A look at Booker retroactivity
on Nov 10, 2005 at 11:17 am
After bypassing hundreds of cases seeking to take advantage of the Supreme Court’s decision limiting federal criminal sentencing rules, the Court is now showing an interest in one key issue: whether to make that decision retroactive. A decision to make Booker v. U.S. retroactive probably would threaten to undo or at least re-open thousands of federal criminal sentences.
A case directly raising the retroactivity issue, Clark. v. U.S. (docket 05-5491), is scheduled to be considered by the Court at its Conference on Nov. 23, according to the Court’s public docket. The Court has asked for, and received, a response from the Solicitor General. Eleven other pending cases on the issue have been ready for Court action, but have not been acted upon, apparently awaiting the outcome of the Clark case. Those 11, too, are scheduled for the Nov. 23 Conference, according to the docket.
A single Justice, of course, may ask for a response to a petition. According to the standard manual, Supreme Court Practice, such a request “may reflect the belief of one or more Justices that the petition is prima facie meritorious, or that it is complex or difficult enough to make presentation of the views of the respondent appropriate.” That manual, of course, adds that “a request does not mean the Court will grant the petition. Often it does not.”
Still, the fact that other pending cases are being treated as if they were dependent on the outcome shows a heightened level of interest in the issue presented.
In Booker, the Court ruled that the federal Sentencing Guidelines are invalid so far as they require a judge to impose an enhanced sentence, based on the judge’s — rather than the jury’s — factual findings of enhancement factors. In that respect, the decision followed the Court’s line of cases (beginning with Apprendi v. New Jersey in 2000) restoring the power of juries to decide the facts that can lead to a stiffer criminal sentence.
But the Booker decision also said that the remedy for this constitutional violation was to make the Guidelines advisory, instead of mandatory.
Since that ruling, the Court has been asked repeatedly by prison inmates to decide whether the ruling should be made retroactive, applying to cases in which the conviction and sentencing had become final before the date of the Booker ruling — January 12, 2005. The Court has not yet agreed to answer that question; in the Booker opinion itself, the Court did say that the ruling would apply to all cases “pending on direct review or not yet final.”
The case of Clarence Clark, reaching the Court in a petition prepared by the inmate himself from his federal prison in Edgefield, S.C., raises the question somewhat inartfully: “When the principles of Apprendi is erroneously applied to a defendant’s initial sentence after remand from a direct appeal, should the error be corrected in a motion under Title 28 U.S.C. 2255?” The body of the petition itself puts the issue plainly: “Booker should be retroactively applicable to the instant matter.”
On Aug. 18, the Court sought a response from the Solicitor General after that office had waived the right. In Sol. Gen. Paul D. Clement’s response, filed Oct. 18, the question was rephrased this way: “Whether petitioner was entitled to a certificate of appealability on his claim that his sentence was imposed in violation of U.S. v. Booker, 125 S.Ct. 1738 (2005).” And, throughout that response, the discussion is confined to the question of Booker retroactivity.
Clarence Clark’s sentence, 360 months or 30 years (three 30-year sentences, to be served concurrently), was imposed on Feb. 25, 2002, based on enhancing factors not found by a jury.
Clark, according to prosecutors, was the leader of an organization that distributed large quantities of crack cocaine in Macon, Ga., in the 1990s. He was convicted by a jury on one conspiracy to distribute count, one count of possession with intent to distribute, and one count of distribution. Under the Sentencing Guidelines, he was sentenced to life in prison based upon three enhancements found by the judge: possessing a gun during a drug crime, using minors to distribute drugs, and serving as organizer or leader of a drug conspiracy.
The Eleventh Circuit overturned his sentence, based on Apprendi because the indictment had not alleged a specific quantity of drugs in the conspiracy count. The District Court, on remand, sentenced him to 360 months, based on the same enhancement factors found earlier.
At that point, Clark filed a Section 2255 motion, to challenge the sentence, claiming it violated the Supreme Court’s Apprendi sequel, Blakely v. Washington, limiting guidelines sentencing. The District Court denied the motion (before Blakely was extended to the federal guidelines by Booker), and Clark sought a right to appeal to the Eleventh Circuit. The Circuit Court barred that appeal, denying him a certificate of appelability.
In appealing to the Supreme Court, Clark argued: “A defendant, situated as petitioner, deserves to be resentenced under the principles announced in Booker, beause he was incorrectly sentenced under Apprendi….The 30-year terms of imprisonment represent erroneous sentences imposed as a result of the use of the statutory maximum sentence for the statute involved, instead of the Guidelines maximum sentence.” He contends that, without the enhancement factors, he should have been sentenced to no more than 57 months, based on the jury verdict and its factual findings.
The Solicitor General’s response argues that Clark’s challenge is barred because Booker laid down a new constitutional rule of criminal procedure, and it does not apply to a case in which a conviction had become final. The Solicitor General is relying for that point on the Court’s 1989 decision in Teague v. Lane, limiting post-conviction challenges in federal court.
The SG also contends that Clark’s case does not fall within one of the exceptions to the Teague bar, allowing post-conviction challenges if a new “watershed rule” has been laid down for criminal procedure, and it implicates the fairness and accuracy of the proceeding.
“Petitioner contends,” according to the government response, “that Booker falls within the ‘watershed’ Teague exception because the requirement of proof beyond a reasonable doubt for sentencing enhancements implicates fundamental fairness and impoves the accuracy of sentencing proceedings. This Court, however, has rejected the proposition that ‘all new rules related to due process (or even the fundamental requirements of due process)’ satisfy the second Teague exception….Because Booker affected only the ‘degree of flexibility judges…enjoy in applying the Guidelines system,’ it is not a ‘watershed’ change that fundamentally improves the accuracy of the criminal process…The petition should be denied.”
