Tuesday, December 18, 2012
Fascinating Judge Posner concurrence concerning carceration costsAn otherwise unremarkable per curiam Seventh Circuit panel opinion in US v. Craig, No. 12-1262 (7th Cir. Dec. 18, 2012) (available here), affirming a 50-year sentence for the producer of child pornography is blogworthy thanks to a lengthy concurrence by Judge Richard Posner. The full opinion is today's must-read, and here are snippets from the start and end of Judge Posner's opinion (with cites omitted):
I write separately merely to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences. If the defendant in this case does not die in the next 50 years he will be 96 years old when released (though “only” 89 or 90 if he receives the maximum good-time credits that he would earn if his behavior in prison proves to be exemplary). Maybe 50 years from now 96 will be middle-aged rather than elderly, but on the basis of existing medical knowledge we must assume that in all likelihood the defendant will be dead before his prison term expires.
Federal imprisonment is expensive to the government; the average expense of maintaining a federal prisoner for a year is between $25,000 and $30,000, and the expense rises steeply with the prisoner's age because the medical component of a prisoner’s expense will rise with his age, especially if he is still alive in his 70s (not to mention his 80s or 90s). It has been estimated that an elderly prisoner costs the prison system between $60,000 and $70,000 a year.
That is not a net social cost, because if free these elderly prisoners would in all likelihood receive Medicare and maybe Medicaid benefits to cover their medical expenses. But if freed before they became elderly, and employed, they would have contributed to the Medicare and Medicaid programs through payroll taxes — which is a reminder of an additional social cost of imprisonment: the loss of whatever income the prisoner might lawfully have earned had he been free, income reflecting his contribution to society through lawful employment.
The social costs of imprisonment should in principle be compared with the benefits of imprisonment to the society, consisting mainly of deterrence and incapacitation. A sentencing judge should therefore consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one....
Sentencing judges are not required to engage in cost-benefit analyses of optimal sentencing severity with discounting to present value. Such analyses would involve enormous guesswork because of the difficulty of assessing key variables, including one variable that I haven’t even mentioned, because I can’t imagine how it could be quantified in even the roughest way — the retributive value of criminal punishment. By that I mean the effect of punishment in assuaging the indignation that serious crime arouses and in providing a form of nonfinancial compensation to the victims.
But virtually all sentencing, within the usually broad statutory ranges — the minimum sentence that the judge could have imposed in this case, by making the sentences on all four counts run concurrently, as he could have done, would have been 15 years, 18 U.S.C. § 2251(e), and the maximum sentence, by making them all run consecutively, as he could also have done, would have been 120 years — involves guesswork. I am merely suggesting that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge’s sentencing decision.
December 18, 2012 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Wednesday, December 12, 2012
Fourth Circuit affirms (stat-max) five year sentence for dog-fighting when guideline range at 0-6 monthsIn part because so very few sentences get reversed (or even seriously engaged) under modern reasonableness review, I rarely blog on rulings concerning the post-Booker standards of appellate review. But both the facts and the ruling today by a Fourth Circuit panel in US v. Hargrove, No. 11-4818 (4th Cir. Dec. 12, 2012)(available here), struck me as blog-worthy. Thes snippets highlights why:
The government describes Hargrove as being a "legend" in the dogfighting community. By Hargrove’s own admission, he has been involved in dogfighting activity for over four decades, and at one time he had approximately 250 fighting dogs on his property. Information in the record shows that offspring from one of Hargrove’s fighting dogs, Midnight Cowboy, sold for large sums of money across the country because of its aggressiveness and propensity for fighting. Hargrove advertised his dogs in various dogfighting-related publications, and he is famous in the dogfighting industry for his dogfighting, his breeding activities, his training regimen, and his ability to produce aggressive fighting dogs. His prior criminal history includes a 1983 Georgia felony dogfighting conviction, a 1993 North Carolina animal fighting misdemeanor conviction, and a 2001 North Carolina animal cruelty misdemeanor conviction.....
The district court announced that it was prepared to sentence Hargrove both under the guidelines and with an upward departure and upward variance. The court expressed its dissatisfaction with the "irrationality" of the dogfighting guideline provision, noting with respect to the guideline calculation of 0-6 months that Hargrove advocated: "I would say that other than the criminal dog fighters in America, every other person in America would be shocked beyond belief that you could do what [Hargrove] did and come out with a federal sentence of zero to six months. . . . No one could defend that. No judges. No legislators. No president." J.A. 135.
The court then heard from Hargrove’s counsel, who emphasized that Hargrove was a highly decorated military veteran who had been changed by his experience in Vietnam. Counsel also noted that in cases cited by the government involving similar activities, the defendants received imprison- ment sentences of between 12 and 24 months....
The court then announced that its guidelines calculations led to a sentencing range of 41-51 months, and it stated that it would sentence Hargrove to 51 months if imposing sentence under that range. However, the court further stated that an upward departure and an upward variance to 60 months were appropriate....
In short, the court made abundantly clear that even if Har- grove’s sentencing guideline range was 0-6 months, it believed a 60-month sentence was necessary to accomplish the objectives of sentencing. Given the record before us, we cannot conclude that the court’s exercise of its sentencing discretion in imposing a 60-month sentence is unreasonable.
Tuesday, December 04, 2012
Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratioThe Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 (7th Cir. Dec. 4, 2012) (available here), in response to a defendant's claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel's discussion in Matthews:
On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court’s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. § 3553(a)(6) (instructing district courts to consider whether a sentence results in “unwarranted sentence disparities”).
We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews’s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85, 109 (2007), and Spears v. United States, 555 U.S. 261 (2009). Moreover, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).
December 4, 2012 in Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack
Monday, December 03, 2012
Notable (and very unusual?) Third Circuit order vacating (unpublished) sentencing affirmanceToday in this one-page pubslihed order in United States v. Passalaqua (No. 11-4244), the Third Circuit had this to say: "At the direction of the Court, the opinion and judgment filed November 29, 2012 are hereby vacated. The case will be submitted to a reconstituted merits panel for disposition." It struck me as notable to see an opinion and judgment in a criminal case filed just two business days earlier getting vacated and resubmitted to a new panel. I tracked down the November opinion, which was unpublished and available at this link, at it is itself notable for both its facts and the issue on appeal. Here is a bit of the story from the original (and now vacated) panel decision in Passalaqua:
In this appeal we are asked to consider the substantive reasonableness of Joseph Passalaqua’s sentence of 190 months for conspiracy to commit robbery in violation of the Hobbs Act. For the reasons set forth below, we will affirm....
At the time of his sentencing, Passalaqua was a 57-year-old college graduate, former champion gymnast, and owner of a gymnastics, dance, and karate school.
Between December 2008 and September 2009, Passalaqua was a leader of a conspiracy that was responsible for a string of armed robberies and burglaries in New Jersey and New York. Passalaqua was arrested on September 23, 2009, after he was recorded by a confidential source agreeing to murder three individuals in exchange for a cash payment. Soon after his arrest, Passalaqua began cooperating with the Government, which led to the arrest of several of his co-conspirators. The information that Passalaqua provided revealed his involvement in multiple robberies and burglaries, all of which involved restaurants or the homes of restaurant owners. In each robbery, masked intruders entered at night, bound the victims at gunpoint, and stole money and valuables totaling approximately $215,000. Passalaqua did not enter the premises, handle firearms, or restrain victims, but he identified the victims, planned each of the robberies, and served as the getaway driver in three robberies. Passalaqua chose each restaurant-victim based on a personal vendetta against its owner, such as an unpaid debt or personal conflict. However, Passalaqua initially lied about his involvement in the armed robbery of Barolo Restaurant in New York, later contending that he believed the restaurant “was connected to the mob and [had] fear of retribution.” (App. 120.) The lie damaged the Government’s case and prevented it from using Passalaqua as a witness against his co-conspirators....
At his sentencing hearing, which began in June 2011, Passalaqua requested a reduced weapons-based enhancement, which would lower the total offense level to 30. The Government agreed that an offense level of 30 was appropriate based on the facts stipulated in the plea agreement. Passalaqua also requested a downward departure based on imperfect cooperation and argued about unreasonable disparity between his own and his co-defendants’ sentences. The Government, on the other hand, requested an upward variance to the statutory maximum sentence of 20 years based on the violent nature of the offenses and the understated criminal history calculation. The District Court rejected Passalaqua’s arguments about unreasonable disparity, finding Passalaqua’s conduct more serious than that of his co-conspirators and that he had been a leader of the conspiracy. The Court also rejected Passalaqua’s request for an imperfect cooperation departure, finding insignificant benefit for the Government from his cooperation.
There was a lengthy colloquy between the District Court and both parties about the propriety of the Government’s request for the upward variance given the initial plea agreement, in which the Government agreed to not request an upward variance. The District Court continued the sentencing hearing for three months in order to hear from the Assistant U.S. Attorney who had agreed to the November plea agreement. Ultimately, the District Court found the Government’s request was appropriate and provided Passalaqua an opportunity to withdraw his plea, which he declined. The Court also emphasized prior to imposing its sentence that it would have imposed the same sentence regardless of whether the Government had requested an upward variance....
[After] considering the § 3553(a) factors...[t]he District Court then varied from the Guideline range and sentenced Passalaqua to 190 months and three years of supervised release.
I found this matter blogworthy in part because the underlying facts seem a bit like the script from some lost episode of The Sopranos. And, pop culture references aside, I am now very curious about the back-story leading the Third Circuit so quickly to vacate its opinion and judgment affirming the substantive reasonableness of Joseph Passalaqua's sentence and resubmit this matter to a new panel. I would guess (and probably hope) that there is an innocent explanation here. The again, who knows what might lead Paulie Walnuts to go a little crazy and try to exert some sway on a circuit ruling he does not like.
Wednesday, November 07, 2012
Judge Bright (in dissent) assails fraud guidelines and rote recitation of 3553(a) factorsDissenting from an Eighth Circuit panel opinion today in US v. Spencer, No. 11-3463 (8th Cir. Nov. 7, 2012) (available here), Judge Myron Bright has lots to say about the harshness of the guidelines and about the failure of district judges to adequately explain their sentencing decisions. Here is an excerpt (with most cites omitted) from a lengthy dissent worthy of a full read:
The fraud guidelines have been heavily criticized because they no longer provide a reasonable starting point for sentencing. Adjustments based on the amount of loss lead to astronomical sentences that have little connection to criminality. The much-below guidelines sentence imposed on Spencer suggests that the guidelines simply did not apply here. No reasonable judge would have imposed a sentence of over 20 years. Spencer had zero criminal history points. But even if the guidelines should not apply to a particular offender and his crime, a sentencing judge should not have unlimited discretion to impose a sentence without some proper basis. A sentencing judge should be guided by § 3553(a). In order to adequately review a sentence, we need the sentencing judge to perform an analysis under § 3553(a) and to explain this analysis on the record. Here, we do not know which § 3553(a) factors the sentencing judge relied on. Saying simply, “This sentence is appropriate under § 3553,” is no different than an opinion stating “I hold for Party A because my findings are in his favor.”...
A district court is not required to provide “a mechanical recitation of the § 3553(a) factors when determining a sentence.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (quotation omitted). However, I believe the converse is also true — a mechanical recitation that the sentence complies with the requirements of § 3553(a) is insufficient. It is impossible for an appellate court to meaningfully review a sentence without the underlying rationale. This is especially true in areas like fraud, where the guidelines have been consistently and repeatedly disregarded by sentencing judges....
To ensure that criminal defendants receive fair sentences, this dissent urges that sentencing judges always engage in a meaningful analysis of the § 3553(a) factors — the process should not devolve to be rote, mechanical, and artificial. Whether imposing a sentence within, above, or below the guidelines, the touchstone should always be the standard in § 3553 of a sentence sufficient but not greater than necessary and judges should verify the sentence pursuant to § 3553(a), explaining for the record “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed… (6) the need to avoid unwarranted disparities.” Id.
I acknowledge that conducting a § 3553(a) analysis in every case may be more work for a sentencing judge. But this worthwhile endeavor could lead to great improvement in our current system. Now sentencing courts have virtually unlimited discretion because appeals courts such as the Eighth Circuit will uphold a sentence as long as the sentencing judge says nothing more than, “I have…considered the other factors described in§ 3553(a)…. I find that the sentence imposed on [the defendant] is reasonable in light of the factors.” United States v. Hernandez, 518 F.3d 613, 616-17 (8th Cir. 2008) (upholding a sentence because the district court “expressly stated” it considered the § 3553(a) factors without further analysis); see also United States v. McGlothen, 556 F.3d 698, 702 (8th Cir. 2009) (“[T]here is no need to recite each § 3553 factor.”); United States v. Dieken, 432 F.3d 906 (8th Cir. 2006) (“[W]e do not require a district court to categorically rehearse each of the section 3553(a) factors on the record.” ). I strongly disagree with the comments stated above in these appellate cases.
Wednesday, October 24, 2012
Third time around, "Millenium Bomber" gets (reasonable?) longer term of 37 years in prisonAs reported in this AP piece, the so-called "Millenium Bomber" was sentenced for a third time today after his first two sentences had been reversed by the Ninth Circuit as unreasonable. Here is what happened:
Algerian terrorist Ahmed Ressam was sentenced Wednesday to 37 years in prison for plotting to bomb Los Angeles International Airport around the turn of the new millennium. Ressam was arrested in December 1999 as he drove off a ferry from Canada into Washington state with a trunk full of explosives. U.S. District Judge John C. Coughenour had twice ordered him to serve 22-year terms, but both times the sentences were reversed on appeal.
Ressam's attorneys had conceded that he should face at least three decades to satisfy the appeals courts, but no more than 34 years. The Justice Department had sought life in prison because of the mass murder he intended to inflict, and because he recanted his cooperation with federal investigators....
Ressam's case has been vexing because he started cooperating after he was convicted and was interviewed more than 70 times by terror investigators from the U.S., Canada, Great Britain, Spain, Italy, Germany and France. Information he provided helped convict several terror suspects; prompt the famous August 2001 FBI memo titled "Bin Laden determined to strike in U.S.;" and contribute to the arrest of suspected Osama bin Laden lieutenant Abu Zubaydah, who remains in custody without charges at Guantanamo Bay, Cuba.
However, Ressam subsequently recanted all of his cooperation when it became clear that the prosecutors weren't going to recommend that he serve less than 27 years in prison. The recanting forced the Department of Justice to drop charges against two suspected co-conspirators, Samir Ait Mohamed and Abu Doha.
In previously sentencing Ressam, Coughenour noted that before he went to trial, the government offered him a 25-year sentence if he would plead guilty -- no cooperation necessary. Ressam refused, but Coughenour said that any discount for Ressam's cooperation, while it lasted, should start from that 25-year offer. The appeals court rejected that rationale.
I suspect that federal prosecutors will be disinclined to appeal yet again, even though based on time already served and time off for good behavior Ressam could possibly be free again not long after 2030. At this stage, I suspect prosecutors recognize it might be very hard to convince the Ninth Circuit that a sentence now 15 years longer is still unreasonable.
A few prior posts on the Ressam sentencings:
- Millennium bomber gets 22 years
- Notable terrorism resentencing results in same sentence
- Ninth Circuit panel reverses "millenium bomber" sentence again
- En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable
- After too much previous sentencing success, lawyers for "Millenium Bomber" propose longer prison term
Thursday, October 11, 2012
Split Sixth Circuit opinion addresses range of child sex offense sentencing issuesThe Sixth Circuit has a lengthy split opinion today in US v. Zobel, No. 11-3341 (6th Cir. Oct. 11, 2012) (available here), which covers a lot of sentencing issues that seems to arise a lot in the all-too-common setting of adult men luring girls to engage in illegal sexual activity. Here is how the majority opinion gets started:
Defendant–appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). After Zobel pled guilty, the district court imposed a sentence of 150 months of imprisonment, which represented a 15 month upward variance from the upper-end of the Guidelines range. The district court also imposed several special conditions of supervised release for life, which prohibit Zobel, inter alia, from having contact with minors absent prior judicial approval, loitering in areas where children tend to congregate, and possessing or viewing pornography or materials that are “sexually explicit or suggestive.” Zobel argues that his sentence — both the term of incarceration and several special conditions — was both procedurally and substantively unreasonable.
For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggestive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.
A brief dissent by Judge Moore follows the lengthy majority opinion, and it gets started this way:
A district court must state in open court and in a written statement of reasons the specific reason it is imposing an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2). Because the district court failed to state a specific reason for its fifteen-month upward variance both in open court and in its written statement of reasons, the district court committed plain error. The majority, however, nonetheless affirms. I respectfully dissent.
Tuesday, October 09, 2012
Interesting Third Circuit ruling addresses state-federal and federal-federal sex offense disparity claimThe Third Circuit has an intriguing little federal sentencing decision today in US v. Begin, No. 11-3896 (3d Cir. Oct. 9, 2012) (available here). Here his how the majority opinion starts:
Michael Eugene Begin appeals from a final judgment of conviction and sentence on charges related to his use of the internet and a cellular phone to send sexual messages and photographs to a minor in order to persuade her to have sex with him. Begin pled guilty and was sentenced to 240 months' imprisonment, representing a 30-month upward departure from the top of his advisory Sentencing Guidelines range. On appeal, Begin argues that his sentence is unreasonable because the District Court failed to consider his request for a downward variance based on the asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law. We will vacate Begin‟s sentence and remand for the District Court to consider his request.
And here is how the partial dissent by Judge Roth gets started:
I concur with the majority’s conclusion regarding the issue of federal/state sentencing disparities. I disagree, however, with the majority’s decision to vacate the sentence and remand to the District Court for consideration of the alleged federal/federal sentencing disparity. I would hold, as a matter of law, that the disparity between the two federal statutes raised here is irrelevant to the consideration of sentence disparities under 18 U.S.C. § 3553(a)(6). I would, therefore, affirm the sentence imposed.
Saturday, October 06, 2012
Has the First Circuit blessed disregarding loss in some white-collar sentencings?The question in the title of this post is prompted by this lengthy new piece in the New York Law Journal by attorney Laura Grossfield Birger, which is headlined "The Impact of First Circuit's 'Prosperi' Decision: Does appellate review constrain district courts to follow Sentencing Guidelines?". Here are a few excerpts from the piece:
The recent decision by the U.S. Court of Appeals for the First Circuit in United States v. Prosperi, 686 F.3d 32 (1st Cir. 2012), affords great discretion to sentencing courts to deviate from the Sentencing Guidelines, despite expressing palpable discomfort with the extent of deviation at issue in this particular case. For this reason, the opinion is likely to be cited often in the First Circuit and elsewhere, and its analysis and approach warrants examination....
[I]n reviewing the substantive reasonableness of the sentences, the First Circuit initially focused on whether the district court had offered a plausible explanation for minimizing the impact of the loss amount. The court reviewed the reasons articulated by the district court in detail ... [and] found that the findings and conclusions constituted "plausible" explanations for the district court's refusal to give significant weight to the loss amount it calculated pursuant to the Sentencing Guidelines.
The relaxed review applied by the First Circuit to this aspect of the district court's rationale is significant. As the court recognized, the strength of the justification required to support a variance from a Sentencing Guidelines range fluctuates with the degree of that variance; the greater the deviance from the applicable Sentencing Guidelines range, the more significant the justification required to support it. Here, the government's principal complaint boiled down to the huge extent of the variance — from a more than seven-year sentence to probation. By accepting the district court's decision not to give the loss amount much weight, the First Circuit essentially approved a reduction in the spread; once the loss amount is removed as the pivotal factor driving the sentence, the government's argument that the breadth of the variance between zero and 87 months is unjustifiable loses traction.
The balance of the First Circuit's analysis of the district court's rationale reflects its acceptance of its key tenet — the disregard of the loss amount as the determinative factor. The court reviewed the government's other objections to the district court's proffered justification ... and swiftly rejected them....
Like most sentencing decisions, Prosperi is highly dependent on its facts, yet the opinion is likely to reverberate in white-collar sentencing jurisprudence. The willingness of the district court not just to mitigate the impact of the loss amount on the sentence, but essentially to disregard its effect entirely, will be an attractive precedent to defendants facing staggering sentences driven largely by loss amounts. And while the government will surely strive to limit Prosperi to its facts, it will not be difficult for defense lawyers to analogize other fraud cases to at least some of the factors present in Prosperi. Fundamentally, the Prosperi opinion also signals to district courts that, at least in the First Circuit, there are few restraints on their discretion to impose sentences far below the applicable Guidelines range in fraud cases; as long as they explain why they did so, citing lawful considerations, the sentences will not be disturbed on appeal even when the Court of Appeals plainly disagrees with the result. If embraced by district courts, this may galvanize a trend away from the uniformity that the Guidelines seek to impose, particularly in white-collar cases, and toward a return to the flexibility and discrepancy in sentencing often associated with the pre-Guidelines era.
Related prior post:
Thursday, October 04, 2012
Latest accounting of notable post-Gall reasonableness review decisionA helpful reader alerted me to this updated list of significant circuit reasonableness decisions since Gall, a list assembled by the Sentencing Resource Counsel of Federal Public and Community Defenders. here is how the list is summarized from an e-mail I received:
The cases are divided by circuit. There have been 38 sentences reversed as substantively unreasonable: 5 within-guideline senteces, 12 above- or below-guideline sentences on D's appeal, and 21 below-guideline sentences on govt's appeal.
There have been 138 reversals for procedural error: 81 within-guideline sentences all on D's appeal; 40 above- or below-guideline sentences on D's appeal; and 17 below-guideline sentences on govt's appeal.
To obtain reversal for procedural error, obviously you have to make the argument, and support it with evidence (so that it is nonfrivolous). See this lengthy report. And, when a sentence is reversed for procedural error, the sentence is different on remand more than half the time. Id.
The list does not include reversals where (1) it is clear that the district court did not address an argument because, at the time of sentencing, circuit precedent precluded it from doing so, but now it is allowed; (2) cases reversed because the district court treated the guidelines as mandatory or presumed the guidelines to be reasonable; (3) reversals of sentences imposed upon the revocation of probation or supervised release.
Thursday, September 20, 2012
Seventh Circuit affirms 40-year (below-guideline) sentence for child porn producerThough not especially ground-breaking, a Seventh Circuit panel opinion today in US v. Chapman, No. 11-3619 (7th Cir. Sept. 20, 2012) (available here), covers a lot of ground that arises in a lot of federal child pornography sentencing cases. Here is how the extended opinion begins:
Rondale Chapman pleaded guilty to producing child pornography, a crime punishable by no less than 15 years in prison. See 18 U.S.C. § 2251(a), (e). For several years Chapman, now 46, lured kids as young as 12 to his home with marijuana and alcohol and filmed them, usually through “peepholes,” engaging in sexually explicit conduct. Chapman faced a guidelines range of life imprisonment and was sentenced to a total of 40 years. On appeal he contends that the district court did not fully evaluate his arguments in mitigation, and also failed to adequately explain its choice of sentence. On the surface the first of these contentions seems plausible, but only because Chapman exaggerates the evidence presented at sentencing about his background. When we look beyond his embellishment, it becomes clear that the “mitigating” factors he cites lacked evidentiary foundation or amounted to “stock” arguments that required no response from the judge. For that reason we affirm Chapman’s sentence.
Thursday, August 30, 2012
Fourth Circuit vacates LWOP sentence for illegal gun possession premised on uncharged murderA Fourth Circuit panel handed down an an intricate set of opinions today in US v. Horton, No. 11-4052 (4th Cir. Aug. 30, 2012) (available here). The ruling provides yet another reminder that, despite the Supreme Court's work in Blakely now more than 8 years ago, federal defendants still frequently face much longer sentences based on questionable judicial fact-finding by a perponderance of evidence under the federal sentencing guidelines. In Horton, however, the defendant got a break thanks to the Fourth Circuit view of how the guidelines should be applied, as this first paragraph from the majority opinion reveals:
Timothy Tyrone Horton appeals his conviction for possessing a firearm while a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and also appeals the district court’s imposition of a sentence of life imprisonment. For the reasons set forth herein, we affirm Horton’s conviction. We conclude, however, that the district court erred in applying the murder cross-reference provision in United States Sentencing Guidelines Manual ("USSG" or "Guidelines") § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which error substantially increased Horton’s advisory Guidelines range. Accordingly, we vacate Horton’s sentence and remand for resentencing.
Wednesday, August 29, 2012
Oh what a higher sentence she received, when found to have pleaded to deceiveWith apologies to Sir Walter Scott, but I could not help but think of his famed quote about tangled webs upon reading the Seventh Circuit's work today in US v. Grigsby, No. No. 11-2473 (7th Cir. Aug. 29, 2012) (available here). Here is how the lengthy opinion, which covers lots of notable sentencing issues thoroughly, gets started:
Especially because two of the defendant's co-conspirators received sentences of 18 months or lower in this case, it would appear that the defendant's foolish decision to lie during her plea colloquy about her role in the offense might well have resulted in her serving at least two or three extra years in federal prison. That is certainly what I would call a costly lie.
Over the course of seven months, Jeanette Grigsby and several coconspirators planned and executed two bank heists, stealing more than a halfmillion dollars from the bank where Grigsby worked as a teller. After federal agents uncovered the inside jobs, Grigsby was indicted on two counts of entering a federally insured bank for the purpose of committing a felony. See 18 U.S.C. § 2113(a). She pleaded guilty without a plea agreement to the first count and later stipulated through counsel that she committed the second crime as well. With that, the government moved to dismiss the second count.
In her sworn statement to the court, however, Grigsby minimized her role in the offense, trying to pin most of the blame on her coconspirators. So at sentencing the district court applied a two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and a three-level enhancement to account for her supervisory role in the offense, see id. § 3B1.1(b). The resulting guidelines range was 46 to 57 months, and the court chose a sentence of 57 months, the top of the range. Grigsby appeals, arguing that the court erroneously applied the two enhancements, and also that her sentence is procedurally defective and substantively unreasonable under 18 U.S.C. § 3553(a).
We affirm. Both enhancements were based on the court’s factual finding that Grigsby lied during her plea colloquy in an intentional effort to mislead the court by understating her role in the offense. Although this finding was based largely on documentary evidence — the grand-jury testimony and plea agreements of two of Grigsby’s coconspirators — our review remains deferential; we will reverse only for clear error. See 18 U.S.C. § 3742(e). The court’s factual finding that Grigsby lied about her role in the offense because she did in fact supervise the scheme is well-supported by the evidence and specific enough to withstand clear-error review. The court also sufficiently considered the § 3553(a) sentencing factors and was not required to specifically address Grigsby’s routine arguments for a below-guidelines sentence. Finally, Grigsby’s within-guidelines sentence — 57 months for an inside bank-robbery scheme that caused a significant loss — is not unreasonable.
Tuesday, August 28, 2012
Split Second Circuit upholds reasonableness of 30-year prison term for child porn convictionsA number of helpful readers have help make sure I did not miss today's must-read opinion from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here). Because I expect I will have subsequent posts commenting on this Broxmeyer ruling (in which the majority opinion runs 63 pages and the dissent another 20), I will start here by just posting the start of the majority opinion:
In 2008, former high school athletic coach Todd J. Broxmeyer was found guilty after a jury trial in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) of two counts of producing child pornography, see 18 U.S.C. § 2251(a) (Counts One and Two); one count of attempting to produce child pornography, see id. § 2251(a), (e) (Count Three); one count of transporting a minor across state lines with the intent to engage in criminal sexual activity, see id. § 2423(a) (Count Four); and one count of possessing child pornography, see id. § 2252A(a)(5)(B) (Count Five). The victims of all these crimes were teenage girls under Broxmeyer’s purported tutelage and care.
On Broxmeyer’s first appeal, this court reversed his convictions on Counts One, Two, and Four. See United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010). As to the first two counts, the court concluded that the evidence was insufficient as a matter of law to permit the jury to find that Broxmeyer had solicited the production of — rather than simply received — the two images of child pornography at issue. See id. at 124–27. As to Count Four, the court, by a divided vote, concluded that Broxmeyer’s interstate transportation of a 15-year-old girl after compelling her to engage in sodomy could not support a conviction for interstate transportation of a minor with intent to engage in criminal sexual activity, that object already having been achieved before the defendant crossed any state border. See id. at 128–30; see also id. at 130 (Wesley, J., dissenting in part). Vacating Broxmeyer’s original 40-year prison sentence, this court remanded for resentencing on the remaining two counts of conviction for possession and attempted production of child pornography. See id. at 130.
Broxmeyer now appeals from so much of the amended judgment entered on December 29, 2010, as sentenced him to concurrent prison terms of 30 years on Count Three’s attempted production charge and 10 years on Count Five’s possession charge. He argues that the sentence is infected by various procedural errors and, in any event, that 30 years’ incarceration is substantively unreasonable in his case. Indeed, Broxmeyer maintains — and our dissenting colleague agrees — that any sentence higher than the minimum 15-year prison term mandated for Count Three, see 18 U.S.C. § 2251(e), would be substantively unreasonable. We reject both arguments as without merit.
Thursday, August 23, 2012
Sixth Circuit panel rejects reasonableness challenge to below-guideline terrorism sentencesA unanimous Sixth Circuit panel today affirmed in a lengthy opinion the conviction and sentences given to a groups of terrorism defendants in US v. Amawi, et al, No. 09-4339 (6th Cir. Aug. 23, 2012)(available here). This snippet from the start of the majority opinion highlights why sentencing fans will want to be sure to check out at least part of the panel's work:
This appeal arises from a jury trial in which the three defendants were convicted of conspiracy to kill and maim persons outside the United States, in violation of 18 U.S.C. § 956(a)(1), and of conspiracy to provide material support to terrorists in furtherance of the killing of U.S. nationals, in violation of 18 U.S.C. § 2339A. In addition, Amawi and El-Hindi were each convicted of two counts of distributing information regarding the manufacture of explosives, destructive devices, and weapons of mass destruction, in violation of 18 U.S.C. § 842(p)(2)(A). Amawi, El- Hindi, and Mazloum were sentenced to below-Guidelines-range terms of 240, 144, and 100 of months of imprisonment, respectively.
There are ten issues on appeal.... Ninth, the government cross-appeals the sentences imposed, contending that they are both procedurally and substantively unreasonable.....
We affirm all opinions and judgments of the district court.
Wednesday, August 22, 2012
Seventh Circuit talks through reasonableness review of above-guideline sentencesIn part because it is an opinion by Judge Posner, and in part because it concerns an issue that arises with relative frequency, federal sentencing practitioners will want to be sure to check out the Seventh Circuit's work today in US v. Castillo, No. 11-2792 (7th Cir. Aug. 22, 2012) (available here). Here are excerpts from the panel opinion (with most cites omitted):
We write to clarify an ambiguity concerning the scope of appellate review of an above-guidelines sentence. We have said that “the farther the judge’s sentence departs from the guidelines . . . the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Courtland, 642 F.3d 545, 550 (7th Cir. 2011).... The ambiguity is in the word “farther.” It can be conceived of in either relative or absolute terms. A sentence of 60 months is 30 percent longer than a sentence of 46 months (the top of the applicable guidelines range in this case); and a 30 percent increase is large in relative terms. But in absolute terms, given the severity of federal criminal punishments, it is a smallish 14 months; the average federal prison sentence in 2009 was 57 months.
It seems to us that the relative is generally more important than the absolute, as is implicit in a number of our previous decisions. The guidelines range is the Sentencing Commission’s estimate of the reasonable range of punishments for the defendant’s offense. Usually (an important qualification, as we’re about to see), a judge who imposes a sentence far above the top or far below the bottom of that range is challenging the Commission’s penal judgment, and given that the Commission’s knowledge of penology exceeds that of most judges, the judge needs to provide more in the way of justification than if he were departing incrementally.
Guidelines ranges are inherently arbitrary, so had the judge in this case sentenced the defendant to 47 months instead of the guideline maximum of 46 it would not have been a significant challenge to the Commission’s penal judgment and so would not have required much in the way of justification. A 30 percent departure requires more; “substantial variances from the Sentencing Commission’s recommendations require careful thought.” United States v. Kirkpatrick, supra, 589 F.3d at 415. Yet less thought is necessary when the applicable guideline is “not the product of the Commission acting in ‘its characteristic institutional role,’ in which it typically implements guidelines only after taking into account ‘empirical data and national experience.’ ” United States v. Reyes-Hernandez, 624 F.3d 405, 418 (7th Cir. 2010), quoting Kimbrough v. United States, 552 U.S. 85, 109 (2007).
We acknowledge that focus on the sentencing judge’s percentage deviation from the guidelines range can mislead, at least when the sentence is below rather than, as in this case, above the sentencing range.... But it’s hard to see how a court can carry out the command of Gall to require a justification “sufficiently compelling to support the degree of the variance,” 552 U.S. at 50 (emphasis added) — “degree” being a relative rather than absolute measure — without at least considering the percentage deviation.
Monday, July 16, 2012
First Circuit affirms (way-)below-guideline sentence for Big Dig white-collar offenders
Because I am on the road throughout July, I fear I may miss some notable circuit sentencing opinions. Thus, I am especially grateful that a helpful reader alerted me to the especially noteworthy opinion handed down by the First Circuit late last week in US v. Prosperi, No. 10-1739 (1st Cir. July 13, 2012) (available here). Here is how the lengthy Prosperi opinion starts:
The United States challenges the sentences imposed on appellees Robert Prosperi and Gregory Stevenson after their conviction of mail fraud, highway project fraud, and conspiracy to defraud the government. Both appellees were employees of Aggregate Industries NE, Inc. ("Aggregate"), a subcontractor that provided concrete for Boston's Central Artery/Tunnel project, popularly known as the "Big Dig." The government charged that over the course of nine years Aggregate knowingly provided concrete that failed to meet project specifications and concealed that failure by creating false documentation purporting to show that the concrete provided complied with the relevant specifications. Several employees of Aggregate, including Prosperi and Stevenson, were convicted of criminal offenses for their roles in the scheme.
At sentencing, the district court calculated the guidelines sentencing range ("GSR") for Prosperi and Stevenson as 87- to 108-months incarceration. Then, explaining fully its rationale for a below-guidelines sentence, the court sentenced Prosperi and Stevenson to six months of home monitoring, three years of probation, and 1,000 hours of community service. The government now appeals, arguing that under Gall v. United States, 552 U.S. 38 (2007), the sentences imposed by the district court were substantively unreasonable and that the appellees' crimes warrant incarceration.
We affirm. Although the degree to which the sentences vary from the GSR gives us pause, the district court's explanation ultimately supports the reasonableness of the sentences imposed. The district court emphasized that its finding on the loss amount caused by the crimes, the most significant factor in determining the GSR, was imprecise and did not fairly reflect the defendants' culpability. Hence it would not permit the loss estimate to unduly drive its sentencing decision. Relatedly, it found that there was insufficient evidence to conclude that the defendants' conduct made the Big Dig unsafe in any way or that the defendants profited from the offenses. The court then supplemented these critical findings with consideration of the individual circumstances of the defendants and concluded that probationary sentences were appropriate. We cannot say that it abused its discretion in doing so.
As this introduction suggests, the (unanimous) Prosperi opinion discusses lots of loss issues and ultimately affirms the district court's desire and decision to give little weight to what it saw as an inflated loss calculation. For this reason and others, Prosperi is a must-read not just for white-collar federal sentencing practitioners, but for all those still unsure about the scope of sentencing discretion in the post-Booker world.
July 16, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, June 28, 2012
Second Circuit panel now affirms Lynne Stewart's (way below guideline) 10-year prison sentence
One of many noteworthy legal developments today sure to be overshadowed by the Supreme Court's health care ruling is today's Second Circuit panel opinion upholding the 10-year prison sentence of (in)famous defense lawyer Lynne Stewart. The lengthy unanimous opinion in US v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (available here), covers a lot of interesting sentencing ground, though the most extensive discussion concerns Stewart's claim that enhancement of her sentence due to her initial post-sentencing public comments violated the First Amendment. Here are a few paragraphs from the start and end of the panel ruling:
Appellant Lynne Stewart appeals from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge) sentencing her principally to 120 months' imprisonment following our vacatur on grounds of procedural error of her previous sentence of 28 months and remand of the district court's previous judgment insofar as it imposed that sentence. The details of this case were recounted at length in our prior opinion, United States v. Stewart, 590 F.3d 93, 100-08 (2d Cir. 2009) ("Stewart I"). We repeat them here only insofar as we think it necessary to explain our judgment [of affirmance]....
Finally, Stewart argues that her sentence is substantively unreasonable, principally because of the more than fourfold increase from her original sentence of 28 months' incarceration to the currently imposed sentence of 120 months. She asserts that aside from her public statements, "no change in circumstances or information available to the sentencing court . . . supported increasing Ms. Stewart's sentence by this magnitude." Def.'s Br. at 101. She also contends that the district court was not permitted to increase the sentence in response to suggestions that it do so in the dissent from our panel opinion, and in the dissents accompanying the denial of rehearing en banc. Def.'s Br. at 103. And she urges that in light of her personal characteristics, the sentence imposed on her was so "shockingly high" as to render it substantively unreasonable....
It is the "rare case" in which we will find a sentence substantively unreasonable, and we place "great trust" in a sentencing court. Rigas, 583 F.3d at 123. In Stewart I, we expressly recognized and were "impressed by the factors that figured in Stewart's modest sentence -- particularly her admirable history of providing, at no little personal cost to herself, proficient legal services in difficult cases to those who could not otherwise afford them." Stewart I, 590 F.3d at 147-48. But, nonetheless, she engaged in severe criminal conduct in aid of a terrorism conspiracy, and she did so by abusing the trust that the government had placed in her as a member of the bar. When confronted with these transgressions, she lied repeatedly under oath.
From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar. We cannot agree with her that the sentence imposed on her was "shockingly high" so as to warrant a finding of substantive unreasonableness.
June 28, 2012 in Booker in the Circuits, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (6) | TrackBack
Monday, May 21, 2012
Celebrity federal drug sentencing appeal prompts doctors' brief urging treatment over punishment
This morning's New York Times has this article, headlined "Doctors Seek New Approach for Jailed Addicts," discussing a notable appellate brief filed in a high-profile federal drug sentencing case. Here are the interesting details:
A group of prominent addiction doctors has mounted a quiet legal campaign on behalf of Cameron Douglas, the troubled son of the actor Michael Douglas, in hopes of finding a sympathetic ear for their view that drug addiction is best handled with more treatment, not more prison time.
In December, Mr. Douglas, who is 33 and already serving a five-year federal sentence for drug distribution and heroin possession, was sentenced to an additional four and a half years after being caught behind bars with heroin and Suboxone, a prescription medication used to blunt the pull of opioid addiction.
And it was that sentence, believed to be one of the harshest ever handed down by a federal judge for drug possession for an incarcerated prisoner, that prompted about two dozen addiction doctors and groups to file a brief on behalf of Mr. Douglas, whose case is under review by a panel from the United States Court of Appeals for the Second Circuit.
Their argument is that Mr. Douglas, who began injecting heroin daily in his mid-20s, is a textbook example “of someone suffering from untreated opioid dependence” and that more prison time would do nothing to solve his underlying problems. “My outrage is as a physician for someone who has a medical condition which has been ignored,” said one of the brief’s signees, Dr. Robert Newman, the director of the Baron Edmond de Rothschild Chemical Dependency Institute at Beth Israel Medical Center. “What the judge has imposed has zero benefits for the community and has staggering consequences for society.”
The sentence, handed down by Judge Richard M. Berman of Federal District Court in Manhattan, came after heroin and Suboxone was found in a cell Mr. Douglas was occupying at the Metropolitan Correctional Center in New York, while testifying against a former drug supplier. Shortly after that, he pleaded guilty to one count of drug possession by a federal prisoner.
Such charges are unusual; most inmates caught with drugs behind bars are sanctioned administratively with loss of prison privileges, said Daniel N. Abrahamson, the director of legal affairs with the Drug Policy Alliance, the drug reform group that drafted the brief. Those punishments have also been levied on Mr. Douglas, whose penalties have included stints of isolated confinement in his cell and loss of family visits.
At a sentencing in December, prosecutors asked for an additional term of anywhere from 18 to 24 months, according to Mr. Douglas’s appeal. But Judge Berman made it clear that his patience with Mr. Douglas was done, saying the inmate had been “continuously reckless, disruptive and noncompliant” and had repeatedly squandered opportunities and refused to obey the law.
Mr. Douglas would seem an unlikely candidate for a cause célèbre, as the scion of an acting family. But Mr. Abrahamson said the case had little to do with Mr. Douglas’s fame, though he acknowledged that few inmates have the resources needed to wage an appeal in federal court. He said the goal of the brief was not only to help obtain a reduction, or dismissal, of Mr. Douglas’s 54-month sentence, but also to have the appellate panel make a statement on “how the federal corrections systems, in particular, but corrections in general have for a long time ignored the treatment need of their inmates.”
Mr. Douglas’s travails since his arrest, including episodes in which drugs were smuggled to him while he was incarcerated, have been tabloid fodder, something Howard Josepher, another of the brief’s signees, said has probably made efforts at recovery harder. “A guy like this gets into prison, he’s got star power, so people inside actually they want to get close to him,” said Mr. Josepher, who runs the New York-based Exponents, which offers drug treatment programs. “And they do that by offering him drugs.”
Mr. Josepher, 73, an ex-convict and heroin user who said he has been clean for 45 years, said he hoped Mr. Douglas’s case would highlight what he called a contradictory approach to drug abuse by the criminal justice system. “The various powers that be view addiction as a disease,” he said. “But they treat people who have this illness as criminals.
I will provide a link to this "doctors' brief" if and when I can track down a copy. This article makes me hopeful that the Second Circuit might issue an important opinion concerning reasonableness review in this case, though it is often hard to predict whether and when high-profile cases will produce truly consequential court rulings.
Prior posts concerning Cameron Douglas's federal sentencings:
- Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?
- District Judge rejects defense request to keep private next week's sentencing of Cameron Douglas
- Cameron Douglas sentenced to five years for federal drug offense
- "Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"
- Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?
- Stiff sentence given to Cameron Douglas for drug possession while in prison
Friday, May 18, 2012
What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?
The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:
Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville. He is no Boy Scout. He committed financial fraud, was convicted at trial and deserves punishment. Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.
But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable. That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines. Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.
In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements. She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision. She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.
On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines. In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.
To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case. It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.
This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received. The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.
As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues. In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert. One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."
All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant. But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable." Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:
The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias. When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too. The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade. But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well. Judges shouldn’t be able to make up their own rules for policing themselves.
As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer. To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case. But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.
May 18, 2012 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
Tuesday, May 15, 2012
Sixth Circuit panel produces pair of notable opinions in CP sentencing reversal
Judicial administration fans, as well as sentencing fans, will want to find time to check out today's Sixth Circuit panel decision in US v. Aleo, No. 10-1569 (6th Cir. May 15, 2012) (available here). The start of the majority opinion highlights what the opinion covers and what it is notable:
In this case, we deal with two appeals arising out of the criminal conviction and sentencing of Craig Aleo. Craig Aleo appeals his sentence (Part I), and his trial attorney, John Freeman, appeals the sanction imposed upon him by the district court (Part II).
Craig Aleo was sentenced to the statutory maximum sentence of 720 months of imprisonment after he pleaded guilty to one count each of producing, possessing, and transporting and shipping child pornography. His guidelines range was 235–293 months. Because we cannot find a justification within the factors enumerated in 18 U.S.C. § 3553(a) to justify the variance imposed by the district court, we reverse and remand for resentencing.
Craig Aleo’s trial counsel, John Freeman, was sanctioned $2,000, based on the district court’s inherent power to sanction, because he filed a motion asking the court to compel the government to make a formal motion regarding any victim who wanted to speak at trial pursuant to the Crime Victim Rights Act (CVRA), naming the victim, and providing a preview of the victim’s statement. Because there is no objective evidence that trial counsel filed this motion in bad faith, we reverse.
And the start of Judge Sutton's concurring opinion highlights why judicial administration aficianados ought also find Aleo of interest:
I join the court’s decision in full, including its conclusion that the district court abused its discretion when it invoked its inherent power to impose sanctions on defense attorney John Freeman for filing a frivolous motion. I write separately to express skepticism about a lower federal court’s power ever to use inherent authority, as opposed to the contempt power established by statute (18 U.S.C. § 401) and implemented by rule (Fed. R. Crim. P. 42), to punish a defense attorney in a criminal case for filing a frivolous motion.
Sunday, May 06, 2012
Making a full-throated pitch for SCOTUS to again address reasonableness review
Regular readers may know that I am generally underwhelmed with how some circuits have approached reasonableness review, and I have long been troubled with the disinclination of some circuit to review rigorously within-Guideline sentences. Driven in part by those concerns, I have authored an amicus brief support in cert in the US v. Rubashkin case in which I lament the state of reasonableness review and urge SCOTUS involvement. The full amicus (which I filed aided by the fine folks at the Washington Legal Foundation) can be downloaded below, and here are excerpts from the state of the argument:
Problematically, in the half-decade since this Court’s rulings in Rita, Gall, and Kimbrough v. United States, 552 U.S. 85 (2007), the circuit courts have developed inconsistent and sometimes constitutionally suspect approaches to reasonableness review. Some circuits now regularly reverse sentences as procedurally unreasonable; others almost never do. Some circuits now regularly engage with the statutory factors of § 3553(a) when reviewing for substantive reasonableness; others almost never do. Accordingly, reasonableness review is not helping to “iron out sentencing differences” nationwide, but rather is exacerbating these differences. Tellingly, in recent official testimony, the U.S. Department of Justice has lamented the circuits’ disparate approaches to reasonableness review, and the U.S. Sentencing Commission has urged Congress to amend the SRA to resolve circuit splits over the application of reasonableness review. And many federal judges and commentators have asserted that appellate review of sentences — and all of modern federal sentencing under advisory Guidelines — would benefit significantly from this Court’s further guidance on the contours of reasonableness review.
Reasonableness review has been distinctly dysfunctional in those circuits that have adopted a so-called “presumption of reasonableness” for reviewing within-Guideline sentences. Curiously, there has yet to be a single appellate ruling that expounds upon — or, for that matter, even discusses — when and how this “presumption” can be rebutted or the legal consequences of any (phantom) rebuttal. Rather than function as the true “presumption” this Court outlined in Rita, the “presumption of reasonableness” has been used to convert the Guidelines into a sentencing safe-harbor, making all within-Guideline sentences effectively immune from substantive reasonableness review. (Indeed, despite the appeal of thousands of within-Guideline sentences since Rita, not one single within-Guideline sentence has been found substantively unreasonable in the “presumption” circuits.) That some circuits treat within-Guideline sentences as per se reasonable not only conflicts with this Court’s clear holding in Rita and Congress’s instructions in § 3553(a), but also raises serious constitutional concerns in light of this Court’s Sixth Amendment jurisprudence in Booker and its progeny....
[D]ue to the Eighth Circuit’s routine of always affirming within-Guideline sentences, the district court approached the sentencing of Mr. Rubashkin as if only the Guidelines mattered; in turn, the Eighth Circuit affirmed an extreme prison sentence for a nonviolent first offender using the rubber-stamp approach to reasonableness review it has adopted only for within-Guideline sentences. This case thus highlights how some (but not all) district courts are still disregarding the statutory instructions of § 3553(a) that Booker made central to federal sentencing, and how some (but not all) circuit courts are disregarding this Court’s instructions for reasonableness review set forth in Rita, Gall, an Kimbrough. Absent this Court’s intervention, the rulings below will stand as a high-profile reminder that district and circuit courts can feel free to treat Booker and its progeny as merely a lengthy “tale told by [the Justices], full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act V, Scene 5.
Friday, March 30, 2012
Interesting appeal by federal prosecutors of interesting white-collar sentence
This local press report, headlined "U.S. appeals sentence of Michael Peppel, former MCSi executive," reports on federal prosecutors' decision to appeal an interest white-collar sentence that gave a maximum fine but minimum jail time to a corporate criminal. Here are the basic details:
Federal prosecutors are challenging the seven-day jail sentence given last year to Michael E. Peppel, former top executive of MCSi Inc., for his guilty pleas to felony crimes related to the company’s 2003 collapse and insolvency.
Peppel’s sentence failed to reflect the seriousness of his offenses, provide just punishment, promote respect for the law or send a message of deterrence for those who would commit similar crimes, U.S. Attorney Carter Stewart argued in his written arguments filed with the 6th U.S. Circuit Court of Appeals on Tuesday.
Stewart asked the Cincinnati-based appeals court to throw out the seven-day punishment and order resentencing by U.S. District Judge Sandra Beckwith, who sentenced Peppel on Oct. 24.... Peppel was also fined the legal maximum of $5 million, must disclose his criminal record to all employers, must submit to random drug testing and must do community service, according to his sentencing terms. He has already served his seven days behind bars.
His lawyer, Ralph Kohnen, said the defense will fight efforts to impose a longer term of incarceration on Peppel, who was MCSi’s president and chief executive officer. “The government’s decision was unfortunate,” Kohnen said Thursday. “Judge Beckwith’s sentence was thoughtful and appropriate. Her sentence was just, proper and fair.”
Under a court-approved agreement that took effect this month, Peppel has committed to pay $3,000 per month toward his $5 million fine. At that rate, it would take him 50 years to pay $1.8 million of the fine and 100 years to have paid $3.6 million of it.
Peppel, 44, avoided trial in August 2010 by pleading guilty to willful false certification of a financial report by a corporate officer; money laundering, and conspiracy to commit securities fraud. He could have faced up to 50 years in prison. The government said his crimes helped sink MCSi, a Kettering-based computer and audiovisual equipment company. Its failure cost 1,300 employees their jobs, benefits and retirement income and left investors holding worthless stock.
Beckwith initially determined that, under federal sentencing guidelines, a prison term for Peppel of eight to 10 years would be appropriate. But after the defense presented 113 letters of support from Peppel’s family and friends, and argued that he had already been publicly humiliated and agreed to a lifetime ban on his ever serving again as a corporate chief executive, the judge imposed the seven-day jail term. Beckwith said she does not believe Peppel is likely to repeat his crimes and does not represent a threat to the public.
For a variety of reasons, in cases like this in which there appears to be no threat to public safety, I see as quite reasonable a judge's decision to impose a huge fine (which makes a defendant essentially an indentured servant to federal taxpayers for life) rather than requiring a lengthy prison term (which requires federal taxpayers to pay for a defendant's room-and-board while he catches up on reading at Club Fed). But, obviously, federal prosecutors have a different view and I will be very interested to see how this appeal ends up playing out in the Sixth Circuit.
March 30, 2012 in Booker in district courts, Booker in the Circuits, Criminal Sentences Alternatives, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Friday, March 16, 2012
Eighth Circuit affirms lengthy (but way below-guideline) prison sentence for "inadvertent" illegal possession of "old hunting ammunition"
An otherwise inconsequential sentencing affirmance from the Eighth Circuit today in US v. Anderson, No. 10-3387 (8th Cir. Feb. 16, 2012) (available here), caught my attention because the facts justifying the federal conviction seem so innocuous and because the sentencing realities the defendant faced seem so remarkable. Here are snippets from the opinion that made me consider this case blog-worthy:
A jury found Defendant-Appellant Craig Leslie Anderson guilty of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)....
Concluding that Anderson had perjured himself at trial [by testifying he did not know he possessed the ammunition], the district court applied a two-level enhancement to Anderson's offense level pursuant to United States Sentencing Guidelines § 3C1.1, resulting in an adjusted advisory Guidelines range of 84–105 months. The court then determined that a traditional departure was appropriate based on overstated criminal history pursuant to U.S.S.G. § 4A1.3(b), and adjusted the advisory Guidelines range downward to 77–96 months. Finally, the court granted a variance and imposed a sentence of 45 months' incarceration....
In the statement of reasons for the sentence, the district court explained ... "Anderson's crime is among the least serious felon-in-possession offenses that I have seen. Mr. Anderson possessed old hunting ammunition that appears to have been inadvertently overlooked when law-enforcement officers confiscated his firearms and ammunition in 2005. There is no evidence that Mr. Anderson could have used, or intended to use, the ammunition. I am not aware of any evidence that Mr. Anderson possessed a gun or any hunting gear.... Mr. Anderson's possession can fairly be described as inadvertent."
I also believe Mr. Anderson when he says that he did not know that his possession of the ammunition was illegal.... The State of Minnesota specifically warns felony-level probationers that they may not possess firearms, but the State does not warn that they may not possess ammunition. There are logical reasons for this that have to do with the difference between state and federal law as well as the difference between criminal laws versus conditions of probation. But these types of distinctions may be difficult for a layperson to appreciate....
"I do believe that, if Mr. Anderson had known that he could not possess ammunition, he may not be in the situation that he is in today. For these reasons, I believe that the Guidelines range in this case is too high to serve the purposes of sentencing and that a downward variance is warranted."
In short, the defendant here was convicted of illegal possession of hunting shells, which he inadvertently possessed and likely did not know was illegal for him to possess. Long-standing criminal doctrines about ignorance of the law means that his lack of knowledge of federal law does not allow him to escape liability, but even more remarkable is that the federal sentencing guidelines called for 7 to 9 years in federal prison(!) for the crime of "inadvertent" illegal possession of hunting shells. (Importantly, this high sentencing range was driven up by the defendant's criminal history, though the district judge also concluded that these guidelines also were over-inflated in this case.)
To the district judge's sentencing cre"dit, he decided that he should not send Anderson to federal prison for the better part of a decade for the ghastly crime of "inadvertent" illegal possession of hunting shells. Still, the judge decided that nearly four years in federal prison was necessary for this crime, and the Eighth Circuit panel required merely two sentences at the very end of its opinion to reach the conclusion that the imoposition of this lengthy federal prison term for this crime was reasonable and thus not an "abuse of discretion."
Monday, March 12, 2012
En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable
Because I am on the road, I only have time to note without comment until later this big Ninth Circuit en banc ruling in US v. Ressam, which starts this way:
The government appeals the sentence imposed by the district court upon Ahmed Ressam, the so-called “Millennium Bomber,” as substantively unreasonable. We review a challenge of that nature under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).
Ressam was convicted by a jury on nine counts of criminal activity1 in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport, commonly known and referred to by its airport code “LAX.” His plan was for the attack to occur on the eve of the new millennium, December 31, 1999. The advisory Sentencing Guidelines imprisonment range for Ressam’s convictions was calculated by the district court to be 65 years to life. That calculation has not been challenged by either party. The district court sentenced Ressam to a term of imprisonment of 22 years, plus five years of supervised release.
Upon our review of the record, we have a definite and firm conviction that the district court committed a clear error of judgment in sentencing Ressam as it did. As a result, we conclude that the sentence imposed by the district court was substantively unreasonable. We vacate the sentence and remand the case to the district court for resentencing.
The full opinion (which includes a concurrence and a dissent) runs 73 pages and is likely to justify future posts once I am back at my desk.
March 12, 2012 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Monday, February 27, 2012
Trio of notable sentencing losses by child porn defendants in Sixth Circuit
The Sixth Circuit has, just in the last two business days, handed down three notable published sentencing opinions in child porn cases. For a variety of reasons, anyone following this area of federal sentencing ought to find time to review the trio. But, as explained at the end of this post, such a review will not leave one with much confidence about modern federal sentencing justice in these kinds of cases.
Based on a too-quick review of the trio, the opinion in US v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (available here), strikes me as the most consequential because it reverses a below-guideline sentence as substantively unreasonable in an opinion that starts this way:
Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children. Under the Sentencing Guidelines, Robinson’s recommended sentence was 78 to 97 months’ imprisonment. The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment. The United States contends that Robinson’s sentence is both procedurally and substantively unreasonable. We agree that the sentence is substantively unreasonable, and vacate his sentence.
US v. Cunningham, No. 10-3092 (6th Cir. Feb. 24, 2012) (available here), covers some similar ground in the course of affirming a (within-guideline) sentence in an opinion that begins this way:
Defendant Thomas Cunningham appeals the district court’s judgment sentencing him to concurrent prison terms of 121 months and 120 months after he pleaded guilty to three child pornography offenses, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B). Defendant raises assignments of error with several procedural and substantive aspects of the district court’s sentence. Because the district court’s imposition of Defendant’s sentence was comprehensive and legally sufficient, we AFFIRM.
US v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (available here), involves a similar defendant convicted and sentenced for child porn possession, but the sentencing issues raised (and deemed waived) on appeal concerned conditions of supervised release (perhaps because the defendant worked out a plea deal in which he got only a 30-month sentence for his kiddie porn offenses).
There is so much that might be said individually about each of these cases and what they reveal about the child porn guidelines and/or appellate review for reasonableness. But I find most remarkable that these opinion create the impression that defendant Cunningham may have been the most mitigated of these three offenders, even though he had the highest guideline range (121-151 months) and received the longest prison term (121 months).
Based on points discussed by the Sixth Circuit, defendant Robinson arguably is a much more serious offender than defendant Cunningham, but he faced a much lower guideline range (78-97 months) which means that, even after today's reversal of his one-day prison sentence, on resentencing defendant Robinson is still very likely to get a much shorter prison sentence than defendant Cunningham.
Finally, because defendant Ferguson's lawyer was apparently able to put together a sweet plea deal, defendant Ferguson is now likely already out of federal prison even though there are facts set forth in his case which might suggest he could well pose more danger to the public than the others. I am not sure just how or why 30 months was set at the fixed sentence in his case, but the outcome even on appeal provides further proof that "winning" sentencing arguments at the plea bargain stage may prove much more important and even more enduring in these cases than "winning" at the sentencing stage.
Short summary: sentencing in kiddie porn downloading cases are even more of a mess than one can reasonably assess.
February 27, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
Friday, February 03, 2012
Seventh Circuit reminds federal sentencing judge of obligation to judge at federal sentencing
The Seventh Circuit handed down an intriguing little panel opinion resolving a sentencing appeal yesterday in US v. Pennington, No. 11-1257 (7th Cir. Feb. 2, 2012) (available here). Here is how the opinion in Pennington gets started:
Richie Pennington pleaded guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the applicable sentencing-guidelines range. Pennington argued that 64 months was enough. The judge rejected Pennington’s argument because the four-month difference between the sentencing recommendations was so little. He added that although the sentencing guidelines are not binding, “judges are told that [they] are to be followed.” The judge imposed the 68-month sentence suggested by the government. Pennington appeals, challenging the procedure the judge used to reach that decision.
We vacate the sentence and remand for resentencing. The judge appears to have rejected Pennington’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines. There may have been other reasons why he did so, but as it stands, we cannot be sure the judge gave adequate consideration to Pennington’s argument.
Among other virtues, the court's opinion in Pennington has this nice passage discussing one of my favorite parts of 3553(a):
The first explanation about the negligible difference between the parties’ sentencing recommendations is troublesome for a couple of reasons. To begin, the so-called parsimony provision of § 3553(a) requires that judges “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. The judge need not expressly refer to that provision at sentencing, Abebe, 651 F.3d at 656, but his explanation of the sentence must be consistent with its meaning, see Johnson, 635 F.3d at 988 n.1 (collecting cases). By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing. If so, the parsimony principle would ordinarily require the more lenient sentence.
Monday, January 09, 2012
Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
An interesting and potentially important reasonableness review decision was handed down by a Sixth Circuit panel this morning in US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (available here). Folks concerned with the operation of reasonableness review or with child porn sentencing should be sure to read this thoughtful opinion in full. Here is how the opinion gets started along with one of many notable passages from the heart of the opinion:
Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many, if not a majority, of those images and videos depicted 8- to 10-year-old girls being raped by adult men. Under the Sentencing Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment. The district court rejected that recommendation and instead sentenced Bistline to a single night’s confinement in the courthouse lockup, plus ten years’ supervised release. The United States contends that Bistline’s sentence is substantively unreasonable, arguing that the district court improperly rejected the relevant sentencing guideline as “seriously flawed” and that Bistline’s sentence fails to reflect the factors recited in the sentencing statute. We agree, and vacate his sentence....
The district court made a number of observations with respect to the seriousness of this offense. Many of them served to diminish it. The court did say that the images on Bistline’s computer were “horrendous,” and that the “production of child pornography and the distribution of it is an extremely serious offense, one which should be punished accordingly.” But notably omitted from that recitation (and virtually unpunished in this case) was the crime of possession of child pornography. Indeed, the court said there are “significant differences . . . in the degree of culpability in the chain of events that leads to the display of child pornography[,]” with the “most culpable” persons being “those who are involved in actually performing these acts and photographing them.” We agree with that statement so far as it goes. That the producers of child pornography are more culpable, however, does not mean that its knowing and deliberate possessors are barely culpable at all.
Wednesday, December 14, 2011
Fifth Circuit, taking issue with Second Circuit's work in Dorvee, affirms 220-month sentence for child porn downloading
The Fifth Circuit has a lengthy new opinion in discussing federal child porn sentencing in US v. Miller, No. 10-50500 (5th Cir. Dec. 13, 2011) (available here). Here is how the opinion starts, along with some snippets from what is an extended substantive discussion of the federal child porn guidelines:
Aubrey Miller pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1). The district court sentenced Miller to 220 months of imprisonment (18 years and 4 months), a term within the advisory Guidelines range and less than the statutory maximum of 240 months of imprisonment. The district court also imposed a twenty-five-year term of supervised release. Miller appeals his sentence and elements of his supervised release. We affirm....
The Second Circuit discussed at considerable length in Dorvee the history of the sentencing Guidelines that apply to child pornography offenses and the role of Congress in that history. The Second Circuit surveyed writings that have expressed disapproval of these Guidelines and congressional actions regarding them. That court was highly critical of the child pornography Guidelines, concluding that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.” The Second Circuit asserted that “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.” That court declared, “[t]his result is fundamentally incompatible with § 3553(a).”...
With great respect, we do not agree with our sister court’s reasoning. Our circuit has not followed the course that the Second Circuit has charted with respect to sentencing Guidelines that are not based on empirical data. Empirically based or not, the Guidelines remain the Guidelines. It is for the Commission to alter or amend them. The Supreme Court made clear in Kimbrough v. United States that “[a] district judge must include the Guidelines range in the array of factors warranting consideration,” even if the Commission did not use an empirical approach in developing sentences for the particular offense. Accordingly, we will not reject a Guidelines provision as “unreasonable” or “irrational” simply because it is not based on empirical data and even if it leads to some disparities in sentencing. The advisory Guidelines sentencing range remains a factor for district courts to consider in arriving upon a sentence....
In the present case, the district court expressly considered and rejected reasoning similar to that in Dorvee to the effect that those who “merely” possess or transport child pornography should not receive the same or more severe sentences than those who have actual sexual contact with a child.... The district court considered the policies underpinning the child pornography Guidelines. It concluded that the sentence imposed, 220 months of imprisonment, was not greater than necessary to accomplish the purposes set forth in 18 U.S.C. § 3553.
Miller contends that punishment for his offense should have been mitigated by his personal characteristics and history, including his difficult childhood, his service in the Navy (prior to his other-than-honorable discharge), and the empathy for child pornography victims and remorse he attained after he was raped in prison. The district court considered each of these factors. Miller’s disagreement is with the weight that the court gave to each. The district court did not fail to give sufficient weight to Miller’s characteristics and history.
Some related posts on related rulings from other circuits:
- Major reasonableness ruling from Second Circuit in child porn downloading case
- Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling
- Seventh Circuit affirms 210-month prison sentence for child porn dowloader/purveyor
- Multi-opinion Ninth Circuit ruling on federal child porn sentencing
Thursday, December 08, 2011
Split Eighth Circuit panel affirms 10-year-max sentence despite guidelines range of 0 to 6 months
Today brings a fascinating split sentencing decision from the Eighth Circuit in US v. Richart, No. 10-1167 (8th Cir. Dec. 8, 2011) (available here). The majority opinion starts this way:
After a jury found Wanda Richart guilty of one count of conspiracy to make a false statement in violation of 18 U.S.C. § 371 and one count of making a false statement in violation of 18 U.S.C. § 1001, the district court sentenced her to sixty months' imprisonment on each count, to be served consecutively, and three years' supervised release. Richart appeals her sentence, arguing that the district court committed procedural error in imposing a two-level adjustment for her role in the offense, in imposing an upward departure, and in running the two sentences consecutive to each other. Richart also contends that the district court abused its discretion by imposing a substantively unreasonable sentence and by imposing special conditions of supervised release. For the reasons stated below, we affirm.
Though this starting description from the majority does not make the Richart case sound too exciting, these passages from the start of Judge Bye's dissent highlight why the Richart decision makes for an intersting read:
The district court here varied upward from the 0 to 6 months Guideline range and sentenced Richart to 120 months’ imprisonment—the statutory maximum—for making, and conspiring to make, false statements to an FBI agent....
The record demonstrates the district court’s decision to vary upward from the 0 to 6 months Guideline range, and impose a 120-month sentence, rested largely, if not exclusively, on the court’s desire to correct what it perceived to be an inadequate state sentence for Richart’s second-degree murder conviction. Specifically, the court gave significant weight to the nature of Richart’s state conviction, the length of her state sentence, and the uncertain amount of time she would actually serve in state prison.
December 8, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack
Monday, November 28, 2011
Some notable responses to recent DOJ post-Booker disparity complaints
Regular readers with a special interest in federal sentencing may recall this posting from a few weeks ago noting a public speech by Assistant Attorney General Lanny Breuer in which he lamented increasing federal sentencing disparity and asserted that "many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in." I have gotten a sense that this speech has generated some extra amounts of notable buzz in the federal sentencing world, and it has also now also generated some notable responses.
One such response comes from Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM), via this commentary piece at the website Main Justice. The piece carries the headline "It's Not the Judges," and here are the four numbers points that appear in this piece:
- Prosecutors share responsibility for different guideline adherence rates among districts
- Different federal districts are just that: different
- Flawed guidelines, not flawed judges, drive variance rates
- Sentencing rules drive racial disparity
Another response comes via a letter put together by a set of federal public defenders which can be downloaded below and starts this way:
As Federal Public Defenders, we read with interest the remarks you made before the American Lawyer/National Law Journal Summit in Washington, D.C. on November 15, 2011. We were heartened to see that you believe, as we do, that the significant prison population in both federal and state facilities is a tremendously important issue for all legal practitioners, whether or not they practice criminal law. But we read with some concern your statements regarding sentencing disparities between federal districts, particularly the three districts in which we serve....
We write because, as experienced practitioners in the districts you mention, we disagree that the disparities you identify have much at all to do with the sentencing judges involved. Instead, we believe that these disparities have far more to do with the types of cases that arise in each district, and the prosecution policies that local federal prosecutors have chosen to address these cases.
Wednesday, November 16, 2011
Notable sentencing reversal by Seventh Circuit in mortgage fraud sentencing
For understandable reasons, mortgage fraud crimes and punishments are generating more controversies in the federal courts these days. Consequently, I suspect lots of folks for lots of reasons may be interested in today's sentencing work by a Seventh Circuit panel in US v. Robertson, No. 11-1651 (7th Cir. Nov. 16, 2011) (available here). Robertson gets started this way:
In the late 1990s, Henry and Elizabeth Robertson were involved in a Chicagoland mortgage fraud scheme. Through their company, Elohim, Inc., the Robertsons bought residential properties and then sold those properties to nominee buyers at inflated prices. Along the way they provided lenders with false information about the buyers’ finances, sources of down payments, and intentions to occupy the residences. The scheme involved 37 separate fraudulent transactions and resulted in a net loss of more than $700,000 to various lenders.
After the scheme collapsed, the Robertsons went bankrupt but were not charged with any crimes. They went about the laudable business of rebuilding their lives and rehabilitating themselves. Elizabeth continued to work as a full-time nurse in a hospital’s pediatric intensive care unit. Henry worked as a full-time cable installer and technician. They raised their three children and became fully engaged in their community. Each volunteered as a coach in youth sports, and Henry assisted in fighting crime in their neighborhood by serving as president of their block club. Neither Henry nor Elizabeth engaged in any criminal activity from 1999 to 2010, apart from a reckless driving offense by Henry in 2002.
But the Robertsons could not escape their past. On the day before the ten-year statute of limitations for one crime would have expired, the government charged the Robertsons with one count of wire fraud, 18 U.S.C. § 1343, and two counts of bank fraud, 18 U.S.C. § 1344. The Robertsons both pled guilty to a single count of wire fraud, and both were sentenced on March 2, 2011. The sentencing court based their sentences on the 2010 United States Sentencing Guidelines that were then in effect. Elizabeth was sentenced to 41 months in prison, and Henry was sentenced to 63 months. They were also ordered to pay more than $700,000 in restitution.
The Robertsons appeal from their sentences on several grounds. First, they argue that the district court’s use of the more severe 2010 Sentencing Guidelines violated the ex post facto clause of the Constitution, and they urge us to overrule United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), which held that the ex post facto clause does not apply to changes in the now-advisory federal Sentencing Guidelines. They also argue that their roles in the mortgage fraud scheme did not warrant a 2-level guide line enhancement imposed by the sentencing court pursuant to U.S.S.G. § 3B1.1(c) for their roles in organizing the scheme. We reject these arguments. But we agree with the Robertsons’ final argument, that the sentencing judge failed to consider adequately their unusually strong evidence of self-motivated rehabilitation. For this reason, we vacate their sentences and remand for resentencing. Because we remand, we do not address the Robert sons’ additional argument that their sentences were substantively unreasonable.
November 16, 2011 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack
Monday, November 07, 2011
Tenth Circuit elaborates on authority to vary from guidelines based on fast-track disparity
A Tenth Circuit panel has today issued a details opinion discussion a district court's authority to vary from the guidelines based on fast-track disparities. The opinion in US v. Lopez-Macias, No. 10-1494 (10th Cir. Nov. 7, 2011) (available here), gets started this way:
In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or “fast-track” programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). Pub. L. No. 108-21, 117 Stat. 650 (2003). Congress specifically instructed the United States Sentencing Commission to promulgate “a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.” Pub. L. No. 108-21, § 401(m), 117 Stat. at 675. In response, the Sentencing Commission promulgated U.S.S.G. § 5K3.1: “Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the [Attorney General] and the United States Attorney for the district in which the court resides.”
This sentencing appeal presents us with two questions related to the presence of fast-track programs in some federal districts, but not others. The first question is whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue is whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program. We hold that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities. Given the facts presented here, however, we need not now decide the precise extent of a defendant’s burden.
"Guidelines Gone Awry"
The title of this post is the headline of this notable new commentary by Alan Vinegrad and Jason Levine. It appears in today's New York Law Journal and gets started this way:
On Oct. 12, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security held its first hearing on federal sentencing since March 2006. The title — "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years After U.S. v. Booker" — apparently reflects the subcommittee majority's views on post-Booker1 sentencing. Representative James Sensenbrenner, chairman of the subcommittee, stated that he is "deeply concerned" with federal sentencing due to the "increasing frequency of downward departures." Those who commit child pornography or fraud offenses "are in luck," he added, explaining that these crimes have seen particularly high rates of below-guideline sentences.
Proposals to address these concerns have run the gamut. One witness recommended that the Sentencing Reform Act be repealed and the Sentencing Commission abolished. Another proposed that sentencing guidelines once again be presumptively applicable, circumventing Booker by relying on juries to make findings on aggravating factors. And Judge Patti Saris, chair of the Sentencing Commission and Massachusetts district judge, testified about the problems sentencing courts have encountered in the post-Booker sentencing regime and recommended a more robust system of appellate review.
The commission's proposals, although understandable, did not address the real culprit — the guidelines themselves. In several areas, the guidelines, primarily as a result of congressional directives, no longer fairly reflect the varied purposes for which they were created.
Some recent related posts about the House Booker hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
Monday, October 31, 2011
Split Eighth Circuit affirms reasonableness of 48-year sentence for juve who pleaded to second-degree murder
An interesting (and unusual) reasonableness appeal produced an interesting split of opinion today in US v. Boneshirt, No. 10-3108 (8th Cir. Oct. 31, 2011) (available here). Here are snippets from the relatively lengthy majority opinion authored by Judge Smith:
Brian Boneshirt pleaded guilty, pursuant to a written plea agreement, to one count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The district court sentenced him to 576 months' imprisonment. On appeal, Boneshirt challenges the substantive reasonableness of his sentence. We affirm....
In his sentencing memorandum, Boneshirt objected to the allegation that he had participated in a plan to escape from jail. He also objected to the PSR's denial of the reduction for acceptance of responsibility and application of the enhancement for obstruction of justice. In addition, Boneshirt argued that the court should impose a below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically, he argued for leniency based on his youth and intoxicated state at the time of the offense, his difficult childhood, and his alcohol-related neurodevelopmental disorder....
After a careful review of the sentencing record, we conclude that the district court did not abuse its discretion in sentencing Boneshirt to 576 months' imprisonment. Both the sentencing hearing transcript and the court's statement of reasons explaining its sentence demonstrate that the court considered all of Boneshirt's arguments and the § 3553(a) factors, ultimately imposing the sentence based on the "nature of the offense, the nature of post-offense conduct, and the need to protect society from Mr. Boneshirt."...
In sum, the record indicates that, over the course of a six-hour sentencing hearing, the district court thoroughly considered all of Boneshirt's arguments, the facts, and the law in attempting to fashion an appropriate sentence. The resulting sentence is harsh but is within the calculated Guidelines range and hence may be considered presumptively reasonable. Frausto, 636 F.3d at 997. Presumptively reasonable, however, does not mean unassailable. Yet this record is lacking in a demonstration of sentencing error on the part of the district court. Many reasonable minds may have imposed a lesser sentence, but we conclude that the district court did not abuse its discretion and impose an unreasonable sentence by selecting a high but within-Guidelines sentence for a homicide offense.
Here is a passage from the relatively lengthy partial dissent authored by Judge Bright:
Boneshirt's forty-eight-year sentence is substantively unreasonable because the district court unreasonably weighed the facts at issue in the case. The district court failed to give proper weight to the fact that Boneshirt was a juvenile when he committed the crime, especially when his age is considered with his background and upbringing. And further, the district court’s sentence placed too much weight on a plan to escape by Boneshirt when he was pending sentencing.
Wednesday, October 19, 2011
Feds want a lot more prison time for corrupt state pol Vincent Fumo
Sentencing briefs for the upcoming resentencing of former Pennsylvania State Senator Vince Fumo were filed yesterday. Comically, as detailed below, the headlines from various news sources reporting on the filings indicate quite different sentences purportedly being sought by federal prosecutors:
From the Philadelphia Inquirer here, "Prosecutors want Fumo jailed for 15 years"
From Newsworks here, "Prosecutors: Fumo should get at least 17 years for 'astonishing' corruption"
From the Philadelphia Daily News here, "Feds: Fumo should serve up to 21 years"
From Reuters here, "Former Pa. politician should serve up to 27 years: prosecutors"
Here is how the first of these pieces gets started:
Prosecutors Tuesday urged a federal judge to resentence former State Sen. Vincent J. Fumo to at least 15 years in prison, more than triple his current penalty, to properly punish him for "detestable" crimes that cost taxpayers and charities $4 million.
But in a rival filing, Fumo's defense team urged U.S. District Judge Ronald L. Buckwalter to simply reinstate the controversial 55-month sentence he imposed two years ago. They said Buckwalter should again grant Fumo a break for what the lawyers called his "extraordinary level" of public service, as well as for private acts of generosity. His attorneys described the 68-year-old Fumo as in poor health, facing the "real chance" of dying in prison, yet still mentoring fellow inmates.
In August, the U.S. Court of Appeals for the Third Circuit ordered Buckwalter to resentence Fumo. Without specifying what new sentence should be imposed, it said Buckwalter's legal reasoning had been shot through with errors, including a badly underestimated figure for the cost of Fumo's crimes. Buckwalter is to decide after a resentencing hearing Nov. 9.
