Sentencing Law and Policy

Sixth Circuit panels splitting over many aspects of reasonableness review

Anyone longing for some juicy federal circuit court opinions on reasonableness review to discuss over the long weekend now need look no further than a couple of split panel rulings — dare I say turkeys? — handed down by the Sixth Circuit this morning.  Specifically, via US v. Petrus, No. 08-1706 (6th Cir. Nov. 23, 2009) (available here), and US v. Simmons, No. 07-3449 (6th Cir. Nov. 23, 2009) (available here), two different Sixth Circuit panels talk lots of turkey concerning both substantive and procedural reasonableness review after Booker and its progeny. 

Neither Petrus (which runs 17 pages) or Simmons (which runs 76 pages!) can be easily summarized, and thus I will be content here to quote a key section from the start of Judge Clay's potent 50-page dissent in Simmons:

Even more troubling [than doctrinal errors] is just how fundamentally unbalanced and unjust the approach endorsed by the majority is.  On the one hand, the majority is willing to speculate as to what the district court “appears” to have “implicitly” considered, while on the other hand faulting defense counsel for not “specifically” identifying the procedural errors to which she was objecting.  The majority also insists that the procedural rule confirmed in Vonner somehow eliminates the need for a contextual inquiry when determining the sufficiency of a defendant’s objection, despite the fact that Vonner explicitly requires us to conduct such a contextual review when evaluating the sufficiency of the district court’s sentencing pronouncement. See Vonner, 516 F.3d at 387 (explaining that a “lengthy explanation” of the sentence chosen may not be required in all cases “because ‘circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence’” (quoting Rita v. United States, 551 U.S. 338, 357 (2007)); see also Rita, 551 U.S. at 356 (“The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.”).

In both respects, the majority’s decision typifies a troubling imbalance that plagues our case law in this area.  It also reveals that the majority’s professed concern for clarity in this area is disingenuous.  If the majority truly was interested in adopting rules that will lead to a clear record for appeal, then its first order of business obviously should be to hold the district court accountable for failing to address Simmons’ primary, repeated, and nonfrivolous argument in favor of downward departure.  Instead, the majority bends over backward to guess at whether the court considered Simmons’ argument.  It makes no sense, and is fundamentally unfair, to place the burden for creating an adequate record for appeal on criminal defendants rather than district court judges.

Let me be clear: I acknowledge that we are bound to apply the rule that the en banc majority announced in Vonner, but I emphatically reject the assertion that Vonner requires the outcome reached by the majority.  The narrow scope of the majority’s inquiry and its insistence on a rigid application of the plain-error standard is contrary to the “common-sense” approach required under Vonner, and repeatedly confirmed in subsequent reported decisions.  If the majority is right, however, and Vonner requires either the inquiry undertaken or the outcome reached by the majority, then the time has come for this Court to reconsider the wisdom of our decision in Vonner.  And if this Court is unwilling to acknowledge its mistake, then perhaps the Supreme Court should intervene to rectify this imbalance.

Notably, the "swing" voter helping to make up the majority opinions in Petrus and Simmons  — both of which declare procedurally reasonable a sentence imposed in a procedurally questionable manner — both happen to be district judges sitting by designation.  Though I do not generally have a problem with district judges sitting by designation, I think there is a worrisome sort of conflict-of-interest for district judges to be very involved in defining a circuit court's standards for when district judges are sentencing in a reasonable manner. 

Eleventh Circuit declares probation sentence unreasonable (yet again!!) for white-collar defendant

The Eleventh Circuit, in a ruling that seems like deja vu all over again, reverses a below-guidelines sentence in a high-profile, white-collar case today in US v. Livesay, No. 08-14712 (11th Cir. Nov. 16, 2009) (available here).  These snippets from the ruling help highlight why this case is like a CourtTV version of the movie Groundhog's Day:

Whoever said “third time’s a charm” was apparently unfamiliar with the history of this case.... Livesay’s first sentencing hearing occurred in June 2004....  [At his third resentencing, the] district court again granted the government’s § 5K1.1 motion and imposed a term of 5 years probation.  For the third time, the government appealed the sentence....

[B]ecause the sentence imposed in this case is not reasonable in light of the sentencing factors outlined in § 3553(a), we once again vacate the sentence and remand this case to the district court for resentencing. Not only do we hold that the particular sentence imposed below is unreasonable, but we also hold that any sentence of probation would be unreasonable given the magnitude and seriousness of Livesay’s criminal conduct. As we stated in Martin, only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute.

Big dissent from Ninth Circuit's denial of en banc review of reasonableness ruling

A helpful reader made sure that I did not miss the decision by the Ninth Circuit to deny en banc review in US v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (discussed here), a case decided this past June in which the panel had reversed a within-guidelines sentence as substantively unreasonable.  What makes this latest development especially blog-worthy is the dissent from the denial of en banc review, which is authored by Judge O'Scannlain and joined by six other Ninth Circuit judges.  Here is how this dissent gets started:

This is the first published opinion in this circuit reversing a within-Guidelines sentence as substantively unreasonable.  The panel reaches this unprecedented result by casting aside Supreme Court and Ninth Circuit precedent in three ways: first, by failing to apply the appropriate standard of review; second, by recognizing a brand-new category of sentencing factors whose consideration by the district court warrants virtually no deference; and finally, by assuming a policymaking role properly reserved to the district court.  I must respectfully dissent from our failure to rehear this case en banc.

The closing paragraph of the dissent also seems worth quoting:

This is not just another sentencing case.  Employing what amounts to a de novo standard of review, the panel becomes the first in our circuit to publish an opinion reversing a within-Guidelines sentence as substantively unreasonable.  In the process, the panel recognizes a brand-new category of sentencing considerations purportedly undeserving of deference, and usurps the policymaking role of the district court as well as the Sentencing Commission.  For these reasons, I respectfully dissent from the denial of rehearing en banc.

I doubt that the Supreme Court would take up this case even if the Solicitor General now considers an appeal to SCOTUS.  But this dissent sure suggests that at least a few Ninth Circuit judges are eager to have this case added to the Justices' future dance card.

Fourth Circuit affirms reliance on uncharged conduct in sex offender sentencing

The Fourth Circuit today in US v. Grubbs, No. 07-5040 (4th Cir. Nov. 6, 2009) (available here), considers and rejects a number of procedural challenges to a federal sex offense sentence. Here is how the opinion begins:

Jimmie Vance Grubbs pled guilty to six counts of knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C. § 2423(a), and six counts of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C. § 2423(b).  The district court sentenced Grubbs to 240 months of imprisonment and a life term of supervised release.  On appeal, Grubbs does not contest his convictions, but contends the district court erred in imposing his sentence for three reasons: (1) the district court violated his Sixth Amendment rights by considering uncharged conduct when deciding an appropriate sentence; (2) the district court violated his Fifth Amendment rights by failing to require the Government to prove uncharged conduct by more than a preponderance of the evidence standard; and (3) the district court committed procedural errors in calculating his United States Sentencing Guidelines ("Guidelines") range.  For the reasons that follow, we disagree with Grubbs and affirm the judgment of the district court.

Split Seventh Circuit declares that 3553(a) factors cannot be considered in Rule 35(b) reductions

Though the numerical provisions mentioned in the title of this post may only make sense to federal sentencing practitioners, the start of the majority and dissenting opinions in US v. Shelby, No. 08-2729 (7th Cir. Oct. 19, 2009) (available here), spotlights what's at issue in a split panel ruling handed down by the Seventh Circuit today.  Here is how Judge Posner's majority opinion gets started:

Rule 35(b)(2) of the federal criminal rules authorizes the district court, “upon the government’s motion made more than one year after sentencing,” to “reduce a sentence if the defendant’s substantial assistance” falls into specified categories.  The only question we are asked to decide is whether the rule allows the district judge to reduce the sentence on the basis of the factors that he would consider in initial sentencing under the Booker regime — namely the factors listed in 18 U.S.C. § 3553(a).

Here is how Judge Evans's dissent begins:

Judge Kocoras sentenced the then 26-year-old Gregory Shelby to serve 285 months back in 1996. At that time, the judge expressed regrets — the sentence was far too long, he lamented, but his hands were tied by mandatory guidelines that shackled his ability to impose a sentence that was fair and reasonable.  Today, the majority holds that Judge Kocoras overstepped his bounds when he recently reduced the now 40-year-old Shelby’s sentence to a term of 180 months.  Because I would affirm the judge’s well-reasoned decision, I respectfully dissent.

