A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

JUDICIAL DISCRETION UNDER SENTENCING REFORM ACT

The SUPREME COURT OF THE UNITED STATES has decided the matter of WILLIAM FREEMAN, PETITIONER v. UNITED STATES, No. 09–10245, on WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT (June 23, 2011). JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG,JUSTICE BREYER, and JUSTICE KAGAN join. JUSTICE SOTOMAYOR concurred. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.

Click for Opinion 09-10245

The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., which created the Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing, allows retroactive amendments to the Guidelines for certain cases. When a retroactive Guideline amendment is adopted, 18 US Code §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence. The question in this case was whether a defendant who entered into a plea agreement under Fed. R. Crim. Proc. 11(c)(1)(C), which recommend a particular sentence as a condition of the guilty plea, may still be eligible for relief under §3582(c)(2).

In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guidelines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction. Accordingly, Justice Kennedy wrote, “There is no reason to deny §3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.”

CONFRONTATION CLAUSE

The SUPREME COURT OF THE UNITED STATES has decided the case of DONALD BULLCOMING, PETITIONER v. NEW MEXICO, on WRIT OF CERTIORARI TO THE SUPREME COURT OFNEW MEXICO, No. 09–10876 (June 23, 2011). JUSTICE GINSBURG delivered the opinion of the Court.

Click for Opinion 09-10876

In Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009), the Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment’s Confrontation Clause. The report had been created specifically to serve as evidence in a criminal proceeding. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.

In this case, petitioner Bullcoming was arrested on charges of driving while intoxicated. The principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements.

The question presented was whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The Court held that surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist . To quote Justice Ginsburg, “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.”

Because the New Mexico Supreme Court permitted the testimonial statement of one witness, to enter into evidence through the in-court testimony of a second person, the Court reversed that judgment.

BURT ROSE RECEIVED THIS RESPONSE AS TO PRACTICE IN PHILADELPHIA

Dear Burt:

I read your summary of the Supreme Court’s decision in Bullcoming. In Philadelphia, the procedure does not rely on an analyst or technician to issue a certification. Rather, the expert who testifies relies on data and printouts to render his opinion. Interestingly and surprisingly, there are not five justices who hold the procedure in Philadelphia violates a defendant’s Confrontation Clause rights. There were four dissenting justices and Justice Sotomayor wrote a concurring opinion. In it she wrote the following: “Finally, this is not a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph. The State here introduced Caylor’s statements, which included his transcription of a blood alcohol concentration, apparently copied from a gas chromatograph printout, along with other statements about the procedures used in handling the blood sample. See ante, at 10; App. 62 (“I certify that I followed the procedures set out on the reverse of this report, and the statements in this block are correct”). Thus, we do not decide whether, as the New Mexico Supreme Court suggests, 226 P. 3d, at 10, a State could introduce (assuming an adequate chain of custody foundation) raw data generated by a machine in conjunction with the testimony of an expert witness. See Reply Brief for Petitioner 16, n. 5. This case does not present, and thus the Court’s opinion does not address, any of these factual scenarios.”

The Criminal Justice Section Student Research Center is open to help you in your court appointed and CJA cases. The hours of operation are Monday through Thursday from 9 a.m. to 3 p.m. The SRC, located in Room 303 of the Criminal Justice Center (The Jack Meyer’s lawyer’s lounge), offers free case law research for court appointed and CJA counsel. The research is provided by law students from local area law schools. Attorneys wishing to request research assistance on a court appointed case can do so either by visiting the lawyer’s lounge directly and meeting with a law student in person or they may submit a research request online at http://www.philadelphiabar.org/page/CJResearch?appNum=1. To make sure a law student will be available for your project, first contact the lounge at 3-7538 or 3-7539 (CJC internal only) or phillysrc1@gmail.com to check student availability.

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