Friday, March 28, 2014

Federal judge robustly defends drug guidelines ... after robustly varying from them

Thanks to this post by Paul Cassell over at The Volokh Conspiracy, titled "Are the federal sentencing guidelines for drug dealing unduly harsh?", I have had a chance to see and read a remarkable 70+-page opinion by US District Judge James Browning in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.  And the validity and role of various uses of judicial discretion after Booker also is front-and-center in this opinion.

I am going to make all my sentencing students read this opinion, and this openning to the opinion helps highlight why it covers so many important issues:

THIS MATTER comes before the Court on Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance, filed March 21, 2013 (Doc. 45)(“Sentencing Memorandum”).  The Court held a sentencing hearing on January 6, 2014. The primary issues are: (i) whether the Court will vary downward to a sentence of 15 months to reflect Defendant Kayla Marie Reyes’ comparatively minimal involvement in an overall drug conspiracy; (ii) whether the Court should vary from the advisory guideline range because of a substantive disagreement, under Kimbrough v. United States, 552 U.S. 85 (2007), with the United States Sentencing Commission’s Guideline ranges for drug trafficking violations, as did the Honorable John Gleeson, District Judge for the United States District Court for the Eastern District of New York, in United States v. Diaz, No. 11-CR-00821-2, 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013); and (iii) whether the Court should consider the costs of incarceration and supervised release in sentencing.  

The Court will vary downward, but not as much as Reyes requests: it will vary to a sentence of 30 months, which the Court concludes best reflects the factors that Congress laid out in 18 U.S.C. § 3553(a).

The Court concludes that Judge Gleeson’s criticisms of the Commission’s Guideline ranges for drug trafficking lack a sound basis.  Accordingly, the Court will not adopt his substantive disagreement under Kimbrough v. United States with the Commission’s Guideline for drug trafficking offenses. The Court varies for reasons tied to the factors in § 3553(a) and to Reyes’ individual circumstances, and not because of a substantive disagreement with the Commission’s ranges for drug trafficking. Finally, the Court will not consider the costs of incarceration and supervised release in sentencing, because the factors in § 3553(a) do not clearly permit the Court to consider costs, and because those concerned about the fiscal implications of criminal justice policy should petition the other branches of government and should not ask the Court to consider such implications in sentencing an individual defendant. 

As this introduction hints, I could readily write a few dozen blog posts about this Reyes opinion (and might do a few more in the weeks ahead). But my most fundamental insight about the opinion appears in the title to this post: Judge Browning makes a very forceful argument in support of the federal drug sentencing guidelines, but he is doing so in a case in which he concludes that they should not be followed. If Judge Browning really thinks these guidelines are so sound, I do not quite understand why he feels it necessary (or even legally appropriate) to vary from them.

March 28, 2014 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, February 27, 2014

Federal judge rejects as too lenient plea deal for Illinois state judge guilty of drug and gun charges

This local sentencing story from Illinois is notable both for its participants and as a rare example of a federal judge rejecting a plea deal in a drug case for calling for a sentence deemed too low.  The article is headlined "Judge rejects plea deal for former St. Clair County judge in drug case," and here are just some of the interesting particulars:

A federal judge refused Wednesday to accept terms of a plea agreement that would have sent former St. Clair County judge Michael N. Cook to prison for 18 months on drug-related charges.  U.S. District Judge Joe Billy McDade called the sentence “not sufficient” and said the facts of the case supported a longer sentence.  But McDade also said that he would not “throw the book at him” just because Cook was a judge.  He did not suggest what an appropriate sentence would be.

McDade gave Cook and prosecutors until March 19 to try to strike a new deal.  On March 28, Cook is again scheduled to be in court — either to be sentenced on a new agreement or have a date set for trial....

Cook’s plea deal Nov. 8 to a misdemeanor charge of heroin possession and a felony charge of being a drug user in possession of a firearm was made under an unusual provision.  It carried an agreed-upon penalty that took the sentencing discretion away from McDade.  His only option was to accept or reject the deal.  In January, McDade filed an order warning both sides that he disagreed with a pre-sentence report that said there were no reasons to go above sentencing guidelines, which called for six months or less behind bars.

McDade wrote that Cook’s status as a judge, his longtime drug use and the disruption of governmental functions were reasons to go higher.  He also ordered a supplemental report on how Cook’s actions may have affected cases in front of him, and whether it had affected public confidence in the judicial system.

Cook resigned after exposure of a drug scandal that cost the life of Associate Judge Joseph Christ, who died of a cocaine overdose March 10 in the Cook family hunting lodge in Pike County, Ill., about 65 miles northwest of St. Louis.  The scandal also ensnared former probation worker James K. Fogarty and others.  Cook, of Belleville, admitted at his guilty plea that he was a heroin addict.  After his arrest in May outside of the house of his heroin dealer, Sean McGilvery, he entered an intensive in-patient treatment facility.

But authorities were investigating rumors of Cook’s drug use long before Christ’s death. Search warrant affidavits released since the guilty pleas accuse Cook of abusing a variety of illegal and prescription drugs.  One confidential informer claimed in 2012 that Cook had used drugs for a decade.  The affidavits also show frequent and familiar contact between McGilvery and both Cook and Christ....

Cook and McGilvery were arrested May 22.  Fogarty was charged May 24.  McGilvery is serving a 10-year prison term on charges of conspiracy to distribute, and possession with intent to distribute, more than a kilogram of heroin.  Fogarty is scheduled to be sentenced Thursday and faces a five-year term on charges of intent to distribute cocaine and being a drug user in possession of a firearm. He admitted selling drugs to both Cook and Christ.  His sentence could be affected if he can be explicitly linked to Christ’s death.

Cook is the son of Bruce Cook, of Belleville, a well-known personal injury lawyer and major behind-the-scenes player in local and national Democratic Party politics.  Cook was an assistant public defender and former member of his father’s practice.  He was selected as an associate judge in 2007, appointed to a vacancy to be a circuit judge in 2010 and elected to a six-year term, as a Democrat, later that year.

Two men convicted in front of Cook of murder have won retrials after raising concerns about the judge’s drug connections, and some other criminal defendants who appeared before him have been allowed to withdraw guilty pleas.

February 27, 2014 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack

Monday, February 24, 2014

You be the federal sentencing judge: "tough call" in sentencing former police chief

The title of this post is drawn from the headline of this notable local story about tomorrow's scheduled federal sentencing for Pittsburgh's former police chief. The piece is headlined "Former Pittsburgh police chief's sentencing a tough call for judge Ex-chief Nate Harper's sentencing 'difficult'."  Because I am never quite sure whether I think a law-enforcement background justifies a harsher or lighter sentence, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this former cop. Here are some of the details the federal judge must consider in this case:

When former New York City police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he said, like "dying with your eyes open."...

At the Federal Correctional Institution Cumberland, in Maryland, where he served his sentence, he lived among the kinds of people he spent his life locking up. That's what former Pittsburgh police chief Nate Harper could face following his sentencing, set for Tuesday.

Mr. Harper's fate is in the hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011 after three years as a magistrate judge. She faces a decision in which she must weigh Mr. Harper's history, his precise role in the conspiracy to commit theft and the importance of deterring others from similar dips into the public cookie jar.

Though federal guidelines suggest a sentence of 1.5 to two years, she can go as low as probation or as high as five years. "It comes down to a very difficult call for a judge," said Bruce Antkowiak, a former federal prosecutor and now a law professor at Saint Vincent College in Latrobe. "The strongest cards [Mr. Harper's attorneys] have to play are his history with the department, the decades of work he has put in, the numbers of other people from law enforcement who evidently respect him."

Those same factors, though, could count against him. "Either you think this is a fundamentally decent guy who did something wrong, or you think this is a public official who should be held to another standard," said Wesley Oliver, the Criminal Justice Program director at the Duquesne University School of Law.

Mr. Harper could argue that his lawman background puts him at risk in prison. The U.S. Supreme Court found in the case of police sergeant Stacey Koon, sentenced to prison in the beating of Los Angeles motorist Rodney King, that judges can give lighter sentences to defendants who are "unusually susceptible to prison abuse."

In the recent case of former corrections officer Arii Metz, though, prosecutors countered that argument by showing that the federal prisons already house many former police in relative security. As of last month, there were 1,269 former law enforcement officials in federal custody, according to the Bureau of Prisons. "There are guys who are going to hate him because he was a cop," Mr. Kerik said. "There are going to be guys who are going to respect him because he was a cop."

Mr. Harper pleaded guilty in October, confirming that he failed to file tax returns for four years and diverted $70,629 in public funds into an unauthorized credit union account and spending $31,987 on himself. The prosecution has maintained that Mr. Harper told two civilian subordinates to open and handle the account, making him a supervisor in the conspiracy, and subject to a harsher sentence.

The defense has countered that Mr. Harper had no co-conspirators, but also that the unauthorized account wasn't his idea. They haven't yet named the alleged mastermind. "The government's response is going to be: Who cares?" Mr. Antkowiak said. "When you admit that you told two city employees to open these accounts and draw the Visa cards on them, you're a supervisor" of the crime....

Two defendants -- both of whom were given credit for cooperation -- publicly blamed Mr. Harper for a separate bid-rigging scheme in hearings before Judge Bissoon. The former chief has never been charged in relation to the incident, a contract won by Alpha Outfitters -- a company controlled by the chief's long-time friend -- to install and maintain computers and radios in police cars.

The judge shouldn't give much weight to their accusations, Mr. Oliver said, though he noted that the charge "tends to tear down the narrative that the defendant is trying to tell" about a good man with a bad debit card.

With the eyes of the public, and especially of law enforcement, on the case, the judge may carefully weigh the deterrent effect of the sentence. "Look, one of the things a judge always considers is what kind of message [she's] sending with this sentence," said John Burkoff, a law professor at the University of Pittsburgh. " 'What's the message I'll be sending to police officers who may be tempted to do something bad if I'm lenient?' "

Mr. Kerik, now an advocate for sentencing reform, suggested that the message has already been sent. It could be amplified, he said, if the judge gives Mr. Harper probation but orders him to speak to police recruit classes about his crime and punishment. "They're going to take his pension," Mr. Kerik said. "You've taken his reputation. He's now a convicted felon. He's going to have legal fees he'll have to pay for. That guy has been destroyed."

UPDATE: This local report details the sentencing outcome in its headline: "Former Pittsburgh chief Harper gets 18-month prison sentence."

