Tuesday, February 22, 2005

First Circuit Booker Analysis: Arguing the Effect of Advisory Guidelines on a White Collar Sentence

The First Circuit issued an opinion today in U.S. v. Antonakopoulos involving a Booker plain error claim in a bank fraud prosecution in which the defendant's base offense level was increased substantially by the application of Sec. 2B1.1 loss calculation.  The court summarized its analysis of when a Booker error will trigger a reversal for plain error, and the standard is a tight one: 

To summarize our position at the outset, we intend to apply, in accordance with Justice Breyer's admonition, conventional plain-error doctrine where a Booker error exists but has not been preserved. See id. at 769; United States v. Olano, 507 U.S. 725, 731-32 (1993). The Booker error is that the defendant's Guidelines sentence was imposed under a mandatory system. The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system. A mandatory minimum sentence imposed as required by a statute based on facts found by a jury or admitted by a defendant is not a candidate for Booker error. The first two Olano requirements -- that an error exists and that it is plain at the time of appeal -- are satisfied whenever the district court treated the Guidelines as mandatory at the time of sentencing. But to meet the other two requirements -- that this error affected defendant's substantial rights and would impair confidence in the justice of the proceedings -- we think that ordinarily the defendant must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new "advisory Guidelines" Booker regime. We follow the more flexible standard for plain error articulated in United States v. Dominguez Benitez, 542 U.S. ___, 124 S. Ct. 2333 (2004). We engage in case by case review and we reject certain automatic reversal rules.

The First Circuit stated that a Blakely error does not require automatic reversal of a sentence under Booker on the ground that

It is far from necessarily true, as a per se remand rule assumes, that a judge who found the facts underlying an enhanced sentence would have reached a different result under a post-Booker regime. In these situations a judge's factual findings, unless they were found to be clearly erroneous, are far more likely than not to be the same if the case were remanded. The fact that the judge initially did the fact finding on a certain factor is surely a different matter than what the judge would have done with that factor if the Guidelines were not mandatory. The use of judicial fact finding, then, ordinarily cannot alone meet the "reasonable probability" standard of the third Olano prong.

The court did note one situation that will in all likelihood lead to a remand for resentencing under Booker:

Finally, history shows that the mandatory nature of the Guidelines has produced particular results which led trial judges to express that the sentences imposed were unjust, grossly unfair, or disproportionate to the crime committed, and the judges would otherwise have sentenced differently . . . Where the district judge has said as much about a Guidelines sentence, that is a powerful argument for remand. If the resulting sentence after remand is itself unreasonable, the government can appeal. By like token, if the district judge has said at sentencing that he would have reached the same result regardless of the mandatory nature of the Guidelines, that is a powerful argument against remand.

The court emphasized that an argument that the trial judge would have given a lower sentence if freed from the mandatory nature of the Guidelines will, if made persuasively, trigger a remand for resentencing.  That is the apparent invitation in this case, in which the court found the fraud loss calculations to be entirely reasonable and, indeed, the district judge gave the defendant the benefit of the doubt on a couple transactions that could easily have gone against him.  The First Circuit gave the defendant the opportunity to address this question in a supplemental brief, and counsel in other cases will now be alerted to make the "it would have been different if the judge were sentencing under advisory guidelines" argument. [Sorry about the quirky fonts in the case quotes.  I haven't quite figured that one out yet.] (ph)

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Tracked on Feb 22, 2005 1:29:03 PM