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August 22, 2013

Eleventh Circuit finds way-below guideline sentence substantively unreasonable for abusive corrections officers

I have long hoped that reasonableness review would have some more teeth in the circuits, and a panel ruling by the Eleventh Circuit today in US v. McQueen, No. 12-10840 (11th Cir. Aug. 22, 2013) (available here), provides a reminder that reasonableness review does seem to have at least a little more bite when prosecutors appeal a sentence they consider way too low. Here are the final paragraphs of the panel opinion in McQueen:
[T]aking the § 3553(a) factors as a whole as well as the district court’s findings, we can only conclude that McQueen’s and Dawkins’s sentences were substantively unreasonable and that the district court abused its considerable discretion in imposing them. Undoubtedly, a district court has great discretion in balancing the § 3553(a) factors. Still, it must afford “some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that ‘achieve[s] the purposes of sentencing stated in § 3553(a).’” Id. (alteration in original) (quoting United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)). If a district court instead commits a clear error of judgment in weighing the sentencing factors and arrives at a sentence beyond the range of reasonable sentences, we are duty bound to vacate and remand for resenten cing. United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007) (per curiam). As we see it, the trial court focused virtually exclusively on one factor -- unwarranted disparities -- to the near abandonment of other critical factors and arrived at sentences falling profoundly outside the range of reasonable sentences.

Accordingly, we vacate the sentences imposed on McQueen and Dawkins and remand to the district court for further review and resentencing. In so doing we do not suggest what the sentence should be; nor do we intimate that no variance is justified. We simply hold that downward variances of more than 90% where one corrections officer brutalized more than five young prisoners and then lied about it, and another intentionally sought to conceal these serious crimes are unreasonable.

August 22, 2013 at 02:48 PM | Permalink


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There are a lot of lessons from this story.

1. It's Exhibit A as an answer to the feckless cry, "Let our sentencing judges be judges!" The notion that district judges are inevitably to be trusted with sentencing is demolished by this case. They make serious errors like everyone else, and sometimes the errors are appalling, as here. This is what happens when you give 100% discretion to the judge. Could it be more obvious that they need some binding law?

2. If we had a mandatory minimum, this sentencing outrage could not have happened. The prosecutor could have said then and there, "I don't care what you feel like, Mr. Judge, the law says a minimum of X and X is what you will impose."

Again, we can argue about what the "X" ought to be, but if we can't demand a rock-bottom minimum for outright sadism, what has become of our morals?

3. So much for the notion that prisons can provide infallible security, and thus that we're as safe with LWOP as with the DP.

4. I recognize that being a prison guard is difficult and often very dangerous. And it could be that there was more provocative behavior by the inmates than appears in the opinion. But we have a right to insist on a minimal level of responsibility and decency, and to back it up with serious punishment if we don't get it. The district court here failed to deliver.

5. I suspect that most of the commenters who regularly appear here understand that this case deserves an upward, not a downward, departure. We all know the district judge isn't going to do any such thing. He should have been given a much sterner warning by the Circuit than what he got.

Posted by: Bill Otis | Aug 22, 2013 3:29:31 PM

This opinion undercuts the false notion that judges have unfettered discretion. Unlike prosecutors, judges's decisions are made and explained publicly and reviewed (and sometimes reversed) publicly. This is how checks and balances work and why entrusting judges with more discretion will not lead to anarchy. When DOJ appeals lenient sentences, they win far more often than they lose.

Posted by: Thinkaboutit | Aug 22, 2013 3:37:02 PM

Thinkaboutit --

Judges do not at present have unfettered discretion because we still have mandatory minimums. But if the appellate panel OF JUDGES breaks the other way in this case, then where do we turn?

"This is how checks and balances work and why entrusting judges with more discretion will not lead to anarchy."

First, do you really want to use this case as a reason for "entrusting judges with more discretion"? Second, no one said it will lead to anarchy. It will, however, lead to more indefensible sentences. Third, mandatory minimums ARE a check-and-balance. The alternative is to give the judicial branch 100% of the say-so in sentencing, and that is the OPPOSITE of a checks-and-balances system.

