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September 20, 2010

Notable dissent from Ninth Circuit denial of en banc review of probation sentence for "big-time thief"

As detailed in this post from back in February, a split Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here), upheld as substantively reasonable a probation sentence given to convicted fraudster Duncan Edwards, whom the dissenting judge described as a "big time thief.”   Today, as detailed in this order, the Ninth Circuit has denied en banc review in Edwards, and that decision prompted a notable dissent by Judge Gould (which was joined by three other judges).  That dissent gets started this way:

In his cogent dissent from the majority decision of our three-judge panel, Judge Bea persuasively catalogs the laundry list of analytical errors committed by the district court at sentencing.  See United States v. Edwards, 595 F.3d 1004, 1018-25 (9th Cir. 2010) (Bea, J., dissenting).  I will not restate all of those errors here. Instead, I write to emphasize a larger and recurrent problem: our court’s practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness.  Our “rubber-stamp” approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations.  Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail.

Although we owe deference in the area of sentencing to a district court’s “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference.  Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court. See United States v. Ruff, 535 F.3d 999, 1007 (9th Cir. 2008) (Gould, J., dissenting) (“[D]istrict courts sentencing white collar criminals can more often identify with the criminal . . . . But, socioeconomic comfort with a criminal convict is not a sufficient reason to show such extreme leniency . . . .”); Kenneth Mann et al., Sentencing the White- Collar Offender, 17 Am. Crim. L. Rev. 479, 500 (1980) (concluding from a survey of federal judges that they evinced particular “understanding” and “sympathy” “for the person whose position in society may be very much like their own,” and that “factors intimately related to the defendant’s social status do receive weight in the judges’ thinking” about sentencing).  And while judges take seriously violent crime and are forced by congressional mandatory minimums to take seriously drug crimes, there is latent risk in the case of white-collar sentencing that an “it’s only money” rationale will result in undue leniency for serious offenses.  I have no doubt that Edwards made a persuasive presentation to the district court that he was an unhealthy, aging retiree repentant of past frauds.  Such cases are precisely when we should most rigorously review a sentence’s reasonableness to ensure that the justifications relied on at sentencing are supported by objective evidence in the record. See Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2141-49 (2010) (criticizing appellate deference to trial judge assessment of demeanor evidence at sentencing on the basis of the “emerging consensus in the legal and social science literature that people generally do a poor job in evaluating demeanor evidence,” and concluding that a defendant’s demeanor “seems about as likely to lead the trial judge astray as to facilitate good decision making”).  We know that often criminal defendants who commit other types of crimes will serve some hard time.  White-collar offenders like Edwards should not escape the same punishment simply because they are better-positioned to make a sympathetic presentation to the district judge.

I have bolded two phrases in this dissent because these lines appear to make a case for the Ninth Circuit to embrace and apply a more rigorous form of reasonableness review especially in white-collar cases.  Obviously, Judge Gould's advocacy here did not convince a majority of Ninth Circuit judges, and I am curious to hear whether readers like the idea of special approaches to reasonableness review in special kinds of sentencing cases.

September 20, 2010 at 03:51 PM | Permalink

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Comments

The dissenters suggestion that a different standard of review should apply to white collar offenders undermines confidence in the wisdom of 3553(a)

Posted by: Benson Weintraub | Sep 20, 2010 4:27:00 PM

The end of mandatory guidelines made inevitable the return of irrational (and discriminatory) disparity of the sort we see here.

I'm sure the greed-driven (uh, make that "white collar") defense bar is overjoyed. Whether anyone else should be is a different question.

Posted by: Bill Otis | Sep 20, 2010 4:58:38 PM

lol what a crock!

"Although we owe deference in the area of sentencing to a district court’s “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference. Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court."

This is the SAME lame excuse they used to hammer sex offences just going the other direction. sorry just like there it's a NO-STARTER HERE as well.

Posted by: rodsmith | Sep 20, 2010 6:09:13 PM

I am a defense attorney.

It's a passionate dissent, but it is a non-starter, as a conceptual approach. While punishment should certainly fit the crime, I don't see how you can select white-collar crime into a separate category for the purpose of sentencing review. Nor does it seem reasonable to tie sentencing judges' hands in all cases, regardless of the actual facts of the case. Frankly, the Ninth Circuit should be more rigorous in appellate review of ALL sentences. I do agree that the circuit's overall reasonableness review has become, more or less, a rubberstamp of what the district court does.

Posted by: Gene | Sep 21, 2010 3:18:38 AM

As I understand it, the dissenting judge is not advocating a different approach to white collar sentences. He is merely making the observation that, in his view, unusually lenient sentences tend to occur more frequently in white collar cases, for the reasons he states. This judge would be equally eager to review a non-white-collar case for substantive unreasonableness; he is just saying that those cases don't come along as often.

Posted by: Marc Shepherd | Sep 21, 2010 8:58:58 AM

"I respectfully dissent because as a circuit we should have reviewed this case en banc to fashion some standard for when a sentence resulting in no time in prison is unreasonable for white-collar crime." That, to me, sounds like a call for a special standard in white-collar cases.

Posted by: Gene | Sep 21, 2010 1:23:00 PM

"Undermines confidence in the wisdom of 3553 (a)"

I have to chuckle when I see references like this. Let's bury the pretense that there is any wisdom in 3553(a).
This section is nothing more than a compilation of vague, directionless, independent, concepts that allows a jurist to pick and choose their idiosyncratic sense of justice with relative impunity.

Posted by: mjs | Sep 21, 2010 2:29:51 PM

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