Proposed Change to Fifth Circuit Rule Concerning Fee for Admission to Practice
- Is that the correct way to form the possessive of Judge Advocate General Corps?
- Shouldn't Texas be listed first?
Labels: Chapter 4
Crawford involved the admission of an unavailable witness’s out-of-court statement in a single-defendant trial, and thus did not speak directly to the issue before us. However, while Crawford certainly prohibits the introduction of a codefendant’s out-of-court testimonial statement against the other defendants in a multiple-defendant trial, it does not signal a departure from the rules governing the admittance of such a statement against the speaker-defendant himself, which continue to be provided by Bruton, Richardson, and Gray.
Labels: Confrontation Clause
[b]ecause of the way the indictment was stacked by the prosecutor, Ms. Looney was subject to mandatory minimum terms of imprisonment for forty years (ten years for the drug conspiracy and possession with intent to distribute counts, five consecutive years for the first gun count, and twenty-five consecutive years for the second gun count). Although thirty years of her sentence can be attributed to possessing guns in furtherance of her methamphetamine dealing, there is no evidence that Ms. Looney brought a gun with her to any drug deal, that she ever used one of the guns, or that the guns ever left the house.
We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it. As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years -- essentially determined by Congress. Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count. The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion -- rather poorly we think -- to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.
We do not question the authority -- or the wisdom -- of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence. Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence. For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat -- rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences. We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.
We review District Court sentencing decisions for abuse of discretion. Gall, 128 S. Ct. at 597. Our review is bifurcated. Id. at 597-98; United States v. Rodriguez, 523 F.3d 519, 524-25 (5th Cir. 2008). First, we must determine whether the District Court committed any significant procedural error. Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525. The District Court commits a procedural error if: it miscalculates or fails to calculate the proper Guidelines range; it treats the Guidelines as mandatory; it imposes a sentence based on clearly erroneous facts; it fails to consider the factors set forth in 18 U.S.C. § 3553(a); or it fails adequately to explain its chosen sentence or any deviation from the Guidelines range. See Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525. Second, if the District Court has committed no significant procedural error, we review the sentence for substantive reasonableness. See Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525.
Sentences fall into three categories: (1) those within a properly calculated Guidelines range, (2) those outside a properly calculated Guidelines range that are based on an allowed upward or downward departure, and (3) those outside a properly calculated Guidelines range that are not based on an allowed departure. United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Rowan’s sentence is outside the applicable Guidelines range and was not based on an allowed departure. See U.S.S.G. 5B1.1. Therefore, Rowan’s sentence is a non-Guidelines sentence. See id.; Davis, 478 F.3d at 273.
When the District Court imposes a non-Guideline sentence, we “may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S. Ct. at 597. Even if we “might reasonably have concluded that a different sentence was appropriate, [this] is insufficient to justify reversal of the district court.” See id.
We find no significant procedural error in the District Court’s sentencing decision: the District Court properly calculated the Guideline range, heard arguments concerning appropriate sentences, and meticulously considered the § 3553(a) factors. Based on the foregoing, the District Court concluded that a non-Guidelines sentence of a sixty-month period of probation was appropriate. In light of the deferential standard set forth in Gall, 128 S. Ct. at 597-98, we AFFIRM.
Labels: Reasonableness Review
[c]ounsel may request extensions [of briefing deadlines] only when absolutely necessary. The clerk or court will grant extensions sparingly and only as set forth in the rules and IOPs. Extensions in criminal appeals will be for the minimum time needed, and if granted, will exceed 30 days only in exceptionally rare instances. Counsel are responsible for reviewing the record on appeal within 15 days of receipt. If there are omissions from the record, counsel must notify the district court and this court of any missing materials, particularly transcripts, and arrange immediately with the court reporter for any additional transcripts within this period. Counsel who fail to act promptly and to make arrangements for a complete record within this time period, cannot expect an extension of time to file the brief because their lack of diligence caused the record to be incomplete.
For conduct unbecoming a member of the Bar, or for failure of counsel to comply with the applicable Federal and Fifth Circuit Rules, the court shall issue a show cause order as provided by FED. R. APP. P. 46(c), and 5TH CIR. R. 188.8.131.52 and 42.3.3. Sanctions may be imposed upon delinquent counsel as may be individually appropriate, ranging from reprimand to fine, or Criminal Justice Act financial deduction or removal from the roll of attorneys permitted to practice before this court.
In 1960, a young man from San Antonio, Texas was arrested for robbery, convicted and sent to a state prison farm to pick cotton. He denied committing the robberies, but couldn't afford a lawyer to appeal his cases. With only an 8th grade education, he read every law book he could find access to and filed his appeal pro se. WRIT WRITER tells the story of jailhouse lawyer Fred Cruz and the legal battle he waged to secure what he believed to be the constitutional rights of Texas prisoners.
beginning with cases heard in late May 2008, recordings of oral argument are available to the public on the Internet at http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx
Oral argument recordings generally are available late in the day argument is held. Listeners using “Windows Media” software can search for an argument by case number, date, case title or attorney’s name. We plan on keeping archived arguments available for an indefinite period.