Friday, March 18, 2011

Latest chapter in notable federal acquitted conduct case from DC

As detailed in this local piece from the Washington Times, which is headlined "D.C. man gets 18 years for $600 drug deal," a notable federal criminal case involving acquitted conduct finally resulted in a sentencing outcome yesterday.  Here are some of the specifics:

More than three years ago, a federal jury acquitted Antwaun Ball on racketeering and conspiracy charges that he led a violent drug gang in the Congress Park neighborhood in Southeast Washington, convicting him solely of a $600, half-ounce drug deal.

But at Ball's long-delayed sentencing Thursday, U.S. District Judge Richard W. Roberts disagreed, saying he saw clear evidence of a drug conspiracy before sentencing Ball, 40, to more than 18 years in prison for his conviction of the 2001 hand-to-hand drug transaction. The judge's ruling in federal court in Washington shines a light on a little known practice called acquitted conduct sentencing that lets judges mete out tougher prison terms based on conduct jurors rejected.

Arguing Ball was the ringleader of a gang called the Congress Park Crew, prosecutors pointed to, among other things, testimony from cooperating witnesses in the federal drug case as well as guilty pleas by people who said they saw Ball dealing drugs and carrying guns.  Assistant U.S. Attorney Gilberto Guerrero Jr. argued that Ball caused "havoc" in Congress Park that "destroyed people's lives."

Meanwhile, Ball's defense attorney, John Carney, cited testimony of people who worked with Ball on various community projects in Congress Park, including a former U.S. Parole Board commissioner, Janie Jeffers, who called Ball "a catalyst" for improving the neighborhood.

Mostly, Mr. Carney pointed to the words of a juror in the case, Jim Caron, who died not long after writing a letter to the judge after the trial. "Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly," Mr. Caron wrote.  "This is one of the few times we know exactly what the jury was thinking," Mr. Carney argued. Prosecutors disagreed: "That's one person's perspective," said Mr. Guerrero.

Defense lawyers also argued in court memos that if the judge relies on acquitted conduct, Ball unfairly would get a prison term far longer than what he'd receive under the federal sentencing guidelines.  But prosecutors pointed out that those guidelines are advisory, not mandatory, and that selling five or more grams of crack cocaine by law carries a sentence anywhere from five to 40 years in prison.

Judge Roberts said the "stark duality" of Ball's persona was "confounding and tragic."  And he said while he respected the jury's verdict, he couldn't turn a blind eye to what he called "clear and convincing" evidence that Ball was part of a long-running conspiracy to deal crack cocaine in Congress Park.  The judge did not otherwise address Mr. Caron's letter, which was later cited by Gilbert S. Merritt Jr., senior judge on the 6th U.S. Circuit Court of Appeals, in an unrelated case in Kentucky involving acquitted conduct issues.

Judge Roberts said his reliance on acquitted conduct in determining a sentence for Ball was proper.  He also gave Ball credit for the time he's served since being locked up in April 2004, and he reduced his sentence by 15 months because of delays in carrying it out....  A co-defendant in the case, David Wilson, was sentenced to 45 years in prison last week.  He was convicted in two murders and on drug charges.

In a sentencing memo, prosecutors called for a 40-year sentence for Ball on the basis of, among other things, "ample evidence" that Ball was the leader of a criminal conspiracy. Other "acts of violence, witness intimidation and other obstructive acts," prosecutors argued, "show what a true danger Ball is."  The prosecutors also said they were asking for a tougher sentence for Ball not on the basis of acquitted conduct, but uncharged conduct — or actions the jurors were never asked to consider.

By contrast, defense attorneys called the jury verdict a "virtually total rejection" of the government's case against Ball.  Ball's sentence is likely to be appealed.

I am pleased to see that the acquitted conduct issue has been preserved by Ball's counsel and that he apparently has plans to appeal his client's sentence.  Though the DC Circuit has upheld the constitutionality of acquitted conduct sentencing since Blakely and Booker, at some point in some way some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct.  And such a ruling may be what is needed to convince the Supreme Court that this issue merits re-examination in light of Blakely and Booker.

Some older posts on the Ball case and acquitted conduct sentencing enhancements:

March 18, 2011 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, March 04, 2011

Is Pepper starting to add spice to federal sentencing proceedings?

The significant ruling by the Supreme Court this week in Pepper (basics here) has already impacted a on-going federal sentencing articles and projects of mine, and I am wondering if and how the Pepperruling is impacting on-going federal sentencing proceedings.  I suspect more than a few litigants with pending sentencing appeals are filing letters of supplemental authority based on Pepper, and perhaps some district courts have already referenced the ruling in sentencing decisions.  (Recall that there are, on average, more than 300 federal sentencings taking place every day in federal courts around the nation.)

I hope readers might use the comments to this post to report on any early impact from Pepper, and I also hope anyone who come across a sentencing opinion that has some Pepper added will send it my way.

Related posts on the Pepper ruling by the Supreme Court:

March 4, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 02, 2011

Will Pepper prompt many more federal sentencing judges to focus on post-offense rehabilitation?

The significant federal sentencing ruling by the Supreme Court today in Pepper (basics here) is only technically concerned with whether district judges are permitted to consider evidence of a defendant's post-sentencing rehabilitation at a re-sentencing following an appellate reversal of a defendant's original sentence.  But in the course of saying that district judges do have authority to consider this kind of evidence, Justice Sotomayor' opinion for the Court highlights reasons why any evidence of a defendant's rehabilitation is a critically important concern for an initial sentencing decision in which a district judge is seeking to comply with the statutory instructions of  18 U.S.C. §3553(a). 

Consider in this context these passages (with some cites omitted) from the Pepper opinion:

[E]vidence of postsentencing rehabilitation may be highly relevant to several of the §3553(a) factors that Congress has expressly instructed district courts to consider at sentencing.  For example, evidence of postsentencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” §3553(a)(1).  Such evidence may also be pertinent to “the need for thesentence imposed” to serve the general purposes of sentencing set forth in §3553(a)(2) — in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational train-ing . . . or other correctional treatment in the most effective manner.” §§3553(a)(2)(B)–(D).... Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty under §3553(a) to “impose a sentence sufficient, but not greater than necessary” to comply with the sentencing purposes set forth in §3553(a)(2)....

Pepper’s postsentencing conduct also sheds light on thelikelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence.  See §§3553(a)(2)(B)–(C); Gall, 552 U.S., at 59 (“Gall’s self-motivated rehabilitation ... lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts” (citing §§3553(a)(2)(B)–(C))).  As recognized by Pepper’s probation officer, Pepper’s steady employment, as well as his successful completion of a 500-hour drug treatment program and his drug-free condition, also suggest a diminished need for “educational or vocational training ... or other correctional treatment.” §3553(a)(2)(D).  Finally, Pepper’s exemplary postsentencing conduct may be taken as the most accurate indicator of “his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.”  Ashe, 302 U.S., at 55. Accordingly, evidence of Pepper’s postsentencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. §3553(a).

As the question in the title of this post is designed to highlight, one could readily replace the word "postsentencing" in these passages with the word "post-offense" without any loss of meaning.  All the substantive reasons why the Court says sentencing judges should be concerned with postsentencing rehabilitation apply with equal force — and maybe with even greater force — to post-offense rehabilitation.  (Indeed, the cite/quote from the Gall opinion in this context, a case concerning only post-offense rehabilitation, reinforces the point that a majority of Justices views these considerations comparably.)

Since Booker (and even before Booker), it has been common for federal defense attorneys to stress evidence of a defendant's post-offense rehabilitation before an initial sentencing.  And since Booker (and especially since Gall), some (many?) federal district judges have been inclined to give some (or even considerable) weight to such evidence.  But I have always sensed that some (many?)  federal district judges have been unwilling to give too much (or even any) weight to such evidence.  I am certain Pepper will prompt defense attorneys to be even more aggressive when presenting and making arguments based on post-offense rehabilitation.  But, as my post title suggests, I am less sure if Pepper will lead many more federal sentencing judges to focus on such evidence when discharging, as Pepper puts it, their "overarching duty to 'impose a sentence sufficient, but not greater than necessary' to serve the purposes of sentencing.  §3553(a)."

Related posts on the Pepper ruling by the Supreme Court:

March 2, 2011 in Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS rules in Pepper, again stressing sentencing discretion after Booker

The Supreme Court handed down its biggest federal sentencing case of the Term to date, ruling in the Peppercase about the consideration of post-sentencing rehabilitation at a federal resentencing proceeding.  The full opinion is available at this link, and here are the (no-so-simple) basics of the ruling in terms of how the Justices voted:

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which BREYER and ALITO, JJ., joined as to Part III.  BREYER, J., filed an opinion concurring in part and concurring in the judgment.  ALITO, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part.  THOMAS, J., filed a dissenting opinion.  KAGAN, J., took no part in the consideration or decision of the case.

Here is the key paragraph from the start of the opinion for the Court by Justice Sotomayor: 

We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.  Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.

The ultimate outcome here is not too surprising, but there seems to be a lot of "there there" in this opinion.  (For example, the first part of the opinion of the Court stresses the old 1949 Williams ruling and repeats over and over that federal judges even after modern sentencing reforms have broad discretion to consider all factors relating to the defendants.)  Blog posts will follow with some quick thoughts and perhaps some deeper thoughts in the hours and days ahead.

March 2, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 26, 2011

Notable comments about federal sentencing trends from Senator Charles Grassley

A helpful reader pointed out to me that US Senator Charles Grassley had these notable comments about federal sentencing law and practice at the end of this lengthy statement prepared for today's Senate Judiciary Committee hearing on fraud prosecutions:

Finally, Mr. Chairman, I'd like to note that regardless of the substantive laws we pass, the investigative and law enforcement resources appropriated, and the prosecutions brought so far, criminal fraud will not be adequately deterred unless we revisit the Supreme Court's decision in United States v. Booker.  In that case, the Supreme Court held that mandatory Sentencing Guidelines violated the Sixth Amendment.  Now that the Guidelines have been held to be merely advisory, the disparity and unfairness in judicially imposed sentences that we sought to eliminate on a bipartisan basis are returning, especially in two areas: child pornography and fraud cases of the type we are discussing today.  If potential fraudsters view the lenient sentences now being handed down as merely a cost of doing business, efforts to combat criminal fraud could be undermined.

Supporting this position is a Reuters analysis of 15 insider trading cases that were brought by the United States Attorney in New York in 2009 and 2010, which concluded that in 13 of them, or 87 percent, the sentences imposed were lighter than the terms prescribed by the Sentencing Guidelines, and seven, nearly half, contained no prison term.  By contrast, in other cases, New York federal judges issued sentences below those called for in the guidelines 57 percent of the time, in itself a shocking change from the system that the Sentencing Reform Act of 1984 created until the Supreme Court's Booker decision. Nationwide, 42 percent of all federal sentences were below the guidelines.  Federal judges often seem not to understand the seriousness of these crimes.  At one sentencing proceeding in an insider trading case, Judge Alvin Hellerstein said, "[T]here are no victims in this crime, at least not in any real sense."  Rather than imposing a sentence in keeping with the guidelines of 37 to 46 months, he noted that the defendant was an accomplished academic with an autistic son, and gave three years' probation.  Most of the defendants who received lenient sentences did not cooperate with the government.  As a result, defense lawyers are now arguing that to avoid disparity, their non-cooperating insider trading clients should also receive sentences below the guidelines.

January 26, 2011 in Booker in district courts, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, January 06, 2011

Two 2011 must-reads for sentencing fans from the Duke Law Journal

A little law review surfing proved fruitful this afternoon when I discovered that the January 2011 issue of the Duke Law Review is already available on-line and it includes these two must-reads for sentencing fans:

January 6, 2011 in Baze and Glossip lethal injection cases, Booker in district courts, Death Penalty Reforms, Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0) | TrackBack

Monday, December 20, 2010

New law review article on post-Booker disparity makes headlines in Boston

20judges_graphic1a__1292845527_0238 This morning's Boston Globe has this effective new article reporting on this important new academic research just published in the Stanford Law Review about post-Booker sentencing realities in the District of Massachusetts.  The Globe article is headlined "Disparity cited in sentence lengths; Analyst studying Hub’s US judges alleges bias risk," and it does a nice job summarizing the basic findings of Professor Ryan Scott's just published article titled "Inter-Judge Sentencing Disparity After Booker: A First Look."  Here are excerpts from the Globe coverage:

Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.

Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week.  The two toughest impose average sentences double that.

The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear.  "It offends our notions of equality and consistency and the rule of law that an offender’s sentence should depend on which judge happens to be assigned to the case," Scott, who analyzed 2,262 sentences imposed by 10 judges in Boston, said in an interview.

Scott uses the letters A through J to identify the judges when comparing sentencing patterns, and declined to identify them by name.  But he describes four judges who have increasingly set sentences at below guideline ranges as "free at last judges."  He calls two whose sentencing patterns have remained largely unchanged "business as usual judges."

The "free at last judges" sentence defendants below the guideline range three or four times as often as they did before the Supreme Court ruling — as much as 53 percent of the time, he wrote.  The "business as usual judges" sentence below the guidelines at essentially the same rate they did before the ruling — as little as 16 percent of the time.

Thus, the effect of a judge on sentence length has increased in importance, Scott said. But it still pales in comparison with other factors, he said, including the crime for which a defendant was convicted, the offender’s criminal history, and what the advisory sentencing guidelines recommend.

Two of the US district court judges whom Scott studied, Nancy Gertner and William G. Young, said they welcomed his analysis, a draft of which has been circulating in legal circles for several months.  But both judges, whom Scott thanks in the 68-page article for cooperating, said he gives short shrift to the importance of tailoring sentences to individual defendants....

Chief Judge Mark L. Wolf, the top judge in the Massachusetts district court, said he has no idea which judge he is in the study.  But he acknowledged that he has increasingly sentenced some defendants, particularly those accused of dealing crack cocaine, below the guideline ranges since the framework became advisory, he said.  Wolf is among many federal judges who have long criticized the disparity between the harsh punishments for dealing crack and the less severe penalties for powdered cocaine, a disparity the federal government has narrowed in recent years.

Although Wolf has sentenced more drug offenders to less than the guidelines recommend in recent years, he said, he has increasingly sentenced white-collar offenders to more than the guidelines advise....

The Supreme Court rulings [in Booker and its progeny] transform[ed] what had been a mandatory framework into an advisory one.  But that has caused the difference in the length of the average sentence imposed by the most severe and most lenient judges in Boston to grow, Scott writes.

Before the Booker case in 2005, the difference stood at 15 months, in cases where crimes carried no mandatory minimum sentences, according to Scott’s findings. Since the three Supreme Court rulings, the difference has grown to almost 40 months.  "I’m just pointing out that the differences among judges have become more stark since Booker, and that’s a worrying development," Scott said.

Another federal judge in Boston, Patti B. Saris, has been nominated by President Obama to be a member and chairwoman of the Sentencing Commission.  The Senate Judiciary Committee recently voted, 18-1, to confirm her nomination.  The full Senate is expected to vote shortly.

Even the most casual follower of federal sentencing developments since Booker should not be surprised by the findings in the Scott study.  Indeed, Justice Breyer himself candidly acknowledged when he invented the Booker advisory guideline remedy that this system likely would increase disparity, and he stressed that it was up to Congress to decide whether an alternative system to the one he was creating to deal with constitutional problems with sentence-enhancing judicial fact-finding was to be preferred. That Congress has left the Booker advisory system entirely unchanged now for six full years continues to surprise me much more than empirical documentation of increased post-Booker sentencing disparities.

Perhaps one reason Congress has not responded to Booker legislatively is the sense, even among the most ardent fan of mandatory federal sentencing guidelines, the increased disparity since Booker is not really such a bad thing in light of the alternative ways of reforming the federal sentencing system.  We got an advisory system in the first place largely because federal prosecutors balked at the prospect of having to comply with the new constitutional requirements for proving up sentence enhancements set out in Blakely, and there has been little evidence in the last six years that federal prosecutors have become bigger fans of Blakely rights.  Moreover, as Scott's research shows, even with the effect of a judge on sentence length has increasing after Booker, legally relevant factors like the defendant's crime and criminal history still are the principal drivers of sentence lengths.  Thus, to paraphrase Pangloss from Candide, perhaps despite increased disparity, after Booker we may be living in the best of all possible federal sentencing worlds.

December 20, 2010 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, December 03, 2010

Notable new sentencing opinion from Judge Gertner for low-level crack dealer

Long-time readers know that  and today US District Judge Nancy Gertner long ago earned her place in my Sentencing Judges Hall of Fame by effectively exploring a range of important issues through detailed sentencing opinion in the immediate wake of Blakely and Booker.  And I am pleased now to report that, though basic sentencing law is now more settled, Judge Gertner continues to write opinions that knock important sentencing issues out of the park. 

Earlier this week, for example, she produced a fascinating discussion of post-Booker sentencing issues through a 26-page decision in US v. Wigham, No. 06cr10328-NG (D. Mass. Nov. 30, 2010), which can be downloaded below.  Sentencing fans will want to read the opinion in full, and here is a snippet to whet the appetite:

Once I determine that a Guideline sentence does not apply, I must then decide what sentence is appropriate to meet the statutory sentencing purposes of 18 U.S.C. § 3553(a) as Booker directs. See 543 U.S. at 224.  In this regard, I will use the approach which I used in other drug sweep cases, described in United States v. Garrison, 560 F. Supp. 2d 83 (D. Mass. 2008).  In Garrison, I evaluated and compared the sentences imposed on men picked up in the same sweep, the same geographical area, with the same charges -- including sentences imposed by other judges -- to the case of the defendant before me.  In effect, Garrison makes the sentences of individuals imposed by other judicial officers function as precedent for my sentence, part of a common law of sentencing.

The government criticizes the Garrison approach, arguing that it will somehow exacerbate disparity in this jurisdiction and cites to a recent article by Professor Ryan Scott ("Scott"), Inter-Judge Sentencing Disparity After Booker: A First Look (Ind. Legal Studies Research, Paper No. 140, 2010), which reflected concerns about Massachusetts federal sentencing. As I describe below, Scott’s article defines disparity in terms of the extent to which District of Massachusetts judges are following the Sentencing Guidelines.  Following the Guidelines, it suggests, promotes the kind of sentencing consistency that the Sentencing Reform Act aimed for.

I disagree with the premise, as I describe below. S imilarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant’s actual role in the criminal endeavor or his real culpability.  Guideline categories (like career offender guidelines) are frequently over broad, giving the same "score" to individuals who are not remotely similar and ignoring critical differences between them (their role in the offense, their mens rea) that should bear on punishment. In any event, in this case, the government’s position touting the Scott article was ironic. It agreed that the Guideline sentence is far too high for Whigham.

To the extent that Scott's findings suggest differences in the approach to the Guidelines among the judges in Massachusetts, they should be carefully evaluated, which I do below. The critical question is what these disparities reflect -- whether they reflect the untutored preferences of particular judges, as often occurred pre-Guidelines, or real jurisprudential differences involving Guidelines that are problematic.  In my judgment, they reflect the latter; the good faith, reasoned evaluations of Guidelines and facts.  Even before Booker, the Guidelines contemplated that district court judges would depart from the Guidelines on occasion, that the Commission would consider these departures and amend the Guidelines, if appropriate, allowing for a collaborative evolution of Guideline law.  After Booker, more of the work of that evolution is to be done by the appeals courts than the Commission -- determining which approaches are "reasonable" and which are not.

In the short term, until there is precedent in the areas in which there are real issues, like the career offender and crack cocaine Guidelines, differences in approach across cases are unavoidable.  That is all the more reason for using the Garrison approach, at the very least, looking carefully at the sentences given to individuals in a given sweep, in the same geographic area, in roughly the same time period, having the same role in the offense.

Let me be clear -- in answer both to Professor Scott and the critics of advisory Guidelines: When I choose not to follow the Guidelines, it is not because I simply disagree with them and seek to substitute my own philosophy of sentencing.  It is because the Guideline at issue is wholly inconsistent to the purposes of sentencing under 18 U.S.C. § 3553(a).  And when I assign a non-Guidelines sentence, I am likewise not picking a number out of the air, but keying what I do, to the extent possible, with the sentences and reasoning of other judges, and the evidence that I have been given.  Finally, I write decisions so that my reasoning is clear and may usefully serve as precedent to others.

Download WhighamSentMemoNov30th2010AMENDED

December 3, 2010 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (21) | TrackBack

Tuesday, November 30, 2010

"Most federal judges not comfortable with tough guidelines"

The title of this post is the headline of this article about federal child porn sentencing realities appearing in today's Pittsburgh Post-Gazzette.  Here is how it gets started:

Before Richard Leo Smith III could ask for leniency for possessing child pornography, a federal judge in Pittsburgh signaled he would grant it.  The judge disagrees with guidelines that recommend a minimum of more than six years in prison.  "The guideline is largely the product of congressional directives," U.S. District Judge Gary Lancaster said recently, before sentencing Smith, 28, of Indiana Township to 2-1/2 years in prison.

A survey this year suggests a similar scenario plays out frequently across the country. About 70 percent of federal judges think sentencing guidelines for possession or receipt of child pornography are unreasonable.  The U.S. Sentencing Commission intends to review the guidelines.  The stakes could hardly be higher: years of defendants' lives vs. the safety of children.

Public defender Penn Hackney, who represented Smith, told Lancaster that uncertainty about the guidelines put him in a bind.  Some federal judges limit sentences to probation in such cases; others hand out 10 years or more in prison.  "This landscape is so shifting, I don't know what to ask for anymore," Hackney said.

Some related prior federal child porn prosecution and sentencing posts:

November 30, 2010 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, November 19, 2010

Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities

As reported in this piece in the Atlanta Journal-Constitution, which is headlined "Federal judge to plead guilty in drug case," senior U.S. District Judge Jack Camp appears to have worked out a sweet plea deal following his arrest on various drug and gun offenses.  Here are some of the specifics:

Senior U.S. District Judge Jack Camp, whose arrest on charges of buying drugs and his relationship with a stripper shocked the state's legal community, will plead guilty Friday to federal charges, his lawyer said.  “We’ve reached a mutually agreeable resolution of the case,” Atlanta attorney Bill Morrison said Thursday.  Morrison would not disclose the specific charges the judge would plead guilty to.

Camp, 67, is scheduled to enter his plea in Atlanta before Senior U.S. District Judge Thomas Hogan, a judge from Washington who was assigned the case.  On Thursday, Hogan disclosed Camp's decision to enter a guilty plea in an entry on the court's online docket sheet.

In a court filing Thursday, federal prosecutors indicated Camp will plead guilty to at least one felony charge -- aiding and abetting a felon's possession of cocaine, a painkiller and marijuana.  The filing did not disclose whether Camp will enter pleas to other charges.

Camp could avoid prison time if, as expected, his agreement with federal prosecutors does not require him to plead guilty to the most serious charge against him — being an illegal drug user who was found in possession of a handgun — said Steve Sadow, an Atlanta defense attorney who is not involved in the case.  Federal sentencing guidelines recommend at least five months in prison for that charge, Sadow said. If Camp pleads guilty to lesser charges, he could receive probation, home confinement or time in a halfway house, he said.

Camp, a member of a prominent Coweta County family, was appointed to the federal bench by President Ronald Reagan in 1988.  He was serving as chief judge when he took senior status at the end of 2008.

Camp was arrested in early October, and a detailed affidavit by an FBI agent accused the judge of buying cocaine, marijuana and prescription painkillers.  The affidavit said Camp shared the drugs with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta.

Camp, who is married, met the dancer when he purchased a private dance from her, the affidavit said.  He returned the next night and purchased another dance and sex from her, and the two then began a relationship that revolved around drug use and sex, according to court records.

The stripper began cooperating with the FBI, and on Oct. 1 she asked Camp to follow her to a drug deal to protect her.  Camp agreed, saying, "I'll watch your back anytime. ... I not only have my little pistol, I've got my big pistol so, uh, we'll take care of any problems that come up," the affidavit said.

Though federal practitioners can and should correct me if I am wrong, I believe it is fairly uncommon that a defendant involved in a series of drug transactions with the involvement of firearms will be able to cut a plea deal that enable him to potentially avoid any prison time. I am not directly asserting that Judge Camp is getting special treatment, but I do think the judge's own familiarity with the ins-and-outs of federal criminal law and practice likely played a significant role in how this case is getting resolved.

In the end, I will be surprised if any plea deal here locks in a specific sentence of Judge Camp. Assuming the deal leaves Judge Hogan with some sentencing discretion, I would not be surprised if Judge Camp still may face some hard time. (And perhaps readers might want to give Judge Hogan some early sentencing advice via the comments.)

Related post (which generated lots of comments):

UPDATE:  This new AP report provides details on the basics of the plea that was entered today:

U.S. Senior Judge Jack T. Camp pleaded guilty to the felony charge of aiding and abetting a felon's possession of cocaine when he bought drugs for the stripper, who was secretly cooperating with authorities. He also pleaded guilty to two misdemeanors: possession of illegal drugs and illegally giving the stripper his government-issued laptop.

Camp, 67, faces up to four years in federal prison when he is sentenced March 4, but he is likely to get less time. Camp also agreed to resign from the bench and cooperate with any questions authorities may have regarding the cases he handled while he was being investigated.

When a judge asked Camp if the charges were accurate, he replied, "I regret ... I am embarrassed to say it is, your honor." Neither he nor his attorneys offered any explanation for his actions.

November 19, 2010 in Booker in district courts, Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, November 18, 2010

"Ghailani Still Faces Stiff Penalty for Bombings"

The title of this post is the headline of this lengthy and effective new CBS News piece discussing some of the sentencing issues following yesterday's conviction (on only one of 285 counts) of a former GITMO detainee tried in civilian court.  Here are excerpts:

When he is sentenced in January, al Qaeda operative Ahmed Khalfan Ghailani, 36, faces a minimum 20 years of imprisonment, and a possible life sentence, for his conviction Wednesday for his role in the 1998 U.S. embassy bombings in East Africa.

In the first federal terrorism trial of a former detainee at the prison camp at the U.S. naval base in Guantanamo Bay, Cuba, a civilian jury found Ghailani guilty, but only of one of 285 counts levied against him: conspiracy to destroy buildings and property of United States by means of an explosive.

Although the jury determined Ghailani had a hand in a conspiracy that resulted in death, the panel found him personally not guilty on all 224 murder counts -- 11 for those who died in truck bombing of the American embassy in Dar es Salaam, Tanzania, the focus of his trial, and for the 213 people who died in nearly simultaneous explosion in Nairobi, Kenya, on Aug. 7, 1998.

"At the start of this trial, we believed Ahmed was truly innocent of all these charges," lead defense attorney Peter Quijano said outside the Lower Manhattan courthouse Wednesday evening. "We still truly believe he is innocent of all the charges."...

The jury found Ghailani not guilty of four other conspiracy counts, including the top count of the indictment, al Qaeda's global conspiracy to kill Americans, which would have guaranteed the same life sentence being served by four men convicted in the embassy bombings conspiracy in a 2001 trial.

U.S. District Judge Lewis Kaplan, who presided over the month-long trial, scheduled Ghailani's sentencing hearing for January 25, 2011, at 11 a.m. "He will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January," said Preet Bharara, U.S. attorney for the Southern District of New York, in a written statement....

The jury was told that Ghailani was captured in Pakistan in July 2004, but was provided no information about his alleged activities while a fugitive for six years following the Africa bombings or anything about his six years in custody.

He spent two years in a secret CIA prison overseas, where he was subjected to "enhanced interrogation techniques" his lawyers called torture. Then he was moved to Guantanamo for three years before his transfer to the U.S. last year. He has been held in the high security wing of the Metropolitan Correctional Center adjacent to the courthouse....

Over the course of the past month, the jury heard 13 days of testimony and evidence, with 50 prosecution witnesses and hundreds of government exhibits, and two days of closing arguments.  More than a third of the witnesses, including embassy bombing survivors from Africa and FBI agents, had previously testified in the 2001 trial. The defense called no witnesses, nor did the defendant testify....

The government has achieved more than 200 convictions in terrorism-related prosecutions since 9/11 and a 90 percent conviction rate, according the the NYU Center on Law and Security, which tracks theses cases....

With Ghailani facing a 20 year minimum sentence, his attorneys plan to argue that he should get credit for six years served in U.S, custody, a consideration with other al Qaeda suspects detained as "enemy combatants" prior to seeing their legal situations resolved in federal court, such as Jose Padilla and Ali al-Marri.  The defense teams also plans to file a motion for a new trial on the one conspiracy count for which Ghailani was convicted.

If prosecutors fell short, they failed to persuade all the jurors that Ghailani knowingly and willfully participated in the overall al Qaeda conspiracy or that he knew its lethal goals in East Africa.  "We never disputed that he engaged in certain conduct," Quijano said of Ghailani.  "The question both strategically as well as legally, was whether there was proof that he knew."

Unsurprisingly, most of the immediate post-verdict discussion has been about what this result means for the Obama Administration's apparent interest in trying many former GITMO detainee in civilian courts. But, also unsurprisingly, I am immediately interested in the array of unique (and not-so-unique) sentencing issues that Judge Kaplan will be facing. The Government will surely emphasize so-called "acquitted conduct" as part of its advocacy for an LWOP sentence, and I have a feeling prosecutors will adopt an approach to guideline calculations that will have the advisory range urge life as well. Meanwhile, the defense seem likely to urge the minimum sentence of 20 years (as well as credit for time served), and it is especially interesting to speculate about how both sides will spin arguments around all the 3553(a) factors. In other words, sentencing fans, stay tuned.

November 18, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, November 12, 2010

Sarah Palin hacker get a federal year-and-a-day sentence

As detailed in this CBS News report, "David Kernell, the 22-year-old man who hacked into Sarah Palin's e-mail during the 2008 presidential campaign, was sentenced Friday to a year and a day, with the judge recommending a halfway house instead of prison."  Here is more of the details:

Kernell hugged family members and friends after hearing the sentence. He declined comment as they left the courthouse with his attorney....

The Republican former vice presidential candidate and her daughter Bristol testified at the trial in late April that the hacking, followed by Kernell's online bragging and providing the password and Palin family telephone numbers to others, caused them emotional hardship. Palin previously declined comment about Kernell's sentence and said it should be up to the judge. 

The prosecutors' pre-sentence filings said Kernell, a Democratic legislator's son, had posted online that he found "nothing that would derail her campaign as I had hoped, all I saw was personal stuff, some clerical stuff from when she was governor ... And pictures of her family ... I read everything, every little Blackberry confirmation ... all the pictures, and there was nothing..."

U.S. District Judge Thomas W. Phillips rejected a recommendation by prosecutors that Kernell be sent to prison for 18 months.

Kernell will not start the sentence until the Bureau of Prisons decides the location of his confinement, probably in about 45 days. "They usually take the recommendation but they are not required to," the judge said.

Kernell, smiling at times after the sentence was announced, spoke during the hearing and apologized. "I am not going to make any kind of excuses," he said.  "I'd like to apologize to the Palin family."  Kernell said that "for the rest of my life I am going to be ashamed, feel guilty for what I have done."

The judge also said Kernell should get mental health treatment based on defense comments Friday that he has had conditions including depression since he was 11.

Kernell was convicted of unauthorized access to a protected computer and destroying records to impede a federal investigation. Jurors acquitted him of wire fraud and deadlocked on an identity theft charge.

November 12, 2010 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Saturday, October 30, 2010

Decorated Vietnam vet gets way below-guideline sentence for child porn

This notable local article from South Dakota, which is headlined "War vet sentenced 18 months for child porn," reports on another interesting and notable federal sentencing case involving a child porn downloader. Here are the fascinating details:

A decorated Vietnam veteran with no criminal history and only a vague memory of his crime will spend 18 months in a mental health facility for dabbling in child pornography.

The unique circumstances in the case of 65-year-old Truman Wages led U.S. District Judge Lawrence Piersol to deviate from federal sentencing guidelines -- and his own judicial philosophy -- by trimming what would have been a five-year prison sentence to 18 months in a secure mental institution. "Frankly, the public needs to see that if you engage in child pornography, you're going to go to prison," Piersol said at the Parkston man's sentencing on Friday.

The judge agreed, nonetheless, with the assessments of Wages by defense lawyer Tim Langley and forensic psychiatrist Ricardo Ascano.  Namely, that the near-suicidal veteran with a deteriorated memory does not represent a threat to the community. "This is not a pedophile," Langley said. "This is a person who can't even give a reasonably coherent account of what he was trying to do when he stumbled onto these things."

What investigators found during a 2008 search of Wages' home and property were nearly 100 CDs with some pornography on them. Among them were three discs containing child pornography.  Prosecutor Jeff Clapper said that one of the 10 videos contained footage of an adult male engaging in sex acts with a 1-year-old child. "He didn't just view it on the Internet, he downloaded it, saved it and put it on a disc," Clapper said.

Ascano's psychiatric profile showed Wages to prefer adult women overwhelmingly as sexual partners, evidenced by a collection of adult pornography and a wandering sexual history that includes more than 200 female partners.  Part of each monthly disabled veteran's check goes to support some of his children in Mexico, Langley said.

When asked to explain his foray into child pornography, Wages said he had probably stumbled across the material while searching for an herbal cure for erectile dysfunction.

Wages earned a Silver Star, a Bronze Star and a Purple Heart for his service in Vietnam, Ascano said, and has suffered from post-traumatic stress disorder since.  Veteran's Affairs clinics in California and Arizona diagnosed him with depression, anxiety and schizoid personality disorder, Ascano said, and he attempted suicide in 1993. The deterioration in his memory stems from a long-term refusal to take medications for his Type II diabetes and hypertension. He refuses, the doctor says, because he is "parasuicidal."...

Clapper recommended a higher sentence than Piersol ultimately issued, but said the serious crime came about in a "highly unusual" manner.  Wages' use of pornography increased with his age, Clapper said, alongside his self-imposed isolation and depression. "We've got a person who has lived a hypersexual life, and later in life he isn't able to live that way anymore," Clapper said.

October 30, 2010 in Booker in district courts, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

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.


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