Monday, November 28, 2011
Some notable responses to recent DOJ post-Booker disparity complaints
Regular readers with a special interest in federal sentencing may recall this posting from a few weeks ago noting a public speech by Assistant Attorney General Lanny Breuer in which he lamented increasing federal sentencing disparity and asserted that "many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in." I have gotten a sense that this speech has generated some extra amounts of notable buzz in the federal sentencing world, and it has also now also generated some notable responses.
One such response comes from Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM), via this commentary piece at the website Main Justice. The piece carries the headline "It's Not the Judges," and here are the four numbers points that appear in this piece:
- Prosecutors share responsibility for different guideline adherence rates among districts
- Different federal districts are just that: different
- Flawed guidelines, not flawed judges, drive variance rates
- Sentencing rules drive racial disparity
Another response comes via a letter put together by a set of federal public defenders which can be downloaded below and starts this way:
As Federal Public Defenders, we read with interest the remarks you made before the American Lawyer/National Law Journal Summit in Washington, D.C. on November 15, 2011. We were heartened to see that you believe, as we do, that the significant prison population in both federal and state facilities is a tremendously important issue for all legal practitioners, whether or not they practice criminal law. But we read with some concern your statements regarding sentencing disparities between federal districts, particularly the three districts in which we serve....
We write because, as experienced practitioners in the districts you mention, we disagree that the disparities you identify have much at all to do with the sentencing judges involved. Instead, we believe that these disparities have far more to do with the types of cases that arise in each district, and the prosecution policies that local federal prosecutors have chosen to address these cases.
Wednesday, November 16, 2011
Notable sentencing reversal by Seventh Circuit in mortgage fraud sentencing
For understandable reasons, mortgage fraud crimes and punishments are generating more controversies in the federal courts these days. Consequently, I suspect lots of folks for lots of reasons may be interested in today's sentencing work by a Seventh Circuit panel in US v. Robertson, No. 11-1651 (7th Cir. Nov. 16, 2011) (available here). Robertson gets started this way:
In the late 1990s, Henry and Elizabeth Robertson were involved in a Chicagoland mortgage fraud scheme. Through their company, Elohim, Inc., the Robertsons bought residential properties and then sold those properties to nominee buyers at inflated prices. Along the way they provided lenders with false information about the buyers’ finances, sources of down payments, and intentions to occupy the residences. The scheme involved 37 separate fraudulent transactions and resulted in a net loss of more than $700,000 to various lenders.
After the scheme collapsed, the Robertsons went bankrupt but were not charged with any crimes. They went about the laudable business of rebuilding their lives and rehabilitating themselves. Elizabeth continued to work as a full-time nurse in a hospital’s pediatric intensive care unit. Henry worked as a full-time cable installer and technician. They raised their three children and became fully engaged in their community. Each volunteered as a coach in youth sports, and Henry assisted in fighting crime in their neighborhood by serving as president of their block club. Neither Henry nor Elizabeth engaged in any criminal activity from 1999 to 2010, apart from a reckless driving offense by Henry in 2002.
But the Robertsons could not escape their past. On the day before the ten-year statute of limitations for one crime would have expired, the government charged the Robertsons with one count of wire fraud, 18 U.S.C. § 1343, and two counts of bank fraud, 18 U.S.C. § 1344. The Robertsons both pled guilty to a single count of wire fraud, and both were sentenced on March 2, 2011. The sentencing court based their sentences on the 2010 United States Sentencing Guidelines that were then in effect. Elizabeth was sentenced to 41 months in prison, and Henry was sentenced to 63 months. They were also ordered to pay more than $700,000 in restitution.
The Robertsons appeal from their sentences on several grounds. First, they argue that the district court’s use of the more severe 2010 Sentencing Guidelines violated the ex post facto clause of the Constitution, and they urge us to overrule United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), which held that the ex post facto clause does not apply to changes in the now-advisory federal Sentencing Guidelines. They also argue that their roles in the mortgage fraud scheme did not warrant a 2-level guide line enhancement imposed by the sentencing court pursuant to U.S.S.G. § 3B1.1(c) for their roles in organizing the scheme. We reject these arguments. But we agree with the Robertsons’ final argument, that the sentencing judge failed to consider adequately their unusually strong evidence of self-motivated rehabilitation. For this reason, we vacate their sentences and remand for resentencing. Because we remand, we do not address the Robert sons’ additional argument that their sentences were substantively unreasonable.
November 16, 2011 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack
Monday, November 07, 2011
Tenth Circuit elaborates on authority to vary from guidelines based on fast-track disparity
A Tenth Circuit panel has today issued a details opinion discussion a district court's authority to vary from the guidelines based on fast-track disparities. The opinion in US v. Lopez-Macias, No. 10-1494 (10th Cir. Nov. 7, 2011) (available here), gets started this way:
In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or “fast-track” programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). Pub. L. No. 108-21, 117 Stat. 650 (2003). Congress specifically instructed the United States Sentencing Commission to promulgate “a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.” Pub. L. No. 108-21, § 401(m), 117 Stat. at 675. In response, the Sentencing Commission promulgated U.S.S.G. § 5K3.1: “Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the [Attorney General] and the United States Attorney for the district in which the court resides.”
This sentencing appeal presents us with two questions related to the presence of fast-track programs in some federal districts, but not others. The first question is whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue is whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program. We hold that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities. Given the facts presented here, however, we need not now decide the precise extent of a defendant’s burden.
"Guidelines Gone Awry"
The title of this post is the headline of this notable new commentary by Alan Vinegrad and Jason Levine. It appears in today's New York Law Journal and gets started this way:
On Oct. 12, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security held its first hearing on federal sentencing since March 2006. The title — "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years After U.S. v. Booker" — apparently reflects the subcommittee majority's views on post-Booker1 sentencing. Representative James Sensenbrenner, chairman of the subcommittee, stated that he is "deeply concerned" with federal sentencing due to the "increasing frequency of downward departures." Those who commit child pornography or fraud offenses "are in luck," he added, explaining that these crimes have seen particularly high rates of below-guideline sentences.
Proposals to address these concerns have run the gamut. One witness recommended that the Sentencing Reform Act be repealed and the Sentencing Commission abolished. Another proposed that sentencing guidelines once again be presumptively applicable, circumventing Booker by relying on juries to make findings on aggravating factors. And Judge Patti Saris, chair of the Sentencing Commission and Massachusetts district judge, testified about the problems sentencing courts have encountered in the post-Booker sentencing regime and recommended a more robust system of appellate review.
The commission's proposals, although understandable, did not address the real culprit — the guidelines themselves. In several areas, the guidelines, primarily as a result of congressional directives, no longer fairly reflect the varied purposes for which they were created.
Some recent related posts about the House Booker hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
Monday, October 31, 2011
Split Eighth Circuit affirms reasonableness of 48-year sentence for juve who pleaded to second-degree murder
An interesting (and unusual) reasonableness appeal produced an interesting split of opinion today in US v. Boneshirt, No. 10-3108 (8th Cir. Oct. 31, 2011) (available here). Here are snippets from the relatively lengthy majority opinion authored by Judge Smith:
Brian Boneshirt pleaded guilty, pursuant to a written plea agreement, to one count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The district court sentenced him to 576 months' imprisonment. On appeal, Boneshirt challenges the substantive reasonableness of his sentence. We affirm....
In his sentencing memorandum, Boneshirt objected to the allegation that he had participated in a plan to escape from jail. He also objected to the PSR's denial of the reduction for acceptance of responsibility and application of the enhancement for obstruction of justice. In addition, Boneshirt argued that the court should impose a below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically, he argued for leniency based on his youth and intoxicated state at the time of the offense, his difficult childhood, and his alcohol-related neurodevelopmental disorder....
After a careful review of the sentencing record, we conclude that the district court did not abuse its discretion in sentencing Boneshirt to 576 months' imprisonment. Both the sentencing hearing transcript and the court's statement of reasons explaining its sentence demonstrate that the court considered all of Boneshirt's arguments and the § 3553(a) factors, ultimately imposing the sentence based on the "nature of the offense, the nature of post-offense conduct, and the need to protect society from Mr. Boneshirt."...
In sum, the record indicates that, over the course of a six-hour sentencing hearing, the district court thoroughly considered all of Boneshirt's arguments, the facts, and the law in attempting to fashion an appropriate sentence. The resulting sentence is harsh but is within the calculated Guidelines range and hence may be considered presumptively reasonable. Frausto, 636 F.3d at 997. Presumptively reasonable, however, does not mean unassailable. Yet this record is lacking in a demonstration of sentencing error on the part of the district court. Many reasonable minds may have imposed a lesser sentence, but we conclude that the district court did not abuse its discretion and impose an unreasonable sentence by selecting a high but within-Guidelines sentence for a homicide offense.
Here is a passage from the relatively lengthy partial dissent authored by Judge Bright:
Boneshirt's forty-eight-year sentence is substantively unreasonable because the district court unreasonably weighed the facts at issue in the case. The district court failed to give proper weight to the fact that Boneshirt was a juvenile when he committed the crime, especially when his age is considered with his background and upbringing. And further, the district court’s sentence placed too much weight on a plan to escape by Boneshirt when he was pending sentencing.
Wednesday, October 19, 2011
Feds want a lot more prison time for corrupt state pol Vincent Fumo
Sentencing briefs for the upcoming resentencing of former Pennsylvania State Senator Vince Fumo were filed yesterday. Comically, as detailed below, the headlines from various news sources reporting on the filings indicate quite different sentences purportedly being sought by federal prosecutors:
From the Philadelphia Inquirer here, "Prosecutors want Fumo jailed for 15 years"
From Newsworks here, "Prosecutors: Fumo should get at least 17 years for 'astonishing' corruption"
From the Philadelphia Daily News here, "Feds: Fumo should serve up to 21 years"
From Reuters here, "Former Pa. politician should serve up to 27 years: prosecutors"
Here is how the first of these pieces gets started:
Prosecutors Tuesday urged a federal judge to resentence former State Sen. Vincent J. Fumo to at least 15 years in prison, more than triple his current penalty, to properly punish him for "detestable" crimes that cost taxpayers and charities $4 million.
But in a rival filing, Fumo's defense team urged U.S. District Judge Ronald L. Buckwalter to simply reinstate the controversial 55-month sentence he imposed two years ago. They said Buckwalter should again grant Fumo a break for what the lawyers called his "extraordinary level" of public service, as well as for private acts of generosity. His attorneys described the 68-year-old Fumo as in poor health, facing the "real chance" of dying in prison, yet still mentoring fellow inmates.
In August, the U.S. Court of Appeals for the Third Circuit ordered Buckwalter to resentence Fumo. Without specifying what new sentence should be imposed, it said Buckwalter's legal reasoning had been shot through with errors, including a badly underestimated figure for the cost of Fumo's crimes. Buckwalter is to decide after a resentencing hearing Nov. 9.
October 19, 2011 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Tuesday, October 18, 2011
Important "fast-track" disparity reversal from the Eighth Circuit permits variances in non-fast-track districts
I have long wondered how many times the Supreme Court would have to reverse the Eighth Circuit concerning its tendency to place post-Booker restrictions on the sentencing discretion of district judges before the Eighth Circuit would get the message that the Justices are eager to emphasize the word "advisory" over the word "guidelines" in the modern sentencing system. An important new unanimous ruling today by an Eighth Circuit panel in US v. Jimenez-Perez, No. 10-3757 (8th Cir. Oct. 18, 2011) (available here) suggests that the Circuit has finally knows which way the federal sentencing winds have been blowing after Booker. Here are some snippets from Jimenez-Perez that explain what I mean:
In his first point on appeal, Jimenez-Perez contends that the district court procedurally erred when it concluded that it lacked the discretion to vary downward from the Guidelines advisory sentencing range based on the allegedly unwarranted sentencing disparity caused by the lack of Fast Track. The government attempts to rebut Jimenez-Perez's argument by relying on our unpublished per curiam decision in United States v. Rosario-Moctezuma, 411 F. App'x 942 (8th Cir. 2011), in which we held that Jimenez-Perez's "argument is squarely foreclosed by our decision in United States v. Gonzalez–Alvarado, 477 F.3d 648, 651 (8th Cir. 2007), abrogated on other grounds by Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed.2d 445 (2007), where we concluded that 'variances based on the absence of [F]ast-[T]rack programs are impermissible.'" Rosario-Moctezuma, 411 F. App'x at 943–44.