October 19, 2011 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Tuesday, October 18, 2011
Important "fast-track" disparity reversal from the Eighth Circuit permits variances in non-fast-track districts
I have long wondered how many times the Supreme Court would have to reverse the Eighth Circuit concerning its tendency to place post-Booker restrictions on the sentencing discretion of district judges before the Eighth Circuit would get the message that the Justices are eager to emphasize the word "advisory" over the word "guidelines" in the modern sentencing system. An important new unanimous ruling today by an Eighth Circuit panel in US v. Jimenez-Perez, No. 10-3757 (8th Cir. Oct. 18, 2011) (available here) suggests that the Circuit has finally knows which way the federal sentencing winds have been blowing after Booker. Here are some snippets from Jimenez-Perez that explain what I mean:
In his first point on appeal, Jimenez-Perez contends that the district court procedurally erred when it concluded that it lacked the discretion to vary downward from the Guidelines advisory sentencing range based on the allegedly unwarranted sentencing disparity caused by the lack of Fast Track. The government attempts to rebut Jimenez-Perez's argument by relying on our unpublished per curiam decision in United States v. Rosario-Moctezuma, 411 F. App'x 942 (8th Cir. 2011), in which we held that Jimenez-Perez's "argument is squarely foreclosed by our decision in United States v. Gonzalez–Alvarado, 477 F.3d 648, 651 (8th Cir. 2007), abrogated on other grounds by Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed.2d 445 (2007), where we concluded that 'variances based on the absence of [F]ast-[T]rack programs are impermissible.'" Rosario-Moctezuma, 411 F. App'x at 943–44.
However, as Jimenez-Perez points out, we decided Gonzalez-Alvarado, upon which our unpublished Rosario-Moctezuma relied, before the Supreme Court decided Kimbrough v. United States, 552 U.S. 85 (2007), which held that district courts are permitted to vary downward from a properly calculated Guidelines range to compensate for the Guidelines' then-applicable 100:1 ratio governing powder- and crack-cocaine offenses. Our four-paragraph decision in Rosario-Moctezumamakes no mention of Kimbrough and, because it is unpublished, lacks controlling authority....
Upon review of these cases [from other circuits], we hold that Kimbrough undermines the rationale of our prior decisions that disallowed variances based on the unavailability of Fast- Track in a particular judicial district....
All four of our sister circuits that have concluded that a district court may vary downward to compensate for the sentencing disparities that Fast Track's unavailability creates in a given judicial district, have done so based on the observation that nowhere in the PROTECT Act does Congress purport to limit a district court's sentencing discretion under all § 3553(a) factors. These courts have based that conclusion on the Supreme Court's rejection in Kimbrough of the notion that Congress could effectuate such a limit on a district court's sentencing discretion implicitly....
We join the majority of our sister circuits to have addressed this issue.... Indeed, as stated earlier, the Supreme Court admonished that "[d]rawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms." Kimbrough, 552 U.S. at 103 (emphasis added). The PROTECT Act lacks any such express directive....
In conclusion, we hold that the Supreme Court's decision in Kimbrough undermined this circuit's precedent holding that the PROTECT Act evinced a congressional intent to limit a district court's sentencing discretion to vary downward in recognition of the unavailability of Fast Track in a given judicial district.
Related posts on related issues and rulings:
- Significant new fast-track disparity ruling from Seventh Circuit
- Split Sixth Circuit expressly holds that fast-track disparity is proper basis for variance
- 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
- Third Circuit rejects sundry challenges to lack of fast-track sentencing programs in certain districts
- "Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"
- The persistent problems with fast-track disparity after Booker and Kimbrough
- FSR issue, "Fast-Track Sentencing," now available on-line
Thursday, October 13, 2011
Additional written testimony submitted at House Booker hearing
At the tail end of yesterday's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," the members of the committee entered into the record submitted written testimony submitted by some public policy groups. I hope to be able to provide links to all this submitted testimony, and already available at this link is testimony authored by Testimony of Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM). I believe a number of defense groups also submitted testimony, which I will post if/when I can find it.
UPDATE: Here is a link to testimony from the ACLU submitted to the house subcommittee.
Some recent related posts about the House hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
October 13, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, October 07, 2011
House Judiciary subcommittee to hold hearing on post-Booker realities next week
As detailed in this calender entry, next Wednesday morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system. The hearing has been given this telling title: "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."
Not yet listed are the scheduled witnesses for this hearing, but I assume that someone from the US Sentencing Commission (the Chair?) will be testifying. Usually these kinds of hearings include an invitation to some representative from the US Department of Justice, though that is less certain, especially given that the House Republicans get to run this show and they may want to spend much of their time beating up on DOJ.
Whomever ends up testifying, I am extremely pleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC. On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.
Though I doubt many members of the House Subcommittee share my perspectives on all federal sentencing issues issues, their eagerness to try to figure out what is really going on in the modern federal sentencing system merits praise and gets me excited. I eager to see what comes of this hearing, and will post more about it as more information becomes available.
Monday, September 26, 2011
Has the Seventh Circuit essentially abolished substantive reasonableness review?
The question in the title of this post is prompted by the Seventh Circuit's ruling today in US v. Vance, No. 10-3245 (7th Cir. Sept. 26, 2011) (available here), which seems to indicate, in substance and style, that the circuit will always affirm a within-guideline absent a procedural error. In Vance, a defendant with a long criminal history appealed a within-guideline sentence of nearly 22 years for offenses involving a small amount of crack. The panel majority set up the issues for review this way:
In this case, the defendant has conceded that the range of 262 to 327 months’ imprisonment was computed correctly. We therefore apply the presumption of reasonableness and consider whether (1) the defendant’s arguments for a below-Guidelines sentence were given meaningful consideration and (2) the factors that formed the basis of the judge’s sentence were adequately communicated at the hearing. If these requirements are satisfied, we conclude that the sentence imposed was a reasonable exercise of the sentencing judge’s broad discretion.
As I read this paragraph, it seems the Seventh Circuit really does not merely presume the (substantive) reasonableness of within-guideline sentences. Rather, this paragraph suggests the Seventh Circuit will consider any and all within-guideline sentences per se reasonable if the sentencing record below reflects "meaningful consideration" of the defendant's arguments and the district judge's sentencing ruling was "adequately communicated."
To its credit, the Seventh Circuit has applied the most rigorous form of procedural reasonableness review among the circuits: Seventh Circuit panels have often remanded for resentencing after finding that a district judge failed to give "meaningful consideration" to arguments or that a sentencing decision was not "adequately communicated." But the US Supreme Court in Rita indicated that circuits must conduct substantive reasonableness review as well as procedural reasonableness review after Booker even for within-guideline sentences. It also hinted in Rita that only a presumption of reasonableness, not a per se affirmance rule, would comply with the Sixth Amendment part of the Booker ruling.
Notably, Judge Williams had a brief dissent in Vance, though she asserts merely that "the proper course of action is a limited remand to ask the judge whether he would have sentenced Vance any differently in light of the disparity in crack and powder career offender guideline ranges in this case." In other words, she takes no issue with the lack of any substantive review of a 22-year prison sentence for small-fry crack offenses, but rather just urges a limited remand to ensure the district court knew what it was doing.
Especially given that the defendant in this cases was sentenced after the passage of the Fair Sentencing Act lowered crack sentences dramatically, but before the guidelines were amended to reflect the FSA's reduced sentencing terms, there is a lot that could and probably should be said about the substantive (un)reasonableness of the defendant's sentence here. But it seems the Seventh Circuit is not merely content, but actually eager, to treat the guidelines as a "sentencing safe-harbor" so that within-guideline sentences are immune from the substantive reasonableness review that the Supreme Court has purportedly required after Booker. Sigh.
New call for a (long overdue?) legislative and USSC fix to Booker
Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal. The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action." Here are excerpts:
The U.S. Sentencing Commission is confronting a challenge to its own existence. Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission. Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.
For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines. At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court." But more than a half-decade later, neither Congress nor the commission has acted.
The time for action is now, and the commission has the opportunity to urge changes to restore order to our system. Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....
Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time. Even more troubling, racial disparities in federal sentencing are on the rise. According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."
Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws. Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....
The appetite for reform appears to have returned. Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury. And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."
Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker. The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start. More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines. Additionally, the commission should demand reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.
In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute. In essence, courts will be left to legislate from the bench.
I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system. I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo. But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:
- Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
- Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
- Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).
For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.
Friday, September 23, 2011
Split Ninth Circuit affirms huge upward departure based on uncharged murder
A remarkable case produces today another remarkable reasonableness review outcome via a split Ninth Circuit that affirms a way above guideline sentence based on an uncharged murder. Here is how the majority opinion in US v. Fitch, No. 10-10607 (9th Cir. Sept. 23, 2011) (available here), gets started:
David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41-51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.
Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum—based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this, but are constrained to affirm.
Here is how the dissent concludes its opinion:
We simply do not know any of the circumstances of Bozi’s disappearance. We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit. While Fitch may indeed have been played a causative, or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement. There is certainly no clear and convincing evidence of premeditated murder. The district court’s finding is simply not supported by the record. The substantial departure applied pursuant to § 5K2.1 was therefore an abuse of discretion. Accordingly, I respectfully dissent.
Monday, September 19, 2011
Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable
Thanks to David Oscar Markus and this post at his Southern District of Florida blog, I have seen that an Eleventh Circuit panel today has handed down this very-long opinion in a very high-profile terrorism case. Here is how David summarizes the basic holding:
Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings.... This case seems destined for Supreme Court review.
And here from the start of the opinion are the issues in play as set forth at the start of the majority's opinion:
A federal grand jury in the Southern District of Florida indicted Appellants Adham Hassoun, Kifah Jayyousi, and Jose Padilla (referred to individually by name or collectively as “defendants”), along with Mohammed Youssef and Kassem Daher, for offenses relating to their support for Islamist violence overseas....
Trial commenced on April 16, 2007, and four months later, the jury returned a special verdict convicting defendants on all counts.... On Count 1, the district court sentenced Padilla to 208 months, Hassoun to 188 months, and Jayyousi to 152 months’ imprisonment. On Count 2, the district court sentenced each defendant to the maximum 60 months’ imprisonment. On Count 3, the district court sentenced Padilla and Hassoun to the maximum of 180 months’ imprisonment and sentenced Jayyousi to the maximum of 120 months’ imprisonment. The district court made all sentences run concurrently and imposed a 20-year period of supervised release for each defendant. The defendants appeal, and the government cross-appeals Padilla’s sentence.
Among the interesting aspects of the majority's sentencing ruling in this case is its conclusion that Padilla's sentence was procedurally sound but substantively unreasonable. Here are a few (of many) interesting passages from the majority's sentencing discussion (with some cites removed):
The district court did not commit procedural error. Neither party contends that the district court failed to properly calculate the Guidelines range or treated the Guidelines as mandatory.... Furthermore, the district court adequately explained that it gave Padilla a sentence that was below the Guidelines range for several reasons: the conditions of Padilla’s prior confinement, his allegedly low risk of recidivism due to his age at the time of his anticipated release, the comparable sentences imposed on other terrorists, and the fact that Padilla did not personally injure anyone or target Americans in his conspiracy.
However, Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors. First, the district court acknowledged that Padilla had a criminal history but then unreasonably discounted this criminal history when it imposed a sentence....
Second, Padilla’s sentence unreasonably fails “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The district court explained that given Padilla’s age when he is eligible to leave the criminal system, he will unlikely engage in new criminal conduct. The government argues to the contrary that “the risk of recidivism upon release is very real. That risk is greater because Padilla has literally learned to kill like a terrorist.” We agree that the district court failed to consider the nature of Padilla’s crimes and his terrorism training. Although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders. See United States v. Irey, 612 F.3d 1160, 1213–14 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011). We also reject this reasoning here....
Third, in considering “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), the district court unreasonably failed to consider the significant distinctions between Padilla’s circumstances and the sentences of other offenders the district court referenced at the sentencing hearing.... On remand, we admonish the district court to avoid imposition of a sentence inconsistent with those of similarly situated defendants. It should not draw comparisons to cases involving defendants who were convicted of less serious offenses, pleaded guilty, or who lacked extensive criminal histories, nor should it draw comparisons to cases where the government sought the imposition of the death penalty.
Judge Barkett's discussion of sentence issues is also interesting (and even longther than the majoity's discussion). Here is the concluding passage from her sentencing discussion (with cites removed):
Much of what the majority takes issue with concerns the trial judge’s discretion in weighing the § 3553(a) factors, but the record simply cannot support the conclusion that Padilla’s sentence involves an abuse of such discretion. Precedent from the Supreme Court and this Circuit recognize that trial judges may attach great weight to one factor over others, and remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. The trial judge followed these principles such that her conclusion to sentence Padilla below the Guidelines is entitled to due deference, even by those who “might reasonably have concluded that a different sentence was appropriate.
UPDATE: For a press account of this ruling, here is a Reuters piece headlined "Court says Padilla prison sentence too lenient."
Friday, September 16, 2011
Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
The Eighth Circuit has handed down an opinion today in US v. Rubashkin, No. 10-2487 (8th Cir. Sept. 16, 2011) (available here), a high-profile white-collar case out of the heartland involving financial frauds at a kosher meat-packing plant. The panel has unanimously affirmed the Sholom Rubashkin's conviction and sentence; I have followed this case closely, in part because I helped file an amicus brief complaining about what I considered to be an unreasonable of 27-year (within-guideline) federal prison sentence for the defendant's offense conduct.
Though disappointed with the ruling here, I am not especially surprised given the Eighth Circuit's history in sentencing appeals. (That history, along with the frequency with which the Supreme Court has reviewed and reversed the Eighth Circuit's work since Booker, might well mean this case will get more appellate attention in the future). Here is an excerpt of the Rubashkin panel's sentencing discussion:
Rubashkin argues that his 324 month sentence was substantively unreasonable given his age, nonviolence, lack of criminal history, unlikelihood of recidivism, family obligations, and the principal motives for his acts,. We review the imposition of a sentence under "a deferential abuse-of-discretion standard." United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall, 552 U.S. at 41). Sentences within the guideline range are presumed to be substantively reasonable. United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008).
Not only was Rubashkin's sentence of 324 months within the guideline range, it was at the low end of it. Rubashkin argues that because of his past charitable acts and his family obligations he should have been granted a downward departure. These are the very characteristics that the district court properly took into account when considering the § 3353(a) factors. The court weighed Rubashkin's past charitable acts, nonviolence, and the needs of his family against his involvement in multiple fraudulent schemes and the millions of dollars in damage they caused. The cases Rubashkin cites in favor of his unreasonableness argument illustrate instances where downward departures based on charity or family needs have been affirmed. Nothing requires a sentencing court to depart on such grounds. Under all the circumstances the district court did not abuse its considerable discretion in imposing a 324 month sentence.
Related posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
Monday, September 12, 2011
"One Book, Two Sentences: Ex Post Facto Considerations of the One-Book Rule after United States v. Kumar"
The title of this post is the title of this new piece by Andrew Adams appearing now on SSRN. The piece discusses what I view as one of the most challenging enduring doctrinal issues still unresolved in the wake of Booker, and here is the abstract:
This article addresses the ongoing discord among the Courts of Appeals with respect to the implications of the U.S. Sentencing Guidelines’ “One-Book Rule” and its constitutionality under the Ex Post Facto Clause. A recent decision by the Second Circuit, United States v. Kumar, produced the most extreme position in a three-way split among the circuits by holding that the application of a single Guidelines manual to multiple offenses -- even offenses predating that manual’s publication -- is always permissible under the Ex Post Facto Clause. The issue brings together two separate and difficult areas of jurisprudence applying the Ex Post Facto Clause: the permissibility of allowing one crime to “trigger” heightened punishments for previous crimes, and the ongoing circuit split over the Ex Post Facto Clause application to the Sentencing Guidelines.
The article explores the history of the application of the Ex Post Facto Clause in order to establish that, contrary to the assertions of courts and commentators, the single concern of the Ex Post Facto Clause has been putting people on notice of the consequences of their actions. The article then argues that Kumar, though an outlier amongst the circuits, was indeed correct in its constitutional analysis of the One-Book rule. Nevertheless, the same constitutional concepts at work in Kumar ultimately imply that the One-Book rule runs counter to the goals of the Sentencing Guidelines themselves -- uniformity of sentencing --even if its application is ultimately constitutional. The article concludes by advancing two potential resolutions to the problems left unresolved by Kumar, the Courts of Appeals, or the Sentencing Guidelines themselves.
A Fifth Circuit reminder that not all federal defendants like the guidelines being merely advisory
One (of many) under-discussed aspects of the post-Booker system is that, in percentage terms, the number of above-guideline sentences have gone up more than the number of below-guideline sentences since the guidelines became adviosry. Roughly speaking, though the number of below-guideline sentences have increased about 50% post-Booker, the number of above-guideline sentences have increased nearly 100% post-Booker.
Though the absolute number of above-guideline sentences remain relatively small, the decision late last week from the Fifth Circuit in US v. Pizzolato, No. 10-30729 (5th Cir. Sept. 9, 2011) (available here), provides a useful reminder that not all federal defendants benefit from the guidelines now being merely advisory. Here is how the Pizzolato opinion starts:
Defendant-Appellant Matthew B. Pizzolato pleaded guilty to multiple crimes related to his conduct in running a fraudulent “Ponzi” scheme. The plea agreement recommended an applicable sentencing range of 151 to 188 months under the Federal Sentencing Guidelines (the “Guidelines”). The district court disregarded the plea agreement’s recommendation and imposed the statutory maximum sentence of 360 months. Appellant argues that the Government breached the plea agreement by providing the district court with facts and arguments supporting a longer sentence than the parties agreed upon. We find no merit to defendant’s arguments and affirm.
September 12, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
Thursday, August 25, 2011
"Deterrence key issue" says editorial about Fumo case, but just how much prison time is needed to deter?
The Scranton Times-Tribune has this new editorialresponding to the decision by the Third Circuit to reverse and remand the 55-month sentence given to former corrupt state pol Vincent Fumo. The piece is headlined "Deterrence key issue," and here are excerpts:
As U.S. District Judge Ronald Buckwalter sentenced Vincent Fumo in 2010, it was hard to tell whether the former state senator from Philadelphia had been convicted of 137 fraud and obstruction of justice crimes against the people of Pennsylvania or a traffic violation.
After praising Mr. Fumo for his "good works," Judge Buckwalter sentenced him to 55 months in federal prison, far below the sentencing guidelines based on the offenses, including millions of dollars in fraud and destruction of evidence.
Tuesday, a majority of a three-judge panel of the U.S. 3rd Circuit Court of Appeals found that Judge Buckwalter owes an explanation for his leniency. The prosecution claimed in its appeal that Judge Buckwalter had failed to properly calculate $4 million worth of fraud by Mr. Fumo in abandoning the sentencing guidelines.
That doesn't necessarily mean that Mr. Fumo will receive a higher sentence from Judge Buckwalter, even though Judge Julio Fuentes wrote: "This evidence of Fumo's intent to divert the funds was overwhelming, and the district court's refusal to apply a two-level enhancement was an abuse of discretion." Prosecutors had sought a sentence of at least 121 months....
In corruption-plagued Pennsylvania, the ultimate outcome of this case is very important for the sake of deterrence. Several state legislators await trial on state charges. State Sen. Jane Orie awaits retrial on local charges in Allegheny County. Former state Sen. Raphael Musto of Luzerne County has been charged with corruption by federal authorities, who also are investigating former state Sen. Robert Mellow.
It's unfortunate that the web of corruption in so many aspects of governance in the commonwealth must be unspun by federal prosecutors rather than by elected representatives. It's vital, for the sake of clean government, that the courts recognize the need for deterrence when sentencing those who abuse their public offices for personal gain.
I largely agree with the basic theme of this editorial -- namely that deterrence can and should be a key issue in the sentencing of corrupt public officials. That said, I would hope that Fumo's now reversed sentence of "55 months imprisonment, a $411,000 fine, and $2,340,839 in restitution," would generally be a severe enough sanction to make public officials think twice before going crooked. Moreover, it is well known that the certainty and swiftness of a punishment often matter much more than severity in serving the goal of deterrence.
I do not mean these comments to be a blanket defense of the sentence that Fumo initially received. But I do mean to highlight the difficulty of turning a general concern for deterrence into a specific sentencing outcome and also to question whether any pol is likely to be more deterred if (and when?) Fumo's prison term gets a little (or a lot) longer.
Related posts on Fumo sentencing and appeal:
- "Court orders resentencing of ex-Pennsylvania state senator"
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
- Comparing white-collar apples and drug dealing oranges at sentencing
- "Feds seek to appeal 'unreasonable' Fumo sentence"
- Continued buzzing about the (soft?) sentence given to Fumo
- Third Circuit to hear feds' complaints about 55-month sentence for corrupt state politician
Sixth Circuit affirms 30-year sentence for CEO responsible for losses of over $2 billion
A notable white-collar appeal was resolved by the Sixth Circuit today via a lengthy opinion in US v. Poulsen, No. 08-4218 (6th Cir. Aug. 25, 2011) (available here). Most of the 30-page opinion is about trial issues, though there is some notable discussion of loss calculations toward the end of the opinion. In addition, this sharp paragraph at the very end of the opinion explains the panel's rejection of the defendant's substantive unreasonableness claim concerning his 30-year prison term:
Finally, Poulsen argues that his sentence was substantively unreasonable because the district court failed to properly consider unwarranted sentencing disparities. Poulsen submits that he should not have been compared to the CEOs of infamous companies such as WorldCom and Enron. He asserts that every defendant should receive an individualized assessment based upon the specific facts of his particular case. Conversely, Poulsen cites a number of sentences given to those whom he refers to as “the most notorious financial fraudsters in corporate America.” These defendants received shorter sentences for similar crimes. Poulsen inconsistently argues that he deserved individualized treatment and then compares himself to other corporate offenders. Poulsen presents no coherent argument as to why his sentence is substantively unreasonable. We affirm the district court’s sentence in all respects.
Tuesday, August 23, 2011
"Court orders resentencing of ex-Pennsylvania state senator"
The title of this post is the headline of this Reuters piece reporting on a high-profile Third Circuit ruling today in a high-profile corruption case. Here are the details:
A federal appeals court on Tuesday ordered the resentencing of a former Pennsylvania state senator, saying the trial judge erred in his sentencing of the once powerful former politician.
Former State Senator Vincent Fumo was sentenced to 55 months in a minimum-security federal prison after he was convicted in March 2009 of 137 charges of fraud, tax evasion and obstruction of justice.
The Democrat's conviction was upheld by the Third Circuit Court of Appeals on Tuesday, which ordered the resentencing. In an unusual move, prosecutors in May argued that Fumo should be resentenced to up to 27 years in prison, saying U.S. District Court Judge Ronald Buckwalter had been too lenient and did not explain why he sentenced Fumo to below federal sentencing guidelines.
In a statement, U.S. Attorney Zane David Memeger said: "We are pleased with the decision of the Third Circuit Court of Appeals and will prepare for the next step in the process."...
Fumo's lawyers had argued that the sentencing judge committed "no significant procedural error" and noted the court had ordered Fumo to pay a fine of $411,000 and more than $2.3 million in restitution. His attorneys also added that Buckwalter found Fumo had worked hard for the public, warranting a departure from sentencing guidelines.
The full opinion in US v. Fumo, No. 09-3390 (3d Cir. Aug. 23, 2011) (available here), runs 84 pages, though the last 22-pages is made up by a dissent by Judge Nygaard on the sentencing issues. I hope to have more comments on these opinions when I get to consume them fully.
Peculiar(?) concurrence in Eighth Circuit panel's affirmance of top-of-guideline sentence
The Eighth Circuit has an intriguing little reasonableness ruling today in US v. Wohlman, No.10-2967 (8th Cir. Aug. 23, 2011) (available here), which gets started this way:
Thomas Wohlman pleaded guilty to one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b). The district court sentenced Wohlman to 121 months' imprisonment, the top of the Guidelines range. On appeal, Wohlman argues that the district court committed several procedural errors and imposed an unreasonable sentence. He also argues that his sentencing counsel was ineffective for failing to object to an upward departure under U.S.S.G. § 2G1.3(b)(2)(A). We affirm Wohlman's sentence and decline to reach the merits of Wohlman's ineffective-assistance-of-counsel claim.
The opinion covers a lot of modern sentencing review ground, but the ruling seemed to me especially blog-worthy because of Judge Bright's brief concurrence. Here is the full text of that concurrence:
I can find no error in the sentencing process or the actual sentence of ten years and one month, the top of the guidelines. Accordingly, I concur.
Yet, I write to note that no molestation of any young person actually occurred. The conversations Wohlman had about sex with minor females took place with government agents who posed as minor females.
Wohlman has no felony convictions and operates an apparently successful business. A qualified expert witness testified that Wohlman was unlikely to reoffend and that he was not a predator. The district judge, however, gave little weight to testimony. Although the sentence at the top of the guidelines stands approved, this judge suggests that this sentence is harsh considering the entire record and defendant’s background.
Notwithstanding Judge Bright's initial assertion that he could find no error in the sentence, he seems to be saying with the rest of his brief opinion that he views the top-of-guideline prison term to be "greater than necessary to comply with the purposes set forth" in federal sentencing law in 18 USC 3553(a)(2). To me that amounts to a judgment, in Judge Bright's view, that there is error in the sentence as being substantively unreasonable.
To the extent that the Supreme Court has indicated that substantive reasonableness review remains important and distinct from procedural reasonableness review after Booker, this form of review would seem to be precisely about circuit judges making judgments that district court imposed too harsh (or too lenient) a sentence in light of congressional sentencing purposes. In other words, I see Judge Bright's concurrence to be peculiar because he seems to be expressing a strong substantive disagreement with the sentence below and yet also seems of the view that this substantive judgment is not a proper part of reasonableness review.