April 12, 2006
United States v. Zavala—Booker revived!
On April 11, 2006, the Ninth Circuit filed its opinion in United States v. Zavala. The case is significant in that it shuts-down the practice of treating the Guideline calculated sentence as the presumptive sentence. The “presumptive sentence” rule has been followed by many district courts and effectively undermined the Booker decision.
In Zavala, application of the sentencing guidelines yielded a life sentence “range.” During the sentencing hearing, the district court characterized the guideline sentence as the “presumptive sentence.” Defense counsel argued that the starting point of analysis was the statutory minimum sentence. The court explained its view of post-Booker sentencing, stating, “I think it is clear . . . that we start with the Guideline range and then work from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion.” The court considered the relevant sentencing factors set forth in 18 U.S.C. 3553(a), ultimately concluding that the appropriate sentence was 30-years’ imprisonment rather than imprisonment for life.
The court in Zavala concluded that “[i]f a district court presumed that the sentence should be a Guideline range sentence, it would thereby make it much more than something to be consulted and would give it much heavier weight than section 3553(a) now does. That leaves it as a factor in the sentencing alchemy.” The court stated that “a presumption at the district court would give undue weight to the Guidelines. The dangers averted by declaring them to be merely advisory would become recrudescent.”
After Zavala it is clearly error for the district court to apply greater significance to the guidelines. The court stated, “[i]f a district court does show a kind of resistence and, instead, makes the Guideline calculation the presumptive sentence, it will commit legal error by misapplying section 3553(a), which now makes the Guideline a, but only a, factor to be considered.” The foregoing passage is important language in the Zavala opinion. Appellate counsel should consider whether a district court, by virtue of the language it uses or its sentencing practice, has shown “resistence” to the principle announced in Zavala.
The Zavala opinion is notable not only for its holding, but for its entertaining use of language. In one passage, the court writes that “Booker has resuscitated the much-lamented discretion that the sentencing statute seemed to take away from district courts, and has at least partially restored that halcyon condition that district judges have longed for these many years. District courts neither should, nor can, ignore that by placing undue weight on the Guideline portion of the sentencing chemistry.”
Zavala is a good read. Its rich passages should be quoted in every sentencing memorandum filed in the district court.
Posted by Tim Warriner at 06:47 PM
March 12, 2005
An Invitation from Justice Thomas...
Almendarez-Torrez v. United States, 523 U.S. 224 (1998) is now officially on the chopping-block. Justice Thomas writes in Shepard v. United States: “Almendarez-Torres, like Taylor, has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U.S., at 248-249 (SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520-521 (THOMAS, J., concurring). The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres’ continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental “imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.” Harris v. United States, 536 U.S. 545, 581-582 (2002) (THOMAS, J., dissenting).”
The question is how long will it take for a challenge to Almendarez-Torres to work its way up to the Supreme Court.
Posted by Tim Warriner at 08:41 AM
February 12, 2005
Italics and Dicta in Ameline
The Ninth Circuit’s new and improved Ameline decision provides important guidance for defense counsel. At the District Court level, Ameline admitted to possession of only a “detectable amount” of methamphetamine, strongly objecting to the drug quantity found by the probation officer. At sentencing, the Court placed the burden on the defendant to prove that the amount stated in the presentence report was inaccurate. The new Ameline decision concludes that shifting the burden to the defendant was improper. The court also found that although Ameline didn’t object on sixth amendment grounds at the District Court level, the error was “plain,” and could therefore be considered by the appellate court. Some of the court’s discussion concerning plain error would seem to limit review to cases, such as Ameline's, where the defendant made no admission to drug quantity and objected to the quantity found by the court. However, the court writes in what probably would be considered dicta, that “[a]ccordingly, it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime.” The italics were used for the purpose of emphasis. The phrase intimates what I earlier predicted: there are going to be a lot of Booker resentencings.
Posted by Tim Warriner at 06:32 AM
January 25, 2005
A Slew of Booker Cert Grants
Yesterday, the Supreme Court granted certiorari in approximately 300 cases, remanding them for reconsideration in light of Booker. A case of mine, Camacho v. United States, was among the many. What lies ahead for these cases? while it is difficult to predict how the various Courts of Appeal will react, in my opinion, federal attorneys will be handling a lot of resentencings in upcoming months.
Posted by Tim Warriner at 07:29 AM
January 22, 2005
The Application of Booker in United States v. Ranum
United States v. Ranum stands in contrast to the Wilson opinion (see earlier post). Mr. Ranum was a bank officer convicted of misapplying bank funds. Under the guidelines, the defendant was looking at a minimum of 37 months imprisonment. The court correctly applied Booker, noting that “courts may no longer uncritically apply the guidelines.” Taking a direct shot at the Wilson opinion, Ranum states “the approach espoused in Wilson is inconsistent with the holdings of the merits majority in Booker.” The court considered many factors that would have, under the previous mandatory guideline system, been irrelevant. One factor of importance was that the defendant received no monetary benefit at all due to his misapplication of bank funds. Ultimately, the court determined that a sentence of a year and a day was appropriate.
Ranum is a well-written opinion. It is nice to see such a prompt challenge to the approach taken in Wilson. You can download Ranum file here.
Posted by Tim Warriner at 08:18 AM
August 21, 2004
Blakely Fallout
For those of you who are non-lawyers, Blakely v. Washington is a US Supreme Court case holding that a defendant has a right to have sentencing factors used to enhance a sentence above the presumptive or "ordinary" range proven to a jury beyond a reasonable doubt. The case is important for defendants in criminal cases for many reasons, and gives a much needed boost to a defendant's negotiating power.
While the 9th Circuit in Ameline has found that Blakely applies to the United States Sentencing Guidelines, whether Blakely applies to the California state sentencing scheme has yet to be decided. State courts are uneven in their attitude toward Blakely, some judges requesting a "Blakely waiver" as part of every plea, and others ignoring the issue. One thing is certain: defense counsel must continue to raise the issue by timely objection, and to creatively expand application of the rule.
Posted by Tim Warriner at 10:45 AM