Increased sentences post-Booker

In this post late last night discussing post-Booker sentencing anecdotes, I noted the story of US District Judge Randy Crane using his new discretion to extend the prison terms of three officials charged with accepting bribes.  I also noted that, as detailed in this post, I am not sure due process principles permit a post-Booker sentence increase based on pre-Booker conduct.

Thanks to Peter Henning at White Collar Crime Prof Blog, I now see that the US Attorney’s Office in Houston (S.D. Tex.) has issued a press release bragging about these increased sentences.  Peter spotlights the due process issues raised by the case in his post, but the press release now has me thinking about prosecutorial ethics and future Justice Department representations about advisory guidelines:

First, though some comments to my prior post suggest that the due process question is contestable, I must wonder out loud if individual prosecutors have an obligation to make an independent judgment (and not wait for a defense objection) about whether the law allows an increase in a post-Booker sentence based on pre-Booker conduct.  Relatedly, in the name of consistency, I wonder if Main Justice should issue some sort of directive about this matter to its offices.  Otherwise I could imaging varying legal and policy judgments from different US Attorneys Offices about whether to try to reopen and seek longer sentences in past-sentenced cases.

Second, I would bet that DOJ is keeping stats on how many sentences are being imposed below the guideline range now that the guidelines are advisory.  I hope DOJ will also track, and be sure to publicly highlight, in how many cases judges expressed an interest in going higher than the guidelines.  More generally, though DOJ might be heard to complain that, because of due process limits, advisory guidelines are a one-way ratchet for cases in the pipeline, I hope they will also always acknowledge going forward that advisory guidelines may lead to tougher sentences at least in some cases.

UPDATE: Peter Henning at White Collar Crime Prof Blog has now added some additional terrific insights about these issues here, and he notes that they issues are “particularly important in white collar crime cases because the pressure for an upward sentence … will be greater in the area of public corruption and corporate/business crime (e.g. accounting, securities, bank, & insurance fraud) than in other prosecutions.”