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Less than a month after the U.S. Supreme Court struck down mandatory sentencing guidelines, seven appellate courts and a few trial judges have weighed in with a flurry of conflicting approaches to handling their new-found power. Appellate courts have rendered opinions on who is entitled to a new sentencing hearing, the retroactivity of settled appeals and what may constitute a reasonable sentence. And new pronouncements arrive almost daily. The landmark Jan. 12 Supreme Court decision, U.S. v. Booker, 125 S. Ct. 738 (2005), concluded that the 17-year-old federal sentencing guidelines system violates the Sixth Amendment by allowing judges to increase a sentence above guideline maximums based on facts not decided by a jury. The high court resolved the constitutional problem by rendering the guidelines advisory, rather than mandatory. That restored some of the sentencing discretion that judges began losing two decades ago. But it has created a host of new problems regarding who is entitled to resentencing and what will constitute a reasonable sentence in the future. Circuits have already split-including one intracircuit split between panels in the Cincinnati-based 6th U.S. Circuit Court of Appeals-over whether defendants who failed to raise Booker-style claims nonetheless have a right to seek resentencing. In addition, two circuits have agreed Booker cannot be applied retroactively to the thousands of cases final by the decision’s Jan. 12 issue date. But all the circuits have so far skirted or only lightly touched the toughest question: What will constitute a “reasonable” sentence once trial judges begin applying Booker standards? “The whole future of advisory [sentencing] guidelines will depend on how appellate courts interpret Booker‘s status: Do judges have very broad freedom to substitute their judgments? Or are they bound to normally apply the guidelines,” said Professor David N. Yellen of Hofstra University School of Law. “And Congress will be watching very carefully. They don’t trust the judges,” said Yellen, a sentencing law expert in Hempstead, N.Y. He currently serves on a blue-ribbon Constitutional Committee on Sentencing chaired by President Ronald Reagan’s former attorney general, Edwin Meese. The appellate courts’ first wave of rulings have been pragmatic in grappling with the backlog of cases potentially ripe for resentencing. With as many as 60,000 defendants a year being sentenced in the federal system, dockets began piling up with previously sentenced defendants seeking shorter terms once the high court issued Booker. Meanwhile, new cases continue to pour in to district courts. Exacerbating the problem, not all cases were sentenced the same way after the high court signaled a potential Sixth Amendment problem with the guidelines in its June 2004 ruling, Blakely v. Washington, 124 S. Ct. 2531 (2004). The Blakely decision struck down Washington state’s sentencing scheme. The first question for the appellate courts: Which defendants get what Judge Ed Carnes of the 11th Circuit, based in Atlanta, called “a do-over”? As judges tried to predict how the Supreme Court would rule in Booker, three sentencing problems emerged after Blakely but before the Booker ruling, said Amy Baron-Evans, Boston attorney with Dwyer & Collora and co-chairwoman of the Practitioners’ Advisory Group to the U.S. Sentencing Commission. Some judges continued to apply the guidelines as mandatory after Blakely. They now know that is a Sixth Amendment violation requiring resentencing, she said. Others used the guidelines as advisory but failed to consider other factors listed in 18 U.S.C. 3553, which includes such things as age, poor upbringing, education, mental health, drug addiction and other factors previously off limits under the guidelines, said Baron-Evans. The third sentencing problem arose when judges limited their sentence to a level based only on facts found by the jury. That too produced a sentence that did not take into account the Section 3553 factors. Those rulings don’t violate the Constitution, but early appellate responses suggest that some, but not all circuits, believe that those decisions also require resentencing, she said. Support for resentencing In a powerful and early opinion, the conservative 4th Circuit in Richmond, Va., came out in support of resentencing all defendants with direct appeals pending even if they failed to raise Booker-style claims. Judge William Wilkins of the 4th Circuit, a former chairman of the Sentencing Commission, wrote that to leave standing a sentence “imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings.” U.S. v. Hughes, No. 03-4172 (2005). To ignore the error and declare the pre- Booker sentence reasonable would be “tantamount to performing the sentencing function ourselves,” Wilkins wrote. Two other circuits followed quickly. New York’s 2d Circuit in U.S. v. Crosby, No. 03-1675, added guidance by stating that a sentencing judge should consider the guidelines and “all the other factors set forth in section 3553(a)” when imposing sentence. Judge Jon O. Newman added weight to his Crosby opinion by pointing out that it had circulated among other judges of his circuit and “benefited from numerous suggestions.” And the 6th Circuit, in U.S. v. Oliver, No. 