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Today Judge Hornby, upon the government's request, resentenced Ducan Fanfan. You may recall that Fanfan previously received a sentence of 78 months. At the original sentencing on 6/28/04 Judge Hornby found by a preponderance that the guideline range was 188-235 months. However he also applied the teachings of Blakely and because "enhancements" had not gone to the jury he ruled that the "unenhanced" range was 63 to 78 months and sentenced at the top of that range. Today the government sought a sentence at the high end of the 188-235 month advisory guideline range. The judge instead went with the "middle of the range" resulting in a 200 month sentence. The government went first arguing no ex post fact violation as ex post facto applies to statutory changes as it "limits the power of the legislature" and does not apply to this situation. Citing Rogers and Bouie. Recently the courts in Duncan (11th cir.) and Gray (SD WV) had found no ex post facto problems. The Supreme Court has sent the case back for the Court to Sentence under the advisory guidelines and the court should do so. Defense counsel Rosemary Scapicchio and Bruce Merrill pushed very hard and well on the ex post facto issue. They made all of the points we have discussed in the conferences and list-serves. Judge Hornby asked how he could avoid the language of the mandate. Defense points out that the Booker court does not mention ex post facto issues as was not before them. Part 1 of Booker applies because it is Constitutional in scope. The Court's original sentence met that constitutional standard. Miller v. FL found ex post facto concerns are implicated by every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed making the maximum sentence for guideline purposes the top of the applicable guideline range. Applicable guideline range here is the un-enhanced 6th amendment allowable range: the 78 months previous imposed. If the "remedy" portion of Booker means Fanfan is now facing a higher sentence than he was when sentenced that is ex post facto. The law grants advantageous constitutional benefits to defendants even when other areas of a decision expand potential criminal liability. (Marks v. US). The Booker ruling satisfies both the "unexpected" and "indefensible" prongs of the ex post facto test from Rogers. Defense argued under 3553 the Court should consider the crack/powder disparity and the recent disparity finding decision of Judge Ponsor (D. MA). Judge recessed and after 15 minutes returned. He rejects ex post facto argument. The portion of Booker which deals directly with Fanfan is in part two, the remedy opinion. For the majority J. Breyer writes, "Fanfan's sentence does not violate the 6th Amendment. Nonetheless, the government (and the defendant should he so choose) may seek resentencing under the system set for in today's opinions. Hence we vacate the judgment of the District Court and remand the case for further proceedings consistent with this opinion". (emphasis added). Judge Hornby found this language to mean he was directed by the Supreme Court to apply all of the opinion, both part 1 and the part 2 remedy. He went on to say that the defendant is free to take the case back up but he is "just the District Court" and he must follow the Supreme Court's instructions. He added that he would rule against the ex post facto argument on the merits but gave no analysis or reasoning. He then chose the middle of the advisory guideline range, found nothing that increased or decreased that, no reason to vary looking at 3553, and imposed 200 months followed by 5 years supervised release. It has been raining here in Maine for most of May; make that since it stopped snowing: the populace is in search of some sun. We did not get any today. The Defense Sentencing Memo is avalable here. (PDF Format) The Government Sentencing Memo is avalable here. (PDF Format) David Beneman |
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