Success with a Booker Claim; Gov't Waived Appeal-Waiver Argument

U.S. v. Clark, 2005 WL 1799806 (7/29/05) - A split decision plain error reversal with a first impression constitutional Booker ruling. The majority held that in determining the maximum sentence that may not constitutionally be exceeded by virtue of a judicial finding the sure-thing acceptance of responsibility downward adjustment ("AR") must be applied first. For example, in this case, before the AR was applied, the defendant's guideline range was 110-137 months based on the amount of drugs the defendant admitted responsibility for. After the AR, the range was 84-105 months. The defendant received a 120 month sentence due to enhancements for extra drugs and a gun involved in incidents a year and 3 years after the offense of conviction. The 10th rejected the government's and dissent's claim that the maximum was the 137 months at the top end of the unenhanced guideline range without the AR. The majority reasoned that the AR was required to be credited in this case where the government stipulated to it and the defendant pleaded guilty and did everything expected to get the credit. So, the Booker maximum was the 105 months at the top end of the AR-adjusted unenhanced range. Hence, the 120 month sentence resulting from the judge's relevant conduct determinations violated the Sixth Amendment. That error warranted reversal because (1) there was a reasonable probability a jury would not have found beyond a reasonable doubt that defendant's subsequent drug-related conduct was part of the same course of conduct as the offense of conviction, given the absence of temporal proximity and regularity; and (2) the error seriously affected the fairness, integrity and public reputation of judicial proceedings, in light of the defendant's forceful objection to the enhancement, the weakness of the evidence supporting the enhancement, the sentence at the bottom of the range, the defendant's argument that she had serious medical problems and was involved in drugs due to her addiction, and the substantial increase in sentence due to the enhancement. The 10th stressed that the 4th prong of the plain error reversal standard is expressed in the disjunctive so that reversal is warranted if the error causes unfairness, or lack of integrity or calls into question the public reputation of judicial proceedings.

The majority held that the defendant's appeal waiver did not prevent an appeal because the government had not raised the issue of the waiver in a pre-briefing motion for enforcement of the waiver or in the briefs. The dissent, Judge O'Brien, felt the waiver should be enforced because Booker didn't come up until after the briefing and there was no supplemental briefing. This suggests in the usual case even Judge O'Brien would feel an appeal waiver would not have to be enforced if the government didn't raise the waiver in its brief.