David S. Zapp, a specialist in money laundering and narcotics cases, speaks about the recently decided Supreme Court case, U.S. v. Booker that upended the Federal Sentencing Guidelines.
Q: Well Booker has been decided, what do you think?
DSZ: Obviously, much remains unsettled. Whether Booker and Blakely apply retroactively needs to be determined. But even assuming a defendant gets the “benefit” of Booker, I think it may be a pretty limited benefit. Sure, every guidelines enhancement based on a factual finding that the jury did not make is constitutionally deficient. But even for those cases (that went to trial and where the objection was properly preserved) the relief, at most, is to overturn the sentence and send it back down to the trial court for sentencing within the statutory range under the (now) “advisory” guidelines. And appellate courts may not even remand, as they may take [Justice] Breyer’s hint at the end of the opinion and affirm anyway (on reasonableness grounds).
Where there has not been a trial, but a Pimentel plea was entered, (where you plead to the entire indictment) the relief, if any, is limited. At most, reversal for resentencing with the government’s submissions is considered by the court–and unfortunately often followed.
Q: You always sound so pessimistic.
DSZ: I don’t mean to. Booker is good. Everything is now up for grabs, the judges get a measure of freedom but, and I know this sounds pessimistic, how they handle it will be important.
Q: What do you mean?
DSZ: Judges are now a little like prisoners released after years of confinement, stepping into the sunlight. So it is unnerving for them; they are not sure how far they can go. And like prisoners they are under “supervised release.” Congress has got its eye on them, and judges know that. So at first they will behave cautiously, depart a little but try not to draw too much attention. And we’re seeing this already with decisions like Judge Cassell’s that declared, “In all future sentencing the court will give heavy weight to the guidelines in determining an appropriate sentence. . . . The court will only depart from those guidelines in unusual cases for clearly identified and persuasive reasons.” U.S. v. James Wilson. But other judges sound like they’re ready to strike out on their own. To the extent that the latter do so and Congress focuses on it, bad for us. That is, legislative action is even more likely.
Q: What kind of legislative action?
DSZ: Mandatory sentencing laws. Illegal re-entry for example. If judges start giving everyone probation, Congress will just say, “Forget about it, from now on the sentence for illegal re-entry will be two to four years.” And they can do that with every crime.
Q: You think that’s going to happen?
DSZ: Could be, but not right away. Already there is talk of the “Bowman Plan” which is named after a former prosecutor and now a professor at Indiana Law School. His suggestion is to simply take off the tops of all ranges for every crime, replace them with the statutory maximums and make the bottom of the ranges the “mandatory” minimums. So, for example, if crime X has a minimum rage of 37 months, the top of that range will be the statutory maximum for crime X. That way the Booker problem, they hope, will be resolved.
This will not be good for defendants but it has the appeal of keeping the guidelines in place without a major overhaul and allows judges to enhance within the sentencing range. It is clearly a way to take back some of the discretion that the judges have won with Booker. Between an anti-Booker Justice Department and the conservative wing of Congress, they are not going to take liberal sentencing decisions lightly.
I think judges are going to sentence within or close to the guidelines until they feel comfortable that they can venture farther. If I were a defendant I would rather be sentenced six months from now if possible, because as time goes on judges may feel more comfortable with their power and reduce sentences even further. It may not work out that way, but you can be sure that they are not going to start out liberally.
Q: Why do you think that?
DSZ: Because that’s what happened when the guidelines were enacted. Courts were careful to follow them and appellate courts followed suit. You never saw a departure in the early days. Now departures are commonplace and the Second Circuit almost always gives deference to departures. Here in New York we have been very fortunate. But it was a gradual process, with judges getting braver and braver as they saw that they could get away with more, and that’s what may happen post-Booker.
Q: Well if history is a guide, as you say, can we then expect reduced sentences?
DSZ: Hopefully, but there is a difference. Guidelines have been in place for a long time and many judges who have come on board after they were enacted know no other way. It’s like young doctors who hear about “the good old days” when insurance companies did not control medical care. It falls on deaf ears. This is the world they came into and they’re fine with it. It’s what they know. So you are going to see a lot more judges following the guidelines than rejecting them.
Q: What do you think of the “Bowman proposal?”
DSZ: Interestingly, Professor Bowman actually testified in Congress after Blakely that while he thought his plan would be constitutional, that Congress shouldn’t enact it, and I think he would say now that Congress shouldn’t enact it.
I think the plan is bad from a policy standpoint. It would allow judges total discretion (hence total possibility for disparity) to sentence higher than the mandatory minimum, but only limited departure power to go below that minimum of the range. Thus it solves the “problem” of excess leniency, but permits endless disparity upward. I don’t think it will pass constitutional muster.
The Harris case allowed a judge to determine whether a defendant trafficked more than five kilos triggering the mandatory minimum. The rationale was that it did not offend Apprendi but that is because Apprendi was dealing only with maximums. And Harris was a slim reed decision. It was only 5-4, and the lineup is insecure. Breyer who may have been that fifth vote in Harris said that while he thought Harris is inconsistent with Apprendi, he never agreed with Apprendi in the first place.
So I imagine he or someone else in the majority could decide that Apprendi is now entrenched and they don’t see Harris as any longer viable after Blakely and Booker. Also Rehnquist was in the majority in Harris, and if he resigns and is replaced by what Bush seemed to promise in the election campaign, someone like Scalia and Thomas, that might be another vote for the anti-Harris coalition.
All of which is to say that if I were the AG [Attorney General], I’d be saying to Congress, don’t give us a plan where after a few years of litigation it may well turn out to be unconstitutional. Let’s wait and see. The best plan is really the one we have in place now because of Booker: Advisory guidelines with appellate review of sentences.
Q: What about mandatory minimums now?
DSZ: Mandatory minimums are unaffected by Booker. So long as Harris remains good law the statutory mandatory minimums remain. The only ways around them are those that are statutorily provided, since even the expansive reading of judicial discretion in Booker does not change the statutory framework of the mandatory minimums. This means that the “safety valve” remains as the only way (outside of 3553(e) motions or 5K1.1 motions) around them, and of course assisting the government. .
Now it is true that the application of the “safety valve” calls for a judicial, not a jury, finding that a person is not an “organizer” or “supervisor,” which some might argue is barred by the holding in Booker. But they would be wrong. Since it is a finding to reduce the sentence, it doesn’t violate Booker. If you are statutorily required to get five or ten years for a crime, and you are not eligible for the “safety valve” consideration, then the judge isn’t enhancing your sentence. He or she is just giving you what the law says you are supposed to get—nothing more.
Q: But once a defendant is found eligible for “safety valve” and can avoid the mandatory minimums, how low can a district court go?
DSZ: Under the analysis in Booker, it can go as low as it wants provided that (1) it at least considers the quantity-driven guidelines calculation, and (2) it does not do anything unreasonable. Some judges have already made it quite clear that they will continue to follow the guidelines. Others may not. Some circuit courts, I suspect the Second Circuit, will be deferential to sentencing decisions by the lower courts whether or not they are below the guidelines. Other circuits will not.
As I said, most judges are well aware that they are on probation right now so far as Congress is concerned. And if there are too many (or even just a couple) dramatically low sentences, the game is over.
Q: What about “acceptance of responsibility” points?
DSZ: That’s a thing of the past. Just remember this: if there is no mandatory minimum sentence attached to a crime or, for example, a narcotics charge where the defendant is eligible for safety valve consideration (which allows a judge to go below the mandatory minimum sentence), and he or she gets it, a judge can give a defendant anything the law allows. Understand that, and you understand Booker. Which is not to say that the advisory guidelines are to be dismissed lightly. Fealty has to be paid them because after all they were enacted by a sentencing commission authorized by Congress. So you can’t go insulting them by dismissing them as if they did not exist.
A lawyer also needs to acknowledge them and then argue why they should not apply by suggesting that the aims of the sentencing statute (3553) are more appropriate in their case. This is not a matter of persuading a judge. It is a matter of helping the judge base his/her decision on a statute. Remember, you have to fight law with law, not law with justice. Lawyers sometimes make the mistake of arguing simply fairness, justice, and common sense. They learn in short order that if you do not inject a little law into your argument you might well lose. A judge is looking over his shoulder too. The sentencing statute should be relied upon in every case. It has very good language for a defendant, and that way you keep the judge’s eye off the guidelines and on “the law.”
Q: Is that true for cooperation pursuant to 5k1.1?
DSZ: Yes and no. When the defendant is charged with a narcotics crime and is not eligible for “safety valve” consideration, there is a statute that requires a prosecutor’s recommendation to permit a judge to consider cooperation in reducing a sentence. But with respect to any other charge, “cooperation” to any degree can be considered in reducing a sentence and does not need the blessings of the prosecutor. Even trying one’s best to cooperate may finally be a basis upon which to give a defendant a break.
Q: What about illegal re-entry?
DSZ: What about it?
Q: That is a situation where everything is proven by incontrovertible evidence, so the judge is not making a “discretionary” decision to enhance the sentence, which was the constitutional objection in Booker. There is a “deportation order,” a “judgment” proving the underlying offense of conviction, a “certification” that the defendant did not ask permission to reenter. Why isn’t the judge entitled to enhance the sentence?
DSZ: He is, but not because the guidelines require him to do so. Remember the rule: as long as there is no mandatory minimum associated with a crime, the judge can give the defendant anything he or she wishes.
Q: Even Probation?
DSZ: Yes, even probation. But the judge will do it with trepidation because it calls attention to Congress and also invites a prosecutor to appeal the sentence if the U.S. Attorney’s Office thinks it is unreasonable.
Q: Oh, the prosecutor can still appeal a sentence?
