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Sunday, January 30, 2005

Ind. Law - Indiana impact of U.S. Supreme Court's recent sentencing decision

The U.S. Supreme Court on Jan. 12th issued its decision in the U.S. v. Booker and U.S. v. Fanfan cases. The central issue was how the Court's decision last year in Blakely v. Washington impacted the federal sentencing guidelines.

Recall that the question of how Blakely impacts the State of Indiana's sentencing is currently pending before our Supreme Court.

But judges in federal courts in Indiana and elsewhere have been subject to the mandatory federal sentencing guidelines which, because of their parallels to the sentencing system used in the State of Washington, were brought into question by the Blakely decision. The 7th Circuit in fact ruled on 7/9/04 that as a result of Blakely, the federal sentencing guidelines were unconstitutional. The case was United States v. Booker (WD Wis.) ILB entries from 7/9/04, 7/10/04, and 7/12/04 provide links to the decision and related materials. Last summer the Supreme Court agreed to review Booker and a related case, and finality in federal sentencing has been pretty much on hold awaiting the Court's rulings.

The U.S. Supreme Court's decision this month in United States v. Booker and United States v. Fanfan (January 12, 2005) is intended to resolve the questions surrounding federal sentencing. However, the Court's ruling did not totally throw out the federal guidelines, it said they were "advisory."

So what does all this mean? Here is an AP story by Hope Yen that was published last week -- I have been holding it in my file for use in the event that I did an entry on the Booker ruling. Here are some quotes:

WASHINGTON (AP) -- Thousands of criminals are filing for reduced sentences. Backlogged courts are asking lawyers to slow down their appeals. Judges say they're confused about what to do.

Two weeks after the Supreme Court threw out mandatory sentencing guidelines, federal courts are just beginning to grapple with the consequences. And judges say it may take months, if not years, to sort through thousands of appeals and piece together a new sentencing system.

"It's a much more stressful exercise now," said U.S. District Judge Harold Baer of New York, who sentences dozens of white-collar criminals and drug offenders each month. "We're all desperately trying to follow the Supreme Court decision. But what does that mean?" * * *

In the Jan. 12 ruling, the Supreme Court said making the guidelines mandatory violated a defendant's Sixth Amendment right to a jury trial because they call for judges to make factual decisions that affect prison time, such as the amount of drugs involved in a crime.

Under the ruling, the guidelines now are only advisory; as a result, federal judges are free to sentence convicted criminals as they see fit, but they may be subject to reversal if appeals courts find them "unreasonable." * * *

Carmen Hernandez, a vice president of the National Association of Criminal Defense Lawyers: "Defendants sitting in prison are calling us wanting to know how the ruling affects their case. We're having to tell them to wait."

Many judges are sticking close to the guidelines, but some judges who had long chafed under the mandatory system are showing some leniency for first-time offenders. Last week in Maine, for instance, U.S. District Judge D. Brock Hornby declined to sentence first-time offender Steven Jones to 12 to 18 months under the guidelines for illegal gun possession. Instead, he ordered a house arrest and treatment because of Jones' history of depression. "The sentence I contemplate here will in all likelihood better protect the public over the long term than the guideline sentence," Hornby wrote in an opinion Jones' attorney cheered as a "new day."

But in Utah, U.S. District Judge Paul Cassell chose to sentence a bank robber to 188 months, the same amount of time prescribed by the guidelines. In his opinion, Cassell said the guidelines should be followed in "all but the most unusual cases." If judges' "discretion is exercised responsibly, Congress may be inclined to give judges greater flexibility under a new sentencing system," Cassell wrote.

I have seen nothing in Indiana papers about the Supreme Court's Booker decision, and little about the Blakely ruling. But today John Grant Emeigh has a story in the Gary Post-Tribune about the impact of Booker on the Northern District of Indiana. Some quotes:
More appeals are expected, according to U.S. Attorney Joseph Van Bokkelen. Since the Supreme Court’s Jan. 12 ruling, two inmates convicted in the Northern District of Indiana have requested that their sentences be reduced. “I’m sure there’s going to be a lot more filed,” Van Bokkelen said. “But we’re not particularly concerned about it.”

Van Bokkelen said he doesn’t believe any of the previous sentences handed down in the Northern District will be reduced. “It’s every inmate’s right to file an appeal, and we will review every one of them,” he said.

On Jan. 12, the U.S. Supreme Court found that sentencing guidelines used in federal courts violate the Sixth Amendment to the extent that they allow judicial — rather than jury — fact finding to form the basis for sentencing.

Terrance Jackson and Clinton Parker, who were both convicted in the Northern District, are appealing their sentences. In their complaints, both men cited United States vs. Booker, which was the case the Supreme Court used to rule the sentencing guidelines were unconstitutional. * * *

The Booker case is what [sic.] the Supreme Court determined that the mandatory federal sentencing system — under which every person convicted in federal court since 1987 had been sentenced — was unconstitutional.

Van Bokkelen explained the Supreme Court ruled that a judge may only base his sentence on evidence that was presented to a jury or admitted to in connection with a guilty plea. A judge may not add new evidence that was not presented at trial or in a plea that would increase the convict’s offense level.

However, under a second majority holding of the Booker ruling, the Supreme Court didn’t find the guidelines null and void, Van Bokkelen explained. The guidelines will now become merely “advisory” for judges determining sentences. Van Bokkelen said this second holding by the high court has caused some confusion in the judicial system. “When you look at the second holding, it kind of cancels out the first part of the ruling,” he said.

The federal district courts are of course the trial courts in the federal system. The circuit courts are the intermediary appellate courts; the appeals court for Indiana's federal court is the 7th Circuit Court of Appeals in Chicago, which also covers Illinois and Wisconsin. According to Hope Yen's article, the burden of deciding whether a federal judge's sentence is reasonable falls to the appeals courts:
The burden of defining that legal standard will fall on the nation's 13 federal appeals courts, which received 400 new cases Monday after the Supreme Court ordered them to reconsider defendants' sentences for crimes ranging from securities fraud to theft and drug possession.

Those 400 cases are petitions from defendants who wanted their sentences reviewed after justices struck down a similar sentencing guidelines plan in Washington state last June, putting the federal guidelines in doubt. Hundreds of other appeals are pending at the appeals court level.

The appeals courts already are feeling the heat. At least two, the 9th Circuit in San Francisco and the 2nd Circuit in New York, are asking defense attorneys to hold off on filing some sentencing appeals for now, with exceptions for emergency cases.

Court officials cited an already congested docket in asking defendants to wait until the appeals court judges can offer some guidance on the definition of "reasonable" sentences in a few test cases in coming weeks.

Edward Becker, a senior judge for the Philadelphia-based 3rd U.S. Circuit Court of Appeals, said his court still is determining whether to delay some appeals. The main challenge, he said, will be determining whether the ruling should apply retroactively to tens of thousands of prisoners nationwide whose appeals already have run their course.

"There's been huge correspondence among the federal judges," Becker said. "But we have to wait and see how the district judges sentence in the wake of the opinion. It's going to have to spin out for another six months."

In the 400-plus cases sent back to the Courts of Appeals by the U.S. Supreme Court last Monday are several dozen for the 7th Circuit. Here is a copy of the 87-page order. (I gave some thought to going through the list and pulling out the Indiana cases, but gave up when I saw: (a) that the trial court was not identified on the list, which meant I would have to pull up all the 7th Circuit decisions, and then (b) I found I couldn't locate the first case on the list, a 7th Circuit case called Hawkins, Arthur M. v. U.S. Perhaps it is an unpublished decision.)

The Washington Post wrote about the list on Tuesday, Jan. 25:

Yesterday's 87-page list of orders in the federal sentencing cases was expected. The justices had been flooded with petitions from defendants who wanted their sentences reviewed after the court struck down a state sentencing guidelines plan in June, putting the federal sentencing guidelines in jeopardy.

The court was holding those cases pending the result in the two cases decided Jan. 12, United States v. Booker and United States v. Fanfan.

Still, the sheer volume of cases demonstrated the wide and still largely unresolved ramifications of the Booker-Fanfan decision. * * *

In its Booker-Fanfan decision, the court said that the Constitution forbids the practice, common under the guidelines, of using facts found by a judge to tack extra years onto criminal sentences. Every defendant is entitled to a jury trial on the facts that could affect his punishment, the court ruled.

At the same time, the court ruled that the guidelines, created by a congressionally authorized judicial commission to ensure that similar criminals receive similar prison terms, may remain in use as long as they are "advisory," not mandatory.

That means district judges are free to impose the sentences they deem appropriate, as long as they consult the guidelines and as long as the sentences are found "reasonable" by the appeals courts.

Finally, here are useful stories from papers in two of our sister states, this one from the Pantagraph in Bloomington, Illinois and this one from Ohio's Cincinnati Post.

Posted by Marcia Oddi on January 30, 2005 07:22 AM
Posted to Indiana Law