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August 29, 2007

Doesn't failure to even mention defense arguments or 3553(a) amount to error after Rita?

A helpful reader pointed out a disturbing ruling yesterday from the Tenth Circuit in US v. Cereceres-Zavala, No. 05-2191 (10th Cir. Aug. 28, 2007) (available here).  Though citing Rita, the Tenth Circuit's ruling seems to run counter to Rita's emphasis on the importance of sentencing decisions being "reasoned decisions." 

In Cereceres-Zavala, the defendant filed "two motions, each styled as a 'Motion for Downward Departure.'" But, when imposing a within-guideline sentence, the "district court court never mentioned or ruled expressly on either of Cereceres's motions for downward departure," nor did it even mention that the guidelines were advisory or that it had considered 3553(a).  Finding no error, the Tenth Circuit has this to say:

Although the sentencing court provided no direct response at all to Cereceres's requests for departure, its citation of the PSR's calculation method and recitation of the suggested imprisonment range amply fulfilled § 3553(c)'s requirement of a "general statement noting the appropriate guideline range and how it was calculated." Ruiz-Terrazas, 477 F.3d at 1202. "[C]ontext and the record make clear" the district court's reasoning for rejecting Cereceres's arguments, and the court "must have believed there was not much more to say."  Rita, 127 S. Ct. at 2469.

The Rita majority stressed, however, that a sentencing judge "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision-making authority."  Though the Cereceres-Zavala panel seems pretty easily satisfied, I have a hard time with its attitude after RitaRita stresses that, even when giving a guideline sentence, a judge should "explain why he has rejected those arguments" put forward by defendants for a different sentence.  Even in context, silence does not seem to me to be an adequate explanation.

August 29, 2007 at 04:00 PM | Permalink

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The Rita majority stressed, however, that a sentencing judge "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision-making authority." Though the Cereceres-Zavala panel seems pretty easily satisfied, I have a hard time with its attitude after Rita. Rita stresses that, even when giving a guideline sentence, a judge should "explain why he has rejected those arguments" put forward by defendants for a different sentence. Even in context, silence does not seem to me to be an adequate explanation.

In principle, that makes sense. I wonder if it might depend on the argument, though. My initial reaction is that some arguments might be so ridiculous that they don't need a response. If one of a convicted bank robber's arguments is that "Nicole Richie served less than two hours in prison; my client is facing 10 years. Bank robbery is worse than what she did, but certainly not 73000 times worse," and the district court didn't respond, I wouldn't fault the appellate court.

There are probably a few other kinds of arguments that don't need explicit responses, but they're not coming to mind very quickly.

Posted by: | Aug 29, 2007 8:58:39 PM

sorry... 43500, not 73000, but you get the idea.

Posted by: | Aug 29, 2007 9:00:58 PM

But the Judge isn't just supposed to respond (or accept or reject the parties' arguments). S/he is supposed to consider the § 3553(a) factors and impose a sentence that meets the purposes set forth in § 3553(a)(2). So musn't a Judge at least explain how his or her sentence fulfills the § 3553(a)(2) factors? Can a judge impose a sentence of home confinement where the Guidelines range is 41 to 51 months, cite one mitigating factor argued by the defense, but not explain why such a sentence reflects the seriousness of the offense, promotes just punishment, and effectively deters others?

Posted by: dubitante | Aug 30, 2007 10:55:05 AM

But the Judge isn't just supposed to respond (or accept or reject the parties' arguments). S/he is supposed to consider the § 3553(a) factors and impose a sentence that meets the purposes set forth in § 3553(a)(2).

I'm not sure which way that cuts. It seems to me that a judge could "consider the 3553(a) factors" without necessarily responding to every argument the defense makes.

Posted by: | Aug 30, 2007 12:50:12 PM

It is hardly a lot to ask that a trial court acknowledge in its ruling that arguments were made and intentionally rejected.

Appeals courts generally identify the principal issues raised by an appellate, engage the most serious issues, and conclude by saying, at least, "the other arguments raised are likewise without merit" or some such.

It would hardly be onerous for the 10th Circuit to require the same of District Court judges, who could, on remand, at least amend their decision to reflect that the defense arguments were actually considered.

This guards, at least, against the mundane, but occassional situation where a judge, when he gets around to writing an opinion among many, accidentally looks at the wrong file or mistakenly didn't realize that the defense filed a timely motion. Surely, if that happened, it would constitute a ground for reversal and remand for resentencing, but how can an appellate court police that risk if the judge isn't required to at least acknowledge and rule upon motions before it.

Posted by: ohwilleke | Aug 30, 2007 1:09:03 PM

It certainly wouldn't be onerous at all, and it would be better if district judges did this. But Professor Berman's argument is that it's required under Rita, which is what I find a little dubious.

Posted by: | Aug 30, 2007 1:26:18 PM

In addition to the possibility that the district court judge looked at the wrong file or forgot about the motion, there is another practical reason to require a judge to address a defendant's arguments (aside from Rita requiring it): His decision to not depart may be based on a faulty premise.

As a perfect example, consider the 10th Cir. opinion U.S v. Mahan (available at
http://www.ca10.uscourts.gov/opinions/05/05-1518.pdf). The 10th Cir. REVERSES a sentence because the judge mistakenly believed he could not vary based upon the defendant's arguments. In reversing, the 10th Cir. held that the defendant's argument could be a valid basis for variance and the judge must consider it. Therefore, Mahan should teach the 10th Cir. that reasons for rejecting departure/variance arguments must be explained.

Now, turn to Cereceres-Zavala (the subject of this post), and Ruiz-Terrazas (which Cereceres-Zavala cites). Under these 10th Cir. precedents no explanation is required. In fact, had the sentencing judge in Mahan not explained why he rejected the defendant's arguments, and instead said nothing, then Mahan's sentence would have been affirmed under Cereceres-Zavala and Ruiz-Terrazas.

Something is wrong when appellate courts give district courts an incentive to not explain their reasons, which could often reveal an error in their thought process.

Posted by: DEJ | Aug 30, 2007 2:29:37 PM

Something is wrong when appellate courts give district courts an incentive to not explain their reasons, which could often reveal an error in their thought process

This happens all of the time, not just in sentencing.

Posted by: | Aug 30, 2007 2:53:07 PM

I'm talking about the converse: District Courts must consider the § 3553(a) factors, not just the parties regarding those factors. A District Court cannot ignore the purposes set forth in 3553(a)(2) merely because no one submits a sentencing brief or argues orally at sentencing.

Posted by: dubitante | Aug 30, 2007 3:17:26 PM

Regardless of what SCOTUS themselves might accept on a case-by-case basis, Rita appears to give appellate courts the license to apply standards just like this to within-Guidelines sentences. The situation here really isn't that much different from the one in Rita itself-- the question is just exactly how much is a circuit court willing to infer from "context."

My guess is that for some courts context sufficient to show consideration could mean that "the motion was presented to the court." Unfortunately, I think Rita gives them license to apply that standard.

Posted by: JP Davis | Aug 30, 2007 4:29:55 PM

JP: The disturbing part of this opinion is that the district court did not even say "the motion was presented to the court." Nor did it apparently ever mention 3553(a).

And post at 2:53:07: yes, I know this happens all the time. But that does not make it okay.

Posted by: DEJ | Aug 30, 2007 5:24:57 PM

And post at 2:53:07: yes, I know this happens all the time. But that does not make it okay.

Well, the alternative is to have appellate courts acting like grade school teachers and remanding where the trial courts don't adequately "show their work." Sometimes that sort of thing is appropriate, but when taken to an extreme, it loses sight of what courts actually do.

The nature of appellate review gives trial courts incentives to hide the ball. The clearer the trial court's reasoning is, the easier it is for the appellate court to reverse.

Sometimes, the trial court cuts too many corners and gets a remand. This happens, for example, when there are multiple theories offered to support a particular legal conclusion, and the trial court reaches the conclusion without selecting a theory (see section I.B of this opinion if you're a patent person---http://www.fedcir.gov/opinions/05-1418.pdf)

More often, though, the appellate court can infer from the trial court's ultimate conclusion that it credited one side's arguments or the other's, and gives the trial court the benefit of any doubt that may arise as to how the trial court reached its conclusion.

I often wonder if certain Ninth Circuit judges get reversed as often as they do in part because they write very clearly. Say what you will about Judge Reinhardt's view of the Supreme Court's precedents on AEDPA and a few other subjects, he writes very well and makes it abundantly clear how he gets from the facts to the conclusion. This makes it easier for the Supreme Court to determine precisely where he went "wrong." To his credit, though, that hasn't caused him to hide the ball to get a particular result in any case. I imagine that there are plenty of other judges out there who share his general view of the law, but prefer to write "safe" opinions that won't trouble their colleagues or the Supreme Court, but that aren't as explicit about their reasoning.

Just speculation, though.

Posted by: | Aug 30, 2007 11:06:57 PM

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