However, as Jimenez-Perez points out, we decided Gonzalez-Alvarado, upon which our unpublished Rosario-Moctezuma relied, before the Supreme Court decided Kimbrough v. United States, 552 U.S. 85 (2007), which held that district courts are permitted to vary downward from a properly calculated Guidelines range to compensate for the Guidelines' then-applicable 100:1 ratio governing powder- and crack-cocaine offenses. Our four-paragraph decision in Rosario-Moctezumamakes no mention of Kimbrough and, because it is unpublished, lacks controlling authority....
Upon review of these cases [from other circuits], we hold that Kimbrough undermines the rationale of our prior decisions that disallowed variances based on the unavailability of Fast- Track in a particular judicial district....
All four of our sister circuits that have concluded that a district court may vary downward to compensate for the sentencing disparities that Fast Track's unavailability creates in a given judicial district, have done so based on the observation that nowhere in the PROTECT Act does Congress purport to limit a district court's sentencing discretion under all § 3553(a) factors. These courts have based that conclusion on the Supreme Court's rejection in Kimbrough of the notion that Congress could effectuate such a limit on a district court's sentencing discretion implicitly....
We join the majority of our sister circuits to have addressed this issue.... Indeed, as stated earlier, the Supreme Court admonished that "[d]rawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms." Kimbrough, 552 U.S. at 103 (emphasis added). The PROTECT Act lacks any such express directive....
In conclusion, we hold that the Supreme Court's decision in Kimbrough undermined this circuit's precedent holding that the PROTECT Act evinced a congressional intent to limit a district court's sentencing discretion to vary downward in recognition of the unavailability of Fast Track in a given judicial district.
Related posts on related issues and rulings:
- Significant new fast-track disparity ruling from Seventh Circuit
- Split Sixth Circuit expressly holds that fast-track disparity is proper basis for variance
- First Circuit blesses a variance based on fast-track disparity
- Ninth Circuit rejects variance based on fast-track disparity
- Eleventh Circuit panel splits over whether Kimbrough now allows consideration of fast-track disparity
- Third Circuit rejects sundry challenges to lack of fast-track sentencing programs in certain districts
- "Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"
- The persistent problems with fast-track disparity after Booker and Kimbrough
- FSR issue, "Fast-Track Sentencing," now available on-line
Thursday, October 13, 2011
Additional written testimony submitted at House Booker hearing
At the tail end of yesterday's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," the members of the committee entered into the record submitted written testimony submitted by some public policy groups. I hope to be able to provide links to all this submitted testimony, and already available at this link is testimony authored by Testimony of Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM). I believe a number of defense groups also submitted testimony, which I will post if/when I can find it.
UPDATE: Here is a link to testimony from the ACLU submitted to the house subcommittee.
Some recent related posts about the House hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
October 13, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, October 07, 2011
House Judiciary subcommittee to hold hearing on post-Booker realities next week
As detailed in this calender entry, next Wednesday morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system. The hearing has been given this telling title: "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."
Not yet listed are the scheduled witnesses for this hearing, but I assume that someone from the US Sentencing Commission (the Chair?) will be testifying. Usually these kinds of hearings include an invitation to some representative from the US Department of Justice, though that is less certain, especially given that the House Republicans get to run this show and they may want to spend much of their time beating up on DOJ.
Whomever ends up testifying, I am extremely pleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC. On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.
Though I doubt many members of the House Subcommittee share my perspectives on all federal sentencing issues issues, their eagerness to try to figure out what is really going on in the modern federal sentencing system merits praise and gets me excited. I eager to see what comes of this hearing, and will post more about it as more information becomes available.
Monday, September 26, 2011
Has the Seventh Circuit essentially abolished substantive reasonableness review?
The question in the title of this post is prompted by the Seventh Circuit's ruling today in US v. Vance, No. 10-3245 (7th Cir. Sept. 26, 2011) (available here), which seems to indicate, in substance and style, that the circuit will always affirm a within-guideline absent a procedural error. In Vance, a defendant with a long criminal history appealed a within-guideline sentence of nearly 22 years for offenses involving a small amount of crack. The panel majority set up the issues for review this way:
In this case, the defendant has conceded that the range of 262 to 327 months’ imprisonment was computed correctly. We therefore apply the presumption of reasonableness and consider whether (1) the defendant’s arguments for a below-Guidelines sentence were given meaningful consideration and (2) the factors that formed the basis of the judge’s sentence were adequately communicated at the hearing. If these requirements are satisfied, we conclude that the sentence imposed was a reasonable exercise of the sentencing judge’s broad discretion.
As I read this paragraph, it seems the Seventh Circuit really does not merely presume the (substantive) reasonableness of within-guideline sentences. Rather, this paragraph suggests the Seventh Circuit will consider any and all within-guideline sentences per se reasonable if the sentencing record below reflects "meaningful consideration" of the defendant's arguments and the district judge's sentencing ruling was "adequately communicated."
To its credit, the Seventh Circuit has applied the most rigorous form of procedural reasonableness review among the circuits: Seventh Circuit panels have often remanded for resentencing after finding that a district judge failed to give "meaningful consideration" to arguments or that a sentencing decision was not "adequately communicated." But the US Supreme Court in Rita indicated that circuits must conduct substantive reasonableness review as well as procedural reasonableness review after Booker even for within-guideline sentences. It also hinted in Rita that only a presumption of reasonableness, not a per se affirmance rule, would comply with the Sixth Amendment part of the Booker ruling.
Notably, Judge Williams had a brief dissent in Vance, though she asserts merely that "the proper course of action is a limited remand to ask the judge whether he would have sentenced Vance any differently in light of the disparity in crack and powder career offender guideline ranges in this case." In other words, she takes no issue with the lack of any substantive review of a 22-year prison sentence for small-fry crack offenses, but rather just urges a limited remand to ensure the district court knew what it was doing.
Especially given that the defendant in this cases was sentenced after the passage of the Fair Sentencing Act lowered crack sentences dramatically, but before the guidelines were amended to reflect the FSA's reduced sentencing terms, there is a lot that could and probably should be said about the substantive (un)reasonableness of the defendant's sentence here. But it seems the Seventh Circuit is not merely content, but actually eager, to treat the guidelines as a "sentencing safe-harbor" so that within-guideline sentences are immune from the substantive reasonableness review that the Supreme Court has purportedly required after Booker. Sigh.
New call for a (long overdue?) legislative and USSC fix to Booker
Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal. The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action." Here are excerpts:
The U.S. Sentencing Commission is confronting a challenge to its own existence. Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission. Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.
For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines. At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court." But more than a half-decade later, neither Congress nor the commission has acted.
The time for action is now, and the commission has the opportunity to urge changes to restore order to our system. Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....
Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time. Even more troubling, racial disparities in federal sentencing are on the rise. According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."
Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws. Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....
The appetite for reform appears to have returned. Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury. And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."
Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker. The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start. More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines. Additionally, the commission should demand reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.
In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute. In essence, courts will be left to legislate from the bench.
I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system. I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo. But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:
- Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
- Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
- Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).
For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.
Friday, September 23, 2011
Split Ninth Circuit affirms huge upward departure based on uncharged murder
A remarkable case produces today another remarkable reasonableness review outcome via a split Ninth Circuit that affirms a way above guideline sentence based on an uncharged murder. Here is how the majority opinion in US v. Fitch, No. 10-10607 (9th Cir. Sept. 23, 2011) (available here), gets started:
David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41-51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.
Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum—based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this, but are constrained to affirm.
Here is how the dissent concludes its opinion:
We simply do not know any of the circumstances of Bozi’s disappearance. We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit. While Fitch may indeed have been played a causative, or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement. There is certainly no clear and convincing evidence of premeditated murder. The district court’s finding is simply not supported by the record. The substantial departure applied pursuant to § 5K2.1 was therefore an abuse of discretion. Accordingly, I respectfully dissent.
Monday, September 19, 2011
Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable
Thanks to David Oscar Markus and this post at his Southern District of Florida blog, I have seen that an Eleventh Circuit panel today has handed down this very-long opinion in a very high-profile terrorism case. Here is how David summarizes the basic holding:
Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings.... This case seems destined for Supreme Court review.
And here from the start of the opinion are the issues in play as set forth at the start of the majority's opinion:
A federal grand jury in the Southern District of Florida indicted Appellants Adham Hassoun, Kifah Jayyousi, and Jose Padilla (referred to individually by name or collectively as “defendants”), along with Mohammed Youssef and Kassem Daher, for offenses relating to their support for Islamist violence overseas....
Trial commenced on April 16, 2007, and four months later, the jury returned a special verdict convicting defendants on all counts.... On Count 1, the district court sentenced Padilla to 208 months, Hassoun to 188 months, and Jayyousi to 152 months’ imprisonment. On Count 2, the district court sentenced each defendant to the maximum 60 months’ imprisonment. On Count 3, the district court sentenced Padilla and Hassoun to the maximum of 180 months’ imprisonment and sentenced Jayyousi to the maximum of 120 months’ imprisonment. The district court made all sentences run concurrently and imposed a 20-year period of supervised release for each defendant. The defendants appeal, and the government cross-appeals Padilla’s sentence.
Among the interesting aspects of the majority's sentencing ruling in this case is its conclusion that Padilla's sentence was procedurally sound but substantively unreasonable. Here are a few (of many) interesting passages from the majority's sentencing discussion (with some cites removed):
The district court did not commit procedural error. Neither party contends that the district court failed to properly calculate the Guidelines range or treated the Guidelines as mandatory.... Furthermore, the district court adequately explained that it gave Padilla a sentence that was below the Guidelines range for several reasons: the conditions of Padilla’s prior confinement, his allegedly low risk of recidivism due to his age at the time of his anticipated release, the comparable sentences imposed on other terrorists, and the fact that Padilla did not personally injure anyone or target Americans in his conspiracy.
However, Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors. First, the district court acknowledged that Padilla had a criminal history but then unreasonably discounted this criminal history when it imposed a sentence....
Second, Padilla’s sentence unreasonably fails “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The district court explained that given Padilla’s age when he is eligible to leave the criminal system, he will unlikely engage in new criminal conduct. The government argues to the contrary that “the risk of recidivism upon release is very real. That risk is greater because Padilla has literally learned to kill like a terrorist.” We agree that the district court failed to consider the nature of Padilla’s crimes and his terrorism training. Although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders. See United States v. Irey, 612 F.3d 1160, 1213–14 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011). We also reject this reasoning here....
Third, in considering “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), the district court unreasonably failed to consider the significant distinctions between Padilla’s circumstances and the sentences of other offenders the district court referenced at the sentencing hearing.... On remand, we admonish the district court to avoid imposition of a sentence inconsistent with those of similarly situated defendants. It should not draw comparisons to cases involving defendants who were convicted of less serious offenses, pleaded guilty, or who lacked extensive criminal histories, nor should it draw comparisons to cases where the government sought the imposition of the death penalty.
Judge Barkett's discussion of sentence issues is also interesting (and even longther than the majoity's discussion). Here is the concluding passage from her sentencing discussion (with cites removed):
Much of what the majority takes issue with concerns the trial judge’s discretion in weighing the § 3553(a) factors, but the record simply cannot support the conclusion that Padilla’s sentence involves an abuse of such discretion. Precedent from the Supreme Court and this Circuit recognize that trial judges may attach great weight to one factor over others, and remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. The trial judge followed these principles such that her conclusion to sentence Padilla below the Guidelines is entitled to due deference, even by those who “might reasonably have concluded that a different sentence was appropriate.
UPDATE: For a press account of this ruling, here is a Reuters piece headlined "Court says Padilla prison sentence too lenient."
Friday, September 16, 2011
Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
The Eighth Circuit has handed down an opinion today in US v. Rubashkin, No. 10-2487 (8th Cir. Sept. 16, 2011) (available here), a high-profile white-collar case out of the heartland involving financial frauds at a kosher meat-packing plant. The panel has unanimously affirmed the Sholom Rubashkin's conviction and sentence; I have followed this case closely, in part because I helped file an amicus brief complaining about what I considered to be an unreasonable of 27-year (within-guideline) federal prison sentence for the defendant's offense conduct.
Though disappointed with the ruling here, I am not especially surprised given the Eighth Circuit's history in sentencing appeals. (That history, along with the frequency with which the Supreme Court has reviewed and reversed the Eighth Circuit's work since Booker, might well mean this case will get more appellate attention in the future). Here is an excerpt of the Rubashkin panel's sentencing discussion:
Rubashkin argues that his 324 month sentence was substantively unreasonable given his age, nonviolence, lack of criminal history, unlikelihood of recidivism, family obligations, and the principal motives for his acts,. We review the imposition of a sentence under "a deferential abuse-of-discretion standard." United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall, 552 U.S. at 41). Sentences within the guideline range are presumed to be substantively reasonable. United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008).
Not only was Rubashkin's sentence of 324 months within the guideline range, it was at the low end of it. Rubashkin argues that because of his past charitable acts and his family obligations he should have been granted a downward departure. These are the very characteristics that the district court properly took into account when considering the § 3353(a) factors. The court weighed Rubashkin's past charitable acts, nonviolence, and the needs of his family against his involvement in multiple fraudulent schemes and the millions of dollars in damage they caused. The cases Rubashkin cites in favor of his unreasonableness argument illustrate instances where downward departures based on charity or family needs have been affirmed. Nothing requires a sentencing court to depart on such grounds. Under all the circumstances the district court did not abuse its considerable discretion in imposing a 324 month sentence.
Related posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
Monday, September 12, 2011
"One Book, Two Sentences: Ex Post Facto Considerations of the One-Book Rule after United States v. Kumar"
The title of this post is the title of this new piece by Andrew Adams appearing now on SSRN. The piece discusses what I view as one of the most challenging enduring doctrinal issues still unresolved in the wake of Booker, and here is the abstract:
This article addresses the ongoing discord among the Courts of Appeals with respect to the implications of the U.S. Sentencing Guidelines’ “One-Book Rule” and its constitutionality under the Ex Post Facto Clause. A recent decision by the Second Circuit, United States v. Kumar, produced the most extreme position in a three-way split among the circuits by holding that the application of a single Guidelines manual to multiple offenses -- even offenses predating that manual’s publication -- is always permissible under the Ex Post Facto Clause. The issue brings together two separate and difficult areas of jurisprudence applying the Ex Post Facto Clause: the permissibility of allowing one crime to “trigger” heightened punishments for previous crimes, and the ongoing circuit split over the Ex Post Facto Clause application to the Sentencing Guidelines.
The article explores the history of the application of the Ex Post Facto Clause in order to establish that, contrary to the assertions of courts and commentators, the single concern of the Ex Post Facto Clause has been putting people on notice of the consequences of their actions. The article then argues that Kumar, though an outlier amongst the circuits, was indeed correct in its constitutional analysis of the One-Book rule. Nevertheless, the same constitutional concepts at work in Kumar ultimately imply that the One-Book rule runs counter to the goals of the Sentencing Guidelines themselves -- uniformity of sentencing --even if its application is ultimately constitutional. The article concludes by advancing two potential resolutions to the problems left unresolved by Kumar, the Courts of Appeals, or the Sentencing Guidelines themselves.
A Fifth Circuit reminder that not all federal defendants like the guidelines being merely advisory
One (of many) under-discussed aspects of the post-Booker system is that, in percentage terms, the number of above-guideline sentences have gone up more than the number of below-guideline sentences since the guidelines became adviosry. Roughly speaking, though the number of below-guideline sentences have increased about 50% post-Booker, the number of above-guideline sentences have increased nearly 100% post-Booker.
Though the absolute number of above-guideline sentences remain relatively small, the decision late last week from the Fifth Circuit in US v. Pizzolato, No. 10-30729 (5th Cir. Sept. 9, 2011) (available here), provides a useful reminder that not all federal defendants benefit from the guidelines now being merely advisory. Here is how the Pizzolato opinion starts:
Defendant-Appellant Matthew B. Pizzolato pleaded guilty to multiple crimes related to his conduct in running a fraudulent “Ponzi” scheme. The plea agreement recommended an applicable sentencing range of 151 to 188 months under the Federal Sentencing Guidelines (the “Guidelines”). The district court disregarded the plea agreement’s recommendation and imposed the statutory maximum sentence of 360 months. Appellant argues that the Government breached the plea agreement by providing the district court with facts and arguments supporting a longer sentence than the parties agreed upon. We find no merit to defendant’s arguments and affirm.
September 12, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
Thursday, August 25, 2011
"Deterrence key issue" says editorial about Fumo case, but just how much prison time is needed to deter?
The Scranton Times-Tribune has this new editorialresponding to the decision by the Third Circuit to reverse and remand the 55-month sentence given to former corrupt state pol Vincent Fumo. The piece is headlined "Deterrence key issue," and here are excerpts:
As U.S. District Judge Ronald Buckwalter sentenced Vincent Fumo in 2010, it was hard to tell whether the former state senator from Philadelphia had been convicted of 137 fraud and obstruction of justice crimes against the people of Pennsylvania or a traffic violation.
After praising Mr. Fumo for his "good works," Judge Buckwalter sentenced him to 55 months in federal prison, far below the sentencing guidelines based on the offenses, including millions of dollars in fraud and destruction of evidence.
Tuesday, a majority of a three-judge panel of the U.S. 3rd Circuit Court of Appeals found that Judge Buckwalter owes an explanation for his leniency. The prosecution claimed in its appeal that Judge Buckwalter had failed to properly calculate $4 million worth of fraud by Mr. Fumo in abandoning the sentencing guidelines.
That doesn't necessarily mean that Mr. Fumo will receive a higher sentence from Judge Buckwalter, even though Judge Julio Fuentes wrote: "This evidence of Fumo's intent to divert the funds was overwhelming, and the district court's refusal to apply a two-level enhancement was an abuse of discretion." Prosecutors had sought a sentence of at least 121 months....
In corruption-plagued Pennsylvania, the ultimate outcome of this case is very important for the sake of deterrence. Several state legislators await trial on state charges. State Sen. Jane Orie awaits retrial on local charges in Allegheny County. Former state Sen. Raphael Musto of Luzerne County has been charged with corruption by federal authorities, who also are investigating former state Sen. Robert Mellow.
It's unfortunate that the web of corruption in so many aspects of governance in the commonwealth must be unspun by federal prosecutors rather than by elected representatives. It's vital, for the sake of clean government, that the courts recognize the need for deterrence when sentencing those who abuse their public offices for personal gain.
I largely agree with the basic theme of this editorial -- namely that deterrence can and should be a key issue in the sentencing of corrupt public officials. That said, I would hope that Fumo's now reversed sentence of "55 months imprisonment, a $411,000 fine, and $2,340,839 in restitution," would generally be a severe enough sanction to make public officials think twice before going crooked. Moreover, it is well known that the certainty and swiftness of a punishment often matter much more than severity in serving the goal of deterrence.
I do not mean these comments to be a blanket defense of the sentence that Fumo initially received. But I do mean to highlight the difficulty of turning a general concern for deterrence into a specific sentencing outcome and also to question whether any pol is likely to be more deterred if (and when?) Fumo's prison term gets a little (or a lot) longer.
Related posts on Fumo sentencing and appeal:
- "Court orders resentencing of ex-Pennsylvania state senator"
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
- Comparing white-collar apples and drug dealing oranges at sentencing
- "Feds seek to appeal 'unreasonable' Fumo sentence"
- Continued buzzing about the (soft?) sentence given to Fumo
- Third Circuit to hear feds' complaints about 55-month sentence for corrupt state politician
Sixth Circuit affirms 30-year sentence for CEO responsible for losses of over $2 billion
A notable white-collar appeal was resolved by the Sixth Circuit today via a lengthy opinion in US v. Poulsen, No. 08-4218 (6th Cir. Aug. 25, 2011) (available here). Most of the 30-page opinion is about trial issues, though there is some notable discussion of loss calculations toward the end of the opinion. In addition, this sharp paragraph at the very end of the opinion explains the panel's rejection of the defendant's substantive unreasonableness claim concerning his 30-year prison term:
Finally, Poulsen argues that his sentence was substantively unreasonable because the district court failed to properly consider unwarranted sentencing disparities. Poulsen submits that he should not have been compared to the CEOs of infamous companies such as WorldCom and Enron. He asserts that every defendant should receive an individualized assessment based upon the specific facts of his particular case. Conversely, Poulsen cites a number of sentences given to those whom he refers to as “the most notorious financial fraudsters in corporate America.” These defendants received shorter sentences for similar crimes. Poulsen inconsistently argues that he deserved individualized treatment and then compares himself to other corporate offenders. Poulsen presents no coherent argument as to why his sentence is substantively unreasonable. We affirm the district court’s sentence in all respects.
Tuesday, August 23, 2011
"Court orders resentencing of ex-Pennsylvania state senator"
The title of this post is the headline of this Reuters piece reporting on a high-profile Third Circuit ruling today in a high-profile corruption case. Here are the details:
A federal appeals court on Tuesday ordered the resentencing of a former Pennsylvania state senator, saying the trial judge erred in his sentencing of the once powerful former politician.
Former State Senator Vincent Fumo was sentenced to 55 months in a minimum-security federal prison after he was convicted in March 2009 of 137 charges of fraud, tax evasion and obstruction of justice.
The Democrat's conviction was upheld by the Third Circuit Court of Appeals on Tuesday, which ordered the resentencing. In an unusual move, prosecutors in May argued that Fumo should be resentenced to up to 27 years in prison, saying U.S. District Court Judge Ronald Buckwalter had been too lenient and did not explain why he sentenced Fumo to below federal sentencing guidelines.
In a statement, U.S. Attorney Zane David Memeger said: "We are pleased with the decision of the Third Circuit Court of Appeals and will prepare for the next step in the process."...
Fumo's lawyers had argued that the sentencing judge committed "no significant procedural error" and noted the court had ordered Fumo to pay a fine of $411,000 and more than $2.3 million in restitution. His attorneys also added that Buckwalter found Fumo had worked hard for the public, warranting a departure from sentencing guidelines.
The full opinion in US v. Fumo, No. 09-3390 (3d Cir. Aug. 23, 2011) (available here), runs 84 pages, though the last 22-pages is made up by a dissent by Judge Nygaard on the sentencing issues. I hope to have more comments on these opinions when I get to consume them fully.
Peculiar(?) concurrence in Eighth Circuit panel's affirmance of top-of-guideline sentence
The Eighth Circuit has an intriguing little reasonableness ruling today in US v. Wohlman, No.10-2967 (8th Cir. Aug. 23, 2011) (available here), which gets started this way:
Thomas Wohlman pleaded guilty to one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b). The district court sentenced Wohlman to 121 months' imprisonment, the top of the Guidelines range. On appeal, Wohlman argues that the district court committed several procedural errors and imposed an unreasonable sentence. He also argues that his sentencing counsel was ineffective for failing to object to an upward departure under U.S.S.G. § 2G1.3(b)(2)(A). We affirm Wohlman's sentence and decline to reach the merits of Wohlman's ineffective-assistance-of-counsel claim.
The opinion covers a lot of modern sentencing review ground, but the ruling seemed to me especially blog-worthy because of Judge Bright's brief concurrence. Here is the full text of that concurrence:
I can find no error in the sentencing process or the actual sentence of ten years and one month, the top of the guidelines. Accordingly, I concur.