03-2126, joined in the Crosby sentiment that defendants with appeals pending had a right to be resentenced using the correct factors. Intracircuit split But one day later, on Feb. 3, another panel of the same 6th Circuit bolted from that trend and created an intracircuit split with U.S. v. Bruce, No. 03-3110. Douglas Berman, law professor at Ohio State University’s Moritz College of Law who closely monitors Booker developments, called the 4th Circuit’s Hughes ruling “a bold statement. I thought others would follow in line, but the 6th Circuit didn’t.” Adding to the 6th Circuit tangle, a panel that originally issued an unpublished ruling requiring resentencing ordered its opinion, U.S. v. Davis, WL130154, published with a footnote explaining that to the extent that Oliver and Bruce conflict, the courts must follow Oliver because it was issued first. The 11th Circuit, based in Atlanta, sided with the Bruce panel and also rejected the automatic resentencing for pending appeals that failed to make a Sixth Amendment challenge. “The Hughes reasoning is wrong,” wrote Carnes in U.S. v. Rodriguez, No. 04-12676. “We ask whether there is a reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding fashion,” Carnes wrote. The point is to prevent additional proceedings when a defendant fails to show that a “do-over would more than likely produce a different result,” he said. The San Francisco-based 9th Circuit stepped into the fray last week, siding with the 4th Circuit in Hughes. The panel emphasized that all but “the truly exceptional case” will require remand for resentencing. The sentencing judges must take into account the host of personal factors listed in Section 3553, U.S. v. Ameline, No. 02-30326. But Ameline author Judge Richard Paez cautioned: “Sentencing discretion is not boundless, however; it must be tethered to the congressional goals of sentencing as reflected in the Sentencing Reform Act.” He said it remains the government’s burden to prove any fact the judge uses to set the offense level for sentencing. And in a footnote, he left open the question of whether Booker requires a higher standard of proof for those factors than currently employed-preponderance of the evidence. “In this case, the 9th Circuit recognized statutory obligations require much broader analysis than rote guideline review,” said Steve Kalar, senior litigator for the Federal Public Defender’s Office in San Francisco. Meanwhile, the 8th Circuit based in St. Louis chose to put the issue of resentencings straight to an en banc review in U.S. v. Pirani, No. 03-2871, set for March 9. A U.S. Department of Justice spokesman said no decision has been made about appealing any of the circuit court rulings so far, and he declined to comment on case specifics. But on Jan. 12, Assistant Attorney General Christopher A. Wray said the department “remains committed to the core principles and the just foundation created in the Federal Sentencing Reform Act.” Ohio State’s Berman said all courts must address “what the heck reasonableness means.” The 2d Circuit in Crosby “made the most direct statement but ducks what the standard is going to be.” Yellen suggested that based on past rulings, it may mean, “unless a judge thumbs his nose at the sentencing guidelines the sentence is likely to be reasonable.” That appeared the case in a 2d Circuit decision issued the same day as Crosby, U.S. v. Fleming, No. 04-1817, in which the panel allowed a two-year sentence for revocation of probation to stand. Reasonableness “is a flexible concept,” wrote Newman. “The appellate function in this context should exhibit restraint, not micromanagement,” he said. Just how far judges can stray from existing guidelines and still produce reasonable sentences became the subject of a cross-country debate between two judges through their written opinions. U.S. District Judge Paul G. Cassell of Salt Lake City urged close adherence to the guidelines, noting that the public supports them and that Congress has repeatedly said they are not too severe. “The judiciary has a chance to demonstrate to Congress that it can be trusted with greater freedom,” he said in U.S. v. Wilson, No. 03-CR882PGC. Better for courts to exercise discretion than for Congress to implement “such blunderbuss devices as mandatory minimum sentences.” U.S. District Judge Lynn Adelman of Milwaukee countered in U.S. v. Ranum, No. 04-CR-31, that although courts must seriously consider the guidelines, it is one of several factors, including Section 3553. “ Booker is not an invitation to do business as usual,” Adelman wrote. Courts “must now consider all of the section 3553(a) factors, not just the guidelines.” At least two other district court judges have issued decisions following Adelman. If the Sentencing Reform Act, which established the guidelines, were approved today, post- Booker, “Cassell’s position would be very hard to defend,” said Hofstra’s Yellen. “The guidelines wouldn’t get any more weight than other factors to consider. He suggested that the guidelines were “neither as binding as Cassell suggests or as avoidable as Judge Adelman suggests.” Despite the rulings so far, “nothing would diminish my fervor for filing a brief if I had a case pending with these issues,” concluded Berman.

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