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."

September 19, 2011 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

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:

September 16, 2011 in Booker in the Circuits, Examples of "over-punishment", White-collar sentencing | Permalink | Comments (3) | TrackBack

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.

September 12, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

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:

August 25, 2011 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

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.

August 25, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

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.

August 23, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

August 23, 2011 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

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."

August 4, 2011 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

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.)

August 3, 2011 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

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.

August 2, 2011 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

July 22, 2011 in Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

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.

July 20, 2011 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

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.

Download Vazquez_resentencing_order_from_Judge Presnell 

July 14, 2011 in Booker in district courts, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

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).

July 12, 2011 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

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.

July 8, 2011 in Booker in district courts, Booker in the Circuits, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

June 14, 2011 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

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:

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."

May 25, 2011 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

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.

May 3, 2011 in Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

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.

May 1, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

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. 

April 29, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

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.

April 22, 2011 in Booker in the Circuits, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

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.

April 11, 2011 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

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 [1] that the district court’s sentence was unduly harsh in view of the 18 U.S.C. § 3553(a) factors and [2] 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”).

March 31, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

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.

March 29, 2011 in Booker in the Circuits, Offense Characteristics, White-collar sentencing | Permalink | Comments (4) | TrackBack

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):

March 28, 2011 in Advisory Sentencing Guidelines, Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

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.

March 24, 2011 in Booker in the Circuits, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

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:

March 4, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

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:

Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable. — United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc)

February 24, 2011 in Booker in the Circuits, Recommended reading, Second Amendment issues, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

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:

December 28, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

December 28, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

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.

December 21, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

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.

December 19, 2010 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

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.

October 28, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

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.

October 26, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

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.

Download Irey FINAL post-sentencing opinion with Apps

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:

October 25, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, October 21, 2010

Judge Bright laments post-Booker crack sentencing realities in Iowa

Concurring in part and dissenting in part in an Eighth Circuit opinion in US v. Brewer, No. 09-3909 (8th Cir. Oct. 21, 2010) (available here), that is not otherwise that notable, Judge Myron Bright has a lot to say about disparties in crack sentencing approaches in the Northern District of Iowa. Here is part of his opinion:

Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today?  Well, it has.  In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines -– which here applied a 33:1 ratio.  So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era).

For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence of 30 years to life.  That’s the same recommendation as if Brewer had committed second-degree murder. Unfortunately, equating crack cocaine with murder is not uncommon. See Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire 336 (Metropolitan Books 2010) (Texas Tough) (“In 1995, the average federal prison term for a crack offense surpassed that of murder.”).  Brewer requested a variance from the harsh crack cocaine guidelines on the basis of the disparity with powder cocaine and he cited a decision by Judge Bennett of the Northern District of Iowa who utilizes a 1:1 crack/powder ratio.

The court imposed a 370-month sentence.  That’s 30 years and 10 months. The district court denied Brewer’s request for a variance, stating “I did consider and reject the request for a variance based on the disparity in punishment between crack cocaine and cocaine.  As I looked at the statutory factors under 18 U.S.C. 3553(a), I determined that, on balance, this sentence was not out of the range of reasonableness and is fully supported by the evidence.”

The majority affirms, concluding that the district court was not required to vary downward on the basis of the crack/powder disparity.  But I believe the district court’s decision does not reflect a reasoned and informed exercise of discretion.  The district court cavalierly applied a guideline which often does not comply with § 3553(a) in the mine-run case, treats Brewer like a murderer, and results in unwarranted intra-district disparity.  Sadly, the interstate and corresponding judicial assignment made a substantial difference at Brewer’s sentencing.

October 21, 2010 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (15) | TrackBack

"Couple get long prison terms in Kansas 'pill mill' case"

The title of this post is the headline of this local article providing the outcome in a high-profile federal health care fraud case.  Here are the details:

Linda Schneider should carry most of the responsibility for her husband’s patients who overdosed and died, said a federal judge who described the deaths as “an avoidable tragedy motivated by greed.” But Stephen Schneider, a former physician, could have stopped it, U.S. District Judge Monti Belot said Wednesday as he sentenced the couple.

Belot gave Linda Schneider 33 years in prison and Stephen Schneider 30 years for their practices of prescribing painkillers at their Haysville clinic. Stephen Schneider is 57; Linda Schneider is 52. There is no parole from federal prison.

