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December 8, 2011

Split Eighth Circuit panel affirms 10-year-max sentence despite guidelines range of 0 to 6 months

Today brings a fascinating split sentencing decision from the Eighth Circuit in US v. Richart, No. 10-1167 (8th Cir. Dec. 8, 2011) (available here).  The majority opinion starts this way:

After a jury found Wanda Richart guilty of one count of conspiracy to make a false statement in violation of 18 U.S.C. § 371 and one count of making a false statement in violation of 18 U.S.C. § 1001, the district court sentenced her to sixty months' imprisonment on each count, to be served consecutively, and three years' supervised release.  Richart appeals her sentence, arguing that the district court committed procedural error in imposing a two-level adjustment for her role in the offense, in imposing an upward departure, and in running the two sentences consecutive to each other.  Richart also contends that the district court abused its discretion by imposing a substantively unreasonable sentence and by imposing special conditions of supervised release. For the reasons stated below, we affirm.

Though this starting description from the majority does not make the Richart case sound too exciting, these passages from the start of Judge Bye's dissent highlight why the Richart decision makes for an intersting read:

The district court here varied upward from the 0 to 6 months Guideline range and sentenced Richart to 120 months’ imprisonment—the statutory maximum—for making, and conspiring to make, false statements to an FBI agent....

The record demonstrates the district court’s decision to vary upward from the 0 to 6 months Guideline range, and impose a 120-month sentence, rested largely, if not exclusively, on the court’s desire to correct what it perceived to be an inadequate state sentence for Richart’s second-degree murder conviction. Specifically, the court gave significant weight to the nature of Richart’s state conviction, the length of her state sentence, and the uncertain amount of time she would actually serve in state prison.

December 8, 2011 at 04:43 PM | Permalink

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Seems fair to me.

Posted by: federalist | Dec 8, 2011 5:17:59 PM

Seems absurd to me.

Posted by: Calif. Capital Defense Counsel | Dec 8, 2011 6:25:42 PM

Why? This woman lied to federal agents about the whereabouts of a girl over whom she had custody. The statutory max seems just about right, as it's difficult to think of any lies that are less egregious. The lies harmed the dead girl's brother, and they were clearly a scheme to cover up her involvement in the girl's death. Moreover, were they believed, they could have had the effect of keeping a boy with the very person who killed his sister.

Of course, as Capital Defense Counsel, I am sure you're used to minimizing the appalling transgressions of people you seek to "humanize." (By the way, the more you humanize them, the more you show them morally responsible for their crimes.) This woman lied to federal agents about the whereabouts of a dead girl. I guess that doesn't offend your sensibilities--after all, you probably nodded with approval when Komisarjevsky's defense counsel helpfully explained that "Josh" only ejaculated on the terrified (and likely disgusted) 11 year old girl. Ya see, Capital Defense Counsel, in the real world, the idea that "Josh" was somehow defended by such a comment by defense counsel is "absurd".

Posted by: federalist | Dec 8, 2011 6:48:34 PM

I thought the discussion here was about a 10-year federal prison sentence imposed for a "crime" (lying to a federal cop), for which the specified guideline range was 0-6 months; I was unaware that this was a discussion about the particulars of a murder case in Connecticut. Wouldn't a discussion about Martha Stewart's sentence be a little less impertinent to the subject at hand?

Posted by: Calif. Capital Defense Counsel | Dec 8, 2011 7:07:23 PM

Well, that all depends CCDC. The issue, ultimately, is whether a person who lies about the whereabouts of a minor child over whom that person has custody is a run-of-the mine lying to cop "crime" or whether it is aggravated (and that's putting aside the issues with the defendant trying to coerce others into the story). Most normal people would say that it is aggravated. But you, without analysis, say that the result is "absurd." I see that, and with your name, put two and two together and figure that it's an extreme ideology that leads you to your conclusion (an ideology similar to the defense attorney in Connecticut who thinks that his helpful explanation actually defends Komisarjevsky). You apparently question whether this woman's lying to (federal) cops is even a crime in the first place (I don't know what other conclusion I can come to-given that you put crime in quotation marks.) Now I get that the lying to cop statute can be abused and that you may not like that--fair enough, but is there even a hint of that here? And now that we're assuming that lying to cops is a real crime, doesn't this one strike you as particularly egregious, as lying to cops goes? Wasn't it appallingly cruel to the dead girl's brother? Guess not in your book. After all, the idea is "absurd."

My educated guess is that you are absolutely appalled by, quelle horreur, the state putting down a vicious thug killer like Tookie Williams. Odd that you have such exquisite sensitivities for killer like him, but a detached insensitivity about the cruelty to a boy led to hold out hope that his brutally murdered sister was alive. It's also my guess that if you had a choice--save some death row inmate or prevent this boy from being cruelly told his sister was alive, you'd choose to save the death row inmate. In other words, when given a choice, you'd choose that the innocent suffer rather than the guilty. Now that's a guess, but I suspect that I am dead on. And it tells us all we need to know about your moral compass.

Posted by: federalist | Dec 8, 2011 7:51:42 PM

As Prof. Berman has pointed out in at least one previous thread, the defense bar likes advisory-only sentencing guidelines and has strongly resisted a return to mandatory guidelines with robust appellate enforcement.

This is an understandable position, as the defense bar is well aware that the number of downward departures -- even omitting the government's substantial assistance departure motions -- swamps the miniscule number of upward departures.

That is a perfectly rational choice, but the defense bar should have the normal maturity and restraint to accept the small amount of bad (as they see it, this sentence) along with the large amount of good (the boatload of downward departues that would not have survived in a mandatory system).

Sentences like this are rare but inevitable in the advisory, luck-of-the-draw system we have now. For those who like Booker, time to quit complaining about what you know in advance will occasionally go with it.

Posted by: Bill Otis | Dec 8, 2011 7:58:45 PM

Bill, you're right that those who support advisory guidelines shouldn't complain when a judge goes off and does something like this. You, on the other hand, want to tie the judges to the guidelines. So, for the sake of consistency, this dramatic departure from the guidelines should bother you as much as those that go the other direction. But, honestly, does it? I am new to this page and am trying to figure out if everyone who comments is results-oriented or just some.

Posted by: Thinkaboutit | Dec 8, 2011 10:29:24 PM

i agree to go from 0 months to 10 years is what 10000000% above the guidelines....sounds criminal to me! especialy after this statement from the reviewing court!

"The record demonstrates the district court’s decision to vary upward from the 0 to 6 months Guideline range, and impose a 120-month sentence, rested largely, if not exclusively, on the court’s desire to correct what it perceived to be an inadequate state sentence for Richart’s second-degree murder conviction. Specifically, the court gave significant weight to the nature of Richart’s state conviction, the length of her state sentence, and the uncertain amount of time she would actually serve in state prison."

Sorry but last time i looked under the CONSTUTION that action in the state court is NONE OF THEIR DAMN BUSINESS!

ESPEICALY considering how many state cases go the other way! and those two-faced santiminous assholes just say ...TOO BAD SO SAD! we can't touch a state decison!


i hope she spends the enteire time in federal confinment trying to get out of a plainly ILLEGAL INPRISONMENT anyway she can NO MATTER who she has to HURT or KILL to do it!

Posted by: rodsmith | Dec 8, 2011 11:23:32 PM

rod, if you think about it, some crimes have to qualify for the statutory max. If this one doesn't, then what sort of lying to cops would?

Posted by: federalist | Dec 8, 2011 11:45:07 PM

I'm sympathetic to that point federalist. To me the question is why is the guideline range 0-6 MONTHS if the statutory max is 10 YEARS. So the question to me is not if her sentence is out of wack but if the guidelines are out of wack.

Posted by: Daniel | Dec 8, 2011 11:51:08 PM

Thinkaboutit --

I play the game that's in the field, not the game I would have preferred but didn't get. The game that's in the field is anything-goes guidelines, and that's what this sentence reflects.

If we returned, as in my view we should, to mandatory guidelines, I would look at this sentencing with the new eyes such a change would require. Since that change is a long way off if it ever happens, I dourly accept what we have now, as adult life requires the acceptance of unwanted and sometimes dreadful things. It is for that reason that I no longer bemoan absurdly low sentences any more than I bemoan this high one. As Hyman Roth said in The Godfather, "it's the life we have chosen."

Posted by: Bill Otis | Dec 9, 2011 7:04:14 AM

I can't quibble with a response that quotes the Godfather.

Posted by: Thinkaboutit | Dec 9, 2011 9:41:18 AM

Thinkaboutit --

For your amusement, here's the whole quotation:

"There was this kid I grew up with; he was younger than me. Sorta looked up to me, you know. We did our first work together, worked our way out of the street. Things were good, we made the most of it. During Prohibition, we ran molasses into Canada... made a fortune, your father, too. As much as anyone, I loved him and trusted him. Later on he had an idea to build a city out of a desert stop-over for GI's on the way to the West Coast. That kid's name was Moe Greene, and the city he invented was Las Vegas. This was a great man, a man of vision and guts. And there isn't even a plaque, or a signpost or a statue of him in that town! Someone put a bullet through his eye. No one knows who gave the order. When I heard it, I wasn't angry; I knew Moe, I knew he was head-strong, talking loud, saying stupid things. So when he turned up dead, I let it go. And I said to myself, this is the business we've chosen; I didn't ask who gave the order, because it had nothing to do with business."

One of the great injustices in the history of civilization was that Lee Strasberg, who played Hyman Roth, did not get the Oscar for Best Supporting Actor.

Posted by: Bill Otis | Dec 9, 2011 10:16:25 AM

One question is whether the court should take into account the state sentence from defendant's other case in fashioning the federal sentence in this case. But the defense bar's position on that is already clear. Every day in federal court, defense lawyers raise the argument, "Your honor, defendant is already facing an x-year sentence / parole hit in state court (or another federal court). That is enough punishment, and by the time he gets out, he will be y years old."

If it's appropriate there, then it's not categorically inappropriate here -- whether or not the district court's ultimate sentence (which does seem high to me) was right.

Posted by: Sauce for the goose | Dec 9, 2011 11:28:05 AM

Sauce for the goose --

Excellent point.

Posted by: Bill Otis | Dec 9, 2011 11:49:11 AM

I see that our friend, the Cali. Capital Defense Attorney, has clammed up. It's tough to run with the big dogs.

Posted by: federalist | Dec 9, 2011 11:56:42 AM

federalist: "This woman lied to federal agents about the whereabouts of a girl over whom she had custody The statutory max seems just about right, as it's difficult to think of any lies that are less egregious."

me: granting that the lie in this case was in fact egregious, the fundamental question really needs to start with asking whether there should be any separate criminal liability for the lies. Obviously, I know about due sovereignity and double jeopardy rules - I do not know about Arkansas sentencing law and whether their sentences would take into account the dishonesty - but the defendant here is really being punished for conduct that was part of the murder. Personally I have no problem with the application of the law in this case - because her obstruction did create additional harm - and her conduct was sufficiently disgusting that I am not exactly going to lose any sleep over her sentence. But, it still gives me pause that there is even a separate crime - from an efficiency standpoint, it would make more sense to merely list the obstruction of justice and lies in this case as a sentnecing factor in the murder sentence. Because, really, the lies and obstruction of justice were part of her overall scheme to murder her niece and avoid detection for the murder.

As I said, I really have no problem and even quite a lot of approval with the result there - but the dissenter is basically right about the process - pretending that she is being sentenced for lying - which was really part of the original murder and concealing of the body - is a judicial and legal fiction. Obviously, this would give me a lot more pause in a less egregious case - but as the guidelines sentence really show, this "crime" effectively is primarily a sentencing factor.

It seems weird and kind of contradictory to me that I am sitting here approving of the result but hating the process by which the result came about - but regardless of my misgivens and preference that the defendant's lies in a case like this where the lies were solely to conceal a more serious crime, would be treated as sentencing factors for the underlying crime, it was a legal law passed by Congress to create a separate crime of lying to federal agents - and really, if this isn't a maximum sentence case under the crime what is?

Posted by: virginia | Dec 9, 2011 1:02:38 PM

virginia, here's a thought, and please don't take it harshly, but handwringing isn't analysis . . . .

you have some vague discomfort over the process--but lying to cops is a crime, and this one was particularly bad.

Yes, the lying to cops crime can be used to work injustice because of the he said she said problem--save your critiques for those situations.

Posted by: federalist | Dec 9, 2011 2:26:39 PM

HMM

"rod, if you think about it, some crimes have to qualify for the statutory max. If this one doesn't, then what sort of lying to cops would?

Posted by: federalist | Dec 8, 2011 11:45:07 PM"

Perosnaly considering just how out of control our so-called govt has gotten along with IT'S law enforcment. Most american's in the normal run of life have every LEGAL RIGHT to lie to cops! After all most of them are LIEING everything they open their mouths!....so give it right back to them.

You know. Do unto others as you would have them do UNTO you!

sorry once the u.s. supreme court decided it was perfectly legel for cops to LIE, CHEAT, STEAL and so on. IT BECAME LEGAL FOR US TO DO IT TO THEM!

after all last time i looked THEY get thier power FROM US! so obviously if we have given it to THEM....WE HAVE IT TOO!


but IN this case none of that matters!. For what she was CHARGED FOR!

THEN convicted OF!

THE CRIME CALLED FOR 0-6 MONTHS! sorry 10 years is SIMPLY CRIMINAL!

Posted by: rodsmith | Dec 9, 2011 11:06:08 PM

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