August 19, 2009
Stressing the importance of sentencing explanations by district courts
In a unpublished Sixth Circuit opinion today in US v. Herrod, No. 07-2197 (6th Cir. Aug. 19, 2009) (available here), Judge Clay writes an extended and effective concurrence stressing the importance of district judges explaining their sentencing rulings fully after Booker. Here are excerpts:
The majority rejects Herrod’s claim, concluding that the sentence imposed by the district court was procedurally reasonable. While I agree with the majority’s conclusion that the district court’s sentencing pronouncement was sufficient, I write separately on this particular issue to emphasize that sentencing judges are responsible for providing an adequate record for appeal. Our case law imposes this obligation on district courts for reasons of fairness and practicality. From every perspective, it is preferable for district courts to explicitly address every nonfrivolous argument raised by a defendant. Expressly articulating the grounds for rejecting the particular claims raised by a defendant, at least with respect to a defendant’s nonfrivolous arguments, promotes several critical goals: (1) it provides the defendant with a clear understanding of the basis for his or her sentence; (2) it allows the public to understand the rationale underlying the chosen sentence; and (3) it helps this Court avoid the difficulties of parsing the sentencing transcript when determining whether the district court in fact considered the defendant’s arguments. In fact, if district courts fully complied with this obligation, many frivolous appeals and clarification remands could be avoided....
[I]t is not enough that the district court considerthe parties’ nonfrivolous arguments, it also must explain on the record its reasons for accepting or rejecting such arguments. Requiring district courts to articulate their reasoning on the record is critical, otherwise the transcript would be devoid of any evidence that the district court in fact considered the parties’ arguments, let alone ruled on those issues. Absent such a public statement, this Court would be forced to make inferences and guess at what arguments and sentencing factors the district court actually considered when determining a defendant’s sentence, something we repeatedly have expressed disdain for doing.
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August 19, 2009 at 10:17 AM | Permalink
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Amen. Having worked in the federal courts, I agree that this simple rule, if followed consistently, would save a lot of time. It is very frustrating for a reviewing court to suspect that the district court considered and rejected all of the defendant's arguments (based on inferences from the court's other statements, or the court's generally thorough and meticulous handling of the case), but to be unable to point to a specific page in the record to verify that suspicion.
I imagine it must be frustrating to the AUSAs handling the appeals as well. Even the appellate defenders may be frustrated in some cases---for example, where the gap in the record more or less obliges them to argue that an issue was not considered below, despite the fact that the court of appeals will probably infer in the end that it was considered, and that, even if the appellate court vacates and remands, the district court will probably ultimately clarify that it did consider and reject the argument, and reimpose the original sentence.
Posted by: anon | Aug 19, 2009 11:15:12 AM
This issue has long-bothered me, and the concurrence is 100% correct. A district court judge should be required to address all of a defendant's non-frivolous sentencing arguments and explain why it rejects them. Otherwise, there is no way of knowing whether the reason they were rejected was premised on a valid or invalid reason. By not requiring such, the district court is given an incentive to say as little as possible. Is that really the way we want our sentencing process to work?
An example: In US v. Cereceres-Zavala, 499 F.3d 1211 (10th Cir. 2007), the Court finds no error even though "the district court never mentioned or ruled expressly on either of Cereceres's [sentencing] motions." As explained by the Circuit: "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.'"
But now consider US v. Mahan, 2007 WL 1430288 (10th Cir. May 16, 2007). In sentencing for a strict liability crime, the defendant requested a variance due to his less-blameworthy mens rea. The dist.ct. imposed a bottom of the GL sentence, and rejected the variance request because it did not believe the defendant's mens rea could be considered in sentencing for a strict liability crime. The 10th Cir. reversed because, as the panel explained, the district court's reasoning evidenced that it refused to consider the “‘circumstances’ of the crime” in sentencing, even though only strict liability was necessary for conviction.
Had the dist. ct. in Mahn just said “I have considered your argument on mens rea, and I deny the variance,” or had it not even addressed the argument and just imposed a GL sentence, the 10th Cir. would likely have affirmed under the holding of Cereceres-Zavala. The lesson for the dist. ct. in Mahan: next time, say as little as possible.
Posted by: DEJ | Aug 19, 2009 1:39:16 PM