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

Wednesday, August 04, 2010

Second Circuit amends (slightly) its important Dorvee child porn sentencing decision

A helpful reader alerted me to the news that the Second Circuit handed down today this amended version of its important Dovree ruling from a few months ago that reversed as too long a below-guideline sentence for a child porn offender. The same reader sent me this synopsis of what seem to be the significant aspects of the amended opinion:

Apparently, there were two general areas of changes.

First, perhaps in response to the Government's rehearing petition (which is still pending) that attacked the original decision's use of the Second Circuit's sometimes-invoked relaxed plain-error standard when sentencing is involved, the amended decision omits any reference to the relaxed standard, and simply concludes that the error in question was "plain." Relatedly, whereas the original decision stated that another error was reviewed under the normal plain-error standard, the amended decision concludes that that error in fact was preserved.

Second, the amended opinion (at 17) quotes extensively from former ENDY US Attorney Alan Vinegrad's attack on the [PROTECT Act in an issue of the Federal Sentencing Reporter], and (at 19) cites an unpublished comment by a federal defender [the Stabenow paper that has been referenced in many district court opinions when deciding to vary from the child porn guidelined]. That comment is filled with wonderful language for persons wanting to attack sentences under the kiddie-porn-possession Guidelines.

Some related prior federal child porn prosecution and sentencing posts:

August 4, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Thursday, July 29, 2010

Split en banc Eleventh Circuit rules child molester's 17½-year sentence substantively unreasonable

I had an inkling that the full Eleventh Circuit was working on a doozy of an opinion in US v. Irey, a child sex sentencing case in which the circuit nearly a year ago granted en banc rehearing sua sponte after a panel had affirmed a below-guideline sentence (background here and here and here).  And, sure enough, while I was out enjoying an Ohio summer family tradition, the Eleventh Circuit issued an opinion this afternoon in Irey which reverses a below-guideline sentence in for what everyone agreed was an "utterly gruesome" sex offense.  The majority opinion (per Judge Carnes) and multiple other opinions, including dissents, run a total of 256 pages and can be accessed at this link.

Because my belly is full of fried dough, I may not be able to make it through all of the Ivey opinions for a little while.  Fortunately, David Oscar Markus at his blog has this effective summary of the main themes of the various opinion.  And the introduction of the majority opinion by Judge Carnes highlights the heart of the holding:

“The federal courts of appeals review federal sentences and set aside those they find ‘unreasonable.’”  Rita v. United States, 551 U.S. 338, 341, 127 S. Ct. 2456, 2459 (2007) (citing United States v. Booker, 543 U.S. 220, 261–63, 125 S. Ct. 738 (2005)).  With that statement the Supreme Court opened its opinion in the Rita case. Later in the opinion the Court was more specific and emphatic:

In sentencing, as in other areas, district judges at times make mistakes that are substantive.  At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.  Our decision in Booker recognized as much.  

Rita, 551 U.S. at 354, 127 S. Ct. at 2466–67.  We believe that the Supreme Court meant what it said in the Rita opinion and elsewhere about our duty to correct sentencing mistakes. At the same time, we recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if “unreasonable” is a hollow term.  The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to “correct such mistakes when they occur.”

The sentence is substantively unreasonable primarily, but not solely, because of the nature and extent of William Irey’s criminal conduct.  The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children.  But the sexual crimes that Irey committed against some of the most vulnerable children in the world set him apart.  He raped, sodomized, and sexually tortured fifty or more little girls, some as young as four years of age, on many occasions over a four- or five-year period.  He also scripted, cast, starred in, produced, and distributed worldwide some of the most graphic and disturbing child pornography that has ever turned up on the internet.

The horrific nature of Irey’s crimes resulted in an adjusted offense level that would have led to an advisory guidelines range of life imprisonment.  Because the government had charged all of Irey’s crimes in just one count, the statutory maximum was 30 years and that had the effect of reducing the guidelines range to 30 years as well.  The district court, however, did not impose that sentence.  Instead, after deciding that pedophilia was an “illness” that had impaired Irey’s volition, and pronouncing that Irey himself was a victim, like all of the little children he had sexually violated for so long, the district court deviated downward from the 30-year guidelines range and imposed a sentence of only 17½ years.  Our duty to set aside unreasonable sentences requires that we set aside this one.

I suspect that by this weekend I will find my way through all the Irey opinion and will blog some thoughts about the particulars.  As a general matter, I think it is essential for circuit courts step up to their obligation to conduct substantive reasonableness review and to give more content to the substantive provisions of 3353(a).  Now here is hoping that the Eleventh Circuit will also give substantive reasonableness review some teeth to reverse some sentences that seem to be too long in light of 3353(a)'s parsimony provision (even if they are within-guideline sentences) and not just to reverse sentences like William Irey's that seem too short.

Related posts on Irey case:

July 29, 2010 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, July 28, 2010

Second Circuit reverses below-guideline child porn sentence as procedurally unreasonable

The Second Circuit continues its robust work on reasonableness review in child porn cases with an intriguing new little decision reversing a below-guideline sentence in US v. DeSilva, No. 09-2988 (2d Cir. July 28, 2010) (available here). The opinion starts this way:

We are called upon here to determine whether the United States District Court for the Western District of New York committed procedural error by engaging in clearly erroneous factfinding at defendant’s sentencing when it relied upon a psychologist’s report — which was prepared for use at a pretrial bail hearing — to find that defendant, an admitted child molester, posed no danger to the community.  We hold that the District Court did commit such procedural error and therefore remand for resentencing.

The DeSilva opinion includes lots of important discussion of the Second Circuit's child porn ruling in Dorvee and the role that psychologist reports often play in these child porn cases. Here is a snippet:

Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a).  If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.

Nothing in Dorvee is to the contrary. There, as part of our consideration of a sentence’s substantive reasonableness, we observed that the district court placed more emphasis on 18 U.S.C. § 3553(a)(2)(C) as an aggravating factor than the sentencing record could support.  See Dorvee, 604 F.3d at 94.  Specifically, the district court in Dorvee based the defendant’s sentence, at least in part, on the “assumption” that the defendant posed a danger to the community merely because he had committed a child-pornography offense.  Id.  In relying on that “assumption” — which, we found, lacked record support — the district court also ignored, without explanation, a psychologist’s report that tended to suggest that there was not a great need “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C).  The fact that the record as a whole could not sustain the district court’s application of § 3553(a)(2)(C) supported our ultimate conclusion that the sentence was not substantively reasonable. See Dorvee, 604 F.3d at 94.  We did not, however, suggest that a district court must, without scrutiny, adopt a psychologist’s conclusion that a particular defendant poses no danger to the community.

In short, nothing in Dorvee compels a district court to accept a psychologist’s conclusions at face value.  It is possible, of course, that such a psychologist’s report may be accurate.  But district courts should scrutinize such reports with the same diligence required during any fact-finding at sentencing, especially if the report’s conclusion is at odds with the defendant’s conduct....

Dr. Joseph’s report dealt only with whether DeSilva would be a danger to the community if released to his parents pending trial.  What was relevant for sentencing, however, was whether DeSilva would pose a danger to society once he had served his sentence and was released from prison.  No one suggests that the District Court could have ordered that DeSilva be released to his parents following his term of imprisonment, and thus Dr. Joseph’s opinion had only minimal relevance to whether DeSilva would be likely to abuse another boy after his sentence was complete.  As such, the report should have had little bearing on the District Court’s sentencing determination; it was not, in any event, an appropriate authority for the Court’s finding that DeSilva posed no “danger to the community.”  See J.A. 168-69.  In relying on Dr. Joseph’s report, therefore, the District Court “‘select[ed] a sentence based on [a] clearly erroneous fact[]” and thereby committed “‘procedural error.’” Dorvee, 604 F.3d at 90 (quoting Gall, 552 U.S. at 51).

July 28, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Monday, July 19, 2010

"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"

The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered."  There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):

The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects.  There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing.  Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form.  And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.

I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis.  But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece.   Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.

And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a).  If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences.  Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.

July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack

Sixth Circuit provides some intriguing advice during plain error sentence reversal

A sixth Circuit panel does some interesting work this morning in US v. Wilson, No. 08-1963 (6th Cir. July 19, 2010) (available here), which gets started this way:

Lashawn Wilson (“Wilson”) pleaded guilty to a single count of mail fraud, in violation of 18 U.S.C. § 1341, and was sentenced to 48 months of imprisonment. She now brings this sentencing appeal, arguing that the district court committed plain error by selecting her sentence based on the clearly erroneous premise that she had stolen one thousand money orders and five hundred cashier's checks. We agree, and we therefore vacate her sentence and remand for resentencing.

Though any plain error sentence reversal is worth noting, footnote one of the Wilson majority opinion (per Judge Boggs) and the concurrence (per Judge Martin with Judge Cole joining) are what really caught my attention.  Here is the footnote (emphasis in original):

Wilson does not object to the district court’s use of a written sentencing opinion to explain the reasons for her sentence.  We note, however, that this practice is somewhat disconcerting. Indeed, the use of a pre-prepared sentencing opinion in lieu of an oral recitation creates the worrisome impression that the district court’s decision was etched in stone before the parties had the opportunity to be heard. If that were the case, the procedural safeguards enshrined in Federal Rule of Criminal Procedure 32(i) would be drained of meaning.  Consequently, we expressly encourage judges who prepare opinions in advance to be particularly mindful of Rule 32(i)’s requirements. In addition, we observe that a final sentencing decision should not be reached until after the hearing has been completed.

Here is how Judge Martin piles on at the start of his Wilson concurrence:

I concur in the lead opinion, but I feel compelled to comment upon the practice of a judge walking into a sentencing hearing with an opinion already prepared.  The lead opinion quite properly discusses the matter in a footnote, as neither party directly took issue with the practice. I write separately because the practice deserves the kind of piling on that cannot be accomplished in a footnote.

July 19, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, July 16, 2010

Eleventh Circuit affirms convictions and 3-year prison sentence of Wesley Snipes for tax crimes

A busy week for notable federal circuit court rulings in criminal cases concludes with a major league Eleventh Circuit ruling affirming the convictions and sentence of Passenger 57 for tax crimes.  The unanimous panel decision in US v. Snipes gets started this way:

Defendant Wesley Trent Snipes appeals from his criminal convictions, after a jury trial, on three counts of willful failure to file individual federal income tax returns for calendar years 1999, 2000, and 2001, in violation of 26 U.S.C. § 7203. Snipes alleges that the trial court committed reversible error in sentencing, jury instructions, and on issues of venue.  After thorough review, we affirm the rulings and judgment of the district court in all respects.

The final 10 pages of the 35-page opinion in Snipes discusses various sentencing issues surrounding Snipes efforts to avoid the tax collectors on the money train.  But Blade is not going to be a big fan of any aspect of a ruling that confirms that even a celebrity like Snipes cannot jump out of his tax obligations or zigzag away from a prison term.  (Hat tip to IMDB for some Snipes' movie titles to (poorly) incorporate into this post.)

July 16, 2010 in Booker in the Circuits, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (3) | TrackBack

Split Sixth Circuit expressly holds that fast-track disparity is proper basis for variance

In an important ruling in favor of broad post-Booker sentencing discretion, a split Sixth Circuit panel today in US v. Camacho-Arellano, No. 07-5427 (6th Cir. July 16, 2010) (available here), holds that fast-track dispartiy provides a sound basis for a district court to vary from the immigration sentencing guidelines. Here is the start of the majority opinion in Camacho-Arellano:

Isidro Camacho-Arellano, a Mexican citizen, pleaded guilty to unlawful reentry into the United States after deportation and was sentenced to fifty-seven months of incarceration.  Camacho-Arellano seeks a remand for the district judge to consider whether to impose a lower sentence based on the disparities created by the existence of “fast-track” early-disposition programs for illegal-reentry cases in other jurisdictions.  He also argues that the district judge’s reliance on incorrect information about the prevalence of fast-track programs rendered the sentence procedurally unreasonable.  Because Camacho-Arellano was sentenced before Kimbrough v. United States, 552 U.S. 85 (2007), and because Kimbrough permits district court judges to impose a variance based on disagreement with the policy underlying a guideline (here, the fast-track disparity), we VACATE Camacho-Arellano’s sentence and REMAND the case to the district court for resentencing.

The dissenting opinion by Judge Kennedy begins this way:

Because I believe that this is not an appropriate case to determine whether, after Kimbrough v. United States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840 (2009), a district court must consider a defendant’s argument that disparities created by some districts’ fasttrack, early-disposition programs for illegal-reentry defendants warrant a lower sentence, I must respectfully dissent.

July 16, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Second Circuit reverses another child porn sentence based on its Dorvee opinion

As regular readers may recall, the Second Circuit issued back in May a significant reasonableness ruling in the child porn Dorvee case (basics here; commentary here).  Today in US v. Tutty, No. 09-2705 (2d Cir. July 16, 2010) (available here), another Second Circuit panel relies on Dorvee to reverse another child porn sentence.  Here is how the opinion starts:
Defendant-appellant Jason E. Tutty pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).  He was sentenced by the United States District Court for the Western District of New York (Siragusa, J.) to 168 months' imprisonment.  On appeal, Tutty challenges the substantive reasonableness of his sentence. Upon review of the record, we conclude that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants.  Moreover, as we recently recognized in United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the child pornography Guidelines present important policy considerations, and unless they are "carefully applied," they "can easily generate unreasonable results." Id. at 98.  We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the policy concerns addressed in Dorvee.

July 16, 2010 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack