Sentencing Law and Policy

New(?) Eleventh Circuit ruling affirms two above-guideline sentences

As now reported by the local press and in the blogosphere, the Eleventh Circuit in US v. Williams, No. 07-12526 (11th Cir. Mar. 20, 2008) (available here), has "upheld the conviction and eight-year prison sentence of a former Coca-Cola Co. secretary found guilty of conspiring to steal trade secrets from the world's biggest beverage company."  Ellen Podgor's post summarizes sentencing highlights from Williams:

Williams received [an above guidelines] 96-month sentence, in sharp contrast to a sentence given to an individual who plead guilty and received a 24-month sentence.  The 11th Circuit held that giving enormous weight to one factor — in this case the seriousness of the offense — does not mean the sentence is unreasonable.

One interesting curiosity from this opinion is that it is dated March 20, but was only released this week.  There must be an interesting story as to why this high-profile ruling languished behind a virtual Eleventh Circuit file cabinet somewhere, but Howard Bashman is surely more qualified than me to figure out this appealing mystery.

Tenth Circuit rejects government appeal of below-guideline sentence

In a decision that talks a lot about post-Gall sentencing realities, the Tenth Circuit today affirms a below-guideline sentence in US v. Munoz-Nava, No. 06-2247 (10th Cir. May 6, 2008) (available here).  The calculated guideline range in Munoz-Nava was 46-57 months and the district court imposed a sentence of one-year-and-one-day. 

The Munoz-Nava decision has lots of pro-discretion language that should please both district judges and defense attorneys; prosecutors, not so much.  Here is one of many notable paragraphs:

The government asks us to discount the district court’s imposition of a term of home confinement and supervised release. While not as severe as an equivalent custodial sentence, home confinement and supervised release substantially restrict the liberty of a defendant.  Gall, 128 S. Ct. at 595. Here, Muñoz-Nava is also subject to special conditions imposed by the court. In considering the sentence as a whole we cannot ignore non-custodial components.  See id. at 596. The imposition of home confinement and supervised release contributes to our conclusion that Muñoz-Nava’s sentence is reasonable.  The lengthy term of supervised release requires Muñoz-Nava to continue his good behavior and ensures that he will suffer consequences if he departs from his current path. The district court chose to emphasize these non-custodial components of the sentence in response to the specific characteristics of Muñoz- Nava.  This emphasis was not unreasonable.

Deep thoughts about cost-benefit analysis in federal sentencing

The Ninth Circuit issued an interesting little sentencing decision today in US v. Tapia-Romero, No. 05-50121 (9th Cir. May 1, 2008) (available here). Here is how the decision starts and a key passage:

In this opinion, we hold that the district court correctly concluded that the cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment under 18 U.S.C. §§ 3553(a) and 3582(a)....

Neither of the provisions relied on by Tapia-Romero require or allow sentencing courts to consider the cost to society of imprisoning a defendant.  And our review of the remaining provisions of § 3553(a) leads us to the same conclusion — § 3553(a) neither requires, nor allows, a court to consider the cost of imprisonment in determining the appropriate length of a defendant's term of imprisonment.

Though I think the Ninth Circuit panel is on solid ground when it asserts that the text of 3553(a) plainly does not require a district court to consider at sentencing the cost to society of imprisoning a defendant, I question whether it is accurate to read these provisions to prohibit the consideration of these costs.  Indeed, some provisions of 3553(a) arguable support some cost-benefit analysis at sentencing:

1.  The central mandate of 3553(a) calls for the court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."  This phrasing demanding the avoidance of unnecessary punishment suggests that some type of incarceration cost-benefit analysis is appropriate, if not encouraged, under 3553(a).

2.  A subsection of 3553(a)(2)(A) speaks of considering the need for sentences to "promote respect for the law" and section 3553(a)(7) speaks of considering the need for sentences to "the need to provide restitution to any victims of the offense."   Though I do not think these provisions demand consideration of incarceration costs, I can think of settings in which such costs might be validly relevant to a sentencing judge's effort to craft an effective sentence in a particular case.

Putting the Tapia-Romero in some broader context, I cannot help but speculate whether this ruling creates new question about considering family "costs" at sentencing through departures (or variances) for family circumstances.  As I detailed in this 2001 FSR article, titled "Addressing Why: Developing Principled Rationales for Family-Based Departures," the precise statutory basis for considering third-party harms or costs in light of the provisions of 3553(a) has never been perfectly clear.  If the Ninth Circuit now reads 3553(a) to prohibit the consideration of incarceration costs to the government at sentencing, can't parties now assert that it also prohibits the consideration of certain other third-party costs not directly related to the offense.

Finally, the decision in Tapia-Romero reminds me yet again how disappointing it is that the law and economics movement has never seriously turned its attention to mass incarcerations.  Whatever else one thinks about long prison terms, they rarely seem to be cost-effective (and often do not even appear to be cost-defensible).  Any yet I rarely see any hard-core efforts by hard-core lawyer-economists to do a hard-cost cost/benefit analysis of lengthy terms of incarceration.

Intriguing Second Circuit ruling on sentencing rationales

Issuing an opinion that is not easily summarized (but involves state-federal disparities and co-defendant disparities), the Second Circuit sends us into the weekend with some thoughtful musings in its sentence reversals in US v. Williams, No. 05-4416 (2d Cir. Apr. 25, 2008) (available here). Here is the first paragraph of the opinion to whet Booker reasonableness appetites:

This is an appeal by the United States from judgments, which were entered in the United States District Court for the Southern District of New York, convicting the defendants Brian Williams and Samuel Shuler on their pleas of guilty to conspiracy to possess with the intent to distribute crack cocaine.  The appeal challenges the sentences imposed on the defendants by Judges McMahon and Brieant.  Judge McMahon sentenced Williams principally to a period of incarceration of 36 months, and Judge Brieant sentenced Shuler principally to a period of incarceration of 40 months. While the range prescribed by the Sentencing Guidelines is now 57 to 71 months, at the time the sentence was imposed it was 70 to 87 months.  The manner in which the significantly lower sentences were justified provides the basis for the appeal.

Pair of notable circuit reasonableness rulings

This afternoon brought two notable circuit reasonable rulings.  Notably, the Eleventh Circuit ruling reversing a below-guidelines sentence in a high-profile white-collar case, US v. Livesay, No. 06-11303 (11th Cir. Apr. 23, 2008) (available here) is published; the Fourth Circuit ruling affirming a below-guidelines sentence in a low-profile child porn case, US v. Smith, No. 06-4885 (4th Cir. Apr. 23, 2008) (available here) is unpublished.

Big efforts to reverse Second Circuit white-collar sentence reversal

Last month, as detailed in this post, the Second Circuit issued a long opinion in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), which reversed a pair of below-guideline sentences for white-collar offenders as procedurally and substantively unreasonable.  As documents in the series of filings set forth below, both defendants who had their below-guideline sentences reverse andthe New York Council of Defense Lawyers are urging the Second Circuit to rehear this case en banc.

• Download cutler_rehearing_brief.pdf

• Download freedman_rehearing_pet.pdf

• Download cutler_amicus_brief.pdf

Eleventh Circuit reverses sentence "impermissible factor"

The Eleventh Circuit has reversed a short probation revocation sentence US v. Velasquez, No. 06-16637 (11th Cir. Apr. 21, 2008) (available here) because the judge relied on an "impermissible factor."  Here are the highlights:

Wilber Guillermo Velasquez Velasquez appeals his nine-month sentence for violation of his supervised release. Velasquez’s sole argument on appeal is that his sentence was based on the district court’s disapproval of the fact that immigration officials had released him on bond pending the outcome of his asylum proceedings.  Velasquez argues that the district court exceeded its statutory sentencing authority by basing his sentence on this fact.  We agree.  Whether he should have been detained or released during the pendency of his immigration proceedings was a matter for an immigration judge to decide, and the district court lacks jurisdiction over immigration matters.  We vacate his sentence and remand for resentencing....

In reviewing the reasonableness of a sentence imposed after conviction, we review de novo, as a question of law, whether a factor considered by the district court in sentencing a defendant is impermissible.  United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). “A sentence that is based entirely upon an impermissible factor is unreasonable because such a sentence does not achieve the purposes of § 3553(a).”  United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006).

Here, the district court imposed Velasquez’s sentence as if it were reviewing (and overturning) the IJ’s decision to release Velasquez on bond pending his immigration proceedings.  However, the district court lacks the authority to do so.

Thoughtful criticism of Second Circuit white-collar sentence reversal

Last month, as detailed in this post, the Second Circuit issued a long opinion in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), which reversed a pair of below-guideline sentences for white-collar offenders as procedurally and substantively unreasonable. Writing in the New York Law Journal, Alan Vinegrad and Doug Bloom have now produced an extended (and mostly critical) analysis of the Culter case.  Here is a snippet from the analysis (which can be downloaded below thanks to the NYLJ):

In a series of recent decisions, the U.S. Supreme Court has made clear that in establishing "reasonableness" review of sentences, its 2005 Booker decision restored the "substantial deference" that the Court decreed, over a decade ago, was owed sentencing judges.

Last month, however, in its first major application of these decisions to a substantially below-the-range sentence, the U.S. Court of Appeals for the Second Circuit, in United States v. Cutler, gave sharp teeth to reasonableness review, undertaking a searching analysis not only of the district court's sentencing procedure but also of the factual underpinnings and reasonableness of the ultimate sentences....

Cutler seems in tension with another of the Second Circuit's recent descriptions of its approach to reasonableness review.  Just two weeks before Cutler, in United States v. Regalado, the court "confirm[ed] the broad deference that this Circuit has afforded the sentencing discretion of the district courts."  Time will tell whether, or how, these seeming conflicts in the Second Circuit's approach to sentencing review are ultimately resolved.

Download nylj_on_cutler.pdf

Telling trio of reasonableness reversals in the circuits

Anyone who expected or hoped that the Supreme Court's rulings in Gall and Kimbrough would radically change the nature and nuances of circuit court reasonableness review should be sure to check out this trio of circuit sentencing reversals from Tuesday:

• From the Seventh Circuit, US v. Omole, No. 06-2252 (7th Cir. Apr. 15, 2008) (available here)

• From the Ninth Circuit, US v. Grissom, No. 06-10688 (9th Cir. Apr. 15, 2008) (available here)

• From the Tenth Circuit, US v. Pena-Hermosillo, No. 06-8075 (10th Cir. Apr. 15, 2008) (available here)

There is a lot of thoughtful nuance in all of these rulings, which defy simple summaries.  It can and should be readily noted, however, that the government prevails in its sentencing appeal in all three cases.

Sixth Circuit splits on the substantive unreasonableness of probation sentence in fraud case

Today in US v. Hunt, No. 06-6300 (6th Cir. April 11, 2008) (available here), a panel of the Sixth Circuit splits over the substantive reasonableness of a probation sentence in a fraud case.  Here is one notable passage from the majority (with cites omitted):

The district court appears to have relied in substantial part on its doubt that Hunt intended to commit fraud. If the district court did so rely, then it is necessary for us to remand under the abuse-of-discretion scope of review. This is because it would be improper for the judge in sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt.  Indeed, we have stated repeatedly, albeit outside the sentencing context, that a district court abuses its discretion when it relies on clearly erroneous facts.  And a factual determination is necessarily clearly erroneous where a jury has previously found to the contrary beyond a reasonable doubt. Nothing in § 3553(a) suggests that Congress intended that sentencing judges should rely on a defendant’s innocence when the defendant has already been found guilty beyond a reasonable doubt. Moreover, it does not matter that the district court relied on a number, even a large number, of relevant facts in its sentencing, if it also relied on facts that it could not properly consider.  Thus we would not hesitate to reverse a sentence if a judge relied on numerous relevant facts but also relied, for instance, on the morning’s horoscope.

Here is one notable passage from the dissent:

The majority holds that it was substantively unreasonable for the district court to rely on an impermissible factor in determining Hunt’s sentence.  The impermissible factor the majority hangs its hat on is what it has termed Hunt’s “innocence.”  This is the majority’s mis-labeling of the fact that the district court found Hunt to be less culpable than other defendants involved in the fraudulent scheme and that the evidence against him was objectively weaker than that against other defendants.  The district court did not rely on his “innocence;” Hunt was found guilty by a jury and that conviction will stay with him for the rest of his life. Instead, after a thorough and thoughtful analysis of the § 3553(a) factors, the district court found Hunt less culpable and sentenced him accordingly.  That is not impermissible, and tellingly, the majority is unable to point to a single sentencing case in support of its holding.

Notable new Fifth Circuit opinion on post-Gall sentence review

A helpful reader pointed me to the Fifth Circuit's work in United States v. Bonilla, No. 06-40894 (5th Cir. Apr. 10, 2008) (available here) which was released just today and grapples with the sentencing process the Supreme Court laid out in Gall.  Here is one of various interesting snippets:

Examining the full sentencing record reveals the district court’s reasons for the chosen sentence and allows for effective review by this court.  Our task would have been easier had the district court stated its reasons explicitly on the record, a procedure we strongly recommend. A clear statement of reasons on the record also serves to prevent the inefficiency that would result from remand and resentencing if on appeal we had been unable to determine the court’s reasons from the record. In this case however, our review makes clear both the reasons for the sentence and their adequacy as a matter of law.

Regular readers probably do not need too many hints to figure out which party's sentencing appeal is being rejected in Bonilla.

Fast-track fast talk from the Fifth Circuit

The Fifth Circuit this week discussed fast-track programs and their impact on non-fast-track defendants at some length in US v. Rodriguez, No. 07-10535 (5th Cir. Apr. 1, 2008) (available here).  Here is one notable passage from the opinion:

Rodriguez asserts that Rita v. United States, 127 S. Ct. 2456 (2007) and Kimbrough v. United States, 128 S.Ct 558 (2007), undermine the line of cases that concluded that Booker, which made the Guidelines purely advisory, did not give sentencing courts the discretion to impose a non-Guidelines sentence based on disagreement with Congressional and Sentencing Commission policies such as allowing some districts to have fast-track programs while others do not.  For the reasons set forth in United States v. Gomez-Herrera, No. 07-10153, decided this day, we reject this argument. Rita and Kimbrough allow a district court to impose a non-Guideline sentence based on disagreement with Guideline policy that results in a sentence greater [and presumably less] than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).  Any sentencing disparity resulting from the implementation of fast track programs in some but not all sentencing jurisdictions results from Congressional, not Guideline, policy. Accordingly, the sentencing disparity is not “unwarranted” within the meaning of 18 U.S.C. § 3553(a)(6).

Aside from the merits of the Rodriguez ruling, I am wondering if the Fifth Circuit was getting into the April Fool's spirit here because I now cannot seem to find the referenced decision in United States v. Gomez-Herrera, No. 07-10153.  The reference above suggests that fast-track issues are discussion more fully in this other Fifth Circuit ruling, but as of this writing I cannot find the ruling anywhere on the Fifth Circuit website.  Perhaps fast-track gremlins made fast work of the decision.

Ninth Circuit continues to expound on federal sentencing circa 2008

As noted in this post, the Ninth Circuit last Monday finally issued its en banc rulings in Carty and Zavala to expound upon its view of post-Booker federal sentencing law and practice.  To close the week, the Ninth Circuit applied its newly-described wisdom in US v. Crawford, No. 06-30205 (9th Cir. Mar. 28, 2008) (available here).  This post at the Ninth Circuit Blog provides an astute take on the post-Booker path being taken out west.  Here is part of the analysis by Steven Sklar:

Chief Judge Alex Kozinski loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence. United States v. Carty, __ F.3d __, 2008 WL (9th Cir. Mar. 24, 2008) (en banc), decision available here. Great news -- except that 595 months (49 1/2 years) of guideline sentences are affirmed despite the new rule....

Judge Rymer authors; Chief Judge Kozinski writes an unfortunately accurate concurrence ... [as he] crows that the majority effectively adopts a presumption of guideline reasonableness, because the opinion’s appellate review (and acceptance) of the two (remarkably high) sentences given to Zavala and Carty is so casual, and so deferential, that the Court essentially assumes that the pair of guideline sentences are “reasonable.”...

Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice.... Judge Rymer also teaches us how to salt an appellate record (to the extent still possible). Want to force your district judge into actually wrestling with your arguments, on the record? Then raise “a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence.” Faced with such arguments, the sentencing judge “should normally explain why he accepts or rejects the party’s position.”  On the subject of salting, here’s a list of procedural errors that the Ninth targets for its first pass on appellate review:

• failure to calculate, or incorrect calculation, of the guideline range;
• treating the Guidelines as mandatory instead of advisory;
• failure to consider the § 3553(a) factors;
• choosing a sentence based on clearly erroneous facts; and
• failure to adequately explain the sentence selected, including any deviation from the Guidelines range.

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

Ninth Circuit issues long-awaited en banc opinion on post-Booker universe

Resolving a set of long-pending en banc cases concerning post-Booker realities, the Ninth Circuit in US v. Carty, No. 05-10200 (9th Cir. Mar. 24, 2008) (available here), has given its account on post-Booker sentencing.  The Court's many notable bullet points provide something like a restatement of the post-Gall sentencing universe, which makes Carty a must-read for everyone involved in federal sentencing.

Major First Circuit ruling on post-Booker realities

Thanks to AL&P, you can read a full summary here of the First Circuit's important post-Booker work from last Friday in US v. Martin, No. 06-1983 (1st Cir. Mar. 21, 2008) (available here).  Because I'm wrapped up with grading these days, I will have to be content just to quote Judge Selya's telling (and surprisingly readable) first paragraph from Martin:

In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court shed considerable light on the scope and extent of a district court's discretion under the now-advisory federal sentencing guidelines.  See id. at 598-602. This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda.

Looooong Second Circuit ruling finds below-guideline sentences unreasonable

In a long opinion that discusses Booker and Gall at length, the Second Circuit today in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), reverses a pair of below-guideline sentences as both procedurally and substantively unreasonable.  Here is how the majority opinion, per Judge Kearse, ends (on page 77!):

We have considered and found to be without merit the arguments of Cutler and Freedman in opposition to the government's appeal and cross-appeal, respectively, challenging the sentences imposed on them.  Given the procedural errors, the clear factual errors, and the misinterpretations of the § 3553(a) factors discussed above — in particular of the needs to provide just punishment, to afford adequate deterrence of crimes by others, to avoid unwarranted disparities among similarly situated defendants, and to promote respect for the law — we conclude that the court's sentence on Cutler insofar as it ordered him to serve a relatively short term of imprisonment, and its sentence on Freedman insofar as it imposed no term of imprisonment, are substantively unreasonable and constituted an abuse of discretion. Accordingly, the sentences imposed on Cutler and Freedman are vacated, and the matters are remanded for further proceedings not inconsistent with this opinion.

Judge Pooler concurs — in a one-page opinion! — that includes these comments:

I agree with the majority that the two sentences about which we write today must be vacated and the cases remanded to the district court. My disagreement is, in part, with the breadth of the discussion.... Since we find that the district court has not, as yet, imposed a procedurally adequate sentence, my understanding of United States v. Booker, 543 U.S. 220 (2005), and [its progeny] is that it is premature for the appellate court to engage in substantive review....

By concluding that the sentences of Cutler and Freedman are substantively unreasonable, the majority is substituting its view of what their proper sentences are, for that of the district court, an exercise we are reminded is not within our province to accomplish.

Ninth Circuit (unpublished) reversal for procedural unreasonableness

This Los Angeles Times article provides the full story of this unpublished Ninth Circuit ruling, which reverses a below-guideline sentence.  Here are details from the LA Times article:

Citing procedural error, a federal appeals panel has overturned the controversial sentence U.S. District Judge Manuel Real imposed on an admitted con man who bilked scores of people out of millions of dollars by offering investments in a sham TV series about the Department of Homeland Security.... Joseph Medawar, who was sentenced in December 2006 to serve a year and a day in prison, could face more time in custody.

Medawar, a onetime Hollywood producer, avoided trial by pleading guilty to income tax evasion and conspiracy to commit mail fraud. Federal prosecutors sought a sentence of 57 months; even Medawar's trial attorney requested 33 months.  But when Medawar, 46, appeared for sentencing, the judge imposed his own, much shorter term.  Though Medawar was also ordered to pay $2.6 million in restitution and to perform 3,000 hours of community service, his prison sentence outraged victims of the fraud.

Ruling this week on an appeal filed by the U.S. attorney's office in Los Angeles, the 9th Circuit panel concluded that Real erred by not calculating Medawar's term under federal sentencing guidelines and by failing to consider other sentencing factors established under federal law. Moreover, the panel said, Real did not provide a "significant justification" for imposing a sentence far below the range of 57 to 71 months set under the guidelines.

Reversing a hot Pepper in the Eighth Circuit

The Eighth Circuit today handed down an opinion in US v. Pepper, No. 06-2453 (8th Cir. Mar. 11, 2008) (available here), which highlights the enduring struggle of post-Booker appellate review of sentencing.  Here is how the case starts:

In United States v. Pepper, 412 F.3d 995, 999 (8th Cir. 2005) (Pepper I), we held the district court erred by granting a 75% downward departure for Jason Pepper’s (Pepper) substantial assistance and imposing a sentence of 24 months imprisonment, because the district court erroneously based the extent of the departure on matters unrelated to Pepper’s assistance.  On remand, the district court granted a 40% downward departure (five offense levels) for substantial assistance, followed by a 59% downward variance (eight offense levels), and again imposed a sentence of 24 months imprisonment.  The government appealed.  We reversed and remanded the case for resentencing by a different judge, pursuant to our authority under 28 U.S.C. § 2106.  United States v. Pepper, 486 F.3d 408, 413 (8th Cir. 2007) (Pepper II). Pepper appealed.  The Supreme Court vacated our judgment and remanded the case to us for further consideration in light of Gall v. United States, 522 U.S. ___ (2007).  Having carefully considered Gall’s impact on Pepper’s case, we again reverse the sentence of the district court and remand for resentencing by a different judge.

Tenth Circuit splits over reasonableness of below-guideline sentence

In a lengthy decision, a split Tenth Circuit panel upheld the reasonableness of a below-guideline sentence in a sex offense case in US v. Smart, No. 06-6120 (10th Cir. Mar. 4, 2008)(available here).  Here is how the majority opinion starts:

Christopher Wayne Smart was convicted of inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct in violation of 18 U.S.C. § 2251(a). Exercising its discretion under United States v. Booker, 543 U.S. 220 (2005), Smart’s sentencing court concluded that his United States Sentencing Guidelines (“Guidelines”) range of 168 to 210 months’ imprisonment overstated the seriousness of his offense, and varied downward, imposing a sentence of 120 months’ imprisonment. The government appeals.

We review this exercise of district court sentencing discretion under the recent Supreme Court holdings in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which substantially invalidate the rigorous form of review our circuit announced in United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007). Applying a deferential abuse of discretion standard, we AFFIRM.

The extended dissent by Judge Hartz begins by asserting that "the majority opinion has mischaracterized the government’s arguments in this case and has misconceived the meanings of substantive and procedural error."

Lots of coastal circuit sentencing talk

Busy days and bigger issues have kept me from keeping up with all of this week's circuit sentencing law, but I did notice two recent rulings from the coasts that local folk will want to give a look:

• From the DC Circuit, US v. Brown, No. 03-3102 (DC Cir. Feb. 29, 2008) (available here).

• From the Ninth Circuit, US v. Barsumyan, No. 07-50251 (9th Cir. Feb. 28, 2008) (available here).

There are some especialy interesting part of Barsumyan for anyone who has thought deeply about how the post-Booker world might have been constructed to look a lot different than it looks right now.

Split Third Circuit ruling on guideline calculation errors after Booker

The Third Circuit today issued a long split-panel opinion in US v. Langford, No. 06-2774 (3d Cir. Feb. 22, 2008) (available here), which provides yet another remind of how many tough issues Booker created for appellate courts trying to make sense of reasonableness review.  Here is the basic holding in Langford as stated at the start of the majority's opinion:

Langford argues that the District Court improperly calculated his criminal history score and consequently chose an erroneous Sentencing Guidelines range as the first step in the sentencing process, and that he should therefore be resentenced. The government urges that the error is harmless because the applicable Guidelines range overlaps with the correct range.  The application of the harmless error standard to a sentence in this fact setting is an issue of first impression in our Court.  We will join our sister courts of appeals who have decided this issue and hold that the error is not harmless.  We will accordingly vacate Langford’s sentence and remand to the District Court for resentencing.

Here is the different perspective brought to bear by Judge Weis in the heart of hisdissent:

Rita, Gall, and Kimbrough show that appellate review hinges on the reasonableness of the ultimate sentence as based on the total § 3553(a) analysis, rather than on the calculation of the Guidelines range. The reasonableness of a sentence will not be vitiated by an “insignificant” error in the Guidelines calculation.  The Guidelines computation should be performed carefully, but it is designed to produce a range –- not a designated point. Consequently, the Guidelines calculation need not be as precise as an engineering drawing.

There is enough play in the system to allow for harmless error. Although a sentence may be unreasonable if a district court makes clearly erroneous factual findings when determining the Guidelines range, the doctrines of plain error or harmless error can apply to preserve the sentence imposed....  If the computations, even if erroneous, lead the district judge to consider a reasonable range of sentences that is not a marked deviation from the national estimate provided by the correct Guidelines range, they have fulfilled their proper role....

Sixth Circuit back in action with three sentencing rulings

Coming back strong after a long weekend, the Sixth Circuit today has handed down three opinions that all have significant sentencing discussions.  A very quick read of these three opinions suggests that none breaks significant new ground, but all three are worthy of attention for their continued elaboration of post-Booker and post-Gall appellate review realities:

• US v. Smith, No. 06-1218 (6th Cir. Feb. 19, 2008) (available here) (affirming above-guideline sentence in fraud case)

• US v. Phillips, No. 06-6191 (6th Cir. Feb. 19, 2008) (available here) (affirming within-guideline sentence in gun case)

• US v. Wheaton, No. 06-4080 (6th Cir. Feb. 19, 2008) (available here) (affirming within-guideline sentence in drug case)

Tenth Circuit enforces need for proper guideline calculation

The Tenth Circuit discusses at length post-Booker sentencing realities today in US v. Todd, No. 06-6334 (10th Cir. Feb. 12, 2008) (available here).  That discussion starts this way:

On two separate occasions, police apprehended Jared Lee Todd and recovered from him small vials that contained, in total, approximately 37 grams of methamphetamine. In conversations with police, Mr. Todd admitted that his drug dealings went much further, and that he had purchased for redistribution at least two ounces of methamphetamine every month over the last year (680.4 grams in total).  Other facts presented to the district court tended to confirm Mr. Todd’s admission.  After a jury convicted Mr. Todd of two counts of possessing methamphetamine with intent to distribute, the district court, in calculating the total attributable drug quantity for purposes of the United States Sentencing Guidelines, used only the 37 grams of methamphetamine actually confiscated from Mr. Todd. The court then proceeded to expressly rely on the recommended sentencing Guidelines range for that amount in assigning a sentence to Mr. Todd.

While the Supreme Court’s recent opinion in Gall v. United States, 128 S. Ct. 586 (2007), underscores the discretion district courts are properly due in sentencing, it also reiterates that courts must begin their analysis by calculating correctly the applicable Guidelines sentencing range.  Though a district court may choose ultimately to depart or vary from the Guidelines, a properly calculated Guidelines range is, the Court explained, “the starting point and the initial benchmark” in any sentencing decision. Id. at 596. In this case, all of the evidence on record, including testimony of Mr. Todd’s own admission, indicated that he possessed with the intent to distribute quantities of methamphetamine far in excess of 37 grams.  In light of this overwhelming evidentiary imbalance, we are obliged to hold that the district court’s use of that drug quantity when calculating the advisory Guidelines range was clearly erroneous, and, given its reliance on the Guidelines when passing sentence, we cannot say the court’s error was harmless.

No rest for the sentencing weary in the Sixth Circuit

Though I just finished consuming the amazing Sixth Circuit opinions in the Vonner en banc ruling late last week, this morning brings another must-read for the Sixth Circuit sentencing aficionado.  The ruling comes in US v. Thompson, No. 06-6233 (6th Cir. Feb. 11, 2008) (available here), and once again Judge Merritt's dissent (and the majority's response) that provides the most potent quotables.  Consider these two sentences, for example, from the last paragraph of the dissent:

Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the deliberative or reflective process outlined by the two overriding principles stated above.  The determinate sentence based on judicial fact finding, including a consecutive mandatory sentence based entirely on facts never found by the jury or admitted, makes the principle of Blakely, Booker, and Cunningham a joke.

The majority gets in a few zingers during the jurisprudence debate, as evidenced by these lines of response:

The dissent proposes a “Golden Mean” to guide sentencing courts based in part on the principle that all judicial factfinding must be eschewed unless either the factfinding results in a sentence somewhere within the initial base-offense level under the Guidelines or the district court explicitly explains why the concepts of general and individual deterrence outweigh the mitigating circumstances and the likelihood of successful rehabilitation.  Dis. op. at 14.  In order to adopt this Golden Mean, however, courts would first have to don the crowns of philosopher-kings — for that is the only way that any court in this circuit could avoid the clear import, reasoning and holding of binding precedent.

Of course, courts are unlikely to be able to don the crowns of philosopher-kings anytime soon: few ivory-tower academics are likely to give up these crowns with a serious fight.

Today's Sixth Circuit must-read on reasonableness

I'll have to read all the analysis before commenting, but How Appealing provides the basics on the latest Sixth Circuit reasoned discussion of reasonableness:

En banc Sixth Circuit issues decision addressing "reasonableness" review of criminal sentence imposed under federal Sentencing Guidelines: The court splits 9-6 over the outcome, and one of the three dissenting opinions cites U.S. District Judge Richard G. Kopf's blog-based "top ten" list.

UPDATE:  All four opinion in Vonner are amazing, and I am sort of at a loss for fitting commentary — except to say I am proud of all the judges who wrote opinions and took the time to work through all the challenges that Booker and its progeny present for lower courts.  Against this backdrop, the final paragraph of the majority opinion is especially worth spotlighting:

Since Booker, the Supreme Court has handed down three cases about appellate review of challenges to the lengths of criminal sentences and the processes for determining them. See Rita, 127 S. Ct. at 2470; Gall, 128 S. Ct. at 602; Kimbrough v. United States, 128 S. Ct. 558, 576 (2007). One theme runs through all three cases: Booker empowered district courts, not appellate courts and not the Sentencing Commission.  Talk of presumptions, plain error and procedural and substantive rules of review means nothing if it does not account for the central reality that Booker breathes life into the authority of district court judges to engage in individualized sentencing within reason in applying the § 3553(a) factors to the criminal defendants that come before them. If there is a pattern that emerges from Rita, Gall and Kimbrough, it is that the district court judges were vindicated in all three cases, and a court of appeals was affirmed just once — and that of course was when it deferred to the on-the-scene judgment of the district court.  Our affirmance in today’s case respects the central lesson from these decisions — that district courts have considerable discretion in this area and thus deserve the benefit of the doubt when we review their sentences and the reasons given for them.

Another notable sentencing ruling from the Sixth Circuit

Keeping up with just the Sixth Circuit sentencing jurisprudence is becoming a full-time job, and today brings yet another thoughtful sentencing ruling from a panel of that court.  Today's work is in US v. Conatser et al., Nos. 06-5694/5946 (6th Cir. Feb. 4, 2008) (available here), and the start of Judge Moore's partial concurrence provides a flavor for some of the issues being discussed in this decision:

I join the majority opinion in most respects, but I write separately because I believe that the majority gives inadequate attention to Marlowe’s argument that his sentence of life imprisonment violates the Sixth Amendment because judge-found facts triggered a substantial increase in his advisory Guidelines range.  Although I do not believe that Marlowe’s sentence violates the Constitution, his claim deserves a more detailed analysis than it received in the majority opinion.  Therefore, I concur in the judgment upholding Marlowe’s sentence.

The latest sentencing wisdom from the Sixth Circuit

An array of Sixth Circuit panels keep churning out thoughtful sentencing opinions.  The latest one comes today in US v. Vowell, No. 06-5742 (6th Cir. Jan. 29, 2008) (available here), which starts this way:

Co-Defendants/Appellants Katherine Sue Pratt (“Pratt”) and Walter Franklin Vowell (“Vowell”) appeal the sentences imposed by the district court after they pleaded guilty to coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct and possession of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) respectively. The district court sentenced Pratt to 240 months on count one and 120 months on count two, to be served concurrently, followed by a lifetime of supervised release. It sentenced Vowell to 540 months on count one and 240 months on count two, to run consecutively, for a total of 65 years in federal prison, followed by a lifetime of supervised release.

Both Vowell and Pratt filed timely appeals, challenging the procedural and substantive reasonableness of their respective sentences. Pratt also claims that the district court plainly erred by failing to notify her of its intention to sentence her above the Guidelines range. Because we conclude that both sentences were reasonable, and that Pratt had adequate notice of the district court’s intention to sentence her above the Guidelines range, we AFFIRM both sentences.

As this start suggests, this fact section of this opinion is definitely for mature audiences only.

Two notable sentencing rulings from the Eighth Circuit

More proof that Gall and Kimbrough do not mean defendants always win sentencing appeals comes from two published decisions today from the Eighth Circuit.  My friends cut and paste help me provide these unofficial summaries from this official circuit webpage:

US v. Pearl E. Freemont, No: 06-3175 [PUBLISHED] [Melloy, Author, with Murphy and Smith, Circuit Judges](available here):

In this case, the government's reason for not making a substantial assistance motion on defendant's gun count was within the permissible bounds of prosecutorial discretion and was based on a rational assessment of the situation; defendant produced no evidence that the government was acting in bad faith in refusing to make the motion, and the court erred in compelling the government to make the motion; district court erred by granting a conditional Booker variance on the gun count's mandatory minimum sentence; court also erred in granting a Booker variance on defendant's statutory mandatory drug counts as a reduction below the statutory maximum can only be based on assistance-related factors and cannot be based on 18 U.S.C. Sec. 3553(a) factors; reversed and remanded for resentencing.

US v. Ashanti Washington, No: 06-3584 and No: 06-3954 [PUBLISHED] [Hansen, Author, with Wollman and Riley, Circuit Judges] (available here):

Defendant Williams executed a valid waiver of his appeal rights when he pleaded guilty, and his appeal is dismissed; district court did not abuse its discretion in imposing a 72- month non-Guidelines sentence in defendant Washington's case.

Panel splits in today's circuit sentencing stories

The end of a busy week brings two notable split decisions on sentencing issues from panels of the Sixth and Ninth Circuits:

• In US v. Madden, No. 05-4304 (6th Cir. Jan. 25, 2008) (available here), we get Judge Gilman delivering an opinion joined by Judge Siler, with Judge Moore dissenting on a sentencing issue.

• In US v. Cherer, No. 06-10642 (9th Cir. Jan. 25, 2008) (available here), we get Judge Trager (a NY District Judge sitting by designation) delivering an opinion joined by Judge McKeown, with Judge Noonan dissenting on a sentencing issue.

Cherer seem to be the more consequential of the opinions, in part because it has the first extended Ninth Circuit discussion of Gall.  Also, because of the split and the presence of a district judge on the panel, I would guess Cherer has some en banc potential.

Distinguishing enhancements based on dismissed conduct and acquitted conduct

Providing another great read, the Sixth Circuit today continued its busy sentencing ways with an interesting ruling in US v. Conway, No. 06-4083 (6th Cir. Jan. 23, 2008) (available here).  Of particular note in Conway is this extended discussion of the distinction between sentencing enhancements based on dismissed conduct and based on acquitted conduct:

[Rejecting other defense claims] leaves a less conventional theory — that the Sixth Amendment prohibits courts from enhancing sentences based on charged, but dismissed, conduct.  Noting that our court recently granted en banc review in United States v. White, 503 F.3d 487 (6th Cir. 2007), reh’g en banc granted, op. withdrawn, 2007 U.S. App. LEXIS 28902 (6th Cir. Nov. 30, 2007), which will consider whether the Sixth Amendment allows sentencing courts to rely on acquitted conduct in enhancing a sentence, see United States v. Watts, 519 U.S. 148 (1997), Conway maintains that a judge’s reliance on dismissed conduct presents a constitutional issue of equal magnitude.  We do not agree. In contrast to the defendant in White, Conway has not been acquitted of anything. He thus has no jury verdict to point to as evidence that the conduct underlying the dismissed counts could not be — or should not be — relied upon by a judge at sentencing. For that reason alone, sentencing based on dismissed conduct stands on far firmer ground than sentencing based on acquitted conduct.

But there is a broader problem with this argument.  The central premise of most plea agreements is that they waive the defendant’s Sixth Amendment right to a jury trial, not that they vindicate it.  Consistent with that premise, the plea agreement in this case makes it clear that the sentencing judge will determine what Conway’s sentence will be and will determine whether he possessed the shotgun. It notes that Conway “is aware that, in light of United States v. Booker, 125 S.Ct. 738 (2005), the United States Sentencing Guidelines are advisory” and that Conway “is aware that the Court has jurisdiction and authority to impose any sentence within the statutory maximum” for the offense to which he pleaded guilty. It then notes that Conway “is contesting that he had any ownership or possession of said firearm,” leaving no doubt that one of the issues that the court would have to decide was whether Conway possessed the shotgun. In contrast to the defendant who vindicates his Sixth Amendment right to a jury trial by contesting the indictment, by putting the government to its proof and by obtaining an acquittal, a defendant who enters a plea agreement like this one waives any constitutional right to a jury determination of guilt or sentencing facts — so long as the ultimate sentence falls within the statutory range.

Sixth Circuit jurists struggling smartly with sentencing review

The Sixth Circuit deserved a rest during this long weekend.  On Friday, the Sixth Circuit capped a busy sentencing week with another split sentencing ruling in US v. Grossman, No. 06-2310 (6th Cir. Jan. 18, 2008) (available here).  In Grossman, the majority affirms a below-guideline sentence with Judge Sutton offering these insights about post-Gall sentencing realities:

Perhaps most importantly, Gall shows that the sentencing process involves an exercise in judgment, not a mathematical proof....

The government questions the reasons offered by the sentencing judge for lowering the sentence — namely, that he seemed to think that some of the enhancements bordered on double counting and that he categorically disagreed with some of the enhancements. To the extent the court viewed the guidelines as duplicative, that by itself would not justify a downward variance. But the defendant did not argue that the enhancements amount to impermissible double counting, and the record contains no evidence that they do. That is presumably why the court said that the enhancements “almost repeat one another” in this case, JA 27 (emphasis added), which speaks not to a problem of double counting but to a perception that the guidelines sentence is higher than this conduct deserves — a concern that Booker aptly allows a court to consider in applying advisory guidelines.

Writing in dissent, Judge Boggs says he "agree[s] completely with Judge Sutton’s analysis of the Gall and Kimbrough cases," but he is concerned that the district court's statements reveal a "clearly improper calculation" of the Guidelines which the majority improperly allows to be rescued simply by a "statement of reasons that could justify a variance." 

Some other recent Sixth Circuit action:

• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
• Great Sixth Circuit dissent laments “guidelinitis”
• Sixth Circuit continues taking reasonableness review seriously
• More notable Sixth Circuit reasonableness work

Potent Eighth Circuit opinion affirming below-guideline probation sentence

Another Eighth Circuit decision today, this time in US v. Lehmann, No. 06-3597 (8th Cir. Jan. 17, 2008) (available here), highlights the import and impact of the Supreme Court's work in Gall.  Lehmann affirms a below-guideline sentence of probation on a record that seems surely to have led to a reversal before Gall.  Here are excerpts from the ruling (with some cites omitted):

It is undisputed that the district court correctly calculated the advisory sentencing guidelines range, whi