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Federal appellate courts have created their own version of March Madness with a competition for a leading theory on how to handle resentencings in the wake of the U.S. Supreme Court’s Booker decision. The conservative Fourth Circuit U.S. Court of Appeals and the liberal Ninth Circuit appeared to hold sway when both announced a similar broad presumption of prejudice to defendants sentenced at a time when judges considered the guidelines mandatory. The two circuits found that under plain-error requirements, the presumption of prejudice opened the door to dozens of resentencing hearings. Bolstering that position, the Third and Sixth circuits issued similar interpretations, applied to defendants who were in the appeals pipeline but who failed to make a Booker-style due process claim. But last week, a majority of the Ninth Circuit’s 24 judges voted to reconsider, en banc, its plain-error decision in U.S. v. Ameline, 02-30326 — and is scheduled to hear arguments today. And the original panel in the Fourth Circuit decided it wanted to reconsider its own ruling in U.S. v. Hughes, 03-4172. Ameline attorney Steven Hubachek, a federal defender in San Diego, said he does not believe the Ninth Circuit’s decision to reconsider means his position is out of the money. “Look at the last brief of the government,” he said. “They argued there was a good reason to hear the case [ en banc] just because there is so much conflict among the circuits. It may well be [the court] agrees with the panel analysis and is looking for the depth and authority of an en banc decision,” he said. Montana U.S. Attorney William Mercer, who prosecuted Ameline, declined comment. But the U.S. Department of Justice brief in the case argues that “a defendant who can show that plain error is affecting his substantial rights is not automatically entitled to relief.” The error must be “particularly egregious,” and must “seriously affect the fairness, integrity or public reputation of judicial proceedings,” the brief states, citing Supreme Court precedent. The Booker decision on Jan. 12 threw courts around the country into turmoil as they tried to cope with the court’s holding that the two-decade-old sentencing guidelines should be treated as advisory and not mandatory. U.S. v. Booker, 125 S. Ct. 738 (2005). This allows judges to take into account factors that they previously ignored when the guidelines were considered mandatory. One immediate problem was how to respond to a mountain of resentencing requests from defendants who failed to raise the constitutional question addressed in Booker, but nonetheless have appeals pending. Three circuits, the First, Fifth and Eleventh, have broken ranks with the presumption of prejudice crowd. Those three circuits called for a much narrower approach. Judges in those circuits have said that defendants may be entitled to resentencing in limited cases, but they must demonstrate some prejudice suffered from mandatory application of the guidelines. Prosecutors support that position. Two other circuits have taken a middle-ground approach. The Second and Seventh circuits said that if it cannot be determined whether a defendant suffered prejudice, then the case should be sent back to the sentencing judge to decide. San Diego defender Hubachek had problems with both choices. He called “overly harsh” the requirement that the defendant demonstrate some prejudice. “They are asking the defendant for some indication in the record that the judge would have given a different sentence” but for the mandatory guidelines. The guidelines over the last 15 years have been designed to discourage judges from commenting on their dissatisfaction with a sentence. “Comments didn’t have a lot of utility,” he said, suggesting that there would be little indication in the record how a judge felt about a sentence. As for sending questionable cases back to the trial judge to look at the prejudice issue, it is not clear that the defendant would have input into the hearing or what the defendant’s role would be. “It’s a very unwise rule,” Hubachek said. Meanwhile, trial judges appear to be sticking close to guideline ranges. The U.S. Sentencing Commission issued a report on Feb. 28 that shows in the first month after Booker nearly 66 percent of the 1,986 sentences issued were within guideline range. Another 2 percent were above the guideline range and of the remaining 32 percent below the range, most — 20 percent — came at the government’s request. Pamela MacLean is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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