Sixth Circuit Grants En Banc Rehearing on Important Booker Issue

Last week the United States Court of Appeals for the Sixth Circuit agreed to grant en banc review of the panel decision in US v. Vonner. 452 F.3d 560 (6th Cir. 2006). Vonner was the Court’s latest step to deal with when a guideline based sentence was unreasonable under Booker. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005) (noting that “when a defendant challenges a district court’s sentencing determination, we are instructed to determine ‘whether [the] sentence is unreasonable”).

Vonner was a divided decision in which the majority declared a within-guideline sentence unreasonable for “lack of adequate explanation.” By agreeing to hear Vonner en banc, the Sixth Circuit joins the Ninth Circuit in now having a big en banc case to use to provide its district courts with guidance on post-Booker sentencing. See United States v. Carty, — F.3d —-, 2006 WL 2494311 (9th Cir. 2006).

Expunged? Think Again.

A recent article in the New York Times speaks about the effect of technology on criminal expungment. But as Adam Liptak of the New York Times reports in Expunged Criminal Records Live to Tell Tales (10/17/06) (registration required) enormous commercial databases are quickly undoing the societal bargain of expungement — one that used to give people a clean slate and a fresh start. With credit reporting, the Government places limits on the information that can be told about a person’s financial past. Similar restrictions should be placed on the reporting of a person’s criminal past.

Daniel Solove’s Blog “Concurring Opinion” discusses this approach better than I can:

I think that the solution to this problem is for states making their records available to commercial databrokers to require them to promise that they will delete records when they are expunged and will correct records that initially had errors when a correction is later made to the record. This promise can be required as a condition of granting certain kinds of access (so long as the government isn’t constitutionally required to provide access to its record systems, it can require those seeking records to accept certain conditions in exchange for access). I explain why this approach is constitutional here. Unless something is done about the problem, people will lose the ability to expunge information from their records or to readily fix errors. Private companies are becoming one of the primary distributors of public records, and when they take on this role, they are often thwarting the existing balance the law establishes between privacy and open records.

Booker and Blakely Issues are Not Dead

Reports of the death of Blakely and Booker in Michigan are greatly exagerated. After the Michigan Supreme Court’s ruling in People v. Drohan, 475 Mich. 140, 715 NW2d 778 (2006) , many practitioners are now regarding the Blakely/Booker issue as “dead” in Michigan. ( Blakely v. Washington, 542 U.S. 296; 124 S Ct 2531; 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220; 125 S Ct 738; 160 L.Ed.2d 621 (2005)). In fact, the issue is far from dead; practitioners should continue to raise these issues.

First, the Michigan Supreme Court has acknowledged that indeterminate sanction cases are still subject to a potential Blakley/Booker challenge. In the post-Drohan ruling of People v Axley, Supreme Court No. 131108 four members of the Court acknowledged that this issue was still open. Justices Young and Corrigan stated that Axley was not the appropriate case to consider this issue. Justices Cavanaugh and Kelly stated that the would hear the case and Justice Markman wrote:

I dissent and would instead remand this case to the Court of Appeals for consideration as on leave granted. This case squarely raises the question whether, and to what extent, the United States Supreme Court’s decision in Blakely v Washington, 542US 296 (2004), applies to Michigan’s intermediate sentencing guidelines scheme. MCL 769.34(4)(a). The trial court based its sentencing departure on facts that were not part of defendant’s criminal history, admitted by defendant, or proven to a jury beyond a reasonable doubt. Thus, this case presents an appropriate vehicle for determining whether, when the guidelines call for an intermediate sanction, Blakely precludes the imposition of a prison sentence based on such other facts.

Second, this week, Cunningham v. California was argued before the United States Supreme Court. Here is a link to the the Oral argument transcript . According to the summary of the oral arguments on the SCOTUS blog, the Court may well use this case as an opportunity to rule broadly on state guideline sentencing systems generallly. Professor Berman’s blog reaches a similar conclusion.