The first Booker sequel?

By Lyle Denniston
on May 20, 2005 at 5:09 pm

The Justice Department on Friday urged the Supreme Court to grant review of the first case raising an issue on how lower courts are to implement the Justices’ January 12 ruling on federal Sentencing Guidelines – U.S. v. Booker. The new case tests when a sentence that would violate Booker’s constitutional principle is to be set aside as a “plain error.” The government’s brief can be found here. The cert petition in the case can be found here.

Since the Booker ruling emerged, the Court has denied review or sent back to lower courts without a ruling hundreds of cases by inmates seeking to exploit that decision in their cases. With Acting Solicitor General Paul D. Clement now supporting review in Rodriguez v. U.S. (docket 04-1148), it seems likely that the Court will start to sort out a multitude of post-Booker issues that have emerged in a flurry of activity in lower courts.

In the petition filed February 23 in the case of Vladimir Rodiguez, attorney Meir Feder of the Jones Day law firm in New York wrote that a three-way split had already developed on how to apply the “plain error” rule in post-Booker litigation. “This conflict affects a massive number of cases,” according to the petition.

Feder described the conflict as follows: “The Third, Fourth, Sixth, and Ninth Circuits have followed a rule under which a sentence longer than the maximum Guidelines sentence justified by the facts found by the jury or admitted by the defendant almost always constitutes plain error requiring resentencing. The First and Eleventh Circuits have adopted a rule under which such sentences almost never constitute plain error. And the Second Circuit has adopted a third approach: remanding in every case to ask the district court to make the plain error determination.”

Rodriguez’s case comes up from the Eleventh Circuit. That court ruled on February 4 (in circuit docket 04-12676) that it would be plain error only if “there is a reasonable probability” that the convicted individual would have received a lesser sentence if the guidelines had been applied in an advisory instead of binding fashion by the sentencing judge. (Booker allowed continued use of the Sentencing Guidelines, but only as advisory guidelines.)

Vladimir Rodriguez was convicted in Florida of a conspiracy to distribute and of possession of methamphetamine. The indictment did not allege a specific amount of the illegal drug involved, and the jury was not asked to decide how much was involved (as Booker would require of a sentence-enhancing fact.) At sentencing, federal prosecutors contended that Rodriguez was responsible for transporting 30,000 pills. The judge made a pre-Booker finding that this was the correct amount for sentencing purposes, and imposed a sentence of 109 months – within a Guideline range of 97 to 121 months. Had Rodriguez been found to have transported no more than 3,050 pills, as the defense contended, the sentencing range would have been only 63 to 78 months.

The Eleventh Circuit acted on Rodriguez’s appeal after the Booker ruling came down, concluding that Rodriguez’s sentence did not satisfy Booker because the judge made the factual finding supporting the sentencing range. Finding that it was impossible to tell whether Rodriguez would have received a lesser sentence if the Guidelines had been only advisory, the Circuit Court found a lack of plain error in the sentencing range and the final sentence imposed.

The government response on Friday argued that the Eleventh Circuit was correct in its approach, but said “the multi-circuit conflict on the issue is deep and real, and it implicates issues concerning the proper conduct of plain-error review that could recur in other contexts. Accordingly, this Court’s review is warranted.” The SG’s brief pointed out that the split has deepened, and now 11 of the 12 Circuit Courts with criminal jurisdiction have now ruled on the issue, and the 9th CA, the one remaining to act, is considering the issue en banc.

The Court may yet act upon the petition before the current Term ends late next month. If the Court grants review, the case would be heard and decided in the next Term starting in October.

(Thanks to Ohio State’s Doug Berman of Sentencing Law and Policy blog for word of and a link to the SG’s response, and thanks to Meir Feder for a link to his cert petition.)