1. United States v. McNeil: Vaguely interesting Booker issue in this appeal from a revocation of supervised release. The appellant, Robinson, pleaded in 1999 to one count of possession with intent to distribute, and was sentenced to 33 months to be followed by five years of supervised release, which started in September 2003. In March 2004, Robinson was charged with violating the terms of his release. Relying on Blakely, he demanded that the violation be submitted to a jury, but the district court refused and sentenced Robinson to 15 months, within the Guidelines for a Grade A violation. On appeal, Robinson argued: (i) that the charging instrument provided insufficient notice because it didn’t specify what statute he allegedly violated; (ii) that the 15 month sentence violated Booker, because, when added to his original 33 month sentence, his total sentence exceeded the 41 month Guideline limit for his original offense; and (iii) that the district court erred in consider his violation Grade A.
The court rejected the first argument quickly. Even though the charges didn’t cite a statute, it accused Robinson of "possession of cocaine base," and that was notice enough. Because the reference to "possession of cocaine base" identified all of the necessary elements, any error in failing to cite statutes was harmless.
On the Booker point, Robinson argued that the maximum sentence for violation of release was 8 months -- because 8 months plus the 33 months already served added up to 41 months, the Guidelines limit on his original offense. The CA2 first considered Booker’s effect on supervised release in United States v. Fleming. Fleming essentially reasoned that because sentences for violation of supervised release have always been discretionary, they are unaffected by Blakely, Booker, and the CA2’s decision in Crosby. The CA2 chose to adhere to this general logic in rejecting Robinson’s argument, but it did recognize that "the supervised release scheme is in some tension with the rationale of Blakely and Booker." The court’s reasoning -- in another fine Judge Jacobs decision -- is worth quoting at length (citations omitted):
Blakely suggests that the discretionary decision to grant or revoke parole is distinct from sentencing and does not suffer from the analogous Sixth Amendment infirmity. But parole (unlike supervised release) is an interval during which the defendant could continue to be held in prison based on his original conviction alone; so the decision to grant or revoke parole only affects the time served in prison within the parameters of the prison sentence originally authorized by the crime of conviction. Imprisonment for a violation of supervised release of course can exceed those parameters, and if a sentence for violation of supervised release were nothing but a sentencing enhancement, beyond the punishment justified by the conviction, it could be constitutionally infirm.
Supervised release is not an enhancement of the original sentence. Though supervised release is "part of the penalty for the initial offense," the imposition of supervised release and the sanctions for violation are authorized by a statute and Guidelines scheme that is separate from the regime that governs incarceration for the original offense, and the supervised release scheme serves purposes distinct from the goals of the original punishment. Supervised release is imposed as part of the original sentence, but the imprisonment that ensues from revocation is partly based on new conduct, is wholly derived from a different source, and has different objectives altogether; it is therefore a different beast.
At the same time, a violation of supervised release is not a separate basis for criminal punishment that requires a jury verdict and all that that entails. Imposition of supervised release is authorized by the original conviction, and so too are the consequences of its violation. Revocation required only a finding "by a judge under a preponderance of the evidence standard."
Under current law, imprisonment for violation of supervised release may exceed the time that the defendant could have been jailed on his original conviction. Robinson’s sentence for revocation of supervised release is therefore without Booker error.
Anyway, the court went on to conclude that the district court erroneously considered the violation to be Grade A, when simple possession offenses are Grade B, and so remanded. Since Robinson had already served 9 months on the violation, and the sentencing range for a Grade B violation is 4-10 months, he’s looking good.
2. Sanozky v. International Association of Machinists and Aerospace Workers: "Fred Sanozky appeals from a judgment entered in the United States District Court for the Eastern District of New York (Block, J.) dismissing on summary judgment Sanozky’s hybrid § 301/duty of fair representation claim against his union. We agree with the district court that Sanozky failed to adduce evidence of arbitrariness, discrimination, or bad faith on the part of the union; additionally, the district court did not abuse its discretion in denying Sanozky’s request for reconsideration or in awarding costs. Affirmed."