Monday, August 17, 2015

"Does the Calculation Matter? The Federal Sentencing Guidelines and the Doctrine of Alternate Variance Sentences"

The title of this post is the title of this notable federal sentencing paper available via SSRN authored by James Harlow. Here is the abstract:

The Federal Sentencing Guidelines play a central role in the sentencing of federal criminal defendants.  A decade ago, in United States v. Booker, the Supreme Court undercut the original purpose for the Guidelines — to bring binding structure to a previously discretionary sentencing scheme — by declaring that the Guidelines were advisory only.

Even though advisory, the Guidelines remain at the procedural heart of the sentencing process and provide “the framework for sentencing.”  All sentencing proceedings in the district court begin with the proper calculation of the advisory Guidelines range. Similarly, on review, the courts of appeals initially determine whether the sentencing process was free of procedural errors, including whether the advisory Guidelines range was correctly calculated.

However, the Guidelines are no longer the beginning and end of a sentencing hearing. A defendant’s advisory Guidelines range is but one of several important factors enumerated in 18 U.S.C. § 3553(a) that a sentencing court must consider.  In a case when other, non-Guidelines considerations clearly steered the sentencing court’s discretion, should it matter whether the advisory Guidelines range was correctly calculated in the first place?

This Article examines the Fourth Circuit’s emergent and evolving doctrine of alternate variance sentences.  Under this doctrine, a sentence will not be vacated even if the sentencing court may have erred when calculating the advisory Guidelines range.  If it is clear from the record that an advisory Guidelines issue did not influence the ultimate sentence, the appellate panel will assume any Guidelines errors are harmless and proceed to evaluate whether the sentence is substantively reasonable.  The doctrine's increasingly frequent application has a significant impact on all actors in the federal criminal sentencing process — prosecutors, defense counsel, defendants, and judges. Moreover, the doctrine implicates important debates about the meaning and effect of the Guidelines after Booker, the distribution of power between district and appellate judges in sentencing, and judicial efficiency.

August 17, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0)

Sunday, July 12, 2015

Seventh Circuit panel affirms as reasonable probation sentence for tax dodging Beanie Babies billionaire

Late Friday, a Seventh Circuit panel rejected the government's claim that a probation sentence given to a high-profile tax cheat was unreasonable.  The lengthy opinion in US v. Warner, No. 14 -1330 (7th Cir. July 10, 2015) (available here), gets started this way:

Defendant H. Ty Warner, the billionaire creator of Beanie Babies, evaded $5.6 million in U.S. taxes by hiding assets in a Swiss bank account.  He pled guilty to one count of tax evasion, made full restitution, and paid a $53.6 million civil penalty.  The Sentencing Guidelines provided a recommended 46- to 57-month term of imprisonment, but the district judge gave Warner a more lenient sentence: two years’ probation with community service, plus a $100,000 fine and costs.  The government claims his sentence is unreasonable because it does not include a term of incarceration.  

In a typical case, we might agree.  But this is not a typical case.  The district judge found Warner’s record of charity and benevolence “overwhelming.”  Indeed, the judge remarked that Warner’s conduct was unprecedented when viewed through the judge’s more-than-three decades on the bench.  In the district court’s opinion, this and other mitigating factors — including the uncharacteristic nature of Warner’s crime, his attempt to disclose his account, his payment of a penalty ten times the size of the tax loss, and the government’s own request for a sentence well below the guidelines range — justified leniency.  District courts enjoy broad discretion to fashion an appropriate, individualized sentence in light of the factors in 18 U.S.C. § 3553(a).  The court here did not abuse its discretion.  Rather, it fully explained and supported its decision and reached an outcome that is reasonable under the unique circumstances of this case.  We therefore affirm Warner’s sentence.

Though the panel stresses unique factors applying only in this case to support its reasonableness ruling, white-collar practitioners (especially those in the Seventh Circuit) will find a lot of broader interest and potential value in this opinion.

Prior related posts:

July 12, 2015 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Friday, June 19, 2015

Split Eleventh Circuit panel discusses reasonableness review at great length

More than a full decade after the Supreme Court's Booker decision, federal circuit courts and judges continue to struggle with their post-Booker responsibility to review sentences for reasonableness.  That struggle is on full display today in the lengthy Eleventh Circuit panel ruling in US v. Rosales-Bruno, No. 12-15089 (11th Cir. June 19, 2015) (available here). The start of Chief Judge Carnes' opinion for the Court provide a crisp outline of the "sole issue" before the appellate court:

This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326.  In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir. 2012) (Rosales-Bruno I).  That error had increased Rosales-Bruno’s advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment.

On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment.  After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term.  That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment.  The sole issue in this appeal is whether that sentence is substantively unreasonable.

Chief Judge Carnes thereafter has a 50-page explanation for why he thinks the sentence is substantively reasonable.  In turn, Judge Wilson need 40 additional pages to provide a contrary view on the reasonableness of this sentence.  The dissent starts this way:

For illegally reentering the United States, a crime with no statutory minimum and a base Guidelines range of 0–6 months, Rosales-Bruno was sentenced to more than 7 years in prison. In imposing this sentence, the district court more than tripled the upper end of the applicable Guidelines range.  The justifications supporting this major variance are insufficient, and this sentence — the product of a clear error in judgment — is “greater than necessary[] to comply with the purposes set forth” in 18 U.S.C. § 3553.  See United States v. Irey, 612 F.3d 1160, 1187, 1189 (11th Cir. 2010) (en banc). Therefore, I dissent.

June 19, 2015 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Saturday, June 13, 2015

Citing much research and data, Judge Posner rails against "the problem of the elderly prisoner"

The Seventh Circuit this past week issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner's lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create.  I would urge all federal sentencing fans to read Judge Posner's work in Presley in full, and these passages help highlight why (even with lots of Judge Posner's great cites and data left out):

The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced... [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69.  And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee....

The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations.  What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released.  Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would....

The sentencing judge in this case ... gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age.  Sentencing judges need to consider the phenomenon of aging out of risky occupations.  Violent crime, which can include trafficking in heroin, is generally a young man’s game.  Elderly people tend to be cautious, often indeed timid, and averse to physical danger.  Violent crime is far less common among persons over 40, let alone over 60, than among younger persons....

There needs finally to be considered the cost of imprisonment to the government, which is not trivial.  The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs.  If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste....

We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose.  There is no indication that these considerations received any attention in this case.  We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers.  Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate....

There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings.  But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released).  A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.

June 13, 2015 in Booker in the Circuits, Drug Offense Sentencing, Examples of "over-punishment", Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8)

Monday, May 18, 2015

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, April 30, 2015

Ninth Circuit finds procedural error in teen's 30-month federal sentence for laser beam prank

A Ninth Circuit panel today handed down a notable sentencing opinion in US v Gardenhire, No. 13-50125 (9th Cir. April 30, 2015) (available here).  This unofficial summary of the ruling provided by court staff highlights why federal sentencing fans will want to check out the full ruling:

The panel vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A, and remanded for resentencing, in a case in which the district court applied an enhancement for reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).

The panel held that the district court erred in concluding that the defendant acted recklessly when he aimed his laser beam at the aircraft, where the record is devoid of evidence, let alone clear and convincing evidence, that the defendant was aware of the risk created by his conduct.

The panel could not say that the error was harmless, and instructed that the matter be assigned to a different district judge on remand.  The panel observed that the district court’s statements show its commitment to the idea that, regardless of the evidence presented, the defendant’s conduct was reckless, and that it would likely impose the same sentence on remand, regardless of this court’s rulings.

In light of the extremely steep sentencing regime dictated by the recklessness enhancement for wide-ranging conduct covered by § 2A5.2, the panel wrote that it is particularly important that the government is held to its burden of proof and that the enhancements are supported by clear and convincing evidence.

April 30, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, February 18, 2015

Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable

Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago.  And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars.  More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way: 

The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”).  On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served.  The district court also lengthened the period of supervised release and imposed additional conditions of release.  The government’s second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing. 

Prior related posts concerning similar case:

February 18, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, February 10, 2015

Two notable Second Circuit opinions upholding aggravated sentencing decisions

A helpful reader alerted me to two Second Circuit sentencing decisions handed down this morning. Though neither seems all that ground-breaking, both still strike me a blogworthy.  Here are links to the rulings along with an excerpt from the start of the opinions:

United States v. Morrison, No. 14-485 (2d Cir. Feb. 10, 2015) (available here):

Defendant-Appellant Shane Morrison appeals from a February 6, 2014 judgment of the United States District Court for the Eastern District of New York (Wexler, J.) sentencing Morrison to, inter alia, eighteen months’ imprisonment following his guilty plea to one count of conspiracy to distribute cocaine.  Morrison argues that 18 U.S.C. § 3153(c) bars the district court’s reliance on positive results on drug tests administered by the Pretrial Services Agency (“pretrial services”) to enhance his term of imprisonment.  Because the district court did not violate § 3153(c) by relying on the information from pretrial services in determining Morrison’s sentence, we affirm the judgment.

United States v. Cramer, No. 14-761 (2d Cir. Feb. 10, 2015) (available here):

Defendant Thomas Cramer appeals from a judgment of conviction and sentence of 360 months’ imprisonment and 15 years of supervised release, entered on February 21, 2014 by the U.S. District Court for the Western District of New York (Geraci, J.), following his guilty plea to four counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). On appeal, Cramer argues that his sentence was procedurally unreasonable because he received a two-point enhancement under U.S. Sentencing Guidelines Manual  section 2G1.3(b)(3) for use of a computer in the commission of the crimes.  This case presents two issues of first impression in this Circuit: First, does the computer-use enhancement under Guidelines subsection 2G1.3(b)(3)(A) apply to a defendant who begins communicating and establishing a relationship with a minor by computer, but then entices the victim through other modes of communication? Second, is Application Note 4 to Guidelines section 2G1.3 plainly inconsistent with subsection 2G1.3(b)(3)(B) and therefore inapplicable to that subsection? We answer both questions in the affirmative.

February 10, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, December 08, 2014

Seventh Circuit affirms, over government complaints, way-below-guideline sentence for child porn producer

Regular readers are familiar with my tendency to lament the failure of circuit courts to scrutinize rigorously post-Booker claims by defendants that within or above-guideline sentences are unreasonably high.  But a recent opinion from a Seventh Circuit panel in US v. Price, No. 12-1630 (7th Cir. Dec. 5, 2014) (available here), prompts me to note that there can be occassions when circuit courts seem a bit too willing to approve way-below-guideline sentences that the government asserts are unreasonably low.  Here are the basics of the defendant's crime and sentencing in Price:

Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12.  He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country.  Price also kept a large stash of child pornography depicting other children, which he stored on two computers.

For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  A jury convicted him as charged.

Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children.  He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.

Here is the heart of the Seventh Circuit panel's rejection of the government's appeal of this sentence (with my emphasis added):

The government argues in its cross-appeal that Price’s 18-year sentence — less than half the 40-year guidelines sentence — is substantively unreasonable....

The district judge did exactly what she was supposed to do under the advisory guidelines regime. She correctly calculated the guidelines sentence and exhaustively considered the § 3553(a) factors, giving particular emphasis to the aggravated facts of this case. But she also exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses, as she is permitted to do. She expressed substantial agreement with the Second Circuit’s opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which explained that the guidelines in this area are not the product of the Sentencing Commission’s empirical expertise, but rather reflect directions from Congress to punish these crimes more harshly, id. at 182.  Dorvee also notes that § 2G2.2, the guideline for possession of child pornography, calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous. Id. at 186–87.

The judge acknowledged that most of the criticism of the child-pornography guidelines is aimed at § 2G2.2, the guideline for the possession offense. But she concluded that § 2G2.1, the guideline for production of child pornography, “presents some of the same problems.” Both guidelines, she said, are vulnerable to the critique that they are not the product of the Sentencing Commission’s empirical study and independent policy judgment. She also noted that both guidelines call for enhancements that apply in nearly every case, exerting virtually automatic upward pressure on sentences and failing to separate less dangerous offenders from those who are more dangerous....

The government objects that Price’s 18-year sentence is only three years above the 15-year statutory minimum. See § 2251(e). Canvassing the aggravated facts of the case and Price’s history of sexually abusing children, the government argues that the sentence strays too far from the 40-year guidelines sentence and is simply too low to be considered substantively reasonable. “At the very least,” the government maintains, the sentences for the production and possession counts should be consecutive, as the guidelines recommend. See § 5G1.2(d).

Price’s crimes are indeed deplorable, and a sentence of 18 years obviously represents a substantial variance from the recommended 40-year term. But there is room for policy-based disagreement with the guidelines even to this extent. The government has not established that the sentence exceeds the boundaries of reasoned discretion. More specifically, the government has not established that an 18-year sentence for Price’s crimes — even in light of his contemptible history and unrepentant nature — is so low as to be substantively unreasonable.

I have been one of a number of academic critics of the severity of the federal child pornography sentencing guidelines, but that criticism has been largely based on the fact that these guidelines often call for decade-long sentences even for those offenders who did no more than download illegal pictures and thereafter showed remorse, pleaded guilty and sought treatment for their criminal activity. In contrast, the defendant in this Seventh Circuit case seemingly has a long history of child rape to go along with producing and possessing child pornography, and the Seventh Circuit recognizes he has both he has an "contemptible history and unrepentant nature."

Though perhaps 18-year in prison is still plenty long enough for this sexual predator (as the district judge apparently concluded), I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable in light of all of the 3553(a) factors. Especially for a defendant who has already shown himself to be a significant danger, "close enough for government work" is not all that satisfying an approach to reasonableness review in my view.

December 8, 2014 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, December 04, 2014

Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable

Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here).  Here are excerpts from the start, middle and end of the lengthy opinion:

In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense.  The district court sentenced Howard to a term of life imprisonment plus 60 months....  For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....

The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure.  Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....

By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....

The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence.  It stated the need for individual and general deterrence, incapacitation, and just punishment.   There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina.  The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment.  Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).

December 4, 2014 in Booker in the Circuits, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Wednesday, October 22, 2014

Seventh Circuit affirms stat-max 90-year sentence for child molester despite ugly childhood

An interesting Seventh Circuit sentencing opinion yesterday in US v. Horton, No. 14-1559 (7th Cir. 2014) (available here), highlights that a horrible criminal offense can (and often likely) will lead to an extremely long prison sentence even when a defendant can presenting evidence of an unusual (and seemingly mitigating) personal history.  Here are the basics of the defendant's crime and his personal history as discussed in the Horton opinion:    

During a 9-month period while Horton was employed at Three Tigers Karate in Belleville, Illinois, Horton created 37 videos depicting himself engaging in sexually explicit conduct with three of his male students (ages 6,7,and 10),and another video showing himself trying to convince another student (age 7) to display his genitals. Horton created the videos in various places: his home, the karate studio, a public park, and the San Antonio home of one the victims....

During his formative years, Horton recounted to [psychologist] Dr. Cueno, his mother worked as a stripper and escort and would leave pornographic magazines, sex toys, and drug paraphernalia strewn around the house. His father was as an alcoholic and drug abuser. Horton watched a XX-rated movie when he was seven and acted out what he saw in the movie by having oral sex with other children. In first grade he was forced to perform oral sex on a classmate, and he began having consensual intercourse when he was 12. According to Dr. Cueno, the “roots for [Horton’s] difficulties can be traced back to a childhood where he was sexualized at an early age, had little stability, and was raised by a drug abusing, stripper/escort mother who provided him with little, if any stability.”

And here is how the Horton court explains its conclusion that a statutory maximum sentence of 90 years in prison was not substantively unreasonable in light of these facts and factors:

Horton has not demonstrated that his de facto life sentence is unreasonable. Although a sentence that is effectively for life “is not to be ordered lightly,” we have upheld such sentences where the sentencing judge recognized “the likelihood of a defendant’s death in prison, but concluded that other factors warranted the particular sentence.” United States v. Vallar, 635 F.3d271,280 (7th Cir. 2011)....  Here,the district court appropriately weighed Horton’s age and difficult upbringing,see 18 U.S.C. § 3553(a)(1), against the “extremely serious nature of this crime” and the vulnerability of the victims, see id. § 3553(a)(1), (a)(2)(A); New York v. Ferber, 458 U.S. 747, 758–60 & n.9–10 (1982), the need to protect the public from a dangerous child molester, see 18 U.S.C. § 3553(a)(2)(A),(C), and the availability of sex-offender treatment in prison, see id. § 3553(a)(2)(D). And though Horton would have preferred the district court to have given more weight to his dysfunctional childhood, the court had the discretion to assign it less weight than the other § 3553(a) factors.

October 22, 2014 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Monday, September 22, 2014

Sixth Circuit reverses Ponzi scheme sentence because loss calculation failed to credit monies paid out

This morning a Sixth Circuit panel has handed down a notable ruling about loss calculations in the federal sentencing of a Ponzi schemer.  Here is how the panel opinion in US v. Snelling, No. 12-4288 (6th Cir. Sept. 22, 2014) (available here) starts and concludes:

Defendant-Appellant Jasen Snelling appeals a 131-month prison sentence imposed pursuant to a plea agreement.  In the agreement, Snelling admitted to charges of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion for his part in an investment scheme that defrauded investors of nearly $9 million.  Snelling challenges the sentence based on an allegedly faulty Guidelines-range calculation that employed a loss figure that did not take into account the sums paid back to his Ponzi scheme’s investors in the course of the fraud.

For the reasons below, we vacate the sentence of the district court and remand the case for resentencing.....

Admittedly, there is intuitive appeal to the government’s argument that Snelling should not be allowed to benefit from the payments he made “not to mitigate the losses suffered . . . but to create the means to convince new victim-investors to pay him even more money.”  We need not reflect, however, on whether it is unseemly for Snelling to benefit from the money he paid out to investors in an effort to perpetuate his Ponzi scheme. Undoubtedly, it is.  The only question we must consider is whether the district court correctly applied the Guidelines and whether it used a correct Guidelines range.

An accurately calculated Guidelines range is necessary for a procedurally reasonable sentence — any error in calculating the Guidelines range cannot survive review.  See Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (“[W]e must ensure that the district court correctly calculated the applicable Guidelines range which are the starting point and initial benchmark of its sentencing analysis.”) (internal alterations and quotation marks omitted).  As appealing as the government’s argument may be, it does not comport with the text of the Guidelines. Accordingly, the district court was in error when it declined to reduce the loss figure by the value of the payments made by Snelling to his investor victims in perpetuating his Ponzi scheme.

September 22, 2014 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Friday, August 29, 2014

Based on additional 3553(a) justifications, Eighth Circuit affirms "profound downward variance to a sentence of probation" in multi-million dollar fraud

Especially in the years right after after Booker, the Eighth Circuit garnered a (seemingly well-deserved) reputation as one of the circuits most likely to reverse below-guideline sentences as too lenient.  But after a number of those reversals were thereafter reversed by the Supreme Court in cases like Gall and Pepper, it seemed the Eighth Circuit became somewhat more willing to uphold below-guideline sentences, and today in US v. Cole, No. 11-1232 (8th Cir. Aug. 29, 2014) (available here), a unanimous panel has upheld a probation sentence in a high-loss, white-collar case that in the past I would expect to see reversed based on the government's appeal.

The Cole decision from the Eighth Circuit is relatively short, and it is today's must-read for any and all white-collar practitioners.   Here are snippets that help highlight why:

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud.  The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment.  The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions.  We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance.  We remanded the case to afford the district court a chance to supply an adequate explanation....

In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.

On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.”  In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1).  The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud.  See 18 U.S.C. § 3553(a)(7).

The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income.  However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied.  We find no error in the district court’s reference to these events....

While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.”  Feemster, 572 F.3d at 464 (quotation omitted).  For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes.  We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.

This ruling strikes me a one-in-a-million outcome: I cannot recall another case (out of the nearly million cases that have been sentenced in the federal system since Booker) in which the defendant faced a guideline range of 11 to 14 years and received a sentence of probation.  This outcome seems all that much more remarkable given that this huge (and now declared reasonable) variance was in a case in which the defendant did not plead guilty or provide substantial assistance to the government and involved "one of the largest corporate frauds in Minnesota history and was also a significant tax fraud."

Because this Cole case seems remarkable in many ways, and because it likely will be (and should be) cited by nearly every white-collar offender facing federal sentencing in the months and years ahead, it would not shock me if the Justice Department seriously considers pursuing an appeal up to the Supreme Court. 

August 29, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, August 28, 2014

At third federal sentencing, elderly child porn defendant gets one year in prison and lawyer pledges SCOTUS appeal

Regular readers and hard-core federal sentencing fans are familiar with the long-running dispute over the sentencing of child porn downloader Richard Bistline.  The latest chapter of this saga, but apparently not the last, unfolded in federal district court yesterday as reported in this Columbus Dispatch article, headlined "Child-porn possessor finally gets harsher sentence: 1 year in prison." Here are excerpts:

A Knox County man at the center of a fight about prison sentences for people convicted of possessing child pornography won’t be out of the spotlight anytime soon.  Richard Bistline, 71, was sentenced yesterday to a year and a day in federal prison by U.S. District Judge George C. Smith, who also ordered 10 years of supervised release.  Bistline also must register as a sex offender.

Bistline’s attorney, Jonathan T. Tyack, immediately said he will appeal the case in the hope that it eventually will be considered by the U.S. Supreme Court....

It was the third time that Bistline, of Mount Vernon, had been sentenced for his 2009 conviction on one count of possession of child pornography.  Sentencing guidelines set Bistline’s prison term at five to six years, although judges have discretion.

His case pingponged from district court to the 6th U.S. Circuit Court of Appeals twice after federal Judge James Graham refused to sentence Bistline to lengthy prison time. Instead, he sentenced him in 2010 to one day in prison, 30 days of home confinement and 10 years of supervised probation.

Assistant U.S. Attorney Deborah Solove appealed, arguing that prison time was needed, and the 6th Circuit ordered Graham to resentence Bistline.  In 2013, Graham ordered the same sentence with three years of home confinement. Solove appealed again, and the 6th Circuit ruled that the sentence still was not adequate.

Graham was removed from the case, paving the way for Smith’s sentence yesterday.  “The 6th Circuit has clearly spoken and is requiring me to impose a custodial sentence,” Smith said.  “I hope my colleagues and the sentencing commission continue to shed light on these very important policies.”  Smith then stayed the sentence and said Bistline could remain out on bond until his appeal is decided.

Tyack had asked Smith to sentence his client to one day in prison and 10 years of supervised probation.  “At the end of the day, the Court of Appeals is attempting to dictate to this court what sentence it should impose,” Tyack said. “It’s inappropriate.”

Tyack said he hopes the Supreme Court will arrive at that conclusion in Bistline’s case. “He’s caught up in a legal fight that will ultimately define the boundaries between the court of appeals and district court,” Tyack said.

Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer revealed 305 images and 56 videos of children posing naked or involved in sex acts with adults. Solove said Bistline sought out child pornography for more than a year for sexual gratification. She asked for a five-year prison sentence.

Tyack said in court documents in May that “a 71-year-old inmate with Mr. Bistline’s health problems is likely to suffer greater punishment than the average inmate because the Bureau of Prisons often fails to provide adequate or even necessary medical treatment.” Bistline has a pacemaker, high blood pressure and hearing loss, among other medical problems.

Graham has been outspoken about Bistline’s case and about the federal sentencing guidelines for defendants who have been charged with possession of child pornography. He wrote a lengthy law-review article about the case that was published in December, and he has spoken about the guidelines at court hearings for other defendants charged with child-porn possession.

August 28, 2014 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, August 27, 2014

"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"

The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN.  Here is the abstract:

For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences.  The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.

Part I describes the previous rebellions.  Part II introduces the current rebellion.  Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics.  Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments.  Part III concludes.

August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, August 14, 2014

Eighth Circuit reverses 20-month sentence for police abuse and perjury as substantively unreasonable

In the post-Booker sentencing world, reversal of sentences on appeal for being substantively unreasonable are quite rare. But this week has brought two such reversal: as noted in this prior post, an Eleventh Circuit panel on Tuesday declared a probation sentence in a public corruption case to be substantively unreasonable, and today an Eighth Circuit panel declared a 20-month sentence in a police abuse case to be substantively unreasonable in US v. Dautovic, No. 13-1145 (8th Cir. Aug 14, 2014) (available here). Here is the heart of the unanimous panel ruling:

We conclude that the district court imposed a substantively unreasonable sentence in this case.  Dautovic’s offense conduct was egregious.  A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused themto be charged with crimes.  At Bonds and Evans’s trial, where they were found innocent, Dautovic committed perjury.  Dautovic maintained throughout his trial that his actions in the early morning hours of September 13 were reasonable and that his police report was sloppy, not intentionally falsified.  A jury, however, found him guilty beyond a reasonable doubt of using excessive force and obstructing justice, and the district court’s findings atsentencing were consistent with the jury’s verdict.  The district court found that Dautovic showed no remorse and that his experience in Bosnia did not relate to his beating of Bonds.

The district court, nonetheless, varied downward from the bottom of the Guidelines range by 115 months.  The district court found that Dautovic overreacted during the arrest and beating of Bonds.  It disagreed with the Guidelines range because it believed that the color-of-law enhancement added too many months to the sentencing range and because the sentencing range exceeded the statutory maximum term of imprisonment for the excessive force count.  It found that a Guidelines-range sentence was inappropriate in light of the fact that Dautovic was a first time offender who had done good things for his community and family.  The district court acted within its discretion when it decided to vary downward based on Dautovic’s history and characteristics and on its policy disagreement with the Guidelines, but these considerations do not justify the imposition of a 20-month sentence in this case.

The district court’s justification for the variance fails to support the degree of the variance in this case.  To the extent the district court tried to avoid unwarranted sentence disparities by basing Dautovic’s sentence on the average sentence imposed for civil rights violations, we are not convinced that the U.S. Sentencing Commission surveyed defendants whose records and offense conduct were similar to Dautovic’s....  Dautovic’s offense conduct involved aggravating circumstances, including the use of a dangerous weapon, the physical restraint of Bonds during the course of the beating, and the infliction of serious injury.  Moreover, acting under the color of law, Dautovic tried to conceal his wrongdoing by falsifying a police report and lying under oath.

When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient.  The district court erred in weighing the § 3553(a) factors and abused its discretion in varying downward to the extent that it did.

August 14, 2014 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thursday, July 31, 2014

Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant

The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here).  Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely.  In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.

Here is how the Musgrave opinion starts and finishes:

A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud.  The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment.  On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable.  For the following reasons, we vacate the district court’s sentence and remand for resentencing....

A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2).  In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)).  The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive.  Peppel, 707 F.3d at 636.  A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012).  Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment.  See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.

Impermissible considerations permeated the district court’s justification for Musgrave’s sentence.  In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life.  “[N]one of these things are [his] sentence.  Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment.  Bistline, 665 F.3d at 765.  On remand, the district court must sentence Musgrave without considering these factors....

In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617.  “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.

Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines.  See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be).  This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes.  Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617.  More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context.  Id.  Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence.  Id.; Camiscione, 591 F.3d at 834.  The district court failed to do so here.

Musgrave must be resentenced.  The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.”  Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.

I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.

July 31, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack

Thursday, July 17, 2014

Divided en banc Third Circuit announces new approach to preserving procedural sentencing error claims

Yesterday the Third Circuit issued a relatively short en banc ruling in US v. Flores-Mejia, No. 12-3149 (3d Cir. July 16, 2014) (available here), which reverses its previously-articulated approach to how objections to claimed procedural sentencing error must be preserved.  Here is how the majority opinion, per Judge Roth, gets started:

Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence.  At the sentencing hearing,  Flores-Mejia made a mitigation argument, based on his cooperation with the government.  Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument.  The government counters that Flores-Mejia’s failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review.

We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record.  We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), differs from our holding today and is superseded. 

A group of five Third Circuit judges signed on to a spirited dissent authored by Judge Greenaway, and here is how it gets started:

In our system of jurisprudence, we examine our principle, consider the facts and the law and make decisions.  The venerable principle of stare decisis requires reexamination not when we come up with a better mouse trap but when there is a principled basis for change.  See Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (“The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . . At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.”). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on both sides.”  Morrow v. Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J., concurring).  

Our Court, in a unanimous precedential opinion, adopted a procedure for district courts to follow at sentencing a scant six years ago.  See United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008).  Now, without intervening Supreme Court precedent and without a majority of our sister courts, we not only reexamine but indeed create a new procedure that flies in the face of Federal Rule of Criminal Procedure 51, with no compulsion or mandate to do so.

In its attempt to promote judicial economy, the majority ignores the plain language of Rule 51, misreads the state of the law of our sister circuits, and invokes a fundamental change to our sentencing procedures that is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.  For this reason, I respectfully dissent.

July 17, 2014 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, July 11, 2014

Second Circuit finds unreasonable probation sentence based on "cost of incarceration"

A helpful reader made sure I did not miss while on the road an interesting Second Circuit opinion in US v. Park, No. 13‐4142 (2d Cir. July 9, 2014) (available here), concerning reasonableness review and a sentenced reduced based on the cost of imprisonment.  Here is the heart of one part of the per curiam panel decision:

After a review of the record, we conclude that the District Court committed procedural error in imposing a term of probation in lieu of imprisonment for two reasons.  First, the only sentencing factor the District Court deemed relevant was the cost of incarceration to the government and the economic problems allegedly caused by the government shut‐down.  As the Court clearly announced, “I am not going to put him in jail only because of the economic plight that we are facing today.” After emphasizing that its sentencing decision was based solely upon this consideration, the Court then rebuffed defense counsel’s suggestion to “supplement the record,” asserting, “[i]f we have to resentence him, we will later.”  The Court also stated that if the Court of Appeals were to reverse, it would “consider all of these factors” at resentencing, clearly indicating that it did not consider the relevant factors in the first instance.  The Court therefore committed procedural error by refusing to consider the § 3553(a) factors in deciding what is an appropriate sentence.

Second, and equally problematic, is that the cost of incarceration to the government—the Court’s sole justification for imposing a term of probation rather than incarceration — is not a relevant sentencing factor under the applicable statutes.  We agree with the Eighth Circuit that, based on the plain language of § 3553(a), no sentencing factor can reasonably be read to encompass the cost of incarceration.  Nor does the statute permit the sentencing court to balance the cost of incarceration against the sentencing goals enumerated in § 3553(a).

Park is a must-read for post-Booker sentencing fans because it includes lots of important phrases about both procedural and substantive reasonableness review.  The Park opinion also talks up the importance of deterrence in one white-collar sentencing, noting "general  deterrence  occupies  an  especially  important role in criminal tax offenses, as criminal tax prosecutions  are relatively rare."

July 11, 2014 in Booker in district courts, Booker in the Circuits, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

Tuesday, July 08, 2014

Notable Third Circuit discussion of revocation of supervised release standards

Hard-core federal sentencing fans eager for some extended summer beach reading should check out today's Third Circuit panel decision in US v. Thornhill, No. 13-2876 (3d Cir. July 8, 2014) (available here). The key facts of the case alone take the Third Circuit more than 15 pages to recite, but the start of the majority opinion efficiently spotlights the legal issue that thereafter gets resolved:

In 1984, Congress enacted the Sentencing Reform Act, a measure which profoundly “revise[d] the old sentencing process.” Mistretta v. United States, 488 U.S. 361, 367 (1989).  One of the reforms effected by the Act was the elimination of special parole and the establishment of a “new system of supervised release.”  Gozlon-Peretz v. United States, 498 U.S. 395, 397 (1991).  The “new system” was codified in 18 U.S.C. § 3583, and included a provision at subsection (g) which mandates the revocation of supervised release and the imposition of a term of imprisonment under certain enumerated circumstances. 18 U.S.C. § 3583(g).

The question we consider is: once § 3583(g)’s mandatory revocation provision is triggered, what guides a district court’s exercise of discretion in determining the length of the defendant’s term of imprisonment?   We conclude that this exercise of discretion is guided by the sentencing factors set forth in 18 U.S.C. § 3553(a).

I do not think there is much groundbreaking in the legal analysis in Thornhill, though a partial dissent by Judge Rendell adds intrigue to the ruling. Here are key paragraphs from the start and ends of the six-page dissent:

I part ways with the majority’s disposition, however, because I would remand so that the District Court can meaningfully consider those sentencing factors in connection with the mandatory imprisonment of Ms. Thornhill upon revocation of her supervised release. The length of her term of imprisonment is squarely at issue, and the § 3553(a) factors should be weighed. This is especially true because the District Court varied upward in giving Ms. Thornhill a sentence of three years....

We simply cannot know how meaningful consideration of the § 3553(a) factors, which we now require, would have affected Ms. Thornhill’s sentence. Speculation on our part as to what the Court might have been considering, and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above-guidelines sentence. In short, Ms. Thornhill deserves to have the rule announced today applied to her case. I respectfully dissent from the majority’s disposition.

July 8, 2014 in Booker in the Circuits, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, June 12, 2014

Sixth Circuit declares unreasonable way-above-guideline sentence for repeat bank robber

It remains rare for federal defendants to prevail on reasonableness appeals absent a mis-calculation of the guidelines, and thus today's Sixth Circuit panel decision in US v. Payton, No. 13-1242 (6th Cir. June 12, 2014) (available here) is a noteworthy ruling for this reason alone. But the decision's reference and incorporation of recidivism data and brain science makes the ruling extra interesting. Here are some excerpts from the start and heart of the opinion for context:

This is a direct appeal from Arthur Payton’s sentence to serve 45 years in prison for organizing a series of bank robberies in Michigan.  Payton argues that his sentence is unreasonable.  We agree, vacate his sentence, and remand....

Payton turned 46 years old before his sentencing hearing.  Taking into account Payton’s criminal record, the seriousness of his crime, and penchant for recidivism, the presentence report recommended a sentence within the Guidelines range of 210 to 262 months, or between 17 and a half to 22 years.... The government urged the sentencing court to impose a more serious sentence of “at least” 300 months, or 25 years.  Payton’s counsel requested a sentence within the Guidelines range, arguing that even with a Guidelines sentence Payton would be released as an elderly man — somewhere between 63 to 68 years old — who would present little threat to the public.

After hearing each side, the judge sentenced Payton to 540 months, or 45 years in prison. The judge discussed a number of the sentencing factors listed in 18 U.S.C. § 3553(a), focusing on Payton’s brazen recidivism and the threat he posed to the public. The court concluded that the 45 year sentence was “the minimum sentence” that was “reasonable and sufficient but not greater than necessary to accomplish the goals of sentencing for this defendant.”...

Payton’s 45 year sentence is a “major departure,” “unusually harsh,” and one that demands a “significant explanation.”  Gall, 552 U.S. at 51.  A sentence that more than doubles the Guidelines recommendation, stacks twenty years on to the government’s request, and keeps the defendant in prison until he is ninety one years old requires explanation about why such a sentence is “sufficient, but not greater than necessary” to achieve the goals of sentencing. 18 U.S.C. § 3553(a).

We find the district court’s explanation lacking in Payton’s case.  At minimum, the court failed to adequately respond to Payton’s argument that his advanced age diminishes the public safety benefit of keeping Payton in prison an extra twenty years beyond the recommendation of the Guidelines.  Even presuming Payton’s desire to rob banks is insatiable, as the government argues, Payton contends that age will diminish his very ability to rob banks.  This argument attacks the foundations of the government’s support for the imposed sentence, and the court’s reasoning that the threat posed by a sixty-eight-year-old Payton makes a longer sentence not simply prudent but necessary.

The court's discussion to this point is notable, but the opinion then takes an especially interesting turn with this paragraph (in which I have eliminated footnote references):

The Sentencing Commission has observed that “[r]ecidivism rates decline relatively consistently as age increases.” Recent analysis from the Bureau of Justice Statistics considering the recidivism rates of released prisoners in 30 states (including Michigan) from 2005 to 2010 supported the Commission’s conclusion, finding decreased recidivism rates as prisoners age. These statistics suggest that past fifty years old there is a significantly lower rate of recidivism. Both the Guidelines and our Circuit’s cases explicitly acknowledge that a defendant’s age, and specifically old age, is a relevant consideration in sentencing. U.S.S.G. § 5H1.1; United States v. Berry, 565 F.3d 332, 341 (6th Cir. 2009); United States v. Davis, 537 F.3d 611, 616-17 (6th Cir. 2008). And observers of the criminal justice system have long acknowledged the “key” argument “that elderly offenders pose so low a risk to the public that long or otherwise harsh sentences have little to no utilitarian benefit.”  Indeed, they observe that “because of health or other reasons, elderly offenders have the lowest rate of recidivism of all types of offenders; in fact, only about one percent of elderly offenders ever face a second conviction.”   Studies indicate that neurotransmitters affecting aggression supplied at the synapses of brain neurons vary based on age, and may explain the observed decline in recidivism among older prisoners. Such evidence, together with statistical support, suffices to require a sentencing judge to explain carefully why a criminal defendant like Payton remains likely to engage in violent robberies between the age of seventy and ninety.  The district court did not address Payton’s argument on this issue, and therefore did not provide an adequate explanation for imposing such a harsh sentence.

Kudos to the Sixth Circuit for giving some real teeth to reasonable review, and especially for its willingness to bring some empirical research into an analysis of means for a sentence to be "sufficient but not greater than necessary."

June 12, 2014 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Wednesday, April 09, 2014

Lots of notable sentencing activity via the Sixth Circuit on this hump day

I have long found that Wednesday seems to be a popular day for circuit sentencing decisions, and today the Sixth Circuit was involved in two notable sentencing actions. 

One action involves the decision, noted in this order, to grant en banc review in US v. Mateen, a statutory interpretation case concerning "whether a state sexual offense that does not necessarily involve a minor or ward can trigger the sentencing enhancement under 18 U.S.C. § 2252(b)(2)."  The (split) Mateen panel held that the sentence enhancement was not applicable, and the en banc grant suggest a majority of the Sixth circuit judges may not agree.

The other action involves a lengthy decision in a MDMA sentencing appeal, US v. Kamper, No. 12-5167 (6th Cir. April 9, 2014) (available here), which gets started this way:

Defendants-appellants Glenn Kamper and Joe Head appeal their respective 144-month sentences imposed for their roles in a conspiracy to manufacture and distribute MDMA (also known as 3,4-methylenedioxymethamphetamine or “ecstasy”) in Chattanooga, Tennessee. Head and Kamper both appeal their sentences as procedurally and substantively unreasonable. Kamper argues that the MDMA-to-marijuana equivalency ratio underlying his Guidelines sentencing range is based on faulty science, and that the district court erred when it justified its refusal to reject the Guidelines ratio with institutional concerns. We conclude that the district court misunderstood its authority to reject and replace a Guidelines equivalency ratio based on policy disagreements, but conclude that the district court’s error was harmless. We reject Kamper’s other arguments regarding the reasonableness of his sentence as without merit. Head argues that the district court erred in applying sentencing enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. We conclude that Head’s sentence must be vacated because the district court erred in applying a sentencing enhancement for obstruction of justice. Accordingly, we AFFIRM the judgment of the district court with respect to Kamper, but REVERSE the judgment of the district court with respect to Head and REMAND for resentencing.

April 9, 2014 in Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, March 20, 2014

Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball

I am pleased to see that my discussion of the Antwuan Ball case in this recent post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims," has now generated a pair of thoughtful posts at The Volokh Conspiracy:

Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?", which ends with this paragraph:

In short, when a judge sentences on the basis of acquitted conduct, he is acting with far more information than is typically available at sentencing. I see no reason to be worried about Ball’s sentence — or, more generally, the fact that judges apply ordinary burdens of proof when resolving factual disputes at sentencing. I am more worried about entangling these sentencing proceedings with ever-mounting procedural requirements that will make it difficult for judges to craft appropriate sentences — lenient, harsh, or somewhere in between. The D.C. Circuit got this one right.

Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence," which concludes with these thoughts:

As Scalia put it in Rita, “… there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts.”  He then reiterated this point in Gall.  (“The Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”)

This isn’t necessarily to criticize this D.C. Circuit panel; the court concluded that Scalia’s arguments have already been rejected by D.C. Circuit precedent, and maybe that is right. But they haven’t been rejected by the Supreme Court. The court upheld the general use of acquitted conduct upheld in United States v. Watts, but this is a distinct problem (and I’m writing this post because the two problems are often confused).

March 20, 2014 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Sunday, March 02, 2014

Has anyone formally calculated exactly how very few federal sentences are found unreasonable?

The question in the title of this post is prompted by two noteworthy (or perhaps not really noteworthy) circuit opinions from last week in which two way-above-guideline sentences were affirmed as reasonable by the panels of the First and Seventh Circuits in US v. Santiago-Rivera, No. 13-1228 (1st Cir. Feb. 28, 2014) (available here); US v. Castaldi, No. 10-3406 (7th Cir. Feb. 24, 2014) (available here).  In both cases, a defendant appealed as unreasonable the imposition of a prison sentence roughly a decade longer than the (already lengthy) prison term suggested by the applicable guidelines.  In both cases, the panel found the way-above-guideline sentence procedurally and substantively reasonable (though one Seventh Circuit judge dissented in Castaldi).

At one level, these two rulings highlight how increased district court discretion to sentence outside the guidelines will often be used enhance sentences involving serious and harmful crimes.  (Castaldi involved a big Ponzi scheme impacting many persons, Santiago-Rivera involved a police officer shooting.)  In addition, both rulings show that circuits may be especially inclined to find way-above-guideline sentences reasonable, even more so than way-below-guideline sentences.  (I cannot readily think of one, let alone two, sentences set a full decade below the calculated guideline sentence upheld after an appeal by the government.)  But, as the title of this post suggests, perhaps the broader story is how very few federal sentences are even found unreasonable.

Booker has been the federal sentencing law of the land since 2005, but the true era of modern reasonableness review likely should be defined as starting in December 2007 after the Supreme Court handed down the last of the troika of reasonableness review cases via Gall, Kimbrough and Rita.  Since those opinions were issued, we have probably had over 500,000 federal sentences imposed, and I suspect that less than 250 have been found procedurally unreasonable on appeal and less than 50 have been found substantively unreasonable.  (This federal defender document titled Appellate Decisions After Gall (and updated through early December 2013) provides the most complete accounting of reasonableness rulings that I have seen.)

In other words, based on this very rough assessment of reasonableness review outcomes compared to sentences imposed, it would seem that in only about one of every 2,000 federal sentencings does something go procedurally wrong and in only one of every 10,000 federal sentencings involves some substantive unreasonableness.  (Of course, the vast majority of federal sentences are not appealed, in part due to the wide use of appeal waivers in plea agreements, so the outcomes of appeals is not the ideal measuring stick here.  Still, I think these numbers are telling.)

For a lot of reasons, the prospect of reasonableness review may do a lot more work and have a lot more influence than the so-very-rare reversal of a sentence as unreasonable would suggest.  Still, I have largely given up my prior habit of regularly report notable federal circuit rulings concerning reasonableness appeals in part because affirmances in cases like Castaldi and Santiago-Rivera are, statistically speaking, not really notable.

UPDATE: I just noticed that a Fourth Circuit panel also issued an opinion on the same day as the First Circuit opinion linked above that affirms as reasonable a sentence set about 8 years above the guideline range in US v. Washington, No. 13-4132 (4th Cir. Feb. 28, 2014) (available here).

March 2, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, February 13, 2014

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

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

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

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

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

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

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

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

Prior related post:

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

Sunday, January 19, 2014

"More than a Formality: The Case for Meaningful Substantive Reasonableness Review"

The title of this post is the title of this astute new Note just published in the January 2014 issue of the Harvard Law Review. Here is the Note's introduction:

Appellate review of sentencing is under assault.  When the Supreme Court rendered the Federal Sentencing Guidelines nonbinding in United States v. Booker, it established appellate review of federal sentences for reasonableness to cabin sentencing judges’ newly acquired discretion.  The substantive component of this review — which authorizes appellate courts to vacate those sentences that reflect clear errors in judgment or that are excessively disproportionate — is a fundament of the post-Booker sentencing regime, but one that courts have struggled to implement.  Indeed, a troubling consensus is emerging that substantive reasonableness review is unworkable or even undesirable.  Such views neglect unwarranted disparities in sentences and threaten to disrupt the feedback loop between courts and the U.S. Sentencing Commission (the Commission) that appellate review was intended to serve.  If sentencing is to be fair, appellate courts must do better. This Note argues that they can.

This Note proceeds in five parts.  Part I surveys the history of appellate review of federal sentences.  Part II relies on case law and recent statements by a variety of stakeholders to examine the state of substantive reasonableness review in the circuit courts.  Part III defends meaningful substantive reasonableness review as essential to promoting fairness and uniformity in federal sentencing.  Part IV identifies ways in which the courts and the Commission can work toward a more effective and stable system of substantive review. Part V concludes.

January 19, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 11, 2013

"Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review

The title of this post is the title of this notable new paper authored by Briana Rosenbaum now available via SSRN. Here is the abstract:

Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy.  As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises.  These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency.

The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines.  The English model of appellate review suggests a new way to design the role of appellate courts in the federal system: from bodies that merely enforce guidelines to further consistency of sentencing outcomes, to bodies that develop sentencing law to further consistency of sentencing approach.

In this paper, I explore the primary functional, institutional, and normative arguments behind the resistance to robust appellate review in the federal appellate courts and study the English model as a means of evaluating these critiques.  Ultimately, I suggest that the federal courts of appeals borrow England’s “mixed deference approach” to sentence appeals, including de novo review of sentencing law and principles.  Doing so will promote greater sentencing consistency without either over-enforcement of the Guidelines or unwarranted encroachment of sentencing discretion.

November 11, 2013 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 09, 2013

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

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

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

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

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

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

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

Download Childs Sentencing Opinion and Order

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

Monday, October 07, 2013

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

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

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

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

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

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

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

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

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

Monday, September 30, 2013

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

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

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

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

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

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

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

A few prior related posts:

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

Advice for the US Sentencing Commission from former USDJ Nancy Gertner

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

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

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

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

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

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

Monday, September 23, 2013

In praise of a stat-max fine that hits a federal white-collar defendant (and not the federal taxpayer) where it hurts

Some readers of this blog may come to (wrongly) believe I tend to disfavor most harsh punishments, whereas in fact I tend to favor most harsh punishments if and whenever they prove to be especially efficacious and economical.  Consequently, I tend to be fairly skeptical of punishments in the form of lenghty terms of imprisonment, whereas I tend to be fairly supportive of punishments in other forms. 

This mini backstory on my views is provided here to account for my particular affinity for the sentence imposed and now affirmed (via an unpublished ruling) in United States v. Turner, No. 12-6483 (6th Cir. Sept. 20, 2013) (available here). Here is how the opinion gets started, which provides a summary of the ruling and the facts which led up to the defendant's prosecution:

Arch Turner appeals a $250,000 fine imposed by the district court as part of his sentence for conspiring to buy votes. He argues that the fine is procedurally unreasonable because the court did not provide specific reasons for the variance from the Guidelines range of $4,000 to $40,000, and that it is substantively unreasonable because the court impermissibly considered Turner’s socio-economic status.  We conclude that the court adequately explained its reasoning in open court, that any deficiencies in duplicative explanations did not rise to the level of plain error, and that the court did not impermissibly rely on Turner’s socio-economic status. Accordingly, we AFFIRM Turner’s sentence.

Arch Turner, a superintendent of the Breathitt County, Kentucky schools, led and assisted a group of people to buy votes for a candidate in a May 2010 primary election. He coordinated meetings in which he distributed funds he had received from third parties for the purpose of buying votes, and he withdrew cash from his own bank account for the same purpose.  During the government investigation, Turner lied to an FBI agent, convinced a co-conspirator to lie to a grand jury, and attempted to convince another co-conspirator to lie to FBI agents.  During one such attempt, he told a co-conspirator that the FBI had no evidence against them and that they would not get in trouble if neither of them told on the other.  During another, Turner contacted his codefendant, which was a violation of his bond release, told his co-defendant that he could not tell on anyone because he had not seen cash change hands, and instructed his co-defendant to purchase a phone that could not be traced.  Eventually, Turner decided the jig was up and pleaded guilty to conspiracy to defraud the United States through buying votes, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i(c).

Thanks to a plea deal, this vote-buying scoundral faced "an advisory Guidelines range of 18 to 24 months imprisonment plus 1 to 3 years of supervised release and a $4,000 to $40,000 fine ... [and a] statutory maximum sentence [of] 5 years of imprisonment plus 3 years of supervised release and a $250,000 fine." The district judge thereafter notified In October 2012, the district court issued a notice advising the parties that the court intended to consider an upward variance from the Guidelines range and sought at sentencing to hear arguments concerning an upward variance of “not only time but money.” In the end, the sentencing judge imposed a 24-month prison term (the top of the calculated range) as well as a stat-max fine of $250,000.

I suspect that a number of federal sentencing judges may have shared the view that the defendant in this case deserved to have the "book thrown at him," but I fear that most would have done so by increasing the length of the defendant's imprisonment rather than maxing out his fine. As a federal taxpayer who usually see little obvious public safety benefit from imprisoning a non-violent white-collar offender for more than a few years, I am pleased that the judge in this case concluded that it would be arguably more fair and efficient to punish in this case with a greater deprivation of property rather than a greater deprivation of liberty.

September 23, 2013 in Booker in the Circuits, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Thursday, August 22, 2013

Eleventh Circuit finds way-below guideline sentence substantively unreasonable for abusive corrections officers

I have long hoped that reasonableness review would have some more teeth in the circuits, and a panel ruling by the Eleventh Circuit today in US v. McQueen, No. 12-10840 (11th Cir. Aug. 22, 2013) (available here), provides a reminder that reasonableness review does seem to have at least a little more bite when prosecutors appeal a sentence they consider way too low. Here are the final paragraphs of the panel opinion in McQueen:
[T]aking the § 3553(a) factors as a whole as well as the district court’s findings, we can only conclude that McQueen’s and Dawkins’s sentences were substantively unreasonable and that the district court abused its considerable discretion in imposing them. Undoubtedly, a district court has great discretion in balancing the § 3553(a) factors. Still, it must afford “some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that ‘achieve[s] the purposes of sentencing stated in § 3553(a).’” Id. (alteration in original) (quoting United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)). If a district court instead commits a clear error of judgment in weighing the sentencing factors and arrives at a sentence beyond the range of reasonable sentences, we are duty bound to vacate and remand for resenten cing. United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007) (per curiam). As we see it, the trial court focused virtually exclusively on one factor -- unwarranted disparities -- to the near abandonment of other critical factors and arrived at sentences falling profoundly outside the range of reasonable sentences.

Accordingly, we vacate the sentences imposed on McQueen and Dawkins and remand to the district court for further review and resentencing. In so doing we do not suggest what the sentence should be; nor do we intimate that no variance is justified. We simply hold that downward variances of more than 90% where one corrections officer brutalized more than five young prisoners and then lied about it, and another intentionally sought to conceal these serious crimes are unreasonable.

August 22, 2013 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (20) | TrackBack

Tuesday, August 06, 2013

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

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

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

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

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

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

Tuesday, July 09, 2013

Third Circuit affirms record-long insider-trading sentence

As reported in this Forbes piece, headlined "Inside Trader Matthew Kluger's 12-Year Prison Term Affirmed," a panel of the Third Circuit today rejected a range of arguments against a lengthy federal sentence for insider trading. Here are the basics:

The prison term given to Matthew Kluger by U.S. District Judge Katharine Hayden (New Jersey) represented the longest ever given to a person pleading guilty to charges of insider trading. Upon his arrest in April 2011, Kluger quickly decided to enter negotiations to plead guilty and throw himself on the mercy of the court. That strategy landed him in prison for 12 years.

Kluger was a lawyer (NYU Law) who worked on mergers and acquisitions of publicly traded companies at prestigious law firms, including Wilson Sonsini Goodrich & Rosati PC. He then passed that confidential information on to a middle man (Kenneth Robinson), who then passed it on to a trader, Garrett Bauer. The scheme worked for 17 years because there was no direct communication between Kluger, the source, and Bauer, the trader. In fact, the two had only met once at the beginning of their illegal trading. The Securities and Exchange Commission had suspicions of Bauer’s trading activities but could never tie him to a source for the information. However, when Bauer backed out of the trading scheme in 2010, Robinson and Kluger continued … that was when the SEC and the FBI pulled everything together. As David Voreacos (Bloomberg) noted in his excellent profile of Kluger, the scheme succeeded for so long because of its simplicity, the discipline of its limited number of people and its essential amoral nature.

The basis of Kluger’s appeal was that Bauer was supposed to buy only small number of shares, to avoid detection from authorities, and then the three would equally share in the profits. However, Bauer, unknown to Kluger, was trading large blocks of shares for his own benefit, resulting in millions in profits. Whereas Kluger believed that the profits were just around $2 million (a little of $600k each), the total profits from the information he provided to the conspiracy approached $37 million with Bauer receiving the majority of the money. Kluger was sentenced by Judge Haydan according to the Federal Sentencing Guideline based on the amount of the total gain and not the amount he personally realized from the trades. His guideline range at sentencing was 11-14 years … so 12 seemed fair to the judge.

The 3rd Circuit agreed with Judge Hayden, stating that Kluger, “… truly was a career criminal.” Upon being notified of the decision, U.S. Attorney Paul J. Fishman (District of New Jersey) released a statement, “We argued at sentencing that a severe penalty was appropriate for one of the longest running insider trading schemes ever prosecuted, and are gratified the Court of Appeals saw it the same way.”

Kenneth Robinson, who recruited Bauer and hatched the initial plan with Kluger, did not appeal his prison term of 27 months. Robinson was the first to cooperate with authorities and recorded conversations with both Bauer and Kluger, which sealed their fate. Note to file; It pays to cooperate early.

The full panel opinion in US v. Kluger, No. 12-2701 (3d Cir. July 9, 2013) (available here) runs 48 pages, and this paragraph from the start of the opinion provides an effective accounting of the sentencing issues raised (and ultimately rejected) on appeal:

On June 13, 2012, Kluger filed a timely appeal, raising the following arguments.  First, he challenges the District Court's calculation of his sentencing guidelines range.  Second, he contends that the Court procedurally erred in imposing the sentence on him by (1) improperly denying him an evidentiary hearing prior to his sentencing; (2) failing to resolve his objections to the presentence investigation report; and (3) not ordering discovery of materials that the govern ment turned over to the probation department for use in preparing the presentence report.  Finally, he contends that the District Court imposed a procedurally and substantively unreasonable sentence

July 9, 2013 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

Friday, June 14, 2013

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here).  The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). 

But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up.   As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

June 14, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, June 10, 2013

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

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

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

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

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

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

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

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

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

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

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

SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker

Thanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:

Justice Sotomayor for the Court in Peugh v. United States....

The decision of the Seventh Circuit is reversed, the case is remanded.  The Court is splintered.  Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.

Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause.  It's another case where Justice Kennedy joins the more liberal members of the Court.

Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia.  Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.

The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....

The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case.  The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases.  It is also a strong reaffirmation of the Ex Post Facto Clause.

The full opinions in Peugh are available here.  The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages. 

Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world.  And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Thursday, May 16, 2013

As notable new face joins Eighth Circuit, will court do better with SCOTUS on sentencing issues?

Jane KellyThanks to How Appealing,I just saw this interesting new AP profile of the interesting new judge on the Eighth Circuit.  The article is headlined "Jane Kelly's experience rare on US appeals court," and here are excerpts:

Jane Kelly will become a federal appeals court judge Friday with an unusual background that supporters say makes her a perfect fit for the job and a potential U.S. Supreme Court candidate someday.

The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.

Kelly, who's worked at the federal public defender's office in Cedar Rapids since 1994, graduated from Harvard Law School in the same 1991 class as President Barack Obama. But her appointment was far from patronage. She had so much support that her confirmation received a 96-0 vote in the Senate less than three months after she was appointed, speedier than any other circuit judge nominated by Obama. She also is the survivor of a 2004 beating on a popular jogging trail that left her hospitalized for weeks and shook Cedar Rapids.

Associates say she is a smart legal thinker who has zealously defended the rights of even the most publicly despised clients, including a notorious mailbox bombing suspect and the biggest white-collar criminal in Iowa history. Even prosecutors who disagreed with her in court praise Kelly, who will take the oath of office privately.

"Her story is compelling all the way around," said Debra Fitzpatrick of the University of Minnesota-based Infinity Project, which advocates for more women on the 8th Circuit. "Her credentials and her background and her career sort of set her up to be the right candidate at the right time."

If a Supreme Court justice retires during Obama's second term, Kelly could get mentioned as a potential nominee. Her supporters say they expect her to shine on the circuit, which has 11 active judges and hears 3,500 appeals a year. The lifetime appointment pays $184,500 annually.

Iowa Sen. Tom Harkin, a Democrat, recommended Kelly to Obama to replace retiring Judge Michael Melloy after she rose above an "outstanding" pool. He said she would be the first career public defender on the circuit, bringing "a critically important perspective." Iowa's other senator, Republican Chuck Grassley, ranking member on the judiciary committee, helped convince colleagues to move Kelly's confirmation quickly. Grassley said he supported Kelly because she received a glowing endorsement from respected retired judge David Hansen of Iowa, appointed to the circuit by President George H.W. Bush.

Kelly, Hansen's clerk from 1992 to 1993, was a persuasive writer and debater who often argued opposing viewpoints to help him flesh out cases, Hansen said. "She's a delight to be around, and I predict a very bright future for her in the federal judiciary," Hansen said. "She isn't going to have any trouble intellectually with the work because she has a brilliant legal mind."

Kelly, who did not respond to an interview request, received friendly questions and praise at her confirmation hearing. She said her background gives her a "broader view" of the challenges facing defendants but that she'd need to get up to speed on civil matters. She introduced her partner, Tom Lidd, who has credited Kelly with helping inspire and edit his book about Iowa football legend Nile Kinnick.

A long-distance runner, Kelly's life almost ended when she went for a morning jog on the Cedar River Trail in June 2004. She was tackled and beaten by a male stranger, then dragged to a creek and left for dead. Passersby found Kelly in a pool of blood, in and out of consciousness and struggling to call for help. Speculation swirled that the attack was linked to Kelly's legal work, but no one ever was arrested.

Kelly quickly returned to representing criminal defendants after spending months in recovery. Her colleagues gave her the John Adams Award, which recognizes an Iowa lawyer's commitment to the constitutional right to criminal defense. And hundreds gathered one year later for a "Take Back the Trail" event, where Kelly jogged there again for the first time.

Kelly grew up in Newcastle, Ind., and graduated from Duke University in 1987. She earned a Fulbright scholarship to study in New Zealand before enrolling at Harvard, where she and Obama were acquaintances but not friends. She clerked for U.S. District Judge Donald Porter in South Dakota and then for Hansen.

She taught one year at University of Illinois law school before returning to Iowa as one of the first hires for the new public defender's office. She's been a fixture ever since, often representing "not the most popular person in the room," as she put it in her confirmation hearing, including drug dealers, pornographers and con artists.

As long-time readers and sentencing gurus likely know, many of the most notable modern SCOTUS sentencing rulings involved reversals of Eighth Circuit decisions.  In just last few years alone, the defendants in Pepper, Spears, Greenlaw, and Gall all lost on sentencing issues in the Eighth Circuit prior to reverals in the Supreme Court.  Indeed, I have long speculated that some Justices take an extra long look at some of the sentencing decisions that emerge from that circuit.  I suppose only time will tell if and how these federal sentencing law patterns, and the broader criminal justice jurisprudence of the Eighth Circuit, change at all in the months and years ahead now that a fresh new face with a fresh new perspective has joined that august court.

May 16, 2013 in Booker in the Circuits, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, April 15, 2013

Second Circuit finds Cameron Douglas's above-guideline sentence substantively reasonable

The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.

As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities at his federal sentencings and in part because of the many legal and social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son was given at his first sentencing and the seemingly harsh sentence he got the second time around (some backstory here).  The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on.  I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.

At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:

Finally, we take note of the argument, made by Douglas and supported by amici, that punitive sanctions are a less appropriate response to criminal acts by persons suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011).  But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.

We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences.  Indeed, that is precisely how the district court approached Douglas’s original sentence in this case.  Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency.  District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.”  We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.

And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

Prior posts concerning Cameron Douglas's federal sentencings:

April 15, 2013 in Booker in the Circuits, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, March 19, 2013

"Fun with Numbers: Gall's Mixed Message Regarding Variance Calculations"

The title of this post is the title of this notable new student note by Nicholas Deuschle now available via SSRN. Here is the abstract:

This Comment seeks to resolve an unaddressed issue stemming from recent developments in the Supreme Court’s sentencing jurisprudence.  In Gall v. United States, the Supreme Court required that appellate courts "consider the extent of the deviation" of criminal sentences imposed outside the Sentencing Guidelines range.  The Court, however, provided little guidance as to what this requirement means.  Specifically, how should appellate courts calculate that deviation from the Sentencing Guidelines?

March 19, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Gall reasonableness case, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, March 07, 2013

DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken

Thanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here).  Disappointingly, as of this writing, I cannot seem to find a copy of this important and interesting letter on the website of either the DOJ or the USSC.   ButI have a pdf copy of the letter, which is dated March 5, 2013, and I have posted the full 7-page letter below.

The lengthy letter needs to be read in full by any and everyone concerning with federal child porn sentencing dynamics.  And these sentences from the first page highlights that DOJ agrees with the USSC's basic conclusion that the current child porn federal sentencing guidelines are badly broken:

[T]he Department agrees with the Commission's conclusion that advancements in technologies and the evolution of the child pornography "market" have led to a significantly changed landscape -- one that is no longer adequately represented by the existing sentencing guidelines.  Specifically, we agree with the Report's conclusion that the existing Specific Offense Characteristics ("SOCs") in USSG § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness.  The current guidelines can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses.

Download DOJ letter to USSC on CP report

As I suggested in this recent post, now that the US Sentencing Commission has said that the current federal guidelines for child pornography are broken, it not longer seems proper for these guidelines to be given much weight and it seems plainly improper for within-guideline CP sentences to still carry a presumption of reasonableness on appeal. Now that the Justice Department has officially stated that it agrees with the USSC's position on these guidelines, I wonder if federal prosecutors will not be not merely authorized, but actually required, to agree with the common defense arguments in CP cases that the current guidelines should be afforded little or no weight in the broader 3553(a) analysis.

Indeed, in light of this DOJ letter, which details the many ways ways in which the current CP guidelines are broken, perhaps circuit courts should begin to adopt a blanket presumption of unreasonableness for any and every within-guideline child porn sentence. (Of course, that presumption could be rebutted if and when a district judge were to explain how other 3553(a) factors justified a within-guideline sentence in a child porn case. But, in light of what the USSC and DOJ are saying about the flaws of the current CP guideline, it would seem only logical now to view any within-guideline child porn sentence as presumptively flawed rather than presumptively sound.)

Recent related posts:

March 7, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, March 03, 2013

"Should defendants’ age, health issues be sentencing factors?"

The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:

Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010.  The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.  The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago.  He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.  Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.   Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease.  Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”

According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010.  That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

Prior related posts:

March 3, 2013 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, February 27, 2013

Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?

Regular readers know that I have never been a fan of the so-called "presumption of reasonableness" for within-guideline sentences adopted by some circuit courts after Booker .  This is because, despite its repeated reference and application in the circuits which have adopted it, there has yet to be any appellate rulings which explores — or, for that matter, even expressly discusses — when and how this “presumption” can be rebutted on appeal of a within-guideline sentence and what might be the legal consequences of any such (phantom) rebuttal. In actuality, this purported "presumption" is really just the means some circuits use to declare that any and every within-guideline sentence is functionally immune from substantive reasonableness review: notably, in the eight+ years since Booker, not a single within-guideline sentence has ever been found substantively unreasonable in the circuits that have embraced this so-called “presumption.”

That I said, I remain ever hopeful that those circuits which embrace the so-called "presumption of reasonableness" for within-guideline sentences will try to give some sensible and functional meaning to this appellate review standard. And, as the question in the title of this post suggest, I think the US Sentencing Commission's new report on federal child pornography sentencing (basics here), provides a unique opportunity to give the review standard some real meaning. I come to this conclusion after seeing this key passage (from p. xviii) in the executive summary of the new report:

The current sentencing scheme in §2G2.2 places a disproportionate emphasis on outdated measures of culpability regarding offenders’ collecting behavior and insufficient emphases on offenders’ community involvement and sexual dangerousness.  As a result, penalty ranges are too severe for some offenders and too lenient for other offenders. The guideline thus should be revised to more fully account for these three factors and thereby provide for more proportionate punishments.

In short, the US Sentencing Commission is saying that the current federal guidelines for child pornography are broken because they give too much significance to some offense factors and too little to others, and thus guideline-calculated ranges for child porn offenses are "too severe for some offenders and too lenient for other offenders." Put even more directly, the USSC is here declaring that the existing child porn guidelines are not a reasonable means to ensure just, effective and proportionate punishment.

This basic reality in turn prompts my query, which is designed to promote circuits which generally apply the "presumption of reasonableness" for within-guideline sentences to now recognize (and expressly hold) that this appellate presumption does not apply in any case involving the child porn guidelines. In saying this, I am not asserting that this new USSC report necessarily connoted that any and all within-guideline child porn sentence must be declared (or even presumed) substantively reasonable. But I am asserting that, because the USSC has now clearly declared that the existing guidelines now set forth "penalty ranges [that] are too severe for some offenders and too lenient for other offenders," it would be both unjust and obtuse for a circuit court to now presume any within-guideline child porn sentence is substantively reasonable.

Recent related post:

February 27, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, February 19, 2013

"Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines"

The title of this post is the title of this newly available piece via SSRN authored by Scott Michelman and Jay Rorty. Here is the abstract:

Federal sentencing law is in the midst of a period of profound change.  In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors.  The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years.  But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment.  The Court's remedy was to render the Guidelines advisory only -- a starting point but not necessarily the endpoint for sentencing decisions.

Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice.  Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant.

The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure.  Kimbrough authorized policy-based variances.  Gall instructed courts how to apply the advisory Guidelines in individual cases.  But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized.  The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences.  Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall.  Academic discourse has likewise left this issue unaddressed.

This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations.  The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves.  When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime.  Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts' grounds for variance, therefore, provides vital information about how the Guidelines can be improved.  The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court's discretion.  The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.

February 19, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack

Sunday, February 17, 2013

If you are eager for access to all parts of the new US Sentencing Commission Booker report...

Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system. 

Regular readers will recall that I had the honor, via this post, of being the first website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals.  I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order.  But, as of this writing, the USSC's main webpage is still "under construction." 

Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing.  I remain hopeful that the USSC's website will be back in action by the time the CP report is ready.  But I suppose only time will tell.

Recent related posts:

February 17, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 15, 2013

Sixth Circuit reverses one-week jail sentence for CEO as substantively unreasonable

Reversals of federal sentences on appeal as substantively unreasonable are pretty rare, which itself makes notable the Sixth Circuit's ruling today in US v. Peppel, No. 11-4327 (6th Cir. Feb. 15, 2013) (available here).  Add in that this is a white-collar case, and this reasonableness review story becomes even more noteworthy.  Here is how the Peppel opinion gets started:

Defendant-Appellee Michael Peppel, former President, CEO, and Chairman of the Board of Directors of MCSi, Inc. (“MCSi”), conspired with CFO Ira Stanley to falsify MCSi accounting records and financial statements in order to conceal the actual earnings from shareholders, while at the same time laundering proceeds from the sale of his own shares in a public stock offering.  For this conduct, the sentencing guidelines provided a sentencing range of 97–121 months’ imprisonment.  The district court, based almost solely on its estimation of Peppel as “a remarkably good man,” varied downward drastically from this advisory range, imposing a custodial sentence of only seven days — a 99.9975% reduction.  R. 224 (Sentencing Tr. at 86:10) (Page ID #2433).  Plaintiff-Appellant the government appeals the substantive reasonableness of the seven-day sentence, arguing that a seven-day sentence does not adequately reflect the seriousness of the offense, serve the goal of general deterrence, or avoid national sentencing disparities, and that the district court placed disproportionate weight on disfavored factors.  Peppel contests the government’s arguments and proffers a conditional cross-appeal, contending that the district court erred in its amount-of-loss and number-of-victims calculations that formed the basis of two sentencing enhancements.

We conclude that the district court abused its discretion by imposing an unreasonably low seven-day sentence, but did not err in calculating the amount of loss or number of victims.  We therefore VACATE Peppel’s sentence and REMAND for resentencing consistent with this opinion.

February 15, 2013 in Booker in the Circuits, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, February 14, 2013

Second Circuit finds repeat resentencing procedurally unreasonable

An interesting reasonableness review decision was handed down by a Second Circuit panel this morning in US v. Desnoyers, No. 11-5194 (2d Cir. Feb. 14, 2012) (available here).  It should be of special interest to anyone involved in resentencing proceedings in federal courts.  Here is how the opinion starts and concludes:
The United States takes this appeal from the sentence imposed following our reinstatement of a count of conviction dismissed by the district court under Federal Rule of Criminal Procedure 29.  The re-sentencing has resulted in imposition of the same term of probation and an increase in restitution of about $10,000.

Desnoyers was convicted by a jury in the United States District Court for the Northern District of New York (Hurd, J.) of offenses arising from his malfeasance as an air monitor for asbestos abatement projects in and around Plattsburgh, New York.  The grant of Desnoyers’s post-trial motion to vacate Count I -- the conspiracy charge -- left four substantive violations.

On the government’s initial appeal, we reinstated the jury verdict, and remanded for re-sentencing.  United States v. Desnoyers (“Desnoyers I”), 637 F.3d 105, 112 (2d Cir. 2011).

On remand, the district court imposed the same five-year term of probation and increased the restitution amount to $45,398.  The government now attacks the procedural and substantive reasonableness of the sentence, arguing mainly that the district court improperly excluded new evidence that was not submitted at the initial sentencing. The government also contests the restitution calculation.

For the reasons that follow, we conclude that the sentence was procedurally unreasonable; we therefore vacate and remand to the district court for re-sentencing....

For the foregoing reasons, we AFFIRM in part and VACATE and REMAND in part. We AFFIRM the following: (1) the district court’s refusal to consider newly submitted evidence relating to Counts V and VI; and (2) the district court’s refusal to consider the newly submitted character evidence.  We VACATE the district court’s judgment on the following issues and REMAND for re-sentencing in accordance with this opinion: (1) the district court’s refusal to include the Page Estimate in the loss amount for Count I; (2) the district court’s failure to consider the organizer enhancement at re-sentencing; (3) the district court’s refusal to include payments for pre-abatement sampling and durings in its restitution calculation; and (4) the district court’s entire restitution calculation for Count I.

February 14, 2013 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, February 01, 2013

Summary of key USSC findings in its big new Booker report

6141708385_8dedf68f37As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link.  Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.

Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter.  Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:

[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.

[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.

[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.

[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.

[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.

[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.

[8]Prosecutorial practices have contributed to disparities in federal sentencing.

[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.

[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.

[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.

I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial.  Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings.  For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities.  (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)

All these key findings should and likely will engender lots of discussion and debate in the weeks ahead.  For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention).   As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point.  I have a feeling, though, that others may have distinct views.

Recent related post:

February 1, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, January 18, 2013

Seventh Circuit panel affirms 70-year sentence for "self-described 'kingpin' of child pornography"

Though not clearly breaking any new ground, a Seventh Circuit panel has a notable discussion of reasonableness review today in US v. Boroczk, No. 12-1022 (7th Cir. Jan. 18, 2012) (available here).  The unanimous panel ruling in Boroczk gets started this way:

Darrick C. Boroczk (“Boroczk”),a self-described “kingpin”of child pornography on the internet, created hundreds of sexually explicit images and videos involving two of his own children.  Boroczk pled guilty to four counts of manufacturing and one count of possessing child pornography.  After a day long sentencing hearing, the district court imposed four 15-year sentences on the manufacturing counts and a 10-year sentence on the possession count, to be served consecutively, for a total of 70 years’ imprisonment.  On appeal, Boroczk argues that the district court committed procedural error and imposed a substantively unreasonable sentence. Finding no merit in Boroczk’s arguments, we affirm the 70-year sentence.

January 18, 2013 in Booker in the Circuits, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack