May 11, 2010
When can (and how eagerly should) circuits declare procedural problems at sentencing mere harmless error?The question in the title of this post is prompted by a new opinion today from the Fourth Circuit panel in US v. Boulware, No. 09-5125 (4th Cir. May 11, 2010) (available here). Here are parts of the panel's ruling (with some cites removed) that got me thinking about this issue (and that also note a circuit split in this arena):
Boulware next argues that the district court did not offer sufficient reasons to show that it made an individual assessment of the specific circumstances in her case in light of the relevant factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009) and the arguments presented. The government concedes that the district court committed this procedural error, but nonetheless argues that the error was harmless. We are, of course, not bound by the government’s concession, but even assuming that the court’s explanation was insufficient, we agree with the government’s assertion that any error was harmless....
Because Boulware argued that the § 3553(a) factors warranted a below-guidelines sentence, the issue is properly preserved, and we therefore apply harmlesserror review in considering whether Boulware’s alleged procedural error warrants reversal.[FN2]
[FN2] We note that some courts have held that there can be no harmless-error review when a district court fails to sufficiently explain its sentence. See, e.g., In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008). We have rejected that approach, however. See United States v. Lynn, 592 F.3d 572, 580 n.5 (4th Cir. 2010)....
In light of the strong indications that the district court fully considered Boulware’s argument for a below-guidelines sentence, and in light of the weakness of that argument, the notion that having to explain its analysis further might have changed the district court’s mind — even if realistic in Lynn — is simply unrealistic in the present case, and remand for resentencing would be a pointless waste of resources. We therefore hold that even assuming that the district court committed procedural error in failing to sufficiently explain the sentence imposed in light of the § 3553(a) factors, any error was harmless. Cf. Neder v. United States, 527 U.S. 1, 18 (1999) ("Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it." (internal quotation marks omitted)).
The cite and quote to the Supreme Court's work in Neder at the end of this opinion in Boulware is what has prompted me to blog about this case. I sometimes fear that defendants who have received seemingly reasonable sentences may be a bit too eager to appeal purely procedural sentencing errors, in part because circuit courts have been generally far more willing to reverse sentences on procedural grounds rather than substantive grounds. And yet, I do not think that it is essential or even worthwhile for circuit courts to develop a robust harmless error jurisprudence in this setting to avoid the risk of "bestir[ring] the public to ridicule" the judicial process. But I am certain that day-to-day federal sentencing practitioners likely have a better sense that I ever could in the ivory tower concerning these interesting (and circuit splitting) appellate sentencing review issues.
May 11, 2010 at 08:12 PM | Permalink
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Totally disgree with this. One, the Neder quote could justify holding practically all errors harmless, so that's right out. Second, why is it that courts can be so sure there would be no change in the sentence? Indeed, it seems when judges try to bring harmless error review into these scenarios they bring the idea of harmlessness without any of the actual requirements to perform its own review of the record (per O'Neal v McAnich and Brecht) and carefully balance the evidence. They just declare no harm; looks reasonable, right?
Third, the "resources" argument is weakest in the sentencing context. We're not talking about a new trial, just a new quick hearing and a better explanation. Fourth. Per above, the point of the explanation is to ensure that the sentence is reasoned as well as reasonable. To do as the Fourth Circuit does and say it's perfunctory is to claim the entire practice is pointless. Really, why does the Fourth Circuit bother writing opinions at all, at least in unpublished cases?
Finally, I'm not saying that there can be no harmless error in sentencing, but there's been such a revolution in sentencing law and I'm not convinced that the desire to add harmless error isn't based on a disagreement with that revolution. Indeed, things like the lack of a statement, a miscalculation of the guidelines where the sentence is still within the guidelines and a lack of understanding of the freedom to vary from the guidelines in policy grounds are not the types of things "susceptible" to harmless error analysis normally. It's a different animal, and I find these attempts totally unpersuasive.
Posted by: MJG | May 11, 2010 8:47:03 PM
Very helpful insights, MJG, though I am not convinced that application of harmless error here shows resistance to the Booker revolution as much as a disaffinity for placing procedural concerns in the revolution ahead of substantive ones.
Posted by: Doug B. | May 11, 2010 10:53:36 PM
Two reactions to this post.
First, as I noted in an earlier comment today, several Circuits have held that plain error review should be relaxed in the sentencing context. There is, however, a Circuit split on this issue on which I have written a cert petition (so far, unsuccessfully). The rationale would apply equally to harmless error review. On this point, I entirely agree with MJG's third point.
Second, the failure to address a non-frivolous argument for a non-GL sentence and/or to adequately explain the sentence should never (or almost never) be reviewed for harmless error. It gives district courts an incentive to say less, which, IMO, is the exact opposite of what should be encouraged. For example, what if the reason the district court rejected the non-GL sentence is due to an inappropriate reason (i.e. it erroneous felt it was unable to vary on that ground, it erroneously believed the defendant needed to have unique characteristics in order to disagree with the GL, etc. I have read Circuit opinions that have reversed on these grounds). But had the court said nothing and harmless error review was employed, then the true error of the court’s reasoning would never have been discovered. Under a system of harmless error review, the less a court says, the lower exposure to reversal.
Posted by: DEJ | May 12, 2010 12:36:53 AM
I'm interested in your project. What, in particular, do you think of the oft-ignored fourth prong of plain error review? What exactly does it mean, and when should courts use it to justify denying relief even when the other three prongs are met?
Posted by: Jay | May 13, 2010 1:21:14 AM
From: Kevin Coleman 409100
La. State Prison
Angola , La. 70712
Regarding: Guidance, Assistance, Publicity, Help!
(I have legitimate paperwork, if needed.)
I pray, that you and yours are well, upon receipt of this most sought after, and extreme request, etc.
Greetings! And, Please understand that this is a major cry for help. I am still a very young colored male at the present age of thirty-two, (32) years. I’ve been incarcerated for 15 years! I’m serving a “Natural Life” sentence, for a crime I am so innocent of. I was indicted, convicted, and sentenced in Minden , La. 71055. ( The State of La. Convicted me of First Degree Murder.) My orginal docket number is, # 58,701. “In case,” you or someone would find it in their heart/spirit, to log-on to my original case cite. This is also my first experience with the system, (first offender of any criminal action what so ever)
Though, I will say that I “Never” thought being innocent, was the same as being guilty…. “ Moreover”, In this 26th Judicial Court System of Webster Parish, ( Minden ). I find that money is the key, etc. I’m now at a loss of knowing what to do, for I’m not financially blessed. Though, I do have a “spirited faith”, that someone will help you, “if you ask the right person”.
So, I pray that you would be able to assist me by leading me in any direction where I may need to be, “If” not to you! Also, attached are a few claims that were denied of me in court. “Yet”, I have so much more. “God” knows of my innocence! Please help me!
Quote: “I Am Invisible, Understand, Simply Because People Refuse To See Me”. (Ralph Ellison:1952)
Erroneous Claims (there is more, plus supporting documents)
Invalid Grand Jury Foreman Indictment
States eye witness testified in trial court that I was not the man he identified as the killer
States other key witness testified in trial court that he was suppose to get paid in exchange for his testimony against me
Bill of Particulars and Bill of Information is in conflict with each other
Indictment carries no elements what so ever
In trial lawyer raised, and objected to Art. 413(b) in which violated right upon trial
State had no finger prints to link to the crime
State never proved that I was physically on the crime scene
I have alibi witnesses who were not called, Infact, denied, on the day of trial to account for my where abouts on the day this crime was to have taken place.
I was never arrested on murder charges, - “Instead”, officer’s arrested me on some two year old traffic ticket for the mere purpose of interrogation
State called for their witness, ex-convicted felons and ex-federal felons to prove their case against me
During preliminary examination, State never objected to my testimony about being physically abused by ex-convicted Federal Felon Detective Gary LaVon Valentine
It was proved in trial court that I was beaten and forced into making coerced statements against myself
State called a creditable officer to the stand, In whom testified to the fact that Ex-Federal Felon (Detective Gary LaVon Valentine) lied under oath/ perjured himself as to I “did infact” slap/cut the tape recorder off during interrogation
Ex-Federal Felon (Detective Gary LaVon Valentine) perjured himself numerous times, when questioned about my free and voluntariness, as well as his history with law do to a Federal Judges plea agreement/order/conviction
Ex-Convicted Federal Felon (Detective Gary LaVon Valentine) perjured himself again by saying that, “ If I would have shut the tape recorder off he would have stopped the interrogation knowing that I freely would not want to do of so.” Yet! He continued by saying that I was “sobbing and crying”, during the interrogations and I may have “attempted” to cut the recorder off, etc. Pure Perjury!
Judge abused his discretion, by allowing a “non – certified” person to be accepted as a Certified D.N.A. Analyst
Judge abused his discretion by accepting testimony given by a Non-Certified D.N.A. Analyst, extending with knowledge that the Criminal Laboratory was closed for malfunction in misprints of readings, as such in my case, extending with the knowledge that those “Certified” D.N.A. analysts reasons for not coming to trial was because they desire to not give “inaccurate” readings/findings at my trial. (Criminal Laboratory was closed during and after my arrest)
I have in my immediate possession, The Probation/Parole and Commincment Order handed down to the Convicted Federal Felon (Gary Lavon Valentine) which reads: “suspend 9 ½ years, and serve 6mths. In Montgomery Alabama Federal Prison Camp and he should never work as a law abiding officer in the future.
Thank you for your time and concern. I pray that you will find interest in some form or fashion to help me get back to my wife to be who has been awaiting my return for 15yrs so that we as a family canlive out our lives as we planned before this injustice system pulled us apart. My wife and son are in need of me and it is my responsibility as a man of faith to be there as the head of my household.
Truth in Christ,
Posted by: kevin coleman | May 18, 2010 7:11:36 PM