New article on "Reconsidering Deference" in the appellate review of sentences

I just noticed here on SSRN that Professor Michael O'Hear has yet another important new piece concerning appellate review of sentences.  This new piece is titled "Appellate Review of Sentences: Reconsidering Deference," and here is the abstract:

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges.  This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion.  This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions.  For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making.  Despite the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse.  Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.

Two notable (little?) Seventh Circuit sentencing opinions

The Seventh Circuit today handed down two published sentencing opinions today, both of which seem to deal with relatively little issues but seem notable nonetheless. Here are the basics from the start of each opinion's first paragraph:

US v. Poetz, No. 09-2359 (7th Cir. Oct. 9, 2009) (available here):

Suzanne Poetz pleaded guilty to theft of government property in violation of 18 U.S.C. § 641. Her advisory sentencing guidelines range was 24 to 30 months, and the district court sentenced her to imprisonment of a year and a day. Poetz argues on appeal that her sentence is unreasonable because the judge did not adequately consider her medical problems or the impact of incarceration on her family, which in her view warranted a sentence of home confinement.

US v. Anderson, No. 09-1958 (7th Cir. Oct. 9, 2009) (available here):

Only one thing links the three cases that we have consolidated for argument and disposition here: the question whether the district court correctly understood our decision in United States v. Head, 552 F.3d 640 (2009), as precluding its authority to impose, as a condition of supervised release, placement in a halfway house.  Ronald Maceri, Kevin Anderson, and Rick Harre each violated the conditions of his supervised release, and each asked that he be given a shorter term of re-imprisonment to be followed by placement in a halfway house as one condition of his new supervised release.  Understanding Head to preclude that disposition, the district court instead imposed a new term of imprisonment with a recommendation to the Bureau of Prisons (“BOP”) that it place each man in a halfway house during the last six months of his sentence.  All three now argue that this violated 18 U.S.C. § 3553(a), because it resulted in a term of imprisonment longer than necessary.  We must decide whether Head requires this result.

For Friday fun, folks can try to guess the results.  Or just click through to the opinion if the only games of great interest to you today, as is the case for me, are the pair of ALDS games taking place in a few hours.

Seventh Circuit judges debating reach of Kimbrough to career offenders

The Seventh Circuit today has an interesting panel opinion in US v. Welton, No. 08-3799 (7th Cir. Oct. 2, 2009) (available here), which in turn triggers an interesting dissent from judges not actually on the panel deciding the case.  First, here is the heart of the ruling in Welton:

Welton contends that Kimbrough’s holding should be extended to include defendants sentenced as career offenders. But applying the reasoning above, Welton’s argument must fail. Unlike the crack/powder disparity, the career offender Guideline range is the product of a Congressional mandate. As Kimbrough noted, Congress “specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum.” Id. at 571 (citing 28 U.S.C. § 994(h)). Deviating from the career offender Guideline range based on a policy disagreement necessitates that a sentencing court disregard those statutory maximums.

Because this ruling required the Seventh Circuit panel to overrule a prior decision, this opinion was circulated to all member of the Circuit.  That, in turn prompted a dissent from three judges not on this panel, which starts this way: 

The Supreme Court has held unequivocally that all guidelines are advisory and that courts may issue below-guideline sentences based on policy disagreements with the crack/powder disparity.  Nonetheless, the panel believes there are some exceptions to these rules. Because the panel opinion imposes impermissible limits on a judge’s discretion in applying the Sentencing Guidelines, I believe it is out of step with the Supreme Court’s decisions in Booker and Kimbrough.

Ninth Circuit judges talking about meaning and import of Paul reversal(s)

Federal sentencing fanatics know that the Paul case in the Ninth Circuit is significant because it was arguably the first (and might still be considered the only) circuit ruling that a within-guideline sentence should be reversed as substantively unreasonable.  The initial story of Paul is discussed in this 2007 post and a subsequent 2009 ruling after a remand for resentencing is discussed in this post. 

Now, as evidenced by this new order refusing en banc review, the Ninth Circuit has added an extra chapter to this story.  Specificaly, consider this opening paragaph from a dissent from the denial of rehearing en banc in Paul (which was joined by four other circuit judges):

This case decides whether a district court violated a mandate from the court of appeals.  It does not decide whether Paul’s sentence was substantively unreasonable, despite language in the opinion that could mislead readers.  I write separately in an attempt to forestall the confusion that has already arisen from the way in which the majority has chosen to draft its disposition.  I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul’s sentence was substantively unreasonable.

Unpublished Sixth Circuit ruling addresses departure/variance distinction

The Sixth Circuit released an interesting unpublished ruling in US v. Simpson, No. 08-5293 (6th Cir. Sept. 16, 2009) (available here), which finds procedurally unreasonable a district court sentencing determination that failed to properly distinguish its departure authority and its post-Booker variance authority.  Here are some key sections of the ruling (with cites left out):

Both at sentencing and in the STR, the court followed the same model of (1) calculating the Guidelines range; (2) determining if any of the mitigating factors presented “extraordinary circumstances” sufficient to justify a Guidelines departure; and (3) determining what sentence within the relevant range was justified in light of the factors set forth in § 3553(a). This approach is impermissible for several reasons....

This mistake significantly affected the sentencing court’s understanding of its authority because variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. § 3553(a) include a much broader range of discretionary decisionmaking than departures. The district court’s statements indicate that it felt  bound by the pre-Gall standard of review and the Guidelines’ restrictions on departures that require extraordinary or exceptional circumstances to justify a below-Guidelines sentence.  As a result, the court dismissed some of Simpson’s mitigation evidence as unworthy of consideration when, in fact, the court was required to consider that evidence.

I am not sure what bothers me more — the fact that these basic issues remain murky nearly five years after the Booker ruling or the fact that the Sixth Circuit did not think clarifying these issues justified publishing this seemingly important Simpson decision. 

Third Circuit approves of fast-track variances based on Kimbrough

In what looks to be a long and thoughtful opinion, the Third Circuit today in US v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009) (available here), has ruled that federal sentencing judges in non-fast-track districts can grant fast-track variances. Here is the start of today's must-read federal sentencing opinion:

In certain federal judicial districts, “fast-track” programs allow qualifying immigrant defendants to plead guilty while waiving, among other things, their appellate and post-conviction rights.  In turn, the Government agrees to request a departure from the relevant Sentencing Guidelines range.  None of the districts in the Third Circuit is a fast-track district.

Pedro Manuel Arrelucea-Zamudio (“Arrelucea”) pled guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2).  The District Court sentenced him to 48 months’ imprisonment. Arrelucea appeals his sentence, challenging, among other things, the Court’s rejection of his argument for a downward variance based on the disparity in sentencing among immigration defendants in fast-track districts and non-fast-track districts.  The Sentencing Guidelines are advisory, and the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007), has rekindled discussion regarding fasttrack districts and sentencing. The question before us is whether, post-Kimbrough, it is an abuse of a sentencing judge’s discretion to consider varying from the Sentencing Guidelines in a non-fast-track jurisdiction based on the disparity created by lower immigration sentences in fast-track jurisdictions.  Prior to Kimbrough we addressed this issue in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007).  We take this opportunity to clarify Vargas and expand on the issue in light of the Supreme Court’s recent guidance.  We conclude that, under the logic of Kimbrough, it is within a sentencing judge’s discretion to consider a variance from the Guidelines on the basis of a fasttrack disparity.

Split Sixth Circuit affirms one-day prison sentence for downloading child porn

Providing another example of the disputes and disparities engendered by sentencing in federal child porn possession cases, a split panel of the Sixth Circuit today affirms as reasonable a one-day prison sentence in US v. Stall, No. 08-4064 (6th Cir. Sept. 11, 2009) (available here).  Here is the start of the majority opinion authored by Judge Boggs:

Adam Stall pleaded guilty to two counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). After observing that Stall had no criminal history and properly determining that the Sentencing Guidelines advised a range of 57-71 months of imprisonment, the district court sentenced Stall to only one day of incarceration and a ten-year period of supervised release.1 In this appeal, the United States contends this “non-custodial” sentence was procedurally and substantively unreasonable. Because the government at sentencing put forward almost no evidence for why a sentence within the Guidelines was warranted and did not raise the same cogent arguments it presents only on appeal, we affirm, holding that the district court’s explanation for the extent of its downward variance was sufficient in light of the record made before it.

Here is the entire dissent authored by Judge Rogers:

The one-day sentence in this case does not, with reasonable sufficiency, avoid disparity in sentencing or provide for general deterrence. I would therefore vacate the sentence as substantively unreasonable, and remand.

Eighth Circuit affirms stat-max sentence for false statement in bankruptcy proceeding

With a struggling ecomony perhaps leading more and more businesses and persons to consider declaring bankruptcy, a ruling today from the Eighth Circuit in US v. Waldner, No. 08-2606 (8th Cir. Sept. 4, 2009) (available here), provides a sharp reminder why one must be truthful in any bankruptcy proceeding.  Here is the unofficial summary of the Waldner ruling from the Eighth Circuit's website:

District court did not err imposing a 16- level increase under Guidelines Sec. 2B1.1(b)(1)(I) as the court properly concluded the amount of loss exceeded $1 million; nor did the court err in imposing enhancements under Guidelines Sec. 2B1.1(b)(9)(c) for use of sophisticated means, Guidelines Sec. 3B1.2 for abuse of a position of private trust or Guidelines Sec. 3C1.1 for obstruction of justice; no error in denying request for reduction for acceptance of responsibility; even though the district court committed significant procedural error when it purported to use certain upward departures to calculate a new advisory guidelines range, the error did not require reversal or resentencing because the sentence was within the properly calculated advisory Guidelines range and was substantively reasonable; restitution order of $1.72 million affirmed.  Judge Bright, concurring.

Judge Bright's concurrence, fully reprinted here, captures the heart of the reasonableness sentencing issue:

The district court imposed the maximum possible penalty under the law (ten years).  I would note that Waldner is a first-time offender, a good wage earner in his earlier positions, and apparently a good father and husband.  The sentence does appear heavy but it was within the discretion of the district court.  Thus, I concur.

Seventh Circuit enforces requirement that district judges address non-frivolous sentencing arguments

The Seventh Circuit today issued an important little opinion on post-Booker procedural requirements in US v. Villegas-Miranda, No. 08-2308 (7th Cir. Aug. 27, 2009) (available here). Here is a key passage from the ruling (with internal cites and quotes left out):

Even if the sentencing court stated convincing reasons for the sentence it imposed, we cannot find its silence in response to a defendant’s principal argument to be harmless error because we can never be sure of what effect it had, or could have had, on the court’s decision.  Given that there is no dispute that Villegas-Miranda’s concurrent sentences” argument was one of his two principal arguments, if it was not so weak as to not merit discussion, the sentencing court was required to respond to it.  Although the district court listened at length to Villegas-Miranda’s “concurrent sentences” argument, we cannot take on faith that it adequately considered the argument where it passed it over in silence.

This case reinforces my sense that the Seventh Circuit has been distinctly rigorous in enforcing the requirement that district courts expressly address any and all non-frivolous defense arguments for below-guideline sentences.  I am pleased to see the Seventh Circuit being tough on this requirement  — which I view as one of the most important aspects of the Supreme Court's Rita ruling — especially given my sense that lots of other circuits tend to take a "good enough for government work" approach to this issue.

Some related posts:

• "Explaining Sentences"
• Stressing the importance of sentencing explanations by district courts

• Notable new article on "Appellate Review of Sentence Explanations"

Third Circuit finds probation sentence for child porn downloading unreasonable

In yet another noteworthy child porn sentencing case, the Third Circuit today reverses a below guideline sentence as unreasonable in US v. Lychock, No. 06-3311 (3d Cir. Aug. 25, 2009) (available here). Here is how the opinion gets started:

The government appeals a sentence of five years probation and a $10,000 fine imposed on George Lychock for his knowing possession of between 150 and 300 images of child pornography.  The applicable Sentencing Guidelines range, as both parties had agreed, was 30 to 37 months.  We agree with the government that Lychock’s sentence was procedurally and substantively unreasonable.  We will vacate the judgment of sentence and remand this case for resentencing.

Split Eighth Circuit discusses reasonableness review and cooperation discounts at length

The entire Eighth Circuit today in long opinions discusses the relationship between reasonableness review and substantial assistance discounts in US v. Burns, No. 04-2901(8th Cir. Aug. 20, 2009) (available here). All followers of federal sentencing discretion and review will want to find time to read all of Burns, though this unofficial summary from the Eighth Circuit opinion page provide an effective overview of the majority opinion:

[Judge Wollman, for the Court En Banc]  On remand from the Supreme Court for reconsideration of the court's en banc opinion in light of Gall v. United States.  For the court's panel opinion in the case, see United States v. Burns, 438 F.3d 826 (8th Cir. 2006). For the court's prior en banc opinion, see United States v. Burns, 500 F.3d 756 (8th Cir. 2007).  The government is under no obligation to apprise the district court with respect to the bases underlying its recommendation of a particular downward departure under 18 U.S.C. Sec. 3553(e) in the absence of a showing that the its recommendation was based upon an unconstitutional motive such as race or religion; Gall has not affected the limitations imposed by 18 U.S.C. Sec 3553(e) upon the district courts' authority to impose a sentence below the statutory minimum; the standard of appellate review laid down in Gall applies to the court's review of a sentence imposed under the provisions of 18 U.S.C. Sec. 3553(e); after putting aside all notions of exceptional/extraordinary circumstances, departure percentages, proportionality review and similar data-based standards of review, the question for the appellate court is whether the reduction granted the defendant is substantively unreasonable; here, the court could not say the sentence was unreasonable or an abuse of discretion, and it is affirmed.

Judge Bright, concurring, joined in part by Judge Bye.

Judge Colloton, dissenting, joined by Chief Judge Loken and Judges Riley and Gruender.

Stressing the importance of sentencing explanations by district courts

In a unpublished Sixth Circuit opinion today in US v. Herrod, No. 07-2197 (6th Cir. Aug. 19, 2009) (available here), Judge Clay writes an extended and effective concurrence stressing the importance of district judges explaining their sentencing rulings fully after Booker.  Here are excerpts:

The majority rejects Herrod’s claim, concluding that the sentence imposed by the district court was procedurally reasonable.  While I agree with the majority’s conclusion that the district court’s sentencing pronouncement was sufficient, I write separately on this particular issue to emphasize that sentencing judges are responsible for providing an adequate record for appeal.  Our case law imposes this obligation on district courts for reasons of fairness and practicality.  From every perspective, it is preferable for district courts to explicitly address every nonfrivolous argument raised by a defendant.  Expressly articulating the grounds for rejecting the particular claims raised by a defendant, at least with respect to a defendant’s nonfrivolous arguments, promotes several critical goals: (1) it provides the defendant with a clear understanding of the basis for his or her sentence; (2) it allows the public to understand the rationale underlying the chosen sentence; and (3) it helps this Court avoid the difficulties of parsing the sentencing transcript when determining whether the district court in fact considered the defendant’s arguments.  In fact, if district courts fully complied with this obligation, many frivolous appeals and clarification remands could be avoided....

[I]t is not enough that the district court considerthe parties’ nonfrivolous arguments, it also must explain on the record its reasons for accepting or rejecting such arguments.  Requiring district courts to articulate their reasoning on the record is critical, otherwise the transcript would be devoid of any evidence that the district court in fact considered the parties’ arguments, let alone ruled on those issues.  Absent such a public statement, this Court would be forced to make inferences and guess at what arguments and sentencing factors the district court actually considered when determining a defendant’s sentence, something we repeatedly have expressed disdain for doing.

Some related posts:

• "Explaining Sentences"

• Notable new article on "Appellate Review of Sentence Explanations"

Second Circuit panel advocates "more flexible approach" to tough guideline determinations

In an intriguing and potentially very important little ruling today, a (two-judge) panel of the Second Circuit in US v. Dharfir, No. 05-5965 (2d Cir. Aug. 18, 2009) (available here), endorses and seems to urge district judges to adopt a "more flexible approach" to the guidelines when sentencing in cases involving "ambiguous circumstances."  Because of its potential impact in lots of settings, Dharfir should be read in full by folks both inside and outside the Second Circuit.  Here is some of the key language:

Given these ambiguities and the contradictory positions the government took at trial and at sentencing, we believe the judge overlooked another permissible approach under our post-Booker jurisprudence.  In United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), we stated that “precise calculation of the applicable Guidelines range may not be necessary [in making a sentencing determination]. . . . [S]ituations may arise where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies.”  “This leeway,” we wrote, “should be useful to sentencing judges in some cases to avoid the need to resolve all of the factual issues necessary to make precise determinations of some complicated matters, for example, determination of monetary loss.” Id; see also United States v. Cavera, 550 F.3d 180, 190 4 (2d Cir. 2008) (en banc) (stating that omission of the Guidelines calculation may sometimes be justified, citing Crosby); see also Cavera, 550 F.3d at 200 n.4 (Raggi, J., concurring) (explicitly reaffirming Crosby’s approach in this regard).

The factual ambiguities in this case present just these circumstances.  The district court was correct that choosing § 2S1.1(a)(2) rather than § 2S1.1(a)(1) would avoid the odd result that Dhafir would receive a lower sentence if the laundered money was “criminally-derived” than if it was “legally-obtained.”  But post-Booker, there was no need for the district judge to pigeonhole the case into § 2S1.1(a)(2) to avoid an illogical result and run the risk of setting a bad precedent; indeed, there was no need for him to choose between the two at all.  We reiterate here that the district court is not bound in ambiguous circumstances such as these to choose one Guidelines range in particular, and is free to take the more flexible – and often, more direct – approach of arriving at a more appropriate sentence outside the Guidelines.  In light of Booker, the judge could simply look at all of the facts, take both suggestions into account, consider the § 3553(a) factors, and come up with a “hybrid” approach if he so chose.

We do not hold that the district court erred in determining that the appropriate Guidelines provision was § 2S1.1(a)(2) or that the sentence was unreasonable; we remand only to permit the district court to consider whether a different sentence would result from the application of this more flexible approach.

As a general matter, I always thought the Crosby court was wise to permit the occassional guideline-calculation dodge as part of proper post-Booker sentencing.  And yet, I am not sure such a dodge is fully consistent with the post-Booker Supreme Court rulings in Rita and Gall, though obviously this Second Circuit panel still thinks "this more flexible approach" is a permissible (and perhaps even a prefered) way to deal with tough guideline disputes.  I'd be very interested to hear when federal sentencing litigants think.

Eleventh Circuit to review en banc below-guideline sentence in "utterly gruesome" sex offense case

As detailed in this post, in late March an Eleventh Circuit panel handed down a notable opinion in US v. Irey, No. 08-10997 (11th Cir. Mar 30, 2009) (available here), which affirmed a below-guideline sentence of 210 months for a 50-year-old offender convicted of sex offenses that one judge described as involving "utterly gruesome details."  As announced in this order issued today, the full Eleventh Circuit has now decided to re-consider the reasonableness of the sentence in this case en banc.

Remarkable coda at end of First Circuit opinion affirming child porn sentence

The First Circuit yesterday in US v. Stone, No. 08-1459 (1st Cir. Aug. 5, 2009) (available here), affirmed a long within-guideline sentence for a first offender in a child porn case.  The opinion talks through a number of sentencing issues, though what make the ruling  blog-worthy is this remarkabl final paragraph in Stone:

We add a coda.  Sentencing is primarily the prerogative of the district court, and the sentence imposed in this case is within permissible limits.  There is no error of law and no abuse of discretion.  That said — and mindful that we have faithfully applied the applicable standards of review — we wish to express our view that the sentencing guidelines at issue are in our judgment harsher than necessary.  As described in the body of this opinion, first-offender sentences of this duration are usually reserved for crimes of violence and the like. Were we collectively sitting as the district court, we would have used our Kimbrough power to impose a somewhat lower sentence.

This coda — which strikes me as truly unprecedented — surely provides little solace to the defendant whose long prison sentence was affirmed.  But it should provide inspiration and assistance to practitioners and judges within the circuit who might otherwise worry about how the First Circuit would view significant downward variances from the child porn guidelines in other cases.

 Some related federal child porn sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• Effective review of federal uptick in child-porn prosecutions
• Another puzzling report on federal child porn sentence
• Notable long child porn sentence upheld by split Sixth Circuit