Thursday, October 28, 2010

Noting that the circuits are getting behind below-guideline kiddie porn downloading sentences

This morning's Legal Intelligencer has this new piece discussing the Third Circuit's important Grober ruling from earlier this week (discussed here).  The piece is headlined "Appeals Courts Criticize Child Porn Sentencing Guidelines," and here is how it gets started:

As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so.

One of the key flaws cited by many of the judges is that the harsher penalties were imposed directly by Congress, every time the guideline was amended, rather than the usual process in which the Sentencing Commission studies an issue and proposes changes that are then subject to congressional approval. Prosecutors have been fighting the trend by urging trial judges to follow the guidelines and sometimes by taking appeals from those who don't.

But a decision in May from the 2nd Circuit and another this week from the 3rd Circuit suggest that the Justice Department may be waging a losing battle, and that trial judges are now freer than ever to reject the child pornography guidelines in cases where the judge sees the suggested punishment as too harsh.

In United States v. Grober, the Justice Department urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for David Grober was "outrageously high." Hayden, who sits in New Jersey, set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair.

Among the flaws cited by Hayden were a series of "enhancements" that, in her view, would apply in almost every case, as well as a failure to distinguish between defendants whose crime involved nothing more than downloading images as opposed to those involved in producing, selling or trading in illegal images. Ultimately, Hayden issued a 46-page opinion that declared the guideline was not worthy of deference. Instead of imposing a term of 235 months, she imposed a term of 60 months.

Now the 3rd Circuit has voted 2-1 to uphold Hayden's ruling, strongly rejecting the Justice Department's argument that Hayden had abused her discretion.

October 28, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Wednesday, October 27, 2010

"Sarah Palin E-Mail Hacker Seeks Probation, Feds Want 18 Months"

The title of this post is the headline of this Wired story about my favorite high-profile (and low-importance?) sentencing story. Here are excerpts:

David Kernell, the Tennessee student convicted of hacking into Sarah Palin’s personal e-mail account, has asked the court to forgo a prison sentence and give him probation for his crimes.

Kernell, 22, was convicted earlier this year of misdemeanor computer intrusion and a felony count of obstruction of justice. The jury found him not guilty of a wire-fraud charge and hung on a fourth charge for identity theft, after four days of deliberating.

The convictions carry a maximum sentence of 20 years in prison and a possible fine of up to $250,000. Federal sentencing guidelines recommend a sentence of between 15 and 21 months in prison. The government is seeking 18 months. Kernell, scheduled to be sentenced in Tennessee on Nov. 12, was found to have deleted evidence from his hard drive to thwart investigators, in the most serious charge.

In a motion filed with the court (.pdf) on Wednesday, his attorney asserted that although his client might have deleted evidence, this should be balanced against the fact that he didn’t destroy the computer entirely or get rid of it.

“The proof showed that Mr. Kernell very quickly took actions that resulted in the evidence being preserved,” defense attorney Wade Davies wrote.  He also said that his client’s behavior was an “aberration” from his normal conduct and that the “public humiliation, trial and felony conviction” his client had endured were enough to deter him from future crimes.  “General deterrence has been achieved in this case by educating the public that accessing another’s e-mail account is conduct that violates federal law,” Davies wrote.

In prior posts, I have suggested that some kind of creative shaming sanction or community service might be especially appropriate in this case --- e.g., it would seem be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking and perhaps a "beware of hacker" pop-up on David Kernell's social media pages. 

Especially if tonight's great World Series Game 1 match-up does not live up to the hype, perhaps readers can suggest some other creative and tech-savvy sentencing possibilities for this case in the comments.

Some related posts:

October 27, 2010 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, October 26, 2010

Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling

A split Third Circuit panel has a long and dynamic set of opinion in a federal child porn sentencing case in which I was actually called as an expert witness at sentencing.  The litigation and ruling in US v. Grober, No. 09-1318 (3d Cir. Oct. 26, 2010) (available here), merits extended discussion, but for now I will quote for the start of the majority opinion and the end of the dissent.  First, the start of the majority opinion:

It is an unassailable proposition that “[c]hild pornography harms and debases the most defenseless of our citizens.” United States v. Williams, 553 U.S. 285, 307 (2008).  We believe that, and the District Court believed that.  Nonetheless, the Court was deeply concerned about the sentence the government said the Court should impose on defendant David Grober under the child pornography Guidelines. It recognized, on the one hand, the tension between a mechanical application of those Guidelines and the “outrageously high” sentence –- indeed, the “truly remarkable punishment” -– of 235-293 months of imprisonment they advised, and, on the other, a fair and reasonable sentence that does justice.  Determined to take a long and hard look at the child pornography Guidelines in an effort to understand why Congress and the Sentencing Commission did what they did and whether it made sense both as an objective matter and as to the defendant, the Court embarked on a careful study of how the Guidelines range urged on it by the government came to be. It took evidence over twelve days, heard extensive oral argument and considered extensive written submissions, and rendered a lengthy oral opinion at sentencing and a forty-six page written opinion thereafter explaining in great detail how it arrived at what it believed to be the correct sentence for this defendant.  All of this is to be much admired.

There is a flip side, however, when a district court devotes such an extraordinary amount of time and attention to an issue so clearly troubling it and so freely expresses its concerns on the record, reaching out for whatever might assist it in assuaging those concerns.  The flip side is this: in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done.  After this microscopic examination –- but without ever challenging the substantive reasonableness of the ultimate sentence imposed –- the government has found what it describes as procedural error. We will affirm.

And here is the end of this dissent:

As I noted at the outset, the District Court labored mightily to impose a just sentence upon David Grober.  That effort was animated by a candid fear that Congress’s zeal to address the proliferation of child pornography has resulted in penalties grossly disproportionate to the culpability attendant to this type of crime.  Even accepting that premise, it is still wrong for a sentencing court to: (1) categorically reject the validity of a Guideline by impugning generally the plea bargaining system; (2) punish a party for failing to present “evidence” it never should have presented in the first place; (3) mischaracterize a defendant’s crimes of conviction; and (4) use a categorical rejection of a Guideline as a proxy for ignoring some of the relevant § 3553(a) factors. Because each of these errors is manifest on this record, I would vacate Grober’s judgment of sentence and remand for a new sentencing hearing.

October 26, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Monday, October 25, 2010

Remarkable opinion with postponement of resentencing in notorious Irey case

Regular readers will likely recall the Irey case, in which a split Eleventh Circuit panel initially affirmed, but thereafter decided en banc to reverse, a lengthy (but still well below-guideline) sentence given to a middle-aged man for what all agree was an "utterly gruesome" sex offense.  A helpful reader today sent me a copy of the latest Irey opinion and order entered on Friday by U.S. District Judge Gregory Presnell.  This opinion, which represents just the latest remarkable chapter in a remarkable case, can be downloaded below.  Here is the opinion's introduction and conclusion:

This matter comes before the Court on the Unopposed Motion for Continuance of Resentencing Hearing Pending Review in United States Supreme Court (Doc. 80).  As the motion’s title suggests, the parties seek to have this Court delay its resentencing of the Defendant, William Irey (“Irey”), on the chance that the Supreme Court will grant his petition for writ of certiorari, due to be filed on October 27, 2010.  As things now stand, this Court is obligated by the July 29, 2010 decision of the United States Court of Appeals for the Eleventh Circuit (henceforth, the “July 29 Order”) to impose a 30-year sentence on Irey.  Given that Irey is in the early stages of serving the 17-and-a-half-year sentence originally imposed by this court, there is no pressing need to impose the longer sentence — a fact apparently recognized by the Government, which does not oppose the motion.  For these reasons, the motion will be granted, and the resentencing will be continued.

Under normal circumstances, that would be the end of the matter. But these are not normal circumstances.  The July 29 Order raises a host of important issues, a fact recognized both by the Defendant in the instant motion and by the appellate court in the order itself.  The pendency of the petition for a writ of certiorari provides the Court with a rare opportunity to respond to certain aspects of the appellate decision, prior to its possible review by the Supreme Court, with information that only the undersigned possesses.  In addition, the July 29 Order has certain implications that affect the courts that are tasked with the imposition of criminal sentences — implications that might not be apparent to the parties themselves. The Court believes that a discussion of these points may assist the Supreme Court in determining whether the petition ought to be granted.

It is for these reasons, and not out of any disrespect for the Circuit Court’s authority to reverse the sentence I imposed, that I will take this opportunity to respond to certain portions of the July 29 Order....

I normally conclude the sentencing process by coming back to a consideration of the need for the sentence imposed to promote respect for the law and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A).  These are subjective factors that overlay the other statutory considerations.  As I said at the sentencing, “I just do the best I can under the circumstances.  It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a thirty year sentence . . . is greater than necessary to accomplish the statutory objectives.” (Tr. at 61).

The Circuit Court acknowledged that I properly calculated the guideline score, committed no procedural error, and gave thorough and thoughtful consideration to the statutory sentencing factors.  Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me, and concluded that there were no mitigating circumstances to justify any sentence other than the 30-year guideline sentence.

This is an extraordinary and unprecedented result.  The Circuit Court has effectively usurped my sentencing discretion and raised serious questions regarding Irey’s right to due process.  I concede that the majority opinion has raised valid concerns about the reasonableness of the sentence I imposed.  Were this case remanded to me for re-sentencing, I would take these concerns into account and exercise my discretion accordingly.  But as it now stands, I will not be given that opportunity.  Nor, it appears, will Irey be given the opportunity to confront the facts and arguments raised for the first time on appeal, which resulted in a 12 and a half year increase in his sentence.

In his separate opinion, Judge Tjoflat states that the majority opinion’s approach — i.e., resentencing defendants on appeal — does “immense and immeasurable institutional damage.” Irey III at 1267. In my opinion, it also undermines the basic tenets of sentencing law developed over the past five years, and opens a Pandora’s box of new sentencing issues. I regret that my sentencing of this defendant — including any errors I made in doing so — appears to have led to this result.

Download Irey FINAL post-sentencing opinion with Apps

By my lights, this opinion stands as a de facto amicus brief in support of a cert petition that has not yet even been filled.  As such, this opinion is quite unusual, and I wonder if commentors think it should be lauded or lamented.

Related posts on Irey case:

October 25, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, October 22, 2010

"Mini-Madoff" gets mini-sentence that should still be a functional life sentence

As detailed in this Reuters piece, which is headlined "Mini-Madoff Nadel Sentenced to 14 Years Prison," another high-profile Ponzi-schemer faced the sentencing music yesterday.  Here are the basic details:

Arthur Nadel, a fund manager whose $168 million fraud was one of several that collapsed in the declining economy and left hundreds of investors without their money, was sentenced to 14 years in prison on Thursday.

Nadel, 77, dubbed "mini-Madoff" in his home state of Florida after epic swindler Bernard Madoff, was excoriated as "evil" and "a loser" by one of his victims during the sentencing proceeding in U.S. District Court in New York.

"Arthur, you are an evil person," said businessman Michael Sullivan of Barrington Hills, Illinois.  "I assume you are a narcissistic psychopath" and "just a weak child seething with anger and loathing" who had "little success in life until you founded your fraudulent funds."

Judge John Koeltl rejected as too long U.S. prosecutors' requested sentence of between 19-1/2 years and 24 years, citing Nadel's age and a heart ailment.  But Koeltl said Nadel orchestrated a "massive fraud" on investors, "many elderly and who lost the fruits of their lives," adding that "it caused financial difficulties to the victims and those close to them."...

Looking thin and frail with one of his sons present in the back of the court, Nadel stood in prison garb and told the judge that he had read letters submitted to Koeltl by many of his 390 victims. "Their anger and outrage became mine at myself," Nadel said.  "I blame only myself for my acts."

His court-appointed lawyer had asked the judge to imprison Nadel for just five years, given his life expectancy, so that he would not die in prison.

I suppose it is possible that Nadel will live into his 90s and perhaps live out this 14-year federal prison sentence.  But odds are that Arthur Nadel, like Bernie Madoff, will die in prison.

October 22, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Thursday, October 21, 2010

Judge Bright laments post-Booker crack sentencing realities in Iowa

Concurring in part and dissenting in part in an Eighth Circuit opinion in US v. Brewer, No. 09-3909 (8th Cir. Oct. 21, 2010) (available here), that is not otherwise that notable, Judge Myron Bright has a lot to say about disparties in crack sentencing approaches in the Northern District of Iowa. Here is part of his opinion:

Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today?  Well, it has.  In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines -– which here applied a 33:1 ratio.  So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era).

For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence of 30 years to life.  That’s the same recommendation as if Brewer had committed second-degree murder. Unfortunately, equating crack cocaine with murder is not uncommon. See Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire 336 (Metropolitan Books 2010) (Texas Tough) (“In 1995, the average federal prison term for a crack offense surpassed that of murder.”).  Brewer requested a variance from the harsh crack cocaine guidelines on the basis of the disparity with powder cocaine and he cited a decision by Judge Bennett of the Northern District of Iowa who utilizes a 1:1 crack/powder ratio.

The court imposed a 370-month sentence.  That’s 30 years and 10 months. The district court denied Brewer’s request for a variance, stating “I did consider and reject the request for a variance based on the disparity in punishment between crack cocaine and cocaine.  As I looked at the statutory factors under 18 U.S.C. 3553(a), I determined that, on balance, this sentence was not out of the range of reasonableness and is fully supported by the evidence.”

The majority affirms, concluding that the district court was not required to vary downward on the basis of the crack/powder disparity.  But I believe the district court’s decision does not reflect a reasoned and informed exercise of discretion.  The district court cavalierly applied a guideline which often does not comply with § 3553(a) in the mine-run case, treats Brewer like a murderer, and results in unwarranted intra-district disparity.  Sadly, the interstate and corresponding judicial assignment made a substantial difference at Brewer’s sentencing.

October 21, 2010 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (15) | TrackBack

Monday, October 04, 2010

Helping a district judge send a sentencing message to unscrupulous landlords

A helpful reader sent me a copy of a recent notable white-collar sentencing decision by US District Judge Mark Bennett in US v. Miell, No. CR 07-101-MWB (D. Iowa Sept. 27, 2010) (available for download below). There are many notable passages in this 105-page(!) opinion, and I have spotlighted the first paragraph and a notable footnote here:

In Little Dorritt (1855-57), Charles Dickens portrayed a greedy landlord as repeatedly urging his rent collector to “squeeze” the inhabitants of his most squalid property, even though the rent collector believed that he had already “squeezed” them dry.  Although this defendant’s properties were not squalid, there is nevertheless a disturbingly Dickensian quality to this case: The defendant, who owned hundreds of rental properties in Cedar Rapids and Linn County, Iowa, and, consequently, was himself worth many millions of dollars, engaged in a fraud scheme involving renters’ damage deposits over many years to “squeeze” an extra few hundred dollars each from people that he thought were too economically vulnerable or unsophisticated to contest his claims.  His damage deposit fraud scheme involved creation of fake and inflated invoices for repairs to and cleaning of his rental properties to justify claims and judgments against renters’ damage deposits. He also engaged in another fraud scheme to obtain insurance payments for repair of hail damage to the roofs of more than a hundred of his rental properties based on fake or inflated invoices, whether or not the roofs in question had actually been repaired.  The defendant pleaded guilty to eighteen counts of mail fraud arising from these schemes. He also pleaded guilty to two of three counts of perjury and was convicted by a jury of two counts of filing false tax returns. I write this sentencing decision to explain why I find that the defendant’s conduct warrants an upward departure or variance in his sentence for these offenses, from an advisory guidelines sentencing range of 168 to 210 months to 240 months, the statutory maximum sentence for the mail fraud offenses....

I am not sure that I have ever imposed a sentence to send a “message” to others or, in the parlance of sentencing lingo, as a “general deterrent.”  Certainly, in the daily ritual of sentencing drug defendants in our court to lengthy mandatory minimums, there is no anecdotal or empirical evidence that sentencing to “send a message to others” actually “works.”  In my view, it not only does not work as a general deterrent, but federal sentences in drug offenses — especially for the vast majority of addict defendants who are the daily grist of federal drug sentencing — are so harsh that these sentences themselves promote fairly widespread disrespect and undermine our citizens’ confidence in the fairness of federal sentencing.  That would probably be a risk worth taking if these sentences actual worked, but they don’t.

In this case, however, while “sending a message” is not my motivation or intent to any major degree, I hope that this sentence sends a seismic shockwave to every unscrupulous landlord who has repeatedly, unfairly, and unlawfully withheld renters’ damage deposits. You know who you are.   As this topnotch federal prosecution shows, the long arm of the United States Department of Justice, backed by endless resources, is here to seize you whether you are an inner-city slumlord, a college town landlord with a history of ripping off college students, a rural property owner, or an unscrupulous landlord working your scam anywhere in between.

Download Miell.MemopReSentencing 

October 4, 2010 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Monday, September 20, 2010

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

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

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

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

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

September 20, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, September 14, 2010

"Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report"

The title of this post is the title of this notable new paper from a set of criminologists that is now available via SSRN. Here is the abstract:

The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007).  In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models.  Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009.

We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels.  Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses.  We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 U.S. v. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.

September 14, 2010 in Booker and Fanfan Commentary, Booker in district courts, Detailed sentencing data | Permalink | Comments (24) | TrackBack

Wednesday, September 08, 2010

"Federal Judges Go Easy On Tax Cheats, Pornographers And Prostitutes"

The title of this post is the provocative heading give to this post at a Forbes blog called "Taxing Matters" and authored by Janet Novack.  Here is an excerpt of the analysis of the latest US Sentencing Commission data (previously discussed here) that follows under this heading:

The latest numbers from the U.S. Sentencing Commission provide new evidence that at least some Federal judges don’t like handing out stiff jail sentences to tax cheats. Since the Supreme Court ruled in U.S. v. Booker in 2005 that the Commission’s tough-on-white-collar-crimes sentencing guidelines weren’t binding, the Commission has tracked the frequency with which judges hand out lighter penalties than the guidelines call for.

In the first nine months of fiscal 2010, federal judges cited Booker to sentence 13.4% of all federal convicts to below guideline terms.  Tax cheats?  Thanks to Booker, they got below guideline sentences 29% of the time.  One of the few things that seemed to offend the jurists more than putting tax cheats away: the very, very long guideline sentences for pornography and prostitution. There, judges used Booker to sentence below range 34% of the time.

But there’s a big difference. In the tax cases where they used Booker to go low, judges handed out a median sentence of just five months — a year less than minimum.  That amount of time can be served in home confinement.  By contrast, the judges who sentenced below the minimum in pornography and prostitution cases still meted out a median prison term of five years — 37 months below the guideline minimum.

Before you decide to cheat on your taxes, however, be forewarned: Two Midwestern tax lawyers told me Wednesday that they haven’t seen such leniency in their cases and believe sentencing varies greatly by region.  Indeed, while below guideline figures aren’t published by type of offense for each district, they are for all offenses. In the Southern District of New York (Manhattan) judges used Booker to sentence below range in 41% of all cases, whereas in Arizona, Nevada and the Eastern District of Texas, judges cut defendants a Booker break only 5% of the time.

Some (very and somewhat) related posts:

September 8, 2010 in Booker in district courts, Data on sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, September 07, 2010

Mining (and spinning?) the latest, greatest sentencing data from the US Sentencing Commission

The US Sentencing Commission has some fresh new sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Third Quarter FY10 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the third quarter of fiscal year 2010.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 3, 2010)

The new data continue to show a very slow and very steady migration away from guideline ranges: over the nearly 60,000 federal cases sentencing in this period, just under 55% of all federal sentences fell within the calculated guidelines range.  Prosecutors, who requested departures or variances in nearly 26% of all cases, continue to be the primary driving force behind below-range sentences, but judges now go outside the guidelines on their own almost 20% of the time (with 2% of all cases having judges imposing above-range sentences and 17.6% of all cases prompting judges to impost below-range sentencing).

My simplistic take on the latest, greatest data is to note simply the remarkable stability in the operation and application of the advisory federal guideline sentencing system as we see this slow and steady, but still relatively slight, migration away from the guidelines.  Moreover, as the title of this post suggests, I think these data could be mined and spun in all sorts of ways. 

If I wanted to tell a story of the demise of the guidelines, I could focus on some outlier guidelines or some outlier districts.  It appears from this latest data run that significantly less that half of all child porn sentences and white-collar sentences for crimes like tax fraud and money laundering are imposed within the calculated guidelines range.  Similarly, in districts as varied as the Eastern and Southern Districts of New York to the Districts of Delaware and Minnesota and Utah to the Middle District of Tennessee to the Western District of Virginia, significantly less than half of all sentences are imposed within the guideline ranges.

But if I wanted to tell a story of the persistence and enduring importance of the guidelines, I could focus on other guidelines and other districts.  It appears that in more than four out of every five drug and immigration sentences are sentenced within the guidelines or below the guidelines based on prosecutors' substantial assistance or fast-track departure recommendations.  Similarly, in districts as varied as the Eastern and District of Virginia and Texas to the Districts of South Dakota and New Mexico to the Middle District Georgia, nearly three-quarters of all sentences are imposed within the guideline ranges.

In sum: "The federal sentencing guidelines are dead!  Long live the federal sentencing guidelines!"

September 7, 2010 in Booker in district courts, Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, August 06, 2010

Another judicious comment from the judiciary on Judge Kopf's "Brief and Modest Proposal"

Regular readers may recall this engaging post from last week concerning providing federal sentencing data for particular judges, titled "'A Brief and Modest Proposal' ... an original essay from US District Judge Richard Kopf."  That post in turn prompted a detailed response from another federal district judge, US District Judge Edmund Sargus, which is reprinted in full in this post.  Both posts have generated a lot of terrific comments (see here and here), including one that I received via a cc:d e-mail from a circuit judge that I have been permitted to reprint:

Dear Ed,

I read your letter to Professor Berman in his blog.  I liked what you wrote.

Here's another thought.  As was the case pre-guidelines, let the probation officer get all the statistical information he/she can on sentences imposed by other federal judges on somewhat similarly situated offenders.  Let the probation officer and judge visit and discuss what would be fair in the circumstances.  Let it be a sentence resting on an informed discretion.

Sincerely,

Myron H. Bright

Related posts:

August 6, 2010 in Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, July 28, 2010

"A Brief and Modest Proposal" ... an original essay from US District Judge Richard Kopf

I am very pleased to be able to reprint a timely e-mail that landed in my in-box this afternoon from Richard G. Kopf, United States District Judge for the District of Nebraska.  Here is the Judge's wind-up and pitch:

I read Professors Masur's article entitled "Booker Reconsidered" and your post about his article [available here].  After that reading, a thought occurred to me that has been percolating in my muddled mind for some time.  Hence, the following "Brief and Modest Proposal."  Feel free to post if you like. Take care.

______________________

A Brief and Modest Proposal

Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines.  I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.

For much of their history, compliance with the Guidelines was very high.  So long as the Guidelines were essentially binding in most cases and aggregate compliance rates remained elevated, one could make a reasoned argument that providing sentencing statistics on individual judges was unnecessary and perhaps unfair.  But the Supreme Court has changed all that by significantly increasing the discretion of federal judges when it comes to sentencing.

Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared.  This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice.  See, for example, the New York Times editorial entitled "Rethinking Criminal Sentences" published on July 28, 2010. ("As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will 'breed disrespect for the federal courts,' damaging their reputation and the deterrent effect of punishment.").

By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences.  Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world.  In short, it is time for federal sentencing judges like me to pay the piper.

Richard G. Kopf,  United States District Judge

July 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (30) | TrackBack

Second Circuit reverses below-guideline child porn sentence as procedurally unreasonable

The Second Circuit continues its robust work on reasonableness review in child porn cases with an intriguing new little decision reversing a below-guideline sentence in US v. DeSilva, No. 09-2988 (2d Cir. July 28, 2010) (available here). The opinion starts this way:

We are called upon here to determine whether the United States District Court for the Western District of New York committed procedural error by engaging in clearly erroneous factfinding at defendant’s sentencing when it relied upon a psychologist’s report — which was prepared for use at a pretrial bail hearing — to find that defendant, an admitted child molester, posed no danger to the community.  We hold that the District Court did commit such procedural error and therefore remand for resentencing.

The DeSilva opinion includes lots of important discussion of the Second Circuit's child porn ruling in Dorvee and the role that psychologist reports often play in these child porn cases. Here is a snippet:

Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a).  If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.

Nothing in Dorvee is to the contrary. There, as part of our consideration of a sentence’s substantive reasonableness, we observed that the district court placed more emphasis on 18 U.S.C. § 3553(a)(2)(C) as an aggravating factor than the sentencing record could support.  See Dorvee, 604 F.3d at 94.  Specifically, the district court in Dorvee based the defendant’s sentence, at least in part, on the “assumption” that the defendant posed a danger to the community merely because he had committed a child-pornography offense.  Id.  In relying on that “assumption” — which, we found, lacked record support — the district court also ignored, without explanation, a psychologist’s report that tended to suggest that there was not a great need “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C).  The fact that the record as a whole could not sustain the district court’s application of § 3553(a)(2)(C) supported our ultimate conclusion that the sentence was not substantively reasonable. See Dorvee, 604 F.3d at 94.  We did not, however, suggest that a district court must, without scrutiny, adopt a psychologist’s conclusion that a particular defendant poses no danger to the community.

In short, nothing in Dorvee compels a district court to accept a psychologist’s conclusions at face value.  It is possible, of course, that such a psychologist’s report may be accurate.  But district courts should scrutinize such reports with the same diligence required during any fact-finding at sentencing, especially if the report’s conclusion is at odds with the defendant’s conduct....

Dr. Joseph’s report dealt only with whether DeSilva would be a danger to the community if released to his parents pending trial.  What was relevant for sentencing, however, was whether DeSilva would pose a danger to society once he had served his sentence and was released from prison.  No one suggests that the District Court could have ordered that DeSilva be released to his parents following his term of imprisonment, and thus Dr. Joseph’s opinion had only minimal relevance to whether DeSilva would be likely to abuse another boy after his sentence was complete.  As such, the report should have had little bearing on the District Court’s sentencing determination; it was not, in any event, an appropriate authority for the Court’s finding that DeSilva posed no “danger to the community.”  See J.A. 168-69.  In relying on Dr. Joseph’s report, therefore, the District Court “‘select[ed] a sentence based on [a] clearly erroneous fact[]” and thereby committed “‘procedural error.’” Dorvee, 604 F.3d at 90 (quoting Gall, 552 U.S. at 51).

July 28, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

New York Times editorial urges review of white-collar and child porn sentences

This morning's editorial page of the New York Times includes this thoughtful piece titled "Rethinking Criminal Sentences." Here are excerpts:

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission....

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

Possession of a single piece of child pornography, for example, is supposed to result in a five-to-seven-year sentence — longer with aggravating circumstances — but many judges instead are imposing probation or one year for first offenses. Many federal judges have told the sentencing commission that the child pornography guidelines are far too severe.

The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take. The rules for child pornography, for example, include extra penalties for using a computer, but everyone in that repugnant world uses a computer, rendering the rules obsolete.

The key in both areas is helping judges find ways to differentiate the worst offenders from those who have caused less damage or are less of a threat to society. White-collar sentences are now based on the size of the fraud, but that may not be the best way to measure the role of a defendant or the venality and damage involved.

As repellent as child pornography is, it does not help judges when someone found with a few photographs is held to similar standards as someone disseminating thousands of them. These are sensitive areas, but a thoughtful re-examination by the commission and Congress could bring new respect for the federal judiciary.

Recent related posts:

July 28, 2010 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, July 26, 2010

Notable discussion of federal child porn sentencing in Connecticut

The Connecticut Law Tribune has this notable new piece on federal child porn sentencing headlined "Discretion Debate: Study, attorneys note inconsistent sentences in child pornography cases."  Here are excerpts:

The arrests and convictions are in the news every week, and often the details make us cringe.  In most cases, the bottom line is that some guy has been caught with child pornography on his computer.  Just last week, David Besaw, of Newington, was sentenced to 32 months in prison by U.S. District Judge Stefan Underhill for possessing child porn.  Earlier in the year, Kevin Davis, of Putnam, was sentenced to just under four years by Chief U.S. District Judge Alvin Thompson for possessing the graphic sexual images involving children.

In April, Judge Vanessa Bryant sentenced William Golia, of New Haven, to five years in prison for the same crime. A month earlier, Judge Janet Bond Arterton sentenced an Old Saybrook man, Joseph Rock, to 6 ½ years behind bars for child porn possession. And last year, Judge Robert Chatigny sentenced Roger Chapell of Manchester to 14 months for possessing the child porn.

This is but a small sampling, but it makes two things clear: Child porn convictions are distressingly common.  And sentences are not very consistent.

Such sentencing disparities – especially when it comes to child porn and white-collar financial crimes – have prompted the U.S. Department of Justice to call for “a comprehensive review” in its most recent report to the U.S. Sentencing Commission....

Longtime New Haven defense attorney William F. Dow III, of Jacobs, Grudberg, Belt, Dow & Katz, handles many of the child porn cases.  He’s noticed sentencing disparities in Connecticut, and said it may reflect a change in thinking on the part of some judges.

“I think what’s happened is judges have realized that looking at child porn does not equate to an action of molesting children,” said Dow....

To be sure, all federal child porn cases are not alike.  At the low end is possession of child pornography, where the sentencing guidelines are voluntary and judges’ discretion most often comes into play.  For more serious charges, Congress has instituted mandatory minimum sentences, which were not affected by the 2005 Supreme Court ruling....

But in cases where judges have options, Hartford attorney M. Hatcher “Reese” Norris, of Butler, Norris & Gold, said there’s often a good reason why one child porn defendant is sentenced more harshly than another.  “Some of the sentences may have involved a different number of images and different types of images…sadomasochistic…that obviously has an impact… so it’s hard to put them all in one category,” explained Norris....

“The guideline sentences are certainly astronomically high and just way out of proportion to the criminal charge,” said Dow.  “That’s not to say this is pleasant stuff or children aren’t being exploited but child pornography standing alone is a disquieting quest that is inevitably pursued by people who have some emotional or mental health deficits.”  Dow described the typical child pornography defendant as “sad sacks, lonely and despondent people.”...

The issue of discretionary sentencing has been in the political spotlight in Connecticut, where Judge Chatigny has been accused by some conservatives of handing out light sentences in sex crime cases.  This came to light after Chatigny was nominated for the 2nd Circuit Court of Appeals....

Norris said lawyers aren’t sitting around strategizing as to how to get on a certain judge’s docket in the federal child pornography cases because one is perceived as so much more lenient than another.  But Dow admitted: “Yes, a particular judge can make a difference in terms of sentence,” but said that’s the case with all sorts of crimes, and not just child pornography.

Some related prior federal child porn prosecution and sentencing posts:

July 26, 2010 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, July 23, 2010

Justice or unjust disparity for Ponzi schemer getting sentence doubled due to harm to victims?

This local report on a recent federal sentencing for a young fraudster, which is headlined "Pizzolato gets 30-year prison sentence in Ponzi scheme," provides a terrific setting in which to consider and debate concerns about post-Booker sentencing disparity.  First, here are the basics:

A federal judge today gave a 30-year prison sentence to a Tickfaw man accused of swindling more than 160 people, many of them senior citizens, in a Ponzi scheme based out of his Northshore investment companies.

Wearing an orange jail jumpsuit and shackles, Matthew Pizzolato, 26, turned around and faced the victims sitting in the courtroom. Everyday he is "beside himself," Pizzolato said, shaking his head and crying. "I can't understand how my actions hurt so many people." Pizzolato said he hoped the judge's actions would give his victims "some closure."

But U.S. District Judge Lance Africk said Pizzolato's conciliatory expressions had only developed recently, after he learned that the judge intended to give him a longer sentence than what had been laid out in his plea bargain with federal prosecutors.

In the end, the 30-year sentence was double the maximum laid out in the federal sentencing guidelines, but the judge said that was necessary because of several factors, such as the psychological and emotional harm done to the victims and the advanced ages of many victims. "Mr. Pizzolato, you swindled the salt of the earth,'' said Africk. "You stole from hardworking Americans who toiled their whole lives."

During the hearing, multiple victims talked about how Pizzolato had taken their life savings ensuring them that the money would be invested in conservative securities. Much of the money, however, was actually diverted into Pizzolato's own pocket or lost in the high-risk futures market.

Although he had only an eighth-grade education and a high school equivalency diploma, Pizzolato told clients that he was one of the top 10 financial planners in the country, possessed special training in investing, was a certified estate planner and had graduated from law school.

To make investors believe the scheme was legitimate, Pizzolato issued false account statements and "Certificates of Investment." In some cases, he forged the signatures of his clients to make unauthorized withdrawals from their accounts.

Of the $19.5 million he collected, Pizzolato distributed about $2.8 million back to his clients in the form of "lulling payments, " or supposed returns on their investments, in order to quell any suspicions that he was a fraud. Pizzolato diverted another $9.9 million to use in high-risk futures and commodities trading.  The rest, about $1.3 million, he lavished on himself and his family.

As the question in the title to my post is meant to spotlight, I would love to hear readers' views on whether this case is a great example of the ability post-Booker for district judges to do case-specific sentencing justice or a great example of the post-Booker problem of sentencing disparity. 

I think it fair to assert that most district judges would not have imposed a sentence on Pizzolato that was double the guideline range and more than was set forth in the plea bargain he made with federal prosecutors.  Nevertheless, it seems that legitimate sentencing factors played a central role in the decision to send Pizzolato away for 30 years (including perhaps also his young age, given that he still should may be able to be a free man at an age still much younger than the victims he swindled).

To put a fine point on this debate, here are a couple questions I would like to hear answered by any and everyone who has expressed concerns about post-Booker discretion and disparity:

1.  Do you think justice has been served or injustice created by Pizzolato's sentencing?

2.  Do you think the Fifth Circuit ought to reverse Pizzolato's sentence on appeal based on disparity concerns?  (An appeal waiver might even preclude any appeal and I highly doubt the Fifth Circuit would reverse if this matter comes to them.)

3.  Do you think the US Sentencing Commission and/or Congress needs to enact some new guidelines or statutes to diminish this kind of disparate outcome in other cases?

I raise all these question in this context because I genuinely suspect and fear that the vast majority of expressed concerns and complaints about sentencing disparity (especially when coming from current or former prosecutors) are principally concerns and complaints about sentencing leniency.  Thus. when a sentence like Pizzolato's is disparately harsh, it provides a good setting to explore whether and how folks really care about disparity apart from leniency.

July 23, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Monday, July 19, 2010

"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"

The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered."  There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):

The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects.  There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing.  Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form.  And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.

I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis.  But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece.   Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.

And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a).  If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences.  Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.

July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, July 18, 2010

Effective press coverage of recent DOJ letter to the US Sentencing Commission

Marcia Coyle has this lengthy and effective piece due to appear in tomorrow's National Law Journal under the headline "Justice Department Calls for Probe of Federal Sentencing Patterns; Prosecutors see disparity in fraud, child pornography punishments." Here is how it begins:

During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc.  President Richard Adelson for a $50 million securities fraud.

Those widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes.  But some sentencing experts say it may be something that the commission does not want to examine too closely.

The department called for a "comprehensive review" of the state of federal sentencing in its most recent annual report to the commission on June 28.  In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data "suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes."

If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said.  "More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing," said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report.

Some sentencing scholars agree that judges are "straying off the guideline reservation" more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be.  "I do think they're on to something," said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law.  "It's one of the dirty little secrets of federal sentencing now.  There are situations where which judge you pull can drive the sentence."

But, he added, the subject for debate is how widespread the problem may be.  "Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon?  That's where analysis by the [Sentencing] Commission is needed."

The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. "Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence," she said.  "It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control."

Recent related posts on the DOJ letter to the USSC:

July 18, 2010 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, July 13, 2010

Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?

There are so many intriguing aspects of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here), and I am still reflecting on DOJ's current assessment and criticism of 2010 post-Bookerrealities.  But, upon my first re-read of the DOJ letter, this introductory paragraph jumped out at me:

[W]e think the existence of these dichotomous regimes [with some judges regularly sentencing within the guidelines and others frequently sentencing outside the guidelines] will, over time, breed disrespect for the federal courts.  Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice will be compromised.

I do not disagree with any of the sentiments in this paragraph, but it seems to incorporate an implicit assertion that all was well with federal sentencing law and practice before Booker five years ago transformed the guidelines from rigid mandates into general advice.  As the question in the title to this post spotlights, in my view, federal sentencing before Booker was "an ongoing source of discord, disunity, and criticism" and that reality seriously damaged the reputation of federal courts and the effectiveness of federal criminal justice.  Indeed, I think it fair to assert that the amount of discord and criticism of the federal sentencing system has been reduced by Booker, though arguably the amount of disunity may be increasing.

The broader issue that the DOJ letter and this post raises concerns the appropriate benchmark for assessing and criticizing modern post-Booker federal sentencing realities.  There are clearly many problems with the current advisory federal sentencing regime.  But I continue to believe that most of these problems are generally less bad now than they were before Booker --- though the current problems may now be more transparant and irksome (especially to prosecutors who generally see increase judicial discretion being used to reduce sentence lengths relative to the guidelines).  Moreover, the fact that a lot of the problems with federal sentencing are now more transparant after Booker serves itself as a mark in Booker's favor because problems that are easier to see are generally easier to fix.

July 13, 2010 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, June 29, 2010

High-profile below-guideline political corruption sentence headed to Third Circuit

As detailed hereand in other posts linked below, last summer brought lots of discussion and debate over the 55-month prison sentence imposed on Pennsylvania state lawmaker Vincent Fumo for his convictions on various corruption charges.  Because Fumo was convicted at trial of many charges involving lots of corruption, most commentary assailed his below-guideline sentence as too lenient.  And now, as these newspaper reports highlight, this high-profile federal sentencing debate is going to be heading to the Third Circuit:

Because Fumo is in his late 60s and because the Sentencing Commission has new proposed amendments that indicate that age now is a potentially relevant departure factor, this case may be extra interesting in its briefing and argument concerning reasonableness review.  That said, I suspect the government's appeal will stress what it views as procedural errors that it will say played a role in the sentence Fumo got from the district court.

Related prior posts on Fumo sentencing:

June 29, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 28, 2010

SCOTUS takes up long-running federal sentencing case from Eighth Circuit

It appears that among the cert grants from the Supreme Court this morning is Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  This Pepper case appears to have gone up and down the federal judicial ladder on sentencing issues for years, and it looks like Pepper might be a variation on the important Gall case from the Eighth Circuit that SCOTUS reversed a few years ago.  I will have a lot more on this important federal sentencing cert grant once I have a chance to review the particulars.

UPDATE:  Because the Eighth Circuit's most recent Pepper decision implicates so many issues, it is hard to even know how significant the SCOTUS cert grant in this case could prove to be.  That said, the case seems likely to provide the newer Justices with their most direct opportunity to express views on modern post-Booker federal sentencing realities.

June 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, June 24, 2010

Fascinating data on recent trends and circuit specifics for federal child porn sentences

A few weeks ago, US District Judge Gregory Presnell asked whether I had any detailed or circuit-specific data regarding federal sentences for child porn offenses. I responded that the US Sentencing Commission would be the place to get such data, and Judge Presnell inquired of the Commission.  And now I am happy to report that Judge Presnell has provided me with the information that was provided to him, and he has even written up this helpful summary of what the Commission data shows:

Pursuant to my request, the USSC sent me data related to sentences imposed under U.S.S.G. 2G2.2 for the fiscal years 2007-2009. That data is presented in the attached tables.

Nationwide, from 2007 to 2009, the number of sentences imposed under this guideline almost doubled, from 853 to 1,546, and the percentage of below-guideline sentences increased from 30.8% to 51.6%.  Similarly, the average percentage reduction increased from 36.3% in 2007 to 40.3% in 2009.  Thus, during the last fiscal year more than half of all child porn sentences were below the minimum guideline sentence, and the average reduction was approximately 40%.

Excluding the First Circuit and DC Circuit (whose case loads are too small to draw meaningful data), the percentage of sentences below the guideline range from a high of 65% in the Third Circuit to a low of 30% in the Fifth Circuit.  The average percentage reduction is highest in the Second Circuit at 47% and the lowest is the Seventh Circuit at 30%. Overall, there is not great disparity among the Circuits.

Compared with the Circuit Court data, the Middle District of Florida had a high percentage of below-guideline sentences -- 70.6%, but the average percentage reduction was 38.8%, near the national average in fiscal year 2009.  During that same period, the Eleventh Circuit was right at the national average with 51.4% of sentences below the guideline and an average reduction of 39%.

I suspect that any and everyone dealing with the always challenging issues surrounding the sentencing of child pornography offenses will be interested in the data that can be found in the charts available for downloading here: Download Circuit data on USSG 2G2.2 with tables.

Some related prior federal child porn prosecution and sentencing posts:

June 24, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, June 22, 2010

Seventh Circuit finds inadequate district court's sparse justification for way below-guideline sentence

The Seventh Circuit in US v. Brown, No. 09-1028 (7th Cir. June 22, 2010) (available here), provides district judges with yet another important reminder that they need to explain fully the bases for their sentencing judgments. Here is how the opinion in Brown gets started:

When Rodney Brown pleaded guilty to distributing more than five grams of crack cocaine, it looked as if he was about to go to prison for a long time.  Brown had a prior drug conviction, and so he faced a mandatory minimum sentence of 120 months’ imprisonment.  To make matters worse, his two previous convictions for aggravated assault qualified him as a career offender for purposes of § 4B1.1 of the U.S. Sentencing Guidelines, and this bumped up his recommended guidelines sentence to 262-327 months’ imprisonment.

At the sentencing hearing, the district court limited itself to making a few negative remarks about Brown’s character and capacity for change.  It then surprised the parties by sentencing Brown to the lowest possible point available to it, the 120-month mandatory minimum, a full 142 months below the low end of the guidelines range.  In its terse explanation of the sentence, the district court mentioned only Brown’s age (40 years old), the short length of his previous state sentences, and the conditions of his upbringing.

The government has appealed the sentence.  Although a sentence so far below the recommended guidelines range lies within the court’s power, and may even have been justified in this case, the record is too spare to support that conclusion at this point.  We therefore vacate Brown’s sentence and remand for resentencing.

In the weeks after Booker was handed down, I highlighted in this post that district judges should "Always remember to show your work."  More than five years after Booker, it seems that some district judges are still struggling to understand that this is classic suggestion for math class remains very important for modern federal sentencing.

June 22, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Sixth Circuit panel finds five-day sentence for child porn offense substantively unreasonable

The Sixth Circuit handed down US v. Christman, No. 08-4474 (6th Cir. June 22, 2010) (available here), yet another notable sentencing decision in yet another ugly child porn case.  The case appears to have been handled poorly in a variety of ways, as evidence by this explanation at the start of the opinion:

Richard Christman pled guilty to two counts of possessing child pornography in January 2005 pursuant to a plea agreement calling for dismissal of the remaining counts against him, four counts of distribution child pornography. The district court sentenced him to 57 months in prison, a within- Guidelines sentence at the bottom of the 57-71 month recommended range. Several months later, the district court admitted that it had relied on impermissible information outside the pre-sentence report in sentencing Christman, and Christman appealed his sentence to this Court. A panel of this Court agreed, and it vacated and remanded the case for re-sentencing.

At re-sentencing, the district court, over the prosecution’s objection, sentenced Christman to five days in prison—that is, the time that he had spent in custody when first arrested—and fifteen years of supervised release. The court found that this sentence was warranted because Christman had severe back pain, he was his elderly, ailing mother’s primary caregiver, his family believed that he was remorseful, he was a musician and composer, and he had complied with the restrictions of his release on bail. The government appeals, arguing that the district court’s imposition of the nominal prison term cannot reasonably be justified by the factors identified at re-sentencing.

For the reasons set forth below, we find that the sentence was substantively unreasonable, VACATE the new sentence, and REMAND for re-sentencing in light of this opinion. We also direct that this case be assigned to a different judge for resentencing.

June 22, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Monday, June 21, 2010

You make the sentencing call: resentencing of Qwest's Nacchio on tap for this week

As detailed in this Denver Post article, which is headlined "Former Qwest CEO Nacchio awaits resentencing," a high-profile white-collar defendant is scheduled to be resentenced later this week. Here are all the details:

Former Qwest chief executive Joe Nacchio, 14 months into a six-year prison term for criminal insider trading, will receive a new sentence Thursday. What that sentence will be is anybody's guess.

Nacchio attorney Sean Berkowitz contends it should be less than three years and five months. The government argues federal guidelines allow for a sentence of as long as 12 years and seven months.

U.S. District Judge Marcia Krieger has set aside three days, Tuesday through Thursday, to resolve the matter.

A federal appeals panel last summer granted Nacchio a new sentence, ruling that trial judge Edward Nottingham miscalculated how much Nacchio gained from illegally selling Qwest stock based on nonpublic information that the company was faltering financially.  The amount of money a defendant gains from a crime is a key sentencing factor in securities cases. Nottingham determined Nacchio gained $28 million.

An analysis by government expert Anjan Thakor, a finance professor at Washington University in St. Louis, says Nacchio gained between $23.5 million to $32.9 million.  Thakor is expected to testify Tuesday.  Nacchio's expert, Northwestern University business law professor Daniel Fischel, pegs that figure at $1.8 million. Fischel is expected to testify Wednesday....

Under federal sentencing guidelines, the amount of gain and factors including the type of crime determine the range of the prison term a judge should impose.  The guidelines are advisory, not mandatory.  But a judge must state reasons for imposing a sentence outside the range.

Nacchio's initial sentence was based on 2000 sentencing guidelines because his illegal stock sales occurred in 2001. The government contends Krieger should use 2006 guidelines, which are harsher.

In a court filing pushing for a lighter sentence, Berkowitz portrays Nacchio as a charitable family man who has already suffered enough. "He has lost his career, his livelihood, his reputation, and his freedom," the filing states. "His life has already been forever changed."

The government claims a harsher sentence is warranted because Nacchio's actions "reflect substantial greed" and the offense "is far more aggravated" because of his leadership position at Qwest.  Nacchio and his wife had a combined net worth of $421 million in April 2001, around the time of the illegal stock sales, according to a court filing.

In addition to the prison term, Nacchio was ordered to pay $19 million in fines and forfeit $52 million — the gross amount of his stock sales.  Berkowitz says the fine should be $3.6 million or less and his fine and forfeiture combined should be no more than twice what Krieger determines to be the gain amount.  The government says Nacchio should pay $19 million in fines and $44 million in forfeitures.

Nacchio, who turns 61 Tuesday and is serving time at a federal prison camp in Minersville, Pa., will not attend the re-sentencing hearings, which will be in U.S. District Court in Denver.

Though only those directly involved in the resentencing hearings will hear all the evidence needed to make a fully informed decision, the rest of us certainly can have ideas about what kind of sentence may be "sufficient but not greater than necessary" in this high-profile white-collar case.  So, dear readers, you make the call: what sentence would you be inclined to impose on Joe Nacchio?

June 21, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Thursday, June 17, 2010

Updating the continuing debate over Lynne Stewart's upcoming resentencing

This new article in the New York Law Journal, which is headlined "Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing," provides the latest news in the long-running controversy surrounding the sentencing of noted defense attorney Lynne Stewart. Here is how the piece starts:

Prosecutors and defense lawyers have now weighed in on the critical question facing Southern District of New York Judge John J. Koeltl when he resentences Lynne Stewart on July 15: whether the disbarred defense lawyer perjured herself at her 2005 trial for providing material support to a terrorist conspiracy.

Both sides have filed extensive sentencing materials with the judge, whose decision to give Stewart, 70, only 28 months in prison for helping her imprisoned client, Sheik Omar Abdel Rahman, communicate with the outlaw Islamic Group in Egypt, was vacated last year as too light by the 2nd U.S. Circuit Court of Appeals.

Southern District Assistant U.S. Attorneys Andrew S. Dember and Michael D. Maimin, in a 155-page memorandum, say Stewart perjured herself several times, most notably when she said a "bubble" protected her as an attorney when she smuggled out of prison in June 2000 a statement by the sheik withdrawing his support for a cease-fire on violent attacks by Islamic Group.

"The evidence at trial irrefutably proved that Stewart knew that she was committing perjury by offering such testimony," the prosecutors argue in their memo. They say Stewart's sentence should be increased dramatically both because of her perjury and because of a terrorism enhancement in the federal sentencing guidelines that Koeltl technically applied, but did not enforce. The terrorism enhancement drives the guidelines figure up to the statutory maximum of 30 years in prison.

Defense lawyers Elizabeth M. Fink and Jill R. Shellow counter in their papers by calling Koeltl's initial sentence "reasonable and just." They argue that Stewart was being truthful when she claimed there was a "bubble" or exception to special administrative prison measures preventing the sheik from getting or sending messages, and that Stewart did not perjure herself when she denied having known, at the time of her offense, the leader of a violent faction within Islamic Group.

Fink and Shellow said Koeltl properly exercised his discretion when he found that, while the terrorism enhancement applied, the 30-year-prison term it triggered was "dramatically unreasonable" and "overstated the seriousness" of her conduct. "Moreover, this court's determination to grant a variance from the guideline sentence based in part on the unreasonable effect of the terrorism enhancement as applied to Stewart was reasonable and proper, and is an approach that has been approved by other courts," they said.

Stewart's sentence caused turmoil at the circuit, as a two-judge majority of Judges Robert D. Sack and Guido Calabresi held they could not determine whether the sentence was substantively reasonable because Koeltl had declined to make a finding on perjury. The court nonetheless ordered Stewart to begin serving her sentence immediately.

In dissent, Judge John M. Walker was angry at the majority for reversing on a narrow ground a prison term he called "breathtakingly low" considering Stewart's "extraordinarily severe criminal conduct." Walker said it was plain the court should have vacated the sentence as substantively unreasonable.

The panel issued an amended opinion on Dec. 20 with tougher language calling for Koeltl to revisit his treatment of the terrorism enhancement.

But that was not the end of it, as one circuit judge called for a rehearing en banc. The motion lost by a vote of 7-4, but some judges issued opinions that, like Walker, faulted Koeltl for taking into consideration that "no victim was harmed" when Stewart issued the press release. Judge Jose A. Cabranes issued an opinion accusing the two-judge majority panel of "punting" on the biggest issues in the case.

June 17, 2010 in Booker in district courts, Booker in the Circuits, Offense Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, June 09, 2010

Lawyer turned Ponzi schemer turned cooperator Rothstein gets federal prison term of 50 years

As detailed in this Reuters report, "South Florida Ponzi scheme mastermind Scott Rothstein was sentenced to 50 years in prison on Wednesday for an investment fraud that bilked clients out of more than $1 billion." Here's more:
The sentence was more than the 40 years federal prosecutors had recommended for Rothstein, a disbarred lawyer who pleaded guilty to racketeering and fraud conspiracy charges in January. He had faced up to 100 years in prison but his lawyer had asked U.S. District Judge James Cohn to give him no more than 30 years.

June 9, 2010 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

US Sentencing Commission publishes fascinating new survey of district judges' views on sentencing

Just posted on the website of the US Sentencing Commission is this new document titled "Results of Survey of United States District Judges: January 2010 through March 2010."  As the website explains, the "Sentencing Commission undertook to survey all United States district court judges concerning their views and opinions on a wide range of sentencing policy issues," and this publication presents the results of that survey.  Here are a few snippets from the report about the survey:

The Commission’s 2010 survey asked questions grouped into five broad areas: (1) statutory and structural sentencing issues; (2) sentencing hearings; (3) guideline application issues; (4) departures; and (5) general assessments. Judges were provided an opportunity to offer written comments in addition to or to expand upon their answers to the survey questions....

Abt [the survey administrator] reported to the Commission that, of the 942 judges to whom the survey was sent and who did not ask to be excluded from the survey, 639 responded to Abt.  This represents a 67.8 percent response rate to the survey.  The judges who responded to the survey presided over a significant portion of the cases in which federal offenders were sentenced during fiscal years 2008 and 2009.  During this two-year period, district court judges imposed original sentences on 146,511 individual federal criminal offenders.  Based on an analysis performed by Abt, the 639 judges who responded to the survey sentenced 116,183, or 79 percent, of these offenders.  Of the 50 judges who sentenced the most individual offenders during the two-year period from fiscal year 2008 to fiscal year 2009, the response rate was even higher.  Of the judges in this group, 43 responded to the survey. This represents an 86 percent response rate by these judges. Together, these 43 judges account for 31 percent of all offenders sentenced nationally during that period.

The results are reported in detailed charts which are hard to summarize but are worth careful study by all post-Booker sentencing participants.

June 9, 2010 in Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, June 01, 2010

New district court sentencing data now available from the USSC

The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Second Quarter FY10 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the second quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2010)

The new data continue to show remarkable stability in trends in the application of the advisory federal guideline sentencing system: these data show, yet again, prosecutors and judges moving just a little further away from the guidelines, with now 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in more than 26% of all cases.   (Figures A and B and Table 4 show these long-term trends most clearly.)

Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments.  Interestingly, these latest numbers continue to suggest that the new Obama judges and new Obama US Attorneys may be, very slowly but very surely, continuing to help the federal sentencing system drift away from the anchors established in the federal guidelines.

June 1, 2010 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, May 23, 2010

Statutory ranges, guidelines, sentencing advocacy and the power of priming

A notable new piece on legal advocacy by Kathryn Stanchi now available here on SSRN, "The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader," reminds me of what I consider to be a key failing by many in the defense bar in the aftermath of Booker. Before I turn to this failing, here is the abstract of this new priming article:

While legal advocates have long understood that first impressions can strongly influence the decision-maker’s view of their cases, so far legal scholars have not explored in any depth the growing body of research on the science of first impressions.  This article remedies that by looking at the scientific studies of a psychological phenomenon called “priming.”  These studies reveal the subtle and surprising ways in which first impressions can be shaped to the legal advocate’s advantage.

Priming is a phenomenon through which a person’s reaction to information is influenced by her exposure to prior material.  For example, priming studies show that if a person reads about golf, her first thought will tend to be “golfer” if someone later mentions Tiger Woods to her.  Her first thought is likely to be quite different if someone has previously spoken to her about marriage or adultery.  Because priming can change a person’s reaction to information by exposing her to different introductory material, it has significant implications for legal advocacy.

This article examines the major studies on priming, with the goal of showing how legal advocates can use the lessons of the studies to make more persuasive arguments.  The article also demonstrates how the psychological data on priming offers new and unique insights on how to use emotion in legal advocacy.  Throughout the article, concrete examples show how legal advocates can use the science of priming to make strategic decisions. In sum, the article represents a first, serious step in studying this powerful tool that has potential application to all facets of legal advocacy.

As the title of this post hints, I think a key failing of many in the defense bar since Booker has been the tendency to allow prosecutors to prime sentencing judges to focus on (now advisory) guideline ranges rather than to prime a focus on (still mandatory) statutory sentencing ranges.  Especially in cases in which there is no applicable mandatory minimum prison term set by statute, defense counsel could and should zero in on 3353(a)(3), which demands a focus on "the kinds of sentences available" and comes before 3353(a)(4) demands a focus on "the kinds of sentence and the sentencing range" set out in the guidelines.

May 23, 2010 in Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 20, 2010

"Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"

The title of this post is the title of an important new Comment by Thomas Gorman that now appears in the University of Chicago Law Review (and is available here via SSRN).  This Comment throughtfully engages with what I view to be one of the most interesting and dynamic (and consequential) post-Booker issues. Here is the abstract:

Early Disposition Programs -- commonly referred to as "fast-track" sentencing - allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant's prompt guilty plea and waiver of certain pre-trial and post-conviction rights.  Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the PROTECT Act, directed the Sentencing Commission to authorize them.  This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program. As a result, fast-track sentencing is presently approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where they are found and prosecuted.

Defendants in non-fast-track districts argue that this geographic disparity triggers 18 USC § 3553(a)(6), which states that sentencing courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.

The circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity prior to the Supreme Court’s decision in United States v Kimbrough.  In Kimbrough, the Court noted that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.”  Congress, if it wants to limit this discretion, must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing and a split has developed.  The First and Third Circuits now hold that "sentencing courts can consider items such as fast-track disparity" when deciding whether to grant a below-Guidelines sentence.  The Fifth, Ninth and Eleventh Circuits continue to hold that sentencing courts may not mitigate the fast-track disparity.

This Comment attempts to resolve the split by arguing that circuit courts have erred by focusing on the one-sentence authorization of fast-track in the PROTECT Act.  The statutory language is ambiguous, so it is not helpful in resolving the debate. Therefore, this Comment argues for an investigation of legislative intent.

An intent analysis requires a thorough examination of congressional efforts to reform sentencing, rather than a limited inquiry into the PROTECT Act’s one-sentence authorization of fast-track.  The purpose of the fast-track authorization is clearer when the statute is considered in the context of Congress’ long campaign to reform sentencing.  For the last 30 years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities.  These goals are also what drove Congress to authorize a limited form of fast-track sentencing.

This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’ goals than any alternative.  It is also more consistent with the Supreme Court’s recent rulings defending judicial discretion.

May 20, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, May 11, 2010

Major reasonableness ruling from Second Circuit in child porn downloading case

The Second Circuit handed down this morning a must-read panel opinion in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (available here), which a helpful reader described to me as "arguably the most significant one decided by any lower federal court since Booker."  I am not sure I think the the Dorvee ruling is quite that huge, in part because the "child porn downloading" context may limit its broader significance within and outside the Second Circuit.  Nevertheless, as these passages from the start and end of the opinion highlight, Dorvee is very important for lots and lots of reasons:

Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing....

District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.  While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee’s sentence stand.  We conclude that Dorvee’s sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand.

Once I have a chance to read the full Dorvee opinion closely, I will have a lot more to say about its likely import and impact.  For now, it is already interesting to speculate whether the Government might be moved to seek en banc or even cert review of this ruling.

May 11, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, May 09, 2010

"Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing"

The title of this post is the title of this important new article by Sarah Russell just published in the UC Davis Law Review.  The article analyzes recidivist enhancements based on prior drug convictions from a policy perspective, and also introduces an approach for challenging the application of these enhancements using the Supreme Court's decision in Shepard.  Here is the abstract:

Recidivist sentencing enhancements, which increase criminal sentences for defendants with prior convictions, are a prominent feature of the federal criminal justice system.  This Article considers the policy rationales supporting recidivist enhancements and reexamines them in light of two recent Supreme Court cases, United States v. Booker and Shepard v. United States.   Recidivist enhancements are traditionally justified based on rationales of retribution, deterrence, and incapacitation; proponents justify recidivist enhancements on the theory that people who reoffend are more culpable and more likely to recidivate. There is considerable doubt, however, regarding whether these rationales support the expansive federal enhancements currently tied to prior drug convictions. 

The Supreme Court’s decisions in Booker and Shepard, which provide judges with additional sentencing discretion, allow judges to reexamine these rationales in the cases before them. Booker rendered the sentencing guidelines advisory, and judges may now decline to apply guidelines enhancements on policy grounds.  Shepard limits the types of evidence that a judge may consider in determining whether a prior state conviction triggers a federal sentencing enhancement and allows judges to avoid applying statutory and guideline enhancements in many cases.  Innovative Shepard litigation in the District of Connecticut has recently led to a marked reduction in the number of enhancements based on drug convictions applied by judges in the District.  Judges nationwide can apply this Shepard analysis.  Although rigorous application of Shepard increases sentencing discretion and may lead to more just and effective sentences in individual cases, Shepard can also create sentencing disparities for similarly situated defendants.  Under Shepard, the application of an enhancement may depend solely on factors such as the availability of court transcripts or whether the defendant’s state conviction precisely matches the language of a federal enhancement.  Given the potential for unwarranted disparities — and the serious doubts as to whether the enhancements further any of the purposes of sentencing — Congress and the U.S. Sentencing Commission should reduce the magnitude of enhancements based on prior drug convictions or even eliminate them altogether.

May 9, 2010 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 03, 2010

Can, should and will district judges start giving effect to proposed amended guidelines ASAP?

This article from the Wall Street Journal, which is headlined "New Factors to Help Judges Determine Leniency," effectively the proposed new federal guideline amendments released on Friday by the US Sentencing Commission (basics here):

New rules will make it easier for federal judges to consider criminal defendants' military service, age, and mental and emotional conditions in determining more lenient prison sentences, a federal agency announced on Friday.

Defense lawyers and some judges cheered the move by the U.S. Sentencing Commission, which develops advisory guidelines that most federal judges use to calculate sentences. The commission had been considering updating the rules.

As a result of the changes, which takes effect on Nov. 1, some defendants could receive a reduction of several months or several years, said Mauro Wolfe, a former federal prosecutor who is now a defense attorney in New York.  "Judges will start paying more attention to this around the country," said John Kane, a federal judge in Denver. Mr. Kane recently gave a sentence of probation, rather than prison, to an Iraq war veteran. Previously the sentencing commission said factors such as age and military service "are not ordinarily relevant in determining" whether a lower sentence is warranted....

The new rules potentially reduce the prison sentence for some defendants with recent criminal history. Separately, they allow judges to send certain nonviolent drug offenders to treatment programs rather than prison.

There has been a judicial movement toward more-lenient sentencing for certain types of defendants in recent years. For example, a growing number of federal judges have given breaks to individuals convicted of viewing child pornography but who aren't themselves molesters, according to recent data.

As more military veterans return from Iraq and Afghanistan and have developed behavioral problems, some judges started taking their military service into account when deciding on prison time.

Some federal judges also give credit for charitable giving and other good deeds. However, the commission on Friday didn't budge on its stance that judges generally shouldn't take into consideration such acts.

As spotlighted by the question in the title to this post, these proposed guideline amendments set up one of the most interesting and intricate formal legal questions of the post Bookerera --- namely whether district judges can and/or should and/or will start giving effect to the substance of these new guidelines during sentencings over ne next six months while the proposed amendments are subject to congressional review. 

Formally, as the WSJ piece notes, the proposed amended guidelines do not become legally effective until November 1, 2010, and Congress has authority during this period to pass legislation to reject the Sentencing Commission's proposed changes.  But it seem very unlikely that Congress will reject these changes, and district courts right now have an on-going obligation to sentence in accord with the provisions of 3553(a).  And, given that the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court should probably feel free, and maybe even should feel and obligation, to sentence in accord with this new proposed guidelines ASAP.

I heard reports back when the USSC lowered the crack guidelines that a lot of sentencings were simply put on hold during this six-month interregnum when newly issued guidelines are formally still just proposed amendments.  But these new proposed amendments, especially the provisions concerning the consideration of age and mental/emotional conditions, could implicate almost every pending sentencing.  (For example, in the high-profile Rubashkin case (basics here and here), both the defendant's age and mental/emotional condition were stressed by the defense as a reason for a more lenient sentence.) 

Consequently, unless district courts are prepared to postpone all sentencings not controlled by mandatory minimum sentencing terms, judges will have to confront in some manner the question of whether and how to give effect to these new proposed guidelines in pending cases.  And, with luck, some of these judges will author thoughtful written opinions to perhaps get a real common-law dialogue started concerning precisely how best to give effect to military service, age, and mental and emotional conditions at sentencing.

Related posts on the new proposed sentencing guidelines :

May 3, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, April 29, 2010

"The Stability of Case Processing and Sentencing Post-Booker"

The title of this post is the title of this notable empirical paper that I just noticed via SSRN.  The piece is  authored by Jeffery Todd Ulmer and Michael Thomas Light, and here is the abstract:

In January of 2005, the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The uncertainty regarding how Booker may change sentencing practices has been a major discussion among legal scholars.  The wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. This is one of the first empirical studies to examine if and how Booker has changed federal sentencing.

We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan.  Using survey data taken from judges, lawyers, and probation officers in federal courts, we examine how practices in courts may have changed post-Booker.  We then examine several of the central questions surrounding whether Booker has increased disparity using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the post-Booker/Fanfan period (2006-2007).  The results from the survey data show that while some sentencing practices have changed slightly, Booker has not dramatically altered them.  And from the USSC data we find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and interdistrict variation in the effects of extralegal factors on sentencing have not increased post-Booker.  Thus, allowing judges greater freedom to exercise discretion does not necessarily result in increased extralegal disparity.

April 29, 2010 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, April 23, 2010

"Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape"

The title of this post is the headline of this new article by Mary Pat Gallagher in the New Jersey Law Journal. Here is how it gets started:

Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.  Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker. The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.

Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit.  The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.

Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit. When judges opt not to stay within the guidelines, they are far more likely to go below them.  Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.

April 23, 2010 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, April 20, 2010

Cameron Douglas sentenced to five years for federal drug offense

This New York Daily News report and this New York Times piece provide some noteworthy details from today's celebrity federal sentencing in NYC. From the Daily News:

Cameron Douglas -- son of Michael Douglas and grandson of Kirk Douglas -- is going to prison for more than four years despite the pleas of his famous family.

As he sentenced the Hollywood scion, Federal Judge Richard Berman said Tuesday that too many of the letters he received treated him like a victim. "Get over that idea," he said.

Still, he knocked a big chunk off the 10 years the admitted junkie could have faced for conspiring to distribute crystal meth and cocaine. He gave the 31-year-old 60 months in prison, with credit for the eight months he's already served....

From the Times:

Cameron Douglas, the 31-year-old son of the actor Michael Douglas, was sentenced to five years in prison on drug-related charges in Federal District Court in Manhattan on Tuesday.

In January, Mr. Douglas, a D.J. and an aspiring actor, pleaded guilty to charges that he distributed large quantities of methamphetamines and cocaine over a three-year period. He also pleaded guilty to possession of heroin, a charge that was brought while he was on house arrest and awaiting trial.

Judge Richard M. Berman also sentenced Mr. Douglas to five years of supervised release; the judge said that he was not obligated to follow federal sentencing guidelines, which normally would call for a 10-year sentence for such charges.  Federal prosecutors did not challenge the sentence.

Also, anyone interested in getting a sense of the media circus surrounding this celebrity sentencing, TMZ has video of Cameron Douglas's parents leaving the federal courthouse building where their son was sentenced.

April 20, 2010 in Booker in district courts, Celebrity sentencings, Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

Thursday, April 15, 2010

Way below-guideline sentence for "drug dealer in a lab coat" prompts lots of questions

This Los Angeles Times article reporting on a federal sentence handed down yesterday in California, which is headlined "4-year prison term ordered for 'drug-dealing doctor'," implicates nearly every challenging post-Booker federal sentencing issue that has been confounding federal judges and practioners for the last 5+ years.  Here are the fascinating details:

A Duarte physician who prosecutors said was "nothing more than a drug dealer in a lab coat" was sentenced to four years in federal prison Wednesday for prescribing powerful and highly addictive pain killers to people who had no medical need for the drugs.

The sentence was far less than the 17 years prosecutors had been seeking for Dr. Daniel J. Healy, and well below federal sentencing guidelines that called for a term of 17 to 22 years. Monrovia Police Det. Rich Doney, who worked the case with investigators from the Drug Enforcement Administration, called the sentence "a mockery of justice." "Some of his victims will spend longer than that in rehab," Doney said.

Healy, clad in a green jail-issue jacket and shackled at the waist and ankles, showed no emotion as the sentence was announced. Before imposing the sentence, U.S. District Judge Manuel L. Real said he struggled with balancing the seriousness of Healy's criminal conduct with his lack of a prior criminal record and the legitimate aspects of his medical practice. "He's not the ordinary, everyday drug merchant which we see in this court," Real said.

Real seemed conflicted as he gave a long, at times meandering address about the defendant. At one point Real said, "The evidence shows that Dr. Healy was concerned about the addictions of his patients." Moments later, he said, "Dr. Healy was in this for the money. There's no question about that."

Regardless of Healy's motivation, Real noted that as a result of his conviction, Healy's career as a doctor -- and the financial benefits that came with it -- was over. "Dr. Healy will never be able to do what he's done again when he's released from prison," Real said.

Defense attorney Roger J. Rosen said Healy was thankful for Real's "measured, thoughtful" sentence that took into account all aspects of the case. "He did what a judge was supposed to do," Rosen said.

Healy, according to prosecutors, led the nation in 2008 in ordering hydrocodone -- painkillers sold under the brand names Vicodin and Norco. They accused Healy of wildly overprescribing and selling the drug, for which there is a thriving black market, particularly among young adults. Some of Healy's patients were in their late teens and early 20s and had been friends of Healy's sons. Some patients, court documents state, would leave with hundreds or even thousands of pills at a time.

One man who was observed by police entering Healy's clinic before it opened for the day was pulled over a short time later and had 12 commercial-size bottles of Vicodin and three containers of Xanax in his car -- 7,500 pills in all. The man told police he'd just paid Healy more than $5,000 cash for the drugs, and was planning to sell them for profit, according to court records.

Healy pleaded guilty in July to intentionally distributing oxycodone without a legitimate medical purpose. The remaining 16 counts against him were dropped in exchange for the plea. In addition to imposing the four-year prison term, Real sentenced Healy to 10 years supervised release, 5,000 hours of community service and a $150,000 fine. "The end result is that this particular drug-dealing doctor is off the streets," said Assistant U.S. Atty. David Herzog, who prosecuted the case.

Here are just a few follow-up questions of both theory and practice on which I would love reader input via the comments:

1.  Do folks who believe strongly in retributivist theories of punishment agree that this sentence makes "a mockery of justice"?

2.  Do folks who believe strongly in utilitarian theories of punishment agree that this sentence makes "a mockery of justice"?

3.  Do folks think prosecutors should (and/or will) appeal this sentence as substantively unreasonable?

4.  Do folks think the addition of 5,000(!) hours of community service (which is roughly 2.5 years of indentured servitude) makes the relatively short prison term more reasonable or should that part of the sentence be viewed as insignificant in a post-Booker reasonableness analysis?

April 15, 2010 in Booker in district courts, Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (12) | TrackBack

Friday, April 02, 2010

Another court exressly embraces 1-to-1 sentencing ratio for all crack sentencings

While Congress is in the midst of considering how to adjust the mandatory minimum statutory sentencing terms for crack offenses (background here and here), another federal district judge earlier this week formally explained in US v. Greer, No. 6:09-CR (E.D. Tex. Mar. 30, 2010) (available here), that he "will use a 1-to-1 ratio for this and all future crack cocaine cases, and mitigating and aggravating factors under 18 U.S.C. § 3553(a) affecting sentencing will be separately considered on a case-by-case basis."

I learned of this Greer ruling thanks to this posting via the Dallas Morning News, which also reported on additional federal judges who have adopted this approach in other parts of Texas:

While Congress works on legislation to correct the historic inequity in federal crack cocaine sentencing -- a person convicted of crack cocaine possession gets the same mandatory jail time as someone with 100 times the same quantity of powder cocaine -- federal judges have begun to mete out their own fairer sentences.

Locally, U.S. District Judge Ed Kinkeade in Dallas and U.S. District Judge Terry Means in Fort Worth have sentenced crack defendants on a 1 to 1 ratio, said Richard Anderson, head of the federal public defender's office for the Northern District of Texas. U.S. District Judge Barbara Lynn has "reached the equivalent result through use of a variance, but I don't believe she stated the ratio on the record," he said.

This past Tuesday, on March 30, U.S. District Judge Leonard Davis in Tyler became the first judge in the neighboring Eastern District of Texas to issue such a sentence, according to an alert sent out by Kenneth Hawk, with the federal defender's office in Tyler.

Some related posts:

April 2, 2010 in Booker in district courts, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, March 21, 2010

Latest new federal sentencing statistics from the US Sentencing Commission

The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:

First Quarter FY10 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2010.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 17, 2009)

The new data continue to show a very slow and steady migration away from guideline ranges: these data show that now barely 55% of all federal sentences are within the calculated guidelines range; prosecutors, who now requested departures in over 26% of all cases, continue to increase be the primary driving force behind below-range sentences.  

March 21, 2010 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Friday, March 12, 2010

Fifth Circuit flags, but dodges, circuit split over advisory guidelines and ex post facto issues

Though decided last month, the Fifth Circuit just revised and re-released an interesting little decision, US v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010) (available here), which discusses one of my "favorite" unresolved post-Booker sentencing issues. Here is the heart of the ruling:

In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.”  Rodarte-Vasquez, 488 F.3d at 325.  The Seventh Circuit adopted this view of the guidelines post-Booker in United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), holding that the Ex Post Facto Clause does not apply to sentencing guidelines amendments because it applies “only to laws and regulations that bind rather than advise.” Id. at 794.  See also United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) (“When the Guidelines were mandatory, defendants faced the very real prospect of enhanced sentences caused by changes in the Guidelines . . . that occurred after they had committed their crimes. Now that the Guidelines are advisory, the Guidelines calculation provides no such guarantee of an increased sentence . . . . As such, the Ex Post Facto Clause itself is not implicated.”). But cf. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008) (rejecting the Seventh Circuit’s reasoning in Demaree); United States v. Larabee, 436 F.3d 890, 894 (8th Cir. 2006) (stating post-Booker that “‘retrospective application of the Guidelines implicates the ex post facto clause’”).

We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker.  Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton.  To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).... Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain.

I continue to be surprised no only by the fact that the ex post facto issue remains unresolved five years after the Bookerdecision, but also by the fact that it seems to be so rarely litigated or even addressed.  My sense is that most districts and circuit continue to operate as if ex post facto issues still limit the application of revised guidelines, though I have always been instinctually drawn to the reasoning of Rodarte-Vasquez, Demaree, and Barton.

March 12, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Important and worrisome new multivariate analysis from USSC of post-Booker sentencing patterns

I am pleased to see that the US Sentencing Commission has released this potent and important new sentencing data analysis, which is titled "Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Analysis."  I am not pleased (though also not especially surprised) about what that analysis reveals about some post-Booker sentencing trends.  Specifically, according to this new USSC report:

This report focused on three separate time periods which together spanned the time between May 1, 2003, and September 30, 2009.  The Commission found a correlation between the length of sentences imposed on some groups of offenders and the demographic characteristics of those offenders.  These differences were not present in all time periods under study and differed in magnitude in the time periods in which they were observed....

Based on this analysis, and after controlling for a variety of factors relevant to sentencing, the following observations can be made: 

  • Black male offenders received longer sentences than white male offenders. The differences in sentence length have increased steadily since Booker

  • Female offenders of all races received shorter sentences than male offenders. The differences in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin). 

  • Non-citizen offenders received longer sentences than offenders who were U.S. citizens. The differences in sentence length have increased steadily since Booker. 

  • Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied. 

  • The data were inconsistent as to the association between an offender’s age and the length of sentence imposed.

Any serious student of the history of prosecutorial and judicial sentencing discretion knows that with any increase in discretion power will come some increase in disparate outcomes and the risk that disparities are influenced by non-legal factors that we might wish would not (but always does) influence how imperfect humans exercise their discretion.  These realities always demand careful assessment and sober reflection, but they also always demand a careful reaction and sober consideration of what remedies are possible and what remedies might prove worse than the disease.

Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges.  I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders. 

March 12, 2010 in Booker and Fanfan Commentary, Booker in district courts, Race, Class, and Gender, Who Sentences? | Permalink | Comments (18) | TrackBack

Thursday, March 11, 2010

Latest federal sentencing data show continuing slow migration away from guidelines

The US Sentencing Commission has some fresh new sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Final FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting the final cumulative fiscal year quarterly data on cases sentenced in fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.  (Published March 11, 2010)

The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system, with a continuing slow migration away from the guidelines due to slight increases in prosecutor-initiated and judge-initiated non-guideline sentences.  Specifically, these data show that for FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases, and with judges ordering an above-guideline sentencing in 2% of all cases and initiation a below-guideline sentence in nearly 16% of all cases.  

Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments.  Interestingly, these latest numbers continue the trend of a very slow, but not seemingly steady, migration away from guideline ranges.  But, in general terms, these data still show only gradual evolutions, not any obvious revolutions, in federal sentencing practices and outcomes at the district court level

March 11, 2010 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 25, 2010

Effective ABA Journal review of Booker at five

Mark Hansen has this effective new piece, headlined "You Say You Want a Revolution: In Booker plus five, there’s been rumbling but hardly rebelling," about federal sentencing life since Booker.  Here is how it begins:

Jan. 12 marked the fifth anniversary of U.S. v. Booker, the U.S. Supreme Court decision that some said would revolutionize federal sentencing. The case transformed federal sentencing guidelines from what had long been a mandatory system into an effectively advisory one.

Defense lawyers cheered. District court judges viewed it as sort of an Emancipation Proclamation from the tyranny of the mandatory guidelines. Prosecutors, on the other hand, feared the decision would lead to wildly inconsistent sentences. And some lawmakers worried that it would plunge the courts into “pre-guidelines chaos.”

Five years out, however, Booker has become anything but revolutionary.  So far it’s resembled a midfield scrum with either side trying to figure out which way the ball is bouncing.

February 25, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 24, 2010

Off to Miami for National Institute on White Collar Crime

N10wcc1 As detailed here on the ABA's website, today starts the 2010 White Collar Crime National Institute.  I have the great fortune and pleasure to be escaping a predicted snowstorm in NYC to head this afternoon to Miami Beach to participate on a terrific sentencing panel taking place Thursday morning.

Everyone can access at this link the full program for this big event, which details that the feature speaker is Lanny Breuer, the DOJ Assistant Attorney General.  In addition, the promotional materials indicate that "keynote panels will focus on the most significant fraud trials of the past year, as well as an in-depth review of recent developments regarding the Brady Rule."  Here is how my panel is titled and described:

SENTENCING IN WHITE COLLAR CRIMINAL CASES AND WITNESS/VICTIM RIGHTS: Panelists will address several topics related to sentencing in white collar criminal cases, including reasonableness, loss causation and calculation, the rights of victims, and approaching any appeal.

February 24, 2010 in Booker and Fanfan Commentary, Booker in district courts, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Thursday, February 18, 2010

"Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"

The title of this post is the title of this terrific symposium about federal sentencing law in which I am participating today.  Though sponsored by the University of Utah, I am actually about to head to DC to participate in the event from inside the Beltway, along with some of the other of these impressive participants:

Here is how the promotional materials describe the event:

This symposium will explore issues surrounding judicial discretion and sentencing.  After opening remarks from Judge William K. Sessions III, Chair of the U.S. Sentencing Commission, panelists will explore the extent to which the sentencing guidelines continue to provide useful guidance to judges five years after the Supreme Court’s decision in United States v. Booker.  The panelists will also explore mandatory minimum sentencing schemes and ask whether they usefully impose tough punishment or inappropriately restrict the ability of judges to make the punishment fit the crime.  The symposium will conclude with a general discussion of sentencing issues and provide an opportunity to audience members to ask questions of the participants.

Excitingly, folks can watch this event live online (as well as comment below) thanks to the magic of the internet and a link at dashboard.law.utah.edu.

February 18, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, February 03, 2010

Notable student note on preserving sentencing objections after Booker

Anyone who struggles to make sense of sound sentencing procedures after Booker will want to check out this new student note in the Vanderbilt Law Review, which is titled "'Objection: Your Honor Is Being Unreasonable!' — Law and Policy Opposing the Federal Sentencing Order Objection Requirement."  Here is a section of the Note's introduction:

This Note argues that the requirement to object to a judge’s sentencing order should be abolished for two fundamental reasons.  First, the policy arguments against the requirement are stronger: requiring objections (1) promotes frivolous redundancy, (2) creates a procedural pitfall which could result in unfairly higher sentences, (3) works against judicial economy by leading to collateral claims of ineffective assistance of counsel, and (4) is ultimately unnecessary because prevailing parties already have incentive to perfect the record themselves.  Second, and more importantly, the sentencing order objection requirement contradicts Federal Criminal Rules of Procedure 51(a) and (b), the provisions governing the preservation of claimed error.

February 3, 2010 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, January 26, 2010

Judge Weinstein attacks Wall Street while sentencing with aid from a judicial sentencing panel

A new sentencing story out of the Eastern District of New York, which is described in this New York Law Journal piece headlined "In Securities Dealer's Sentencing, Judge Blasts 'Corrupt' Wall Street Culture," includes a gut of exciting themes for a law geek like me. Here are excerpts:

In sentencing former Credit Suisse securities dealer Eric Butler to five years in prison, Eastern District of New York Judge Jack B. Weinstein has condemned "the pernicious and pervasive culture of corruption" on Wall Street.

"The blame for this condition is shared not only by individual defendants like Butler, but also by the institutions that employ them, those who carelessly invest, and those who fail to regulate," Weinstein wrote in the Statement of Reasons for the sentencing he issued on Friday in United States v. Butler, 08-cr-370.

"Supervision is seriously negligent; greed and short-term gain are so enormous that fraud and arrogant disregard of others' rights and of ethics almost encourage criminal activities such as defendant's," he said. In addition to the five-year sentence and three years of supervised release, Weinstein fined Butler $5 million, about $1 million more than Butler's estimated assets.

United States v. Butlermarked perhaps the first major criminal action stemming directly from the subprime crisis. Following a three-week trial, Butler was convicted in August of securities fraud, conspiracy to commit securities fraud and conspiracy to commit wire fraud for his role in a scheme to trick investors into purchasing high-risk and high-commission subprime securities....

Judge Weinstein dedicated a significant portion of Friday's eight-page statement [which is available here] to excoriating the culture of Wall Street....

The sentencing was also notable for Weinstein's use of an advisory panel of fellow Eastern District judges, an increasingly common practice in Brooklyn federal court since 2005 when the U.S. Supreme Court determined in United States v. Booker, 543 U.S. 220, that sentencing guidelines should be treated as advisory rather than mandatory.  Although Weinstein declined to name the judges he consulted, the panel did include the Eastern District's chief judge, Raymond Dearie.

Dearie said in an interview Monday that he expects the use of advisory panels to become "fairly standard" in the Eastern District in the near future for difficult cases, such as those with broad or long guidelines, and as the imperatives of the pre-Booker guidelines recede.

In the present case, Weinstein wrote that he convened the advisory panel because "of the severe impact of defendant's frauds on the international short- and long-term securities markets, and other complexities presented by this sentencing." In addition to the unspecified number of judges, the panel included "an expert on sentencing guidelines from the court's Probation Department," Weinstein wrote.

In pre-sentencing arguments, the prosecution contended that Butler faced a statutory maximum of 45 years and a guidelines recommendation of up to life in prison. The advisory panel recommended six to 10 years.  Butler requested probation. Weinstein settled on a five-year sentence.

"I have imposed a lesser sentence [along] with loss of all defendant's assets and a heavy fine, for two primary reasons," he wrote. "[F]irst, defendant's young child and loving wife suggest the desirability of defendant's early presence at home, working and supporting his family economically and psychologically; second, a strong supportive network of extended family, friends, teachers, and potential employers, as well as defendant's positive reaction to supervision since his arrest, indicate a high probability of rehabilitation."

Dearie said he knew of no other district court that regularly uses advisory panels, but that when he testified before the U.S. Sentencing Commission last year, the Massachusetts District Court seemed "very" interested in the concept.

Though the Wall Street smack-down is what makes the headlines here, I think true sentencing geeks like me are likely to get more excited and intrigued by the idea that the use of advisory sentencing panels may become "fairly standard" in the Eastern District in the near future for difficult cases.  And, in the near future, I hope there will be full transparency about who is on these panels and how they make their recommendations.

January 26, 2010 in Booker in district courts, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Wednesday, November 18, 2009

District judge imposes sentence after defendant ordered to take (and fails) lie-detector test

I just came across what strikes me as a very unusual federal sentencing story from the district court of Minnesota. I have bolded below the part of this local press article, which is headlined "Drug sales net prison term, and a lecture from federal judge," that really grabbed my attention:

U.S. District Judge James Rosenbaum was angry.  The target of his wrath, standing before him Tuesday, was Mark Andrew Goetz, 41, of Minneapolis, who had pleaded guilty to selling drugs to an undercover informant.

But it wasn't a run-of-the-mill dope case.  Goetz ran a business registered by the government to destroy outdated or unwanted pharmaceuticals.  But instead of destroying some of the drugs, he sold them on the street.

Goetz was in the middle of sentencing Nov. 5 when Rosenbaum asked him if he'd only sold drugs illegally twice, as the government had alleged in its indictment.  Goetz assured him those were the only times, but the judge didn't believe him, halted the proceedings and ordered Goetz to take a lie-detector test.

As it turned out, Goetz had lied and that visibly rankled Rosenbaum when the man was finally sentenced Tuesday in federal court in Minneapolis.  "Why are you lying to me?" the judge asked, referring to the earlier hearing.  Goetz replied that he'd been scared and thought he had to admit only to the two drug sales prosecutors had charged him with.  "You're playing games," Rosenbaum thundered. "You're a convicted criminal. It's a little late for that."

Goetz told him there were three other instances of illegal drug sales and that was it.  "I give you my word," he said. "How good is that?" the judge shot back.  "It was worthless the other day.  All I know for sure is you're a liar."

The judge sentenced Goetz to four years in prison, with supervised release for three years after that....

On July 28, Goetz agreed to a plea bargain.  In return for pleading guilty to distributing alprazolam and oxycodone, the government would drop the indictment's other count.

At sentencing, DeGree asked Rosenbaum for a "significant variance" from federal sentencing guidelines, which called for a sentence ranging from 57 to 71 months.  He noted that Goetz had started his own business "and ran (it) ethically for 16 years" and had lived an "exemplary" life until "some financial pressures" prompted him to sell drugs he had been entrusted to destroy....

Assistant U.S. Attorney Steve Schleicher opposed leniency, saying Goetz's money troubles boiled down to the fact that he "bought a house he couldn't afford."

I have never before heard of a judge stopping a sentencing hearing mid-stream and then ordering the defendant to take a lie-detector test!  I suppose it is also noteworthy that the district judge here, even after being "angry" at the defendant for his lies during the sentencing proceedings still imposed a below-guideline sentence.

November 18, 2009 in Booker in district courts, Procedure and Proof at Sentencing | Permalink | Comments (28) | TrackBack