June 4, 2014
Defendant's appeal gets his sentence increased(!) from 30+ years to LWOP
The First Circuit handed down a remarkable ruling in US v. Sevilla-Oyola, No. 12-1264 (1st Cir. June 3, 2014) (available here). As the start and end of the 30+ page majority opinion highlights, this case provides a remarkable reminder to becareful what you ask for when pursuing an appeal:
Sometimes it's better to quit while you're ahead. The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola ("Sevilla"), each one shorter than the last. Still dissatisfied, Sevilla asks us for another bite at the sentencing apple before a different district judge. To support his claim before this court, Sevilla says the district judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment. Alternatively, he says that even if the judge's later actions were authorized, they were plagued by additional errors.
We agree that the district judge lacked statutory authority to act after he entered the original sentence and that the initial plea colloquy was flawed. But we cannot say that the imperfections Sevilla cites justify setting aside the first judgment. Nor can we say, based on the arguments Sevilla puts forth before us, that the first sentence was unreasonable. Accordingly, the first and most severe sentence imposed by the district judge — 327 months plus a consecutive term of life imprisonment — stands. And Sevilla — who until today was facing a total sentence of 405 months — will likely find himself wishing he had left well enough alone....
We acknowledge that our result may seem harsh. Where Sevilla once faced 405 months' imprisonment, now he must grapple with a life sentence. But Sevilla chose to proceed with this appeal knowing he risked a higher sentence.
At oral argument, we explicitly asked Sevilla's counsel if Sevilla understood that this appeal could subject him to a sentence based on consideration of his alleged involvement in the Pitufo murder and longer than the 405-month term ultimately imposed by the district judge. We sought confirmation that Sevilla wished to appeal anyway. On the spot, counsel asserted that Sevilla understood these risks, but he agreed to call Sevilla to confirm.
A few days later, counsel filed an unresponsive motion that did not address whether Sevilla understood the risks he faced by seeking vacation of the third and most favorable 405-month sentence. We then entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though "re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla's] alleged involvement in the 'Pitufo' murder or calculate a base sentencing level and make appropriate upward departures." (Emphasis in original.) Counsel filed a second motion saying he had explained those risks to Sevilla and Sevilla still wished to proceed.
While our order focused on the risk of a life sentence upon re-sentencing before the district court, the propriety of a life sentence was clearly before us in this appeal. And because we expressly warned Sevilla that a life sentence remained on the table, though the outcome we reach is not what Sevilla hoped for, at least it should come as no surprise.
Judge Torruella authored a lengthy dissent to the majority ruling, which gets started and ends this way:
Carlos Sevilla-Oyola ("Sevilla") was sentenced by the district court to 405 months in prison. On appeal, he brings to our court's attention numerous errors. The majority, finding several of these claims meritorious, has granted a most unusual form of "relief" — life in prison. From that irrational result, I respectfully dissent....
Sevilla's sentencing was fraught with mistakes, misstatements, and omissions on the part of the sentencing judge. The unique posture of this case, arising from a sentencing replete with errors of the court's own making, and concerning an error that no party seeks to defend, is well fit for a simple resolution: remand for a correction of the Rule 11 error and imposition of a new sentence. Instead, the majority now sua sponte chooses to summarily impose the first sentence, which the district court judge himself determined to be erroneous and improper, and which no party has sought to defend on appeal. In so doing, the majority — from a cold appellate record, and in contravention of the intent and discretion of the sentencing judge — has increased Sevilla's sentence from just under thirty-four years to life in prison. This life sentence is based in no small part upon uncharged conduct which the district court, in its discretion, ultimately deemed improper to consider in this case.
In attempting to defend this resolution, the majority states that Sevilla was put on notice of the fact that, upon remand and resentencing, his ultimate sentence might be greater than the 405 months on appeal. That notice, however, never so much as hinted at the idea that our court might short-circuit the accepted practice of remand, which would have provided Sevilla with a chance to be heard at a new sentencing hearing, and instead simply impose a sentence significantly higher than that from which he appealed.[FN 36]
From this result, a pyrrhic victory if there ever was one, I respectfully dissent.
[FN 36] I know of no other case — and the majority cites to none — in which an appellate court undertook to put in place a higher sentence than that from which the defendant's appeal was taken. The unusualness of this situation is surely cold comfort to Sevilla, who (as the majority suggests) will undoubtedly "wish he had left well enough alone." I hope, however, that it might mitigate the chilling effect of this result, such that future defendants are not made fearful of bringing even meritorious claims on appeal. While the majority seems to chide Sevilla for not "quit[ting] while [he was] ahead," I see no humor or harm in a defendant attempting to bring to our court's attention a heavily flawed sentencing process. If Sevilla is seeking "another bite at the sentencing apple," our court would do well to recognize that this is because his first was so thoroughly rotten.
I presume and expect that this defendant will not pursue en banc review and/or Supreme Court review. I wonder if he should worry that such further appellate efforts might risk earning him a death sentence.
June 4, 2014 at 12:51 PM | Permalink
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This is not the first time a defendant's appeal resulted in being exposed to a higher sentenced. In United States v. Anderson, 526 F.3d 319 (6th Cir. 2008), the defendant appealed, the Sixth Circuit determined that the Guidelines range had been calculated incorrectly, and it reversed for resentencing. As it noted, however, the correct Guidelines range would be higher upon remand. 526 F.3d at 331 n.7.
Posted by: A practitioner | Jun 4, 2014 1:59:55 PM
I have to agree the appeals court like usual is talking out it's ass again.
Posted by: rodsmith | Jun 4, 2014 2:12:38 PM
Higher sentences *on remand* are rare, but not unheard of. There are probably a few documented on this blog. Defendant asks on appeal for a remand for reconsideration, and gets it... and then on reconsideration the district court thinks that s/he was too lenient the first time. That's basically a by-product of discretionary sentencing, and it's always a risk when an appellant asks for a remand for reconsideration of a discretionary decision that wasn't completely bad for him the first time around.
This scenario, though -- where the government didn't appeal, and where the appellate court orders a higher sentence *on appeal* for legal reasons--is strange. I've never seen it before. Based on the explanation the majority gives, it seems to make sense, though.
Particularly this part makes it seem like the defendant was asking for trouble:
"The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola ("Sevilla"), each one shorter than the last. ... Sevilla says the district judge lacked authority for actions taken after entry of the first sentence..."
And to their credit, the panel warned the defendant's counsel...
Based just on the excerpts here, I'm inclined to think the majority got it right.
Posted by: another practitioner | Jun 4, 2014 3:26:57 PM
Congress actually tried to guard against this very situation. The vacatur provision of the Sentencing Reform Act includes a provision that was designed to link the direction of the sentence -- "too high" or "too low" -- with the party who takes the appeal. 18 U.S.C. 3742(f)(2).
As on judge has explained:
"[T]he purpose behind linking the complaining party to the direction of the Guidelines deviation was a straight forward one: Congress sought to protect the complaining party from receiving a more adverse sentence following an appeal. In the absence of this protective scheme, a court of appeals would be able to set aside a sentence as unreasonably low even though it was the defendant, not the government, that chose to pursue an appeal from that sentence. When commenting on the intended effect of these provisions, the authors of the Senate Committee Report explained 'that a sentence cannot be increased upon a section 3742 appeal by the defendant.' S.Rep. No. 98-225, at 155 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3338. For the same reason, a sentence could not be decreased upon a section 3742 appeal by the government. See id."
United States v. Jones, 460 F.3d 191, 198-99 (2d Cir. 2006) (Walker, C.J., dissenting).
Posted by: Anonymous | Jun 4, 2014 3:39:22 PM
An increased sentence is one of the risks of appealing, but generally, that happens because the government files a cross-appeal. See United States v. Rosales, 516 F.3d 749 (9th Cir. 2008). Rosales received an eight-year term despite the government's argument, in the district court, that he was subject to a 10-year mandatory minimum. He appealed, raising alleged trial errors, and the government cross-appealed on the sentence issue (which they would not have done, absent defendant's appeal). Result: an eight-year sentence became a 10-year sentence.
What is striking to me about the Sevilla case is that the court did not have a cross-appeal, and the sentence was not dictated by a mandatory minimum.
Posted by: Allen Bentley | Jun 4, 2014 4:02:12 PM
The last 2 comments are interesting. At least in civil cases, the rule is usually that the judgment doesn't get worse for the appellant unless there's a cross-appeal. See, e.g., El Paso Natural Gas v. Neztsosie, 526 U.S. 472, 479 (1999)("Absent a cross-appeal, an appellee may "urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court," but may not "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary."")
That would seem to suggest that the right result is that the court of appeals just affirms because the appellant hasn't shown that he's entitled to a lower sentence. If anything, he's shown that he should have gotten a higher sentence, but the government didn't appeal and didn't press that argument so the judgment is simply affirmed on the basis of the appellant's failure to demonstrate error entitling him to relief. Courts review "judgments, not opinions," and this situation might be vaguely analogous to when the court of appeals affirms on alternative grounds...
As to the first anonymous comment, here's the link to 3742. http://www.law.cornell.edu/uscode/text/18/3742
Posted by: another practitioner | Jun 4, 2014 5:02:03 PM
Cruel and UNUSUAL.
Posted by: George | Jun 4, 2014 7:46:02 PM
This is definitely a strange situation. Had it been a cross-appeal, it would be different. However, I can see the logic. If the Judge had no authority to impose the subsequent sentences, the first sentence would have to stand unless also flawed. Generally speaking, if the subsequent sentences are just voidable, then what the court should do is let them stand unless the appellant could receive all his relief (or the other side cross-appealed). But if the Judge's subsequent sentences were void ab initio, then a court must vacate them even if it leads to an unfair result.
Posted by: Erik M | Jun 4, 2014 8:32:22 PM
The lawyer on appeal should be post-convicted for IAC
Posted by: anon | Jun 4, 2014 9:26:50 PM
I believe in the Gall appeal, there were several hundred cases in the 8th circuit that were increased because of the appeal. Maybe not hundreds of increased sentences, but a track load.
That NY law firm (am I wrong) did a wonderful job showing what a bunch of jerks the 8th circuit was. How dRe you appeal in our district.
I thought after this case scotus defined circuit courts job was to verify proper procedure
And to reverse or lower sentences. Its the district courts province to set the sentence, as they know the case best. What the hell fell apart on this one. Maybe go for cert to scotus. Am I all wet?
Posted by: Midwest Guy | Jun 4, 2014 10:37:03 PM
I don't get why folks automatically assume that LWOP is a lesser sentence than death, certainly it is less controversial, but many defendants would rather face death than to rot in prison.
Posted by: Alex | Jun 5, 2014 12:51:37 AM
Doesn't this violate Greenlaw? Or am I missing something?
Posted by: Will Baude | Jun 5, 2014 3:57:33 PM
Another case where the sentence was increased on appeal: US v. Irey. Eleventh circuit holding that anything less than the statutory maximum was unreasonable. Kind of kookoo.
Judge Presnell wrote a cri de coeur response that I teach in my sentencing class.
Published originally here on SLP blog.
Posted by: Dan Markel | Jun 5, 2014 9:36:37 PM
Irey is justifiably controversial, but on this particular issue it's somewhat different because the government *appealed* in that case. It didn't appeal in the First Circuit case.
As Justice Ginsburg explains in Greenlaw, a government appeal in sentencing cases requires approval at high levels of the executive branch, so the decision to appeal or not ought to be given weight.
Posted by: Will Baude | Jun 6, 2014 8:40:28 AM