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April 2, 2009

Split Ninth Circuit reverses (yet again) the prison sentence in unique Paul case

Those who follow post-Booker reasonableness review (too) closely may recall that the Ninth Circuit's unpublished decision in US v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (available here, bogged here), is the only within-guideline sentence reversed as substantively unreasonable.  The Paul case, after resentencing, led to another notable ruling by the Ninth Circuit today in US v. Paul, No. 08-30125 (9th Cir. April 2, 2009) (available here).  Here is how the per curiam majority opinion starts:

 In United States v. Paul, 239 Fed. App’x 353 (9th Cir. 2007) (Paul I), we held that a 16-month sentence imposed on Patricia Betterman Paul for theft from a local government receiving federal funding, a violation of 18 U.S.C. § 666(a)(1)(A), was unreasonable.  Id. at 354. We viewed her case as one that did not fall within the “heartland” of cases to which the Federal Sentencing Guidelines are most applicable, as contemplated by Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2465 (2007) (a court may decide “that the Guidelines sentence should not apply, perhaps because . . . the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply”); cf. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (“any post Booker decision” as to whether a case falls within the heartland “is subject to a unitary review for reasonableness”), and allowed by Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 595 (2007) (rejecting “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside theGuidelines range”).  We vacated the sentence and remanded for resentencing, pointing to four specific mitigating factors that demonstrated the 16-month sentence was unreasonably high.  Paul now appeals the subsequent sentence of 15 months that the district court imposed upon remand. This case presents the question whether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence.  We once more vacate Paul’s sentence, and remand to a different judge for resentencing.

Here is how a lengthy dissent by Judge Hall gets started:

Under the guise of the rule of mandate, the majority seeks to insulate this court’s previous unpublished disposition from intervening Supreme Court and Ninth Circuit precedent. In so doing, the majority demonstrates a complete disregard for the appropriate roles of the sentencing judge and the appellate court.

April 2, 2009 at 06:54 PM | Permalink

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Comments

Does the general rule that cases are remanded to the original judge ever make sense when an abuse of discretion, as opposed to a mere misinterpretation of the law, or mistake of fact in trial to the court, or jury verdict not supported by the facts, is the ground for the reversal?

Posted by: ohwilleke | Apr 2, 2009 7:43:33 PM

Take a look at one of the judges, Stephen Reinhardt. He has zero business joining any opinion complaining about lower courts not following directives. It's unfortunate that fact is not pointed out to him in one of the opinions.

Posted by: federalist | Apr 2, 2009 8:56:30 PM

LOL. Really, I am surprised there was a dissent here. And while I have federalists sense of irony, seriously what choice do they have. If you let a district judge get away with spitting in your face, you deserve no respect as an appellate court. In fact, the dissent kind of pisses me off. There is politics and then there is politics. The person who bites off his nose to spite his face (which is what the dissent does) is a fool.

Posted by: Daniel | Apr 2, 2009 10:35:18 PM

The sentence is reasonable. The majority opinion is a joke.

Posted by: federalist | Apr 2, 2009 11:04:56 PM

But isn't the very purpose of the rule of mandate & the law of the case to prevent relitigation of the merits - in this case, the reasonableness of the sentence? All that the court of appeals has to decide is whether the district court complied with its directions to consider the mitigating factors - and the district court plainly did not.
Now, it can be argued that Gall, etc., satisfied the exceptions to the law of the case doctrine such that they would justify revisiting the previous decision. But that is quite different from the question whether the sentence was reasonable, which is quite beside the point right now.
BTW, the other judge in the majority, judge Milan Smith, is a Bush II appointee and hardly a liberal. And at least judge Reinhardt is better than judge Pregerson w/r/t willingness to follow precedent.

Posted by: rs | Apr 3, 2009 12:00:53 AM

What are the odds that the newly assigned district court judge has his clerks draft a voluminous opinion which fully addresses all the relevant factors, and then "crafts" a sentence of 14 months?

Posted by: Mark | Apr 3, 2009 1:57:23 AM

"The sentence is reasonable. The majority opinion is a joke."

The ruling may very well be a joke, but under our system of laws it is a valid ruling and deserves respect. It's amazing to me when people involved in the legal system promote disrespect for the law; talk about biting the hand that feeds you.

Mark. I would sincerely hope not. Whatever a judge's feelings about the merit's of the sentence, the appeals court has now, twice, ruled that sentence invalid. A pissing match between the district court and the appeals court may make for entertainment but it makes a bad legal system.

Posted by: Daniel | Apr 3, 2009 2:16:49 AM

Who cares? Reinhardt blows off the law, so the District Court gets to the right result. The 22 month "promptly" thing is just beauteous. Basically, the District Court correctly called BS on Reinhardt.

I would have done the same thing if I were the District Court.

Posted by: federalist | Apr 3, 2009 2:22:13 AM

And Daniel, it does not deserve respect. It deserves unsparing criticism. "Promptly" means 22 months? Gimme a break. Reinhardt's a hack judge, and Milan Smith is a wuss for going along with him.

Posted by: federalist | Apr 3, 2009 2:24:05 AM

Federalist, It is too bad that you were unable to convince the court of the merits of your position. Part of the job of a lawyer is to do this.

Posted by: S.cotus | Apr 3, 2009 10:17:37 AM

The need for a double appeal in a sixteen month sentence is also notable. There is an element of triumph by exhaustion here.

Posted by: ohwilleke | Apr 3, 2009 1:26:17 PM

satisfied the exceptions to the law of the case doctrine such that they would justify revisiting the previous decision. But that is quite different from the question whether the sentence was reasonable.
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Posted by: מוסך | Jan 6, 2011 6:36:36 AM

the District Court correctly called BS on Reinhardt.

I would have done the same thing if I were the District Court

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