Belot said Linda Schneider, a licensed practical nurse who managed the clinic, set up an operation to make money off the quantity of patients, not the quality of care. “I have the distinct belief that had she not been involved in the operation of the clinic, or had she approached her role there in a professional and responsible way, none of us would be here,” Belot said, explaining her higher sentence.

Instead, Belot said, the evidence had shown her to be “a scheming, manipulative, uncaring criminal who believed, erroneously, that she was smart enough to get away with it.”

He said Stephen Schneider could have prevented the 68 overdose deaths that prosecutors said were linked to the clinic. “Stephen Schneider, as a doctor, had both legal and moral responsibilities to his patients to do no harm,” the judge said....

The Schneiders’ defense team insisted that their clients were not criminals. “We truly believe in their innocence,” said Lawrence Williamson, who represented Stephen Schneider. “We don’t believe justice has fully been served, and we hope there is a shot on appeal.”

Recent related posts:

October 21, 2010 in Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Thursday, October 07, 2010

Major Seventh Circuit ruling permitting judges to vary from guidelines based on fast-track disparity

The Seventh Circuit has a major post-Kimbrough ruling today in US v. Reyes-Hernandez, No. 09-1249 (7th Cir. Oct. 7, 2010) (available here), which gets started this way:

The Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85 (2007), taken together with other recent cases, has rekindled debate about whether sentencing disparities created by fasttrack programs can be considered by district court judges in non-fast-track districts when crafting individual sentences. We address that issue today. Because both cases present the same issue on appeal, we consolidate them for the purpose of our review.

In the first case, Jaime Reyes-Hernandez pled guilty for illegally re-entering the United States after he had been removed twice following a conviction for the aggravated felony of robbery. The district court sentenced him to forty-one months’ imprisonment, the most lenient sentence available under the applicable guideline range for his offense level and criminal history category. In the second case, Pedro Sanchez-Gonzalez pled guilty to illegally re-entering the United States after being removed following a conviction for the aggravated felony of domestic battery. The district court sentenced him to seventy-seven months’ imprisonment, which was at the lowest end of the guidelines range for his offense level and criminal history category.

In both cases, the district court refused to even consider imposing below-guidelines sentences, thereby refuting defendants’ claims that they should receive lesser sentences based on comparisons to sentences imposed on similarly situated individuals prosecuted in “fast-track” districts. Both defendants ask us on appeal to abandon our precedent and provide district courts with the latitude to consider fast-track-type sentences as part of their 18 U.S.C. § 3553(a) analyses. For reasons stated below, we grant their requests. We therefore vacate both sentences and remand to the district court for resentencing.

October 7, 2010 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Wednesday, September 29, 2010

Seventh Circuit finds that sentencing speed kills procedural reasonableness

The Seventh Circuit has an interesting reasonableness ruling today in US v. Glosser, No. 08-4015 (7th Cir. Sept. 29, 2010) (available here), which gets started this way:

The government appeals from a 121-month sentence a defendant received for attempting to possess more than 500 grams of methamphetamine, arguing that the district court committed procedural error by announcing and promising that it would impose the mandatory minimum sentence during the change of plea hearing, before it knew the advisory guidelines range or had heard either party’s argument regarding the sentence. Although we recognize that the court’s references to the ten-year mandatory minimum stemmed from a desire to ensure the defendant understood the minimum time he faced (he had previously been incorrectly informed that he faced a statutory minimum of five years), we agree with the government that the premature announcement of sentence constitutes procedural error that requires we vacate the sentence and remand for further proceedings.

September 29, 2010 in Booker in the Circuits, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Monday, September 27, 2010

Senator Jeff Sessions asks circuit nominee if she will "follow the federal sentencing guidelines"

Perhaps this is not news to those following the latest federal judicial confirmation battles closely, but I found notable this new report from the Connecticut Law Tribune concerning the Senate questioning of Second Circuit nominee Susan Carney earlier this month.   Specifically, this report on some back-and-forth with Senator Jeff Sesssion got my attention:

Sessions lectured about the importance of judges following higher courts’ dictates, and those of Congress. He told Carney that if she’d been a trial lawyer or a judge, she would know certain things from experience. “[A] lawyer who’s practiced a lot, or a judge who’s been on the bench for a while, I think understands that they’re not policy-setting officials,” said Sessions.

