Monday, June 10, 2013

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 16, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 15, 2013

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

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

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

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

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

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

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

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

Prior posts concerning Cameron Douglas's federal sentencings:

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

Tuesday, March 19, 2013

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

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

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

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

Thursday, March 07, 2013

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

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

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

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

Download DOJ letter to USSC on CP report

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

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

Recent related posts:

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

Sunday, March 03, 2013

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, February 27, 2013

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

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

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

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

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

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

Recent related post:

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

Tuesday, February 19, 2013

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

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

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

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

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

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

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

Sunday, February 17, 2013

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

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

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

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

Recent related posts:

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

Friday, February 15, 2013

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

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

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

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

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

Thursday, February 14, 2013

Second Circuit finds repeat resentencing procedurally unreasonable

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

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

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

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

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

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

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

Friday, February 01, 2013

Summary of key USSC findings in its big new Booker report

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent related post:

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

Friday, January 18, 2013

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

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

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

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

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

Thursday, October 04, 2012

Latest accounting of notable post-Gall reasonableness review decision

A 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.

October 4, 2012 in Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thursday, September 20, 2012

Seventh Circuit affirms 40-year (below-guideline) sentence for child porn producer

Though 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.

September 20, 2012 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, August 30, 2012

Fourth Circuit vacates LWOP sentence for illegal gun possession premised on uncharged murder

A 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.

August 30, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (1) | TrackBack

Wednesday, August 29, 2012

Oh what a higher sentence she received, when found to have pleaded to deceive

With 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:

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.

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.

August 29, 2012 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Tuesday, August 28, 2012

Split Second Circuit upholds reasonableness of 30-year prison term for child porn convictions

A 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.

August 28, 2012 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Thursday, August 23, 2012

Sixth Circuit panel rejects reasonableness challenge to below-guideline terrorism sentences

A 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.

August 23, 2012 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, August 22, 2012

Seventh Circuit talks through reasonableness review of above-guideline sentences

In 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.

August 22, 2012 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

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:

May 21, 2012 in Booker in the Circuits, Celebrity sentencings, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

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.

May 15, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

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.

Download WLF-Rubashkin v United States

May 6, 2012 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

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."

March 16, 2012 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (11) | TrackBack

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.

February 3, 2012 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

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.

January 9, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (31) | TrackBack

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:

December 14, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

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:

  1. Prosecutors share responsibility for different guideline adherence rates among districts
  2. Different federal districts are just that: different
  3. Flawed guidelines, not flawed judges, drive variance rates
  4. 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.

Download Letter to Lanny Breuer from defenders

November 28, 2011 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

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.

November 7, 2011 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

"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: 

November 7, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

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.

October 31, 2011 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack