Amicus Curiae Brief — Thurston v. United States

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JUL 19 2004

No. 03-1670 —

IN THE

Supreme Court of the Anited States

WILLIAM THURSTON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF OF AMICI CURIAE FEDERAL DEFENDER

OFFICE FOR THE DISTRICT OF MASSACHUSETTS,

CRIMINAL JUSTICE ACT BOARD AND NATIONAL

ASSOCIATION OF FEDERAL DEFENDERS

IN SUPPORT OF PETITIONER

JUDITH H. MIZNER

FEDERAL DEFENDER OFFICE FOR THE

DISTRICT OF MASSACHUSETTS

408 Atlantic Avenue

Boston, MA 02110

(617) 223-8061

For Federal Defender Office for the

District of Massachusetts

CHARLES W. RANKIN

RANKIN & SULTAN

One Commercial Wharf, North

Boston, MA 02110

(617) 720-0011

For Criminal Justice Act Board

— Additional Counsel listed on the inside cover —

Dated: July 19, 2004

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

CAROL BROOK

NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS

P.O. Box 22223

Nashville, TN 37202

For National Association of Federal

Defenders

TABLE OF CONTENTS

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STATEMENT OF INTEREST OF THE AMICI

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INTRODUCTION AND SUMMARY OF

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I. THIS CASE RAISES IMPORTANT

QUESTIONS CONCERNING THE

NATURE AND SCOPE - OF

APPELLATE REVIEW OF DEPAR-

TURE DECISIONS UNDER THE

UNITED STATES SENTENCING

SPRING chasinpiennsnivdsansdiscanscdiccessnes 4

A. De Novo Review of a District

Court’s Departure Decision

Requires Some Degree of

Deference to a Sentencing

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B. The Statutory Construction

of the Court of Appeals

Raises Separation of Powers

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ii

TABLE OF AUTHORITIES

CASES:

Buford v. United States,

SSG SF D.. S Gay hatiissncdiestsanecissiinom 3, 8-9, 10

Cooper Industries v. Leatherman Tool,

SOB CR. EG Gee sen teaceatosshenctissntatasineeninzes 12

Cooter & Gell v. Hartmax Corp.,

496 UF, Be Ge Shas co dksbecappctasesttulsiasnntionns 10

In re Rasbury v. IRS, 24 F.3d 159

(2 2 Clee, FRPRPOE. auncckusbitnusscensiebanisisdamacnenss 12-13

Koon v. United States,

518 UB. Bil Gee inticikaisepeseticsenticss 3, 4, 8, 9n

Mistretta v. United States,

466 U.S. TEAK CRG cckesiasctbadpsntnatousiixctsisescsts 12

Northern Pipeline Construction Co. v.

Marathon Pipe Line Co.,

4358 UB, Sip Gee sais iateekcdeviisssovssiewrescteseses 12

Ornelas v. United States,

S17 U.S. GRP Gee ketdesvstahssainsiesiidvccssiaane S, ti

United States v. Raddatz,

447 UD GE (Ie capi ei nkisstntlanitiivsensbiaetacsen 6

United States v. Thurston, 358 F.3d 51

(1% Cir. DGS sncccscscintinmeieiebiaitaess a, 4, 141,33

United States v. Wells, 519 U.S. 482 (1997) ........... 11

CONSTITUTIONAL PROVISIONS, CODES AND RULES:

United States Constitution

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United States Code

18 U.S.C. 8 SOOGA. ......00000000000. Litisavaiencabenies 1

18 U.S.C. § 3742Zle) ...........cec000 iiiaetaias passim

18 U.S.C. § 3742(e)(3) ..........ccereecreeeeserseennnaes 4

18 U.S.C. § 3742(e)(3)(iii) 2... eceseseseeeeeeeeneeeee 11

United States Sentencing Guidelines

U.S.S.G. § 1A1.1,

Editorial Note, Part A 4 (b) .......:cceee 7

Re NNN aisowrnvesenssnnvesasusisnnes 6

a csssnexenscresxancskenncndends 7

I I oc cesnasancssencnsnssssanraess 7

Supreme Court Rules

Rutle 37.2 .....ccsscccccccssccccccececssscsscscsccccsscees ln, 2

I I pis aminnannasensente teas ln

STATEMENT OF INTEREST OF THE AMICI CURIAE!