He then pointedly asked Carney if she would follow the federal sentencing guidelines.

Carney was agreeable, to a point.  She commended the guidelines for bringing “important consistency.”   She also told Sessions that she is familiar with the 2005 U.S. Supreme Court case of U.S. v. Booker, which held the sentencing guidelines interfered with the Sixth Amendment right to a fair trial, and were no longer mandatory.

Sessions, possibly hinting at her confirmation, responded, “I hope that as you wrestle with those issues before you, you realize there is a danger in deferring too readily to the unsupported views of a trial judge who just is not willing to be consistent.”

September 27, 2010 in Booker in the Circuits, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, September 20, 2010

Notable dissent from Ninth Circuit denial of en banc review of probation sentence for "big-time thief"

As detailed in this post from back in February, a split Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here), upheld as substantively reasonable a probation sentence given to convicted fraudster Duncan Edwards, whom the dissenting judge described as a "big time thief.”   Today, as detailed in this order, the Ninth Circuit has denied en banc review in Edwards, and that decision prompted a notable dissent by Judge Gould (which was joined by three other judges).  That dissent gets started this way:

In his cogent dissent from the majority decision of our three-judge panel, Judge Bea persuasively catalogs the laundry list of analytical errors committed by the district court at sentencing.  See United States v. Edwards, 595 F.3d 1004, 1018-25 (9th Cir. 2010) (Bea, J., dissenting).  I will not restate all of those errors here. Instead, I write to emphasize a larger and recurrent problem: our court’s practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness.  Our “rubber-stamp” approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations.  Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail.

Although we owe deference in the area of sentencing to a district court’s “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference.  Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court. See United States v. Ruff, 535 F.3d 999, 1007 (9th Cir. 2008) (Gould, J., dissenting) (“[D]istrict courts sentencing white collar criminals can more often identify with the criminal . . . . But, socioeconomic comfort with a criminal convict is not a sufficient reason to show such extreme leniency . . . .”); Kenneth Mann et al., Sentencing the White- Collar Offender, 17 Am. Crim. L. Rev. 479, 500 (1980) (concluding from a survey of federal judges that they evinced particular “understanding” and “sympathy” “for the person whose position in society may be very much like their own,” and that “factors intimately related to the defendant’s social status do receive weight in the judges’ thinking” about sentencing).  And while judges take seriously violent crime and are forced by congressional mandatory minimums to take seriously drug crimes, there is latent risk in the case of white-collar sentencing that an “it’s only money” rationale will result in undue leniency for serious offenses.  I have no doubt that Edwards made a persuasive presentation to the district court that he was an unhealthy, aging retiree repentant of past frauds.  Such cases are precisely when we should most rigorously review a sentence’s reasonableness to ensure that the justifications relied on at sentencing are supported by objective evidence in the record. See Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2141-49 (2010) (criticizing appellate deference to trial judge assessment of demeanor evidence at sentencing on the basis of the “emerging consensus in the legal and social science literature that people generally do a poor job in evaluating demeanor evidence,” and concluding that a defendant’s demeanor “seems about as likely to lead the trial judge astray as to facilitate good decision making”).  We know that often criminal defendants who commit other types of crimes will serve some hard time.  White-collar offenders like Edwards should not escape the same punishment simply because they are better-positioned to make a sympathetic presentation to the district judge.

I have bolded two phrases in this dissent because these lines appear to make a case for the Ninth Circuit to embrace and apply a more rigorous form of reasonableness review especially in white-collar cases.  Obviously, Judge Gould's advocacy here did not convince a majority of Ninth Circuit judges, and I am curious to hear whether readers like the idea of special approaches to reasonableness review in special kinds of sentencing cases.

September 20, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, September 13, 2010

Hitler's dog makes sentence procedurally unreasonableness, according to Seventh Circuit

The headline of this post is a bit inaccurate and perhaps unduly inflammatory.  Nevertheless, it is the presence of Hitler's dog that in part makes blog-worthy the Seventh Circuit's work today US v. Figueroa, No. 09-3333 (7th Cir. Sept. 13, 2010) (available here).  Here is an explanatory section from the start of the panel opinion:

The district court sentenced Figueroa to 235 months’ imprisonment. This represented the low end of Figueroa’s advisory guidelines range, and so on its face there is nothing remarkable about his sentence either. But the process the district court used to get there — in particular, its extraneous and inflammatory comments during the sentencing hearing — cast doubt on the validity of the sentence.  During the hearing, the district court digressed to discuss Figueroa’s native Mexico, the immigration status of Figueroa and his sisters, and the conditions and laws in half a dozen other countries — not to mention unnecessary references to Hugo Chávez, Iranian terrorists, and Adolf Hitler’s dog.  We have no way of knowing how, if at all, these irrelevant considerations affected Figueroa’s sentence.  We therefore must remand, to ensure that the district court’s choice of sentence was based only on the criteria that Congress has authorized.  See 18 U.S.C. § 3553.

September 13, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, September 01, 2010

Second Circuit weighs in thoughtfully on post-Booker ex post facto issues

Today in a relatively short opinion in US v. Ortiz, No. 08-2648 (2d Cir. Sept. 1, 2010) (available here), a Second Circuit panel addresses 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 is the start of the Ortiz opinion:

This appeal primarily presents the issue of whether, and under what circumstances, a more onerous guideline, issued by the United States Sentencing Commission after the date of an offense, renders a sentence imposed under the advisory Guidelines regime in violation of the Ex Post Facto Clause.  The issue arises on an appeal by Defendant-Appellant Eric Ortiz from the May 27, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge).  We conclude that such a sentence can violate the Clause, but that the Clause was not violated in the circumstances of this case.  We therefore affirm.

A few related posts on post-Booker ex post issues:

September 1, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, August 31, 2010

Two little and notable Ninth Circuit sentencing opinions

The Ninth Circuit handed down two notable little sentencing opinions this afternoon.  Here are links to the unanmious panel rulings, along with snippets from the decisions:

United States v. Wipf, No. 09-50291 (9th Cir. Aug. 31, 2010) (available here):

Appellant argued that the district court had discretion under 18 U.S.C. § 3553(a) to impose a sentence below the mandatory minimum, and that it should do so given her particular circumstances. She contended that there was a conflict between § 3553(a )— which requires district courts to impose the lowest sentence possible to achieve Congress’s sentencing goals — and the ten-year mandatory statutory minimum....

We have never addressed explicitly the question of whether 18 U.S.C. § 3553(a) permits a district court to impose a sentence below a mandatory statutory minimum.  Every other circuit to have done so has held that § 3553(a) does not confer such authority.  We reach the same conclusion.

United States v. Armstrong, No. 09-30395 (9th Cir. Aug. 31, 2010) (available here):

Richard C. Armstrong was convicted by a jury of participating in a racially motivated assault against an African American man.  Armstrong now appeals his sentence.  He contends that the district court erred in imposing two enhancements: one for selecting a victim on the basis of race and one for obstruction of justice.  Additionally, he argues that the sentence as a whole was procedurally flawed and substantively unreasonable.  We address whether a defendant may avoid an enhancement for selecting a victim on the basis of race if his co-defendant selected the victim before he did.  We decide that he may not.  Because we also disagree with Armstrong’s other two contentions, we affirm the sentence imposed by the district court.

August 31, 2010 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Tuesday, August 24, 2010

Sixth Circuit (sort of?) addresses post-Booker ex post facto issue

Today at the end of a long opinion involving some interesting facts, a Sixth Circuit panel in US v. Lanham, No. 08-6504 (6th Cir. Aug. 24, 2010) (available here), has a short discussion of 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 is the Sixth Circuit's entire discussion of this issue toward the very end of the Lanham opinion (with my bold accents added):

The sentencing court is to apply the version of the Sentencing Guidelines in effect at the time of sentencing unless it “determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause.” U.S.S.G. § 1B1.11(b)(1).

Defendants committed their offenses in 2003 when the 2002 Guidelines were in effect at the time of the crime. The 2008 Guidelines, in effect at time of sentencing, establish a higher base offense level for the offense of Criminal Sexual Abuse. The government argues that using the 2008 advisory Guidelines, which established a more onerous offense level than that in effect on the date of crime, would not violate the Ex Post Facto Clause under the new post-Booker advisory Guidelines regime.  The Ex Post Facto Clause “bars application of a law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”  Johnson v. United States, 529 U.S. 694, 699 (2000) (internal citations and quotations omitted).

The Supreme Court has interpreted the Ex Post Facto Clause to bar retroactive application of a revised version of a state’s sentencing guidelines, Miller v. Florida, 482 U.S. 423 (1987), and this Court applied that decision to the federal Sentencing Guidelines, see United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir. 1993).  The government argues that this legal precedent no longer applies because, post-Booker, the Sentencing Guidelines are advisory rather than mandatory.  Although this Court has not directly determined whether the now advisory Guidelines regime implicates Ex Post Facto concerns, there is some case law in support of holding that it does.  This Court has acknowledged that “[t]he presence of discretion does not displace the protections of the Ex Post Facto clause.”  Michael v. Ghee, 498 F.3d 372, 382 (6th Cir. 2007).  When evaluating the reasonableness of a sentence, the reviewing court must consider the applicable Guidelines range and failure to do so is “reversible error.”  See United States v. Kosinski, 480 F.3d 769, 779 (6th Cir. 2007). The Sentencing Guidelines are still relevant and are a starting point for determining a defendant’s sentence. Only when the Guidelines range is unable to meet the goals of the Sentencing Guidelines is a sentencing court expected to vary from the Guidelines sentence. 18 U.S.C. § 3553(a).  As a result, the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns.  Ironically, the government is presumably interested in having the 2008 Guidelines apply because it would impact Defendants’ sentence, which demonstrates the Ex Post Facto concerns that come into play when retroactively applying the 2008 Guidelines.  Accordingly, the district court’s determination is AFFIRMED.

I read the sentences in bold above as a formal holding by the Lanham panel that, in the Sixth Circuit, the Ex Post Facto Clause continues to limit/prevent the application of a more severe current (advisory) sentencing guideline if and when the defendant's crime was committed when the applicable guideline was less harsh.  But, as detailed in this prior post, a Fifth Circuit ruling earlier this year cited a 2006 Sixth Circuit ruling (United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006)) for the proposition that the Sixth Circuit did not think ex post facto concerns persisted after Booker.

Whatever might be the law now in the Sixth Circuit, I hope the Supreme Court get to this issue soon.  Indeed, I remain surprised that this issue has not been effective resolved (or even all that effectively litigated) nearly six full years after the guidelines became advisory.

A few related posts on post-Booker ex post issues (with ruling dates in parentheses):

August 24, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Friday, August 20, 2010

Three notable sentencing opinions from the Eighth Circuit

While I was busy teaching this morning, the Eighth Circuit handed down a notable set of published sentencing opinions  Here is the unofficial summaries of the rulings (with links) from the Eighth Circuit's website:

United States v. Earl Foy, Jr., No. 09-3027 (available here):

Record shows defendant was aware of the possible range of sentences he could receive, including the possibility of consecutive sentences, and any Rule 11 violation was unlikely to have impacted his decision to plead guilty; a defendant does not have the right to know his actual sentence before pleading guilty; district court gave defendant adequate notice of its intent to apply an upward variance; district court recognized that the variance from the top of the Guidelines range was substantial and it outlined all of the 3553(a) factors that drove its decision; sentence was procedurally sound and substantively reasonable, and the sentence is affirmed. Judge Bright, dissenting.

United States v. Velma Mireles, No. 09-3267 (available here):

Defendant failed to show court's failure to determine whether the guidelines permitted a traditional departure before sentencing was plain error as the court would have been justified in imposing the same sentence under the traditional departure analysis; district court did not err in basing its sentence on a finding that the conduct was related to drug trafficking. Judge Bye, dissenting.

United States v. Douglas Dvorak, No. 09-3463 (available here):

Evidence was sufficient to support defendant's conviction for money laundering as the government proved defendant withdrew money with the intent of concealing the location of his fraudulently-obtained funds; the interrogatories submitted to the jury rendered harmless any error in the jury instructions regarding the elements of the offense of aggravated identity theft; the indictment was sufficient to charge the offense; no error in ordering two of the eleven aggravated identity theft sentences to run consecutively as the court explicitly referenced the appropriate guidelines sections and provided a reasoned basis for its decision.

Though I am not sure any of these opinion break lots of new jurisprudential ground, the presence of dissents and of other interests facets make all these cases noteworthy.