"When DOJ appeals lenient sentences, they win far more often than they lose."

That's because they appeal only a tiny fraction of the sentences they could, and they select fish-in-a-barrel cases like this one. Dozens if not hundreds of other almost-but-not-quite as bad sentences go without an appeal, for the noble purpose of DOJ's wanting to protect its winning percentage.

I said that we can argue about what the particular minimum ought to be, but if we can't demand -- DEMAND -- a rock-bottom minimum for outright sadism, what has become of our morals? I'd be curious as to how you would answer that.

Posted by: Bill Otis | Aug 22, 2013 4:24:53 PM

How about a Mandatory Minimum for Scooter Libby and no Pres Pardon for him either Bill... How do you feel about that one..

You get 1 outlier out of the entire mess and you insist on Mandatory Minimums...

Maybe we should only have Manadatories for everything and totally skirt a Judge... Theres out Fiscal savings I knew it
Bill,you are a Liberal thru and thru...

Posted by: MidWest Guy | Aug 22, 2013 4:32:29 PM

MidWestGuy --

I am for mandatory minimums for some, not all, crimes. You didn't know that? And I have never recommended a MM sentence for any of the crimes for which Libby was convicted.

Even if I had, however, I have never said and do not believe that the constitutionally-conferred power of commutation legally can or should be trumped by mandatory minimums or any other kind of sentence.

"You get 1 outlier out of the entire mess and you insist on Mandatory Minimums..."

Actually, I've been arguing for MM's well before I ever heard of this case, as you know. If a point be made of it, however, MM's are for PRECISELY the outlier, where some addled judge will be tempted to go off on a lark, as the judge did here.

" Maybe we should only have Manadatories for everything and totally skirt a Judge..."

Nope, again as I have said repeatedly, in numerous national outlets and not just here, MM's should be (and under present law are) reserved for a relatively few serious crimes.

"Theres out Fiscal savings I knew it
Bill, you are a Liberal thru and thru..."

Be sure to tell that to Eric Holder. He'll get a kick out of it.

Posted by: Bill Otis | Aug 22, 2013 6:16:11 PM

"The notion that district judges are inevitably to be trusted with sentencing is demolished by this case. " Mr. Otis, there you go again taking an isolated case of one unreasonable sentence that was corrected on appeal and painting all trial court judges as untrustworthy. Simply ludicrous but love your partisan federal prosecutors can do no wrong mantra. You are so far outside the mainstream arguing for greater use of MM's in far more cases that now exisit. It's never going to happen so keep arguing for it because you will convert folks to a more moderate sentencing position. You ate a liberals best friend.

Posted by: Steve Prof | Aug 22, 2013 7:19:00 PM

Bill, can you answer a question for me first: What in the world was the prosecutor thinking when he allowed one of the co-sadists to plead guilty to a misdemeanor?

Posted by: Thinkaboutit | Aug 22, 2013 9:54:32 PM

Thinkaboutit --

I don't know the prosecutor, don't know the office, and don't know all the facts, so I cannot answer your question directly.

I do know that laziness pervades the human psyche, that the easy thing to do is plead a case rather than do the work needed for trial, and that irrational leniency pervades the system. I also know that wily, experienced defense lawyers have been known to undress inexperienced AUSA's.

If that's what happened, it worked like a charm this time.

Posted by: Bill Otis | Aug 22, 2013 10:41:11 PM

Perhaps he was thinking about how that defendant had already gotten a jury to hang once.

Posted by: Jay | Aug 22, 2013 10:51:44 PM

Such evil deserves a far more severe penalty.

Posted by: Just Plain Jim | Aug 23, 2013 4:29:59 AM

Just Plain Jim --

Finally, the voice of reason shows up and says it in plain language: "Such evil deserves a far more severe penalty."

