Today’s other opinion promises to be a fairly important Booker development. In United States v. Lake, the court explores when the mandatory application of the Sentencing Guidelines constitutes harmless error. The opinion was written by Judge Newman (joined on the panel by Judges Sotomayor and Denny Chin, of the S.D.N.Y.), who has been the voice of the CA2 on Booker developments so far.
"Once the Supreme Court fundamentally altered federal sentencing procedures by ruling in Booker that the Guidelines were no longer required to be applied, it became difficult for the Government to sustain its burden of proving that a Booker error was harmless." It can happen, though, in "rare" cases: for instance, where a defendant is sentenced to a statutory mandatory minimum. In this case, the government argued that any Booker error was harmless because the district court was committed to the sentence it gave, regardless of the Guidelines. The district court had explained that "[t]his sentence is necessary for every reason that sentencing is necessary; for punishment, to incapacitate you during your adult life to protect the public from the type of violence you have visited upon the public when you were free from incarceration." The judge also selected a sentence that was neither at the top nor the bottom of the applicable sentencing range.
But Judge Newman wasn’t persuaded that the mandatory application of the Guidelines wasn’t prejudicial:
First, the fact that a judge selects a sentence within a guideline range that the judge thought he was required to apply does not necessarily mean that the same sentence would have been imposed had the judge understood the Guidelines as a whole to be advisory. The applicable guideline range provides the frame of reference against which the judge chooses an appropriate sentence. . . . Second, although even before Booker, a sentencing judge was obliged to consider all the factors set forth in 18 U.S.C. § 3553(a), the required use of one of those factors -- the Guidelines -- rendered of "uncertain import" the significance of the other factors. Now, without the mandatory duty to apply the Guidelines, consideration of the other section 3553(a) factors "acquires renewed significance," and might result in a different sentence. Third, absent the strictures of the Guidelines, counsel would have had the opportunity to urge consideration of circumstances that were prohibited as grounds for a departure. (Citations omitted).
What I take from this case is that it’s going to be virtually impossible for the government to demonstrate harmless error unless (a) the district court could not possibly have sentenced the defendant to some other term of imprisonment, or (b) the district judge explicitly said something indicating that he or she understood the likely effect of Apprendi and Blakely, and that the sentence imposed would have been imposed had the Guidelines not been mandatory. And I’m not sure that even that second scenario would pass muster under today’s decision.