3rd Cir Issues More Booker remands

In two not-precedential cases, the 3rd Cir has continued its policy of remanding for resentencing under Booker where the district court, in sentencing before Booker, treated the guidelines range as mandatory.

In US v. Spivey, (No. 04-2057, 3/22/05), the Circuit issued its most extensive (although still brief) discussion of plain error. The Court stated that plain error analysis applies since no Sixth Amendment objection was raised at sentencing. The Court then noted that it was "at least arguable" that the sentence did not violate the Sixth Amendment since defense counsel admitted to the enhancement in question which increased the defendant's criminal history.

Even without the Sixth Amendment violation, however, the Court found remand was required under Booker because "the District Court's mandatory application of the Guidelines to Spivey's sentence was in error, and we cannot say from the record before us whether that error 'had a substantial and injurious effect or influence in determining the [sentence].'" (Citing Kotteakos). The Court then concluded with the language used in all its Booker remands: "Therefore, having determined that the sentencing issues Spivey raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker." This case thus continues the Circuit's policy of remanding for resentencing in any case where the district court viewed the guidelines as mandatory, regardless of whether there was an objection and regardless of whether there was a Sixth Amendment violation.

In US v. Simmons (No. 03-2013 3/22/05), the Circuit remanded for resentencing under Booker even though the defendant had received an upward departure. The defendant there, prior to Blakely, had originally appealed his sentence of 48 months on the ground that the judge improperly departed upward from the guideline range based on underrepresentation of criminal history. Defense counsel sought to supplement after Blakely, and the Court held the case under advisement pending Booker. In remanding, the Court said only that the Booker sentencing issues "are best determined by the district court in the first instance." This case makes clear that remand is appropriate even when the sentence was pursuant to an upward departure.

3rd Cir rejects challenge to BOP good time calculation

The 3rd Cir., in O'Donald v. Johns, (No. 04-2990, 3/22/05), rejected a habeas challenge to the way the Bureau of Prisons calculates the 54 days of good conduct time ("GCT"). The BOP has been interpreting the statute, 18 U.S.C. 3624(b), as allowing for 54 days of GCT "for each year served," which takes into account the fact that an inmate's time actually served becomes shorter each year as he is awarded GCT. The prisoner argued that the statutory language requires the BOP to calculate GCT based on the sentence imposed, not the time actually served. The Circuit found that the statutory language is unclear and ambiguous, and that the Court should therefore defer to the BOP's interpretation since it is an reasonable one. In so ruling, the Court joins the 1st, 7th, and 9th Cir.s in upholding the BOP on this issue.

3rd Cir upholds DNA collection as condition of SR

In US v. Sczubelek, (3/21/05, No. 03-2173) the 3rd Cir., following other circuits, upheld the constitutionality under the Fourth Amendment of the DNA Act. This law requires those in custody or on supervised release, parole or probation to give a DNA sample if they have been convicted of a qualifying federal offense such as bank robbery. The Court applied a reasonableness analysis under US v. Knights, 534 U.S. 112 (2001). The Court concluded that the intrusion was reasonable based on the following factors: the intrusion of a blood test is minimal, those on supervised release have a reduced expectation of privacy, the government has a compelling interest in the collection of identifying information on offenders, probation officers have no discretion regarding who is required to give a sample, the uses of the samples are limited, and the samples can be expunged if the conviction is reversed. Judge McKee dissented.

3rd Cir Continues Remands Under Booker

Continuing its broad approach to remands for resentencing in light of Booker, the 3rd Circuit in yet another not-precedential opinion, remanded for resentencing in a case involving a defendant sentenced at the bottom of his guideline range as a career offender -- US v. Mitchell (No. 03-3862, 3/11/05). This remand is a striking demonstration of just how broad the 3rd Circuit's approach is, since appellate counsel had filed a no-merit brief under Anders, but defendant in an informal pro se brief raised the Booker issue himself. The Court found that counsel had fulfilled all the requirements of Anders (and thus implicitly found that there were no meritorious issues for counsel to raise on appeal) but then remanded for resentencing stating only the following:

Mitchell challenges his sentence on the basis of United States v. Booker. . . Having determined that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for re-sentencing in accordance with Booker.

3rd Cir rejects Brady claim

In US v. Leonardo A. Pelullo, No. 02-2710 (3d Cir. 2/25/05), the Circuit reversed a district court's finding of a Brady violation concerning two sets of exculpatory documents. In a very fact intensive opinion, the Court ruled that because the first set of exculpatory material consisted of the defendant's own documents, and because defendant had access to them, the failure of the government to turn them over to the defense did not constitute "suppression" of the exculpatory material for purposes of the rule of Brady v. Maryland.

The Court ruled that the second set of exculpatory material consisted of documents in the possession of a government agency that was not part of the "prosecution team," and that therefore under Brady the government's failure to turn these document over to the defense also did not constitute "suppression." As the Court explained, "[T]he prosecution is only obligated to disclose information known to others acting on the government's behalf in a particular case."

Addressing a separate habeas challenge to the jury instructions, the Court ruled that defendant had defaulted this claim and had not established "cause" for his failure to raise it at the trial or on the direct appeal.

More 3rd Cir Booker remands

The Third Circuit is continuing to take a broad approach to remanding cases for resentencing under Booker, without the need for any express consideration of plain error or harmless error. The Circuit appears to have concluded implicitly that most sentencings that took place before Booker (and therefore under the binding guidelines) meet the test for plain error since one can never know what sentence the district court judge would have imposed under the now advisory guideline system implemented by Booker.

In each case involving a Booker remand, the Court has included some variation of the following statement: "In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker." In addition to the Ordaz and Davis decisions discussed below, the Circuit has recently remanded for resentencing in the following unpublished and not precedential cases (click on case to pull up the decision): US v. Nayef Yousef (2/22/05); US v. Arthur Able (2/24/05); US v. Edwin Marquez (2/28/05); US v. Vivian Wells (3/3/05).

US v. Able is particularly noteworthy since it does not appear to have involved any Sixth Amendment violation under Booker, and the defendant was sentenced at the top of the guideline range of 18 to 24 months. Nonetheless, the Circuit, noting that "the district court clearly treated the Sentencing Guidelines as mandatory rather than advisory," did not find that the error of applying the mandatory guideline range was harmless, but instead remanded so that the district court could determine the sentencing issues "in the first instance."

3d Cir rejects Booker challenge to prior convictions

In U.S. v. Ordaz, 2005 WL 418533 (3d Cir. Feb. 23, 2005), the Third Circuit put an end to Blakely/Booker challenges regarding prior convictions. Ordaz was convicted after trial of various drug and conspiracy offenses. Relying on Apprendi and Blakely, he challenged the district court's drug weight determination (and other enhancements) and further argued that the fact of his purported prior convictions needed to be found by a jury before the district court could use them to enhance his sentence.

In its opinion, the Third Circuit briefly discusses Booker and concludes that the "net result" of Booker "was to delete the mandatory nature of the Guidelines and transform them to advisory guidelines for the information and use of the district courts in whom discretion has now been reinstated." Ordaz, 2005 WL 418533 at *3. Applying Booker to Ordaz's case, the Court concluded that Ordaz's challenges to drug weight, leader/organizer, use of a firearm, and obstruction of justice were "best determined by the District Court in the first instance and we therefore vacate the sentence and remand for resentencing in accordance with Booker." Id.

The Court then rejected Ordaz's argument that the fact of his prior convictions should have been submitted to the jury. The Court stated that it did not "gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court's decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries." Id. at *5. Nevertheless, the Court concluded that Almendarez-Torres remained binding. Accordingly, it held that the district court's determination regarding the facts of Ordaz's prior convictions did not violate the Sixth Amendment, despite the fact that the sentences were based, in part, on facts found by a judge, rather than a jury.

Summaries of Post-Booker decisions

Fran Pratt, a Research and Writing Attorney in the Federal Public Defender Office in Alexandria, Virginia, has compiled a very useful summary of most of the court decisions addressing Booker in both the district courts and the circuits. Click here to pull up the pdf version.

3rd Cir issues orders regarding Booker letters

The 3rd Circuit has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less. The order further requires that the letter "must succinctly state the factual and legal basis of the challenge. The letter may not contain argument. Cf. Fed R. App. P. 28(j). . . . Further briefing will be permitted only at the court's direction."

These letters have been sent out in cases in all different procedural postures, and thus it appears the Circuit will be using these letters as the primary means of screening cases for remand under Booker. It is not clear whether we can still expect a broad policy opinion addressing Booker and remands in the near future, but it now looks doubtful.

As to the distinction between stating the "legal basis" but not presenting "argument," it appears that the Court wants counsel simply to apply Booker to the facts of the case, and not to go into an explanation or discussion of what Booker held. In essence, the letter should state that Booker applies in this particular case because x, y, and z occurred at sentencing. The Court has read Booker and does not need argument about the reasoning in Booker.

3rd Cir's first pub'd decision on Booker

In US v. Kevin Davis (available here) the 3rd Cir has finally issued a published opinion addressing, albeit very briefly, the issue of remands under Booker. The discussion, consisting of two sentences at the very end of the opinion, is as follows:

Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.

Although the Circuit does not discuss plain error, it would appear that the issue was probably not raised at the sentencing, and that the Court is signaling that it will be taking a broad approach to remands under Booker. Evidently the Court's discussion here is so short because the Court is about to issue a broad policy opinion addressing Booker issues in full, hopefully this week.

The bulk of the opinion addresses an evidentiary issue: whether the district court erred in permitting an officer to testify as an expert in response to a hypothetical question that, in his opinion, the circumstances specified in the question "would be with possession with intent to deliver the narcotics." The circumstances specified in the question, which mirrored the facts at trial, were: 5 people in a car, 4 of them possessing guns, 1 with a gun plus 12 packets, another with a gun plus 19 packets, and a third with a gun plus 44 packets. The Circuit affirmed, holding that the officer's testimony was proper expert testimony, and since it was in response to a hypothetical question, it did not improperly state an opinion about the defendants' state of mind.

Unpub'd 3rd Cir decision remanding under Booker

As Professor Berman notes on his up-to-the-minute sentencing blog, http://sentencing.typepad.com/, the Third Circuit has finally issued an opinion, albeit an unpublished and non-precedential one, that addresses the issue of remand under Booker. The defense raised a Blakely objection to the sentence imposed through a motion for summary remand shortly after Blakely was decided, which the Court held C.A.V. pending a decision in Booker. The Court simply states,

The Supreme Court also held that the Booker decision applies to all cases on direct review, and remanded the cases involved in Booker for resentencing. Id. at 769. Accordingly, Booker applies to the case before us. Having determined that the sentencing issues Mortimer raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in light of Booker.

US v. Mortimer, (decision a) http://www.ca3.uscourts.gov/opinarch/034174np.pdf

Since this appears to have been on review for plain error, it seems likely that the Circuit has concluded it will be remanding for resentencing most if not all cases where a Blakely/Booker issue has been raised, and that it is putting the finishing touches on a soon-to-be-issued precedential opinion. I am hearing that "soon" now means next week, or the following week.

3rd Cir Ruling on Booker expected soon

We have been hearing persistent rumors that the 3rd Circuit will be issuing a broad ruling "soon" on Booker addressing which cases pending on appeal will be remanded for resentencing. Based on the Circuit's prior cases finding plain error and remanding where the incorrect guideline range was applied, e.g., Knight, 266 F.3d 203, 207 (3rd Cir. 2001), it would seem likely that the Circuit will take the broad approach that most circuits are taking and issue remands for resentencing in any case where the judge may have been inclinded to sentence lower under an advisory guideline system.
-- David McColgin, AFD Philadelphia

Exceptional Good Works of a Personal Nature Equal Downward Departure

In United States v. Cooper, 2005 WL 17968 (3d Cir. 1/5/05), the Third Circuit held that "good works," i.e., charitable contributions, though a discouraged factor under the federal sentencing guidelines, can be a valid justification for a downward departure at sentencing. Consequently, the Court affirmed a district court’s decision to downwardly depart four offense levels in a securities fraud and tax evasion case based upon defendant’s exceptional good works where defendant not only donated money to charity, but also made contributions of a personal nature, such as mentoring an underprivileged young man and aiding other young men in gaining an education. The majority opinion also addressed and applied the de novo standard of review under the PROTECT Act.

In a dissenting opinion, Judge Sloviter criticized the majority's application of the new standard of review. Judge Sloviter believed that a fair de novo review required reversal because the PROTECT Act was sought, in part, to discontinue the trend of leniency toward white collar criminals.