The Federal Defender Office for the District of

Massachusetts provides legal representation for indigent

defendants charged with federal crimes in the District of

Massachusetts. The defense services are rendered by

court appointment under the Criminal Justice Act, 18

U.S.C. § 3006A.

The Criminal Justice Act (“CJA”) Board consists of

ten attorneys appointed by the United States District

Court for the District of Massachusetts to advise the

District Court on issues relating to implementation of the

Criminal Justice Act Plan of 1993. The CJA Board

presents educational programs on federal criminal

defense practice in order to guarantee that indigent

defendants are well-represented. The CJA Board solicits

and reviews applications from attorneys who wish to

receive appointments under the Criminal Justice Act.

The National Association of Federal Defenders

(“NAFD”), is a nationwide, non-profit, volunteer

organization whose membership includes attorneys and

support staff of the Federal Defender Offices. The NAFD

was formed in 1995 to enhance the representation

provided under the Criminal Justice Act and the Sixth

Amendment to the United States Constitution. One of

the NAFD’s missions is to file amicus curiae briefs to

ensure that the position of indigent defendants in the

criminal justice system is adequately represented.

From time-to-time, the Federal Defender Office,

the CJA Board and the NAFD express their views on

issues of concern to the indigent defense bar, the defense

bar as a whole, and indigent defendants.

LLL CN: AL EAL, il

1 Pursuant to Rule 37.2 of the Rules of this Court, letters of

consent to the filing of this brief have been submitted to the Court.

Pursuant to Rule 37.6 counsel for the amici state that no counsel for

either party to this matter authored this brief in whole or in part.

Furthermore, no persons or entities, other than the amici,

contributed monetarily to the preparation or submission of this brief.

em eee

2

Review of sentencing decisions under the United

States Sentencing Guidelines is a question of exceptional

importance to the federal sentencing process. As

attorneys representing individuals charged with federal

offenses, amici have a substantial interest in how the

changes in the standard of review of district court

sentencing decisions wrought by § 401(d) of the

PROTECT Act (Prosecutorial Remedies and Tools Against

the Exploitation of Children Today Act, Pub.L.108-21)

(codified at 18 U.S.C. § 3742(e)) will be interpreted and

applied. The Federal Defender Office in Massachusetts

and the CJA Board participated in the proceedings in the

court below, filing an amicus curiae memorandum in

support of petitioner William Thurston’s petition for

panel rehearing and rehearing en banc addressing, inter

alia, the question of the meaning of the de novo standard

of review required by § 401(d).

Pursuant to Rule 37.2 of the Rules of this Court,

amici curiae respectfully submit this brief in support of

the petition for a writ of certiorari filed by William

Thurston, in Case Number 03-1670.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This petition raises important questions

concerning the nature and scope of appellate review

under section 401(d} of the PROTECT Act (codified at 18

U.S.C. § 3742(e)). That provision changed, inter alia, the

standard of appellate review of a district court’s decision

to depart from the otherwise applicable sentencing

guideline range from abuse of discretion to de novo. The

court below held that the de novo review imposed by the

PROTECT Act precludes any deference to district court

findings or conclusions save “findings of historical fact”

(United States v. Thurston, 358 F.3d 51, 77 (1% Cir. 2004).

The court of appeals also afforded no weight to the

district court’s finding that defendant’s good works were

3

the most extraordinary it had seen in over fourteen years

of sentencing criminal defendants (id., at 79). Amici

suggest that such determinations have an impact on

every appeal in a criminal case raising issues of

departures from the guidelines, that they were wrongly

decided and that they should be reviewed by this Court.