Yet, I write to note that no molestation of any young person actually occurred. The conversations Wohlman had about sex with minor females took place with government agents who posed as minor females.
Wohlman has no felony convictions and operates an apparently successful business. A qualified expert witness testified that Wohlman was unlikely to reoffend and that he was not a predator. The district judge, however, gave little weight to testimony. Although the sentence at the top of the guidelines stands approved, this judge suggests that this sentence is harsh considering the entire record and defendant’s background.
Notwithstanding Judge Bright's initial assertion that he could find no error in the sentence, he seems to be saying with the rest of his brief opinion that he views the top-of-guideline prison term to be "greater than necessary to comply with the purposes set forth" in federal sentencing law in 18 USC 3553(a)(2). To me that amounts to a judgment, in Judge Bright's view, that there is error in the sentence as being substantively unreasonable.
To the extent that the Supreme Court has indicated that substantive reasonableness review remains important and distinct from procedural reasonableness review after Booker, this form of review would seem to be precisely about circuit judges making judgments that district court imposed too harsh (or too lenient) a sentence in light of congressional sentencing purposes. In other words, I see Judge Bright's concurrence to be peculiar because he seems to be expressing a strong substantive disagreement with the sentence below and yet also seems of the view that this substantive judgment is not a proper part of reasonableness review.
Thursday, August 04, 2011
En banc Ninth Circuit to consider reasonableness of millennium bomber sentence
As detailed in this Seattle Times piece, headlined "Court to reconsider Ahmed Ressam's sentence in millennium plot," the federal sentencing debate over a terrorist is going en banc in the Ninth Circuit. Here are the details:
The 9th U.S. Circuit Court of Appeals will once again consider whether the 22-year prison sentence imposed on would-be millennium bomber Ahmed Ressam by a federal judge in Seattle was adequate.
Last year, a divided three-judge panel of the court voted to reject the sentence imposed — for the second time — by U.S. District Judge John Coughenour, questioning his impartiality and saying that the sentence failed to protect the public from the al-Qaida-trained terrorist.
An order by Circuit Chief Judge Alex Kozinski, issued late Tuesday vacated that ruling and sent the case to be reheard by a larger panel of judges.
Ressam was arrested in Port Angeles by the U.S. Border Patrol on Dec. 14, 1999, in a rental car loaded with bomb-making materials. Coughenour presided over Ressam's trial in the spring of 2001. Ressam later credited the fairness of the proceedings when he decided to cooperate with federal authorities after he was convicted of attempting to plant a powerful suitcase bomb at the Los Angeles International Airport in 1999.
Ressam became a crucial source of information about al-Qaida in the months after the Sept. 11 attacks, and as a result federal prosecutors initially suggested a sentence of around 35 years for crimes that could have resulted in life in prison, including a count of conspiracy to commit an act of international terrorism. Sentencing guidelines suggested a 65-year sentence.
Prosecutors appealed when Coughenour first imposed the 22-year sentence in 2005.
Ressam has been held in solitary confinement and over years of repeated questioning had soured on his cooperation. When the case was sent back to Coughenour for a procedural error in 2008, prosecutors urged the judge to impose the life sentence, saying Ressam had reneged on his deal. Ressam, in the meantime, fired his lawyers and recanted everything he had ever said....
Even so, Coughenour imposed the same sentence, saying that the information Ressam provided when he was cooperating almost certainly stopped other attacks and saved lives. The government appealed that sentence, which resulted in Tuesday's order.
Last year's 72-page ruling said Coughenour's decision failed to protect the public. Ressam, an Algerian who trained with al-Qaida in Afghanistan, already has completed nearly half of his sentence and will be 53 years old when he is released.... Federal public defender Thomas Hillier, who has represented or advised Ressam since his first court appearance in 1999, applauded the court for granting his request to reconsider the earlier decision, which not only exposed Ressam to many more years in prison but also stripped Coughenour, the trial judge, of the case. "We were concerned about its impact on the evolution of federal sentencing, as well as how it might impact Ahmed," he said. "We're grateful for another shot at it."
Wednesday, August 03, 2011
Split Eighth Circuit affirms big sentence increase for girlfriend whose drugs led to boyfriend's OD death
An sad set of facts resulting in an interesting debate in US v. Nossan, No. 10-2502 (8th Cir. Aug. 3, 2011) (available here), about a large federal sentencing increase for a woman who mailed drugs to her boyfriend (at his request). The big debate arises in Nossan because, though the advisory Guidelines range for the defendant's offense of conviction was 10-16 months, the district judge imposed a 60-month sentence because the boyfriend died of a drug overdose using the drugs she had sent him.
The panel majority finds the 5-year sentence reasonable, while Judge Bye in dissent concludes that "while [the boyfriend's] death due to his use of narcotics is surely tragic, [he does] not believe the 44-month upward departure imposed by the district court is reasonable in light of the stark contrast between our relevant case law and Nossan’s limited involvement in this case." (Beyond the specifics of the substantive issue, I also find Nossan interesting because the Sixth Amendment concerns that prompted the Blakely and Booker constitutional rulings do not even garner a mention despite that all sorts of judicial fact-finding was central to the district court's decision to enhance the defendant's sentence here.)
Tuesday, August 02, 2011
"The Eleventh Circuit's Selective Assault on Sentencing Discretion"
The title of this post is the title of this notable new article focused in large part on the Eleventh Circuit's notable reasonableness decision in the controversial Irey case (basics here and here). Here is the abstract:
Ever since the Supreme Court declared that the sentences which district courts impose on criminal defendants are to be reviewed on appeal for “unreasonableness,” the standard’s contours have remained elusive and mired in controversy, despite the Court’s repeated attempts at elucidation. In few instances is this confounding state of affairs more apparent and acute than in the Eleventh Circuit’s recent lengthy and factious en banc decision in United States v. Irey.
This article explores Irey’s merits, mistakes, and lessons, trying to locate each within the broader context of the Eleventh Circuit’s sentencing jurisprudence. In doing so, the article advances three principal arguments. First, Irey represents a serious and unlawful encroachment on district courts’ sentencing discretion, one based in part on misguided notions of culpability, mental illness, deterrence, the severity of supervised release, and obeisance to the Sentencing Guidelines. Second, Irey’s lasting impact is likely an increased yet largely unjustified pressure on district courts to sentence defendants more harshly, particularly for sexual offenses. Third, Irey and its predecessors demonstrate that in reviewing for unreasonableness, the Eleventh Circuit unnecessarily and unfairly wields a single-edged sword, capable of striking what is perceived as an unduly lenient sentence yet impotent against an unduly harsh one. Recognizing the pretextual nature of much sentencing discourse — in which stakeholders inconsistently advance varyingly deferential degrees of appellate review suspiciously consonant with the practical sentencing outcomes they desire — the article concludes with a call for appellate judges to transcend such partisanship and exercise dispassionate, reasoned, and balanced (i.e., double-edged) sentencing review.
Friday, July 22, 2011
Sixth Circuit panel reverses drug sentence on "the admittedly unfair ground of insufficient clairvoyance"
The title of this post makes more sense if and when one reads today's ruling by the Sixth Circuit in US v. Priester, No. 08-2391 (6th Cir. July 22, 2011) (available here). Here is how the decision starts:
In some cases we hold the district court to a standard we would dislike imposing on ourselves. This is such a case. Xavier Priester pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana. The district court sentenced him to a within-Guidelines 180 months’ imprisonment. The court’s explanation as to why it chose that sentence was exemplary — with one exception. The exception is what Priester targets here. He argues, specifically, that the district court failed to recognize that it had the authority to “vary categorically” from the crackcocaine guidelines in choosing Priester’s sentence. The existence of that authority was made clear in a Supreme Court case — Spears v. United States, 555 U.S. 261, 265–66 (2009) (per curiam) — that was itself decided after the district court sentenced Priester. S o we have the benefit of that decision, whereas the district court did not. Having parsed the sentencing transcript, we agree with Priester that the district court appeared unaware of the authority that the Supreme Court expressly announced months later. And thus — on the admittedly unfair ground of insufficient clairvoyance — we vacate Priester’s sentence and remand the case for resentencing.
Judge Boggs dissents from the panel's disposition, and his opinion begins this way:
While the majority opinion acknowledges the problematic nature of reversing a district judge because of a Supreme Court decision issued after the judge ruled, (Maj. Op. at 2), that is a problem inherent in our system. What the majority opinion calls “the admittedly unfair ground of insufficient clairvoyance,” ibid., does occur with some frequency, and is not a basis for dissent. However, I think there is a more fundamental problem here. The perceived flaw in the district judge’s conduct was not in following a legal principle that the Supreme Court later rejected. Instead, it was (apparently) in not realizing that he needed to articulate on the record his recognition of a power that had not been explicitly sanctioned by the Supreme Court. See Spears v. United States, 129 S. Ct. 840, 843-44 (2009) (per curiam). To make matters worse, this failure occurred in a context where no one clearly asked him to assert such a power.
Wednesday, July 20, 2011
Significant new fast-track disparity ruling from Seventh Circuit
A Seventh Circuit panel has handed down an interesting and important new ruling about fast-track disparity sentencing consideration in US v. Ramirez, No. 09-3932 (7th Cir. July 20, 2011) (available here). Here is how the decision starts:
We have consolidated these appeals to answer a recurring question: What evidentiary showing must a defendant charged with being found in the United States after previously having been deported, 8 U.S.C. § 1326(a), make before a district court is obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district? The question has been percolating since we decided United States v. Reyes-Hernandez, 624 F.3d 405, 417, 420 (7th Cir. 2010), which permits sentencing courts to compensate for fast-track disparities but emphasizes that no district judge is required to evaluate this mitigating argument until the defendant demonstrates that he would have been eligible to participate in a fast-track program and, in fact, would have “pursued the option” had it been available. The contours of this threshold qualification have not been defined in a published opinion, but four nonprecedential orders offer helpful guidance. See United States v. Vazquez-Pita, 411 F. App’x 887 (7th Cir. 2011); United States v. Morant-Jones, 411 F. App’x 885 (7th Cir. 2011); United States v. Abasta-Ruiz, 409 F. App’x 949 (7th Cir. 2011); United States v. Torres-Vasquez, 406 F. App’x 40 (7th Cir. 2010). And in one of these appeals now before us, we directed the parties to submit supplemental statements addressing the question.
We hold that a district court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district. That means that the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy. It also means that the defendant must establish that he would receive a fast-track sentence in at least one district offering the program and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well a candid assessment of the number of programs for which he would not qualify. Until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over in silence.
Thursday, July 14, 2011
Fascinating (and Posnerian classic) opinion on diminished capacity, child porn, and sentencing theory
Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011) (available here). Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to exceprt. So, here is just the very start of the opinion along with just one of many interesting passages (with cites removed) to whet everyone's appetite for the whole opinion:
The defendant pleaded guilty to federal crimes of transporting, receiving, and possessing child pornography and was sentenced to 360 months in prison. The guidelines sentencing range was 360 months to life; the statutory minimum sentence was 180 months; he was 44 years old when sentenced. His appeal challenges his sentence on several grounds, of which the one most emphasized by defense counsel is that the district court improperly failed to consider her argument that the defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower sentence....
Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure. The diminution makes a defendant more likely to repeat his crime when he is released from prison. That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire. Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist. One of the defendant’s experts opined that the defendant’s ability to resist could be strengthened substantially with medication and therapy. But both defense experts believed, and defense counsel argued, that he wouldn’t get proper treatment in prison. That is very damaging to the argument that he won’t recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.
From a “just deserts” standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one. The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.
How to choose? The sentencing guidelines do not embody a coherent penal philosophy. “The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.” Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?,” 27 Am. Crim. L. Rev. 367, 371 (1989). In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so — why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism — is not explained. In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.
July 14, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack
Notable recent resentencing opinion on career offenders and Kimbrough discretion
I recently received a copy of a notable resentencing opinion from US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame. The opinion in US v. Vazquez, No. 6:04-cr-212-Orl-31 (M.D. Fla. June 28, 2011) (available for download below), covers a number of modern federal sentencing issues and reviews a remarkable procedural history for a single low-level drug defendant.
Specifically, way back in 2005 just six months after the Booker ruling, Judge Presnell originally imposed a sentence of just over nine years in prison after refusing to essentially double the defendant's sentence, as the guidelines' career-offender provisions urged, based on two old convictions. On the government's appeal, this sentence was vacated, with the Eleventh Circuit holding that policy-based criticism of the career-offender guidelines was not permitted. Judge Presnell then imposed a substantially higher sentence (15 years in prison), a sentence which was upheld by the Eleventh Circuit. But upon further appeal, the Solicitor General switched positions and argued that the Eleventh Circuit had misinterpreted Kimbrough, and the case was ultimately returned to Judge Presnell for another resentencing.
In this latest opinion, Judge Presnell explains all this history and accounts for the current state of the law within the Eleventh Circuit. He then reimposes the original sentence, less another 20 months for post-sentencing rehabilitation under Pepper. Notably, the opinion reports that "the parties agreed that a 20-month reduction would be appropriate to account for the Defendant’s post-sentencing rehabilitation." Slip op. at 10 (emphasis added).
There is now such great irony represented by this (finally!) final Vazquez sentence: by virtue of federal prosecutors fighting the original 110-month sentence so effectively from the outset, along with SCOTUS rulings along the way, the defendant here was able ultimately to secure an extra 20 months off his original below-guideline sentence, and federal prosecutors now apparently agree that a sentence even below that originally imposed is now just and proper. And, assuming the defendant gets his 15% good-time credits for time already served, it would seem he is due to be released from prison not long after his sentence was finally resolved.
Tuesday, July 12, 2011
Judge Barksdale spotlights modern sentencing review challenges in lengthy dissent
An interesting little Fifth Circuit panel ruling in US v. Mudekunye, No. 09-10968 (5th Cir. July 11, 2011) (available here), came with a very lengthy partial dissent by Judge Barksdale that started this way:
I dissent only from the majority’s, under plain-error review, requiring resentencing for Mudekunye (part II.B.2.). It has been almost 20 years since United States v. Olano, 507 U.S. 725 (1993), clarified application of plain-error review. And, for reviewing sentences imposed through application of the Sentencing Guidelines, it has been over six years since United States v. Booker, 543 U.S. 220 (2005), held the Guidelines are only advisory. In the light of Olano and Booker, it would seem that plain-error review would have been simplified and made more flexible. Unfortunately, if not amazingly, just the opposite has occurred.
This is vividly reflected in the majority’s analysis and holding for Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and our precedent. It’s time for our court to step back, re-examine, and simplify this important and all too often complex aspect for applying plain-error review to sentences imposed under the advisory Guidelines. Accordingly, I urge our court to review en banc this part of the majority opinion.
In vacating Mudekunye’s sentence, the majority emasculates the plain-error standard of review by applying it in a manner inconsistent with the Supreme Court’s and our precedent. In an area of law it admits is unclear, the majority effectively creates a new rule: where defendant’s imposed sentence lies outside the correct advisory Guidelines sentencing range, defendant must be resentenced in district court. This rule is neither supported by precedent nor justified under plain-error doctrine. The majority’s strained insistence on resentencing reflects that, within our circuit, plain-error review, in this context, has been weakened to the point of toothlessness, thereby defeating its many important and salutary purposes, including “to induce the timely raising of claims and objections . . . .” Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).
Friday, July 08, 2011
Interesting substantive reasonableness ruling from Eighth Circuit
In an interesting sentencing ruling today in US v. Shakal, No. 10-3019 (8th Cir. July 8, 2011) (available here), reveals yet again how hard it is to get a within-guideline sentence reversed as substantively unreasonable if and when a district judge provides a thoughtful explanation for his sentencing decision. Here are a few key paragraphs from the ruling:
Yahya Muhumed Shakal pleaded guilty to four counts of aiding and abetting the preparation of false federal income-tax returns. At sentencing, Shakal argued that his experiences in Somalia during the violent Somali civil war entitled him to a sentence well below the advisory Guidelines range. The district court denied Shakal's request, and sentenced him to a Guidelines sentence of 72 months' imprisonment. Shakal now appeals, urging that the district court's sentence is substantively unreasonable. We affirm....
The record clearly shows that the district court considered Shakal's violent experiences during the Somali Civil War, including witnessing the murder of his father and the rapes of his sisters. Indeed, the district court agreed with Shakal's counsel that Shakal and his family had "been through hell," and conceded that "[t]he real issue is going to be . . . how should that affect his sentence this morning."
Also, the district court considered but rejected Shakal's sentencing-disparity argument. Specifically, Shakal maintained, as he does now, that a "Mr. Mohamed" initially taught Shakal how to fraudulently request the fuel tax credit on tax returns, and that Mohamed received only 18 to 24 months at sentencing (from a different judge). The district court responded to this argument by first acknowledging that it had read through Mohamed's entire file the night before Shakal's sentencing, but ultimately concluded that Mohamed's case differed greatly from Shakal's in that Mohammed's tax scheme cost the United States Government only $44,000, far less than Shakal's $2 million haul....
[In addition, as the sentencing transcript shows,] the district court not only considered Shakal's personal history and circumstances in fashioning a sentence but reduced the sentence it would have otherwise assessed Shakal in light thereof. Therefore, the district court did not abuse its discretion in sentencing Shakal to 72 months' imprisonment.
Tuesday, June 14, 2011
DC Circuit reverses above-guideline sentence for inadequate explanation
In an interesting sentencing ruling today in US v. Akhigbe, No. 10-3019 (DC Cir. June 14, 2011) (available here), involved the DC Circuit finding procedurally unreasonable the failure of a district court to adequately explain the basis for an above-guideline sentencing. Here is a key paragraph from the ruling:
In In re Sealed Case, we found plain procedural error where the district court imposed an above-Guidelines sentence “without providing any explanation at all” in open court and also submitted no written statement of reasons. Id. at 192–93 (indicating that the error was “obvious enough”). To be sure, the facts of this case are not quite so extreme, but we nonetheless believe that the district court’s oral and written statements are clearly insufficient. We thus conclude not only that the district court erred procedurally in sentencing, but also that its error was plain. In reaching this conclusion, we recognize that district courts necessarily and appropriately exercise professional judgment in determining how much reasoning to give when explaining discretionary sentencing decisions. In many cases, such as where the parties have presented only “straightforward, conceptually simple arguments” and the district court concludes a Guidelines sentence is appropriate, a fairly brief recitation of reasons will satisfy the court’s procedural obligations. Rita, 551 U.S. at 356–57. Moreover, although a district court must explain its decision to impose a non-Guidelines sentence with specificity and “ensure that the justification” for its sentence “is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S. at 50, we do not ask the court to do the impossible and provide detailed reasoning as to why it chose, for example, to vary upward by 12 months rather than by 11 or 13. But under the circumstances of this case, where the district court imposed a sentence that varied significantly from both the advisory Guidelines range and from the sentences the parties sought, the brief and generalized explanation the court provided is plainly inadequate to satisfy section 3553(c)’s requirements.
Wednesday, May 25, 2011
Third Circuit to hear feds' complaints about 55-month sentence for corrupt state politician
As effectively reported in this new piece in the Philadelphia Inquirer, which is headlined "Prosecutors to argue for longer Fumo jail term," the Third Circuit hears argument today in a high-profile sentencing appeal by prosecutors. Here are the essentials:
Federal prosecutors will appear before a three-judge panel Wednesday to argue that former State Sen. Vincent J. Fumo, nearly midway through a 55-month sentence for corruption, should be resentenced to a longer term. Once one of the most influential politicians in Philadelphia and Harrisburg, Fumo was convicted in 2009 on 137 counts of corruption and fraud. Prosecutors want a sentence that meets federal guidelines, which call for a much longer term of 21 to 27 years....
Fumo was sentenced after the jury found that he had turned his Senate staff into personal servants and political minions, doing errands for him on state time. The jury also found that he had defrauded a pair of nonprofit organizations. After Fumo realized the FBI was on the trail, he tried to obstruct the probe. The wrongdoings cost taxpayers and the nonprofit groups more than $2 million.
At sentencing, U.S. District Judge Ronald L. Buckwalter said the 55-month term was justified by Fumo's public service, 259 letters asking for leniency and extolling Fumo's work, and the nature of Fumo's offenses.
"It's not murder. It's not robbery. It's not even assault," Buckwalter said of Fumo's wrongdoings. "It's nothing violent. It's not the selling of a political office," Buckwalter said at Fumo's sentencing hearing.
His decision produced an outcry, and federal prosecutors are hoping the Third Circuit will send the case back for resentencing. Meanwhile, Fumo is asking for a new trial. The three-judge panel will decide both issues. "It is likely impossible to identify a defendant in recent years who stole over $2 million, abused a position of public trust, and obstructed justice in the process who received a sentence anything like Fumo's," Assistant U.S. Attorney Robert Zauzmer wrote in the government's appeal....
In their court filings, the defense attorneys argue that there were "no significant" errors in Buckwalter's sentencing and that the cost to taxpayers of Fumo's fraud was just below $2.5 million. A greater financial loss, as prosecutors insist occurred, would have likely meant a longer sentence.
Related posts concerning Fumo sentencing and appeal:
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
- Comparing white-collar apples and drug dealing oranges at sentencing
- "Feds seek to appeal 'unreasonable' Fumo sentence"
- Continued buzzing about the (soft?) sentence given to Fumo
- High-profile below-guideline political corruption sentence headed to Third Circuit
- An amusing spat in the Third Circuit over a not-very-brief sentencing brief
- Feds make case to Third Circuit that corruption sentence too low for state senator
UPDATE: As detailed in this Philadelphia Inquirer piece, it appears that at least two judges on the Third Circuit panel indicatyed at oral argument that "the sentencing of the disgraced politician in 2009 was rife with serious procedural errors."
Tuesday, May 03, 2011
Shouldn't crack sentences within old guideline ranges no longer be presumptively reasonable?
The question in the title of this post is inspired by a relatively uninspiring final paragraph from a relatively minor Eighth Circuit ruling today in the cocaine case US v. Hill, No. 10-3421 (8th Cir. May 3, 2011) (available here). Here is the factual and legal lead up and the final paragraph that has me worked up:
Appellant Kevin Hill was convicted of three counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On appeal, the appellant claims [inter alia] that the district court ... erred in not granting a variance from the advisory guideline sentencing range of 188 to 235 months....
The appellant was charged with three counts of distribution of cocaine base (crack cocaine). The indictment alleged that the appellant had distributed a total of 7.8 grams of crack cocaine to a confidential informant on three separate occasions. However, he later confessed to distributing an additional 198 ounces of cocaine, and the use of his confession is the primary subject of this appeal....
Finally, the appellant contends that the district court erred in not granting a downward variance from the guideline range. He asserts that the ratio of crack cocaine to powder cocaine creates an unwarranted sentencing disparity within the meaning of 18 U.S.C. § 3553(a)(6)....
Here, the district court properly considered all the arguments, including the crack to powder cocaine ratio argument, and the 18 U.S.C. § 3553(a) factors and sentenced the appellant to the bottom of the advisory range. A sentence within the guidelines range is presumptively reasonable. See United States v. Vinson, 631 F.3d 476, 487 (8th Cir. 2011) (citations omitted). The district court did not abuse its discretion in sentencing the appellant to 188 months in prison.
I would need more information than what's provided in this opinion to come to a judgment as to whether Hill's 15.6-year sentence here for distributing 7.8 grams of crack cocaine to an informant is reasonable. But I long ago came to the judgment that the presumption of reasonableness for within-guideline sentencing ought not apply to within-guidelines crack sentences which the US Sentencing Commission had repeatedly and emphatically determined to be contrary to 3553(a)'s purposes. And now that crack guidelines have been reduced via statutes by Congress and new amendments by the Commission, I find it even harder to stomach the notion that within-guideline crack sentences imposed under defunct and unjust old law merit a presumption of reasonableness (a presumption which, to my knowledge, has never been rebutted)!