August 20, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Thursday, August 05, 2010

Notable discussion of the impact of civil commitment on sentencing sex offenders

The Eighth Circuit handed down an interesting little ruling in a sex offender sentencing case today in US v. Jeffries, No. 09-3377 (8th Cir. Aug. 5, 2010) (available here). These excerpts from the opinion provides the highlights of the interesting argument made by the defendant and the Eighth Circuit's analysis:

Jeffries argues that the district court violated the admonition in § 3553(a) to “impose a sentence sufficient, but not greater than necessary” when it cited the need to protect the public as the basis for sentencing him at the top end of his guideline range. Jeffries acknowledges the specific instruction in § 3553(a)(2)(C) that district courts should consider the need for the sentence imposed to “protect the public from further crimes of the defendant.” According to Jeffries, however, the court should not have given so much weight to the need to protect the public because the government has the ability to obtain a civil commitment order and indefinitely detain him after the expiration of his sentence if it establishes that he is sexually dangerous to others....

Jeffries’ argument is based on the incorrect assumption that the recently enacted civil commitment provisions shifted the responsibility for protecting the public from district courts at sentencing to the Department of Justice at the time a prisoner is released. Jeffries has cited nothing in the language of the statute or its legislative history that supports this conclusion. Rather, the new provisions are “a modest addition to a longstanding federal statutory framework, which has been in place since 1855” for the civil commitment of the mentally ill. Comstock, 130 S. Ct. at 1961....

In short, there is no reason to conclude that the provisions at issue were meant to displace a district court’s initial discretion to consider potential danger to the public in choosing a defendant’s sentence. This is particularly true given the long-standing role that such considerations have played in courts’ sentencing decisions and the absence of any indication that Congress intended for the civil commitment of sexually dangerous prisoners to have any effect on sentencing. We believe that the civil commitment statutes are best viewed as a complement to the district court’s sentencing discretion. Accordingly, we conclude that the district court did not abuse its discretion by considering the need to protect the public when it imposed Jeffries’ sentence. The 360-month sentence that the district court imposed was within the properly calculated advisory guideline range and it was not substantively unreasonable.

I am impressed with both the cleverness of the defendant's statutory argument here, as well as by the thorough and thoughtful treatment that the Eighth Circuit gives to the argument as it rejects it.

UPDATE:  A helpful reader sent me this follow-up note on this basic issue and how it was addressed by another circuit court a few years ago:

On the theme of your post on the 8th Circuit's decision about the relevance of prospective civil commitment to sentencing factors, I thought you (and maybe the defendant) might be interested in the Tenth Circuit's opinion two years ago in United States v. Pinson (10th Cir. 2008) (McConnell, J.) (pp. 27-29) (available here):

The Court affirmed a large upward variance for a mentally unbalanced defendant "though not without some qualms."

 "[W]e take a moment to express our concern that courts use upward variances to increase the incarceration time for those who might pose a risk to the public because of their mental health problems. When a prisoner, soon to be released, may pose a substantial risk to himself or to others, the federal civil commitment statute provides a mechanism by which the facility director can further detain the inmate until this risk is ameliorated. . . . In order to impose such long-term commitment, the government must demonstrate at a hearing, by clear and convincing evidence, that the defendant poses a risk to the public because of a mental abnormality or personality disorder that is beyond his control. . . .

When a district court enhances a sentence because the defendant’s mental illness prevents him from controlling his actions, thereby increasing the risk he poses to the public, the district court in effect circumvents the civil commitment procedure and the procedural and substantive protections that go along with it: specifically, the clear and convincing evidence standard is replaced by the lower, preponderance of the evidence standard. This is particularly troubling given that the use of § 4246 provides for evaluation of the defendant’s risk after he has received treatment during incarceration; the prediction of the risk the defendant will pose to the public upon release, made before treatment, is far more imprecise. See Note, Booker, The Federal Sentencing Guidelines, And Violent Mentally Ill Offenders, 121 Harv. L. Rev. 1133, 1144 (2008) . . .

We stop short of prohibiting courts from considering whether a defendant’s mental illness justifies an upward variance because it causes him to pose a risk to the public. But we encourage sentencing courts to consider that civil commitment procedures will be available if the defendant continues to pose a considerable risk to the public after confinement, mitigating the need for a prophylactic upward variance."

August 5, 2010 in Booker in the Circuits, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack