In The Courts

The Fourth, Sixth, and Ninth Circuits have held that the district court's reliance on judge-found facts in imposing a mandatory sentence under the federal sentencing guidelines, ie, a Booker error, was a plain error and required remand for resentencing. United States v. Hughes, 396 F.3d 374 (4th Cir. Jan. 24, 2005); United States v. Oliver, 2005 WL 233779 (6th Cir. Feb. 2, 2005); United States v. Ameline, 2005 WL 237642 (9th Cir. Feb. 9, 2005). But one day after the Sixth Circuit's decision in Oliver, another Sixth Circuit panel in United States v. Bruce, 2005 WL 241254 (6th Cir. Feb. 3, 2005), held that a Booker error did not require remand for resentencing because it did not affect the fairness and integrity of judicial proceedings. Adding to this tangle, the Sixth Circuit panel that originally issued an unpublished decision requiring resentencing in United States v. Davis, 2005 WL 130154 (6th Cir. Jan. 21, 2005), ordered its opinion published with the footnote explaining that to the extent Oliver and Bruce conflict, the courts must follow Oliver because it was issued first.

The Second Circuit in United States v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 2005), remanded the resentencing issue to the district court so that the district court could determine whether it would have imposed a materially different sentence under the post-Booker sentencing scheme. The Second Circuit held that this determination was necessary for the appellate court to assess the significance of any error that might have been made.

The Eleventh Circuit, in United States v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), held that a Booker error was not a plain error because it did not affect substantial rights. Specifically, the Eleventh Circuit held that it was unable to determine whether the district court in any particular case would have imposed a lower sentence had the district court been acting under the post-Booker sentencing scheme. In distinguishing other circuits' plain-error analysis, the Eleventh Circuit based its holding on the premise that the error identified in Booker is the application of mandatory sentencing guidelines and not the application of sentencing enhancements on the basis of facts not found by the jury or admitted by the defendant.

The Eighth Circuit has chosen to address the issue of resentencing on an en banc review in United States v. Pirani, No. 03-2871, set for argument on March 9, 2005.

Second Circuit Addresses What Is a Reasonable Sentence After United States v. Booker

In United States v. Fleming, 2005 WL 237200 (2d Cir. Feb. 2, 2005), the Second Circuit held that post-Booker it will review sentences for which there are sentencing guidelines and sentences for which there are no applicable sentencing guidelines for reasonableness. In the case at issue, the Second Circuit held that a 2-year sentence for revocation of probation was reasonable. Although the Second Circuit did not articulate specific rules for determining whether a sentence is reasonable, it noted that reasonableness 'is a flexible concept' and the 'appellate function in this context should exhibit restraint, not micromanagement.' The Second Circuit also noted that '[a]lthough the brevity or length of a sentence can exceed the bounds of 'reasonableness,' [the court] anticipate[s] encountering such circumstances infrequently.'

Allegation of Illegitimate Union Demands Is Sufficient to Support an Indictment for Conspiracy to Violate the Hobbs Act

In United States v. Douglas, 2005 WL 291518 (6th Cir. Feb. 8, 2005), the Sixth Circuit held that an indictment for conspiracy to violate the Hobbs Act, 18 U.S.C. ' 1951, was sufficient where the government alleged that the defendants obtained employment for two others through the wrongful use of fear of economic harm. In particular, the defendants were two union officials who, during the negotiations of a contract between the union and General Motors' Pontiac Trucks division, demanded that Pontiac hire two individuals in contravention of a collective bargaining agreement and the union's constitution. The Sixth Circuit distinguished Supreme Court case law that holds when force is used to obtain legitimate union demands, such as higher wages, the Hobbs Act does not apply. The district court found that negotiating for additional jobs is a legitimate objective, and because defendants' actions were merely negotiating tactics for additional jobs, their objective was legitimate. But the Sixth Circuit disagreed, holding that defendants' demands were illegitimate and constituted extortion because they were contrary to a collective bargaining agreement and the union's constitution.

The court also held that the two other counts in the indictment, for conspiracy to violate the Labor-Management Relations Act, 29 U.S.C. ' 186, and mail fraud, 18 U.S.C. ' 1341 et seq., were sufficient.

Circuit Split Over Resentencing After United States v. Booker

Less than a month after the Supreme Court issued its landmark opinion in United States v. Booker , 125 S.Ct. 738 (2005), which rendered the federal sentencing guidelines advisory, the circuits have split ' including one intra-circuit split between panels in the Sixth Circuit ' over whether defendants who failed to raise Booker -style claims nonetheless have a right to resentencing. An appellate court may not correct an error the defendant failed to raise in the district court unless there is 1) error; 2) that is plain; and 3) affects substantial rights. If all three conditions are met, an appellate court may exercise its discretion to correct the error if 4) the error seriously affects the fairness and integrity of judicial proceedings.

The Fourth, Sixth, and Ninth Circuits have held that the district court's reliance on judge-found facts in imposing a mandatory sentence under the federal sentencing guidelines, ie, a Booker error, was a plain error and required remand for resentencing. United States v. Hughes , 396 F.3d 374 (4th Cir. Jan. 24, 2005); United States v. Oliver, 2005 WL 233779 (6th Cir. Feb. 2, 2005); United States v. Ameline, 2005 WL 237642 (9th Cir. Feb. 9, 2005). But one day after the Sixth Circuit's decision in Oliver, another Sixth Circuit panel in United States v. Bruce, 2005 WL 241254 (6th Cir. Feb. 3, 2005), held that a Booker error did not require remand for resentencing because it did not affect the fairness and integrity of judicial proceedings. Adding to this tangle, the Sixth Circuit panel that originally issued an unpublished decision requiring resentencing in United States v. Davis, 2005 WL 130154 (6th Cir. Jan. 21, 2005), ordered its opinion published with the footnote explaining that to the extent Oliver and Bruce conflict, the courts must follow Oliver because it was issued first.

The Second Circuit in United States v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 2005), remanded the resentencing issue to the district court so that the district court could determine whether it would have imposed a materially different sentence under the post-Booker sentencing scheme. The Second Circuit held that this determination was necessary for the appellate court to assess the significance of any error that might have been made.

The Eleventh Circuit, in United States v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), held that a Booker error was not a plain error because it did not affect substantial rights. Specifically, the Eleventh Circuit held that it was unable to determine whether the district court in any particular case would have imposed a lower sentence had the district court been acting under the post-Booker sentencing scheme. In distinguishing other circuits' plain-error analysis, the Eleventh Circuit based its holding on the premise that the error identified in Booker is the application of mandatory sentencing guidelines and not the application of sentencing enhancements on the basis of facts not found by the jury or admitted by the defendant.

The Eighth Circuit has chosen to address the issue of resentencing on an en banc review in United States v. Pirani, No. 03-2871, set for argument on March 9, 2005.

Second Circuit Addresses What Is a Reasonable Sentence After United States v. Booker

In United States v. Fleming, 2005 WL 237200 (2d Cir. Feb. 2, 2005), the Second Circuit held that post-Booker it will review sentences for which there are sentencing guidelines and sentences for which there are no applicable sentencing guidelines for reasonableness. In the case at issue, the Second Circuit held that a 2-year sentence for revocation of probation was reasonable. Although the Second Circuit did not articulate specific rules for determining whether a sentence is reasonable, it noted that reasonableness 'is a flexible concept' and the 'appellate function in this context should exhibit restraint, not micromanagement.' The Second Circuit also noted that '[a]lthough the brevity or length of a sentence can exceed the bounds of 'reasonableness,' [the court] anticipate[s] encountering such circumstances infrequently.'

Allegation of Illegitimate Union Demands Is Sufficient to Support an Indictment for Conspiracy to Violate the Hobbs Act

In United States v. Douglas, 2005 WL 291518 (6th Cir. Feb. 8, 2005), the Sixth Circuit held that an indictment for conspiracy to violate the Hobbs Act, 18 U.S.C. ' 1951, was sufficient where the government alleged that the defendants obtained employment for two others through the wrongful use of fear of economic harm. In particular, the defendants were two union officials who, during the negotiations of a contract between the union and General Motors' Pontiac Trucks division, demanded that Pontiac hire two individuals in contravention of a collective bargaining agreement and the union's constitution. The Sixth Circuit distinguished Supreme Court case law that holds when force is used to obtain legitimate union demands, such as higher wages, the Hobbs Act does not apply. The district court found that negotiating for additional jobs is a legitimate objective, and because defendants' actions were merely negotiating tactics for additional jobs, their objective was legitimate. But the Sixth Circuit disagreed, holding that defendants' demands were illegitimate and constituted extortion because they were contrary to a collective bargaining agreement and the union's constitution.

The court also held that the two other counts in the indictment, for conspiracy to violate the Labor-Management Relations Act, 29 U.S.C. ' 186, and mail fraud, 18 U.S.C. ' 1341 et seq., were sufficient.