Thursday, February 3rd, 2005

A Booker Trilogy

United States v. Crosby, No. 03-1675 (February 2, 2005)

United States v. Fleming, No. 04-1817-cr (February 2, 2005)

United States v. Green, No. 04-6564-cr (February 2, 2005)

In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the Booker remedy. Crosby in particular is a must-read, since no summary can do it justice. It makes a fine addition to Judge Newman’s long line of distinguished sentencing opinions. It considers the implications of Booker broadly, as well as with reference to the case at hand, and in doing so covers a broad swath of sentencing law.

In considering the application of Booker to future cases, one noteworthy theme of the Crosby opinion is that the Guidelines have not become merely “a body of casual advice.” A somewhat contrasting theme, however, is that to comply with the law, a court must merely “consider” the Guidelines. And beyond the duty to ascertain — in most cases — the effective guideline range and any applicable departures, the opinion does not say what consideration requires, and in fact, a hefty portion of it is devoted to noting what “consideration” does not require.

Two aspects of “consideration” that the Court does note are significant. First, the Court states that sentencing courts need not always reach a firm decision as to what the correct guideline range is if they consider the possible ranges and determine instead to impose what the Court calls a “non-guidelines” sentence. This would be appropriate, the Court indicates, where the factual issues are difficult or the Guidelines too incomprehensible. Second, the Court declines to be drawn into the brewing warfare (see Judge Cassell’s latest Wilson effort) over how much “weight” to assign the Guideline range in a court’s sentencing decision, beyond requiring that it be considered.

The appellate ramifications of Crosby are by far its most immediately significant, however. The Court discusses the new “review for reasonableness” as consisting of two parts: review for “length” and review for “legal error,” much preferring to deal with the latter. Significant space is expended dealing with potential legal errors that would render a sentence “unreasonable,” but the most significant is this: it was error for a judge, pre-Booker, to treat the Guidelines as mandatory in sentencing a defendant. While doubtless correct, there is considerable irony here, since the Circuit directed its district judges in Mincey to commit just this error.

The conclusion that it was error to treat the Guidelines as mandatory leads the Court to the question whether it was “plain error” in Crosby’s or other cases. And the answer is — the Court doesn’t know, but it knows how to find out. There would be plain error, the Court concludes, if the defendant was prejudiced by mandatory application of the Guidelines, a difficult question in many cases. The Court’s solution is to grant a remand in such cases, but not for resentencing. Rather the remand is for the district judge to consider whether to resentence. Thus, the Court creates a widely available remedy of somewhat limited scope that, nonetheless, permits district courts to remedy any prejudice to defendants (or the Government) that may have occurred by determining that a “materially different” sentence would have been imposed under Booker.

The Court deals with “reasonableness” review in both Crosby and Fleming, the latter a case reviewing a sentence for revocation of supervised release. Although the Court states that there is reasonableness review of sentences for “length,” there is little indication that the Court envisions review that has any real teeth. Indeed, it is perhaps unfortunate that the Court used Fleming as the vehicle for discussing reasonableness since it involved a sentence for a supervised release violation with a maximum of two years and the Court has never (so far as I am aware) reversed such a sentence as “unreasonable” absent actual legal error. Fleming explicitly suggests that this “hands-off” attitude will continue, but one must wonder whether, in the context of much heavier sentences, the Court will decide that length is, after all, important.

Finally, Green, the poor stepchild of the group, reaches the by now unremarkable conclusion that Booker is not retroactive on collateral review (until the Supeme Court says it is, anyway).

There are numerous other aspects of Crosby that are significant as well; go read it.

UPDATE: It has been suggested that I clarify that Green dealt with a second and successive habeas petition and that, clearly, Booker cannot be retroactive in that context until the Supreme Court declares that it is.

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