United States v. Fagans, Docket No. 04-4845-cr (2d Cir. April 27, 2005) (Newman, Cabranes, Pooler) (Op. by Newman): This is the most recent of a long line of opinions authored by Judge Newman that discuss the application of Booker to cases pending on review. It answers an open question about whether a Crosby remand (i.e., a proceeding in which the district court decides whether to resentence) or whether a full resentencing is the appropriate remedy when the defendant raised a Blakely-based objection at sentencing. And the lesson is simple: If your client raised a Blakely objection to the Guidelines at sentencing (regardless of whether the objection was made in the form of a “Blakely-ized Guidelines” objections or in the form of a “Guidelines as a whole are unconstitutional” objection) , then you get a full resentencing and not merely a Crosby remand. Fagans also discusses a couple of other issues, including one related to criminal history.
(1) Primarily, Fagans holds that where the defendant at sentencing contended that certain Guidelines enhancements — including those based on facts concerning his criminal history — could not be applied in light of Blakely, a subsequent Booker claim is considered preserved on appeal. Because the standard of review is, therefore, not “plain error,” Crosby‘s remedy — the remand proceeding wherein the district court decides whether s/he would have imposed a materially different sentence had s/he been aware of the Booker regime of advisory Guidelines — is inapplicable. Rather, a good ol’ remand for resentencing — with the defendant present and perhaps an updated PSR — is required.
Two steps must be taken before reaching this conclusion, however, but Fagans somewhat mysteriously only specifically addresses one (and that merely in a footnote). The first is whether a Blakely argument, made at or before sentencing, that certain enhancements could not be applied because the facts underlying them were not proved beyond a reasonable doubt (or admitted by the defendant), but that the Guidelines are otherwise applicable, is sufficient to preserve a Booker claim, raised on appeal, that the district court erred in treating the Guidelines as mandatory rather than advisory. Here, it appears that the defendant never argued below for what we all know now as the Booker remedy. Nonetheless, the Court concluded that the error was preserved: “Although the Defendant’s objection, based on Blakely, to the compulsory use of the Guidelines could be viewed as limited to preserving a Sixth Amendment objection, we think he sufficinetly alerted the District Court to his claim that it was unlawful to use the Guidelines in a compulsory manner.” Op. at 4-5 n.1.
The other step that must be taken before reaching the conclusion of remand-for-resentencing is the harmless error standard. The mere fact that the defendant has preserved an error for appellate review doesn’t automatically warrant vacatur of the judgment and remand for resentencing. Rather, such a result is required only if the Government cannot satisfy its burden of proving to the “reviewing court [that] , on the record as a whole, . . . that the error did not affect the district court’s selection of the sentence imposed.” Williams v. United States, 503 U.S. 193, 203 (1992).
Fagans contains no discussion of harmless error, however. Rather, it simply concludes that because the error is preserved, remand for resentencing is required.
My 2 cents: Most likely, Fagans did not undertake a harmless error analysis because the Second Circuit had already concluded in earlier cases that it is impossible to determine whether a court that sentenced the defendant under the pre-Booker scheme would have imposed the same sentence had it been aware of Booker, e.g., Crosby, 397 F.3d at 117-118, and, therefore, that the Government could not possibly satisfy its burden under the harmless error standard. As Crosby explained, for instance:
“Without knowing whether a sentencing judge would have imposed a materially different sentence, under the circumstances existing at the time of the original sentence, under the circumstances existing at the time of the original sentence, if the judge had discharged his or her obligations under the post-Booker/Fanfan regime and counsel had availed themselves of their new opportunities to present relevant considerations, an appellate court will normally be unable to assess the significance of any error that might have been made. Perhaps in some cases an appellate court could make an educated guess as to the likely outcome of a remand, but that guess might be wrong, absent a clear indication at the original sentencing supporting the inference that the same sentence would have been imposed under the post-Booker/Fanfan regime.”
Crosby, 397 F.3d at 117-118. Accord United States v. Williams, 399 F.3d 450, (2d Cir. 2005) (“[A]s a reviewing court[,] we do not know what the sentence would have been absent the error.”).
(2) Fagans also discusses an issue touched upon by recent cases such as Rubenstein and Capanelli (see Blog entries below): Whether the Court should resolve Guidelines disputes even though it is remanding for resentencing anyway, or whether it should allow the district court to resolve these disputes in the first instance. Of course, either solution is plausible because while “[i]n many circumstances, an incorrect calculation of the applicable Guidelines range will taint not only a Guidelines sentence, … but also a non-Guidelines sentence, which may have been explicitly selected with what was thought to be the applicable Guidelines range as a frame of reference,” Fagans, Op. at 5, whether a sentence will ultimately be upheld as reasonable is not necessarily dependent on whether it was imposed pursuant to a correctly or incorrectly calculated Guidelines range, see Rubenstein.
In Rubenstein, the Court seemed inclined to resolve this question by evaluating the significance of the Guidelines dispute to the ultimate sentence. Thus, for instance, it decided to resolve a dispute concerning a 4-level enhancement in Rubenstein (and a 5-level enhancement in Capanelli) because “the influence of [the erroneous imposition of the 4-level enhancement] is likely to be so pronounced that it could cause resentencing after remand to be unreasonable.” Op. 19. The implication is that more minor Guidelines disputes (for instance, one that involves whether the defendant falls in one or the other of two adjacent ranges) would not be resolved on appeal. In contrast, Fagans resolves this issue by examining how much work the appellate court might have to do, rather than the potential influence of the Guidelines dispute on the ultimate sentence. As the opinion explains,
“If the issue concerning the correctness of a Guidelines calculation is difficult, an appellate court might understandably prefer not to resolve the issue upon an initial appeal of a pre-Booker sentence and instead to remand … for resentencing [or for a Crosby remand, depending on whether the error is preserved]. On the other hand, if the Guideline calculation issue is not difficult, it might often be preferable to adjudicate the calculation issue prompty so that subsequent sentencing proceedings will occur in light of a correct calculation.”
Op. at 5-6. And because the Gudelines issues in Fagans’s appeal were easily answered, the Court resolved them before remanding for resentencing.
(3) Finally, Fagans discusses an issue that has already drawn attention from Professor Berman’s remarkably thorough and always up-to-date (really, how DOES he do it?) blog: the scope of the prior conviction exception to the Apprendi / Blakely rule, as announced in Almendarez-Torres. Professor Berman focuses on a passage in Fagans, in which the Court approved of the PSR’s inclusion of 2 criminal history points based on the fact that the defendant was on probation when he committed the underlying offense: “While the exact scope of the phrase ‘fact of a prior’ conviction has yet to be determined, see Shepard v. United States, the conviction itself, and the type and length of a sentence imposed seems logically to fall within this exception.” Op. at 7.
Yes, this language is quite broad, perhaps too broad in including not just “the conviction itself,” but also “the type and length of a sentence” under the Almendarez-Torres umbrella (leaky though it is). But it is not really much to be excited about, given that the discussion simply concerns the calculation of the now-advisory Guidelines range and thus do not implicate any Sixth Amendment issues. Moreover, it is nothing new — the Second Circuit has long included such peripheral facts concerning criminal history within the Almendarez-Torres exception. E.g., United States v. Santiago, 268 F.3d 151 (2d Cir. 2001). It will take a clear ruling from the Supreme Court before the Circuit changes its mind in this area.
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