Live From Miami: It's The Annual Federal Sentencing Guidelines Seminar

I am here in Miami Beach trying something entirely different for me. I am trying to live blog the conference. It is a huge conference with judges, prosecutors, probation officers, defense attorneys and even a couple of defendants in attendance. I am going to apologize in advance. There are going be misspellings galore and really bad grammer and I will fix it all tonight. I just want you to get this stuff ASAP.

Click on the title above and you will be brought to Doug Berman's phenomonal Sentencing Law & Policy Blog. Doug is on the next plenary panel. There are breakout sessions in the afternoon. You will have to go to the sessions I attend. I have never met Doug Berman before. He has indicated that he will be easy to find. He says he is a young Paul Newman look-a-like tall and handsome. I am looking forward to our introduction.

I also do not go to every part of the program. Some of it is just not fun, and sometimes I have stuff from the office to attend to. Besides its Miami Beach for God's sake!! With that said here goes.

My first panel dealt with the History of the US Sentencing Commissiion. All of the chairs in attendance spoke about their trials and tribulations. The best part of this was Judge Diane Murphy's observations about trying to fight off Congress. They thought they could do the job of the guidelines and the Commission better than the USSC. Then they gave us the Protect Act...

More on these guys later Now the panel on a Review of Post Booker Data and Case Law:

Moderator introduces panel and asks : Given the data, I ask what is your view of what the data is saying about sentencing?
{NOTE: I will be paraphrasing most of these so please don't take them as quotes:}


Doug Berman: I now have more respect for the work the USSC does on data collection. They do a terrific job. My view is that the data confirms what the case law says we have a culture of guidelines compliance and it is a cultural story more so than a legal story.
We could have had a moment after Booker where the guidelines could have faded from the preeminence they had for last 20 years. Most of the bench and bar has not practiced without them and that culture has meant that we havent seen that fading away. The patterns are the same.
Sentence length has actually crept up a bit.
We see extrodinary stability throughout the system.

Statistic that is most suprising? The huge variation on govt't initiated departures and this is the place of the greatest disparity. Booker will likely lessen disparity because judges in a place where prosecutors do not ask too often for much of a departure, will lossen up and in the opposite case the judges will not feel the need to depart as often.

I am most disappointed that we do not hear from USSG or the US Congress on the other actors in the system and what they are doing. It is focused on the courts

US Atty John Richter W.D OKlahoma : He thanks the commission. From the DOJ Position and in speaking to Prob officers: The impact is not suprising. The guidelines are being followed but less than before which was predicted in an advisory system, they are less complied with.
The degrees of disparity is cropping up, there is a (Guideline)culture but that will erode and definitely not last.
we Don't only see disparity in classes of deft. but across circuits. Ending disparity was high in the minds of congress and now the sentencing which was less disparite is creeping apart.

The Data doesn't tell the whole story of the cases. It doesn't have the plea bargin info and how it (Booker) has changed the outcomes and the certainty of sentencing thereby slowing and questioning the process. It does show what can happen...
For example
EDNY (Basically Long Island) has the lowest overall compliance rate of 37% whereas in OK is 70%. Disparity is an underlying given. And our ability to keep it in check is limited. i.e. we (DOJ) can't appeal every case so we can't keep it from getting out of compliance. That is a problem b/c it will lead to a break with the Congressional goal of getting tough, consistant, fair, sentences. Those Goals remain the major concerens of DOJ.

Ms. Rich (acting dir of leg affairs: for the commission) The data shows from USSC prespective we are taking the information to Congress. After Booker We saw an importance to get the information in more "real Time" the data goes out every 4-6 weeks. Congress is very interested in this. The Commisioners are working to make sure the data gets out there and is used well. The data has something for everyone. The Patriot act (recently reinacted) now demands all one statement of issues form be used nationally. It will make a uniform way to obtain the data. The nearly real time data collection has slowed down the debate. Rather than just running into "fix Bookers Fix" we were able to convince Congress to and let us look at what is happening rather than give in to a knee jerk reaction

"Looking at the case law issues":

Michael Drebman from Solicitor Gen. Office.:
One year down, the App Cts are building jurisprudence under Booker but they are disagreeing and it is creating confusion for Cts and POs. He notes that the apparent disparity in Ct of App law. He also states that disparity hasn't trickled down to the District courts. He too fears that will change.
For example:
Does a guidlines sententence attract a presumption of reasonableness? 6 Circuits say yes and 4 say no (but all have found the inrange sentences resonable anyway so maybe it's semantic. The four say the appellants have the heavy burden no matter what the appeal seeks.)Only the 8th has overturned a very strange fact pattern where two women in exactly the same case and in exactly the same position got widely varied sentences (I think from the same judge).

In the 8th and 2nd Circuits He notes they hold that the further the sentence under 3553a deviates from the guidelines the the more explaination the court give for the varience. He feels this will lead to keeping things in control.

ALso circuits are starting to decide what is and is not a proper 3553a factor., Courts are not making illegal departures for crack v. powder cocaine even though many are unhappy with the disparity. They will not let there be a different ratio from guidelines to 3553a at least in 4th and 1st. In other words finding the guidelines draconian would not let a court in those circuits vary out of the guidelines. That argument would not be a valid 3553a factor.

I wonder what will happen in 2 and DC'


Substantial assistance wo govt motion is going against the DOJ. The Courts are deciding there was substantial assistance as a 3553a factor as opposed to giving all the power to DOJ under the guidelines. DoJ says no substantial assistance, you can make your case to the district Court in the 2nd & 8th Circuits. Deputy Solicitor General Drebben does't like the argument that Federal sentences are harsher than the a simarly situated defendant might get in state court. You may not make that pitch in the 4th or 8th Circuit which has rejected the point undere 3553a. The point of the guideline system is to not have a disparity across the system. The USSG should yield no co-deft. disparity. Amendment 468 however says codeft. disparity is not what ussg addresses it is national disparity.

Finally don't make the arguement that your client would get out faster if he lived in a district with a fast track program thereby creating a disparity. The 7th cir. says the Disparity is not to compare to special programs like fast track. The goal of that program has a public policy that overrides disparity. Deft. disparity caused by special programs was not the type of disparity the USSG was supposed to address

Judge LEVI ED CAlifornia. What weight should courts assign to USSG when doing a 3553a analysis? Data shows we are all giving great wt. to guidelines.
Judges look to parties to tell us why USSG is not the appropriate place to start and end. Courts must ask the parties to tell him why not start and end there. Levi likes the system the way it is now but he notes some troubling cases.
In 9th cir US v Zavala 443 f3 1164 the court acknowledged that when one says the guidelines are a starting point it gives the impression that the court has an open mind. But a presumption of reasonablness means that the court has assigned a value to the USSG and is of a closed mind unless it is pried open. The 9th wants district court judges to exercise an open mind when sentencing.

Hence Judge Levi thinks that there is a misguided view that courts do not have to even consider USSG don't have 3553a issues considered. He worries leaves the Dist. Ct. judge out there on his own. He cannot assume the USSG sentence is a proper one. It is simply a starting point. As a Dist Ct. Judge, I am not entitled to give the same wt that the ct of Appeals can give it (reasonableness) . SO he says ct cannot rely on parties to come forward w/;infor on variances and the USSG is not more important than any other factor under 3553a, that leaves a lot of people working on their own as in pre guideline time.

In another 9th cir, decision the court held the Dist. Ct. must address the 3553a factors even if noone argues for a variance at sentence.
In US v. Terrel 445 F3d 1261 the Court said there can be a high degree of trust to the guideline and the party seeking to go out of the USSG must hurrdle a rebuttable presumption of the reasonableness of the USSG. THis seems to run counter to Zavala.

The Judge went on to state that Academics are saying that to give heavy weight to USSG is against Booker. Even in the Model penal code Revision they say that if a state has a mandatory usage then it must require jury finding on the guideline or a wide open guideline. The problem is most individual factors are not unique. Most Dist. Ct. judges did not want to deviate on crack guideline b/c then you have a guideline for each courtroom. That gives no sense security when entering a plea bargin.

Other individual factors are not unique enough to render a 3553a variance are elderly parents, and kids with learning disabilities. If the judge says he is going to vary in those cases, how does he keep track for when to vary the next time. Health issues work issues etc are all important but how unique are they to make variances disparent?

Variance concept should be a saftey valve but not the norm. THat will take us back to pre guidlines. WE don't want to go there. Levi claims that the factors in 3553a are already considered in the USSG (That is really not the case. They may have tried but there are too many things not available that are coming in under 3553a.)

Jim FELDMAN a private atty and a host of the entire seminar is asked "What is to come?: Jim points out that 95% cases are still in USSG compliance. It doesn't matter to Congressman facing election. Congressman Sennsenbrenner is playing to the DOJ He is introducing a bill to "restore sentencing fairness" ??? In fact it is called "Sentencing Fairness and Equity Restoration Act of 2006."

All it really is, is just a topless guidelines. They are trying to get around Blakley and Booker on the top end of the range. If there is no top you can't raise em' in such a way as to implicate the 6th amendment.
Sensennbrenner is hanging his hat on a SCOTUS Decison that went 4-4-1. Not a very stable precident especially since 2 of the four votes are gone.

US v. Harris asked "Can you lower the floor (mand. Min.) based on judicial finding. 4 said sure judges can find facts. The other 4 (the majority in Booker. said no in Harris.) The other judge, Breyer, was not ready to accept Apprendi rule. He said that he can not see the difference tween raising the top and raising the floor (ie going low.)But since he didn't accept Apprendi he voted with the majority. Now he may marginally recognize the Apprendi rule. IF the USC passes the statute that Sennsenbrenner wants constitutionality will be in real question.

From floor, the speaker stated: I am disturbed to hear that that speakers are saying that the USSG takes in all the 3553a factors. The guidelines don't incorp all the factors of an accused's history and character of the deft. The only one looked at in guidelines is criminal history. It is inaccurrate to say otherwise. THe USSG i are not presumptively reasonable. It is not true.

Levi responds: While the guidelines do take into consideration some 3553a material the guidelines do take some of 3553a off the table and there is a significant danger that as we look at that there will be disparity because some judges will make findings under 3553a and others will not.
If we consider cross cases it may lead to disparity On the other hand it is unfair to judge the guidelines by this only. Mental health can come in.
Aberent conduct, is considerable, mental health is not encouraged under 5h but there is availability for it.
There is a big diference in Cir, to allow departure. IF things are not unique to each deft. then we are asking for trouble if we use his circumstance to avoid the jailhouse, We will have disparity . Lawyers will be saying this is what you did last week now why not this week.

Next question :this is not about disparity isn't it about the power and who has it?
Berman says that in a perfect system it makes sense that the parties can easier settle a matter if their is certainty.
If we are going to have topless guidelines we need to also spend more money on prob officers and defense atty's. The real question is the founders had a vision of how power should be distibutive and the question is "Are we following that vision."

USA Richter says that what is really fundemental is what the view is of the sentencing reform act. From a policy standpoint anti ussg forces find they are in the minority in the debate. The guidlines embody just what congress intended.
Sentencing isn't about power between the branches it is about public policy. we are at a 30 year low in crime. At base its about a fair and just outcome but it is also about assuring the system of others not in the system of their safety.

Next question How much weight to give to guidelines? 3553a doesn't suggest guidelines and their comments are not entitled to more wt than other 5 factors.
This got a little hot but Levi answers that the sentencing commision was supposed to take in all the factors in 3553a as for systemic issues like protecting society it is a need to have a national policy it is not and cannot be left with an individual judge.
it is important to see where judges are variring and provide guidance by stating where and how they are varing and why. So that they have a way to determine if thier policies make a difference.

That ends the session. I am going down to lunch to mingle. Just one obstervation...:

It IS UNCANNY HOW MUCH PROF. BERMAN LOOKS LIKE A YOUNG PAUL NEWMAN!!! Or is that Alfred E. Neuman? I get them confused
LUNCH!!

I am going off to introduce myself to Doug Berman I will work to clean this up shortly.
Hope it helps you
Tony


Afternoon.