05-3164 WDAR

IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT

____________

UNITED STATES OF AMERICA Plaintiff-Appellee

v.

BRIAN FAYE JEREMIAH Defendant-Appellant

___________

APPEAL FROM THE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

Hon. Robert T. Dawson, U.S. District Judge

No. 2:04CR20012-001

____________

BRIEF FOR APPELLANT AND ADDENDUM

____________

JOHN WESLEY HALL, JR.

1311 Broadway

Little Rock, Arkansas 72202-4843

501-371-9131 / fax 501-378-0888

ForHall@aol.com

Attorney for Appellant

i

SUMMARY AND REQUEST FOR ORAL ARGUMENT

Appellant pled guilty on March 1, 2004, to one count of use of transmitting

information about a minor in violation of 18 U.S.C. § 2425 for using the Internet to

communicate about a sex act with a police officer posing as a minor female.

Appellant was originally sentenced on June 29, 2004, and, at the sentencing,

he orally raised the constitutionality of the U.S. Sentencing Guidelines under Blakely

v. Washington, 542 U.S. 296 (June 24, 2004), so he could seek a sentence below the

guideline range. The District Court denied the motion and sentenced him to 27

months imprisonment, the minimum for his offense level. Appellant appealed, and

this court reversed on May 18, 2005 for resentencing under Booker. United States v.

Jeremiah, 135 Fed. Appx. 3 (8th Cir. May 18, 2005) (unpublished).

On resentencing, Appellant and the government stipulated that, if charged in

state court in Arkansas, Appellant would have received a sentence of five years

probation, 90 days incarceration, and a fine. Appellant moved the District Court to

depart downward and reduce the sentence based on the comparable state sentences

under 18 U.S.C. § 3553(a)(6). The District Court noted the “great disparity,” but

ultimately resentenced Appellant to the same sentence of 27 months.

This is a significant issue of first impression: Are state sentences relevant to

the reasonableness of federal sentences under § 3553(a)(6)? Thus, 15 minutes oral

argument is requested.

ii

TABLE OF CONTENTS

Summary of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The District Court’s failure to consider state court sentences for

the same conduct of similarly situated defendants in the county where

Appellant was arrested was unreasonable under Booker and 18 U.S.C.

§ 3553(a)(6) when the disparity is as great as it is here.. . . . . . . . . . . . . . . . 7

A. Standard of Review – Reasonableness of a Sentence under

18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Same Conduct in State Court Where Appellant Was

Arrested Would Have Resulted in Probation . . . . . . . . . . . . . . 9

C. 18 U.S.C. § 3553(a)(6) Permits State Sentences to be Con-

sidered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. Federal-State Disparities are Relevant When State Sen-

tences Are Constitutionally Excessive . . . . . . . . . . . . . . . . . . 15

E. This Sentence is Unreasonable . . . . . . . . . . . . . . . . . . . . . . . . 16

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

ADDENDUM

Judgment and Commitment (July 29, 2005) . . . . . . . . . . . . . . . . . . . . Add. 1

iv

TABLE OF AUTHORITIES

CASES:

Blakely v. Washington, 542 U.S. 296 (2004) . . . . . . . . . . . . . . . . . . . . . . . i, v, 1, 4

Harmelin v. Michigan, 501 U.S. 957 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 15, 16

Moore v. State, 2005 WL 2138304 (Md. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Booker, 125 S.Ct. 738 (2005) . . . . . . . . . . . . i, iv, 1, 11, 12, 17, 18

United States v. Crume, 2005 WL 2124103 (8th Cir. 2005) . . . . . . . . . . . . . . . vii, 8

United States v. Helder, 05-3387 (8th Cir. pending) . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Jeremiah, 135 Fed. Appx. 3 (8th Cir. 2005) (unpublished) . i, 1, 4

United States v. Killgo, 397 F.3d 628 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . vii, 8

United States v. Lindquist, 2005 WL 2086738 (8th Cir. 2005) . . . . . . . . . . . . vii, 8

United States v. Mashek, 406 F.3d 1012 (8th Cir. 2005) . . . . . . . . . . . . . . . . . vii, 9

United States v. Snyder, 136 F.3d 65 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Wilkerson, 411 F.3d 1 (1st Cir. 2005) . . . . . . . . . . vii, 5, 11, 12, 13

United States v. Winters, 416 F.3d 856 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . vii, 7

U.S. CONSTITUTION:

Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

v

FEDERAL STATUTES:

18 U.S.C. § 2425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, vi, 1, 4

18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

18 U.S.C. § 3553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

18 U.S.C. § 3553(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . i, vi, vii, 1, 2, 5, 6, 8, 10

18 U.S.C. § 3742(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATE LAW:

Ark. Code Ann. § 5-3-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ark. Code Ann. § 5-27-603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ark. Code Ann. § 16-88-101(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ark. Const., Amdt. 80, §§ 7(B) & 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

vi

JURISDICTIONAL STATEMENT

Appellant was charged by information in the Western District of Arkansas for

one count of use of interstate facilities to transmit information about a minor in

violation of 18 U.S.C. § 2425. The District Court had jurisdiction under 18 U.S.C.

§ 3231. Appellant was sentenced originally in 2004, and he preserved and appealed

a Blakely issue that the Guidelines were unconstitutional. This Court remanded on

May 18, 2005 after United States v. Booker, 125 S.Ct. 738 (2005).

At re-sentencing on July 29, 2005, Appellant moved for a downward depar-

ture based on 18 U.S.C. § 3553(a)(6) because the same conduct charged in Arkansas

state court in the same county where Appellant was arrested would have got Appel-

lant a sentence of five years probation, 90 days incarceration, and a fine. On

resentencing, the District Court seemed sympathetic to the argument, and the Court

noted the “great disparity” between the likely state sentence and federal sentence.

Nevertheless, the District Court re-sentenced Appellant to 27 months imprisonment

and 2 years supervised release, the same sentence as before.

This Court has jurisdiction under 28 U.S.C. § 1291 because it involves a final

judgment and commitment of the District Court. The sentence is also appealable

under 18 U.S.C. § 3742(a).

The Judgment was entered July 29, 2005, and the notice of appeal was filed

August 4, 2005. The appeal is timely and properly before this Court.

vii

ISSUES PRESENTED FOR REVIEW

(INCLUDING STANDARDS OF REVIEW)

STANDARDS OF REVIEW

The standard of review of a sentence post-Booker is “reasonableness in light

of [18 U.S.C.] § 3553(a). See United States v. Killgo, 397 F.3d 628, 630-31 & n. 4

(8th Cir. 2005) (explaining that part of Booker’s remedial command requires appel-

late courts to review the sentence for reasonableness).” United States v. Winters,

416 F.3d 856, 859 & n. 4 (8th Cir. Aug. 9, 2005). Accord: United States v. Crume,

2005 WL 2124103, *2 (8th Cir. Sept. 6, 2005); United States v. Lindquist, 2005 WL

2086738, *1 (8th Cir. Aug 31, 2005) (“The proper application of the sentencing

guidelines remains the critical starting point for the imposition of a reasonable

sentence based on the factors of 18 U.S.C. § 3553(a). United States v. Mashek, 406

F.3d 1012, 1016-17 & n. 4 (8th Cir. 2005).”

ISSUES

The District Court’s failure to consider state court sentences for the same

conduct of similarly situated defendants in the county where Appellant was arrested

was unreasonable under Booker and 18 U.S.C. § 3553(a)(6) when the disparity is as

great as it is here.

United States v. Wilkerson, 411 F.3d 1 (1st Cir. 2005)

United States v. Winters, 416 F.3d 856 (8th Cir. 2005)

18 U.S.C. § 3553(a)(6)

Note that the original sentencing was just five days after Blakely was de-1

cided.

1

STATEMENT OF THE CASE

This is an “Internet traveler case” that has already been before this Court and

remanded under Booker. United States v. Jeremiah, 135 Fed. Appx. 3 (8th Cir. May

18, 2005) (unpublished). The issue now is the reasonableness of Appellant’s sen-

tence under 18 U.S.C. § 3553(a)(6).

Appellant pled guilty on March 1, 2004, to one count in an information of use

of transmitting information about a minor in violation of 18 U.S.C. § 2425 for using

the Internet to communicate about a sex act with a police officer posing as a minor

female. Appellant was originally sentenced on June 29, 2004, and, at the sentencing,

he orally raised the constitutionality of the U.S. Sentencing Guidelines under Blakely

v. Washington, 542 U.S. 296 (June 24, 2004), so he could seek a sentence below the1

guideline range. The District Court denied the motion and sentenced Appellant to 27

months imprisonment, the minimum for his offense level.

Appellant appealed to this court, and this court reversed on May 18, 2005 for

resentencing under Booker. United States v. Jeremiah, supra.

On resentencing, Appellant moved for a downward departure based on pertin-

ent state sentences, and Appellant and the government stipulated that, if charged in

state court in Arkansas, Appellant would have received a sentence of five years

2

probation, 90 days incarceration, and a fine. Appellant moved the District Court to

depart downward and reduce the sentence based on the comparable state sentences

under 18 U.S.C. § 3553(a)(6).

The District Court noted the “great disparity,” but ultimately resentenced

Appellant to the same sentence of 27 months. Appellant appeals the sentence for

unreasonableness because of the federal-state disparity for the same conduct.

The nonexistence of an actual minor was not believed to be a defense in2

Appellant’s case. However, a defendant recently prevailed on that issue in the

Western District of Missouri at Springfield where a judgment of acquittal was enter-

ed by Judge Whipple. That case is on appeal to this court. United States v. Helder,

05-3387 (8th Cir. pending; Appellant’s (government’s) brief due October 7, 2005).

Since then, the highest court in Maryland, the Maryland Court Appeals, has

come to the same conclusion. Moore v. State, 2005 WL 2138304 (Md. September 7,

2005).

Two statutes covered this conduct at the time: Attempted rape [sex with a3

person underage and incapable of consent], Ark. Code Ann. § 5-3-201, and computer

child pornography, Ark. Code Ann. § 5-27-603 (the latter not requiring there be

child pornography involved; just computer chatting with a minor about sex makes

the offense).

See Stipulation ¶ 16(c), App. A9. In counsel’s and the state prosecutor’s4

experience, first offenders immediately confess to how stupid they were in doing

what they did.

3

STATEMENT OF THE FACTS

Appellant, living in Van Buren, Arkansas, in the Western District of Arkansas,

near Fort Smith, was caught up in an Internet chat room sting with the North Little

Rock Police in the Eastern District of Arkansas. He thought he was communicating

with a girl under 18, but he was in fact communicating with a police officer. A

meeting for sex was discussed and arranged, and Appellant knew that the alleged

minor was underage.2

Appellant drove from Van Buren to North Little Rock, and he was arrested

when he merely showed up, which completed the crime under Arkansas law. Upon3

his arrest, Appellant promptly confessed to the stupidity of his act. He was origi-4

Appellant also forfeited the pickup truck he was driving, potentially worth5

$20,000.

4

nally arrested by the North Little Rock Police Department, but he was indicted in the

Western District of Arkansas under the PROTECT Act which had a five year man-

datory minimum. His offense date was only a short time after the effective date of

the PROTECT Act.

Appellant was able to negotiate a plea to a non-PROTECT Act offense under

18 U.S.C. § 2425 that eliminated the five year mandatory minimum. Appellant

sought to be sentenced in accord with a Western District of Arkansas child porn case

that was sentenced near the time of his case, but was pre-PROTECT Act, to 15

months. Appellant was sentenced immediately after Blakely was decided (see note

1), and he raised the constitutionality of the Guidelines at his sentencing. Judge

Dawson denied the motion. The Guideline range was 27-33 months, and Judge

Dawson sentenced Appellant to 27 months.5

Because of the Blakely issue, Appellant appealed to this Court, which reversed

on May 18, 2005. United States v. Jeremiah, 135 Fed. Appx. 3 (8th Cir. May 18,

2005) (unpublished).

Re-sentencing was scheduled for July 29, 2005, and Appellant moved for a

downward departure based on comparable sentences in state court for the same

conduct since he was fortuitously charged in federal court instead of state court.

The stipulation included four gradations of the gravity of the state offense6

based on the defendant’s conduct. (App. A8) Appellant would have fallen in the

category with the least exposure, and, thus, would have been able to get a suspended

sentence on a guilty plea in the county where he was arrested and twice appeared in

state court.

Appellant’s counsel again wishes to thank Ms. Jenner, the Assistant U.S.7

Attorney on this case since the beginning, for her continued high professionalism

and cooperation in permitting these facts to be stipulated to rather than bring the

State prosecutor from Little Rock to Fort Smith to be a defense witness at resenten-

cing.

5

(App. A1) Appellant and the government stipulated to the facts Appellant could

prove as to what Appellant’s disposition would be on a guilty plea for the same

conduct in state court where he was arrested: five years probation, 90 days incar-6

ceration, a fine, DNA testing, and no possible expungement. (App. A3-A11)7

At re-sentencing, Appellant argued that 18 U.S.C. § 3553(a)(6) required that

state sentences be considered in determining a reasonable sentence under Booker and

as suggested in United States v. Wilkerson, 411 F.3d 1 (1st Cir. June 9, 2005) (per

Senior Judge Gibson of this Circuit). (App. A1 (motion) & A23-24 (sentencing))

The District Court was genuinely sympathetic to Appellant’s argument, but the

Court ultimately rejected the argument re-sentenced Appellant to 27 months with 2

years supervised release, the same sentence as before.

6

SUMMARY OF THE ARGUMENT

Appellant was first charged with this conduct in Arkansas state court. Instead,

he found himself charged in federal court. By stipulation, Appellant showed that if

his case remained in state court, he would have received a sentence of five years

probation, 90 days incarceration, and a fine.

Under 18 U.S.C. § 3553(a)(6), Appellant submits that the state court sentences

were a relevant factor for the District Court to consider in determining a reasonable

sentence for Appellant. The District Court, although sympathetic to the argument,

rejected it, and sentenced Appellant to 27 months imprisonment.

Appellant submits that his sentence is unreasonable under § 3553(a)(6), and

this Court should reverse and remand for resentencing.

7

ARGUMENT

THE DISTRICT COURT’S FAILURE TO CONSIDER STATE COURT SENTENCES

FOR THE SAME CONDUCT OF SIMILARLY SITUATED DEFENDANTS IN THE COUNTY

WHERE APPELLANT WAS ARRESTED WAS UNREASONABLE UNDER BOOKER AND 18

U.S.C. § 3553(a)(6) WHEN THE DISPARITY IS AS GREAT AS IT IS HERE.

A. Standard of Review – Reasonableness of a Sentence

under 18 U.S.C. § 3553(a)

This Court recently spoke to the standard of appellate review of reasonable-

ness of sentences under 18 U.S.C. § 3553(a) in United States v. Winters, 416 F.3d

856, 859 (8th Cir. August 9, 2005):

[W]e review Winters’s sentence for reasonableness in light of § 3553

(a). See United States v. Killgo, 397 F.3d 628, 630-31 & n. 4 (8th Cir.

2005) (explaining that part of Booker’s remedial command requires

appellate courts to review the sentence for reasonableness). Accord-

ingly, we must review Winters’s sentence with respect to the following

factors:

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the of-

fense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the de-

fendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment

in the most effective manner;

(3) the kinds of sentences available;

8

(4) the kinds of sentence and the sentencing range es-

tablished for—

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines—

. . .

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission . . . .

(6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found

guilty of similar conduct; and

(7) the need to provide restitution to any victims of the

offense.

18 U.S.C. § 3553(a). (footnotes omitted)

The Winters court added, however, that the Sentencing Guidelines cannot be a strict

control or a presumptive sentence because § 3553(a) controls, not the Guidelines:

Applying Winters’s argument, that the range of reasonableness is es-

sentially co-extensive with the Guidelines range, would effectively

render the Guidelines mandatory. We have been directed to review a

sentence for reasonableness based on all the factors listed in § 3353(a)

(6). The Guidelines range is merely one factor. We cannot isolate

possible sentencing disparity to the exclusion of the all the other § 3553

(a) factors.

Id. at 861. In Winters, the appellant was arguing that the District Court should not

have departed upward to sentence him to the maximum for the offense outside the

Guideline range. Under the facts of that case, however, the Court found the maxi-

mum sentence was reasonable. Judge Heaney dissented.

Also applying the reasonableness standard under § 3553(a) are United States

v. Crume, 2005 WL 2124103, *2 (8th Cir. Sept. 6, 2005); United States v. Lindquist,

Under Arkansas law, District Courts (formerly Municipal Courts) lack8

jurisdiction to do anything but first appearances and set bail. Any felony case must

be filed in Circuit Court for final judgment. Ark. Code Ann. § 16-88-101(a)(3). See

also Ark. Const., Amdt. 80, §§ 7(B) & 10.

9

2005 WL 2086738, *1 (8th Cir. Aug 31, 2005) (“The proper application of the

sentencing guidelines remains the critical starting point for the imposition of a

reasonable sentence based on the factors of 18 U.S.C. § 3553(a). United States v.

Mashek, 406 F.3d 1012, 1016-17 & n. 4 (8th Cir. 2005).”

B. The Same Conduct in State Court Where Appellant

Was Arrested Would Have Resulted in Probation

Appellant traveled within Arkansas, from Crawford County about 150 miles

to North Little Rock, where he was arrested by the North Little Rock Police Depart-

ment. Appellant appeared in a weekend bail setting in the Pulaski County (Little

Rock) Jail, and he made a $5,000 bail. He appeared twice after that in the North

Little Rock District Court. (App. A4-A5, ¶ 4) Instead of his case being filed in

Pulaski County Circuit Court, like 50-100 others similarly situated to him (App. A7,8

¶ 15), Appellant was instead indicted federally. (Id. at A6, ¶s 7-9)

This proved to be a massive difference for Appellant. Under Arkansas law,

Appellant’s crime was potentially subject to probation. Through the stipulation of

the parties, Appellant showed that he was similarly situated to three other persons

whose cases were handled by his defense counsel in the eight or so weeks prior to

his re-sentencing who got varying terms of probation of five to seven years, 90-120

The defendants in those cases are named because their cases had pled and9

they had been disposed of in open court.

10

days to serve in the County Jail, and a fine.9

C. 18 U.S.C. § 3553(a)(6) Permits State Sentences to be Considered

Appellant submits that § 3553(a)(6) permits, even requires, federal courts to

consider state court sentences for the same conduct when the defendant is charged in

federal court after having been charged in state court for the same conduct. Appel-

lant submits that a downward departure on this ground is permissible under § 3553

(a)(6) (“The court, in determining the particular sentence to be imposed, shall

consider— [¶] . . . (6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct;

. . . .”) & (b)(2)(A). The latter subsection to § 3553 was added for the PROTECT

Act, and it provides:

(2) Child crimes and sexual offenses.—

(A) Sentencing.—In sentencing a defendant convicted of an

offense under section 1201 involving a minor victim, an offense under

section 1591, or an offense under chapter 71, 109A, 110, or 117, the

court shall impose a sentence of the kind, and within the range, referred

to in subsection (a)(4) unless–

(i) the court finds that there exists an aggravating cir-

cumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the

guidelines that should result in a sentence greater than that de-

scribed;

(ii) the court finds that there exists a mitigating circum-

stance of a kind or to a degree, that–

(I) has been affirmatively and specifically identified as

Note that I and II appear inconsistent, so they have to be alternatives.10

11

a permissible ground of downward departure in the sentencing

guidelines or policy statements issued under section 994(a) of

title 28, taking account of any amendments to such sentencing

guidelines or policy statements by Congress;

(II) has not been taken into consideration by the Sen-

tencing Commission in formulating the guidelines; and[ ]10

(III) should result in a sentence different from that

described; . . . . (footnote added)

Appellant submits that the clear language of § 3553(a)(6) includes state sen-

tences for the same conduct. First, this is a rational interpretation of that provision,

particularly when the Appellant was already charged in state court with the same

conduct and a pattern of dispositions of similarly situated persons is before the court

by factual stipulation. Second, nothing in § 3553(a)(6) precludes this interpretation

at all.

A similar case, suggesting this outcome, but taking no position, decided just

seven weeks prior to Appellant’s resentencing, is the First Circuit decision in United

States v. Wilkerson, 411 F.3d 1 (1st Cir. June 9, 2005).

Wilkerson held that the District Judge in that case noted the disparity between

state and federal sentences but followed a pre-Booker case (United States v. Snyder,

136 F.3d 65, 69 (1st Cir. 1998)) that federal-state disparities were not relevant. In

n.** at that point, the Court said it “express[ed] no opinion at this time about

whether federal-state sentencing disparities may be considered under the post-Book-

The petition is available on the Internet at http://sentencing.typepad.com/11

sentencing_law_and_policy/files/wilkerson_doj_petition_for_rehearing.pdf.

Actually, the government was observing in its footnote “chatter” in com-12

mentary by the defense bar on criminal defense weblogs or “blogs” that it cites in the

petition.

12

er advisory guidelines.” The implication is apparent: pre-Booker, federal-state

sentencing disparities were not relevant under § 3553(a)(6), but post-Booker they

are. If they weren’t, the Wilkinson court would have said so.

Wilkerson, moreover, is more relevant here because the opinion for the major-

ity was written by Eighth Circuit Senior Judge Gibson, sitting on the First Circuit by

designation.

Significantly, the government filed a petition for rehearing in Wilkerson on the

specific issue here, but, according to PACER, the petition was denied on August11

18, 2005, and the mandate issued August 29, 2005.

The petition for rehearing and the court’s denial are telling: The government

sought to have the First Circuit strike any reference to federal-state sentencing

disparity because it discerned a potential trend in this direction that it was seeking to

avoid. Wilkerson, Govt’s Pet. for Reh. at 2-3 & n. 1. By implication, then, the12

denial of the Government’s vehement petition for rehearing underscores the sugges-

tion that federal-state sentencing disparities are indeed relevant in the post-Booker

sentencing world.

Id. at 863:13

Moreover, there is no evidence in this record, nor are there any publicly

available studies or statistics, indicating that a first offender convicted

of manslaughter with a firearm in South Dakota would serve more than

the thirteen to fifteen-year sentence the defendant would have faced

with a Guidelines sentence.

13

Judge Heaney’s dissent in Wilkerson, we submit, also supports this conclu-

sion. Wilkerson, 416 F.3d at 862-63. Judge Heaney was concerned that the District

Court in Wilkerson feared that the defendant would get a lesser sentence under

federal law than state law in South Dakota for manslaughter, but he pointed out that

there was nothing in the record, no evidence or studies of state dispositions, on

which to base that conclusion. 13

To the contrary, we have exactly that here: We have a stipulation and undis-

puted proof that if Appellant’s case had gone to conclusion in the Pulaski County

Circuit Court, the state court with jurisdiction where Appellant was arrested and

thrice appeared in court (including the jail bail hearing), he would have received five

years probation, 90 days in jail, and a fine. Instead, by being fortuitously prosecuted

in federal court, he received 27 months imprisonment. Not once, but twice. At the

time of resentencing, he had already served a year for a crime for which he could

have avoided prison time if the federal government fortuitously had not decided to

apparently make an example out of him.

At the re-sentencing, Judge Dawson seemed sympathetic:

14

THE COURT: Miss Jenner, Mr. Hall, Mr. Hall, I am concerned

not only about the length of the sentence that’s actually issued, but of

the time served. There is a great disparity between federal courts and

state courts. . . . I was at a seminar a couple weeks ago and that was

discussed, but often times the charges can be brought in either state

court or federal court, and I have to work with and determine and de-

cide the cases that are filed here and have nothing to do with the state

court cases, but that is of concern. . . . I understand your point and I’m

concerned about it.

Resentencing Tr. at A21:15-A22:14 (July 29, 2005).

Appellant’s argument continued:

MR. HALL: . . . And my request for the downward departure is to

reduce the sentence to the same as Mr. Goines, 15 months. Leave

everything else the same . . . . [I]n the overall scheme of things cases

sometimes end up in federal court, not state court. And I asked the

[state] prosecutor how many cases do you have? And they said I can’t

tell you. It’s between 50 and a hundred. And our office has handled at

least 10 of them, and we’ve sentenced–and that’s what’s–our stipula-

tion is based on, just the cases we’ve sentenced in the last six weeks,

three cases, two had no aggravating circumstances at all, and that’s just

like Mr. Jeremiah’s case. . . . [One case in Judge Langston’s court]

was a direct recommendation of the prosecutor’s office, five years

probation on a non-aggravating factor, a case almost identical to Mr.

Jeremiah’s. And how the cases end up in federal court, I have no idea.

Why they pick one to go federal and one to go state is beyond me, but

they do, and here we have one man who suddenly gets swept up in the

federal system and gets substantially more time [and] having to go to a

federal correctional institution as well as somebody that goes to Pulaski

County Jail for a while, everybody has to be a registered sex offender,

everybody has to give DNA samples, nobody can get their sentence

expunged. But one goes to jail for 27 months and another one goes for

30 days essentially and that’s a huge disparity and that disparity just

can’t be count[enanc]ed. . . . [W]hether or not you end up in federal

court reminds me of the saying from . . . when they struck down the

death penalty in the early seventies, the Supreme Court did, being sen-

tenced to death is like being struck by lightning. You can’t predict

The transcript twice says “counted,” but Appellant’s counsel clearly re-14

members saying “countenanced.”

15

when it’s going to happen, and it’s just completely arbitrary. And

that’s no offense to the federal government, but how a case gets chosen

for federal prosecution, I don’t know, but, nevertheless, he gets 27

months, somebody in Pulaski County where he went, where he was

arrested, where they brought him by engaging in the conversation, he

would have got 90 days, and that’s a disparity – 30 days to serve, that’s

just a huge disparity and shouldn’t be count[enanc]ed.

Id. at A24:18-A27:23 (bracketed material added).14

D. Federal-State Disparities are Relevant When

State Sentences Are Constitutionally Excessive

In Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001), this Court dealt with an

Eighth Amendment cruel and unusual challenge to an Arkansas life sentence dis-

pensed by a jury for delivery of .238 grams of crack ($20 worth) under Harmelin v.

Michigan, 501 U.S. 957 (1991) (life sentence for possession of 672 grams of crack

not cruel and unusual).

This court engaged in a sensitive balance of the disproportion between the

crime and the sentence, and it concluded that Henderson’s sentence violated the

Eighth Amendment. The court noted the small amount of the drugs involved, his

lack of prior record, the fact he would not be parole eligible, the disposition of

similar crimes in other states, and the fact that, if the case had been prosecuted in

federal court, “Mr. Henderson would receive a sentence of only ten to sixteen

months for his offense, see U.S.S.G. § 2D1.1(a)(3), § 2D1.1(c)(14).” Henderson,

16

258 F.3d at 714.

The fact Henderson would be dealt with much more leniently is relevant to the

reasonableness of his state sentence. A fortiori, should not the state sentence for a

man charged in federal court for the same conduct when his case started in state

court be a relevant consideration under § 3553(a)(6)? The plain language of 3553(a)

(6) permits this construction, and nothing precludes it.

E. This Sentence is Unreasonable

The “reasonableness” standard is well known to appellate courts, and unifor-

mity of sentencing is no longer expected to be the norm under Booker. It may be a

desirable goal, but it cannot be a determinative factor, otherwise, the Guidelines

become mandatory again. As the Supreme Court noted in Booker, 125 S.Ct. at 766-

67:

Nor do we share the dissenters’ doubts about the practicality of a

“reasonableness” standard of review. “Reasonableness” standards are

not foreign to sentencing law. The Act has long required their use in

important sentencing circumstances—both on review of departures, see

18 U.S.C. § 3742(e)(3) (1994 ed.), and on review of sentences imposed

where there was no applicable Guideline, see §§ 3742(a)(4), (b)(4),

(e)(4). Together, these cases account for about 16.7% of sentencing

appeals. See United States Sentencing Commission, 2002 Sourcebook

of Federal Sentencing Statistics 107 n. 1, 111 (at least 711 of 5,018

sentencing appeals involved departures), 108 (at least 126 of 5,018

sentencing appeals involved the imposition of a term of imprisonment

after the revocation of supervised release). [citations omitted] That is

why we think it fair (and not, in Justice SCALIA’s words, a “gross

exaggeratio[n],” post, at 794 (dissenting opinion)), to assume judicial

familiarity with a “reasonableness” standard. And that is why we be-

17

lieve that appellate judges will prove capable of facing with greater

equanimity than would Justice SCALIA what he calls the “daunting pros-

pect,” ibid., of applying such a standard across the board.

Neither do we share Justice SCALIA’s belief that use of a reason-

ableness standard “will produce a discordant symphony” leading to

“excessive sentencing disparities,” and “wreak havoc” on the judicial

system, post, at 795 (internal quotation marks omitted). The Sentenc-

ing Commission will continue to collect and study appellate court

decisionmaking. It will continue to modify its Guidelines in light of

what it learns, thereby encouraging what it finds to be better sentencing

practices. It will thereby promote uniformity in the sentencing process.

28 U.S.C.A. § 994 (main ed. and Supp.2004).

Regardless, in this context, we must view fears of a “discordant

symphony,” “excessive disparities,” and “havoc” (if they are not them-

selves “gross exaggerations”) with a comparative eye. We cannot and

do not claim that use of a “reasonableness” standard will provide the

uniformity that Congress originally sought to secure. Nor do we doubt

that Congress wrote the language of the appellate provisions to corre-

spond with the mandatory system it intended to create. Compare post,

at 791 (SCALIA, J., dissenting) (expressing concern regarding the pres-

ence of § 3742(f) in light of the absence of § 3742(e)). But, as by now

should be clear, that mandatory system is no longer an open choice.

And the remedial question we must ask here (as we did in respect to

§ 3553(b)(1)) is, which alternative adheres more closely to Congress’

original objective: (1) retention of sentencing appeals, or (2) invalida-

tion of the entire Act, including its appellate provisions? The former,

by providing appellate review, would tend to iron out sentencing differ-

ences; the latter would not. Hence we believe Congress would have

preferred the former to the latter—even if the former means that some

provisions will apply differently from the way Congress had originally

expected. See post, at 791 (SCALIA, J., dissenting). But, as we have

said, we believe that Congress would have preferred even the latter to

the system the dissenters recommend, a system that has its own prob-

lems of practicality. See supra, at 762.

In this case, any concept of “reasonableness” dictates that the 27 month sen-

tence in this case is “unreasonable.” Appellant was arrested in North Little Rock,

18

Arkansas, appeared in the state District Court three times, made a state bond, and

then, lo and behold, he finds himself the legal version of being struck by lightning:

He is indicted in federal court for a case that demonstrably and undeniably would get

him five years probation and a short jail sentence in state court because of a lack of

any aggravating factors. Between 50 and 100 men have been prosecuted in Pulaski

County for similar offenses. Some have received prison time, but it is apparent that

Appellant would not have. Instead, he is sentenced to 27 months federal time.

The disparity here is unconscionable: No person should be subject to the

whims of the police end running their state system to federally severely punish a first

time offender with no aggravating circumstances with 27 months when he would

have otherwise gotten probation.

19

CONCLUSION

The judgment of the District Court should be reversed and remanded with

directions to re-sentence Appellant considering the influence of state court sentences

under § 3553(a)(6).

Respectfully submitted,

JOHN WESLEY HALL, JR.

Ark. Bar No. 73047

1311 Broadway

Little Rock, Arkansas 72202-4843

(501) 371-9131 / fax (501) 378-0888

e-mail: ForHall@aol.com

Attorney for Appellant

CERTIFICATE OF COUNSEL

I, John Wesley Hall, Jr. , hereby certify that this document was prepared in

WordPerfect 12, the word count of the body of the brief is less than 4450 words

long and the disk in .pdf format that it is saved on is a new CD-Rom and is virus-

free.

_______________________________

John Wesley Hall, Jr.

CERTIFICATE OF SERVICE

I, John Wesley Hall, Jr., certify that I mailed two copies of this brief and on

CD-Rom to Kyra Jenner, Assistant U.S. Attorney, P.O. Box 1524, Fort Smith,

Arkansas and one copy to Brian Faye Jeremiah, 00600-010, FCI, P.O. Box 7500,

Texarkana, TX 75505-7500 on September 19, 2005.

_________________________

John Wesley Hall, Jr.

ADDENDUM

Judgment and Commitment (July 29, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . Add. 1