De novo appellate review of departures under the

United States Sentencing Guidelines does not preclude

any and all deference to the district court’s application of

the guidelines to the facts of the case. Rather,

recognition of the “special competence” and “institutional

advantages” of the district court in the sentencing arena,

described by this Court in cases such as Koon v. United

States, 518 U.S. 81 (1996) and Buford v. United States,

532 U.S. 59 (2001), mandates that the de novo review

standard be construed in this context as affording some

deference to the district court’s application of the

guidelines to the facts. Departure decisions are not only

fact-intensive, but require comparisons based on a body

of knowledge and experience within the particular

expertise of the district court.

Construing de novo review as requiring the

appellate court to ignore the expertise of the district

court would also violate the separation of powers

doctrine.

4

ARGUMENT

I, THIS CASE RAISES IMPORTANT QUESTIONS

CONCERNING THE NATURE AND SCOPE OF

APPELLATE REVIEW OF DEPARTURE

DECISIONS UNDER THE UNITED STATES

SENTENCING GUIDELINES.

A. De Novo Review of a District Court’s

Departure Decision Requires Some

Degree of Deference to a Sentencing

Court’s Expertise.

The PROTECT Act (Pub.L. 108-21) amended 18

U.S.C. § 3742(e)(3) and the paragraph of that subsection

addressing the standard of appellate review. While

continuing to direct the court of appeals to give “due

regard” to district court credibility judgments and to

accept the district court’s findings of fact unless clearly

erroneous, the amendment changed the standard of

review for evaluating the propriety of the bases for a

departure. The section now instructs the court of

appeals to “review de novo the district court’s application

of the guidelines to the facts” in assessing the district

court’s determination that a departure is based on an

appropriate factor or that it is justified by the facts of the

case. Prior to the amendment, the court of appeals was

to give “due deference to the district court’s application

of the guidelines to the facts” — a standard held by this

Court to be abuse of discretion. See, Koon v. United

States, 518 U.S. 81 (1996).

The court of appeals held that the de novo review

required by the PROTECT Act amendment to 18 U.S.C.

§ 3742(e) precluded any deference to a district court’s

finding or conclusion other than to a finding of historical

fact (United States v. Thurston, supra, 358 F.3d at 77).

Accordingly, the court of appeals gave no deference to

the district court’s conclusion, based on the court’s more

than fourteen years of sentencing defendants, that a

5

downward departure for defendant’s exceptional good

works was warranted based on “a record of charitable

work and community service [,which is] unique,

extensive and extraordinary”. Indeed, the district court

concluded that in his “over fourteen years of sentencing

defendants, . . . no one had a more extraordinary

devotion to charitable work, community service and

especially . . . to his church” (id., at 79). Instead of

focusing on the nature of defendant’s conduct and

evaluating it in the context of the conduct of other

defendants, the court of appeals focused on the purpose

of the sentencing guidelines to equalize the punishment

for “blue collar” and “white collar” crime and defendant’s

status as a “white collar” criminal to conclude that

defendant’s good works were not exceptional.

Amici submit that this interpretation and

application of the scope of de novo review is

impermissibly restrictive, ignoring the expertise and

special competence of the district court and prior

decisions of this Court.

This Court has made clear that a de novo

standard of review does not flatly preclude any and all

circuit court deference to a district court’s application of

law to the facts of the case. Ornelas v. United States, 517

U.S. 690 (1996) held that ultimate questions of

reasonable suspicion and probable cause for warrantless

‘searches should be reviewed de novo. Yet, in explaining

how this de novo review is to be effected, this Court

stated:

We therefore hold that as a general matter

determinations of probable cause should

be reviewed de novo on appeal. Having

said this, we hasten to point out that a

reviewing court should take care both to

review findings of historical fact only for

clear error and to give due weight to

inferences drawn from those facts by

6

resident judges and local law enforcement

Officers.

A trial judge views the facts of a particular

case in light of the distinctive features and

events of the community; likewise, a police

officer views the facts through the lens of

his police experience and expertise. The

background facts provide a context for the

historical facts, and when seen together

yield inferences that deserve deference... .

The background facts, though rarely the

subject of explicit findings, inform the

judge’s assessment of historical facts.

Id., 517 U.S. at 699-700. Thus, Ornelas makes clear

that even under de novo review, an appellate court must

give some deference to conclusions based upon the

background experience and expertise of the district court

(as well as, in search situations, to the police officer)

whose conclusions are under review.

In United States v. Raddatz, 447 U.S. 667 (1980)

this Court analyzed a provision of the Federal

Magistrates Act addressing referral of a suppression

motion to a magistrate. While the district court was

required to make a de novo determination of a

magistrate’s report, findings and recommendations

where objections are made, this Court concluded that in

making that de novo determination the district court

could place whatever reliance it “in the exercise of sound

judicial discretion, chose to place on a magistrate’s

proposed findings and recommendations.” (id., at 676.)

Review of departures under the United States

Sentencing Guidelines is, like determinations of probable

cause, an area where some deference to the findings and

conclusions of the district court is essential. Departure

jurisprudence is, as the applicable guidelines provisions

show, inherently fact intensive. U.S.S.G. § SK2.0(a)(1)

authorizes departures from the applicable guideline

ee aT ee ee

|

7

range, generally, where there exists an aggravating or

mitigating circumstance

of a kind, or to a degree, not adequately

taken into consideration by the Sentencing

Commission in formulating the guidelines

that, in order to advance the objectives set

forth in 18 U.S.C. § 3553(a)(2), should

result in a sentence different from that

described.

Section 5K2.0(a)(3) provides that a departure

may be warranted in an exceptional case,

even though the circumstance that forms

the basis for the departure is taken into

consideration in determining the guideline

range, if the court determines that such

circumstance is present in the offense to a

degree substantially in excess of, or

substantially below, that which ordinarily

is involved in that kind of offense.

And § 5K2.0(a)(4) provides that a circumstance in the

offender characteristics section of the guidelines or

elsewhere identified “as not ordinarily relevant in

determining whether a departure is warranted may be

relevant to this determination only if such offender

characteristic or other circumstance is present to an

exceptional degree.”. The Background following the

application notes recognizes the “integral function” of

departures in the sentencing guideline system. As stated

in U.S.S.G. § 1Al.1, Editorial Note, Part A 4 (b),

discussing departures:

The Commission intends the sentencing

courts to treat each guideline as carving

out a “heartland”, a set of typical cases

embodying the conduct that each guideline

describes. When a court finds an atypical

case, one to which a particular guideline

linguistically applies but where conduct

8

significantly differs from the norm, the

court may consider whether a departure is

warranted.

These departure provisions require a comparative

and evaluative analysis. To determine whether a

circumstance is “exceptional”, “atypical” or “significantly

differs from the norm” the district court must not only

make findings concerning the conduct of the defendant

being sentenced, but place that conduct in the context of

the conduct of other defendants and, perhaps, the

broader population to determine whether, evaluating

such information and circumstances, a departure is

warranted.

Therefore, whether a particular situation is

sufficiently “exceptional” to warrant a departure is not a

decision made solely on the basis of abstract legal

principles and standards; the facts of the particular case

and the district court’s background knowledge and

experience are pivotal to the decision. See, e.g., Koon v.

United States, 518 U.S. 81, 99-100 (1996) (“The relevant

question, however, is not... ‘whether a particular factor

is within the “heartland” as a general proposition, .. .,

but whether the particular factor is within the heartland

given all the facts of the case.”) The amendment to 18

U.S.C. § 3742(e) requiring the court of appeals to

determine whether a sentence outside the applicable

guideline range is “justified by the facts of the case”

plainly requires a fact-bound determination.

This Court has recognized the “institutional

advantages” and “special competence” of the district

court in making determinations under the sentencing

guidelines. See, e.g., Koon v. United States, supra, 518

U.S. at 98-99 (departures “embod|[y] the traditional

exercise of discretion by a sentencing court” and call for

a district court to make “a refined assessment of the

many facts bearing on the outcome, informed by its

vantage point and day-to-day experience in criminal

sentencing”); Buford v. United States, supra, 532 U.S. at

9

64-65 (relationship of cases for purposes of career

offender guideline is an area where district courts have

special competence). On the front lines, district courts

see many more sentencing guidelines cases than do

courts of appeals. Because district court judges have

experience in sentencing that appellate court judges

ordinarily lack, they are in a far better position to know

whether a departure factor truly applies to a defendant,

whether circumstances are exceptional or significantly

different from the norm. Of course, district court judges

are not infallible — trial judges commonly say that

sentencing is the most difficult part of a difficult job —

but their front-line experience gives their judgment a

context that appellate judges lack. In addition, district

court judges are, on the whole, far better informed about

sentencing than are circuit judges. They attend

sentencing institutes, speak about sentencing at legal

education programs for lawyers and probation officers,

and, perhaps most important, share public-record

information about their cases with their colleagues.

In contrast, the courts of appeals generally see

only those cases in which a departure has been granted

and the government has chosen to appeal, primarily a

limited subset of cases deemed extraordinary by the

district courts.2 District courts, therefore, have a vastly

broader range of experience for assessing the exceptional

or outside the heartland circumstance, an experience

2 Again, as this Court stated in Koon, supra, 518 U.S. at 98-

99:

Whether a given factor is present to a degree not

adequately considered by the Commission, or

whether a discouraged factor nonetheless justifies

departure because it is present in some unusual or

exceptional way, are matters determined in large

part by comparison with the facts of other

Guidelines cases. District courts have an

institutional advantage over appellate courts on

making these sorts of determinations, especially as

they see so many more Guidelines cases than

appellate courts do.

10

which, even under a de novo review standard, should be

respected, not ignored.

Yet, the First Circuit’s construction of the de novo

standard of review set out in the PROTECT Act

amendments to 18 U.S.C. § 3742(e) would completely

reject that experience as irrelevant.

Not only does the district court have expertise

which should be recognized, but decisions resolving fact-

intensive determinations provide comparatively less

future guidance than those resolving questions and

principles of law. As this Court stated in Buford v.

United States, supra, 532 U.S. at 65-66, in imposing an

abuse of discretion standard for appellate review of a

district court’s determination as to whether prior

convictions were related for purposes of the career

offender guideline:

Nor is that question readily resolved by

reference to general legal principles and

standards alone. Rather, the question at

issue grows out of, and is bounded by,

case-specific detailed factual circum-

stances. And the fact-bound nature of the

decision limits the value of appellate court

precedent, which may provide only

minimal help when other courts consider

other procedural circumstances, other

state systems, and other crimes.

See also, Cooter & Gell v. Hartmax Corp., 496 U.S. 384,

404 (1990) noting that the more fact-intensive the

question, the less the value of appellate court precedent.

Respect for the Congressional imposition of a de

novo standard of review does not require the draconian

interpretation utilized by the court below. Standards of

review are not a matter of black and white, bright-line

distinctions. Rather, they fall along a spectrum gradated

by the nature of the issue in question. While the

PROTECT Act’s de novo standard certainly requires

11

increased scrutiny of some sentencing departures, this

Court’s precedent dictates that the sentencing judge’s

conclusions that a departure is justified is still entitled to

considerable respect. Indeed, Congress, in using the

term “de novo” in the PROTECT Act is deemed to have

the Ornelas analysis in mind. As this Court has said,

“we presume that Congress expects its statutes to be

read in conformity with this Court’s precedents|.]”

United States v. Wells, 519 U.S. 482, 491, 495 (1997)

(omitting citation).

In this case, the failure to afford any deference to

the district court’s findings was exacerbated by an overly

restrictive view of what constitutes a finding of fact. 18

U.S.C. § 3742(e) instructs the court to “accept the

findings of fact of the district court unless they are

clearly erroneous.” Nonetheless, the court of appeals

limited that acceptance to what it called “historical facts”

(Thurston, supra, 358 F.3d at 77). It distinguished its

limited universe of fact from what it characterized as an

ultimate conclusion — “whether a defendant’s good

works are ‘exceptional.” (id.). Accordingly, it gave no

deference or weight to the district court’s determination

that defendant’s good works were the most extraordinary

the court had seen in over fourteen years of sentencing

criminal defendants (id., at 79). Amici suggest that for

purposes of reviewing the justification for a departure

based on a determination that defendant’s conduct was

“exceptional”, the district court’s determination was a

finding of fact within the meaning of the statute.

Moreover, it was the type of comparative evaluation at

the heart of determining whether a departure is

warranted, placing the defendant’s conduct in the

context of that of other defendants. It should not have

been ignored in reviewing whether the departure was

justified by the facts of the case under 18 U.S.C.

§ 3742(e)(3) (iii).

12

B. The Statutory Construction of the Court

of Appeals Raises Separation of Powers

Concerns.

To construe the Congressional imposition of de

novo review as precluding any deference to the findings

of the district court raises separation of powers

concerns. Sentencing is primarily a judicial function, the

resolution of a “case” or “controversy” entrusted to the

judiciary under Article III of the United States

Constitution. Removing from the judiciary the authority

to determine how that central function will be performed

constitutes unwarranted encroachment by the legislative

branch. “The constitutional system of checks and

balances is designed to guard against ‘encroachment or

agerandizement’ by Congress at the expense of the other

branches of government.” Northern Pipeline Construction

Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83 (1982)

(Bankruptcy Reform Act grant of jurisdiction to

bankruptcy judges violated Article III of the

Constitution). This Court has expressed its intent to

ensure “that no provision of law ‘impermissibly threatens

the institutional integrity of the Judicial Branch”

(Mistretta v. United States, 488 U.S. 361, 383 (1989)). In

Mistretta, supra this Court rejected a separation of

powers challenge to the United States Sentencing

Guidelines in part because the Sentencing Commission

is located in the judicial branch of the United States

government, noting that had the executive been

delegated authority to promulgate the guidelines the

answer might have been different and quoting 1977

testimony of a Department of Justice official that “[i]f

guidelines were to be promulgated by an agency outside

the judicial branch, it might be viewed as an

encroachment on a judicial function.” (id., at 391, n.17).

Whether labeled procedural or substantive, a

standard of review can determine the result of a case.

See, e.g., Cooper Industries v. Leatherman Tool, 532 U.S.

424, 441 (2001); In re Rasbury v. IRS, 24 F.3d 159, 167

13

(11% Cir. 1994). Interpreting the de novo standard of

review as a Congressional command precluding any

deference to the expertise, experience and special

competence of the district court in sentencing

encroaches on the judicial function by dictating a

standard of review violative of that which this Court has

deemed necessary to properly effectuate the judicial

function in sentencing.

CONCLUSION

For the foregoing reasons amici respectfully

request that this Court grant the Petition for a Writ of

Certiorari seeking review of the decision of the United

States Court of Appeals for the First Circuit in United

States v. Thurston, 358 F.3d 51 (1st Cir. 2004).

Respectfully submitted,

JUDITH H. MIZNER

FEDERAL DEFENDER OFFICE FOR THE

DISTRICT OF MASSACHUSETTS

408 Atlantic Avenue

Boston, MA 02110

(617) 223-8061

For Federal Defender Office for the

District of Massachusetts

CHARLES W. RANKIN

KANKIN & SULTAN

One Commercial Wharf, North

Boston, MA 02110

(617) 720-0011

For Criminal Justice Act Board

14

CAROL BROOK

NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS

P.O. Box 22223

Nashville, TN 37202

For National Association of Federal

Defenders

Dated: July 19, 2004