January 18, 2005
United States v. Wilson...Off to a Flawed Start
A day after Booker/Fanfan came down, Judge Cassell of the United States District Court for the District of Utah filed an opinion in United States v. Wilson. The opinion is one judge’s analysis of the newly-minted “advisory” guidelines. While Judge Cassell deserves great credit for taking on such a difficult task, the opinion contains several flaws.
The opinion rejected Justice Scalia’s observation that “logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines) has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range.” Booker, 2005 WL, at *47. Judge Cassell’s response to Scalia’s point is curious. The judge writes “As a general statement of a sentencing judge’s legal authority, Justice Scalia’s description appears accurate. The wise exercise of that discretionary authority, however, requires a judge to consider how the legal and factual background has changed since the Act was passed.” Wilson, p. 6. Judge Cassell seems to conflate what, in his personal opinion, is a “wise exercise of discretionary authority” with the issue of what limitations (if any) courts now face in imposing sentence. Conspicuous in the Wilson opinion is the absence of any response to Justice Scalia’s observation. Justice Scalia makes a strong argument that courts now will need only pay lip-service to the guidelines. Any rule resembling a requirement that courts follow the advisory sentencing guidelines will make the guidelines mandatory, thereby entitling defendants to a jury trial a la Blakely.
Professor Douglas A. Berman’s sentencing blog (available here) contains other criticism as well as some praise for Judge Cassell’s opinion. Notable is the observation that the Wilson opinion fails to “engage the history and characteristics of the defendant.” True. The opinion seems to obsess over the guidelines and the sentencing commission, but places little emphasis upon the individuality of the defendant.
Judge Cassell, it seems, wants to turn back the clock. If the guidelines are now advisory, then courts can impose whatever sentence is warranted under the circumstances. While courts may have to consider the guidelines, they should not be required to give them the “great weight” Judge Cassell requires. To do so would transform advisory guidelines into mandatory guidelines.
Posted by Tim Warriner at 09:28 PM
January 13, 2005
Booker/Fanfan---an initial reaction
For those with a federal practice, Blakely was the proverbial cliff-hanger. The unanswered question: were trhe federal sentencing guidelines unconstitutional? That question was answered yesterday with the issuance of the Booker/Fanfan opinion. In an interesting twist, the court found that while mandatory guidelines (those a sentencing judge must follow) are unconstitutional, guidelines that are truly just guidelines (ones a sentencing judge may follow if he or she wants to) are valid. Thus, instead of striking down the entire guideline scheme, the court just struck those provisions making the guidelines mandatory.
What are the effects of the decision? Attorneys will no longer need to ask for sentencing departures, which were almost entirely outlawed by Congress. Some defendants, probably those without much criminal history or other extenuating circumstances, will get much lower sentences than they would before Booker/Fanfan. The flip-side, however, is that other defendants, such as so-called "recidivists," may get longer sentences since the top of the guideline range is no longer the maximum.
If Booker/Fanfan was the stone thrown in the pond, then we've got to wait to see the riples that result. One possible result is action by Congress purporting to "remedy" the effect of Booker/Fanfan.
Posted by Tim Warriner at 06:55 AM
January 09, 2005
US Sentencing Guideline Amendments: sex, internet and analogs
In 2003, Congress enacted the PROTECT act, Pub. L. 108-21, which among other things directed the United States Sentencing Commission to review and consider amending the guidelines with respect to GHB to provide for stiffer penalties. The Sentencing Commission answered this call by modifying provisions of USSG 2D1.1, 2D1.11 and 2D1.12.
Modifications to USSG 2D1.1 include a 5 year penalty for possession of 3 gallons, and a 10 year penalty for possession of 30 gallons of GHB. The 3 gallon mark was considered by the DEA to be a quantity associated with a mid-level distributor, while 30 gallons is associated with an upper-level individual. Changes to USSG 2D1.11 increased the penalties for trafficking in GBL, a “precursor,” consistent with the 3 gallon/5 year, 30 gallon/10 year rule.
USSG 2D1.1, 2D1.11 and 2D1.12 are modified to include a 2-level enhancement for “mass marketing” a controlled substance through utilization of an “interactive computer service.” An example given of conduct warranting this enhancement includes operating a website to promote the sale of GHB. Conduct not warranting the enhancement would be utilization of email in furtherance of a conspiracy to distribute GHB.
The Sentencing Commission has commented hat the internet: ”enables drug traffickers to market their illegal products more efficiently and anonymously to a wider audience than through traditional drug trafficking means, while making it more difficult for law enforcement authorities to discover the offense and apprehend the offender.” May 10, 2004 Guideline Amendments, unofficial text, p. 86. Does utilization of a website really allow drug traffickers to “anonymously” market drugs, thereby making it more difficult for the police to “discover the offense and apprehend the offender”? It would seem that if a subject uses a website, he or she is much easier to apprehend. Obtaining a search warrant for the site operator’s information from an ISP would be a piece of cake. Better yet, the police can order drugs directly from the site. The police don’t need to use informants to catch someone selling GHB through a website. It may be true, however, that the internet permits sale of drugs to a wide audience, in fact, an international audience. However, by operating in such an “open and notorious” manner, the offender is inviting arrest and prosecution. This enhancement is really more of a “sophisticated means” provision then one justified by any supposed difficulties imposed upon law enforcement.
Amendments to 2D1.1(e) require application of the vulnerable victim adjustment (3A1.1(b)(1)) if the defendant commits or attempts to commit a “sexual offense” by distributing a controlled substance to an individual, with or without that individual’s knowledge. The Sentencing Commission’s view is that “a defendant who commits a drug-facilitated sexual assault should receive increased punishment whether or not the victim knowingly ingested the controlled substance distributed by the defendant.” However, the commission’s concern is narrower than the actual language of the guideline in that the guideline punishes persons who “attempt” to commit a sexual offense. What about the college kid who meets a girl at a rock concert and gives her an ecstasy pill, at her request, and they go off to his car to fool around? If he gives her the pill, at her request, and the pill will loosen her inhibitions, would his actions be considered an attempted “date rape”? This amendment is troubling if it is to be applied to “willing participants.”
Finally, application note 5 to USSG 2D1.1 was amended to specify that any reference to a controlled substance includes the analogs of that substance. The test for whether something is an analog is copied for 21 U.S.C. 802(32).
Many other guideline amendments are now in effect. These include modification to the level 30 cut-off for defendants who are minor participants. Defendants who are deemed minor participants in an offense will no longer fair so well. Thus, it will be important for counsel to make sure the correct guideline book is being utilized by the probation officer.
These amendments make it important for the practitioner to appropriately limit any Blakely-waiver contained in a plea agreement.
Posted by Tim Warriner at 03:16 PM