With Today's issuance of United States v. Bruce, No. 03-3110 future Sixth Circuit panels are faced with conflicting case law on the resolution of plain error review challenges to Blakely violations. Look for en banc review in the near future.
Yesterday we reported the Sixth Circuit's decision in United States v. Oliver to utilize its discretion to grant relief to a criminal appellant challenging a sentence imposed in violation of Booker on plain error review. In so doing, the panel found the error substantial, but ignored overwhelming evidence of the applicability of an obstruction of justice enhancement, instead using its last footnote to instruct the district court to resolve the applicability of the enhancement on remand.
Today's Sixth Circuit opinion declines to grant relief on plain error review. David Lee Oliver, yesterday's appellant, indisputably fled a half-way house while awaiting trial, thus winning a two-level enhancement for obstruction of justice under USSG sec. 3C1.1. Today's lucky contestant, Floyd Bruce, also received a 3C1.1 enhancement, the only difference being Bruce got his for providing false information to the presentence investigation officer.
Yesterday's opinion concluded that, even though Oliver was sentenced in the middle of the guideline range, he "arguably received a sentence that was longer than his sentence would have been absent a Sixth Amendment violation." Section II.B.2 of the opinion did not analyze the question of overwhelming evidence, but footnote 3, distinguishing Cotton, now appears to be a "prebuttal" of Bruce.
Bruce, today's opinion, finds the question of a substantial rights violation unnecessary, due to the overwhelming evidence that Bruce lied in the presentence interview. Here is the heart of the opinion:
Regarding the “substantial rights” element of the plain error analysis, we follow the lead of other courts and leave this issue unresolved, see, e.g., Cotton, 535 U.S. at 632-33, 122 S. Ct. at 1786; Cleaves, 299 F.3d at 568, because any error here did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.
In reaching this conclusion, we find considerable guidance in the decisions that have applied the plain error standard to claimed violations of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Indeed, Booker is a direct lineal descendant of Apprendi and Blakely, with each of these cases further defining the respective roles of judge and jury under the Sixth Amendment. Surely, then, the reasoning that we and other courts have employed in conducting plain-error review of claimed Apprendi violations should carry over to the present
context of a claimed violation of Booker. In particular, both the Supreme Court and this Court have held that an Apprendi violation does not satisfy the fourth prong of the plain error standard if the evidence bearing upon the issue that was impermissibly decided by the judge rather than the jury was “overwhelming” and “essentially uncontroverted.” Cotton, 535 U.S. at 633, 122 S. Ct. at 1786 (internal quotation marks and citation omitted); see also Stewart, 306 F.3d at 317-18; Cleaves, 299 F.3d at 569.
We find this reasoning applicable here. Regarding the false claim of U.S. citizenship to the probation officer, Defendant does not deny that he made such a claim, but instead argues that it was not “material” because he promptly retracted it. We already have explained why, in our view, U.S.S.G. § 3C1.1 and its accompanying commentary do not countenance such a “no harm, no foul” view of materiality. On the basis of this uncontroverted fact alone, then, an enhancement for obstruction of justice would have been warranted. Moreover, while Defendant asserts that his claim of Bermudian citizenship has never been disproved, this does not call into question the district court’s findings that Defendant both concealed his citizenship (by falsely claiming to be a U.S. citizen) and impeded the probation officer’s effort to determine his true citizenship (by failing to provide any supporting documentation for his subsequent claim of Bermudian citizenship, leaving
the probation officer to choose between Defendant’s bare word and information that refuted Defendant’s status as a citizen of Bermuda). We view the evidentiary support for the district court’s findings on these points as sufficiently “overwhelming” to defeat any claim that these findings “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
While not addressing the "substantially affects" question and not giving credit, the Bruce takes the same approach described here yesterday, in analyzing the location of the sentence given in comparison to the sentencing range as evidence of whether the sentence was actually affected:
Two other considerations buttress our conclusion on the fourth prong of the plain error standard. First, we view it as unlikely that the district court would have imposed a lower sentence if it had realized that the guidelines are advisory and not mandatory. Exercising its more limited discretion under the mandatory regime, the district court elected to sentence Defendant at the top of the applicable 27-to-33-month guideline range. Surely, if the district court was not inclined to impose a shorter sentence despite its power to do so within the guidelines’ mandatory sentencing scheme, it would not have elected to reduce Defendant’s sentence under a more open-ended advisory system.
The panel should have stopped when it was ahead, though, as its second dictal musing seems to run afoul of the merits majority in Booker:
Next, while Booker does not distinguish between offense-related conduct and other sentence enhancing facts, we cannot help but believe that a judge’s findings concerning obstructive conduct toward a probation officer during a court-ordered and judicially-supervised presentence investigation do not trigger the same “fairness” concerns as, say, a judge’s determination that a defendant brandished a weapon during the commission of a crime. “United States probation officers serve as officers of the court,” and “it is reasonable to view the United States Probation Office itself as a legally constituted arm of the judicial branch.” United States v. Reyes, 283 F.3d 446, 455 (2d Cir. 2002) (internal quotation marks and citations omitted); see also 18 U.S.C. § 3602(a) (authorizing the federal district courts to appoint probation officers “within the jurisdiction and under the direction of the court making the appointment”); 18 U.S.C. § 3552(a) (providing that a “United
States probation officer shall make a presentence investigation of a defendant . . . , and shall, before the imposition of sentence, report the results of the investigation to the court”).
instructs that such facts cannot trigger a sentence beyond the otherwise-applicable maximum unless they are admitted by the defendant or proved to a jury beyond a reasonable doubt, we cannot conceive that a district court’s assumption of this fact-finding role, even if erroneous, could be viewed as "seriously affecting the fairness, integrity, or public reputation of judicial proceedings," as would be necessary to warrant reversal under the plain error standard. Consequently, we hold that any violation of Booker in this case does not require a remand for resentencing.
Thus, it surely is within the province of the district court to investigate and punish attempts to interfere with a probation officer’s performance of duties owed to the court. It follows, in our view, that the district court’s factual findings on such matters are entitled to considerable deference. Although Booker
I do not understand this. Are they saying that judges are special, and the fact that it is a judge violating the constitution means that "fairness, integrity, [and] public reputation of the judicial proceeding" are therefore not called into question? They should have stated the overwhelming evidence rationale and stopped at that.
A final question: should Mr. Bruce seek reconsideration? Considering that the district court sentenced him at the upper end of the sentencing range, might not the judge go higher if the Guidelines are merely advisory? Remember, David Allen Sattazahn, who got his conviction and sentence to life imprisonment vacated, only to get the death penalty when retried. See Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S. Ct. 732 (2003)