Sentencing Law and Policy

Eighth Circuit en banc ruling finally affirms big variance after Gall GVR

The Eighth Circuit today handed down an important en banc ruling today in US v. Feemster, No. 06-2059 (8th Cir. July 13, 2009) (avaialable here).  Here is the unofficial summary of the ruling from the circuit's website:

Judge Smith, Author for the Court En Banc: For the court's prior opinions in the matter, see United States v. Feemster, 435 F.3d 881 (8th Cir. 2006) and United States v. Feemster, 483 F.3d 583 (8th Cir. 2007).  On remand from the Supreme Court for further consideration in light of Gall v. United States, 128 S.Ct. 586 (2007).  The district court provided substantial insight into   the reasons for its sentencing decision, and the government's argument  that the court failed to adequately explain its chosen sentence is rejected; district court's justification for imposing a 120-month sentence rests on precisely the kind of defendant-specific determination that are within the special competence of the sentencing courts, and the court could not say that the district court abused its discretion or imposed an unreasonable sentence.  Judge Riley, concurring.  Judge Colloton, concurring.  Judge Beam, dissenting.

Though Judge Riley's concurrence is really tantamount to a dissent, it is notable that only two judges on the Eighth Circuit ultimately resisted signing off on what was a very big variance in Feemster.  Also, as a helpful reader wrote in an e-mail, "Judge Colloton’s concurrence on unwarranted sentencing disparity and the inability of the Circuits to correct it [is] particularly interesting."

Two (very?) important rulings on sentencing authority from the Sixth Circuit

Today the Sixth Circuit published two important sentencing opinions: a long new one covering lots of issues in US v. Herrera-Zuniga, No. 08-1540 (6th Cir. July 8, 2009) (available here), and a short older and previously unpublished one in US v. Perez-Vasquez, No. 07-6390 (6th Cir. April 30, 2009) (available here).  I think both are today's must-reads even for federal sentencing practitioners outside the Sixth Circuit.

In both Herrera-Zuniga and Perez-Vasquez, the Sixth Circuit panel rejects defendants various claims that their sentences are unreasonable.  In so doing, however, both opinions include passages discussing the nature and scope of the discretion of district judges at sentencing than seem likely to make federal defense attorneys happier than federal prosecutors.

As the title to this post is meant to suggest, I am confident when I describe both opinions as important.  But I will need a bit more time to review and reflect on whether either or both are VERY important.  Perhaps federal sentencing practitioners both inside and outside the Sixth Circuit can help me figure this out.

Ninth Circuit discusses consideration of state-federal disparities after Booker

In a narrow little opinion today in US v. Ringgold, No. 06-10492 (9th Cir. July 7, 2009) (available here), the Ninth Circuit discusses the consideration of state-federal disparities after Booker.  Here is how the opinion starts:

This appeal concerns the question whether, after United States v. Booker, 543 U.S. 220 (2005), a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court.  Under the circumstances presented by this case, we hold that the district court did not abuse its discretion or commit procedural error in declining to consider such a disparity.  Additionally, we hold that the sentence imposed by the district court was not substantively unreasonable.

Long split Sixth Circuit opinion discussing lots of modern federal sentencing issues

The Sixth Circuit issued a long split opinion this morning in US v. O’Georgia, No. 05-2598 (6th Cir. June 24, 2009) (available here). The start of the majority's ruling provides some flavor of the many issues covered:

Mark Arhebamen, also known as McMaine Allen O’Georgia, pled guilty in 2001 to one count of aiding and assisting in the preparation of a false federal income tax return.  He received a sentence of 21 months of imprisonment plus one year of supervised release.  This court affirmed his conviction and sentence, but the Supreme Court remanded the case in 2005 for resentencing in light of United States v. Booker, 543 U.S. 220 (2005).  The district court reimposed the same sentence.

While the appeal of his conviction and sentence was pending, Arhebamen was prosecuted separately for conduct that occurred during the false-tax-return proceedings.  The new charges were for failure to appear at sentencing, making false claims of United States citizenship, corruptly endeavoring to obstruct justice by lying to the Probation Office, and making false statements to judicial officials.  Arhebamen was tried before a jury in 2003 on these new charges and was convicted on all counts.  After applying six different upward departures under the United States Sentencing Guidelines, the district court sentenced Arhebamen to 152 months of imprisonment and to four years of supervised release.  This court affirmed Arhebamen’s conviction, but remanded for resentencing pursuant to Booker.  The district court again imposed the 152-month sentence and the four-year term of supervised release.

Arhebamen now appeals both sentences.  For the reasons set forth below, we VACATE the sentences and REMAND the cases to the district court for resentencing consistent with this opinion.

Among many sensible follow-up questions to this case is why the defendant did not pick a state name for his middle name when he started calling himself  McMaine Allen O’Georgia.  Indeed, I cannot help but wonder if the defendants only had the good sense to call himself McMaine von Alabama O’Georgia, perhaps he would have gotten a lower sentence.

Split Eleventh Circuit ruling on reasonableness of long sentence for one co-conspirator

Today the Eleventh Circuit handed down an interesting ruling on the reasonableness of a sentence in US v. Docampo, No. 08-10698 (11th Cir. June 15, 2009) (available here). Here is how the majority opinion, per Judge Pryor, gets started:

The main question presented by this appeal involves the reasonableness of the sentence of a young adult who was arrested in a sting operation that involved the armed robbery of a fictional stash house of cocaine and who later threatened a witness who testified against him.  The question is whether the district court abused its discretion when it sentenced John Andrew Docampo Jr. to a term of imprisonment of 270 months, instead of the mandatory minimum term of 180 months that he requested, even though some conspirators pleaded guilty and received less severe federal sentences and other conspirators who were juveniles when arrested pleaded guilty as adults in state court and received terms of probation....  Because the other conspirators either pleaded guilty and agreed to cooperate or were not prosecuted in federal court, we conclude that they are not similarly situated to Docampo and any disparity in sentences is warranted.  See 18 U.S.C. § 3553(a)(6).  Docampo’s sentence is reasonable.

Here is how the dissenting opinion, per Judge Barkett, gets started:

I concur in the majority opinion but for its determination that John Docampo’s sentence of 22.5 years is reasonable.  I believe a sentencing court’s passing mention that it has considered the 28 U.S.C. § 3553(a) factors without more analysis, as in this case, provides an insufficient basis for appellate review and consequently is procedurally unreasonable.  I further believe, under the facts presented, that Docampo’s sentence is substantively unreasonable, a conclusion only bolstered by the far lower sentences imposed on all of his significantly more culpable co-conspirators.

Judge Easterbrook on barbarity and the summum bonum of federal sentencing

A Seventh Circuit panel opinion authored by Judge Easterbrook in US v. Bartlett, No. 08-1196 (7th Cir. June 8, 2009) (available here), is this week's first must-read for sentencing fans. The ruling, which covers lots of issues, gets off to this poetic start:

The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.  Police officers in Milwaukee proved this the morning of October 24, 2004.

The opinion also includes a number of other profound observations, ranging from "Thrusting a pen into a person’s ear canals is torture by any definition." to "The old regime of 'departures' is defunct."  And, as this latter sentence highlights, the Bartlett opinion is full of notable sentencing talk.  Here are just a few passages of sentencing note (with emphasis in original):

But there is more to §3553 than §3553(a)(6).  A judge must respect all of the statutory criteria in order to mete out a sentence “sufficient, but not greater than necessary, to comply with the purposes [of sentencing] set forth in paragraph (2) of this subsection.” 18 U.S.C. §3553(a).  The Court held in Kimbrough, and reiterated in Spears, that a judge need not accept the Sentencing Commission’s penological framework.  The court may adopt its own.  It follows that §3553 permits a judge to reduce one defendant’s sentence because of another’s lenient sentence — not because of §3553(a)(6), but despite it.  Avoiding “unwarranted” disparities (as the Sentencing Commission or a court of appeals defines them) is not the summum bonum in sentencing.  Other objectives may have greater weight, and the court is free to have its own policy about which differences are “unwarranted.”...

Although the judge need not use the Guidelines as the fulcrum of analysis, the court still needs to understand the relation between the Guidelines and the ultimate sentence.  Both Rita and Gall say that the court must construct a Guideline range accurately.  A sentence is procedurally unreasonable if the judge thinks it within the range, but it isn’t — either because the range was not determined accurately in the district court, or because the judge misunderstood what that range was.

Fifth Circuit rebukes effort to give a lot more bite to reasonableness review

The Fifth Circuit has just released an important little opinion in in US v. Duarte, No. 08-50902 (5th Cir. June 1, 2009) (available here). The ruling covers a lot of important ground in only a few pages, and here are some of the most notable passages:

Citing language from the Supreme Court’s judgment in Kimbrough that highlighted a lack of empirical support for crack versus powder cocaine sentencing disparities as a factor supporting the district judge’s discretionary downward departure in that case, Duarte claims that an examination of a Sentencing Guideline’s empirical basis is now indispensable before appellate courts can apply a presumption of reasonableness to within-Guidelines sentences imposed by district judges.  In essence, Duarte asks us to remove the presumption of reasonableness as to this and other allegedly non-empirically-grounded provisions of the Guidelines....

Duarte argues with some force that the sixteen-level enhancement provided for illegal re-enterers who commit certain crimes can lead to excessive sentences for some defendants. He does not, however, point to any law suggesting how this possibility of unjust sentences  — a persistent possibility under any system of sentencing and, more to the point, under any form of appellate review of sentencing — gives us authority to overturn the presumption of reasonableness that this court applies to within-Guidelines sentences.

Intervening Supreme Court guidance, of course, could provide an avenue for our panel to revisit court precedent, but Duarte rests too much on the thin reed of Kimbrough, particularly reading Kimbrough in light of Rita, which expressly approves circuit courts’ presumption of reasonableness for Guidelines sentences.  It is true that the Kimbrough Court “recognized that certain Guidelines do not take account of empirical data and national experience,” but absent further instruction from the Court, we cannot read Kimbrough to mandate wholesale, appellate-level reconception of the role of the Guidelines and review of the methodologies of the Sentencing Commission.  Whatever appropriate deviations it may permit or encourage at the discretion of the district judge, Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines.  To the contrary, rather than aggrandizing appellate courts and sanctioning analysis from on high, the thrust of recent Supreme Court decisions has been to affirm the traditional entrustment of sentencing to the discretion of district courts, close to the ground and more cognizant of the details of offender and offense that should be determinative of sentence.  Indeed, the very district court cases that Duarte cites in his critique of the re-entry sentencing guidelines are exemplary of how district courts use their discretion to apply guidelines to particular facts.

Ninth Circuit finds another within-guideline sentence substantively unreasonable!!

I am excited to report that, only about 4.5 years after the Booker ruling, the Ninth Circuit has managed to find a second within-guideline sentence to be substantively unreasonable.  Regular readers may recall the Ninth Circuit was the first to find an unreasonable within-guideline sentence in the unpublished Paul case a few years ago (basics here), and this time around the Ninth Circuit went to the trouble of making sure its ruling is published.  The ruling comes in US v. Amezcua-Vasquez, No. 07-50239 (9th Cir. June 1, 2009) (available here), and here is how the panel decision begins:

Javier Amezcua-Vasquez (“Amezcua”), a native and citizen of Mexico, appeals his 52-month prison sentence for attempting to reenter the United States unlawfully in violation of 8 U.S.C. § 1326.  Nearly fifty years after becoming a permanent resident and more than twenty years after completing a four-year sentence for assault with great bodily injury and attempted voluntary manslaughter, Amezcua was deported to Mexico as an alien convicted of an aggravated felony.  Shortly thereafter, he was apprehended re-entering the United States.  He was indicted and pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326.  The district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which was predicated on Amezcua’s twenty-five-year-old convictions, and imposed a Guidelines sentence of 52 months imprisonment.  We vacate Amezcua’s sentence as substantively unreasonable under United States v. Booker, 543 U.S. 220 (2005), and remand the case to the district court for resentencing.

Notably, two of the three judges on the panel that decided Amezcua-Vasquezare appointees of Republican presidents, and thus folks should resist the urge to assume that this important ruling reflects the judgment of just the more liberal members of the Circuit.

As the start of this post highlights, I am not especially amazed or impressed that the Ninth Circuit managed to find a second within-guideline sentence substantive unreasonable.  Rather, I remain amazed and depressed that no other circuit has managed to find a single within-guideline sentence unreasonable as we approach the fifth anniversary of Booker and reasonableness review.  Whether applying a presumption or not, it seems clear that nearly all the circuits continue to embrace the basic (and highly questionable and largely self-serving) notion that any within-guideline sentence is surely a reasonable application of the sentencing factors Congress set out in 3553(a).

Notable ruling on procedural reasonableness from Second Circuit

The Second Circuit today has a notable ruling in US v. Timewell, No. 07-4587 (2d Cir. June 1, 2009) (available here), that discusses post-Booker review for procedural unreasonableness at some length. Here is hope the opinion starts:

Defendant-appellant Gregory Timewell appeals from a Memorandum and Order entered on October 4, 2007, in the United States District Court for the Eastern District of New York (Platt, J.) denying his application to be resentenced following a remand for further proceedings in conformity with United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). United States v. Timewell, 124 F. App’x 55 (2d Cir. 2005).  Timewell was convicted, upon a guilty plea, of conspiracy to import 1,000 kilograms or more of hashish and marijuana, in violation of 21 U.S.C. §§ 960(a)(1), (b)(1)(G), 963, and of making false statements to federal agents in violation of 18 U.S.C. § 1001.  On March 5, 2004, he was sentenced principally to a prison term of 275 months and a 5-year term of supervised release.  In the Memorandum and Order determining that it would adhere to the sentence originally imposed, the District Court took into account, inter alia, the government’s customary practice of rescinding cooperation agreements breached by defendants.  For the reasons that follow, we vacate the sentence and once more remand for further proceedings.

Notable Fifth Circuit ruling about reach/impact of Kimbrough

The Fifth Circuit issued a notable sentencing ruling yesterday in US v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (available here).  This case has bounced up and down as the district court and the Fifth Circuit try to figure out post-Booker sentencing rules.  Here is the latest insights from the Fifth Circuit about Kimbrough and related matters:

Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar....

Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal ... [though it called for] a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575.  If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.

Therefore, the district court’s disagreement with the policy statement concerning age as applied to this defendant’s case is relevant to the sentencing decision.  Consideration of a policy statement is among the factors under Section 3553(a).  Disagreement with the policy should be considered along with other factors. See id.  After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.”  Gall, 126 S. Ct. at 597.  Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived.  Id.

The latest briefing on fast-track disparity after Kimbrough

One of the most interesting and dynamic post-Booker issues still percolating in the lower courts concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea sentence reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts.  Before Kimbrough, the circuits had generally ruled that district courts lack discretion to provide such reductions without the blessing of the government.  After Kimbrough, this issue has divided the circuits. 

A helpful reader sent me a copy of a thorough and thoughtful brief on this fast-track disparity issue that was filed in the Seventh Circuit earlier this week.  Here is how the appellate issue is presented in this brief (which can be downloaded below):

Whether the district court committed reversible procedural error when it determined that Seventh Circuit precedent precluded it from considering the sentences given in fast-track districts as part of its 18 U.S.C. § 3553(a) analysis, despite intervening Supreme Court decisions that abrogated the Seventh Circuit’s precedent.

Download Fast-Track Seventh Circuit Brief w Appendices

I am pleased to report that the Federal Sentencing Reporter is in the midst of putting together an issue reviewing the recent past and current debate over fast-track sentencing discounts.  This FSRfast-track issue ought to be out early this summer, though I am wondering if DOJ's working group on sentencing issues will be suggesting some new  fast-track policies even before that issue goes to press. 

Some recent related posts:

• The persistent problems with fast-track disparity after Booker and Kimbrough
• First Circuit blesses a variance based on fast-track disparity
• Ninth Circuit rejects variance based on fast-track disparity
• Eleventh Circuit panel splits over whether Kimbrough now allows consideration of fast-track disparity
• Notable briefing on fast-track disparity issue after Kimbrough

Third Circuit finds failure to address departure arguments procedurally unreasonable

Continuing its important recent work on reasonableness review, the Third Circuit today provides another notable opinion in US v. Lofink, No. 08-3204 (3d Cir. April 29, 2009) (available here). His is how the ruling starts:

The United States District Court for the District of Delaware sentenced Defendant Anthony Lofink for his convictions on charges of wire fraud, conspiracy to commit wire fraud, and conspiracy to commit money laundering. Lofink had moved for a departure from the Guidelines range contained in the Presentence Investigation Report (“PSR”), but the District Court denied the motion on the basis that it had taken Lofink’s arguments into account when fashioning his sentence.  Because our precedents require district courts to decide departure motions on their merits in order to satisfy the requirement of procedural reasonableness, we will vacate the sentence and remand for resentencing. In doing so, however, we intimate no opinion as to the merits of Lofink’s departure motion or the substantive reasonableness of the sentence the District Court imposed.

Effective review of Third Circuit's remarkable recent sentencing work

Writing in The Legal Intelligencer, Shannon P. Duffy has this new piece headlined "3rd Circuit Hands Major Victories to Criminal Defense Bar." The piece effectively reviews the two huge sentencing rulings from the Third Circuit last week (blogged here and here), and this is how the piece starts:

Criminal defense lawyers were thrilled by a pair of decisions handed down by the 3rd U.S. Circuit Court of Appeals last week that, like a one-two punch to the government, held that appellate courts must take a hands-off approach even when a sentence is very lenient, and that a below-guidelines sentence is sometimes not lenient enough.

Thursday's ruling in United States v. Olhovsky was especially significant because it marked the first time that the court has instructed a trial judge reduce an already-below-guidelines sentence (pdf) and to focus on the so-called "parsimony provision," which says courts must impose a sentence that is "sufficient but not greater than necessary" to comply with the purposes of sentencing.

Just one day later in United States v. Tomko, a 13-judge en banc panel voted 8-5 in holding that a sentence of probation and house arrest was not "unreasonable" for a wealthy confessed tax cheat -- even though prosecutors complained that the house arrest took place in the "gilded cage" of the defendant's mansion, which was built with the very funds he had hidden from the Internal Revenue Service.

En banc Third Circuit upholds probation sentence in tax evasion case

On the heels of yesterday's long panel ruling finding a child porn downloader's sentence unreasonable as too harsh in Olhovsky (discussed here), the Third Circuit today issued an even longer en banc opinion in US v. Tomko, No. 05-4997 (3d Cir. April 17, 2009).  A helpful reader send me the ruling (which does not yet appear on line, but can be downloaded below), and here is how the majority opinion starts:

The Government appeals the reasonableness of William Tomko’s below-Guidelines sentence of probation, community service, restitution, and fine for his tax evasion conviction. If any one of a significant number of the members of this Court — including some in today’s majority — had been sitting as the District Judge, Tomko would have been sentenced to some time in prison. But “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”  Gall v. United States, 128 S. Ct. 586, 597 (2007).... Where, as here, a district court decides to vary from the Guidelines’ recommendations, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597. These principles require us to affirm Tomko’s sentence.

The full majority opinion runs nearly 40 pages, and the dissent also runs almost another 40. Both sides make a bunch of good points, and it is especially interesting to speculate about whether the Justice Department might be inclined to seek cert in this case. 

Download Tomko 3d Circuit opinion

UPDATE:  The Tomko decision is now available on-line at this link.

Third Circuit issues big opinion finding child porn sentence unreasonable

The Third Circuit has a major new sentencing decision today in a child porn case.  The decision in US v. Olhovsky, No. 07-1642 (3d Cir. April 16, 2009) (available here), runs 73 pages, but its first paragraph is brief and provides an effective summary of the ruling:

Nicolau Olhovsky appeals the sentence of six years imprisonment that was imposed after he pled guilty to possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He argues both that the sentence is unreasonable and that the sentencing court erred as a matter of law in refusing to allow his treating psychologist to testify at the sentencing hearing. For the reasons that follow, we agree. Accordingly, we will remand for resentencing.

UPDATE:  I found the time late this evening to make it all the way through the Olhovsky opinion.  The case and this ruling are remarkable for many reasons, and all federal sentencing fans will want to take the time to review closely the reasonableness discussion of the last 25 pages. 

Of particular note, as Peter G. flags in the comments, Olhovsky appears to be the first case in which a circuit found a below-guidelines sentence of imprisonment to be substantively unreasonable as too harsh in light of the overarching parsimony principle of 3553(a).  Yet, because the facts of Olhovsky are so remarkable and distinctive, it seems unlikely that this ruling will have too broad of an impact in other setting.  Still, it is nice to see a panel finally give some real attention to the parsimony principle and to its obligations to judge the substantive reasonableness of a prison term in light of all the 3553(a) factors and not just in terms of the calculated guideline range.

Split Ninth Circuit reverses (yet again) the prison sentence in unique Paul case

Those who follow post-Booker reasonableness review (too) closely may recall that the Ninth Circuit's unpublished decision in US v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (available here, bogged here), is the only within-guideline sentence reversed as substantively unreasonable.  The Paul case, after resentencing, led to another notable ruling by the Ninth Circuit today in US v. Paul, No. 08-30125 (9th Cir. April 2, 2009) (available here).  Here is how the per curiam majority opinion starts:

 In United States v. Paul, 239 Fed. App’x 353 (9th Cir. 2007) (Paul I), we held that a 16-month sentence imposed on Patricia Betterman Paul for theft from a local government receiving federal funding, a violation of 18 U.S.C. § 666(a)(1)(A), was unreasonable.  Id. at 354. We viewed her case as one that did not fall within the “heartland” of cases to which the Federal Sentencing Guidelines are most applicable, as contemplated by Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2465 (2007) (a court may decide “that the Guidelines sentence should not apply, perhaps because . . . the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply”); cf. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (“any post Booker decision” as to whether a case falls within the heartland “is subject to a unitary review for reasonableness”), and allowed by Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 595 (2007) (rejecting “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside theGuidelines range”).  We vacated the sentence and remanded for resentencing, pointing to four specific mitigating factors that demonstrated the 16-month sentence was unreasonably high.  Paul now appeals the subsequent sentence of 15 months that the district court imposed upon remand. This case presents the question whether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence.  We once more vacate Paul’s sentence, and remand to a different judge for resentencing.

Here is how a lengthy dissent by Judge Hall gets started:

Under the guise of the rule of mandate, the majority seeks to insulate this court’s previous unpublished disposition from intervening Supreme Court and Ninth Circuit precedent. In so doing, the majority demonstrates a complete disregard for the appropriate roles of the sentencing judge and the appellate court.

Sixth Circuit vacates sentence for lack of adequate explanation

Though very few post-Gall appeals lead to reversals of sentences as substantively unreasonable, we are still getting a reasonable number of opinions concluding that a district court has failed to adequately explain the reasons for the sentence it has imposed.  The Sixth Circuit today, for example, in US v. Gapinski, No. 08-1193 (6th Cir. April 2, 2009) (available here), demands a redo because "the record does not show that the district court considered and explained its reasons for rejecting Gapinski’s nonfrivolous argument for a lower sentence based upon substantial assistance to the government."

Ninth Circuit panel splits over adequacy of sentencing explanation

The Ninth Circuit has a long set of opinions covering lots of sentencing ground today in US v. Carter, No. 05-50303 (9th Cir. March 30, 3009) (available here).  Though all practitioners in the Ninth Circuit will want to check out this opinion, the case is more broadly notable because of the panel's split view over the adequacy of the district court's explanation for its long within-guideline sentence.  Here is a part of the partial dissent from Judge Tashima, which reveals the nature of the dispute:

[I]n imposing sentence, the court gave no indication that it had heard Carter’s arguments and imposed sentence with almost no explanation. I believe that the district court erred in failing to address Carter’s arguments, failing adequately to consider the § 3553(a) factors, and failing adequately to explain the sentence that was imposed....

Carter asked the court to apply the statutory mandatory minimum sentence of 360 months — a sentence already many times longer than those of his coconspirators. He argued that his criminal history category was overrepresented.... Carter asked the court to exercise its discretion and impose a below-guidelines sentence, taking into consideration his difficult childhood, his family situation and his young children, and the rehabilitative effect of what would be, under the statutory minimum, thirty years in prison.

Rather than addressing any of Carter’s arguments, the court applied the guidelines sentence, stating that the guidelines had “adequately taken into consideration [Carter’s] actions and criminal history,” and that the “lengthy sentence is sufficiently punitive and hopefully will deter against any further criminal activity.” This rote recitation of a few of the § 3553 factors does not begin to constitute “an individualized assessment based on the facts presented.”  Gall, 128 S. Ct. at 597.  Moreover, the court’s simple affirmative responses to the government’s pointed questions regarding Carter’s arguments do not provide a record that “makes clear that the sentencing judge listened to each argument.”  Rita v. United States, 127 S. Ct. 2456, 2469 (2007).

Relying on Ninth Circuit precedents in which little was said by a district court when imposing a within-guideline sentence, the majority in Carter was not so troubled by the procedural reasonableness of what happened in the district court.

A pretty good week in the circuits for a few federal defendants

Because I was on the road most of last week, I was unable to effectively keep up with all the circuit sentencing rulings.  But my quick review of the circuit week that was seems to suggest that a few federal defendants did better than usual with sentencing appeals in the circuits.  Specifically, defendants got victories in all these cases:

• United States v. Recla, No. 07-1252 (6th Cir. March 25, 2009) (available here)
• United States v. Chase, No. 08-1804 (8th Cir. March 25, 2009) (available here)
• United States v. Mejia, No. 06-50220 (9th Cir. March 24, 2009) (available here)
• United States v. Delgadillo, No. 07-5922 (6th Cir. March 24, 2009) (unpublished) (available here)

None of these rulings seem especially ground-breaking, but victories for defendants on sentencing appeals are rare enough to make these cases still noteworthy.  (And, of course, defendants lost a lot more sentencing appeals last week than they won).

Notable Fourth Circuit (unpublished) vacating of downward variance

Thanks to this post at Fraud with Peril, I see that the Fourth Circuit has today vacated, via an unpublished per curiam opinion, a downward variance in US v. Gaskill, No. 04-4476 (4th Cir. March 20, 2009) (available here).  Here is how this opinion begins:

Appellee Jerry Gaskill was convicted and sentenced in the Eastern District of North Carolina for making materially false statements in connection with a matter within the jurisdiction of the Army Corps of Engineers, in violation of 18 U.S.C. § 1001.  At his sentencing hearing, the district court, over the Government’s objection, granted Gaskill a downward variance from the advisory Sentencing Guidelines range of fifteen to twenty-one months, and imposed a sentence of three years’ probation with six months’ home confinement.  The Government has appealed Gaskill’s sentence, asserting that the court erred in granting the downward variance. As explained below, we agree with the Government, and thus vacate and remand.

Intriguingly, the opinion in Gaskill suggests that the panel has a substantive problem with the sentence imposed, though it ultimately asserts that it is vacating and remainding for procedural unreasonableness:

In the absence of some indication that the sentencing court considered all the § 3553(a) factors, we are unable to conclude that it complied with its § 3553 mandate.... The court’s implicit consideration of only a part of a single § 3553(a) factor ... is insufficient to support the implication that it considered each of the § 3553(a) factors.... Because a sentencing court should provide a more substantial justification for a probationary sentence when the Advisory Guidelines call for an active sentence of imprisonment, such as in this case, we are unable to conclude that the award of a downward variance was procedurally sound.