Wednesday, October 12, 2011
Early reactions to the (too) quick House hearing on post-Booker sentencing
Less than two hours after it started, today's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," has come to a close. As detailed in prior posts linked below, a lot happened in the 100 minutes of this hearing, though I seriously doubt that much is going to happen legislatively as a result of what just transpired. Without too much reflection, here are a few quick reactions:
1. There is clearly lots of bad blood among members of this subcommittee as reflected in a shouting match that broke out between Rep. Jackson Lee and Rep. Sensenbrenner
2. Other than a precious few members, it is not obvious that many even on this subcommittee care too much about this subject. Only about one-quearter of the 20 members of the subcommittee appeared to be in attendance and only a precious few asked questions suggesting they even understood how modern federal sentencing works.
3. The absence of a Justice Department representative was both telling and disappointing, especially because it is very hard to predict how federal prosecutors would view proposals to abolish the US Sentencing Commission or to have a Blakely-compliant mandatory guideline system.
4. The USSC's apparent recommendations to Congress to give reasonableness review more bite via statutory reform is very sound and very important and very constitutionally challenging, all of which in turn leads me to predict/fear that it is very unlikely to happen anytime soon.
5. A lot of worrisome "smaller" federal sentencing issues that could benefit most from congressional oversight and legislative reform — the application of the Armed Career Criminal Act, child porn victim restitution awards, fast-track departures, the persistent growth of the federal criminal docket — did not even get mentioned.
6. We desparately still need refined and consistent nomenclature to describe different potential kinds of federal guideline systems other than just advisory, presumptive and mandatory. I especially urge readers to help me come up with a labels other than "presumptive" to describe the kind of revised advisory guideline systems — advisory with bite? advisory with great weight? — to describe what the USSC now seems to be advocating Congress to enact.
I could go on and on and on, but I have now said more than enough and need to get off the grid for awhile just to make sure my head does not explode as I have flash-backs from some of the worst moments of this morning's House hearing.
Some recent related posts about the House hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
Webcast of House hearing on federal sentencing after Booker available
As reported in this prior post, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is conducting a hearing to examine the post-Booker federal sentencing system. The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and a webcast can be accessed via this calender entry [Update: Written testimony from the witnesses are now linked here]. I will do a little live-blogging as I follow along.
10:04: Rep. James Sensenbrenner (R-WI) has begun the hearing and is reading a prepared statement in which he complains at great length about sentencing disparities and says that Booker, in his view, "destroyed the guidelines." He is also complaining that the US Sentencing Commission has not proposed a "Booker fix" in the last six years, and also complaining about the USSC making its new lower crack guidelines retroactive, and also complaining about the USSC's operating budget going up.
10:06: Rep. Bobby Scott (D-VA) has begun his opening statement and says that Booker was the fix, not something that needs fixing. He also is noting that the number of judicial variances from the guidelines went down in the last quarter of FY11 and that prosecutors sponsor and/or do not object to the vast majority of non-guideline sentences.
10:10: Rep. John Conyers (D-MI) says a few things off the cuff that do little more than make Rick Perry seem eloquent by comparison.
10:20: USSC Chair Judge Patti Saris (very detailed written testimony here) begins witness testimony by stressing how Supreme Court Booker caselaw has impacted federal sentencing. She says the guidelines exert a "demonstrable gravitation pull" on sentencing, but also says that USSC recognizes "weaknesses" in the advisory guideline system. Chair Saris says USSC recommends these legislative changes by Congress:
- Congress should make reasonableness review tougher, especially for non-guideline sentences
- Congress should clarify statutory directives that are in tension
- Congress should clarify and codify that guidelines should be given substantial weight
Saris also indicates that three reports are forthcoming from the USSC: one on mandatory minimums, one on child porn sentencing, and one based on the testimony offered today about the post-Booker system.
10:26: Matthew Miner, White & Case partner (written testimony here), begins his testimony by stressing disparities between sentencing outcomes in Southern and Northern districts of New York. He urges a "presumptively applicable" guideline system and recognizes that this system needs to comply with Apprendi/Blakely rights and says that it should not be too hard for juries to make special sentencing-related findings. Paraphrasing: "If we can trust juries to make findings in death penalty cases, we can trust them to find aggravating factors for guideline sentencing." As a first step, making reasonableness review tougher would be a modest reform that would "go a long way" to reducing disparity.
10:31: William Otis, Georgetown Professor Law (written testimony here), begins his testimony by stressing importance of being a nation of laws, but says sentencing is now not a system of law but "a lottery." He notes that downward departures, which "favor the criminal," are 20 times more common than upward departures. He complains that the USSC has "compounded the problem" of Booker by encouraging departures based on offender characteristics, and that it has embraced a system that is "random and watered-down."
10:36: James Felman, Kynes, Markman & Felman partner (written testimony here), begins his testimony by saying advisory sentencing system "best achieves" the goals of Sentencing Reform Act. He stresses that sentences have not gone down since Booker in fraud and child porn cases, but rather have gone up greatly since Booker. Says Mr. Otis is "incorrect" that the recent trend show continued movement away from guidelines, and he also notes that departures and variances from guidelines are modest.
I will cover follow-up Q & A in a separate post...
Sunday, October 09, 2011
New AP article perpetuates notion (myth?) that federal sentencing is still about luck of the draw
This new AP article, which provides a partial preview of an upcoming high-profile white-collar federal sentencing, has a headline and a theme that suggests that luck of the judicial draw matters more than anything else in modern federals sentencing. The piece is headlined "Sentencing is a wildcard in busy NYC courthouse," and here are excerpts:
The prison term awaiting a one-time billionaire hedge fund founder convicted of insider trading charges is unpredictable at best in a Manhattan courthouse where judges vary considerably in their assessment of how justice should be dispersed at sentencing.
Raj Rajaratnam, 54, is scheduled to be sentenced Thursday for his conviction at trial earlier this year. If federal prosecutors have their way, he'll get between 19½ and 24½ years in prison for what they say were more than $72 million in profits for himself and his Galleon Group of hedge funds. If defense lawyers are persuasive, he'll face between 6½ and 9 years for what they say was about $7 million in illegal profits.
Regardless of the outcome, his fate may have been decided when Judge Richard J. Holwell was selected to hear the case after the Sri Lanka-born Rajaratnam's October 2009 arrest.
"Welcome to the Southern District of New York," said Rita Glavin, a former federal prosecutor who leads the white-collar crime unit at the Manhattan law firm of Vinson & Elkins. "The judge you are assigned to is critical," Glavin said. "Having been on the prosecution side, there were certain judges from a government perspective you loved being in front of whether for trial, sentencing or evidentiary issues. Now that I've moved to the defense side, it's not necessarily the same judges."...
The tone and result in sentencings have varied widely for those charged in the case against Rajaratnam and two dozen co-defendants, all of whom have been convicted, most as a result of guilty pleas. Most of the sentencings have resulted in prison terms ranging from a few months to a few years. Besides the sentencing guidelines, judges are supposed to take into account various other factors, including the defendant's personal history and the need to deter others from committing similar crimes.
The longest sentence handed down — 10 years — came from a stern Judge Richard Sullivan, who last month dispensed some finger-wagging words toward Zvi Goffer immediately after telling him that he viewed Goffer's sentencing as "a tragic day," not a day "for lecturing or finger wagging or table pounding."
He told Goffer that he had a gambler's mentality after his arrest. "You decided to double down and gamble on a trial," Sullivan said, adding that Goffer acknowledged his crimes post-trial. "Had you made that acknowledgement before trial, you might have shaved almost three years off your guideline's sentence," he said as he gave him a sentence near the lower end of the guideline's range.... He added: "I am not saying you are going to be punished for going to trial, but there are consequences that flow from that. You don't get the benefit of people who accept responsibility."
A few hours later, Winifred Jiau, 43, of Fremont, Calif., was sentenced to four years in prison after her conviction in an insider-trading probe that focused on Wall Street consultants who matched up public company employees willing to divulge secrets about earnings and mergers with hedge fund managers. The investigation was a spinoff of the Rajaratnam-Galleon probe.
Jiau received half the prison term recommended by sentencing guidelines from Judge Jed Rakoff, who had a different view of the effects of going to trial. "I know judges vary. It will never be the policy of this court to make a huge difference in sentence between those who exercised their right to go to trial and those who plead guilty, because at that point I think it becomes no longer a recognition of the credit that should justly be given for acceptance of responsibility, it becomes a veiled price of going to trial," he said. "There should be no price on going to trial."...
Annemarie McAvoy, a Fordham Law professor, said she learned as a young federal prosecutor in Brooklyn from 1989 to 1992 that the judge assigned to each case "makes a huge difference."
"There were clearly judges who were more favorable to the government. They did longer sentences. They didn't make it as easy for defendants," she said. "And there were other judges always trying to do as much as they can for defendants and always trying to give them the lowest sentence they could. That was luck of the draw."
Friday, October 07, 2011
House Judiciary subcommittee to hold hearing on post-Booker realities next week
As detailed in this calender entry, next Wednesday morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system. The hearing has been given this telling title: "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."
Not yet listed are the scheduled witnesses for this hearing, but I assume that someone from the US Sentencing Commission (the Chair?) will be testifying. Usually these kinds of hearings include an invitation to some representative from the US Department of Justice, though that is less certain, especially given that the House Republicans get to run this show and they may want to spend much of their time beating up on DOJ.
Whomever ends up testifying, I am extremely pleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC. On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.
Though I doubt many members of the House Subcommittee share my perspectives on all federal sentencing issues issues, their eagerness to try to figure out what is really going on in the modern federal sentencing system merits praise and gets me excited. I eager to see what comes of this hearing, and will post more about it as more information becomes available.
Tuesday, September 27, 2011
Sensible sentencing alternatives for high-profile defendant involved low-level fraud
I want to praise the district judge involved in this notable federal sentencing story, headlined "Former UCA president avoids prison time for fraud," for saving taxpayer money on wasteful prison costs. Here are the details:
Former University of Central Arkansas president Lu Hardin said Monday that he was hooked on the slots the first time he played them more than a decade ago, and that his gambling compulsion and mounting debts led him to lie to school trustees to tap into bonus money he had been promised.
U.S. District Judge James Moody sentenced the one-time rising political star to five years of probation and 1,000 hours of community service, but no prison time. Hardin, 60, pleaded guilty earlier this year to falsifying a document that persuaded trustees to give him early access to a $300,000 bonus so he could pay off gambling debts.
Moody said he was convinced Hardin was "genuinely remorseful and humiliated" by his own actions. Federal sentencing guidelines suggested a sentence of nine to 12 months in prison, but Moody was not bound by that recommendation.
A major factor in Hardin's reduced sentence was his cooperation on a separate federal investigation. Hardin has spoken to the FBI and agreed to testify if the investigation, which a prosecutor would not detail, leads to any charges. An FBI spokesman also declined to comment.
After a career as an Arkansas state senator and the state's higher education director, Hardin became president of the Conway university in 2002. During a six-year tenure, he oversaw dramatic growth in the university's enrollment, endowment and prestige. Trustees approved the $300,000 bonus in full public view....
Only his wife knew about the thousands of dollars of gambling debts he racked up, Hardin said. To pay them off, he made what he called a "horrendous mistake" by forging letters to persuade trustees that he could draw early on the bonus, which was supposed to have been paid to him over five years, according to federal court documents....
Hardin's attorney, Chuck Banks, said his client is a "model person" who paid back the almost $200,000 he collected from the scheme on his own. He argued that Hardin's history of public service and his past medical problems, including a melanoma that left him blind in his right eye, merited leniency.
Moody sided with Banks. Although Hardin's actions were criminal, he had a history of good behavior and he didn't believe Hardin would commit another crime, Moody said. As part of his community service, Hardin will be required to continue attending Gamblers Anonymous meetings and to teach classes about fraud.
Hardin was president of UCA for six years before he resigned in 2008 after the scandal broke. He received a much-criticized $670,000 contract buyout, and became president of Palm Beach Atlantic University in June 2009, but resigned from that job a week before pleading guilty in March.... After pleading guilty, he surrendered his law license and lost his right to vote.
This is a great example of a low-level white-collar offense in which the direct and collateral consequences of the federal prosecution and conviction are themselves likely sufficient punishment in light of the nature of the crime and history of the offender. I often believe a very big fine and lots of community service would be both adequate and effective punishment for low-level white-collar frauds, and I wonder if any readers have any problems with a non-prison, below-guidelines sentence in a case like this.
Monday, September 26, 2011
New call for a (long overdue?) legislative and USSC fix to Booker
Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal. The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action." Here are excerpts:
The U.S. Sentencing Commission is confronting a challenge to its own existence. Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission. Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.
For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines. At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court." But more than a half-decade later, neither Congress nor the commission has acted.
The time for action is now, and the commission has the opportunity to urge changes to restore order to our system. Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....
Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time. Even more troubling, racial disparities in federal sentencing are on the rise. According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."
Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws. Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....
The appetite for reform appears to have returned. Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury. And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."
Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker. The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start. More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines. Additionally, the commission should demand reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.
In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute. In essence, courts will be left to legislate from the bench.
I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system. I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo. But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:
- Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
- Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
- Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).
For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.
Saturday, September 17, 2011
Record-long 50-year prison sentence for Medicare fraud imposed in Florida
As detailed in this Miami Herald article, late yesterday a "federal judge socked a convicted Miami healthcare executive with a 50-year prison sentence, the longest term ever imposed on a Medicare fraud offender." Here are the notable details:
New York transplant Lawrence Duran once ran a multimillion-dollar mental health company in Miami, lobbied Congress for his industry and tooled around town in a Maserati. His next stop: federal prison — likely for the rest of his life.
On Friday, a federal judge slammed Duran, 49, with a 50-year prison sentence for orchestrating a staggering $205 million scam at his Miami-based chain of mental health clinics. The sentence may end up being the longest prison term ever imposed on someone convicted of Medicare fraud.
Duran’s lawyer, Lawrence Metsch, had urged the judge to be realistic and give him a sentence between 20 and 25 years, arguing that 50 years means a “death sentence because he would die in prison.” But the judge, after a three-day sentencing hearing, sided with the government’s push for the extraordinarily high sentence, saying there is a “critical need for deterrence against healthcare fraud” in South Florida, the nation’s capital of Medicare corruption.
Previously, the highest Medicare fraud sentence was 30 years — given in 2008 to a Miami physician, Ana Alvarez-Jacinto, convicted in an HIV-therapy scheme.
After the sentencing, Duran shook his lawyer’s hand and then smiled to tearful relatives, as he shuffled in shackles out of the courtroom escorted by U.S. marshals. His ex-wife, Carmen Duran, and his only sibling, Kenia Duran Ramirez, said the judge’s sentence was not a “fair assessment” of the former executive’s life, saying his work for the mentally ill was “not all bad.”
This year, Duran and his girlfriend, Marinella Valera, co-owners of American Therapeutic Corp., pleaded guilty to a variety of conspiracy, fraud and money-laundering charges after they failed to reach plea deals with the Justice Department.
Duran, in custody since his arrest last October, was probably his own worst enemy during the sentencing hearing. Although he showed remorse for running American Therapeutic as a criminal enterprise for eight years, he also admitted he tried to steal as much money as he could from the taxpayer-funded Medicare program.
His company collected $87 million in Medicare payments after submitting $205 million in bogus bills, which he generated by paying kickbacks to recruiters to supply patients suffering from dementia, Alzheimer’s and addictions. He admitted they could not have benefited from his company’s purported group therapy sessions. Justice Department attorney Jennifer Saulino called Duran a “cold, calculating man” who exploited both vulnerable patients and the government’s healthcare program for the elderly and disabled....
Duran’s girlfriend, Valera, 40, a therapist, is scheduled to be sentenced Monday. Prosecutors plan to urge the judge to give her a 40-year prison sentence. A total of 34 people, including American Therapeutic employees, doctors, therapists, nurses and recruiters, have been charged in the massive fraud case, which is being investigated by the FBI and Health and Human Services-Office of Inspector General.
September 17, 2011 in Booker in district courts, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
Monday, September 12, 2011
Lawyers spar in briefing before Rajaratnam's sentencing for insider trading
This New York Times piece, headlined "Rajaratnam Lawyers Call Sentence Request ‘Grotesquely Severe’," reports on the last round of briefing before the scheduled sentencing of convicted trader Raj Rajaratnam. Here are some details:
Federal prosecutors and lawyers for Raj Rajaratnam filed their second round of sentencing briefs on Friday, setting the stage for later this month when a federal judge will announce the former hedge fund manager’s prison term.
Mr. Rajaratnam is set to appear before Judge Richard J. Holwell in Federal District Court in Manhattan on Sept. 27. The government has requested a term of 19 and a half to 24 and a half years. “Rajaratnam is arguably the most egregious offender of the insider trading laws prosecuted to date,” federal prosecutors said in their court filing.
Defense lawyers said the government is overreaching by requesting a “grotesquely severe” sentence. “The government asks the court to ignore Raj Rajaratnam the human being and to sentence a caricature instead,” Mr. Rajaratnam’s lawyers said. “This court’s role is not to validate a prosecutorial public relations effort, nor is it to single out one man to serve as the whipping boy for Wall Street misdeeds.”
In May, a jury convicted Mr. Rajaratnam, the co-founder of the Galleon Group hedge fund. He was found guilty of generating illegal gains of $64 million by trading on confidential information about publicly traded companies including Intel and Goldman Sachs.
Mr. Rajaratnam’s lawyers at Akin Gump Strauss Hauer & Feld made several arguments in asking Judge Holwell for leniency. They said that the illegal trades in question accounted for only 1 percent of his trading activity. They argue that the sentence is disproportionate to the sentences imposed in other insider trading cases, and greater than the average sentence for violent crimes, including kidnapping and sexual abuse. They also insist that the government’s requested sentence “would guarantee Mr. Rajaratnam’s death in prison” because of the 54-year-old’s medical issues.
The government urged Judge Holwell to reject the arguments presented by Mr. Rajaratnam’s lawyers. On the issue of the Mr. Rajaratnam’s health, the government challenged the defense to disclose exactly what medical issues would justify a lenient sentence.
I found the defense reply sentencing memo, which runs more than 50 pages, available at this link. I cannot yet find a link to the Government's filing.
A Fifth Circuit reminder that not all federal defendants like the guidelines being merely advisory
One (of many) under-discussed aspects of the post-Booker system is that, in percentage terms, the number of above-guideline sentences have gone up more than the number of below-guideline sentences since the guidelines became adviosry. Roughly speaking, though the number of below-guideline sentences have increased about 50% post-Booker, the number of above-guideline sentences have increased nearly 100% post-Booker.
Though the absolute number of above-guideline sentences remain relatively small, the decision late last week from the Fifth Circuit in US v. Pizzolato, No. 10-30729 (5th Cir. Sept. 9, 2011) (available here), provides a useful reminder that not all federal defendants benefit from the guidelines now being merely advisory. Here is how the Pizzolato opinion starts:
Defendant-Appellant Matthew B. Pizzolato pleaded guilty to multiple crimes related to his conduct in running a fraudulent “Ponzi” scheme. The plea agreement recommended an applicable sentencing range of 151 to 188 months under the Federal Sentencing Guidelines (the “Guidelines”). The district court disregarded the plea agreement’s recommendation and imposed the statutory maximum sentence of 360 months. Appellant argues that the Government breached the plea agreement by providing the district court with facts and arguments supporting a longer sentence than the parties agreed upon. We find no merit to defendant’s arguments and affirm.
September 12, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
Wednesday, September 07, 2011
Newest federal sentencing data run from US Sentencing Commission now available
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY11 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 third quarter of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 6, 2011)
The new data largely show the continued trend of a very slow migration away from guideline ranges, with federal prosecutors, not federal judges, continuing to be the primary driving force behind below-range sentences. Indeed, the latest quarter of data reveal a record high percent of government-sponsored below-guideline sentences (27.7%), coupled with a relatively low percentage of judge-initiated below-guideline sentences (16.9%) .
The changes in the latest quarter of data could merely reflect changes in types of cases sentenced: e.g., the processing of relatively more immigration and non-crack drug cases will likely always drive up the relative percentage of government-sponsored below-guideline sentences because fast-track and cooperation departures are much more common that judge-initiated variance in those types of cases. Nevertheless, there is still an notable patter reflected in all of the last three quarters of data: government-sponsored below-guideline sentences increased roughly 10% over this period, while judge-initiated below-guideline sentences have decreased roughly 10% over this same period.
Tuesday, August 30, 2011
Barry Bonds' federal sentencing now set for December
As detailed in this MLB.com report, a "sentencing date of Dec. 16 has been set for Barry Bonds, whose conviction for obstruction of justice was upheld in federal court last week." Here is more background:
A seven-time Most Valuable Player who set the single-season and career home run records during his 22-year career, Bonds was convicted of obstruction but the jury could not come to a consensus on any of three counts of making false declarations. The charges were based on Bonds' 2003 testimony before the Bay Area Laboratory Co-Operative (BALCO) grand jury, in which he denied knowingly using performance-enhancing drugs.
According to the indictment against Bonds, the maximum penalty for the obstruction charge is "10 years maximum imprisonment, $250,000 fine, three years supervised release, $100 special assessment fee." But federal sentencing guidelines reportedly suggest 15-21 months, and previous BALCO sentences suggest Bonds could be given house arrest.
Illston, who has presided over the cases brought by the BALCO investigation, previously sentenced cyclist Tammy Thomas to six months of home confinement and track coach Trevor Graham to one year of home confinement. Thomas was convicted of three counts of making false statements and one count of obstructing justice but was acquitted of two perjury charges. Graham was convicted of one count of giving false statements, and the jury deadlocked on two other charges.
Illston ruled Friday that the record showed Bonds "endeavored to obstruct the grand jury" when he rambled and talked about friendship, fishing and being a "celebrity child" when asked whether trainer Greg Anderson ever had injected him with anything. The defense still could appeal the conviction.
The government has yet to announce whether it will retry any of the charges that wound up in a hung jury. While two wound up in favor of acquittal, according to jurors, Count Two -- also relating to whether Bonds received injections from Anderson -- was 11-1 in favor of conviction.
I am going to mark the December 16 date on my calendar in pencil; these high-profile sentencings have a tendency to get postponed for various reasons. But I am already looking forward to seeing how the parties seek to apply 3553(a) to Bonds in their sentencing submissions.
Related recent Bonds posts:
- Is Barry Bonds going to have to worry soon about federal sentencing realities?
- Is it clear that Barry Bonds would have a 15-21 months guideline range?
- Barry Bonds convicted of obstruction, jury deadlocked on perjury counts
- Barry Bonds convictions upheld by district judge... next stop sentencing(?)
Thursday, August 11, 2011
"Kids for Cash" judge gets 28-year (way-above-guideline?) federal prison term
As detailed in this local Pennsylvania article, which is headlined "Luzerne ex-judge gets 28-year sentence," a judge at the center of a juve sentencing scandal will now likely spend the rest of his life in prison. Here are the basics:
A disgraced Luzerne County judge was sentenced to 28 years in federal prison Thursday for his conviction on charges of taking hundreds of thousands of dollars in payments in connection with the operation of the counties' juvenile center. The ex-judge, Mark A. Ciavarella, Jr., 61, was given the harsh sentence after he told the judge that he apologized for unethical behavior but had never taken "cash for kids."
He was found guilty in February of twelve counts of racketeering, conspiracy, fraud and filing false tax returns. The jury acquitted him on 27 other counts of bribery and extortion, as he pointed out to the judge before he was sentenced.
Ciavarella, for years the head of juvenile court in the county, was charged with the former president judge there in a 2.8 million dollar scheme to enrich themselves through their control of juvenile justice in Luzerne County.
The other ex-judge, Michael T. Conahan, 59, pleaded guilty and is awaiting sentencing, as are other key conspirators in the plot, including the builder and an owner of a for-profit juvenile detention center that was at the heart of the corruption....
Juvenile justice advocates, in criticism later affirmed by the State Supreme Court, said Ciavarella ran a kangaroo court for teens and children, shipping them to the facility with no regard for fairness. Prosecutor Gordon Zubrod told the sentencing judge, Edwin Kosik, that Ciavarella had sold kids wholesale and deserved to be sentenced "for the rest of his natural life."
Based on prior reports about the calculated guideline range in this imposed prison term appears to be way above the applicable guideline range. It wll be interesting to see if an appeal of the sentencing to the Third Circuit is on the horizon.
Tuesday, July 19, 2011
Seeking information on large number “other government-sponsored departures” in federal child pornography cases
Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced. An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post. Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.
As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1. But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.
But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure. (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.) Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).
Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure. I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.
These data and realities prompt a range of follow-up questions. I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases. I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others. I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures. I wonder if this trend will continue and expand to other kinds of cases.
I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand. I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.
July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Thursday, July 14, 2011
Fascinating (and Posnerian classic) opinion on diminished capacity, child porn, and sentencing theory
Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011) (available here). Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to exceprt. So, here is just the very start of the opinion along with just one of many interesting passages (with cites removed) to whet everyone's appetite for the whole opinion:
The defendant pleaded guilty to federal crimes of transporting, receiving, and possessing child pornography and was sentenced to 360 months in prison. The guidelines sentencing range was 360 months to life; the statutory minimum sentence was 180 months; he was 44 years old when sentenced. His appeal challenges his sentence on several grounds, of which the one most emphasized by defense counsel is that the district court improperly failed to consider her argument that the defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower sentence....
Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure. The diminution makes a defendant more likely to repeat his crime when he is released from prison. That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire. Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist. One of the defendant’s experts opined that the defendant’s ability to resist could be strengthened substantially with medication and therapy. But both defense experts believed, and defense counsel argued, that he wouldn’t get proper treatment in prison. That is very damaging to the argument that he won’t recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.
From a “just deserts” standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one. The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.
How to choose? The sentencing guidelines do not embody a coherent penal philosophy. “The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.” Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?,” 27 Am. Crim. L. Rev. 367, 371 (1989). In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so — why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism — is not explained. In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.
July 14, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack
Notable recent resentencing opinion on career offenders and Kimbrough discretion
I recently received a copy of a notable resentencing opinion from US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame. The opinion in US v. Vazquez, No. 6:04-cr-212-Orl-31 (M.D. Fla. June 28, 2011) (available for download below), covers a number of modern federal sentencing issues and reviews a remarkable procedural history for a single low-level drug defendant.
Specifically, way back in 2005 just six months after the Booker ruling, Judge Presnell originally imposed a sentence of just over nine years in prison after refusing to essentially double the defendant's sentence, as the guidelines' career-offender provisions urged, based on two old convictions. On the government's appeal, this sentence was vacated, with the Eleventh Circuit holding that policy-based criticism of the career-offender guidelines was not permitted. Judge Presnell then imposed a substantially higher sentence (15 years in prison), a sentence which was upheld by the Eleventh Circuit. But upon further appeal, the Solicitor General switched positions and argued that the Eleventh Circuit had misinterpreted Kimbrough, and the case was ultimately returned to Judge Presnell for another resentencing.
In this latest opinion, Judge Presnell explains all this history and accounts for the current state of the law within the Eleventh Circuit. He then reimposes the original sentence, less another 20 months for post-sentencing rehabilitation under Pepper. Notably, the opinion reports that "the parties agreed that a 20-month reduction would be appropriate to account for the Defendant’s post-sentencing rehabilitation." Slip op. at 10 (emphasis added).
There is now such great irony represented by this (finally!) final Vazquez sentence: by virtue of federal prosecutors fighting the original 110-month sentence so effectively from the outset, along with SCOTUS rulings along the way, the defendant here was able ultimately to secure an extra 20 months off his original below-guideline sentence, and federal prosecutors now apparently agree that a sentence even below that originally imposed is now just and proper. And, assuming the defendant gets his 15% good-time credits for time already served, it would seem he is due to be released from prison not long after his sentence was finally resolved.
Wednesday, July 13, 2011
"Blaine hacker who terrorized neighbors gets 18 years in federal prison"
The title of this post is the headline of this interesting local article from Minnesota reporting on an interesting federal sentencing proceeding for an (interesting?) cyber-criminal who ultimately received an above-guideline sentence. Here are the details:
Federal prison sentences aren't computed this way, but the 18 years Blaine hacker Barry Ardolf was sentenced to Tuesday works out to one year for every 39.3 days of hell he put his victims through.
Matt Kostolnik told a judge that the 707 days his family spent living next to Ardolf were days of dread and fear. Ardolf had waged a cybercampaign of terror against them, all because they called the cops after the man planted what they called a "wet kiss" on their young son's lips. "I felt like me and my family were under attack. I went numb that day," Kostolnik told U.S. District Judge Donovan Frank of the day of the kissing incident, which occurred the day after they moved into a house on a cul-de-sac next to Ardolf. ...
Ardolf, 46, then a technician at Medtronic, was a "certified ethical hacker," according to the bumper stickler above his bed, who used his skills to hack into the Kostolnik's wireless router. He then opened email accounts in Kostolnik's name to send lewd and threatening messages to several people in the Kostolniks' lives. Some emails threatened the vice president and other elected officials, while other messages, to Kostolnik's co-workers and bosses at the downtown Minneapolis law firm where he worked as a lawyer, included child pornography....
The sentence was less than the 24-year, five-month term that Assistant U.S. Attorney Timothy Rank had asked for. The seasoned prosecutor, who has stared down murderers, told Frank that Ardolf's capacity for "ruthless cruelty" ranked him among the most dangerous people he'd ever prosecuted.
Defense lawyer Kevin O'Brien had argued that while Ardolf's conduct was bad, the man himself wasn't. A sentence of no more than 6-1/2 years was appropriate, he argued. O'Brien is Ardolf's court-appointed "stand-by" counsel; the defendant fired his second attorney this year and declared that he wanted to represent himself....
Ardolf was charged in June 2010, agreed to a plea deal, rejected it, was indicted on more charges, went to trial and then halted the trial after a couple of days to plead guilty. Then, on the eve of his sentencing in March, he told Frank he wanted to withdraw his guilty plea and get a "do-over" trial. The judge rejected his arguments, setting the stage for Tuesday's proceedings....
Dressed in orange jail antimicrobial clothing and sometimes wearing two pairs of glasses simultaneously, Ardolf, a widower, began his comments by apologizing to the Kostolniks, his own three children and his family, some of whom were in the courtroom. But he spent most of his time talking about himself, a trait that had prompted Rank to complain at a hearing in May that Ardolf was a narcissist unable to show true remorse or feeling for his victims....
He reeled off a list of recent prison sentences he'd read about in the paper -- including the 10-year sentence meted out to former auto mogul Denny Hecker this year -- and said that relatively speaking, his crime wasn't as bad as those of some people sent to prison for terms less than what he was facing. "I didn't kill anyone," he said.
Even O'Brien stretched to explain Ardolf's behavior, saying that when he first met him, he found him to be "too arrogant, not willing to listen. The question now is, What is a reasonable sentence for such unreasonable acts?" O'Brien asked. He acknowledged that Ardolf has "done some bizarre, hurtful acts."
Ardolf had pleaded guilty to unauthorized access to a protected computer, two counts of aggravated identity theft, possession and transmission of child pornography and making threats to the vice president. Frank said he'd gotten a handful of letters on Ardolf's behalf; a common theme: the man didn't seem the same after his wife died suddenly two days before her 38th birthday....
Frank noted that when Ardolf's points were computed, the guidelines called for a maximum of 15 years and eight months. But the judge said a harsher punishment -- 216 months, or 18 years -- was called for. "Anything any less than that would not serve the purposes of justice," he told Ardolf, who stood before the judge, hands clasped in front of him.
Friday, July 08, 2011
Interesting substantive reasonableness ruling from Eighth Circuit
In an interesting sentencing ruling today in US v. Shakal, No. 10-3019 (8th Cir. July 8, 2011) (available here), reveals yet again how hard it is to get a within-guideline sentence reversed as substantively unreasonable if and when a district judge provides a thoughtful explanation for his sentencing decision. Here are a few key paragraphs from the ruling:
Yahya Muhumed Shakal pleaded guilty to four counts of aiding and abetting the preparation of false federal income-tax returns. At sentencing, Shakal argued that his experiences in Somalia during the violent Somali civil war entitled him to a sentence well below the advisory Guidelines range. The district court denied Shakal's request, and sentenced him to a Guidelines sentence of 72 months' imprisonment. Shakal now appeals, urging that the district court's sentence is substantively unreasonable. We affirm....
The record clearly shows that the district court considered Shakal's violent experiences during the Somali Civil War, including witnessing the murder of his father and the rapes of his sisters. Indeed, the district court agreed with Shakal's counsel that Shakal and his family had "been through hell," and conceded that "[t]he real issue is going to be . . . how should that affect his sentence this morning."
Also, the district court considered but rejected Shakal's sentencing-disparity argument. Specifically, Shakal maintained, as he does now, that a "Mr. Mohamed" initially taught Shakal how to fraudulently request the fuel tax credit on tax returns, and that Mohamed received only 18 to 24 months at sentencing (from a different judge). The district court responded to this argument by first acknowledging that it had read through Mohamed's entire file the night before Shakal's sentencing, but ultimately concluded that Mohamed's case differed greatly from Shakal's in that Mohammed's tax scheme cost the United States Government only $44,000, far less than Shakal's $2 million haul....
[In addition, as the sentencing transcript shows,] the district court not only considered Shakal's personal history and circumstances in fashioning a sentence but reduced the sentence it would have otherwise assessed Shakal in light thereof. Therefore, the district court did not abuse its discretion in sentencing Shakal to 72 months' imprisonment.
Friday, May 13, 2011
If "most egregious and horrific" kiddie porn offender gets 15 years, what should mere downloaders get?
The question in the title of this post is inspired by this local article concerning a federal sentencing in Pittsburgh yesterday, which is headlined "Tough sentence ends 'Stephen's Group' child pornography case." Here are the basics:
The eighth and final person found guilty of participating in an international child pornography ring wept and apologized in federal court in Pittsburgh yesterday. "It was outrageous, my conduct, and I deeply regret having done it," said Dave Dean, 43, of Texas and Arizona. "It's clear I have a serious problem."
Dean's regret didn't keep him from receiving one of the tougher punishments handed out to the eight members of "Stephen's Group": 15 years in prison and a lifetime of [supervised release]. U.S. District Judge Arthur Schwab said Dean's case was the "most egregious and horrific" of the child pornography cases heard in his court. "The court is not willing to risk the chance that the defendant will re-offend," he said in handing out the sentence.
Dean and the others were part of a cabal led by Stephen Sims, 57, of San Leandro, Calif. Sims was the self-professed "den mother" who vetted people wanting to join the Internet group and had them send him images and videos of child pornography to prove they weren't police officers. The group used social networking sites to exchange images and videos.
John Morton, director of U.S. Immigration and Customs Enforcement, which is involved because many images came from overseas, said after Dean's sentencing that the group traded images of children as young as infants being raped and tortured. "There is little in this world that is more depraved than this," he said.
I am not prepared to assert without more information about this case that the "depraved" defendant involved in the "most egregious and horrific" kiddie porn offense here was lucky to only get a 15-year prison term. But I know that there are lots of far less aggravated child porn downloading cases in which the federal sentencing guidelines call for prison terms much longer than 15 years, and thus this case provides yet another example of the challenges of developing and imposing consistent and proportional sentencing terms in these types of cases.
Thursday, May 12, 2011
What insider trading sentence for Raj Rajaratnam would avoid "unwarranted" disparity?
I had not been following closely the trial of Raj Rajaratnam, but the conviction of the founder of the Galleon Group on all counts of insider trading (basics reported here) now turns the case into a interesting federal sentencing story. And this new Reuters piece, headlined "Factbox: Prison sentences in insider trading cases," prompts the question in the title of this post. Here are the facts reported by Reuters:
The Galleon Group founder could face up to 25 years in prison when he is sentenced in July, although prosecutors said on Wednesday that [Raj Rajaratnam] could get 15-1/2 to 19-1/2 years in prison under federal sentencing guidelines. Following is a list of punishments meted out to defendants in other high-profile insider trading cases:
IVAN BOESKY -- Boesky, the famed Wall Street stock speculator of the 1980s, was sentenced to three years in prison in 1987 after pleading guilty to a criminal charge related to insider trading. Boesky, who faced a maximum penalty of five years, cooperated with prosecutors in their probe of trading firms that resulted in charges against more than a dozen people.
MARK KURLAND, ROBERT MOFFAT AND ALI HARIRI -- All three pleaded guilty in the sweeping Galleon probe. Kurland, a former senior managing director at New Castle Funds LLC, was sentenced in May 2010 to two years and three months in prison. Kurland admitted to trading on information he got from Danielle Chiesi, also a former New Castle employee who became a central figure in the Galleon investigation. Chiesi has pleaded guilty and is awaiting sentencing. Moffat, a former International Business Machines Corp executive, was sentenced to six months in prison for tipping Chiesi about an impending IBM deal with Advanced Micro Devices Inc. Hariri, a former executive at chipmaker Atheros Communications Inc. received an 18-month sentence in November for tipping a former Galleon employee.
SAM WAKSAL -- The founder of biotechnology company ImClone Systems Inc. was sentenced to seven years in prison after pleading guilty to insider trading in 2002. The scandal also ensnared Waksal's father as well as lifestyle entrepreneur Martha Stewart, who was convicted of lying to federal agents about her sale of ImClone stock. She served five months in prison.
JOSEPH NACCHIO -- Nacchio, the former CEO of Qwest Communications, was sentenced to six years in prison, later reduced by two months, after he was convicted in a 2007 trial of 19 counts of insider trading in selling $52 million in Qwest stock. A judge also ordered Nacchio to forfeit $44.6 million and pay a $19 million fine.
JOSEPH CONTORINIS -- Contorinis, a former hedge fund manager, received a 6-year sentence in December for his role in providing tips on impending mergers, such as the 2006 buyout of the supermarket chain Albertsons Inc.
HAFIZ NASEEM -- A judge sentenced Naseem, a former Credit Suisse Group investment banker, to 10 years in prison after he was found guilty in February 2008 of participating in a $7.5 million scheme to leak inside information about pending corporate deals.
RANDI AND CHRISTOPHER COLLOTTA -- Randi Collotta, a former Morgan Stanley lawyer, received a sentence of 60 days in prison on nights and weekends for passing along tips to her husband about impending merger deals. Her husband, Christopher, got a sentence of 6 months' home confinement.
So, based on this (incomplete) list, it appears that nobody has received more than a decade for insider trading and that sentences of six year or much less are more common for this crime. Does this entail that the sentencing judges in Raj Rajaratnam's case ought to feel a special statutory obligation to impose a below-guideline sentence based on Congress's instruction in 18 USC 3553(a)(6) to consider at sentencing "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"?
Sunday, May 01, 2011
Guest thoughts on the Ninth Circuit's recent significant child porn sentencing work
In the last few weeks, the Ninth Circuit has issued two significant federal child porn sentencing opinions in Apodaca (discussed here) and Henderson (discussed here). I invited Joshua Matz, who authored a Harvard Law Review comment on the Second Circuit's big Dorvee case (noted here) and who hosted me at an HLS event last month, to author a guest-post on these cases. Here is his effort:
Powerful Shots Across the Commission’s Bow on Child Porn Guidelines — This Time from the Ninth Circuit
It is no secret that the federal child porn sentencing guidelines have sustained withering criticism from the academy and district courts. Motivated in part by a surge in federal prosecutions, commentators have strongly encouraged the Sentencing Commission to revisit guidelines widely decried as unduly severe and unmoored from empirical evidence.
In two recent cases, the Ninth Circuit staked out an aggressive position amongst these critics — first raising the specter of aggressive review for substantive reasonableness in US v. Apodaca, and then holding in US v. Henderson that district courts are free to vary from § 2G2.2 based solely on policy disagreement with that guideline. These opinions likely will transform child porn sentencing practice in the Ninth Circuit and signals to the US Sentencing Commission that its failure to produce meaningful reform justifies unilateral judicial action.
The Ninth Circuit hardly stands alone. In US v Dorvee, an opinion issued last May, the Second Circuit overturned a within-Guidelines sentence under U.S.S.G. § 2G2.2 as substantively unreasonable. Its opinion sharply assailed the guideline’s empirical foundations and inability to achieve either parsimony or proportionality in sentencing. A few months later, in US v. Grober, the Third Circuit affirmed a district court child porn sentencing opinion that mounted a sustained assault on the relevant guidelines provisions by discussing thirteen days of expert testimony presented to the lower court.
In Apodaca, the Ninth Circuit reprised many of these themes while exploring a defendants’ claim that his within-Guidelines term of lifelong supervised release was substantively unreasonable. Focusing on the Guidelines’ failure to distinguish between contact and possession-only offenders — notwithstanding studies that strongly suggest different recidivism rates — Apodaca raised serious questions about the empirical support for a choice to treat these groups similarly. Invoking Kimbrough in a concurring opinion, Judge William Fletcher went farther and argued that the Commission did not act in its “characteristic institutional role” when it failed to translate § 3583(k) into sentences appropriate to § 3553(a)-relevant subtypes of child porn crimes. Because the Guidelines impose the same terms of supervised release on a broad range of offenders, he argued, they raise concerns about empirical support, similar treatment for dissimilar defendants, and focusing on particular characteristics of the offense and the offender.
The most surprising thing about Apodaca is that it affirmed the sentence below, turning aside at the last minute from its forceful criticism by finding that available evidence falls short of conclusive proof. Given that the court identified only a single study questioning strong empirical support for different recidivism rates — and that a co-author of that single study has disowned the suggestion that his work disturbs a scholarly consensus — the ApodacaCourt’s own reasoning could easily have justified reversal of the sentence below. Instead, the Court merely observed that additional evidence might provide “grounds to find that sentencing an individual like Apodaca to a lifetime term of supervised release is substantively unreasonable.”
This challenge, which defense counsel should treat as an invitation to press their empirical case in the district courts, suggests that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework. Indeed, the court’s use of substantive reasonableness review grounded in statutory principles of parsimony, proportionality, individualization, and empirical support mirrors Dorvee and participates in an important trend in appellate review of the Guidelines.
These same methods of reviewing a guideline should also play a significant role in post-Hendersonsentencing. By holding that § 2G2.2 does not reflect the Commission’s “characteristic institutional role” and permitting variance based purely on policy disagreement, the Ninth Circuit opened the door to searching district court review of § 2G2.2’s rationality as both an exercise in administrative rulemaking and a guide to reasonable sentences in particular cases. Judge Berzon actively encouraged such reflection and criticism in her concurring opinion, writing separately “to emphasize that unjust and sometimes bizarre results will follow if § 2G2.2 is applied by district courts without a special awareness of the Guidelines anomalous history.”
Now that district courts are required by Henderson to “appreciate” their Kimbrough discretion, and given the partial overlap between critiques of § 2G2.2 and § 5D1.2, trial counsel arguing the infirmity of child porn guidelines can simultaneously achieve two goals: (1) elaborating empirical and § 3553(a) grounds for future appellate findings of substantive unreasonableness and (2) providing district judges with concrete information relevant to a determination of whether their Kimbrough discretion ought to be exercised to vary from § 2G2.2 as a matter of policy.
These developments point to an explanation for why the Apodaca Court stayed its hand from an outright finding of substantive unreasonableness. In that case, Judge William Fletcher concurred and called upon the Commission and Congress to “address the undifferentiated treatment of the dissimilar groups of sex offenders covered by § 3583(k) and U.S.S.G. § 5D1.2(b)(2).” Just one week later, the Ninth Circuit essentially allowed each district judge to place § 2G2.2 under review. These opinions strongly signal to the Commission that its policy statements are lacking and that, if it wants its Guidelines to avoid rougher judicial treatment in the future, the Commission should embrace the opportunity for reform provided by an upcoming reassessment of its child porn guidelines. In the interim, courts wielding Kimbrough discretion and substantive reasonableness doctrine will refine their own careful assessment of the Commission’s efforts.