Judges Kopf and Battailon clash over post Booker pre-sentencing reports

Disagreement between Nebraska Federal District Judges highlights probable Scotus review over use of presentencing reports following Booker decision By KEVIN O'HANLON / The Associated Press A disagreement between two federal judges in Nebraska over how to sentence criminals reflects a widening nationwide rift among judges, prosecutors and defense lawyers after the January US Supreme court decision Booker v United States. U.S. District Judges Joseph Bataillon of Omaha and Richard Kopf of Lincoln have filed disparate opinions regarding January’s high court ruling that struck down part of the nearly two-decade-old federal sentencing system.Justice Antonin Scalia predicted at the time that the ruling would “wreak havoc on federal district and appellate courts.” Douglas Berman, an Ohio State University law professor and sentencing expert, said judges across the nation are grappling with the ruling but that “we haven’t seen two opinions like this that are so dramatic in staking out their different approaches.” Prof Berman goes about Judge Battailon's maverick approach: "Judge Joseph Bataillon (who sits in Omaha) last week issued a significant decision on due process and burdens of proof in US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which he decided that he should not base "any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt." At issue is the degree of proof needed for evidence as a basis for increasing a defendant’s recommended sentence under the federal guidelines. Congress adopted the guidelines to make sure that sentences do not vary widely from judge to judge. The system assigns points to offenders based on a complicated formula that considers a crime’s severity, the defendant’s criminal history and other factors to determine the length of sentence. The high court said judges had been improperly adding time to criminals’ sentences. The ruling grew out of the court’s 2004 decision that juries — not judges — should consider factors that can add years to prison sentences. Blakely v Washington. The court said judges should consult the guidelines in determining sentences — but only on an advisory basis. But it did not clearly state what standard of proof must be satisfied to increase a defendant’s sentence. Bataillon issued his order last month in a case involving a man, Adu-Ansere Kwame Okai, who pleaded guilty to two charges in a counterfeiting case. Prosecutors and a presentence report offered information beyond what was stated in the charges to which Okai pleaded guilty. The report said the amount of fraud was over $14,000 and that he got the counterfeit bills outside of the United States — factors that would allow his sentence to be increased under the guidelines. Bataillon refused to increase the sentence. “The presentence report is not evidence and is not legally sufficient for making findings of fact on contested issues,” he said. “It can never be ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt.” Reasonable doubt “is generally termed as something more than a preponderance of the evidence but less than an absolute certainty,” according to legal dictionaries. In a memorandum Kopf had filed this week in all of his pending criminal cases, he outlined what he called “the legal weakness” of Bataillon’s ruling. Judge Kopf's brief memorandum, which pulls no punches, can be downloaded below. Here are some highlights:

In the non-death-penalty context, I respectfully disagree with [Judge Bataillon's]
 assertion that the Fifth Amendment requires a judge to find facts beyond a
reasonable doubt when sentencing a defendant who has been previously found guilty
after a trial or a plea that complies with Constitutional requirements. 
Nothing in Booker, Blakely, or Apprendi compels or justifies such an assertion.
Indeed, one need only read the cases Judge Bataillon cites to recognize the
legal weakness of his views. Once the ordinary criminal has been found guilty by
plea or trial that complies with the Constitution, there is no applicable precedent
for cloaking an undisputably guilty person with the Constitutional protections
intended for the innocent. If the Fifth Amendment is to be expanded beyond any
currently recognized legal boundaries, that decision should be left to the
Court of Appeals or the Supreme Court, bodies far better suited than
individual district judges to "discovering" new Constitutional rights. Booker
and its (tangled) predecessors do not provide a legitimate invitation for district
 judges to implement their personal policy views about proof standards.
See, e.g., United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc)
 ("Nothing in Booker suggests that sentencing judges are required to find sentence
-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime.").
In the end, and while what Judge Bataillon proposes may be good policy (although I
doubt it), his newly discovered Constitutional right to "proof beyond a reasonable
doubt" at sentencing is like the mythological chimera (a fire-breathing she-monster
 with a lion's head, a goat's body, and a serpent's tail).  It is the product of an
agile mind, but it has no claim to the here and now.
Bermansaid he expected the issue to eventually reach the U.S. Supreme Court.
And apparently is excited about throwing the federal criminal justice
system into utter turmoil.