DOJ’s post-Booker litigation policies and plans

I learned so much from my all-too-brief San Antonio trip to talk to federal defenders at the National Seminar for Federal Defenders, but perhaps of greatest moment was what I heard about the Justice Department’s litigation policies and plans.  The DOJ details recounted below all come from hearsay reports; but since hearsay is often good enough for federal prosecutors at sentencing, I think it is good enough for me to report on what federal prosecutors are now doing about sentencing.

First, concerning initial sentencings, I heard a report that line prosecutors have generally been instructed (formally? informally?) to seek only within-guideline sentences.  (I also heard, however, that some prosecutors in some districts in some cases have requested above-guideline sentences.)  Given that due process/ex post facto principles may place limits on increasing a post-Booker sentence based on pre-Booker conduct (background/links here), it seems wise for DOJ to generally urge within-guideline sentences for crimes committed before Booker.  But I wonder if this approach will change when sentencings involved only post-Booker criminal conduct.

Second, concerning sentencing appeals, I heard that DOJ official Bill Mercer stated at the recent big Booker event in San Francisco (details here) that there were five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter.  This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness. 

It is quite possible these hearsay reports are a bit off, and I encourage anyone in the know to make any needed clarifications in the comments.