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July 19, 2005 - Daily Business Review (US)

11th Circuit Still Cool to 'Booker'

By Carl Jones

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The 11th U.S. Circuit Court of Appeals is holding firm to its refusal to reconsider sentences handed down before the Supreme Court ruled that federal sentencing rules should be advisory.

The Supreme Court's rulings in U.S. v. Booker and U.S. v. Fanfan in January gave recently sentenced criminal defendants a fresh shot at getting their sentences reduced. Appeals courts are allowed to review sentences under what is known as the "plain error" standard, in which they review a case to determine whether a defendant's rights were violated during sentencing.

But unlike other circuits, the 11th Circuit has said that it will not consider cases where defendants filed appeals before Booker but did not raise Sixth Amendment challenges in their initial brief.

That stance, reiterated last week in U.S. v. Raphael Levy, has left defendants in Florida, Alabama and Georgia without any further recourse, other than appealing to the U.S. Supreme Court.

In Levy, a three-judge panel of the 11th Circuit, in a unanimous unsigned opinion, sent another message that the court will interpret the Supreme Court's January rulings narrowly. It was the third time the court rejected Levy's request to have his sentence reduced based on the high court's rulings. The 11th Circuit's refusal to consider Levy's request was made on the grounds that Levy had not raised constitutional challenges to his sentence in his initial appeals brief.

"[The Supreme Court] itself emphasized that even though Booker was to be applied to cases on direct review, it did not mean 'that every sentence gives rise to a Sixth Amendment violation [or] that every appeal will lead to a new sentencing hearing,'" the 11th Circuit panel wrote. "Requiring all parties to raise issues in their initial briefs is not unduly harsh or overly burdensome." Appeals court Judges R. Lanier Anderson, Frank M. Hull and William H. Pryor Jr. ruled in this most recent decision in Levy's case, which they issued July 12.

In an interview, Jacksonville, Fla., appellate lawyer John Mills said the 11th Circuit's policy of refusing to reconsider such cases is unfair. Mills has filed a challenge to this practice to the Supreme Court. "Where your client was convicted is going to have a huge impact on whether he stays in jail or not," said Mills, a partner at Mills & Carlin who is not involved in the Levy case. "The 11th Circuit is, in my view, clearly wrong."

Mills said the 11th Circuit's position that pre-Booker appeals should have initially included a Sixth Amendment challenge is unfair because the 11th Circuit was notably unreceptive to such challenges prior to Booker and Fanfan. So he and other appellate lawyers didn't bother including such arguments in their initial briefs.

In Booker and Fanfan, the Supreme Court, in 5-4 votes, struck down as unconstitutional the mandatory sentencing scheme established in 1984. The majority found that mandatory guidelines forced judges to take into account facts that had not been admitted by a defendant or found to be true by a jury.

Thus, it said, sentencing under the mandatory guidelines is a violation of a defendant's Sixth Amendment right to be tried by a jury. The majority ordered that judges use the guidelines as advisory only.

The mandatory sentencing guidelines had long been controversial, with many judges, both conservatives and liberals, complaining that the guidelines sometimes resulted in unfairly harsh sentences. The main beef was that pre-sentencing reports suggest enhancements based on disputed facts that could make a difference in the length of a sentence, such as how much money was stolen in a robbery.

But that was eliminated by the Supreme Court's January rulings, which returned to judges much of the discretion they lost nearly two decades ago when Congress established the complex guidelines.

"The Court was extraordinarily clear that the guidelines were no longer mandatory," said Ohio State University law professor and sentencing expert Douglas A. Berman. "But that's about all that's clear."

Booker, however, is not retroactive for inmates who exhausted their appeals before Booker was decided -- unless the inmate petitions the Supreme Court and gets the case remanded.

Remedy Long Avaialble?

In 2000, Raphael Levy and 12 others were indicted in the Southern District of Florida for swindling investors out of money under the guise that it would be used in viatical settlements. Instead of using their investors' money in viatical settlements, Levy and his group allegedly used the funds to buy cars, boats, and homes from themselves.

Levy pleaded guilty to two offenses, and the government agreed to recommend that his sentences be served concurrently, resulting in a sentence no longer than 120 months. But the trial court decided to have Levy's sentences run consecutively, resulting in a term of 168 months.

Levy appealed to the 11th Circuit, which affirmed his sentence and subsequently denied a rehearing, and then denied a request for a rehearing before the full 11th Circuit. The Supreme Court then reviewed the case, vacated the sentence and remanded it to the 11th, which then issued last week's decision.

In its latest Levy ruling, the 11th Circuit cited its well-established rule, called a prudential rule, of refusing to rehear issues that were not brought up in an initial brief. It said defendants could, or should, have brought up Sixth Amendment challenges prior to the ruling in Booker.

"Although it may be true that most attorneys could not have predicted the Supreme Court's precise resolution of the sentencing issues in Booker, the general argument that the federal sentencing guidelines are unconstitutional or that a jury, not a judge, must decide the facts supporting extra-verdict sentencing enhancements was available to counsel long before Blakely and Booker," the panel wrote in the Levy decision.

The 11th Circuit panel justified its stance by saying "it seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's ... Booker claim, there is no reason why this court should be powerless to apply its prudential rule to foreclose defendant Levy's untimely ... claim."

The 11th Circuit has vacated sentences in certain types of cases. In those that raise Booker-type issues and are on direct appeal from the trial court, the 11th Circuit has overturned sentences where a defendant could prove he would have gotten a more lenient sentence had the judge not felt bound by the federal sentencing guidelines.

But, of the more than 100 cases where a sentence was vacated by the Supreme Court and the case sent back to the 11th Circuit as a result of the Booker and Fanfan decisions, the Atlanta-based appellate court has regularly reaffirmed its decisions on the grounds of its prudential rule of not considering issues not contained in initial briefs.

That's in contrast to other circuit courts. "Other courts have made an exception when the Supreme Court announces a new rule," Mills said.

Ohio law professor Berman partly blames the Supreme Court for the circuit split. "The [Supreme Court] did a very poor job of explaining what should happen to all the cases that were moving through the system," he said. "The 11th Circuit has been particularly restrictive of sending cases back for do-overs."

Two-Track Appeal

Mills recently had a client's sentence vacated by the Supreme Court and remanded to the 11th Circuit. But he is concerned that the 11th Circuit will simply reaffirm the sentence, even though the trial judge apparently wanted to give a lower sentence. That's because Mills did not raise a Booker-type constitutional challenge in his initial brief.

Mills' client, Gregory Wade Hembree, was convicted in 2003 on a charge of conspiracy to distribute a controlled substance and making false statements to a grand jury. He was sentenced to 6 1/2 years.

Even though the Hembree case is pending before the 11th Circuit, Mills now is asking the Supreme Court to force the 11th Circuit to apply the substantive law in Booker to Hembree's case. If he wins, Mills said, his client would probably be immediately set free because his client has already served more time than would be required by a newly calculated sentence under Booker.

Mills said that if he can get a panel of judges to hear the case, he's confident his client will prevail because trial transcripts show the judge felt bound by the sentencing rules and would otherwise have given Hembree a shorter prison term.

In a brief that supplements a motion for rehearing to the Supreme Court, Mills objects to the 11th Circuit's practice of simply affirming and reinstating sentences that have been vacated and remanded by the U.S. Supreme Court because the defendant did not raise Booker challenges in initial briefs.

"[The Supreme Court's] remand order will not grant any meaningful relief to the petitioner," Mills wrote. "Unless rehearing is granted, the 11th Circuit will simply rubber-stamp a reinstatement, and the petitioner will have to file a second petition for a writ of certiorari, incurring additional expense, requiring additional judicial labor, and further delaying a final disposition in this case."

Mills said appealing to the Supreme Court is the only way to get a fair sentence for his client. "I think the 11th is trying to maintain business as usual," he said. "They are disinclined to look at Booker as a dramatic shift in the way sentencing should take place in federal courts."

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