Tuesday, August 16th, 2005

A Preserved Booker Error Will Almost Never Be Found Harmless on Appeal

United States v. Francisco Lake, Docket No. 04-3238-cr (2d Cir. August 15, 2005) (Op. by Newman): Judge Newman’s monopoly in shaping Circuit law concerning appellate review of pre-Booker sentences in the wake of Booker continues. In this opinion, the Court confirms what Fagans implicitly held and what the Circuit’s practice has been since that decision: Where a defendant, pre-Booker, objected to the use of mandatory Guidelines at sentencing, the result on appeal will almost inevitably be a remand for resentencing. Lake spells out what Fagans left unsaid: Remand for resentencing is required because the Government will almost never be able to meet its burden of showing that the Booker error was harmless.

Lake was sentenced to 540 months’ imprisonment, a sentence neither at the bottom nor top of the applicable ranges. Since his sentencing occurred after Blakely but before Booker, he raised a Sixth Amendment objection to any enhancements based on facts not found by a jury. On appeal, he sought a resentencing pursuant to Fagans (rather than a remand for determination of whether to resentence, pursuant to Crosby) since he had preserved the Booker error.

The Court agreed with Lake and remanded for resentencing. In so doing, Judge Newman conceded that this need not occur if the “Government can sustain its burden of proving that the sentencing error was harmless.” Op. at 5. He then explained, however, that this will almost never be possible:

“Once the Supreme Court fundamentally altered federal sentencing procedures by ruling in Booker that the Guidelines were no longer required to be applied, it became difficult for the Government to sustain its burden of proving that a Booker error was harmless. Although some sentences imposed under the pre-Booker regime would not have been different had the sentences been imposed under the post-Booker regime, it will usually not be easy to divine with certainty that the sentencing judge would have imposed the same sentence. We have recognized that a ‘rare’ case may arise where we can confidently say that a sentencing error was harmless, as occurs in circumstances where a statutory mandatory minimum prevents the sentencing judge from giving a lesser sentence after Booker than the one imposed pre-Booker.”

Op. at 6-7. Apart from the example of a sentence that constitutes a statutorily required minimum, however, Lake leaves little room for a finding of harmlessness. Indeed, the district judge in Lake’s case specifically explained that the 540-month sentence “is necessary for every reason that sentencing is necessary; for punishment, to incapacitate you . . .” Op. at 7. Even this statement was not sufficient to render the Booker error harmless, since (1) “the fact that a judge selects a sentence within a guideline range that the judge thought he was required to apply does not necessarily mean that the same sentence would have been imposed had the judge understood the Guidelines as a whole to be advisory”; (2) “although even before Booker, a sentencing judge was obliged to consider all the factors set forth in 18 U.S.C. § 3553(a), . . . consideration of the other section 3553(a) factors (apart from (a)(4), requiring imposition of sentence within Guidelines range) acquires renewed significance and might result in a different sentence”; and (3) “absent the strictures of the Guidelines, counsel would have had the opportunity to urge consideration of circumstances that were prohibited as grounds for departure.” Op. at 7-8. Given that the same rationale can be invoked in every case involving a preserved Booker error, perhaps apart from those involving a statutorily required minimum sentence, the Fagans remedy should be be universally required.

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