Again, to be clear, in the absence of more information about Kevin Hill's crimes and history, I cannot readily assail the decision to affirm his 15.6-year sentence here. But I can and do readily assail the decision to affirm this sentence by presuming the reasonableness of guidelines that Congress in 2010 determined were so bad that they needed to be dramatically reformed. The rationale of the Supreme Court's work in Rita was that a presumption of reasonableness for within-guideline sentence was permissible (though not required) to adopt because a within-guideline sentence generally indicated that both the USSC and a district judge assessed the need for a particular sentence under 3553(a) similarly. But in crack cases sentenced under the old guidelines, there is long line of USSC reports and actions as well as now clear Congressional reforms, indicating that the old guideline ranges were unfair and unjust.
In short, given that Congress has change crack sentencing laws to be more fair, why should the Eighth Circuit or other reviewing courts still declare sentences imposed under the old unfair guidelines essentially immune from substantive reasonableness review by mere invocation of the "presumption of reasonableness"? It just makes no sense, and perhaps reveals just how resistant some (most? all?) circuits are to developing a true common-law of sentencing even six+ years after Booker called upon them to do so.
Sunday, May 01, 2011
Guest thoughts on the Ninth Circuit's recent significant child porn sentencing work
In the last few weeks, the Ninth Circuit has issued two significant federal child porn sentencing opinions in Apodaca (discussed here) and Henderson (discussed here). I invited Joshua Matz, who authored a Harvard Law Review comment on the Second Circuit's big Dorvee case (noted here) and who hosted me at an HLS event last month, to author a guest-post on these cases. Here is his effort:
Powerful Shots Across the Commission’s Bow on Child Porn Guidelines — This Time from the Ninth Circuit
It is no secret that the federal child porn sentencing guidelines have sustained withering criticism from the academy and district courts. Motivated in part by a surge in federal prosecutions, commentators have strongly encouraged the Sentencing Commission to revisit guidelines widely decried as unduly severe and unmoored from empirical evidence.
In two recent cases, the Ninth Circuit staked out an aggressive position amongst these critics — first raising the specter of aggressive review for substantive reasonableness in US v. Apodaca, and then holding in US v. Henderson that district courts are free to vary from § 2G2.2 based solely on policy disagreement with that guideline. These opinions likely will transform child porn sentencing practice in the Ninth Circuit and signals to the US Sentencing Commission that its failure to produce meaningful reform justifies unilateral judicial action.
The Ninth Circuit hardly stands alone. In US v Dorvee, an opinion issued last May, the Second Circuit overturned a within-Guidelines sentence under U.S.S.G. § 2G2.2 as substantively unreasonable. Its opinion sharply assailed the guideline’s empirical foundations and inability to achieve either parsimony or proportionality in sentencing. A few months later, in US v. Grober, the Third Circuit affirmed a district court child porn sentencing opinion that mounted a sustained assault on the relevant guidelines provisions by discussing thirteen days of expert testimony presented to the lower court.
In Apodaca, the Ninth Circuit reprised many of these themes while exploring a defendants’ claim that his within-Guidelines term of lifelong supervised release was substantively unreasonable. Focusing on the Guidelines’ failure to distinguish between contact and possession-only offenders — notwithstanding studies that strongly suggest different recidivism rates — Apodaca raised serious questions about the empirical support for a choice to treat these groups similarly. Invoking Kimbrough in a concurring opinion, Judge William Fletcher went farther and argued that the Commission did not act in its “characteristic institutional role” when it failed to translate § 3583(k) into sentences appropriate to § 3553(a)-relevant subtypes of child porn crimes. Because the Guidelines impose the same terms of supervised release on a broad range of offenders, he argued, they raise concerns about empirical support, similar treatment for dissimilar defendants, and focusing on particular characteristics of the offense and the offender.
The most surprising thing about Apodaca is that it affirmed the sentence below, turning aside at the last minute from its forceful criticism by finding that available evidence falls short of conclusive proof. Given that the court identified only a single study questioning strong empirical support for different recidivism rates — and that a co-author of that single study has disowned the suggestion that his work disturbs a scholarly consensus — the ApodacaCourt’s own reasoning could easily have justified reversal of the sentence below. Instead, the Court merely observed that additional evidence might provide “grounds to find that sentencing an individual like Apodaca to a lifetime term of supervised release is substantively unreasonable.”
This challenge, which defense counsel should treat as an invitation to press their empirical case in the district courts, suggests that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework. Indeed, the court’s use of substantive reasonableness review grounded in statutory principles of parsimony, proportionality, individualization, and empirical support mirrors Dorvee and participates in an important trend in appellate review of the Guidelines.
These same methods of reviewing a guideline should also play a significant role in post-Hendersonsentencing. By holding that § 2G2.2 does not reflect the Commission’s “characteristic institutional role” and permitting variance based purely on policy disagreement, the Ninth Circuit opened the door to searching district court review of § 2G2.2’s rationality as both an exercise in administrative rulemaking and a guide to reasonable sentences in particular cases. Judge Berzon actively encouraged such reflection and criticism in her concurring opinion, writing separately “to emphasize that unjust and sometimes bizarre results will follow if § 2G2.2 is applied by district courts without a special awareness of the Guidelines anomalous history.”
Now that district courts are required by Henderson to “appreciate” their Kimbrough discretion, and given the partial overlap between critiques of § 2G2.2 and § 5D1.2, trial counsel arguing the infirmity of child porn guidelines can simultaneously achieve two goals: (1) elaborating empirical and § 3553(a) grounds for future appellate findings of substantive unreasonableness and (2) providing district judges with concrete information relevant to a determination of whether their Kimbrough discretion ought to be exercised to vary from § 2G2.2 as a matter of policy.
These developments point to an explanation for why the Apodaca Court stayed its hand from an outright finding of substantive unreasonableness. In that case, Judge William Fletcher concurred and called upon the Commission and Congress to “address the undifferentiated treatment of the dissimilar groups of sex offenders covered by § 3583(k) and U.S.S.G. § 5D1.2(b)(2).” Just one week later, the Ninth Circuit essentially allowed each district judge to place § 2G2.2 under review. These opinions strongly signal to the Commission that its policy statements are lacking and that, if it wants its Guidelines to avoid rougher judicial treatment in the future, the Commission should embrace the opportunity for reform provided by an upcoming reassessment of its child porn guidelines. In the interim, courts wielding Kimbrough discretion and substantive reasonableness doctrine will refine their own careful assessment of the Commission’s efforts.
Friday, April 29, 2011
Multi-opinion Ninth Circuit ruling on federal child porn sentencing
The Ninth Circuit today released a significant new ruling on federal child porn sentencing in US v. Henderson, No. 09-5054 (9th Cir. April 29, 2011) (available here). Each member of the panel wrote an opinion in Henderson, though this start for the opinion for the court makes the case seem simple enough:
Ronald Henderson challenges the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States, 552 U.S. 85 (2007), to vary from the Sentencing Guidelines based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. Because it is unclear whether the district judge recognized and exercised his Kimbrough discretion, we reverse and remand for resentencing.
As is often the case in thoughtful post-Booker rulings, there is something for everyone in this new Henderson opinion. Both the majority opinion and the two concurrences have key passages for those seeking to justify and defend below-guideline or within-guideline child porn sentences.
Friday, April 22, 2011
Third Circuit affirms child porn offender's sentence and restrictions over various objections
Though I do not believe it breaks much new ground, today's Third Circuit opinion in US v. Maurer, No. 10-304 (3d Cir. Apr. 22, 2011) (available here), covers lots of ground that arises in a number of child porn cases. Here is how the opinion starts:
Appellant Derl H. Maurer (“Maurer”) pleaded guilty to a single count information charging him with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The District Court imposed a sentence of sixty months of imprisonment and a five-year term of supervised release, which included special conditions restricting internet access and association with minors. On appeal, Maurer challenges the procedural reasonableness of his sentence as well as the special conditions of his supervised release. For the reasons that follow, we will affirm.
Monday, April 11, 2011
Rough day for defendants pressing sentencing appeals in Eighth Circuit
A set of opinions released today provide still more proof that, despite repeated SCOTUS post-Booker sentencing reversals, the Eighth Circuit continues to believe precious few defense sentencing arguments are convincing. My friends cut and paste help me provide these unofficial summaries of three notable defense losses from this official circuit webpage:
United States v. Rocio Ortiz, No. 10-1101 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Riley, Author, with Bye and Melloy, Circuit Judges]: No error in allowing representatives of retailers victimized by defendant's shoplifting scheme to testify at sentencing regarding national losses; district court did not err in departing upward from criminal history category II to category VI or in adding a further offense level for criminal history; where court indicated it would impose the same sentence and for the same reasons, any procedural error in not discussing intermediate criminal history categories was harmless; district court adequately considered the 3553(a) factors and possessed a keen awareness of its authority to sentence outside the guidelines.
United States v. David Mills Becker, No. 10-2263 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: District court's comments regarding his prior service on the North Dakota Board of Parole did not create a Rule 32 violation as the court's comments about what might happen in the state system were merely an academic discussion and did not affect its sentencing decision, which was based on the severity and nature of defendant's offense; district court did not err making defendant's federal sentence consecutive to his state time; Guideline Sec. 5G3.1(b) did not apply to defendant's sentence.
United States v. Victor Jones, No. 10-2667 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: Defendant's argument that his 188-month was unreasonable is foreclosed by his plea agreement which agreed to a sentence within a 188 to 235 month range; in any event, the sentence was not substantively unreasonable.
These summaries lead me to believe the Oritz case my be the most interesting and consequential of this bunch, but perhaps readers will help me see if there is anything especially important jurisprudentially within this troika of sentencing rulings.
Thursday, March 31, 2011
Seond Circuit discusses (and defends) illegal reentry guideline
The Second Circuit has interesting little federal sentencing opinion today in US v. Perez-Frias, No. 10-1401 (2d Cir. March 31, 2011) (available here), which engages and largely rejects a number of broadside attacks on the illegal reetry guideline. Here is how the opinion starts and a key passage:
Defendant Pedro Ruben Perez-Frias (“Perez-Frias”) pleaded guilty to one count of illegally reentering the United States without permission after having been deported following a conviction for the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The United States District Court for the Southern District of New York (Chin, J.) sentenced Perez-Frias principally to 42 months’ imprisonment. Perez-Frias challenges only the substantive reasonableness of his sentence, arguing  that the district court’s sentence was unduly harsh in view of the 18 U.S.C. § 3553(a) factors and  that the 16-level enhancement applicable to reentrants with certain prior convictions (a) is not based on review of past sentencing practices and empirical studies, (b) is overly harsh compared to Guidelines applicable to more serious crimes, and (c) is greater than necessary in view of districts that have “fast track” programs. We affirm....
Perez-Frias argues that the 16-level Guideline enhancement for reentry is deficient because the Commission arrived at it without reference to specific empirical data. In support, Perez-Frias cites the Supreme Court’s decision in Kimbrough, 552 U.S. at 109, holding that district judges are entitled to conclude that the crack cocaine Guideline was greater than necessary to meet the standards of § 3553(a) if they believe the Guideline “do[es] not exemplify the Commission’s exercise of its characteristic institutional role”; and our recent decision in United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010), holding that “the Commission did not use [an] empirical approach in formulating the Guidelines for child pornography” and instead amended the Guidelines at the direction of Congress.
However, the absence of empirical support is not the relevant flaw we identified in Dorvee. We criticized the child pornography Guideline in Dorvee because Congress ignored the Commission and directly amended the Guideline, which had the effect of “eviscerat[ing] the fundamental statutory requirement in § 3553(a) that district courts consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’” See 616 F.3d at 184-86, 187. There is no such flaw in the reentry Guideline. Congress did not bypass the usual procedure for amending the Guidelines with respect to illegal reentry cases. To the contrary, the 16-level enhancement in § 2L1.2 was based on the Commission’s own “determin[ation] that 20 these increased offense levels are appropriate to reflect the serious nature of these offenses.” U.S.S.G. Appx. C (amend. 375, Reason for Amendment”).
Tuesday, March 29, 2011
Third Circuit finds procedurally(?!?) unreasonable two below-guideline white-collar sentences
The Third Circuit has an interesting ruling today in US v. Negroni, No. 10-1050 (3d Cir. March 29, 2011) (available here), in which two white-collar defendants have their below-guideline sentences vacated. Here are a few snippets from the Negroni opinion that provides an incomplete summary :
The United States appeals orders of the United States District Court for the Eastern District of Pennsylvania sentencing Appellee James Hall to fifteen months' imprisonment and Appellee Paul Negroni to five years' probation, including nine months' in-home detention. Because the District Court committed procedural error in reaching both of those sentences, we will vacate the orders and remand for resentencing....
These consolidated cases spring from a massive fraud scheme organized and conducted by a man named Kevin Waltzer. Between the years 2000 and 2008, Waltzer fraudulently obtained more than $40 million in payments from settlement funds in three class action lawsuits...In 2007, the scheme was uncovered by the IRS, and, in cooperation with the IRS investigation, Waltzer began to provide information regarding the other individuals involved, including Hall and Negroni....
Hall's calculated ... Guidelines range called for 46 to 57 months' imprisonment.... For Negroni, the District Court calculated ... a Guidelines range of 70 to 87 months' imprisonment. [Hall was sentenced to fifteen months' imprisonment; Negroni got five years' probation, including nine months' in-home detention.]...
[O]ur review is frustrated because, while the District Court individually identified each § 3553(a) factor, it did not discuss some of them and, as to those it did discuss, it did not explain how they justified the frankly dramatic downward variance it gave. The insufficiency of the explanation prevents us from judging whether the Court “gave meaningful consideration” to the relevant factors and is itself procedural error.
I have placed "(?!?)" as a suffix to the the term procedurally is the title to this post because I sense that it is the substantive outcome much more than the procedures used below that really bothers the Third Circuit in these cases. Nevertheless, as has been the case in lots and lots of post-Booker reasonableness appeals, it seems that the circuit judges ultimately felt me comfortable declaring the outcome only procedurally unreasonable and thereby giving the district court a second opportunity to consider both the sentencing process and result once more, this time with some added wisdom from this circuit ruling.
Monday, March 28, 2011
Eleventh Circuit weighs in on ex post facto issues after Booker
Though Booker has been the law of the federal sentencing land for more than six years now, the impact of the decision on ex post facto doctrines concerning guideline application remains unresolved in most circuits (and, it seems, under-litigated in most settings). Today, the Eleventh Circuit weighs in on this issue in US v. Wetherald, No. 09-11687 (11th Cir. March 28, 2011) (available here). Here are passages from the opinion:
This court has yet to directly address the ex post facto implications of Booker on the Guidelines.... Nevertheless, while we have not addressed the question as presented in this case, we have affirmed the underlying principles that led to the application of the Ex Post Facto Clause in our pre-Booker opinions.
Our sister circuits have split on the impact of Booker in regards to the Ex Post Facto Clause. The Seventh Circuit has taken the view that the Ex Post Facto Clause no longer poses a problem, as it applies “only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)... The D.C. Circuit has squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008)....
Because it is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence, we find the approach taken by the D.C. Circuit more compelling than that of the Seventh Circuit. It is true that the Guidelines are no longer mandatory, but neither are they without force. The simple reality of sentencing is that a “sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines.” Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007). As the D.C. Circuit noted, “Practically speaking, applicable Sentencing Guidelines provide a starting point or ‘anchor’ for judges and are likely to influence the sentences judges impose.” Turner, 548 F.3d at 1099. This starting point serves to cabin the potential sentence that may be imposed, and the Supreme Court has recognized that the appeals courts may presume the reasonableness of a sentence that reflects the district court’s proper application of the Sentencing Guidelines. Rita, 551 U.S. at 347, 127 S. Ct. at 2462. We also have acknowledged that “ordinarily we would expect a sentence within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we have declined to find that a sentence within the Guidelines range is reasonable per se, we have noted that the Guidelines remain “central to the sentencing process” and that “our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).” Id. at 787, 788...
Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed. But it is equally clear that we need not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense.” Ortiz, 621 F.3d at 87. Rather, we will look to the sentence as applied to determine whether the change created “‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner, 529 U.S. at 250, 120 S. Ct. at 1367 (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 1603 (1995)). This standard is consistent with our precedent. As we said in Kapordelis, “While we have held that the district court must correctly calculate the Guidelines before imposing a sentence, we are not required to vacate a sentence if it is likely that, under the correctly calculated Guidelines, the district court would have imposed the same sentence.” 569 F.3d at 1314. Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment. This standard recognizes the ongoing importance of the Sentencing Guidelines while maintaining the district court’s broad discretion to consider relevant information in formulating an appropriate sentence.
A few related posts on post-Booker ex post issues (with ruling dates in parentheses):
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker (2006)
- DC Circuit produces crisp split on ex post issues after Booker (finally!!) (2008)
- Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines (2010)
- A notable district court opinion on the post-Booker ex post facto issue (2010)
Thursday, March 24, 2011
Seventh Circuit gives some teeth to parsimony principle in reversing life sentence for crack
The Seventh Circuit shows yet again that it is willing and able to give some real meaning to reasonableness review after Booker, this time by reversing a within-guideline crack sentence of life imprisonment in US v. Johnson, No. 10-1737 (7th Cir. March 24, 2011) (available here). Here is how the Johnson opinion begins:
A jury in the United States District Court for the Central District of Illinois convicted Henry Johnson of several crimes related to the possession and sale of crack cocaine. The district court sentenced Mr. Johnson to life in prison. In his initial appeal, we affirmed the convictions, but we reversed the sentence and remanded to allow the district court to take account of the Supreme Court’s intervening decision in Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558 (2007). See United States v. Johnson, 584 F.3d 731, 740 (7th Cir. 2009). On remand, the district court again imposed a sentence of life imprisonment, and Mr. Johnson now appeals. We conclude that our prior remand did not permit relitigation of the drug quantity. We further conclude that the district court procedurally erred because it did not determine, after considering the sentencing factors under 18 U.S.C. § 3553(a), that resentencing Mr. Johnson under his guideline range of natural life in prison was “sufficient, but not greater than necessary, to comply with § 3553(a)(2). Id. § 3553(a). Therefore, we must vacate and remand for this determination.
Friday, March 04, 2011
Is Pepper starting to add spice to federal sentencing proceedings?
The significant ruling by the Supreme Court this week in Pepper (basics here) has already impacted a on-going federal sentencing articles and projects of mine, and I am wondering if and how the Pepperruling is impacting on-going federal sentencing proceedings. I suspect more than a few litigants with pending sentencing appeals are filing letters of supplemental authority based on Pepper, and perhaps some district courts have already referenced the ruling in sentencing decisions. (Recall that there are, on average, more than 300 federal sentencings taking place every day in federal courts around the nation.)
I hope readers might use the comments to this post to report on any early impact from Pepper, and I also hope anyone who come across a sentencing opinion that has some Pepper added will send it my way.
Related posts on the Pepper ruling by the Supreme Court:
- SCOTUS rules in Pepper, again stressing sentencing discretion after Booker
- SCOTUS opinion in Pepper shows how/when/why courts can reject the FSG
- Will Pepper prompt many more federal sentencing judges to focus on post-offense rehabilitation?
Wednesday, March 02, 2011
SCOTUS rules in Pepper, again stressing sentencing discretion after Booker
The Supreme Court handed down its biggest federal sentencing case of the Term to date, ruling in the Peppercase about the consideration of post-sentencing rehabilitation at a federal resentencing proceeding. The full opinion is available at this link, and here are the (no-so-simple) basics of the ruling in terms of how the Justices voted:
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which BREYER and ALITO, JJ., joined as to Part III. BREYER, J., filed an opinion concurring in part and concurring in the judgment. ALITO, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.
Here is the key paragraph from the start of the opinion for the Court by Justice Sotomayor:
We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range. Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.
The ultimate outcome here is not too surprising, but there seems to be a lot of "there there" in this opinion. (For example, the first part of the opinion of the Court stresses the old 1949 Williams ruling and repeats over and over that federal judges even after modern sentencing reforms have broad discretion to consider all factors relating to the defendants.) Blog posts will follow with some quick thoughts and perhaps some deeper thoughts in the hours and days ahead.
March 2, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, February 24, 2011
Two notable case notes in latest Harvard Law Review
The February 2011 issue of the Harvard Law Review includes brief notes on two significant federal circuit court rulings that have both gotten considerable attention on this blog:
Tuesday, December 28, 2010
First Circuit discusses (and sort-of dodges) post-Booker ex post facto issue
Today through a notable opinion in US v. Rodriguez, No. 09-1429 (1st Cir. Dec. 28, 2010) (available here), a First Circuit panel thoughtfully discusses and then kind-of dodges the (circuit-splitting) issue of whether the Ex Post Facto clause limits application of the latest version of the federal sentencing guidelines in a post-Booker advisory sentencing world. Here are snippets of the Rodriguez opinion:
Congress tells them to use the Guidelines in force at the time of sentencing. See 18 U.S.C. § 3553(a)(4)(A). But if doing that would infract the Constitution's ex post facto clause, the Commission directs them to use the edition in effect on the day the defendant committed the crime. See USSG § 1B1.11(b)(1) (policy statement). We too tell judges to use the old version if the new one raises ex post facto concerns. Reduced to essentials, our set protocol runs this way: "[W]e ordinarily employ the [G]uidelines in effect at sentencing only where they are as lenient as those in effect at the time of the offense; when the [G]uidelines have been made more severe in the interim, the version in effect at the time of the crime is normally used . . . ." United States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001)...; Created in a commonsense way, this firm practice has shaped the contours of our caselaw pre- and post-Booker, helping judges "avoid any hint of ex post facto increase in penalty." See Maldonado, 242 F.3d at 5. And avoiding even the slightest suggestion of an ex post facto problem in these circumstances makes eminently good sense regardless of whether the practice stems from a constitutional imperative.
But that does not mean that judges who start with old Guidelines cannot consult new ones in choosing suitable sentences. Quite the contrary. Exercising their Booker discretion, judges mulling over the multiple criteria in § 3553(a) can turn to post-offense Guidelines revisions to help select reasonable sentences that (among other things) capture the seriousness of the crimes and impose the right level of deterrence. See United States v. Gilmore, 599 F.3d 160, 166 (2d Cir. 2010) (holding that consulting later-amended Guidelines like this raises no ex post facto concerns).
We come full circle. Because we need not rest our commonsense protocol on a constitutional command -- a holding that squares with the general principle of steering clear of unnecessary constitutional decisions -- we do not have to take sides in the inter-circuit conflict highlighted above. And now we turn to Rodriguez's case
A few related posts on post-Booker ex post issues:
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
- DC Circuit produces crisp split on ex post issues after Booker (finally!!)
- Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines
- A notable district court opinion on the post-Booker ex post facto issue
- Sixth Circuit (sort of?) addresses post-Booker ex post facto issue
- Second Circuit weighs in thoughtfully on post-Booker ex post facto issues
Notable Fifth Circuit ruling about review of guideline calculation errors
I have been remiss in not spotlighting a recent and throughtful panel ruling from the Fifth Circuit about the review of guideline calculation errors for harmlessness. The opinion was handed down last week in US v. Ibarra-Luna, No. 09-40768 (5th Cir. Dec. 22, 2010) (available here), and here is how it begins:
In United States v. Morales-Sanchez, we held that a district court must always “correctly calculat[e] the applicable Guidelines range” before imposing a sentence. Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless. We hold that under the discretionary sentencing regime of Booker and progeny, the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing. On the facts before us, we conclude that this high hurdle has not been cleared and remand for resentencing.
