Thursday, March 07, 2013

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

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

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

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

Download DOJ letter to USSC on CP report

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

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

Recent related posts:

March 7, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, March 03, 2013

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, February 27, 2013

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

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

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

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

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

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

Recent related post:

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

Tuesday, February 19, 2013

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

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

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

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

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

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

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

Sunday, February 17, 2013

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

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

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

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

Recent related posts:

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

Friday, February 15, 2013

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

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

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

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

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

Thursday, February 14, 2013

Second Circuit finds repeat resentencing procedurally unreasonable

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

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

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

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

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

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

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

Friday, February 01, 2013

Summary of key USSC findings in its big new Booker report

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent related post:

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

Friday, January 18, 2013

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

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

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

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

Thursday, January 10, 2013

Extended discussion of fast-track sentencing realities in new Seveth Circuit opinion

I have not followed closely of late data or discussions of fast-track sentencing policies in the federal district court, but a new Seventh Circuit opinion brings this always-interesting post-Booker issue to mind again.  Today in US v. Anaya-Aguirre, No. 11-3675 (7th Cir. Jan. 10, 2013) (available here),the Seventh Circuit covers lots of notable ground in the course of rejecting the defendant's complaint he did not prevail on his fast-track disparity argument for a reduced sentence. Here is how the opinion gets started:

Appellant Jose Manuel Anaya- Aguirre violated 8 U.S.C. § 1326(a) by illegally reentering the United States after a prior deportation that had followed a felony conviction in the United States.  He pled guilty and was sentenced to 48 months in prison.  Anaya-Aguirre argued in the district court that he should receive a below-guideline sentence because the Northern District of Illinois did not have a “fast track” program.  Fast-track programs in some districts offer certain categories of defendants — including many in immigration cases — shorter sentences in exchange for very prompt guilty pleas, the waiver of nearly all trial and appellate rights, and other conditions.  While the district court imposed a sentence that was below the guideline range, it is clear that the downward variance was not based on the lack of a fast-track program.  Anaya-Aguirre has appealed his sentence, arguing that the district court erred by rejecting his fast-track mitigation argument.  We affirm. [FN1]

[FN1] At the time of Anaya-Aguirre’s sentencing, none of the districts in the Seventh Circuit had fast-track programs. In January 2012, however, the Department of Justice changed its policy and now requires all districts prosecuting § 1326 violations to institute fast-track programs.  See Memorandum from Deputy Attorney General James M. Cole to All United States Attorneys, Department Policy on Early Disposition or “Fast-Track” Programs (Jan. 31, 2012), available at www.justice.gov/dag/fast-track-program.pdf.

January 10, 2013 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, December 19, 2012

Celebrity witness for high-profile (and interesting) federal sentencing appeal

I have blogged a good deal about the long-running federal criminal travails of Cameron Douglas, in part because the involvement of celebrities at sentencing is intriguing and in part because of the many legal and social issues raised by the seemingly lenient sentence Cameron Douglas was given at his first federal sentencing and the seemingly harsh sentence he got the second time around (some backstory here). 

Today, all these travails came before the Second Circuit for oral argument.  This new AP article about the argument hints that a notable reasonableness ruling might be in the offing:

Michael Douglas was among spectators Wednesday as an appeals court panel heard attorneys argue whether his son was treated too harshly when he was sent to prison for nearly 10 years for drug crimes.  The actor sat in the back of a Manhattan courtroom the size of a basketball court as three judges from the 2nd U.S. Circuit Court of Appeals heard attorney Paul Shechtman complain that Cameron Douglas got the stiffest sentence ever — 4 1/2 years in prison — for being caught with drugs in prison. The time was added last year to a five-year prison sentence Cameron Douglas was already serving....

The appeals panel, unlikely to release a written opinion for weeks or even months, did not indicate through its questions whether it will order a resentencing.  Like the sentencing judge, it seemed troubled by crimes Cameron Douglas, 34, committed after he was given leniency in return for cooperating against two of his former drug suppliers.  Without the benefit of cooperation, he would have faced a mandatory 10-year prison term after he pleaded guilty to narcotics distribution charges on Jan. 27, 2010.

Shechtman said only 2 percent of inmates are prosecuted when they are caught with drugs behind bars.  And he said the Bureau of Prisons had already punished Cameron Douglas with 11 months in segregation and by taking away nearly three months of good behavior credit.

Assistant U.S. Attorney Justin Anderson said Judge Richard M. Berman properly considered the unique characteristics of Cameron Douglas' crimes.  Cameron Douglas has admitted that he had a girlfriend sneak drugs to him after he was first arrested and was staying at his mother's place under tight bail conditions and that he convinced a female lawyer who had a romantic interest in him to sneak drugs to him in prison.  He also has admitted continuing to use drugs in prison.  "Extraordinary cases require extraordinary sentences," Anderson said....

Judge Guido Calabresi asked Anderson why Berman was not entitled to impose a sentence that was double what prosecutors were requesting and was nearly five times what the Probation Department recommended after he became disappointed with the number of chances Cameron Douglas had squandered.  Judge Gerard Lynch said it was understandable that Berman would think: "This guy got a big break and he screwed up."

Shechtman called Cameron Douglas' behavior "purely the conduct of an addict."  Lynch asked whether Berman was entitled to say drug offenders "have to clean up their act and I'm not going to see addiction as a justification."

Shechtman said he was not suggesting his client should not be punished but rather "54 months is an unreasonable sentence."

Prior posts concerning Cameron Douglas's federal sentencings:

December 19, 2012 in Booker in the Circuits, Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, December 18, 2012

Fascinating Judge Posner concurrence concerning carceration costs

An 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 months

In 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.

December 12, 2012 in Booker in district courts, Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, December 04, 2012

Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratio

The 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 affirmance

The-Crew-the-sopranos-449813_1024_768Today 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.

December 3, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, November 07, 2012

Judge Bright (in dissent) assails fraud guidelines and rote recitation of 3553(a) factors

Dissenting 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.

November 7, 2012 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, October 24, 2012

Third time around, "Millenium Bomber" gets (reasonable?) longer term of 37 years in prison

As 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:

October 24, 2012 in Booker in district courts, Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, October 11, 2012

Split Sixth Circuit opinion addresses range of child sex offense sentencing issues

The 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.

October 11, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, October 09, 2012

Interesting Third Circuit ruling addresses state-federal and federal-federal sex offense disparity claim

The 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.

October 9, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

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:

October 6, 2012 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack