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Adrienne Urrutia was so excited about the rare reversal she won for her client at the 5th U.S. Circuit Court of Appeals that she did a dance in her office and typed a triumphant letter to her imprisoned client informing him of the good news. But on Jan. 12 — an hour and a half after the San Antonio criminal defense solo read about her victory in United States v. Murillo-Reza — Urrutia’s elation was dashed by a U.S. Supreme Court decision released the same day that not only casts doubt on the reversal she won but also the entire federal sentencing guideline system. The 5th Circuit reversed and remanded Murillo-Reza to the trial judge for resentencing, because the trial judge’s decision did not follow the average sentence required under the federal sentencing guidelines. Juan Antonio Murrillo-Reza had been sentenced to 120 months in prison for transporting illegal aliens for profit. Yet, the high court’s Jan. 12 opinion in United States v. Booker and United States v. Fanfan determined that those same guidelines now are advisory, not mandatory. “At least I didn’t put my letter into the mail,” Urrutia says of her brief victory on behalf of a court-appointed client. The 5th Circuit withdrew its opinion in Murillo-Reza seven days later on Jan. 19 and requested further briefing from Urrutia. “It will be really interesting to see what the court does with the case.” One of the questions the 5th Circuit — as well as other circuit courts across the country — must answer in cases such as Murillo-Reza is what exactly are the factors a trial court needs to consider when deciding a reasonable sentence. The upshot in Booker, Urrutia believes, is that trial courts may now consider factors that they routinely ignored when the guidelines were mandatory. One of the factors is the “history and characteristics of the defendant,” which are laid out in 18 U.S.C. 3553, she says. Urrutia says U.S. District Judge Orlando Garcia of San Antonio didn’t consider the fact that Murillo-Reza was desperately poor, was 21 years old when the police arrested him and only had six years of education — all reviewable factors under 3553. “It’s not a statute that we necessarily paid a whole lot of attention to because the guidelines were mandatory,” Urrutia says of pre- Booker sentences. “And now that they are advisory, 3553 is the prevailing sentencing statute.” But Murillo-Reza was convicted after Garcia heard some gruesome testimony that the defendant had left a weakened illegal alien in the South Texas desert to die. Animals eventually devoured the body of Victor Nunez, according to the 5th Circuit’s opinion in Murillo-Reza. “It’s just one of those things where arguably Booker is going to reshape [how] judges can deal with a case like that,” says Joseph H. Gay, chief of the appellate division for the U.S. Attorney’s Office for the Western District of Texas whose office prosecuted Murillo-Reza. “It’s just very difficult to say how it will be resolved,” Gay says. HOW MANY MORE On Jan. 24, the U.S. Supreme Court remanded about 400 cases to U.S. circuit courts of appeals for rehearing in light of Booker. Approximately one-fourth of those cases were sent back to the 5th Circuit — one of the busiest circuits in the nation because of its heavy criminal caseload. But as far as Texas defendants requesting appellate relief because of Booker, the 78 cases remanded to the 5th Circuit just scratch the surface, several criminal defense attorneys say. No one has an accurate count of how many Texas cases may be affected by Booker, but it’s well into the hundreds. For example, in the Southern District of Texas, the Federal Public Defender’s Office has about 600 cases pending before the 5th Circuit, says Margy Meyers, the Southern District’s public defender. “If I had to guess, about 90 percent [have] Booker issues. And about half of those were already briefed,” Meyers says. Now, public defenders are filing supplemental briefs in hundreds of appeals. Trial attorneys in the office are assisting the district’s six-lawyer appellate division to accommodate the heavy workload, Meyers says. “The immediate blip is in the appellate division,” Meyers says. “We’re just going nuts.” Fortunately for appellate attorneys, the 5th Circuit is allowing lawyers to file concise “letter briefs” on Booker issues instead of re-briefing the entire case, says Chief Judge Carolyn Dineen King. “We’re going to have a meeting of all of the judges in about a week and try to get a coordinated approach to it all,” King says of Booker appeals. “It is a monumental task.” The 5th Circuit may have to work harder at resolving appeals with Booker issues than other circuits. In June 2004, the U.S. Supreme Court ruled in Washington v. Blakely that the sentencing guidelines used in Washington state courts, which were similar to the federal guidelines, were unconstitutional. Despite Blakely, in July 2004, the 5th Circuit ruled in United States v. Pineiro that the federal sentencing guidelines were constitutional and still in effect. Other circuits took a more cautious approach, and some issued opinions identical to Blakely, anticipating a possible move away from the guidelines in light of the high court’s ruling in Blakely. “ Pineiro maintained the status quo until we could get a decision [from the U.S. Supreme Court],” King says. “A lot of the circuits essentially went that route. We’re not the only one.” Some criminal defense attorneys are taking a cautious approach before jumping to file a Booker appeal. Christie Williams, a partner in the Austin, Texas, office of Mills & Williams, says she’d like to see the 5th Circuit rule on exactly which cases Booker affects. “The question is, do you wait until the 5th Circuit says, “Yes, it’s retroactive,’ or “No, it’s not retroactive?’ ” Williams says. “But it’s a hard thing to say to somebody that’s incarcerated: “Let’s just wait,’ ” she says. TAKE IT TO THE JUDGE Several U.S. district judges in Texas say they’ll continue to use the federal sentencing guidelines as a starting point for sentencing defendants. A majority of federal judges in Texas don’t know of any other way to accurately gauge an appropriate sentence as most were not on the bench before 1987 when the guidelines first took effect, several judges say. But there are cases peculiar to Texas that could cause some judges to stray from the guidelines. Illegal-alien transport cases are a good example, says U.S. District Judge George Kazen of Laredo, Texas. “In alien transport cases, you have an upward departure for endangering the alien. But it’s the same for a truck driver with 30 aliens as it is for a housewife who’s got one person in her trunk,” Kazen says. “You really have to say, “Is this really the same kind of case?’ ” (Some cases where Texas federal judges routinely impose minimum sentences are what are known as “ mule” or “backpacker” cases, in which defendants are caught along the Texas/Mexico border carrying heavy loads of drugs.) For example, a backpacker who carries 40 kilograms of marijuana across the border, but travels in a group of backpackers, could receive up to five years in prison if the judge decides to sentence the backpacker-defendant according to the aggregate amount of drugs the total group was carrying. But a single backpacker often is sentenced to a year and a day if the judge only considers the amount of marijuana the defendant carried on his or her back. “Normally these are 30- or 40-year-old guys with a first-grade education,” Kazen says of backpacker-defendants. “It’s the kind of thing a judge can see on the ground where you can’t do a … one-size-fits-all kind of sentence.” U.S. District Judge David Briones of El Paso, Texas, says he’ll have an interesting choice to make when he looks at mule cases on his docket that have a fairly new twist for the border area — defendants caught transporting methamphetamine, a crime that carries a higher sentence of as much as 10 years in some instances. Determining trends and disparities in sentencing is the responsibility of the U.S. Sentencing Commission — a duty that keeps the commission’s job relevant in the post- Booker era, says Ricardo Hinojosa, a U.S. district judge in McAllen, Texas, and chairman of the commission. “We are trying to keep on top of whether there are any changes in sentencing,” Hinojosa says. “It will be some period of time to see if patterns are developed.” In the Eastern District of Texas, prosecutors and defense attorneys are working on more detailed plea bargains in the hope that both sides can agree on a sentence before it gets to a judge and avoid a subsequent Booker appeal. “We are working real hard to have an agreement prior to the plea agreement — a common understanding what the likely punishment is likely to be,” says Matt Orwig, U.S. attorney for the Eastern District. “We agree on the factual basis for the plea and what the likely offense level is going to be,” Orwig says. “That’s so there is more predictability for the defendant as well as our office.” As is the case with most plea bargains, the defendant has to surrender certain rights to appeal a sentence, Orwig says. But Douglas McNabb, a Houston criminal defense attorney, doesn’t believe Booker will change much in Texas as far as sentences are concerned. He believes federal trial judges still will use probation pre-sentencing reports as the primary document in determining sentences, just as they did before Booker became the law of the land. “The probation officer files the report, the judge gets the report, and there will be some objections filed,” says McNabb of McNabb Associates. “And they’ll basically rubberstamp what the probation officer says the guideline is.” But Urrutia says defense lawyers will truly earn their money during sentencing hearings by pushing 3553 to introduce relevant background evidence about their clients. It’s the best way to paint a full picture before a judge, she says. Notes Urrutia, “[T]he circumstances surrounding the event are relevant to the sentence.”

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