October 2, 2008
Thoughtful and nuanced discussion of procedural reasonableness from Tenth Circuit
The Tenth Circuit issued a lengthy opinion yesterday in US v. Mendoza, No. 07-3181 (10th Cir. Oct. 1, 2008) (available here), that addresses a number of notable procedural issues in the course of rejecting a government appeal of a below-guideline sentence. Here is how the opinion starts:
Although the United States Sentencing Guidelines (“Guidelines”) advise that defendant-appellee Jesus Mendoza receive a minimum of 324 months’ imprisonment for his drug conviction, the district court varied downward and imposed a 240-month sentence. On appeal, the government urges us to vacate and remand for resentencing, arguing that the district court committed procedural error by (1) declining to give specific reasons for the variance, and (2) failing to enter a written statement of reasons as required by 18 U.S.C. § 3553(c)(2). Reviewing only for plain error, we affirm Mendoza’s sentence.
Though a lot could be said about the panel's thoughtful work in Mendoza, I find most interesting and questionable the fact that the government even bothered to appeal the defendant's 20-year federal prison sentence in this case. The panel notes that the government did not complain about the substantive reasonableness of the sentence, but it still decided it was worth the energy and expense to assail the district court's failure to sufficiently document its reasons for giving a 20-year sentence for the defendant's drug conviction.
Of course, I understand why defendants sitting in federal prison regularly appeal sentences on whatever procedural ground they and they lawyers can assert. But I would think federal prosecutors could embrace the old cliche "good enough for government work" when deciding which sentences it ought to appeal. Indeed, since the government ended up losing its appeal here, I wonder if I can make some kind of request for a refund of the (significant?) federal tax dollars that had to be spent litigating these purely procedural issues.
October 2, 2008 at 11:48 AM | Permalink
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Nice to see a panel let one of these slide rather than remand and get the same result with more verbage.
Posted by: Soronel Haetir | Oct 2, 2008 11:59:29 AM
Some Courts routinely flout the law requiring specific individualized reasons for a variance listed on a written statement of reasons per 18 U.S.C. Section 3553(a)(2). Because of the structural impediments for the government in the federal appeals process--multiple levels of approval needed including that of the Solicitor General, significant workload burden, etc. -most of these cases never come to light. There are many reasons the government may have thought this case merited an appeal--in any event your outrage should be focused on the Courts who do not follow the law and not the prosecutor.
Posted by: mjs | Oct 2, 2008 1:16:04 PM
Fair points, mjs, but there have to be better vehicles for raising procedural concerns that a case like Mendoza, in which the substantive reasonableness of the sentence imposed is not even contested.
I share your concerns about judges failing to do the work required by the law, though I think this is an even worse probem in cases in which a within-guideline sentence is imposed. If DOJ really wants to do something that gets attention, it perhaps will agree with a defendants contention in some within-guideline cases that the court did not act procedurally reasonable.
Unless and until DOJ is willing assail procedures in cases in which a guideline-sentence is imposed, I will continue to question why they get worked up about a case like Mendoza in which a hefty sentence was still imposed and yet the government still was eager to bemoan the process to an appellate court.
Posted by: Doug B. | Oct 2, 2008 1:37:52 PM
mjs. There is a great deal of debate currently on how specific a "specific reason" has to be; certainly different circuits have come to different conclusions. It is also an open question as to whether this phrase in 18 U.S.C. Section 3553(a)(2)is even good law in light of Gall, which doesn't refer to "reasons" but requires courts to give an "explanation".
I think it is unfair to blame courts on this matter. The law in this area is unclear.
Posted by: Daniel | Oct 2, 2008 1:39:27 PM
FWIW, the prosecutor in this case is the same one of "reeks of the lamp"/breach-of-plea-agreement fame.
Posted by: anon | Oct 2, 2008 2:35:35 PM
Surely you cannot be serious. Why do defendants who do not even bother to challenge the substantive reasonableness of their (often within-range) sentences get to appeal on procedural reasonableness grounds? So they can clog the courts of appeals with requests for meaningless do-overs and, in the process, get a free trip back to district court so they can see their families? If a district judge is going to grant a significant variance, then he or she had better explain why the facts of that particular case warranted it. Having such an explanation might provide some guidance to the aggrieved party as to whether to appeal on substantive reasonableness grounds.
Posted by: Da Man | Oct 2, 2008 8:45:59 PM