Tuesday, December 21, 2010
Lengthy discussion of modern sentencing challenges by split Second Circuit
The Second Circuit has an extended discussion of a variety of sentencing issues today in US v. Preacely, No. 09-2580 (2d Cir. Dec. 21, 2010) (available here). Providing a sign of the modern federal sentencing times, all three judges on the panel in Preacely author opinions to explain their views of how to review a below-guideline sentence imposed in a seemingly routine drug case.
Tellingly, Judge Lynch authors a concurrence to "put into ordinary language the common-sense basis of the sometimes arcane or technical analysis required by our somewhat complex law of sentencing." And Judge Raggi's closing paragraph in her dissent effectively details what all the sentencing hub-bub is about:
Like my colleagues, I recognize that Preacely received a severe sentence despite his significant cooperation and efforts at reformation. I also recognize that other judges might have accorded these factors greater weight in mitigating the seriousness of Preacely’s crime and his risk of recidivism. What I do not recognize is any basis in the record for thinking that the balance struck by the district court is infected by procedural error, specifically, by possible misapprehension as to the court’s authority to depart from the Career Offender Guideline. Thus, while I see no reason to remand even for clarification, I specifically dissent from the majority’s decision to vacate and to order resentencing.
Sunday, December 19, 2010
Notable new perspective on reasonableness review after Booker
I have long thought that appellate review was a weakest link in the Booker remedy, both jurisprudentially and practically. Thus, this new piece on SSRN by Briana Rosenbaum really caught my eye. The piece is titled "Righting the Historical Record: A Case for Appellate Jurisdiction Over Appeals of Sentences for Reasonableness Under 28 U.S.C. § 1291," and here is the abstract:
This Article is the first to critically analyze the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker, 543 U.S. 220 (2005), that all courts of appeals review the length of criminal sentences for “reasonableness.” In Booker, the Court created a new kind of appellate review: review of all criminal sentences for “reasonableness.” As a result, the availability of appellate review has expanded greatly. Data from the U.S. Sentencing Commission shows that, since Booker, the number of sentence appeals has risen.
Unfortunately, the Court in Booker did not explain the jurisdictional basis for its expanded “reasonableness review.” The omission is not trivial. For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences. The Supreme Court may not increase the jurisdiction of these courts; the Constitution gives this power to Congress alone. Accordingly, if there is no basis for jurisdiction, the Supreme Court usurped Congress’ power to expand the jurisdiction of the federal courts. Despite this, courts of appeals have unanimously followed the Supreme Court mandate to review sentences for reasonableness, with little more justification than “because the Supreme Court said so.”
This Article, for the first time, examines the historical and legislative underpinnings of appellate review of criminal sentences in an attempt to find a justification, if any, for Booker’s expanded appellate review. The Article concludes that courts of appeals have indeed had jurisdiction under 28 U.S.C. § 1291 to review the length of sentences, and have had such jurisdiction since at least 1891. Although courts routinely rejected appeals of the length of sentences for lack of “jurisdiction” before Booker, they did so erroneously, relying on older case law without fully analyzing the basis for those decisions. In fact, this “rule of non-review” was based not on jurisdiction, but on a policy of deference to the sentencing judge -- a policy that can be changed at any point, by either Congress or the Supreme Court. In Booker, the Supreme Court exercised such a power. For the first time, this Article provides the correct jurisdictional basis for the Booker decision, and, at the same time, rights the historical record on jurisdiction over appeals of criminal sentences.
Thursday, October 28, 2010
Noting that the circuits are getting behind below-guideline kiddie porn downloading sentences
This morning's Legal Intelligencer has this new piece discussing the Third Circuit's important Grober ruling from earlier this week (discussed here). The piece is headlined "Appeals Courts Criticize Child Porn Sentencing Guidelines," and here is how it gets started:
As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so.
One of the key flaws cited by many of the judges is that the harsher penalties were imposed directly by Congress, every time the guideline was amended, rather than the usual process in which the Sentencing Commission studies an issue and proposes changes that are then subject to congressional approval. Prosecutors have been fighting the trend by urging trial judges to follow the guidelines and sometimes by taking appeals from those who don't.
But a decision in May from the 2nd Circuit and another this week from the 3rd Circuit suggest that the Justice Department may be waging a losing battle, and that trial judges are now freer than ever to reject the child pornography guidelines in cases where the judge sees the suggested punishment as too harsh.
In United States v. Grober, the Justice Department urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for David Grober was "outrageously high." Hayden, who sits in New Jersey, set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair.
Among the flaws cited by Hayden were a series of "enhancements" that, in her view, would apply in almost every case, as well as a failure to distinguish between defendants whose crime involved nothing more than downloading images as opposed to those involved in producing, selling or trading in illegal images. Ultimately, Hayden issued a 46-page opinion that declared the guideline was not worthy of deference. Instead of imposing a term of 235 months, she imposed a term of 60 months.
Now the 3rd Circuit has voted 2-1 to uphold Hayden's ruling, strongly rejecting the Justice Department's argument that Hayden had abused her discretion.
Tuesday, October 26, 2010
Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling
A split Third Circuit panel has a long and dynamic set of opinion in a federal child porn sentencing case in which I was actually called as an expert witness at sentencing. The litigation and ruling in US v. Grober, No. 09-1318 (3d Cir. Oct. 26, 2010) (available here), merits extended discussion, but for now I will quote for the start of the majority opinion and the end of the dissent. First, the start of the majority opinion:
It is an unassailable proposition that “[c]hild pornography harms and debases the most defenseless of our citizens.” United States v. Williams, 553 U.S. 285, 307 (2008). We believe that, and the District Court believed that. Nonetheless, the Court was deeply concerned about the sentence the government said the Court should impose on defendant David Grober under the child pornography Guidelines. It recognized, on the one hand, the tension between a mechanical application of those Guidelines and the “outrageously high” sentence –- indeed, the “truly remarkable punishment” -– of 235-293 months of imprisonment they advised, and, on the other, a fair and reasonable sentence that does justice. Determined to take a long and hard look at the child pornography Guidelines in an effort to understand why Congress and the Sentencing Commission did what they did and whether it made sense both as an objective matter and as to the defendant, the Court embarked on a careful study of how the Guidelines range urged on it by the government came to be. It took evidence over twelve days, heard extensive oral argument and considered extensive written submissions, and rendered a lengthy oral opinion at sentencing and a forty-six page written opinion thereafter explaining in great detail how it arrived at what it believed to be the correct sentence for this defendant. All of this is to be much admired.
There is a flip side, however, when a district court devotes such an extraordinary amount of time and attention to an issue so clearly troubling it and so freely expresses its concerns on the record, reaching out for whatever might assist it in assuaging those concerns. The flip side is this: in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done. After this microscopic examination –- but without ever challenging the substantive reasonableness of the ultimate sentence imposed –- the government has found what it describes as procedural error. We will affirm.
And here is the end of this dissent:
As I noted at the outset, the District Court labored mightily to impose a just sentence upon David Grober. That effort was animated by a candid fear that Congress’s zeal to address the proliferation of child pornography has resulted in penalties grossly disproportionate to the culpability attendant to this type of crime. Even accepting that premise, it is still wrong for a sentencing court to: (1) categorically reject the validity of a Guideline by impugning generally the plea bargaining system; (2) punish a party for failing to present “evidence” it never should have presented in the first place; (3) mischaracterize a defendant’s crimes of conviction; and (4) use a categorical rejection of a Guideline as a proxy for ignoring some of the relevant § 3553(a) factors. Because each of these errors is manifest on this record, I would vacate Grober’s judgment of sentence and remand for a new sentencing hearing.
Monday, October 25, 2010
Remarkable opinion with postponement of resentencing in notorious Irey case
Regular readers will likely recall the Irey case, in which a split Eleventh Circuit panel initially affirmed, but thereafter decided en banc to reverse, a lengthy (but still well below-guideline) sentence given to a middle-aged man for what all agree was an "utterly gruesome" sex offense. A helpful reader today sent me a copy of the latest Irey opinion and order entered on Friday by U.S. District Judge Gregory Presnell. This opinion, which represents just the latest remarkable chapter in a remarkable case, can be downloaded below. Here is the opinion's introduction and conclusion:
This matter comes before the Court on the Unopposed Motion for Continuance of Resentencing Hearing Pending Review in United States Supreme Court (Doc. 80). As the motion’s title suggests, the parties seek to have this Court delay its resentencing of the Defendant, William Irey (“Irey”), on the chance that the Supreme Court will grant his petition for writ of certiorari, due to be filed on October 27, 2010. As things now stand, this Court is obligated by the July 29, 2010 decision of the United States Court of Appeals for the Eleventh Circuit (henceforth, the “July 29 Order”) to impose a 30-year sentence on Irey. Given that Irey is in the early stages of serving the 17-and-a-half-year sentence originally imposed by this court, there is no pressing need to impose the longer sentence — a fact apparently recognized by the Government, which does not oppose the motion. For these reasons, the motion will be granted, and the resentencing will be continued.
Under normal circumstances, that would be the end of the matter. But these are not normal circumstances. The July 29 Order raises a host of important issues, a fact recognized both by the Defendant in the instant motion and by the appellate court in the order itself. The pendency of the petition for a writ of certiorari provides the Court with a rare opportunity to respond to certain aspects of the appellate decision, prior to its possible review by the Supreme Court, with information that only the undersigned possesses. In addition, the July 29 Order has certain implications that affect the courts that are tasked with the imposition of criminal sentences — implications that might not be apparent to the parties themselves. The Court believes that a discussion of these points may assist the Supreme Court in determining whether the petition ought to be granted.
It is for these reasons, and not out of any disrespect for the Circuit Court’s authority to reverse the sentence I imposed, that I will take this opportunity to respond to certain portions of the July 29 Order....
I normally conclude the sentencing process by coming back to a consideration of the need for the sentence imposed to promote respect for the law and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A). These are subjective factors that overlay the other statutory considerations. As I said at the sentencing, “I just do the best I can under the circumstances. It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a thirty year sentence . . . is greater than necessary to accomplish the statutory objectives.” (Tr. at 61).
The Circuit Court acknowledged that I properly calculated the guideline score, committed no procedural error, and gave thorough and thoughtful consideration to the statutory sentencing factors. Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me, and concluded that there were no mitigating circumstances to justify any sentence other than the 30-year guideline sentence.
This is an extraordinary and unprecedented result. The Circuit Court has effectively usurped my sentencing discretion and raised serious questions regarding Irey’s right to due process. I concede that the majority opinion has raised valid concerns about the reasonableness of the sentence I imposed. Were this case remanded to me for re-sentencing, I would take these concerns into account and exercise my discretion accordingly. But as it now stands, I will not be given that opportunity. Nor, it appears, will Irey be given the opportunity to confront the facts and arguments raised for the first time on appeal, which resulted in a 12 and a half year increase in his sentence.
In his separate opinion, Judge Tjoflat states that the majority opinion’s approach — i.e., resentencing defendants on appeal — does “immense and immeasurable institutional damage.” Irey III at 1267. In my opinion, it also undermines the basic tenets of sentencing law developed over the past five years, and opens a Pandora’s box of new sentencing issues. I regret that my sentencing of this defendant — including any errors I made in doing so — appears to have led to this result.
By my lights, this opinion stands as a de facto amicus brief in support of a cert petition that has not yet even been filled. As such, this opinion is quite unusual, and I wonder if commentors think it should be lauded or lamented.
Related posts on Irey case:
- Eleventh Circuit affirms below-guideline sentence in "utterly gruesome" sex offense case
- Eleventh Circuit to review en banc below-guideline sentence in "utterly gruesome" sex offense case
- Full Eleventh Circuit still struggling to figure out reasonableness review in Irey case
- Split en banc Eleventh Circuit rules child molester's 17½-year sentence substantively unreasonable