August 23, 2007
Big doings (and split reasonableness ruling) from the Tenth Circuit
Lots of late-day news yesterday from the Tenth Circuit provides the media and sentencing fans with lots to talk about today.
First, as detailed in the Denver Post, the Tenth Circuit "ruled Wednesday that Joe Nacchio can remain free on $2 million bail pending an appeal of his conviction for illegal insider trading — a surprising win for the former Qwest chief executive."
Second, in a split ruling in US v. Garcia-Lara, No. 06-3054 (10th Cir. Aug. 21, 2007) (available here), the Circuit declares unreasonable a below-guideline sentence in a meth case. There are lots of notable pasages and Rita reconstructions in the long dueling opinions in the case.
In ruling a below-guideline sentence unreasonable in Garcia-Lara, the majority asserts that, a "court's conclusion that the Guidelines are simply 'wrong' or an inadequate reflection of the statutory sentencing purposes is an unreasonable application of the § 3553(a) factors unless the court can justify the sentence imposed in light of the facts of the particular case considered under § 3553(a)." The dissent in turn says the majority "faild to follow the letter and spirit" of Rita:
In my opinion, the decision announced today stands as exhibit A on two points: First, it shows that notwithstanding the repeated reaffirmation and clarification of an appellate abuse of discretion standard by the majority and concurrence in Rita, the Newtonian pull of the Guidelines toward a near-mandatory center remains. Second, it demonstrates that the “trust that those Judges who had treated the Guidelines as virtually mandatory during the post- Booker interregnum will now recognize the Guidelines are truly advisory,” id. at 2474 (Stevens, J., concurring), is misplaced.
August 23, 2007 at 08:48 AM | Permalink
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Kudos to Judge Lucero for his dissent in US v. Garcia-Lara. He is absolutely correct in analyzing post-Booker and post-Rita Tenth Circuit case law as essentially mandating that district courts sentence within or above the guidelines range or risk reversal. The Tenth tap dances its way to a de novo standard of review of below guidelines sentences by nitpicking at district courts' reasons for the imposition of sentences it disagrees with, but calling a district court's decisions of how to weigh the 3553(a) factors "legal" conclusions -- and therefore appropriate for appellate review -- does not change the fact that the Tenth is actually fact-finding and imposing its discretionary view of an appropriate sentence. It is also stifling any meaningful dialogue of the reasonableness of particular guidelines by forbidding courts to question whether a guideline -- such as the career offender guideline -- is reasonable; the district courts are told that they must find particularized reasons why a particular defendant should not be subject to the guideline in question, and cannot consider whether the guideline itself, in all or many circumstances, is unreasonable. The career offender guideline is a good example of a guideline that the Sentencing Commission's own studies have shown to operate unreasonably. The only solution is for the guidelines to go, but the Supreme Court (influenced undoubtedly by the Sentencing Commission bureaucracy with its institutional desire to survive) is clearly unwilling to go that route.
Posted by: defense attorney | Aug 23, 2007 10:47:16 AM
Is the Tenth Circuit's opinion not contrary to Cunningham? If the district court can only deviate from the guidelines based on "the facts of the particular case," then the Federal Guidelines system is identical to the system struck down in Cunningham. Indeed, in Cunningham, Justice Alito had to resort (in an effort to save the California scheme) to claiming that California judges could reject the base sentence on general sentence principles, not just on factual findings, and that the California scheme was, in this respect, indentical to the federal system. Both he and Justice Ginsburg assumed that a system that allowed a deviation from the base sentence only based on factual findings was one that violated the Sixth Amendment.
Posted by: David in NY | Aug 23, 2007 11:35:09 AM
The majority's assertion that district courts cannot view the guidelines as "an inadequate reflection of the sentencing purposes" before addressing the individual factors of the case under 3553(a) en toto essentially requires district courts to apply a presumption of reasonableness to the guidleine range, in stark opposition to Breyer's majority Rita opinion.
Posted by: OMG | Aug 23, 2007 11:39:51 AM
Viewing the guidelines as "adequate reflection" of sentencing purposes is not the same as a presumption of reasonableness. The point of Rita, which some of you would like to set aside, is that the Court didn't throw the baby out with the bath water and explicitly recognized that the guidelines have a significant value for sentencing purposes.
Posted by: Dweedle | Aug 23, 2007 12:16:04 PM
Dweedle, yes, Rita does seem to suggest that "the guidelines have a significant value for sentencing purposes." However, Rita more importantly suggests that if the Guidelines are to be advisory (and thus constitutional), then the sentencing judge must have significant discretion. The 10th seems to refuse to recognize this point.
Posted by: DEJ | Aug 23, 2007 1:14:02 PM
I disagree DEJ. The majority points out that their problem with the district court's decision is that it isn't firmly based in applicable 3553(a) factors (which include, BTW, review of the guidelines), not that the court didn't follow the guidelines lockstep. Saying that this doesn't follow Rita seems to be nothing more than wishful thinking about what Rita suggests. If a sentencing court fails to make a compelling 3553(a) argument for its sentence I don't see what else an appellate court can do under Rita.
Posted by: Dweedle | Aug 23, 2007 2:19:09 PM
There's nothing revolutionary about this. It's the same principle that almost all of the courts of appeals have applied in the crack cases. See Pho (CA1), Castillo (CA2), Ricks (CA3), Eura (CA4), Leatch (CA5), Jointer (CA7), Spears (CA8), Williams (CA11)...
The Guidelines, even if they're advisory, are the starting point, and there are (as the appellate courts read Booker) permissible and impermissible reasons for deviating ("varying"), one of the latter of which is that a sentencing court believes that the policy behind a Guideline is simply wrong.
As several commenters and the dissent note, this conflicts with the idea that the Guidelines are truly advisory and with the holding of Booker that the departure provisions did not save the mandatory Guidelines from unconstitutionality.
But the Tenth Circuit is certainly not misreading Rita, nor is it departing from the mainstream of what nearly every other appellate court has done with the Guidelines.
Hopefully Kimbrough and Gall will settle this, but it's foolish to argue that Justice Breyer's dicta in Rita already have.
Posted by: | Aug 23, 2007 2:20:15 PM
Well, I always thought dicta (joined in by six members of the Court) was pretty persuasive, and if the repeated statements in Rita that a district court can disagree with the Guidelines' balancing of the 3553 factors are dicta, I'd still think courts would be more wary of ignoring it.
Anyway, as I noted above, it seems to me that the Tenth's system -- which permits a non-guideline sentence only if its based on specific factual findings particular to the case -- is directly contrary to the holding of Cunningham, which struck down such a system as violative of the Sixth Amendment.
Posted by: David in NY | Aug 23, 2007 2:36:39 PM
While I enjoy reading the lofty notions of "process" that J. Lucero traces, referring to Stevens and Ginzburg's Rita concurrence ("the federal judicial tradition ...to consider every convicted person as an individual and every case as a unique study in human failings that sometimes mitigate, sometimes magnify, the crime and the punishment..."), I rather think the real screenplay is far more often like a furtive, quick assault or assasination of the defendant, delivered up to the sentencing judge, trussed and ready for the slaughter, by probation.
Posted by: TE | Aug 23, 2007 3:36:08 PM