The idea that we are going to get any such thing from this district judge is nonsense. He'll move up a notch, just as little as he thinks he can get away with without inviting another reversal.

This is the type of "justice" that is being touted on this thread as the sort of discretion we need more of, and if Congress has the temerity to think that ANY legislatively-imposed, rock-bottom floor might improve the situation -- well, my goodness, how dare they.

The judicial branch should have ironclad, 100% say-so over sentencing, without any sharing of authority whatever, because............well because.............because we know it's infallible.

That's it! The other branches screw up all the time, but the judicial branch is infallible, so there should be no checks-and-balances, as in ZERO, on it!!!

Why didn't we all see this before now???!!!

Posted by: Bill Otis | Aug 23, 2013 9:12:27 AM

Bill, I feel like your last response devolved into caricature. NO ONE says that judges are infallible. The point is simply that their decisions are public and can be appealed and, when they go way off base, they are almost always overturned. If you think that doesn't happen enough, take it up with the prosecutors who have that right of appeal.

As to your response to my question last night, you said, "I don't know the prosecutor." Exactly. You think these criminals were sadistic monsters and the PROSECUTOR let one go with a misdemeanor WITH NO EXPLANATION. What a far cry from judges who are required to explain their decisions and are overturned for procedural unreasonableness when they don't - and even substantive unreasonableness if their explanations are lacking. There is only one entity whose decisions I've been told are so mysterious and good as to not require explanation to mere mortals. Now it makes sense: prosecutors are gods.

On the grounds of disparity, THIS PROSECUTOR created an unbelievable sentencing disparity with no explanation. The judge, if he sentenced as you think he should have in accord with the guidelines, would have created an enormous disparity. But it's clear you only care about disparities when they are below what similar offenders received - in this case, a co-conspirator. You wanted disparity here. In fact, you probably wouldn't have viewed it as a disparity. Again, what's amazing is that we don't know what ultimate sentence these guys will get on remand, but we know what the co-con who got the deal got and you say nothing about it (except that maybe the prosecutor got fooled by the defense attorney - always someone else's fault.) Where's the outrage over the short sentence for the sadist whose sentence is final?

Posted by: Thinkaboutit | Aug 23, 2013 9:36:01 AM

Thinkaboutit --

First things first.

I asked you whether you though Congress was entitled to instruct judges to impose a certain rock-bottom sentence for sadism (those were not my exact words, but that was the gravamen of it). You said you wanted to ask me a question first, about what the prosecutor here could have been thinking. I answered that question, and now I request that you answer my original question.

Before then, I will limit my present response to just this: You now acknowledge that judges are not infallible. But that being the case, the sentencing process will be structurally improved if the other branches have at least some say-so in sentencing, rather than being wholly excluded, as the Leahy-Paul bill would do.

The truth is that all three branches are fallible, and that the likelihood of a correct outcome is improved if EACH can act as a check-and-balance on the others. If Congressionally imposed MM's disappear, then the principal Congressional check disappears with them, and the checks-and-balances system you say you want will be weakened, not strengthened.

Now I'd again ask that you answer my question: Do you think Congress is entitled to instruct judges that, for certain extended episodes of sadism (or first degree murder, if you'd prefer that example), they must impose at least a rock-bottom minimum?

Posted by: Bill Otis | Aug 23, 2013 10:02:26 AM

only Otis could turn a story about prison guards abusing inmates into an argument for the death penalty.

Posted by: HGD | Aug 23, 2013 10:29:17 AM

I am glad you asked that question again because I had forgotten to answer it and because I think it can put an end to a mostly academic debate. I think Congress has the constitutional authority to set minimum sentences. I do. I agree with you that the authority to set punishment ranges includes the authority to set a floor. I think the only question is a prudential one. And, on that score, I think it would be best for Congress to refrain from setting minimums because they are demonstrably bad at it. (I was part of establishing one and the level of research, debate, and hard thinking that went into it would dishearten even the most cynical civics student.) But this matter could be resolved if Congress set minimums that were truly minimums. What you call "rock bottom" are usually higher minimums that historically averages suggest. Members don't look or care at such historical patterns; they just want to say they gave out tough sentences. But if they did set true minimums - sentences for the least culpable people whose conduct satisfied the elements of a given crime - I think this whole controversy about mandatory minimums would go away. Or at least it would be confined to dueling law review articles.

Posted by: Thinkaboutit | Aug 23, 2013 10:34:20 AM

Thinkaboutit --

Your response illustrates why you're one of the better contributors on this blog.

I think we agree that the real debate going on here, although it gets obscured by bomb-throwers, is not whether mandatory minimums are INHERENTLY bad -- they aren't -- but WHERE the minimum should be set for various offenses. I think we also agree that the Congressional debate about that subject has been influenced by politics (imagine that -- a Congressional debate influenced by politics), and that if we could get sober about it, it wouldn't be that hard to come up with a system that would command fairly broad support.

Posted by: Bill Otis | Aug 23, 2013 12:09:50 PM

Part of being a nation of laws is realizing the role that separation of powers plays in the legal system.

The legislative branch is supposed to write the laws. Being elected, its not too surprising that they do an imperfect job from the point of view of us in the legal community because their job is to represent the votes, not lawyers, and what concerns those of us who deal with this day-to-day do not necessarily play well in what passes for debate on the left or the right. (I have seen tough prosecutors face ads accusing them of being soft on crime when they give a decent, but not great, deal to the least culpable offender to get that offender to testify against the shooter in a multiple homicide.) However, they get to decide what the range of appropriate punishments are for offenses, and their decisions are subject to review by the voters. We may not like what the voters want, but, in a constitutional republic, the default presumption is that the voters should get what they want, even if it is a suboptimal decision.

The job of the executive branch is supposed to be to enforce the laws enacted by the legislature. Because the legislature does not appropriate enough money to investigate every crime and go to trial on every crime, the executive branch has to set priorities which sometimes means plea bargaining to a lesser offense with a lower minimum punishment (or no punishment at all).

The job of the judiciary is to conduct trials and decide which sentence (inside the authorized range of punishment) is appropriate. When there is an ability to appeal a sentence as being unreasonable, it is solely because the legislature decided to authorize an appeal and to create standard governing the judicial discretion to decide the appropriate punishment.

This case is a good example of why the legislature should establish a range of punishment and enact clear standards for determining when a judge's sentence in a given case is unreasonable.

Posted by: tmm | Aug 23, 2013 2:25:31 PM

tmm --

"[Legislators] get to decide what the range of appropriate punishments are for offenses, and their decisions are subject to review by the voters. We may not like what the voters want, but, in a constitutional republic, the default presumption is that the voters should get what they want, even if it is a suboptimal decision."

Very well put, as is the rest of your post.

Do I know you? As thoughtful as your analyses are, I feel like I must have run across you somewhere along the way.

Posted by: Bill Otis | Aug 23, 2013 2:56:30 PM

Personally i think this is a complete crock of shit!

That demonstrates the total twofaced treasonous actions of our criminal govt!

First if there was to be any decison on the sentence. It should be done BEFORE said sentnece is issued. Sorry once announced in OPEN COURT. It's too FUCKING LATE! You don't get a DO-OVER!

But didn't the 7th appearls court just announce to the UNIVERSE that even when the COURT FUCKED UP and gave a poor sucker 200 plus months in federal prison instead of 21! was just SHIT OUT OF LUCK because of FINALITY!

But here when it's the other way! Suddenly then FINALITY doens't mean quite what the lieing sack of shits mean!

seems it's only FANALITY when it's the way the criminals who run this county want it. Other wise...All bets are off!

Posted by: rodsmith | Aug 23, 2013 11:06:58 PM

hmm all this time and no response from all the laywers here. Seems that old saying is true.

The truth hurts!

Posted by: rodsmith | Aug 28, 2013 3:17:06 AM

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