February 24, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Friday, February 21, 2014

Notable New Yorker piece reporting on forthcoming federal judicial sentencing patterns

A helpful reader altered me to this notable new piece about sentencing policies and practices from The New Yorker authored by Columbia Law Prof Tim Wu. The full piece ends by stressing one concern I often express about the challenge of using mandatory sentencing laws to try to deal with concerns about judicial sentencing disparity — namely "that they tend to increase the power that prosecutors have over sentencing, and prosecutors, if anything, vary even more than judges."  But the piece caught my attention late on a Friday afternoon mostly because of this discussion of some notable forthcoming research on modern federal sentencing patterns:

Sentencing decisions change lives forever, and, for that reason and others, they’re hard to make. It is often suspected that different judges sentence differently, and we now have a better idea of this.  A giant, forthcoming study of the federal judiciary reveals clear patterns: Democrats and women are slightly more lenient. Where you’re sentenced matters even more. Judges in the South are harsher; in the Northeast and on the West Coast, they are more easygoing.

The study’s author is Crystal Yang, a fellow at the University of Chicago Law School, who based it on data from more than six hundred thousand convicted defendants between 2000 and 2009. (Impressively, in certain ways her study exceeds the work of the United States Sentencing Commission.) She writes, “Female judges sentenced observably similar defendants to approximately 1.7 months less than their male colleagues.” In addition, judges appointed by a Democratic President were 2.2 per cent more likely to exercise leniency. Regional effects are more challenging to measure, because, for example, the kinds of crime that happen in New York might differ from those in Texas. But recent data suggest that, controlling for cases and defendant types, “there is substantial variation in the sentence that a defendant would receive depending on the district court in which he is sentenced” — as much as eleven months, on average. The results are all statistically significant, according to Yang — and, if the differences sound relatively small, it is also important to remember that what she is measuring are average differences. In straightforward cases, judges may be more likely to issue similar rulings. It’s the hard cases where judges vary. In a case on the edge, the identity of your judge might make an important difference.

Of course, all sophisticated federal sentencing practitioners know that in all cases, not just those "on the edge," the "identity of your judge might make an important difference." And I regularly tell law students that every federal defendant ought to realize from the moment he or she is subject to a federal investigation, in all cases, not just those "on the edge," the identity of the prosecutor and probation officer and defense attorney also "might make an important difference." Consequently, I am not sure Crystal Yang's "giant, forthcoming study of the federal judiciary" is likely to tell us a lot that we do not already suspect or know.

That all said, I am already jazzed to hear a lot more about what Crystal Yang has collected and analyzed concerning the federal sentencing of "more than six hundred thousand convicted defendants between 2000 and 2009"!  That is a whole lot of data, and it spans a remarkable decade in federal sentencing developments which included the passage of the PROTECT Act and the transformation of federal sentencing law and practices wrought by Blakely and Booker and its progeny.

UPDATE:  After doing a little research, I think I discovered that an updated version of Crystal Yang's research discussed above is now available here at SSRN, and is soon to be published in the New York University Law Review.

February 21, 2014 in Booker in district courts, Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 19, 2014

After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage

As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday."  Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:

Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn.  All three are members of the Plowshares movement of Christian pacifists.

U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest.  The judge sentenced Walli and Boertje-Obed both to five years and two months in prison.  Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property.  In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.

During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."

Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals.  He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."

The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II.  The three cut through fences and made it through multiple layers of security.  They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....

The three have garnered worldwide attention.  Thousands of letters of support have poured into the court from around the world.  Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.

Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.

The government has taken the case seriously.  The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.  

A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment....  During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said.  But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines.  He called a recommended sentence of 6½ years for Rice "overkill."

Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex."  [And] "they have shown no remorse for their criminal conduct," he said.

Recent related posts:

February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 13, 2014

Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire

As reported in this new AP article, the "U.S. attorney's office in Chicago said Thursday that it's appealing a sentence that included no prison time for the billionaire creator of Beanie Babies for hiding at least $25 million from U.S. tax authorities in Swiss bank accounts."  Here is more:

At H. Ty Warner's sentencing last month, Judge Charles Kocoras heaped praise on the toymaker for his charitable giving, declaring society was better served by letting him go free and giving him two years' probation instead of sending him to prison. Warner had faced up to five years in prison.

Warner, 69, of Oak Brook, Ill., was one of the highest profile figures snared in a long-running investigation of Americans concealing funds in Swiss bank accounts. Others convicted of squirreling away less money in Switzerland than Warner have done prison time. Warner, who grew up poor, created the animal-shaped Beanie Babies in the mid-'90s, triggering a craze that made Warner spectacularly rich. Forbes recently estimated his net worth at $2.6 billion.

A one-page notice of appeal signed by U.S. Attorney Zachary Fardon was filed with the U.S. 7th Circuit Court of Appeals, and a full brief will be submitted later. Justice officials in Washington still must OK the appeal, but that's usually considered a formality.

At a Jan. 14 sentencing hearing, Kocoras spent most of his 20-minute explanation of the sentence expressing admiration for Warner. He also said the businessman had already paid a price in "public humiliation." In addition to probation, Kocoras ordered Warner to do 500 hours of community service at Chicago high schools. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million....

During sentencing, assistant government attorney Michelle Petersen urged Kocoras to put Warner behind bars for at least a year.  "(Without prison time), tax evasion becomes little more than a bad investment," she told him.  "The perception cannot be that a wealthy felon can just write a check and not face further punishment."

This should be a VERY interesting sentencing appeal to watch in the months ahead, and I am already super stoked to read the coming Seventh Circuit briefs from the parties concerning what will surely be differing views on what federal sentencing law demands in a case of this nature.

Prior related post:

February 13, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, February 12, 2014

Drug sentencing reform talk already impacting federal sentences in Tennessee (and elsewhere?)

Two recent local sentencing stories from Tennessee reporting on two different federal judges imposing reduced sentences in drug cases suggest that all the on-going talk about significant drug sentencing reform coming from the US Sentencing Commission and the US Senate is already impacting the work of federal judges.  Here are the headlines, links and basics:

Federal Judge Varies Downward On Drug Sentence; Says "War On Drugs" A "Dismal Failure"

Federal Judge Sandy Mattice, calling the "War on Drugs" a "dismal failure," on Monday morning varied downward on a sentence for a drug "smurf."

Larry Gertsman had been facing a minimum 121 months in federal prison for his role in obtaining pseudoephedrine pills for a meth cook and for the fact a gun was found at the trailer where the meth was being cooked.

Judge Mattice noted the 121 months was one month more time than he gave to the meth cook, George Alder Jr. He sentenced Gertsman to 90 months in prison.

Judge Mattice said, "When a conspiracy is charged like this, addicts are being prosecuted the same way as the manufacturer." He said some of the sentencing schemes have "outrageous results." He added, "These cases seem increasingly arbitrary."

Judge, Noting That Federal Drug Sentences Are Likely To Be Cut, Gives 3 Whitwell Defendants A Break

Federal Judge Curtis Collier, saying that he expects Congress to lower sentences for drug defendants, on Thursday gave reduced time to three Whitwell residents involved in a major marijuana operation.

Judge Collier, focusing on "sentencing disparity," said Congress seems headed for passage of the Smarter Sentencing Act. He said it has the endorsement of the Department of Justice and support from senators from different political backgrounds. He also said the federal Sentencing Commission has issued guidelines for reduced drug sentences. The act would shift the focus to putting away hardcore and violent defendants in federal prisons.

Judge Collier said sponsors of the bill say that under current sentencing all of the Department of Justice budget is going to be eaten up by the cost to operate federal prisons. The act would basically cut drug sentences in half and also increase the use of the "safety valve" to cut time on mandatory sentences. There was also discussion at the sentencing for Jackie Morrison, Sammy Nance and Ollie Frizzell about some states, including Colorado, legalizing marijuana.

The sentencing range for the ringleader, Morrison, was 121-151 months. He got 72 months. Nance faced 37-46 months and was given 24 months. Ms. Frizzell had a sentencing range of 27-33 months and got 30 months. However, she had already gotten a break for cooperating with the government.

In addition to wondering if there is some special reason that these two notable stories emerge from two different Tennessee federal courts over the last few days, I am especially curious to know if similar trends may be emerging in other federal district courts around the nation.

I have previously noted that early statistics from the US Sentencing Commission suggested that the number of judge-sponsored below-guideline sentences may be increasing ever since AG Eric Holder gave his big ABA speech last August about excessive use of incarceration for low-level offenders.  And now that the USSC has called for an across-the-board reduction of all the drug guidelines and the Senate Judiciary Committee has moved the Smarter Sentencing Act, I could readily imagine that what these two Tennessee federal judges have done is more the norm than the exception in the thousands of low-level drug cases being prosecuted now in federal courts.

February 12, 2014 in Booker in district courts, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (17) | TrackBack

Sunday, December 29, 2013

Latest USSC quarterly data show (thanks to AG Holder?) record number of judge-initiated below-range sentences

I am intrigued to see that, as reported in Table 4 with the Fourth Quarter FY13 Quarterly Sentencing data report posted here at the US Sentencing Commission's website, there was a notable (though still small) uptick in the number of below guideline sentences imposed by federal district judges during the most recent quarter (from July 2013 to September 2013). Specifically, after a full year in which below-guideline sentence were imposed each quarter in just around 18.5% of all federal cases, in the most recent quarter the rate of judge-initiated below-range sentences jumped to 19.1%.  This marks, I believe, the highest percentage of judge-initiated below-range sentences in any quarter on record.

As the title of this post hints, I am inclined to hypothesize that a few more judges were willing to impose below-guideline sentences in a few more federal cases in the wake of Attorney General Eric Holder's big early August speech to the ABA lamenting excessive use of incarceration in the United States. When the US Attorney General says "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," I surely hope federal judges are listening and thinking even harder about whether to follow harsh guidelines that tend to recommend pretty long prison sentences in most cases.

That all said, the latest new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that somewhat more than 50% of all federal sentences are within the calculated guidelines range, and that below-guideline sentences are a result of a prosecutor's request (which occurs in well over 25% of all cases).

December 29, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, November 21, 2013

"Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker"

The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing.  After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker.  What has been the result of reintroducing greater judicial discretion on inter-judge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned?

This Article utilizes new data covering over 600,000 criminal defendants linked to sentencing judge to undertake the first national empirical analysis of interjudge disparities post Booker.  The results are striking: inter-judge sentencing disparities have doubled since the Guidelines became advisory.  Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker.  Newer judges appointed after Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effect of various actors on sentencing disparities, I find that prosecutorial charging is a prominent source of disparities.  Rather than charge mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of sentencing judge, potentially through superseding indictments.  Drawing on this empirical evidence, the Article suggests that recent sentencing proposals that call for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

November 21, 2013 in Booker in district courts, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, November 19, 2013

Latest USSC publication highlights remarkable "disparities"(?) in federal FIP sentences

I am pleased to see that the US Sentencing Commission now has up on its website another terrific new data document in its series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said before, I think this series is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these publications.  This latest document, which "presents data on offenses under 18 U.S.C. § 922(g), commonly called 'felon in possession' cases," includes these notable data details:

In fiscal year 2012, 5,768 offenders were convicted of violating 18 U.S.C. § 922(g)....

One-quarter (25.2%) of offenders convicted under section 922(g) were assigned to the highest criminal history category (Category VI). The proportion of these offenders in other Criminal History Categories was as follows: 11.7% of these offenders were in Category I; 9.3% were in Category II; 21.1% were in Category III; 18.9% were in Category IV; and 13.8% were in Category V.

10.3% were sentenced under the Armed Career Criminal Act (ACCA) (18 U.S.C.§ 924(e))...

The average sentence length for all section 922(g) offenders was 75 months; however, one-quarter of these offenders had an average sentence of 24 months or less while one-quarter had an average sentence of 96 months or more.

The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 180 months.

The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 46 months.

The title of this post has the term "disparities" in quotes followed by a question mark because these basic sentencing data about a pretty basic federal crime could be interpreted in many disparate ways. Given that all the offenders sentenced for FIP likely were engaged in pretty similar conduct (simple possession of a firearm) and all of them, by definition, had to have a serious criminal record in order to be subject to federal prosecution, one might see lots of unwarranted disparity among this offender group given the extraordinary outcome variations documented here -- in FY2012, over 10% of FIP offenders are getting sent away for an average of 15 years, but another 25% are going away for only 8 years, while another 25% are going away for only 2 years.

Then again, given the apparently varied criminal histories of the FIP offenders, the sentencing variation here surely reflects various (reasoned and reasonable?) judicial assessments of different levels of recidivism risk for different FIP offenders.  I certainly hope that the those being sentenced to decades behind bars for gun possession are generally those with very long rap sheets, and that those getting sent away only for a couple years are those with much more limited criminal histories.

Finally, in addition to noting the profound significance that past crimes clearly have on current sentencing in FIP cases, I must note that it is these past crimes that itself serves to convert the behavior here in to a federal crime.  Indeed, if one takes the Second Amendment very seriously (as I do), the actual "offense behavior" in these cases might often be subject to significant protection as the exercise of a fundamental constitutional right unless and until the person has a disqualifying criminal past.  Proof yet again that the past, at least when it comes to criminal sentencing and constitutional rights, is often ever-present.

November 19, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Wednesday, November 13, 2013

Is sentence disparity reduced if mass murderer Whitey Bulger and drug dealer Sam Hurd get the same LWOP sentence?

The question in the title of this post is prompted by the news of two seemingly very distinct federal sentencings taking place today in which it seems the federal sentencing guidelines are calling for the exact same LWOP sentence. 

Regular readers are already familiar with the case involving Whitey Bulger, whose sentencing is taking place today in federal Court in Boston.  This new USA Today article, headlined "Victim's son: Mobster Whitey Bulger is 'Satan'," highlights just the latest developments in a case in which I sincerely wonder why there is not more of an effort by pro-death-penalty advocates to have an even tougher punishment than LWOP in the mix.

Somewhat less high profile, except perhaps for hard-core football fans, is the sentencing of former NFL receiver Sam Hurd.  This SI.com article, headlined "Former NFL player Sam Hurd hopes to avoid life sentence at hearing," provides some background starting this way:

This afternoon at the Federal courthouse in Dallas, U.S. District court judge Jorge Solis is scheduled to begin the sentencing hearing for former Cowboys and Bears receiver Sam Hurd, who pleaded guilty to a single drug trafficking charge in April. Hurd's attorneys will be allowed to present witnesses and evidence to contest the individual allegations against him. At the end of the hearing Solis will decide whether to take the recommendation of the U.S. Probation and Pretrial Services Department of life in prison without parole or give Hurd a lighter sentence. The only certainty is that Hurd will be going to prison.

Hurd was arrested on Dec. 14, 2011 and indicted on Jan. 4, 2012. For the first 19 months, life in prison was not even in the discussion. Five to 20 years was the sentencing range, with precedent and the informed opinions of more objective onlookers and academics backing up that estimate. Since the life sentence recommendation was made in late July, one comment repeated by sources across the spectrum of partiality has been some version of this reminder: You realize life in prison in the federal system means the next time he comes out of prison it'll be in a coffin.

Hurd, who has been housed in the federal detention center in Seagoville, about a 30-minute drive from the Dallas court building, did not respond to an email from SI Wednesday morning. He may have already been relocated to downtown Dallas and unable to access his prison-controlled email account. He called last Friday night and repeated again that he is "ready to be sentenced for what I did, not this other mess. Our system should not work like this.

I have to assume that Hurd is facing a recommended LWOP sentence because of the quantity of drugs being ascribed to him and a guideline sentencing structure that provides that drugs dealers will often be facing the same guideline sentence as mass murderers.

Hurd is, of course, very fortunate that the federal sentencing guidelines are no longer mandatory, and I think it is unlikely he will get an LWOP term today. But this coincidence of these two very different criminals facing the exact same federal guideline sentence provides a high-profile example of how the guidelines can themselves create disparity and especially revelas how misguided it can often be to assume imposition of within-guideline sentences reduce disparity.

UPDATE On Wednesday afternoon, as reported here, Sam Hurd received a 15-year federal prison sentence; on Thursday morning, as reported here, Whitey Bulger received two life terms plus 5 years in the federal pen.

November 13, 2013 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Thursday, November 07, 2013

"Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing"

The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:

The Federal Sentencing Guidelines were created to reduce unwarranted sentencing disparities among similar defendants.  This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the Guidelines were struck down in United States v. Booker (2005).  Using data on the universe of federal defendants, I find that black defendants are sentenced to almost two months more in prison compared to their white counterparts after Booker, a 4% increase in average sentence length.  To identify the sources of racial disparities, I construct a dataset linking judges to over 400,000 defendants.  Exploiting the random assignment of cases to judges, I find that racial disparities are greater among judges appointed after Booker, suggesting acculturation to the Guidelines by judges with experience sentencing under mandatory regime. Prosecutors also respond to increased judicial discretion by charging black defendants with longer mandatory minimums.

I am always interested in sophisticated analyses of the post-Booker sentencing system, so I am looking forward to finding time to review this article closely. But, as with lots of "disparity" sentencing scholarship, I worry that this article is among those spending lots of time worrying about and trying to figure out whose sentences may be longer after Booker rather than worrying about and trying to figure out if all sentence remain way too long in the federal sentencing system.

November 7, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, October 09, 2013

District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals

I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)

For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands.  The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:

This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines.  Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.

There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair.  In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice.  See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.

Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence.  As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable.  Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case.  The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.

It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.

Download Childs Sentencing Opinion and Order

October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, October 07, 2013

Fifth Circuit panel declares substantively unreasonable (and plainly erroneous) an above-guideline child porn sentence

I am always pleased to see examples of post-Booker reasonableness review being given some more teeth in the circuits, and a panel ruling released today by the Fifth Circuit in US v. Chandler, No. 12-30410 (5th Cir. Oct. 4, 2013) (available here), shows that even defendants convicted of child porn offenses can sometimes benefit from appellate judges taking reasonableness review seriously. Here are excerpts from the start and heart of the of the panel opinion in Chandler:

Richard Chandler pleaded guilty to engaging in a child exploitation enterprise. At sentencing, the district court varied upward by 127 months over the recommended Guidelines range to impose 420 months of imprisonment.  We find that the district court erred by increasing Chandler’s sentence based on the fact that he was a police officer. We remand for re-sentencing....

The parties agree that the district court correctly calculated Chandler’s Guidelines range as 240-293 months. In the PSR, the probation officer stated that he had not identified any factors warranting a departure or variance from the Guidelines range. Chandler did not file objections to the PSR, but he filed a Motion for Deviation from Sentencing Guidelines, arguing that a significant downward departure from the Guidelines was justified in his case because the sentencing scheme for possession of child pornography is unfair and the circumstances of his offense warranted leniency. The district court rejected Chandler’s motion, noting that Chandler was not a “mere possessor” because he had repeatedly posted child pornography. The district court ultimately imposed a sentence of 420 months of imprisonment, an upward variance of 127 months from the top of the Guidelines range. The district court found that the non-Guidelines sentence was justified by the nature and circumstances of the offense, particularly Chandler’s abuse of his public office as a law enforcement officer, his use of other people’s internet connections to attempt to hide his participation in the scheme, and the fact that he posted child pornography 117 times, mostly with children 8 to 14 years of age. Chandler did not object to the sentence. Chandler filed a timely notice of appeal....

Some of the comments made by the district court here, such as those stating that by being a police officer Chandler has placed himself in a different category and should be held to a higher standard, are similar to those in Stout and could be interpreted to cross the line into impermissible reliance on Chandler’s socioeconomic status as a police officer.

To the extent that the district court’s comments regarding Chandler’s position are findings that Chandler abused his position of trust or that the offense was more serious because of Chandler’s position, the district court likewise erred. Though we are mindful that our review in this case is only for plain error, our circuit precedent is clear that a defendant’s status as a police officer, standing alone, is not a justifiable reason to increase a sentence....

[T]hough the district court stated multiple times that it was varying upwards because Chandler abused his position, the district court did not rely on any facts showing that Chandler acted in his capacity as a police officer in posting child pornography on the internet. There is no evidence in the record that he used or exploited his position as a police officer, or used any knowledge or skills he gained from that position, to commit the offense or attempt to hide it.

The district court’s error was compounded by its mischaracterization of the conduct involved in Chandler “stealing” other people’s “identities” or “internet addresses.” The only description of this conduct in the record is in a sentencing memorandum filed by the government, which states that Chandler used other people’s unsecured wireless connections. Though the government refers to this as “stealing,” it essentially amounts to logging onto an open wireless network. While we agree with the government that such activity could have caused innocent people to be subject to investigation, it clearly is not equivalent to identity theft or any sort of skilled hacking activity, though the district court discussed it as if it required highly technical knowledge that Chandler acquired as a police officer.

October 7, 2013 in Booker in district courts, Booker in the Circuits, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Monday, September 30, 2013

How common are DVD submissions as mitigation evidence as part of federal sentencing?

The question in the title of this post is prompted by a somewhat amusing discussion toward the end of a Ninth Circuit panel opinion released today in US v. Laurienti, No. 11-50294 (9th Cir. Sept. 30, 2013) (available here). The following passage from the opinion provides the context for the question:

Laurienti claims for the first time on appeal that the district court committed plain error when it did not read the last two pages of his sentencing memorandum or view a DVD he had submitted.  We review these contentions under the same plain error standard applicable to his claim that the district court did not listen to his evidence in mitigation. We reject these contentions for two reasons.

First, the court provided Laurienti the opportunity to present the substance of those materials during sentencing. Laurienti did so, and the court listened to his position.[FN7]

Second, and more importantly, the court explained why further considering those materials would not change its decision. The court specifically stated that it had reviewed numerous letters from Laurienti’s family, friends, and business associates.  The court did not, however, find these materials persuasive in light of Laurienti’s apparent attempts to avoid making restitution payments.  Considering the cumulative nature of the DVD, and the fact that the court allowed Laurienti to discuss his sentencing position at length, Laurienti has failed to establish that the court’s refusal to consider the exhibits amounted to plain error requiring reversal.

[FN7] We note in passing that the time that the attorneys and this court have spent on the issue of the unread two pages and unwatched DVD was, in all likelihood, far more extensive (and, for the parties, expensive) than if the court had simply read and watched what was before it. As Benjamin Franklin astutely observed, “An ounce of prevention is worth a pound of cure.”

Under the circumstances, I am not suprised or troubled by the Ninth Circuit's resolution of this issue, though I can understand why a defendant might be both surprised and troubled that a judge at sentencing would report that he had not bothered to watch a DVD the defense team had created for the occassion.   This, in turn, leads me to wonder if mitigation DVDs are common submissions by the defense in some federal courts or for some sets of defendants (and also whether judicial disregard of such DVDs submissions might also be common).

A few prior related posts:

September 30, 2013 in Booker in district courts, Booker in the Circuits, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

Advice for the US Sentencing Commission from former USDJ Nancy Gertner

Nancy-gertnerI am genuinely unsure if the US Sentencing Commission gets to keep working if we end up having a federal government shut-down this week.  But I am sure that the USSC starts an official new fiscal year as of tomorrow morning and that any government shut-down is not going to keep federal defendants from being sentenced and that the USSC will be up-and-running in some capacity both sooner and later.  For those reasons, I am pleased right now to be able to post these comments sent my way by former federal district judge (and now Harvard law professor) Nancy Gertner about what the USSC ought to be doing as FY 2014 in the federal sentencing system gets underway:

At a time when the “common law of sentencing,” is being shaped in federal district courts, why does the Sentencing Commission only post Circuit Court decisions on its web site?  In 2012, sentences that had been appealed on the grounds of unreasonableness were affirmed 95 percent of the time.  And that rate has remained steady on the national level: In 2011, the affirmance rate was roughly 94 percent; in 2010 it was approximately 96 percent; and in 2009, 97 percent affirmances.  In my circuit, the First Circuit, not a single sentence was deemed unreasonable on appeal in 2011 or 2012, and only a handful of cases qualified in the immediately preceding years. In effect, as with other areas of law where the standards of review are forgiving (think evidentiary appeals on forensic issues which are reviewed for “abuse of discretion” and rarely overturned), the appellate courts are not defining substantive sentencing standards, and imposing only minimal procedural ones.

Clearly most of the meaningful sentencing developments -- the substantive sentencing standards, the guideline analysis and trenchant critique -- are happening at the district court level in the decisions of judges like John Gleeson and Jack Weinstein (S.D.N.Y.), Mark Bennett (N.D. Iowa), Ellen Huvelle (D.C.), Paul Friedman (D.C.) and Lynn Adelman (E.D. Wisconsin). While not all judges take the time to write formal sentencing opinions, those that do should have their work circulated by our “expert” Commission rather than being ignored.

If the Commission is interested in minimizing disparity in sentencing in a post-Booker world (which should be one of its goals -- hardly the only one), what better way than to make certain that the opinions of district court judges are communicated more broadly to the federal bench?  When these judges offer a reasoned analysis of the Guidelines or an alternative way of analyzing the cases, why not ensure that other judges see their work and decide whether to follow it?  Other judges can look at their reasoning– not as binding precedent, but as a template for the cases they see, e.g. here’s one approach to firearms cases, non violent drug offenders, white collar cases, etc.  If a common law of sentencing is ever to evolve -- supplementing (or in some cases supplanting) the Guidelines -- why not assist in its development? In a common law system, decisional law establishes standards. Uniformity is not enforced from above -- as in civil code countries -- but evolves from reasoned judicial decisions.  In effect, with advisory Guidelines, we have a hybrid system -- Guidelines and decisional law.

To look at the Commission web site, there is only one orthodoxy -- the Guidelines, and Appellate Court decisions that rarely say much of anything.  In fact, the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity -- the uniform enforcement of its flawed product, the U.S. Sentencing Guidelines.  Teach the Guidelines.  Describe appellate court decisions affirming whatever the district courts do without meaningful analysis.  Ignore the fine work of the judges trying to create meaningful standards where it counts the most, in the sentencing of individuals.

September 30, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, August 06, 2013

Eighth Circuit panel, though requiring more explanation, suggests probation could be reasonable sentence when guideline range was 11-14 years

Because the Eighth Circuit has a well-earned reputation for being pretty tough on criminal defendants in sentencing appeals in the post-Booker era, I find especially notable its nuanced ruling today in US v. Cole, No. 11-1232 (8th Cir. Aug. 8, 2013) (available here). The start of the panel opinion in Cole sets out the basics of the ruling:

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349; tax evasion, in violation of 26 U.S.C. § 7201; and conspiracy to commit tax fraud, in violation of 18 U.S.C. § 371. The mail and wire fraud conspiracy conviction stems from her company’s theft of nearly $33 million from Best Buy over a four-year period. The tax fraud conspiracy and tax evasion convictions stem from understating tax liability by more than $3 million between 2004 and 2007 by using various schemes to conceal her company’s true profitability. Cole’s advisory Guideline range was 135 to 168 months imprisonment, but the district court varied downward and sentenced her to three years probation on each count, with all terms to be served concurrently. The government appeals Cole’s sentence, arguing it is substantively unreasonable. Cole cross-appeals, challenging her convictions.  We affirm Cole’s convictions but remand her case to the district court to provide a fuller explanation of her sentence.

Co-conspirators much more responsible than Cole for the big fraud here got lengthy sentences (15 and 7.5 years), which seems to help explain why the district court decided to give this defendant such a big break. And, as this final key paragraph of the sentencing discussion reveals, the panel here thinks such a big downward variance could be justified, but needs to be more fully explained:

Because Cole’s probationary sentence represents a “major departure” from the advisory Guidelines range, the court’s brief and contradictory explanation of Cole’s sentence is not sufficient “to allow for meaningful appellate review and to promote the perception of fair sentencing.”  See Gall, 552 U.S. at 50.  Consequently, we cannot evaluate the government’s claim of substantive unreasonableness at this time, and we remand for the district court to more fully explain the defendant-specific facts and policy decisions upon which it relied in determining that the probationary sentence is “sufficient, but not greater than necessary,” § 3553(a), to achieve the sentencing objectives set forth in section 3553(a).

August 6, 2013 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

Tuesday, July 02, 2013

Does postponement of Jacksons' sentencing suggest big rulings are in the works?

High-profile white-collar federal sentencing proceedings always intrigue me, especially when they involve a cocktail of dynamic doctrinal and policy issues as is the case in the upcoming sentencings of former Rep. Jesse Jackson Jr., and his wife Sandi. But , as reported here by the Chicago Tribune, it now appears we will have to all wait a bit longer for the Jacksons' day of sentencing reckoning:

The South Side Democrats had been scheduled to learn their fates Wednesday, until the delay was announced by U.S. District Judge Amy Berman Jackson, who is not related to the pair.  A court spokesman said neither the prosecution nor defense asked for the postponement.

"The matter was rescheduled to accommodate the court's schedule and workload — neither side requested a continuance," said Jenna Gatski, a spokeswoman for the U.S. District Court.

Jackson Jr. pleaded guilty to misusing about $750,000 in campaign cash. Sandi Jackson, a former Chicago alderman, pleaded guilty to failing to report about $600,000 on income tax returns over several years.

The postponement was announced after a telephone conference call between the judge and the Jacksons, the court said. Bill Miller, a spokesman for the U.S. attorney for the District of Columbia, said the sentencings would not take place this week.

Jackson Jr., 48, faces 46 to 57 months in prison under federal sentencing guidelines, which are not mandatory. His lawyers want a sentence lower than what the guidelines suggest and assert that Jackson Jr., who reportedly has bipolar disorder, could not get proper medical care in prison. Federal prosecutors want him to serve a four-year sentence and to be placed on supervised release for three years after that.

Sandi Jackson, 49, faces one to two years in prison. Her attorneys want her sentenced to probation, saying the couple's two children, ages 9 and 13, need their mother. Prosecutors want her imprisoned for 18 months and put on supervised release for a year.

The question in the title of this post is my reaction to report that neither side sought a postponement and the indication that the change was "to accommodate the court's schedule and workload."  I would be very surprised if Judge Amy Berman Jackson had a trial or lots of other litigation matters crop up in the middle of this summer holiday week; reading these latest tea leaves now has me wondering (and weirdly excited) that this postponement is based in part on the judge's plans to issue a significant written opinion on federal sentencing law, policy and practice along with her sentencing ruling. (Or maybe the judge just has tickets to see Bryce Harper back playing again for the Washington Nationals during their homestand this week, and she decided it was more fitting to catch a baseball game than to deprive liberty right before we all celebrate Independence Day.)

Related posts:

UPDATE:  This local article now reports that the Jacksons' sentencings have now been set for August 14.

July 2, 2013 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, June 13, 2013

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission.  One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges.  District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so.  The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns.  Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences.  Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

June 13, 2013 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 10, 2013

Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")

225-lodestone-magnetThe title of this post is drawn from the key word in a key paragraph that captured my attention in what is otherwise a straight-forward opinion by the Supreme Court today in Peugh (basics here).  Here is the context from a paragraph that effectively summarizes the conclusions of the Peugh majority opinion per Justice Sotomayor:

"The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing.  A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."

Major kudos to Justice Sotomayor for adding a fitting new term to the post-Booker federal sentencing lexicon.  Kudos also to the majority Court for stressing these enduring modern federal sentencing realities in the course of reaching its conclusions:

When Peugh committed his crime, the recommended sentence was 30 to 37 months.  When he was sentenced, it was 70 to 87 months....  Such a retrospective increase in the measure of punishment raises clear ex post facto concerns.  We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty.  See Carmell, 529 U.S., at 534, n.24; Weaver, 450 U.S., at 32.  This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose....

On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.”  Brief for United States 28.  The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S., at 50.  Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51.  It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.

And kudos also to Justice Thomas for providing a slightly competing vision of the post-Booker world via passages in his dissent like the following that, I suspect, will end up in many more defense sentencing submissions than government ones:

[T]he Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.  Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines’ persuasive force, not any legal effect....

Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness.  Brief for Petitioner 25.  I doubt, however, that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines — the old or the new.  If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence “substantively unreasonable.”  To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.

I have long suggested that defense attorneys regularly and in every case calculate, and submit to a sentencing court prior to sentencing, the "old" sentencing ranges that would have applied under the original 1987 version of the federal sentencing guidelines which were first promulgated by the original US Sentencing Commission.  The above-quoted passages from Justice Thomas now would enable sentencing courts to feel confident that a sentence within the range suggested by the 1987 guidelines should nearly always be deemed reasonable.

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack