The attorney for Rene Boucher has requested the U.S. Supreme Court review a lower court’s ruling reversing the 30-day prison sentence Boucher was ordered to serve after pleading guilty to assaulting his neighbor, U.S. Sen. Rand Paul.
Attorney Matt Baker on Friday filed with the Supreme Court a petition for a writ of certiorari, a legal term used to define a formal request for the high court to order a lower court to send a case up for review.
Boucher, 61, was ordered in U.S. District Court to serve 30 days in prison, pay a $10,000 fine and perform 100 hours of community service after pleading guilty to assaulting a member of Congress.
Federal prosecutors, who requested a 21-month sentence, appealed the sentence stemming from the 2017 tackle of the Republican senator on his property in Rivergreen subdivision in Bowling Green, arguing that the punishment Special Judge Marianne Battani imposed was too lenient.
Earlier this year, a panel of three judges with the U.S. Court of Appeals for the 6th Circuit ruled in favor of the federal government, reversing the 30-day sentence and remanding the case back to Battani for another sentencing hearing.
No date has been set for the resentencing.
The appeals court found that Boucher’s sentence was substantively unreasonable and unjustified in light of the extent of Paul’s injuries from the assault and other factors.
By the time the appeals court issued its ruling, Boucher served his 30-day term in a federal penitentiary in Illinois, paid his fine and completed his community service.
Baker has asked the Supreme Court to consider whether a resentencing hearing violates Boucher’s constitutional rights entitling him to due process under the law and protecting him against double jeopardy.
“Here, (Boucher) has served every bit of a perfectly legal sentence,” Baker said in the petition. “He now faces the horrifying prospect of having to go back to prison to serve an additional sentence for the very same offense to which he pled guilty and accepted his punishment. This is simply intolerable by anyone’s standards of the application of double jeopardy and fundamental principles of due process.”
The petition envisions a scenario in which Boucher is sentenced to a longer term in prison, then the government files another appeal in an attempt to obtain a still harsher punishment, putting Boucher “through the same rigamarole all over again.”
Plea agreements in criminal cases typically include language stating that the defendant gives up their right to appeal when they plead guilty.
Baker argues that the plea agreement in Boucher’s case held that Boucher explicitly gave up his right to appeal, and the government implicitly waived its appeal rights as well.
The plea agreement stated the sentence the government would recommend for Boucher while also allowing for Boucher to argue for any sentence within the range permitted by law for an assault conviction, and both sides should have been legally bound by Battani’s ruling, Baker said.
“A mulligan is sometimes allowed in a game of golf, but it should never, never, ever be permitted when a person’s liberty is at stake – even when the victim is a United States Senator,” Baker said in the petition. “This is about ‘a deal is a deal.’ It’s about fair play. And it’s about square corners. When the government says to the defendant: ‘These are the rules ... ,” the government should not be permitted to change the rules after the game is over to get a second chance at the result it desires.”
Baker argues that the Supreme Court should also take up the case to resolve a split among federal circuit courts on the issue of whether the government waives its appeal rights as part of a plea agreement.
In the petition, Baker cites a 1991 ruling from the U.S. Court of Appeals for the 4th Circuit that dismissed an appeal by the government after a woman who pleaded guilty to fraud and money laundering was sentenced to 28 months in prison.
The 4th Circuit held that the government waived its appeal rights in that case, a ruling that appears at odds with the 6th Circuit’s ruling against Boucher.
Supreme Court rules hold that four of the nine sitting justices must vote to accept a case for review.
Each one-year term, which begins in October, about 7,000 to 8,000 new cases are filed, according to information on the Supreme Court’s website.
Plenary review, involving oral arguments by the attorneys before the Supreme Court justices, is granted in a small portion of those cases.
For the most recently completed term of the court, which ended last month, 72 opinions were released, according to information from SCOTUSblog, a website that tracks the Supreme Court.
– Follow courts reporter Justin Story on Twitter @jstorydailynews or visit bgdailynews.com.