplished the stated sentencing objectives.2 Counsel can advance proof via institutional records to demonstrate the defendant’s good behavior (i.e., disciplinary history) and his/her post-sentencing educational, vocational and personal accomplishments. This type of re-sentencing proof may provide defendants with legitimate fodder for suggesting that their original sentence was “greater than necessary” to accomplish stated sentencing goals.

In all sentencings (regardless of whether original or on remand), it is necessary to evaluate the totality of all of Section 3553 (a) factors.

After Booker, all defendants are free to prove and argue those mitigating characteristics about themselves, their families, their businesses or the facts of their cases that have previously been forbidden from consideration by a strict interpretation of the Guidelines. 18 U.S.C. § 3553(a)(1). Whereas, before Booker, these same facts were often disregarded as disfavored and rarely successful grounds for downward departure.3
 
As for the kinds of sentences available, the Guideline “zones” are no longer controlling of how a sentence is to be served. Rather, the method of service is guided by a series of statutes. 18 U.S.C. § 3559 sets forth the sentencing classification of offenses. Once a Class is determined, look to 18 U.S.C. § 3561 for a determination of probation eligibility and the length of a potential probationary term. Significantly, Congress instructs that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582.

On the issue of disparity in sentencing, there are many potentially helpful arguments that can be made. For career offender and/or crack cocaine cases, the Guideline calculations are so extraordinarily harsh that they often overstate the seriousness of the crime and/or the defendant’s criminal history. Moreover, in all cases, an additional constitutional problem is created if, for disparity purposes, the Court seeks to reconcile post-Booker sentences with pre-Booker, mandatory Guideline sentences. It is constitutionally consistent to suggest that the district court begin the disparity measurement with the issuance of Booker (January 12, 2005) so that sentences are being compared in kind.
 
Finally, the fact that the defendant owes restitution may become a consideration justifying an alternative sentence. It is reasonable to argue that restitution can be paid most efficiently if the defendant’s legitimate business income is not interrupted by a period of incarceration. Naturally, incarceration would cause the defendant to lose his/her employment, and after a period of incarceration, a defendant’s employment prospects and earning capacity will likely be diminished - thus, hampering the prompt payment of restitution to the victim.
 
There are many legal issues of constitutional importance that remain unresolved in the aftermath of Booker. For offenses committed pre-Booker (1/12/05), ex post facto concerns may arise from the imposition of the Booker remedy to the Blakely problem.4 Moreover, under the doctrine of avoidance of constitutional doubt, the argument can be made that sentencing enhancements must be proven beyond a reasonable doubt (not by a mere preponderance of the evidence).5 Finally, given the unforeseen remedy crafted by the Booker Court and the many questions it left unresolved, it is reasonable to anticipate future watershed opinions on these and other issues.

Perhaps, now more than ever, it is important to be creative with the sentencing record and forecast the potentially limitless future constitutional sentencing developments. Dust off that crystal ball and avoid those pesky appeal waivers.

About the Author: Kim Hodde is a private criminal defense practitioner in the Middle District of Tennessee who serves on TACDL’s Ad Hoc Federal Court Committee. For more information about this article or to suggest topics for future articles, please contact her at 615-859-5540 or at khodde@bellsouth.net.

1. The remedy portion of the Booker opinion suggests that the district court do, in an advisory fashion, what would be unconstitutional to do in a mandatory setting. This end run around the Sixth Amendment warrants additional challenge. It is suggested that practitioner preserve appellate records accordingly.

2. See, 18 U.S.C. § 3553(a)(2).

3. See, 18 U.S.C. §3661; U.S.S.G. §5H1.

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4. See, “Booker Litigation Strategies” by the Federal Public Defender Office for the Eastern District of Pennsylvania.

5. See, EN 4 & http://circuit9.blogspot.com/2O05/ l/booker-reasonable-doubt-survives.html.