January 24, 2008
Explaining more fully my concern about the Eleventh Circuit's work in Ramirez
A number of commentors are concerned about my quick critique of the Eleventh Circuit work in US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here). Ramirez affirms an above-guideline sentence by relying heavily on Gall.
One (unnamed) commentor assails me for a a lack of "objectivity" because I critique this affirmance of an above-guideline sentence but often praise affirmances of below-guidelines sentences. This commentor encourages me to "Show some balance, or at least the illusion of balance!" Up for justified challenge, let me explain in more "objective" detail the range of concerns I have with the Ramirez decision.
First, as a matter of questionable procedure, why is this Ramirez ruling issued as an unpublished decision without the defendant getting an opportunity for oral argument? As written, the Ramirez ruling implies that Gall overrules at least three prior (post-Booker) Eleventh Circuit published opinions. If this is what Ramirez means, shouldn't this opinion have been published?
Second, as a matter of sloppy style, the Ramirez opinion devotes more than five full pages to reciting (applicable?) post-Booker precedents, but has only a few sentences discussing the case facts. Here, in toto, is what the opinion informs the reader about the facts of the case under review:
Luis Ramirez [was convicted of] larceny of personal property, in violation of 18 U.S.C. §§ 661 and 2. Ramirez’s guideline range was 8-12 months, but the district court sentenced him to the statutory maximum of 60 months imprisonment. Ramirez argues on appeal that the district court ... overemphasi[zed] his criminal history, [and] failed to consider the $1,000 loss amount, and ... nullified the two-level decrease he received for acceptance of responsibility.
So, all we know from the Ramirez opinion is that a defendant with an long criminal history stole $1000 of personal property and received the statutory maximum sentence after accepting responsibility. We don't know what his true guideline range was because, as the USSC sentencing table shows, there is no guideline range of 8-12 months. The actually range must have been either 8-14 months or 6-12 months (and I am guessing the latter).
Third, as a matter of suspect substance, the Ramirez opinion notes that, in a recent Valdes ruling, 500 F.3d 1291 (11th Cir. 2007), the Eleventh Circuit "vacated Valdes’s sentence and remanded to the district court because it was unclear whether the court was departing upwardly under U.S.S.G. § 4A1.3 or whether the court was applying a variance based on the 18 U.S.C. § 3553(a) factors, and, therefore, the record was 'insufficient to permit the affirmance of the sentence.'" Valdes seems to be exactly on point to justify a remand here. However, without explaining whether Valdes has been overruled by Gall or is distinguishable, the Ramirez opinion affirms simply because "the district court properly calculated the advisory guideline range, considered the relevant § 3553(a) factors, articulated its reasons in open court, considered Ramirez’s arguments, and had a reasoned basis for its decision."
Finally, as a matter of dubious doctrine, the Ramirez opinion cites Rita, but that SCOTUS ruling makes clear that circuit courts must do more than police just the procedural reasonableness of sentencing decision-making. Though Justice Scalia advocated review only of procedural reasonableness in his concurrence, the Rita majority made very clear that substantive reasonableness review was important:
In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.
Despite all these problems with the Ramirez opinion, I am still not prepared to call the outcome wrong until I know more about the underlying facts. But all the points above raise a lot of red flags. That's why in my original post I stated that I have a "concern" about the "troubling" Ramirez ruling because the "panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration."
As for my "objectivity" and "balance," I do not think I have ever hidden my view (bias?) that many federal prison sentences for non-violent crimes seem too long in light of Congressional purposes. At least seven SCOTUS Justices seemed to ratify that view through the rulings in Gall and Kimbrough. Meanwhile, I have also indicated my view (bias?) that many federal and state sentences for violent crimes seem too short. Because Ramirez apparently involves a non-violent crime, I am especially curious about what facts justified a stat max sentence, and I really wish the Eleventh Circuit had done a more effective job assessing and explaining why that state max sentence was substantively reasonable.
January 24, 2008 at 12:17 PM | Permalink
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Thanks for the further clarification.
How does an appellate court go about assessing whether a sentence is substantively unreasonable, though? The 3553(a) factors are standards, not rules. Is seems that once a judge has calculated the Guidelines range and identified the statutory maximum and minimum, he has only the 3553(a) factors and his personal sense of morality to figure out what sentence is appropriate.
For most sets of facts, a rational explanation could be given for just about any sentence.
If a judge thinks that the DUI penalties are simply too light in most cases to fulfill the purposes of punishment, he could probably sentence all DUI defendants to the statutory maximum, explaining each time the defendant's moral culpability, the need for deterrence, the risk posed, etc., perhaps leaving open the possibility of a sub-max sentence if a defendant was truly lacking in culpability.
If a judge thinks that the entire war on drugs is wrong, especially w/r/t nonviolent small fry, he could sentence all nonviolent drug defendants to the minimum possible, explaining each time the minimal amount of harm done, the "victimless" nature of the crime, etc., perhaps leaving open the possibility of prison time for people with violent priors.
It seems to me that unless a judge puts in something irrational ("the defendant likes John Tesh music") or out of bounds ("I don't like the defendant's race"), then there are going to be very, very few substantively unreasonable sentences out there.
Maybe 60 days for child rape would qualify, but in that case the judge also announced that after 25 years on the bench he no longer believes in punishment.(http://www.wcax.com/Global/story.asp?s=4325804)
Posted by: | Jan 24, 2008 12:54:47 PM
Fair points, which is why the always sharp Justice Scalia urged only procedural reasonableness review. But the Rita court rejected his suggestion, so circuit courts have an obligation after Rita to give some effort to substantive reasonableness review.
As for "standards" I think 3553(a)(2) AND (a)(3) provide a lot of build on. The latter says consider the kinds of sentences available, which urges a kind of rough proportionality in light of the applicable STATUTORY sentencing range. I think stat MAX sentences are less substantively reasonable if/when the defendants crime/history does not make him seem like the worst of the worst for this type of offense. (Likewise, stat MIN sentence are less substantively reasonable if/when the defendants crime/history does not make him seem like the least worst of the worst for this type of offense.)
Moreover, though everyone likes to call the purposes of sentencing nebulous, they have content and can be given bite through reasonableness review of sentences in the same way that the 4th Amendment has been given bite through the reasonableness review of police activity. We may not like the substance of how SCOTUS and circuit have developed fourth amendment reasonableness law, but we don't simply say "as long as the district court gave it a good procedural look" then the decision below is always correct.
Posted by: Doug B. | Jan 24, 2008 1:03:48 PM
Professor Berman, have there been ANY decisions yet from any of the federal courts of appeals, since Booker, declaring an above-guidelines sentence substantively unreasonable? Again, talking about pure substantive unreasonableness here - not "needs more explanation" or the like. I can't recall any. To my eye, Ramirez is just a reflection of the fact that such reversals are - if not truly unheard-of - at least nearly so. The case simply becomes fodder for a staff attorney to write an unpublished per curiam.
Posted by: Sam Heldman | Jan 24, 2008 1:58:59 PM
Sam: The 10th Circuit found an above-guideline sentence substantively unreasonable in U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007).
Posted by: appellate AFPD | Jan 24, 2008 2:24:11 PM
I agree that this opinion should have been published, and think most of your criticisms are traceable to the fact that it was not. Unpublished opinions typically contain far less discussion of the facts because they are meant primarily for the parties, who are familiar with the facts. A published opinion would have spent more time applying the legal principles the Court spent most of its time discussing to the specific facts of this case. It's almost insulting to read through 4 pages of legal principles only to find that the Court never actually explains how those principles justify its holding. I appreciate the quick refresher of how sentencing works post-Booker, but that's not why I read the opinion.
Posted by: Chris | Jan 24, 2008 2:40:03 PM
Sam: The Sixth Circuit found an above-guideline sentence substantively unreasonable in United States v. Poynter, 495 F.3d 349 (6th Cir. 2007). Among other strong points made in Poynter was the fact that the defendant was given the stat max even though he clearly was not the worst of the worst offender convicted of the type of crime he was convicted of.
Posted by: Doug B. | Jan 24, 2008 2:49:52 PM
It's almost insulting to read through 4 pages of legal principles only to find that the Court never actually explains how those principles justify its holding.
This isn't specific to unpublished opinions. If an opinion goes to the trouble of stating legal principles in detail, it should also spend some time applying them.
The point of an unpublished opinion is to tell the losing party why s/he lost. Good unpublished opinions generally get right to the point, regardless of whether they contain one sentence or five pages.
Sometimes a district court opinion is correct and says all that needs to be said, and the court of appeals can issue a one-sentence NPO to that effect. In other cases, a paragraph is all that is necessary. (E.g. "The appellant's theory is X. We rejected a similar theory in case Y, and we are not persuaded by appellant's attempts to distinguish Y. Affirmed." ).
In Ramirez, though, the panel opinion gives the illusion of analysis without actually providing any. The first 4 1/2 pages are fine, but then it just starts filibustering. It summarizes a couple of cases, then basically gets tired and says "we affirm."
The entire analysis is in the final paragraph of the opinion.
It would have been better had the panel either (1) issued a one-paragraph decision stating essentially that they found Ramirez's arguments unpersuasive and the district court's discussion sufficient, or (2) a longer decision that actually addressed Ramirez's arguments and gave some reason why they thought the sentence was substantively reasonable.
Posted by: | Jan 24, 2008 3:40:50 PM
I feel duty-bound to respond to the first poster's mention of the infamous "60 days for child rape" sentence given by a Vermont judge a few years back. At the time Bill O'Reilly wouldn't shut up about it. If I remember correctly, O'Reilly threatened a boycott of the state at one point. Anyway, the REAL point of the whole thing was that the state prison wouldn't put the guy in a treatment program and by giving such a lenient sentence, the judge forced them to. Once prison authorities relented, he got an appropriate sentence. Oh and, the judge NEVER even said that he didn't believe in punishment. The judge's wikipedia page (http://en.wikipedia.org/wiki/Edward_Cashman) is a good place to start for more info.
Posted by: YeBut | Jan 24, 2008 5:21:45 PM