June 19, 2008
A remarkable (failed) judicial effort to nullify a mandatory minimum sentence
A per curiam decision today from the Eleventh Circuit in US v. Castaing-Sosa, No. 07-15490 (11th Cir. June 19, 2008) (available here), is remarkable for many reasons. Here are the snippets (with a few edits) that really caught my attention:
Sosa was arrested following an undercover investigation by multiple law enforcement agencies into a drug distribution ring operating in Orlando, Florida. Sosa worked for the drug distribution ring as a courier.
After Sosa pled guilty to the heroin conspiracy offense, the presentence investigation report calculated an advisory guidelines range of 97 to 121 months’ imprisonment. On appeal, Sosa does not challenge these guidelines calculations...., but because the statutory mandatory minimum sentence for Sosa’s heroin conspiracy conviction is ten years’ (120 months’) imprisonment, Sosa ... arguing that [the application of the mandatory minimum term] violated the separation of powers doctrine and the Eighth Amendment’s prohibition on cruel and unusual punishment. The government responded that the information Sosa had provided in his interview with the government had not risen to the level of substantial assistance and, thus, the government had not filed a motion pursuant to U.S.S.G. § 5K1.1 that would permit the district court to sentence Sosa below the statutory mandatory minimum.
After noting that Sosa was subject to a statutory mandatory minimum sentence of 120 months’ imprisonment, the district court nonetheless imposed an 80-month sentence. The district court imposed a lesser sentence to avoid a disparity between Sosa’s sentence and those of his coconspirators who had received sentences below 90 months. After imposing the 80-month sentence, the district court advised Sosa on the record that the sentence would be overturned if the government appealed, in which case Sosa would be required to serve the statutory mandatory minimum sentence, as follows:
Now, understand that if the government chooses to appeal this sentence, it will be reversed and you will have to serve your mandatory minimum sentence. So it’s entirely up to the government at this point, but I am sentencing you to 80 months so that you fall in line with all of your other co-conspirators.
The government objected to the 80-month sentence because it was below the statutory mandatory minimum. This appeal followed.
To the district court's credit, it correctly predicted that a government appeal would lead to a reversal. In fact, the Eleventh Circuit writes a (surprisingly restrained) decision reversing the district court's clear effort to "nullify" the application of the statutory mandatory minimum. But, to the extent the district court genuinely believed justice demanded an 80-month sentence here, I am troubled by the misguided (and ultimately ineffective) way that the court sought to achieve justice.
I say this because a thoughtful judge could have — in my view, should have — required the Government to explain in greater detail why Sosa did not justify a 5K letter and/or have asked the Government why the court should not have constitutional doubts about the application of the severe mandatory minimum term under these circumstance. Given recent Supreme Court rulings and many other recent legal developments, the district court might have developed any number of plausible constitutional arguments (including many beyond those raised by the defendant) for refusing to apply the applicable statutory mandatory minimum on these facts.
Alternatively, once the district court realized that a 10-year mandatory was going to be applicable, the court might have considered now refusing to accept the defendant's plea to counts that, in the district judge's view, required an unjust sentence. Or the court might have considered some way of announcing alternative sentences in an effort to express its view that a sentence below the mandatory minimum would be more just. But, much as I dislike the application of severe mandatory minimum sentencing terms, for rule-of-law reasons I am troubled that a sentencing judge would flagrantly disregard applicable law without providing a legally plausible justification for doing so and also say it is up to prosecutors to appeal simply to ensure applicable law is followed.
June 19, 2008 at 03:13 PM | Permalink
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i felt it necessary to look up the sentencing judge to confirm that it wasn't sentencing hall of famer & legend Hon. Gregory A. Presnell who, as sentencing fans know, also sits in the M.D.Fla.... rest assured... it wasn't...
Posted by: Josh Arnold | Jun 20, 2008 1:10:32 AM
I am an FPD. One issue that the Stanford Sup. Ct. clinic is trying to get before SCOTUS is whether a jury is entitled to know the mandatory minimum of the offense they are reviewing. The argument is that historical jurors were more than just fact-finders, they acted as a check against the executive branch and could nullify if they believed the sentence did not fit the crime. While there is no argument that a judge could disregard the MM, maybe the best thing to do is take it to trial and urge the court to inform the jury of the MM and then argue jury nullification.
Posted by: Tstaab | Jun 20, 2008 12:10:13 PM
Perhaps the better course for the judge would be to tell the defendant: "I am not going to look for some clever and convoluted way to relieve you of the consequences of your behavior. Whether I personally believe the mandatory minimum sentence is too harsh is irrelevant here. I am not acting in my individual capacity. I am acting as a judge. Congress had every opportunity to consider whether a mandatory minimum could be viewed as unfair in light of lesser sentences for different actors in the offense. Congress elected to adopt the mandatory minimum anyway. If you have a problem, take it up with Congress.
"If you think I'm being overly legalistic about it, consider what your attitude would be if Congress imposed a mandatory MAXIMUM (that is, a ceiling) and I exceeded it because I personally believe drugs are more of a menace than Congress thought. Would you think that's OK?
"The sentence will be ten years. Mr. Marshall, step him back."
Posted by: Bill Otis | Jun 20, 2008 5:16:31 PM
Based on conversations with a few lawyers and a few family members of defendants (both as a law professor and as a local coordinator for Families Against Mandatory Minimums), I think this sort of thing happens with some frequency -- prosecutor, judge, and defense attorney simply agree to ignore the applicable mandatory minimum in sentencing, and no one appeals. (True, it would be better form if they fashioned a plea bargain that didn't trigger any mandatory minimum, but in some cases that can be difficult or impossible.) What makes this case different is that the deal apparently never got made or fell apart -- resulting in the judge's implicit request that the government come (back?) on board.
It would be nice to have someone study exactly how often such "lawless" deals get done.
Posted by: Bob Batey | Jun 20, 2008 7:54:48 PM