DSZ: Sure. That rule is still viable. The appeals court will determine whether a sentence is or is not “unreasonable” and will look to the “advisory” guidelines as a start. But judges can couch their sentences in “reasonable” terms, so I don’t think that will be a problem. But even if the appeals courts approve, Congress is watching and if they do not like what they are hearing then the party will be over. And we don’t want that. We want Booker to remain alive and well.
You see, the wonderful thing about Booker is that it has the potential of eliminating the most pernicious aspect of the sentencing guidelines: Quantity driven sentences, that is, sentences determined simply by the amount of dollars laundered or the amount of drugs possessed. Now judges can acknowledge the “advice” given by the guidelines that each specific quantity should have a particular level and reject it openly. To sentence a mule based upon the amount of drugs he carried in his truck is absurd. In all likelihood he is just a guy being paid a small amount of money to drive a truck from point A to point B, sometimes no further than two hundred yards, from New Jersey across the bridge to New York. The drugs do not belong to him. He has no more proprietary or financial interest in them then you or I do.
For example, when an appellate judge heard about quantity driven sentences for the first time on an appeal, he once asked incredulously of the prosecutor, “Why don’t you just sentence a defendant based on his weight for all the sense that makes?” He was right. Now judges can toss out that unfair way of sentencing. But will they? If they do, that is a huge plus for defendants.
Q: What about the defendants that have been sentenced and exhausted there direct appeals?
DSZ: Well retroactivity is still an issue. But I would be surprised if the justices gave retroactive effect to this ruling.
Q: Why?
DSZ: Because there are cases that suggest as much. Also courts, don’t like disorder. It puts too much pressure on the system. It causes chaos, and when the conflict is between “law” or “order,” they always choose “order,” even though in my mind there is no principled way to say that the ruling shouldn’t be retroactive. For seventeen years judges have been saying that they have had no choice in sentencing matters—some even going so far as to say that they would have given the defendant less time if they could. Well now they can, and the courts are not going to permit it. That’s just unfair. I still think any defendant whose sentenced was based on a quantity driven guideline should collaterally (28 U.S.C. 2255) appeal until the high court has spoken.
Q: Could you address some hypothetical cases? It often makes it easier to understand the issues.
DSZ: Fine.
Case One: Defendant enters a Pimentel plea (a plea to the entire indictment rather than stipulating to any facts) on a money laundering charge. Defendant never says how much money was involved nor admits he knew it was from narcotics. The government argues supervisory role and the trial court agrees, enhancing the sentence. On appeal, defendant argues Blakely and the court denies it without prejudice, to renew pending the outcome of Booker.
Q: What can this defendant expect if it is remanded? What are the different possibilities?
DSZ: Well here are the possibilities:
The Court of Appeals may decide that here, or as a general rule, it makes sense to vacate the conviction and remand for the district court to apply Booker. Under this scheme, the defendant would be exposed to the statutory maximum of his offense(s) of conviction, and in deciding what sentence to give between the statutory minimum (if any) and the maximum; the District Court would have to consider the Guidelines calculation and sentence. Appellate review of this sentence would just be on the issue of “reasonableness.”
Or, The Court of Appeals may also pick up on the suggestion in [Justice] Breyer’s remedial opinion for the Court and find no remand necessary because the issue was not properly preserved below, or any error was harmless. The latter might well be the response to the facts here. It is a bit odd to say that we can be sure the District Court would have followed the guidelines had they not been mandatory, but also to say that the guidelines do not have the force of law. But I expect we will see some courts doing that. Let’s hope for our sake that doesn’t happen.
Case 2: Defendant goes to trial and is convicted of money laundering. The sentence is enhanced as to amount, role, knowledge and Defendant is denied Apprendi relief. The Defendant is in front of a harsh judge, and has exhausted direct appeals. What is going to happen?
DSZ: Whether this defendant can pursue a 2255 petition does indeed turn on the retroactivity issue. But, even if one assumes that the defendant gets the “benefit” of Booker, the victory may be meaningless since, at most, all he or she gets is resentencing by a harsh judge who will use the guidelines as “advisory”.
And since we’re talking about a harsh judge, I want to raise one really nasty possibility: that on resentencing, the court could give the defendant a “higher” sentence. I do not think that the “due process” cases presume vindictiveness if a sentence is increased after remand would apply here. And, even if they did, the “presumption” can be pretty easily rebutted.
Q: So what do you see in a post Booker world?
DSZ: Time will tell. I fear that legislation will be enacted sooner rather than later because a) the Department of Justice has made approving noises about it and b) I am hearing through the grapevine that stories of judicial leniency are starting to multiply. I have no idea what the timing will be, but the more that judges shoot their mouths off the sooner it will happen. And a Bowman-like-Plan is appealing to the Government because it just makes changes in the Sentencing Guidelines which are familiar to everyone, but it is not good for defendants.
Q: Thank you very much for you time Mr. Zapp.
DSZ: My pleasure.