Sunday, October 12, 2014
"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"
The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:
Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.
Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.
This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.
Wednesday, October 08, 2014
Ninth Circuit panel chastises prosecutors for breaching "fast-track" plea agreement
A Ninth Circuit panel has handed down a lengthy, must-read opinion today in US v. Morales Heredia, No. 12-50331 (9th Cir. Oct. 8, 2014) (available here). The start of the opinion should make clear to federal practitioners, especially in border districts, why this case is notable:
Every day along the southwest border, previously deported aliens lacking entry documents are arrested, detained, and charged with illegal reentry. Once convicted, they serve a term of imprisonment, and then are again deported. The numbers are so great that federal prosecutors in these border states began to resort to an efficient means of securing a conviction: a “fast-track” plea agreement that binds the government and the defendant, but not the district judge.
The government secures the benefit of a streamlined process that minimizes the burden on its prosecutorial resources. It need not go before a grand jury to secure an indictment; battle motions, including collateral attacks on the underlying deportation; prosecute a jury trial; or oppose an appeal. The defendant, in turn, waives constitutional and other rights and agrees to a term of incarceration and, often,a term of supervised release ordinarily discouraged by the U.S. Sentencing Guidelines. What is the incentive for the defendant to take this deal? The prosecutor binds his office to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a “united front” in favor of a reduced sentence to the district judge. If the judge does not accept this sentence, the defendant may walk away from his guilty plea, and proceedings will begin anew.
Paul Gabriel Morales Heredia (Morales) was one such defendant. But in Morales’s case, the orderly and efficient plea-bargaining process did not play out as intended. The government extended the promise of a reduced prison term with one hand and took it away with the other. The prosecutor’s recommendation of a six-month prison term rang hollow as he repeatedly and unnecessarily emphasized Morales’s criminal history, adding for good measure his personal opinion that “defendant’s history communicates a consistent disregard for both the criminal and immigration laws of the United States.” Morales’s counsel timely objected and sought specific performance of the plea agreement. The district judge denied this relief on the irrelevant ground that the prosecutor’s statements did not influence him. We conclude that Morales is entitled to relief, and we vacate his sentence and remand for further proceedings before a different judge.
Monday, October 06, 2014
Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
Regular readers likely recall a number of posts about the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, this case, Jones v. US, No. 13-10026, was consider by the Justices at their "long conference." When there was subsequently no announcement of cert being granted last week, I assumed today's SCOTUS order list (noted here) would include Jones v. US, No. 13-10026, on the long list of cases for which certiorari was denied.
But, while the Justices surprised many court-watchers today by denying cert on all the same-sex marriage cases, they surprised me by "relisting" Jones v. US, as noted in this official docket report, for consideration again at the Court's conference this coming Friday. This is relatively big news — to the extent that not making a cert decision is big news — because a relist is usually a strong signal that one or more Justices are strongly interested in the case and want some more time to mull over the possibility of a grant of cert or some other significant action.
Still, as the title of this post is intended to connote, I am trying real hard to resist getting excited by the prospect of cert being granted in Jones (and/or in another acquitted conduct case) real soon. It is quite possible — dare I say perhaps even likely — that this relist is just a sign that a Justice or two is working on a dissent from the denial of cert review and need another few days to put the finishing touches on that dissent. Indeed, given how crisply the acquitted conduct issue is presented in Jones and how many prior petitions have failed to garner the votes need for a cert grant in recent years, it is hard to imagine that the Justices want or need more time to mull this over. But, while the Dougie Downer voice in my head will keep telling me not to get too excited by all this, the optimist voice in my head keeps imaginging that the big baseball and Sixth Amendment fans on the Supreme Court, namely Justices Scalia and Sotomayor, are going to convince enough of their colleague to finally be willing to "play Ball" and take up the acquitted conduct issue in Jones v. US.
Previous related posts on this case and acquitted conduct sentencing enhancements:
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
Sunday, October 05, 2014
Concurrence laments "trend" of federal prosecutors seeking "significantly enhanced terms of imprisonment under the guise of 'relevant conduct'"
An otherwise unremarkable federal drug sentence appeal in the US v. St. Hill, No. 13-2097 (1st Cir. Oct. 1, 2014) (available here) took on some blogworthy character because of a lengthy concurrence by Judge Torruella. Here is the start, heart and close of Judge Torruella's opinion in St. Hill:
I join the court's opinion but write separately to note a disturbing trend in criminal prosecutions. All too often, prosecutors charge individuals with relatively minor crimes, carrying correspondingly short sentences, but then use section 1B1.3(a) of the Sentencing Guidelines ("Guidelines") to argue for significantly enhanced terms of imprisonment under the guise of "relevant conduct" — other crimes that have not been charged (or, if charged, have led to an acquittal) and have not been proven beyond a reasonable doubt....
St. Hill was subject to an additional six to eight years in prison due to isolated drug sales not directly related to the twenty oxycodone pills which led to his conviction, all of which he was never arrested for, never charged with, never pleaded guilty to, and never convicted of by a jury beyond a reasonable doubt. This is a prime example of the tail wagging the dog. Even more disturbing: the government could, if it so chooses, still charge St. Hill for these uncharged crimes in a separate proceeding, and he could be convicted and sentenced again without protection from the Double Jeopardy Clause. See Witte v. United States, 515 U.S. 389, 406 (1995)....
[I]f the government intends to seek an increase in a criminal defendant's sentence for conduct that independently may be subject to criminal liability, the government should charge that conduct in the indictment. The Fifth Amendment requires that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law," U.S. Const. amend. V, while the Sixth Amendment provides an accused with the right to a trial "by an impartial jury," id. amend. VI. The practice of arguing for higher sentences based on uncharged and untried "relevant conduct" for, at best, tangentially related narcotics transactions seems like an end-run around these basic constitutional guarantees afforded to all criminal defendants. Cf. Alleyne, 133 S. Ct. at 2162 ("When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury."). The government's role is to ensure justice, both to the accused and to the public at large; it is not to maximize conviction rates and argue for the greatest possible sentence. And, while it is unclear to me whether this trend is due to shaky police work resulting in cases that cannot be proven beyond a reasonable doubt, prosecutorial laziness, or other less nefarious factors, it remains troubling regardless....
Nevertheless, as a judge, it is my responsibility to faithfully apply the law as articulated by both the Supreme Court and this court, and I do not dispute that both the Guidelines and our interpretation of them currently condone this questionable process. See Witte, 515 U.S. at 396, 406 (finding no constitutional violation where the sentence was based in part on a cocaine offense that defendant "clearly was neither prosecuted for nor convicted of"); United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) (finding no constitutional violation where the district court "choose[s] to give weight to the uncharged offenses in fixing the sentence within the statutory range if it finds by a preponderance of evidence that they occurred"). I nonetheless question whether this interpretation should be revisited — either by the courts or by revisions to the Guidelines.
Thursday, October 02, 2014
Notable new empirical research on citizenship's impact on federal sentencing
I just came across this notable new empirical article on federal sentencing patterns published in American Sociological Review and authored by Michael Light, Michael Massoglia, and Ryan King. The piece is titled "Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts," and here is the abstract:
When compared to research on the association between immigration and crime, far less attention has been given to the relationship between immigration, citizenship, and criminal punishment. As such, several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered. Are citizens treated differently than noncitizens — both legal and undocumented — in U.S. federal criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by citizenship status? Has the association between citizenship and sentencing remained stable over time? And are punishment disparities contingent on the demographic context of the court?
Analysis of several years of data from U.S. federal courts indicates that citizenship status is a salient predictor of sentencing outcomes — more powerful than race or ethnicity. Other notable findings include the following: accounting for citizenship substantially attenuates disparities between whites and Hispanics; the citizenship effect on sentencing has grown stronger over time; and the effect is most pronounced in districts with growing noncitizen populations. These findings suggest that as international migration increases, citizenship may be an emerging and powerful axis of sociolegal inequality.
Wednesday, October 01, 2014
This is your federal sentencing data on drugs (after the minus-2 amendment)
I could not help but think about the famous 1980s "This Is Your Brain on Drugs" campaign from Partnership for a Drug-Free America once I took a close look at the US Sentencing Commission's latest greatest data on federal sentencing appearing now in this Third Quarter FY 2014 Sentencing Update. The famous "egg" ad make clear that drugs could scramble your brain, and a "Note to Readers" appearing early in the latest USSC data report makes clear that a recent amendment to the drug sentencing guidelines has started to scrambling cumulative federal sentencing data.
Here is the USSC's "Note to Readers," which highlights why it will prove especially challenging to fully assess and analyze federal sentencing practices in FY14 because of mid-year drug sentencing reforms:
On April 30, 2014, the Commission submitted to Congress a proposed amendment to the sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses. That amendment will become effective on November 1, 2014 and will be designated as Amendment 782 in the 2014 edition of Appendix C to the Guidelines Manual. Amendment 782 changes the manner in which the statutory mandatory minimum penalties for drug trafficking offenses are incorporated into the base offense levels in the drug quantity table in section 2D1.1 of the Guidelines Manual. Specifically, the amendment generally reduces by two levels the offense levels assigned to the quantities described in section 2D1.1 and makes corresponding changes to section 2D1.11. On July 18, the Commission voted to give retroactive effect to Amendment 782, beginning on November 1, 2014.
On March 12, 2014, the Department of Justice issued guidance to all United States Attorneys regarding the sentencing of drug trafficking offenders in anticipation of an amendment to the guidelines lowering the base offense levels for drug trafficking cases. In that guidance, the Attorney General authorized prosecutors to not object to a defense request for a two-level variance from the sentencing range calculated under the current version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met. Judges and probation offices have informed the Commission that in some districts the prosecutors themselves are requesting that the court depart from the sentencing range calculated under the Guidelines Manual and impose a sentence that is two levels below that range.
The data the Commission is reporting in this Preliminary Quarterly Data Report appears to reflect those practices. On Table 1 of this report, the Commission reports the rate at which the sentence imposed in individual cases was within the applicable guideline range. The rate through the third quarter of fiscal year 2014 was 47.2 percent. This compares with 51.2 percent in fiscal year 2013. However, as can be seen from Tables 1-A and 1-B, most of this decrease is attributable to sentences imposed in drug offenses. As shown on Table 1-A, the within range rate in cases not involving a drug offense was 53.3 percent through the third quarter of fiscal year 2014, compared with 54.8 percent in fiscal year 2013.
Table 1-B presents data for drug cases only. As shown on that table, the within range rate for sentences imposed in drug cases through the third quarter of fiscal year 2014 was 30.0 percent, a decrease of more than eight percentage points from the rate of 38.8 percent at the end of fiscal year 2014. This decrease in the within range rate resulted from an increase in the rate at which the government requested a below range sentence, from 39.4 percent in fiscal year 2013 to 45.7 percent through the third quarter of fiscal year 2014, as well as an increase in the rate of non-government sponsored below range sentences, from 20.8 percent in fiscal year 2013 to 23.5 percent through the third quarter of fiscal year 2014.
Because this change in sentencing practices did not occur until more than five months into the fiscal year, the impact of this change is not fully reflected in the average data presented in this cumulative quarterly report. The Commission expects a further reduction in the within range rate for drug offenses to be reflected in the data for the completed fiscal year 2014.
Tuesday, September 23, 2014
High-profile commentator Dinesh D’Souza gets below-guideline probation sentence for violating federal campaign finance laws
As reported in this New York Times piece, headlined "D’Souza Is Spared Prison Time for Campaign Finance Violations," another notable white-collar defendant got a below-guideline federal sentence today thanks to judges now having broader post-Booker sentencing discretion. Here are the details:
The conservative author and documentary filmmaker Dinesh D’Souza was spared prison time on Tuesday after pleading guilty earlier this year to violating federal campaign finance laws.
Judge Richard M. Berman of Federal District Court in Manhattan handed down a probationary sentence — including eight months in a so-called community confinement center — and a $30,000 fine, bringing to a close a high-profile legal battle that started with Mr. D’Souza’s indictment in January for illegally using straw donors to contribute to a Republican Senate candidate in New York in 2012.
Mr. D’Souza, who has accused President Obama of carrying out the “anticolonial” agenda of his father, initially argued that he had been singled out for prosecution because of his politics. In April, his lawyer, Benjamin Brafman, filed court papers contending that Mr. D’Souza’s “consistently caustic and highly publicized criticism” of Mr. Obama had made him a government target.
A month later, however, on the morning he was scheduled to go on trial, Mr. D’Souza pleaded guilty. “I deeply regret my conduct,” he told the court. Even with his fate hanging in the balance, Mr. D’Souza plowed ahead with his thriving career as a right-wing provocateur. Over the summer, while awaiting his sentencing, he published the book “America: Imagine a World Without Her,” which reached No. 1 on The New York Times’s nonfiction hardcover best-seller list, and a companion documentary film that has made $14.4 million at the box office.
The government charged Mr. D’Souza, 53, with illegally arranging to have two people — an employee and a woman with whom he was romantically involved — donate $10,000 each to the campaign of an old friend from Dartmouth College, Wendy E. Long, with the understanding that he would reimburse them in cash for their contributions. Ms. Long was challenging Senator Kirsten E. Gillibrand, a Democrat.
According to prosecutors, Mr. D’Souza lied to Ms. Long about the donations, reassuring her that “they both had sufficient funds to make the contributions.” Ms. Long pressed Mr. D’Souza on the issue after the election, and he acknowledged that he had reimbursed the two people, the government said, but told Ms. Long not to worry because she had not known about it.
When Mr. D’Souza entered his guilty plea, Judge Berman said he could face up to two years in prison. The federal sentencing guidelines call for 10 to 16 months, but the final decision is up to the judge’s discretion. “Judges are all over the map on these reimbursement cases,” said Robert Kelner, a campaign-finance lawyer at Covington & Burling.
Mr. D’Souza’s lawyers asked for leniency, arguing in a court filing that their client had “unequivocally accepted responsibility” for his crime. “We are seeking a sentence that balances the crime he has regrettably committed with the extraordinary good Mr. D’Souza has accomplished as a scholar, as a community member and as a family member,” they wrote, requesting that he be sentenced to probation and community service at the Boys and Girls Clubs of Greater San Diego.
The government rebutted Mr. D’Souza’s claims, highlighting both the seriousness of his offense and what it called “the defendant’s post-plea failure to accept responsibility for his criminal conduct.” According to the government, Mr. D’Souza assumed a different posture with respect to his case when he was not before the court. It cited a television interview he gave two days after his plea in which he “repeatedly asserted that this case was about whether he was selectively prosecuted.”
This story reminds me why I am so sad Bill Otis no longer comments on this blog; I am so eager to hear from him directly whether he thinks this case is yet another example of, in his words, allowing "naïve and ideologically driven judges" to make sentencing determinations and therefore further justifies embracing mandatory sentencing schemes that would always require judges to impose prison terms on these sorts of non-violent offenders because these sorts of offenses do great harm even if they do not involve violence.
Based on my limited understanding of the crime and criminal here, I feel fairly confident asserting that a prison term for Mr. D’Souza would have achieved little more than spending extra federal taxpayer dollars without any real public safety return on that investment. But Bill and I rarely see eye-to-eye on these matters, and thus I am eager for a distinct perspective in this notable white-collar case.
September 23, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack
Monday, September 22, 2014
Sixth Circuit reverses Ponzi scheme sentence because loss calculation failed to credit monies paid out
This morning a Sixth Circuit panel has handed down a notable ruling about loss calculations in the federal sentencing of a Ponzi schemer. Here is how the panel opinion in US v. Snelling, No. 12-4288 (6th Cir. Sept. 22, 2014) (available here) starts and concludes:
Defendant-Appellant Jasen Snelling appeals a 131-month prison sentence imposed pursuant to a plea agreement. In the agreement, Snelling admitted to charges of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion for his part in an investment scheme that defrauded investors of nearly $9 million. Snelling challenges the sentence based on an allegedly faulty Guidelines-range calculation that employed a loss figure that did not take into account the sums paid back to his Ponzi scheme’s investors in the course of the fraud.
For the reasons below, we vacate the sentence of the district court and remand the case for resentencing.....
Admittedly, there is intuitive appeal to the government’s argument that Snelling should not be allowed to benefit from the payments he made “not to mitigate the losses suffered . . . but to create the means to convince new victim-investors to pay him even more money.” We need not reflect, however, on whether it is unseemly for Snelling to benefit from the money he paid out to investors in an effort to perpetuate his Ponzi scheme. Undoubtedly, it is. The only question we must consider is whether the district court correctly applied the Guidelines and whether it used a correct Guidelines range.
An accurately calculated Guidelines range is necessary for a procedurally reasonable sentence — any error in calculating the Guidelines range cannot survive review. See Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (“[W]e must ensure that the district court correctly calculated the applicable Guidelines range which are the starting point and initial benchmark of its sentencing analysis.”) (internal alterations and quotation marks omitted). As appealing as the government’s argument may be, it does not comport with the text of the Guidelines. Accordingly, the district court was in error when it declined to reduce the loss figure by the value of the payments made by Snelling to his investor victims in perpetuating his Ponzi scheme.
Wednesday, September 17, 2014
Woman who bought guns for killer gets (way-above-guideline) eight-year federal prison sentence
As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:
The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.
On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.
"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....
Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.
Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."
Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."
Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.
Related prior posts:
- Fascinating federal "gun control" criminal charges in wake of NY ambush murder-suicide
- Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
Tuesday, September 16, 2014
Terrific collection of materials on-line as USSC's "Annual National Seminar Goes Paperless"
Though not nearly as historic or controversial as Bob Dylan going electric, I was still excited and intrigued to see a new item on the US Sentencing Commission's website announcing that this week's upcoming USSC Annual National Seminar "is going paperless." What this means, as the notice explains, is that all of the USSC's Seminar materials are now available online at this link.
I recommend that everyone interested in federal sentencing data and developments take the time to click through and scroll down through the USSC's Seminar agenda. One can find lots of interesting articles, data runs and presentation materials that provide information and insights about modern federal sentencing that would be hard to find anywhere else. Kudos to the Commission for going paperless and for enabling folks like me who cannot make it to this year's event to still access a lot of the materials that are to be presented.
Monday, September 08, 2014
Intriguing concurring sentiments about federal child porn downloading cases from Judges Noonan and Reinhardt
Late last week, two judges on the Ninth Circuit made noteworthy an otherwise forgettable decision in US v. Hardrick, No. 13-50195 (9th CIr. Sept. 4, 2014) (available here), through their concurring opinions in a run-of-the-mill affirmance of federal conviction of a child pornography downloader. Here is the text of Judge Noonan's Hardrick concurring addition:
I write to underline the need for further action to discourage a crime whose actual extent is unknown but whose commission is increasingly prosecuted as a serious federal offense. As pointed out in a thoughtful communication by Alexandra Gelber, Assistant Deputy Chief, Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice: Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but “include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.” See Alexandra Gelber, Response to “A Reluctant Rebellion” 7 (July 1, 2009), http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. Obviously, lack of criminal history is not a defense. It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment — the probability Judge Reinhardt effectively develops — could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions. Why should the government not advertise the law and its penalty? Better to stop a crime’s commission than mop the consequences.
Judge Reinhardt's comment are a bit more extended, and here are excerpts:
Like Judge Noonan, I concur in the unanimous opinion of the court. Also, like Judge Noonan, I am disturbed about the practical impact of the child pornography laws upon otherwise law-abiding individuals. I do not agree, however, that advertising the legal consequences is a solution to the problem. Rather, it is my view that “psychological impairment” is in most, if not all, cases the cause of the criminal conduct. Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now. Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution. See 18 U.S.C. § 2252(b)(1). Nor are mandatory sentences of fifteen to forty years for a second. See id.....
I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography. I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.
There is nothing new in what I say here, but it is a problem that I believe deserves more attention than we have given it thus far. Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on innocent children. All it accomplishes is to create another class of people with ruined lives — victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner.
September 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack
Thursday, September 04, 2014
Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges
As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:
Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.
A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.
Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption." Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."
The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012. The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans. They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.
The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify. His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....
Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses. Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.
My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.
Tuesday, September 02, 2014
"A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion"
The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:
Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.
Thursday, August 28, 2014
At third federal sentencing, elderly child porn defendant gets one year in prison and lawyer pledges SCOTUS appeal
Regular readers and hard-core federal sentencing fans are familiar with the long-running dispute over the sentencing of child porn downloader Richard Bistline. The latest chapter of this saga, but apparently not the last, unfolded in federal district court yesterday as reported in this Columbus Dispatch article, headlined "Child-porn possessor finally gets harsher sentence: 1 year in prison." Here are excerpts:
A Knox County man at the center of a fight about prison sentences for people convicted of possessing child pornography won’t be out of the spotlight anytime soon. Richard Bistline, 71, was sentenced yesterday to a year and a day in federal prison by U.S. District Judge George C. Smith, who also ordered 10 years of supervised release. Bistline also must register as a sex offender.
Bistline’s attorney, Jonathan T. Tyack, immediately said he will appeal the case in the hope that it eventually will be considered by the U.S. Supreme Court....
It was the third time that Bistline, of Mount Vernon, had been sentenced for his 2009 conviction on one count of possession of child pornography. Sentencing guidelines set Bistline’s prison term at five to six years, although judges have discretion.
His case pingponged from district court to the 6th U.S. Circuit Court of Appeals twice after federal Judge James Graham refused to sentence Bistline to lengthy prison time. Instead, he sentenced him in 2010 to one day in prison, 30 days of home confinement and 10 years of supervised probation.
Assistant U.S. Attorney Deborah Solove appealed, arguing that prison time was needed, and the 6th Circuit ordered Graham to resentence Bistline. In 2013, Graham ordered the same sentence with three years of home confinement. Solove appealed again, and the 6th Circuit ruled that the sentence still was not adequate.
Graham was removed from the case, paving the way for Smith’s sentence yesterday. “The 6th Circuit has clearly spoken and is requiring me to impose a custodial sentence,” Smith said. “I hope my colleagues and the sentencing commission continue to shed light on these very important policies.” Smith then stayed the sentence and said Bistline could remain out on bond until his appeal is decided.
Tyack had asked Smith to sentence his client to one day in prison and 10 years of supervised probation. “At the end of the day, the Court of Appeals is attempting to dictate to this court what sentence it should impose,” Tyack said. “It’s inappropriate.”
Tyack said he hopes the Supreme Court will arrive at that conclusion in Bistline’s case. “He’s caught up in a legal fight that will ultimately define the boundaries between the court of appeals and district court,” Tyack said.
Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer revealed 305 images and 56 videos of children posing naked or involved in sex acts with adults. Solove said Bistline sought out child pornography for more than a year for sexual gratification. She asked for a five-year prison sentence.
Tyack said in court documents in May that “a 71-year-old inmate with Mr. Bistline’s health problems is likely to suffer greater punishment than the average inmate because the Bureau of Prisons often fails to provide adequate or even necessary medical treatment.” Bistline has a pacemaker, high blood pressure and hearing loss, among other medical problems.
Graham has been outspoken about Bistline’s case and about the federal sentencing guidelines for defendants who have been charged with possession of child pornography. He wrote a lengthy law-review article about the case that was published in December, and he has spoken about the guidelines at court hearings for other defendants charged with child-porn possession.
Wednesday, August 27, 2014
"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"
The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN. Here is the abstract:
For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences. The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.
Part I describes the previous rebellions. Part II introduces the current rebellion. Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics. Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments. Part III concludes.
August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, August 26, 2014
Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details:
Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.
Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.
The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed. The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes. A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.
To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...
Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.
In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.
The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters. "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.
In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual. She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.
Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."
"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.
Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.
The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.
August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, August 24, 2014
Will third time be a charm in federal sentencing of child porn defendant Richard Bistline?
Regular readers and those who follow closely federal sentencing of child pornography offender will recall the name Richard Bistline: as detailed in posts linked below, the Bistline's sentencing created a kind of battle royale between US District Judge James Graham and the Sixth Circuit. This coming week, as reported in this Columbus Dispatch article, Bistline is scheduled to be resentenced yet again, this time by a different district judge after Judge Graham's prior sentences were twice found to be substantively unreasonable by the Sixth Circuit. Here are excerpts from the Dispatch article providing the backstory:
Are federal sentencing guidelines for possessing child pornography too harsh? Calling the guidelines “draconian,” U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.
Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. “The purveyors or producers of these images deserve the most severe punishment we can give them. My concern is the people who end up possessing it.”
Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession. His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison, 30 days of home confinement and 10 years of probation. The recommended sentence under federal guidelines was five to six years.
Assistant U.S. Attorney Deborah A. Solove appealed Graham’s sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense. The appeals court ordered Graham to resentence the defendant. But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years. Solove again appealed, and the 6th Circuit court again ruled that Graham’s sentence was too lenient. The court removed Graham from the case.
Judge George C. Smith is to sentence Bistline on Wednesday....
Graham says the guidelines for child-porn possession are outdated. Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way. Adding points for possession of numerous images is unjustified because “current technology produces numerous images with one key stroke or mouse click,” he said....
In its second Bistline ruling, the appeals court wrote that possessing child porn “is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person.” Possession becomes a crime “when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year."
Graham isn’t alone in his contention that the guidelines are outdated. A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders....
Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences. Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.
Graham said most of the child-porn-possession defendants he sees have no previous criminal record and “are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today’s society, affecting people of all ages.” Just by being found guilty, he said, they face ruined lives, for both themselves and their families. “They need to stop it,” he said. “The men who are doing this are going to get caught.”
Prior related posts:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal
- "Should defendants’ age, health issues be sentencing factors?"
- Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence for child porn downloading in Bistline
Thursday, August 14, 2014
US Sentencing Commission finalizes its policy priorities for coming year
As detailed in this official press release, the "United States Sentencing Commission today unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties." Here is more from the release:
The Commission once again set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the “safety valve” statute which exempts certain low-level non-violent offenders from mandatory minimum penalties....
The Commission also set out its intention to consider potential changes to the guidelines resulting from its multi-year review of federal sentences for economic crimes. “For the past several years, we have been reviewing data and listening to key stakeholders to try to determine whether changes are needed in the way fraud offenses are sentenced in the federal system, particularly in fraud on the market cases,” Saris said. “We look forward to hearing more this year from judges, experts, victims, and other stakeholders on these issues and deciding whether there are ways the economic crime guidelines could work better.”
The Commission will continue to work on multi-year projects to study recidivism comprehensively, including an examination of the use of risk assessment tools in the criminal justice system. The Commission will also consider whether any amendments to the guidelines or statutory changes are appropriate to facilitate consistent and appropriate use of key sentencing terms including “crime of violence” and “drug trafficking offense.”
The Commission is undertaking new efforts this year to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.
The official list of USSC priorities is available at this link, and I found these items especially noteworthy (in addition to the ones noted above):
(4) Implementation of the directive to the Commission in section 10 of the Fair Sentencing Act of 2010, Pub. L. 111–220 (enacted August 3, 2010) (requiring the Commission, not later than 5 years after enactment, to “study and submit to Congress a report regarding the 3 impact of the changes in Federal sentencing law under this Act and the amendments made by this Act”)....
(10) Beginning a multi-year effort to simplify the operation of the guidelines, including an examination of (A) the overall structure of the guidelines post-Booker, (B) cross references in the Guidelines Manual, (C) the use of relevant conduct in offenses involving multiple participants, (D) the use of acquitted conduct in applying the guidelines, and (E) the use of departures.
Wednesday, August 13, 2014
Noting the push for reforming the fraud federal sentencing guidelines
This lengthy new AP article, headlined "Sentencing Changes Sought for Business Crimes," discusses the on-going push to reform the federal sentencing guidelines for fraud offenses. Here are excerpts:
The federal panel that sets sentencing policy eased penalties this year for potentially tens of thousands of drug dealers. Now, defense lawyers and prisoner advocates are pushing for similar treatment for an arguably less-sympathetic category of defendants: swindlers, embezzlers, insider traders and other white-collar criminals.
Lawyers who have long sought the changes say a window to act opened once the U.S. Sentencing Commission cleared a major priority from its agenda by cutting sentencing ranges for nonviolent drug dealers. The commission, which meets Thursday to vote on priorities for the coming year, already has expressed interest in examining punishments for white-collar crime. And the Justice Department, though not advocating wholesale changes, has said it welcomes a review.
It's unclear what action the commission will take, especially given the public outrage at fraudsters who stole their clients' life savings and lingering anger over the damage inflicted by the 2008 financial crisis.
Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency's sake. The discussion about revamping white-collar sentences comes as some federal judges have chosen to ignore the existing guidelines as too stiff for some cases and as the Justice Department looks for ways to cut costs in an overpopulated federal prison system....
The commission's action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say. Just as drug sentences have historically been determined by the amount of drugs involved, white-collar punishments have been defined by the total financial loss caused by the crime. Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.
A 2013 proposal from an American Bar Association task force would do exactly that, encouraging judges to place less emphasis on how much money was lost and more on a defendant's culpability. Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually stole money or merely intended to. The current structure, lawyers say, means bit players in a large fraud risk getting socked with harsh sentences despite playing a minimal role....
No one is seeking leniency for imprisoned financier Bernie Madoff, who's serving a 150-year sentence for bilking thousands of people of nearly $20 billion, or fallen corporate titans whose greed drove their companies into the ground. But defense lawyers are calling for a sentencing structure that considers the broad continuum of economic crime and that better differentiates between, for example, thieves who steal a dollar each from a million people versus $1 million from one person.
Any ambitious proposal will encounter obstacles. It's virtually impossible to muster the same public sympathy for white-collar criminals as for crack-cocaine defendants sentenced under old guidelines now seen as excessively harsh, which took a disproportionate toll on racial minorities. The drug-sentencing overhaul also was promoted as fiscally prudent, because drug offenders account for roughly half the federal prison population. Tea Party conservatives and liberal groups united behind the change.
In comparison, the clamor for changing white-collar guidelines has been muted. The Justice Department, already criticized for its paucity of criminal prosecutions arising from the financial crisis, has said it's open to a review but has not championed dramatic change. "I don't think there's a political will for really cutting back or retooling the guidelines," said Columbia University law professor Daniel Richman.
Tuesday, August 12, 2014
Eleventh Circuit finds probation sentence for public corruption substantively unreasonable
All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:
“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) . And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.
In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments. For the reasons which follow, we hold that such a sentence was indeed unreasonable.
Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion. Here is how it gets started (with footnotes omitted):
I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed. In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing. The truth is that it was the Government’s doing. To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence. This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.
In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error. To the contrary, it accepts the fictitious Guideline range the court adopted. All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable. Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal. Yet the court fails to acknowledge that a procedural error has occurred. Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error. I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.
In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue. Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief. Part IV concludes.
August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack