Tuesday, March 19, 2013

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

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

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

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

Friday, May 18, 2012

What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?

The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:

Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville.  He is no Boy Scout.  He committed financial fraud, was convicted at trial and deserves punishment.  Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.

But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable.  That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....

A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines.  Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.

In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements.  She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision.  She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.

On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines.  In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.

To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case.  It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.

This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received.  The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.

As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues.  In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert.  One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."

All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant.  But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable."  Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias.  When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too.  The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade.  But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well.  Judges shouldn’t be able to make up their own rules for policing themselves.

As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer.  To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case.  But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.

May 18, 2012 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, August 26, 2010

Pepper providing a bit of spice to SCOTUS sentencing docket

Here at the National Law Journal,  Marcia Coyle has a new piece on the Pepper federal sentencing case on the Supreme Court's docket for the upcoming term.  The piece is headlined "Brief of the Week: Conflict over rehabilitation and resentencing," and here are excerpts:

The [Pepper] case offers the justices an opportunity to provide some guidance to sentencing judges about how much weight to give an offender's successful rehabilitation if he or she must be resentenced following appeals....

Pepper ... actually sought prison time in order to get into a 500-hour drug treatment program offered at a federal prison in Yankton, S.D. The judge sentenced him to 24 months in prison so he could qualify for the drug program. In 2005, he finished his prison sentence and began five years of supervised release.

In the meantime, however, the government appealed the 24-month sentence. In 2009, after three resentencing hearings, four reviews by the U.S. Court of Appeals for the 8th Circuit, another appeal by the government and an appeal by Pepper, Pepper was ordered back to prison by a different sentencing judge for an additional 41 months.

At the time of that last sentencing, Pepper had turned 29, had been married for two years to a woman with a 7-year-old daughter and was their primary support. He also was attending college full-time and was a Sam's Club overnight assistant manager who had been named associate of the year.

In Pepper's case, the 8th Circuit said, "We commend Pepper on the positive changes he has made in his life. However, the law of our circuit is clear. '[E]vidence of [a defendant]'s post-sentence rehabilitation is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing.'"

Pepper's counsel, Alfredo Parrish of Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher in Des Moines, Iowa, contends that the circuits are split on whether judges may consider post-sentencing rehabilitation in granting a downward departure from a guideline-recommended sentence....

Parrish relies in part on Gall v. U.S., a 2007 decision in which the justices rejected the 8th Circuit's policy that sentencing judges must justify downward departures with findings of extraordinary circumstances. The Gall case involved post-offense rehabilitation. "There appear to be hints in Gall that considering post-offense and post-sentencing rehabilitation in extraordinary circumstances is permissible at sentencing," Parrish said in his petition.

In a twist in the Supreme Court, the government now agrees with Pepper that post-sentencing rehabilitation is a factor to be considered. In its brief in opposition to Pepper's petition, then Solicitor General Elena Kagan wrote: "No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant's efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing Courts to consider `the history and characteristics of the defendant.'"

The government had urged the court to vacate the 8th Circuit's judgment and remand the case for consideration of the government's latest views and recent case law. But the justices decided to hold arguments.

The justices appointed Adam Ciongoli, a former clerk to Justice Samuel Alito Jr. and now general counsel of Willis Group Holdings, to defend the 8th Circuit judgment.

And on July 22, the district judge who added the 41 months to Pepper's sentence — Chief Judge Linda Reade of the Northern District of Iowa — approved his release from prison pending the decision in the Supreme Court.

This is one of 11 cases from which now Justice Kagan has said she will recuse herself because of her involvement in the case. The Court has not scheduled arguments yet.

August 26, 2010 in Drug Offense Sentencing, Gall reasonableness case, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Thursday, May 20, 2010

"Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"

The title of this post is the title of an important new Comment by Thomas Gorman that now appears in the University of Chicago Law Review (and is available here via SSRN).  This Comment throughtfully engages with what I view to be one of the most interesting and dynamic (and consequential) post-Booker issues. Here is the abstract:

Early Disposition Programs -- commonly referred to as "fast-track" sentencing - allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant's prompt guilty plea and waiver of certain pre-trial and post-conviction rights.  Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the PROTECT Act, directed the Sentencing Commission to authorize them.  This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program. As a result, fast-track sentencing is presently approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where they are found and prosecuted.

Defendants in non-fast-track districts argue that this geographic disparity triggers 18 USC § 3553(a)(6), which states that sentencing courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.

The circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity prior to the Supreme Court’s decision in United States v Kimbrough.  In Kimbrough, the Court noted that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.”  Congress, if it wants to limit this discretion, must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing and a split has developed.  The First and Third Circuits now hold that "sentencing courts can consider items such as fast-track disparity" when deciding whether to grant a below-Guidelines sentence.  The Fifth, Ninth and Eleventh Circuits continue to hold that sentencing courts may not mitigate the fast-track disparity.

This Comment attempts to resolve the split by arguing that circuit courts have erred by focusing on the one-sentence authorization of fast-track in the PROTECT Act.  The statutory language is ambiguous, so it is not helpful in resolving the debate. Therefore, this Comment argues for an investigation of legislative intent.

An intent analysis requires a thorough examination of congressional efforts to reform sentencing, rather than a limited inquiry into the PROTECT Act’s one-sentence authorization of fast-track.  The purpose of the fast-track authorization is clearer when the statute is considered in the context of Congress’ long campaign to reform sentencing.  For the last 30 years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities.  These goals are also what drove Congress to authorize a limited form of fast-track sentencing.

This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’ goals than any alternative.  It is also more consistent with the Supreme Court’s recent rulings defending judicial discretion.

May 20, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, March 16, 2010

New scholarship complaining that reasonableness review is now quite unreasonable

Now appearing on SSRN is this notable forthcoming article discussing the mess that is reasonableness review of federal sentences in the circuits.  The piece is titled "When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough," and here is the abstract:

Judges, like anyone else who works for a living, need standards.  Judges need to know what rules to apply, when to apply them, and who to apply them to.  And judges, just like you or I, want to know how their work will be reviewed.  Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.

This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits.  This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally.  Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation.  This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress’ legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court’s Sixth Amendment concerns raised in Booker.

March 16, 2010 in Booker and Fanfan Commentary, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, December 11, 2008

Any profound thoughts on the state of federal sentencing a year after Gall and Kimbrough?

It just dawned on me this morning that yesterday marked the one-year anniversary of the Supreme Court's decisions in Gall and Kimbrough, the two cases in which the Justices made extra clear that Booker really meant that the guidelines were to be treated as truly advisory.  Though the US Sentencing Commission seems unlikely to produce a "one-year-later" report on the impact of Gall and Kimbrough, it seems fair to suggest that these cases have had an important and consequential effect on federal sentencing outcomes and atmospherics. 

I could opine at length about my own impressions of the tangible and intangible impact of Gall and Kimbrough, but this post is mostly designed to encourage reader input.  Specifically, I am eager to hear from commentors concerning whether and how Gall and Kimbrough should be celebrated or cursed one year later.  I would also love to hear suggestions about what institutions like the US Sentencing Commission, the Justice Department and Congress should be thinking about as we start year two of the post-Gall/Kimbrough world (and approach year five(!) of the post-Booker world).

December 11, 2008 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Sunday, March 30, 2008

Thoughtful analysis of Gall

The Daily Report legal newspaper has this effective piece on Gall by Steven Sadow headlined "Gall offers options at trial: Fewer defendants will plead, as judges can depart from guidelines more often."  Here is an excerpt:

Sentencing has finally moved from the hands of the prosecutors and the harshness of the Federal Sentencing Guidelines back to the discretion of the district court judges. The federal sentencing menu options have changed, and white-collar criminal defendants can, and should, consider retaining veteran trial lawyers. Attorneys who fit this mold have real experience defending criminal cases in the courtroom, will not be dissuaded to go to trial when the facts and legal issues demand it and will not settle out of fear of a presumed harsher guideline sentence.

March 30, 2008 in Gall reasonableness case | Permalink | Comments (4) | TrackBack

Saturday, March 29, 2008

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

March 29, 2008 in Booker in the Circuits, Claiborne and Rita reasonableness case, Gall reasonableness case, Rita reactions | Permalink | Comments (0) | TrackBack

Wednesday, March 05, 2008

Eighth Circuit affirms large above-guideline sentence

The Eighth Circuit today in US v. Austad, No. 07-1376 (8th Cir. Mar. 5, 2008) (available here), affirms an above-guideline sentence with heavy reliance on Gall.  Here is the start and end:

Christopher Austad (Austad) pled guilty to mailing threatening communications in violation of 18 U.S.C. § 876(c).  After calculating a sentencing Guidelines range of 37 to 46 months imprisonment, the district court sentenced Austad to 84 months imprisonment.  Austad appeals, arguing the sentence is unreasonable, and that the district court failed to consider Austad’s history and circumstances. We affirm....

As the Supreme Court reminds us [in Gall], “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.  The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” id. (citation omitted).  Given these considerations, we cannot say the district court abused its discretion in sentencing Austad.  Even if Austad’s sentence were considered “unusually harsh,” the district court explained the sentence with “sufficient justifications.”  See id. at 594.

March 5, 2008 in Gall reasonableness case | Permalink | Comments (1) | TrackBack

Tuesday, March 04, 2008

Two important (but unpublished!?!) defendant wins in the Eighth Circuit

I am not sure what bother me more: the fact that federal defendants rarely prevail in sentencing appeals or the fact that when they do some circuit seem eager to suggest these rulings are inconsequential by deciding they should be "unpublished."  Two rulings from the Eighth Circuit today, as reported on its official opinion page, get more worked up on this topic today.  Here are the unofficial summaries:

US v. McDonald, No. 05-1617 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Beam and Gruender, Circuit Judges]:  On remand from the Supreme Court for reconsideration under Gall v. U.S.  Under the more deferential abuse-of- discretion review outlined in Gall, the district court did not abuse its discretion in sentencing defendant to 132 months, and the sentence is affirmed.

US v. Weston, No. 07-1048 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Smith and Benton, Circuit Judges]: District court erred in applying the presumption of reasonableness; this error is now plain, and the record shows a reasonable probability that defendant would have received a lesser sentence but for the error; case remanded for resentencing.

March 4, 2008 in Gall reasonableness case | Permalink | Comments (1) | TrackBack

Tuesday, February 19, 2008

When might the USSC have some post-Gall/Kimbrough data to share?

It has now been more than two full months since the Supreme Court decisions in Gall and Kimbrough, and I am really wondering if these rulings have had a significant impact on district court sentencing outcomes.  From various conversations and news reports (and early judicial scholarship), Gall and Kimbrough have been viewed as dramatically important statements of the scope of post-Booker discretion that district judges now possess.  But the proof is in the data, and the US Sentencing Commission has not released any post-Gall/Kimbrough data (even though probably more than 10,000 sentences have now been imposed since Gall and Kimbrough came down).

I do not fault the USSC on this data front; the Commission has surely been busy dealing with crack retroactivity issues and other matters.  But, as regular readers know, I sure like my sentencing data, and I am starting to get an itch for up-to-date data concerning the latest sentencing work from the federal district courts.

February 19, 2008 in Gall reasonableness case | Permalink | Comments (2) | TrackBack

Thursday, January 31, 2008

A loooong Eleventh Circuit opinion reversing below-guideline sentence

Though I doubt it will be quite as exciting as either the Lost season premire or the Democrats playing one-on-one, part of my evening plans now include readind the Eleventh Circuit's new 50-page(!) opinion addressing reasonableness review in US v. Pugh, No. No. 07-10183 (11th Cir. Jan 31, 2008) (available here). Here is how the long opinion starts:

This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines.  After thorough review, we are constrained to conclude that even under the most recent Supreme Court precedent, affording substantial deference to the district court’s sentencing determinations, the district court abused its discretion by imposing a probationary sentence on the defendant in this case.

Here, the government appealed from the non-custodial sentence of defendant Bruce Clayton Pugh (“Pugh”), who downloaded on his computer over a period of several years at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male.  The advisory Sentencing Guidelines range recommended for the offense to which Pugh pled guilty -- knowing possession of images of child pornography that were mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A) -- was 97 to 120 months’ imprisonment.  The district court nevertheless sentenced Pugh to a five-year probationary term. In so doing, the district court relied heavily on Pugh’s history, characteristics and motive in imposing a non-custodial sentence for a crime that fell on the high end of the Guidelines sentencing table. But in our view, the district court did not provide a sufficiently compelling justification to support the degree of its variance, nor did it give any apparent weight to many other important statutory factors embodied by Congress in 18 U.S.C. § 3553(a) that must be considered at sentencing.  As we see it, this probationary sentence utterly failed to adequately promote general deterrence, reflect the seriousness of Pugh’s offense, show respect for the law, or address in any way the relevant Guidelines policy statements and directives.  Accordingly, we hold that this sentence is unreasonable, and therefore vacate and remand so that the district court can re-calculate the defendant’s sentence.

January 31, 2008 in Gall reasonableness case | Permalink | Comments (14) | TrackBack

Thursday, January 24, 2008

Explaining more fully my concern about the Eleventh Circuit's work in Ramirez

A number of commentors are concerned about my quick critique of the Eleventh Circuit work in US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here).  Ramirez affirms an above-guideline sentence by relying heavily on Gall

One (unnamed) commentor assails me for a a lack of "objectivity" because I critique this affirmance of an above-guideline sentence but often praise affirmances of below-guidelines sentences.  This commentor encourages me to "Show some balance, or at least the illusion of balance!"  Up for justified challenge, let me explain in more "objective" detail the range of concerns I have with the Ramirez decision.

First, as a matter of questionable procedure, why is this Ramirez ruling issued as an unpublished decision without the defendant getting an opportunity for oral argument?  As written, the Ramirez ruling implies that Gall overrules at least three prior (post-Booker) Eleventh Circuit published opinions.  If this is what Ramirez means, shouldn't this opinion have been published? 

Second, as a matter of sloppy style, the Ramirez opinion devotes more than five full pages to reciting (applicable?) post-Booker precedents, but has only a few sentences discussing the case facts.  Here, in toto, is what the opinion informs the reader about the facts of the case under review:

Luis Ramirez [was convicted of] larceny of personal property, in violation of 18 U.S.C. §§ 661 and 2. Ramirez’s guideline range was 8-12 months, but the district court sentenced him to the statutory maximum of 60 months imprisonment.  Ramirez argues on appeal that the district court ... overemphasi[zed] his criminal history, [and] failed to consider the $1,000 loss amount, and ... nullified the two-level decrease he received for acceptance of responsibility.

So, all we know from the Ramirez opinion is that a defendant with an long criminal history stole $1000 of personal property and received the statutory maximum sentence after accepting responsibility.  We don't know what his true guideline range was because, as the USSC sentencing table shows, there is no guideline range of 8-12 months.  The actually range must have been either 8-14 months or 6-12 months (and I am guessing the latter).

Third, as a matter of suspect substance, the Ramirez opinion notes that, in a recent Valdes ruling, 500 F.3d 1291 (11th Cir. 2007), the Eleventh Circuit "vacated Valdes’s sentence and remanded to the district court because it was unclear whether the court was departing upwardly under U.S.S.G. § 4A1.3 or whether the court was applying a variance based on the 18 U.S.C. § 3553(a) factors, and, therefore, the record was 'insufficient to permit the affirmance of the sentence.'"  Valdes seems to be exactly on point to justify a remand here.  However, without explaining whether Valdes has been overruled by Gall or is distinguishable, the Ramirez opinion affirms simply because "the district court properly calculated the advisory guideline range, considered the relevant § 3553(a) factors, articulated its reasons in open court, considered Ramirez’s arguments, and had a reasoned basis for its decision."

Finally, as a matter of dubious doctrine, the Ramirez opinion cites Rita, but that SCOTUS ruling makes clear that circuit courts must do more than police just the procedural reasonableness of sentencing decision-making.  Though Justice Scalia advocated review only of procedural reasonableness in his concurrence, the Rita majority made very clear that substantive reasonableness review was important:

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.

Despite all these problems with the Ramirez opinion, I am still not prepared to call the outcome wrong until I know more about the underlying facts.  But all the points above raise a lot of red flags.  That's why in my original post I stated that I have a "concern" about the "troubling" Ramirez ruling because the "panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration." 

As for my "objectivity" and "balance," I do not think I have ever hidden my view (bias?) that many federal prison sentences for non-violent crimes seem too long in light of Congressional purposes.  At least seven SCOTUS Justices seemed to ratify that view through the rulings in Gall and Kimbrough.  Meanwhile, I have also indicated my view (bias?) that many federal and state sentences for violent crimes seem too short.  Because Ramirez apparently involves a non-violent crime, I am especially curious about what facts justified a stat max sentence, and I really wish the Eleventh Circuit had done a more effective job assessing and explaining why that state max sentence was substantively reasonable.

January 24, 2008 in Gall reasonableness case | Permalink | Comments (8) | TrackBack

Tuesday, January 15, 2008

An intoxicating way to celebrate the Gall ruling

Beers_from_kopfLong-time readers with great memories may recall an entertaining opinion written in right after Booker by US District Judge Richard Kopf.  In this opinion, as detailed here, Judge Kopf promised to buy a beer for judicial colleagues who took a different view of Booker if Judge Kopf's view turned out to be wrong.   As explained here, after the Supreme Court's ruling in Gall, Judge Kopf concluded not only that he owed his judicial colleagues a beer, but also that he owed me one, too. 

Though I did not think Judge Kopf owed me anything, I was not about to refuse a beer from a federal judge. (According to a little known Czech legend, the deity Radegast, who is the god of mutuality and is said to have invented beer, ensures that a lawyer will have his motions denied for a full year after he refuses a beer from a judge.)

But, as I wondered how Judge Kopf might "pay up," never did I expect what arrived in my office today: a huge box shipped from from Bucket O' Brew.  As the picture above reveals, Judge Kopf selected the Northwest Bucket (see UPDATE) for my imbibing pleasure (and just in time for a long weekend with lots of great sports to watch).  As the picture above shows, Judge Kopf sent me a total of six beers, which means I have an extra beer to share with almost every member of the Gall majority. (I have a feeling that Justice Souter is not much of a beer drinker, but that I might need to keep the fridge full for the likes of Justices Scalia and Ginsburg when they get together to party). 

Beer_label_from_kopf To reinforce what a great sense of humor Judge Kopf has, check out the shipping label that Judge Kopf engineered.  If you click on the second picture here, you should be able to see that my last name is misspelled as "Beerman."   To paraphrase one of my favorite philosophers, "Mmmmm, Beer-man."

UPDATE:  I was pleased to discover, after getting home and unpacking my brew bucket, that Judge Kopf had in fact sent me the Party Barge.  This smooth-sailing barge includes a full dozen beers, which means that I have a brewski for every member of the Court and even a few extra for Justices Alito (who perhaps can start to understand the hidden genius of both Booker opinions if he gets a little sloshed).  I wonder what drinking games the Justices like to play at their parties.

January 15, 2008 in Gall reasonableness case | Permalink | Comments (2) | TrackBack

Thursday, January 10, 2008

Sixth Circuit affirms above-guideline sentence based on Gall

More proof that the Gall decision will not always benefit defendants comes today in US v. Klups, No. 06-1931 (6th Cir. Jan. 10, 2008) (available here), which affirms an above-guidelines sentence by relying heavily on Gall.  Here is how the opinion ends (some cites tweaked):

Klups argues that because his sentence is “twice the high end of the advisory Guideline range” the district judge had to offer a “compelling justification” for the sentence. Prior to the Supreme Court’s opinion in Gall, we held “that the farther the sentencing court varies from the guidelines range one way or another, the more compelling the justification for that variance must be.”  United States v. Funk, 477 F.3d 421, 426 (6th Cir. 2007).  The majority opinion in Gall, however, “reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range . . . [as well as] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 128 S. Ct. at 595.  The Court in Gall explained “why the Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220 (2005).”  Id. at 594. Certainly, in considering the § 3553(a) factors in the course of determining “that an outside-Guidelines sentence is warranted,” the district judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.”  Id. at 597.  Gall, however, further clarified the distinction between the role of the district courts and that of the courts of appeals.  After Gall, “we no longer apply a form of proportionality review to outside-Guidelines sentences” ... United States v. Bolds, No. 07-5602, 2007 WL 4440403, at *10 (6th Cir. 2007).  We conclude, in the words of the Supreme Court in Gall, that “[o]n abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S. Ct. at 602.

January 10, 2008 in Gall reasonableness case | Permalink | Comments (4) | TrackBack

Tuesday, January 08, 2008

Effective review of Gall and Kimbrough basics

I was pleased to receive and now post en effective basic summary of the Supreme Court's work in Gall and Kimbrough. Here is the e-mail I received describing the effort:

Attached is a Summary by David Debold from Gibson, Dunn & Crutcher LLP Entitled: “Two Supreme Court Decisions in December 2007 Highlight the Advisory Nature of the Federal Sentencing Guidelines”.  David Debold is the Editor of the Criminal Justice Section Publication Practice Under the Federal Sentencing Guidelines, click Practice Under the Federal Sentencing Guidelines for information on the publication.

Download aba_treatise_gall_and_kimbrough_supp.doc

January 8, 2008 in Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (1) | TrackBack

Monday, January 07, 2008

Eighth Circuit relies on Gall to affirm significant upward variance

As I have noted before, the fact that Gall seemed to loosen the stardards for appellate review of variances will not always benefit defendants. Proof comes today from the Eighth Circuit, which today in US v. Braggs, No. 07-1148 (8th Cir. Jan. 7, 2007) (available here), affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion starts:

Keisha Braggs pled guilty to fraudulent use of an unauthorized access device, which carries a maximum term of 10 years of imprisonment. 18 U.S.C. § 1029(a)(2). Although the Sentencing Guidelines recommended a sentence of 15 to 21 months, the district court imposed a sentence of 48 months.  Braggs challenges her sentence as unreasonable.  Guided by the Supreme Court’s decision in Gall v. United States, 552 U.S. ___, No. 06-7949 (Dec. 10, 2007), we affirm.

Some related post on post-Gall circuit decisions:

January 7, 2008 in Gall reasonableness case | Permalink | Comments (0) | TrackBack

Lots of Gall and Kimbrough GVRs this morning from SCOTUS

The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.

I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit.  These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.

Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.

January 7, 2008 in Gall reasonableness case, Kimbrough reasonableness case, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Friday, January 04, 2008

A circuit's struggles after Gall and Kimbrough

Writing in the Fulton County Daily Report, Alyson Palmer has this long article headlined "11th Circuit Wrestles With Sentencing: Panels split in upholding sentences in child pornography and bribery cases that fell below sentencing guidelines."  Here are excerpts from the start of the piece:

To many, the justices from the U.S. Supreme Court last month sent a simple message to appeals courts around the country: When reviewing the sentencing decisions of trial judges, back off.

But last week a judge on the 11th U.S. Circuit Court of Appeals signaled that he's not rolling over. Judge Joel F. Dubina's response to the high court came in a case in which federal prosecutors in Florida had challenged as too lenient a seven-year sentence for a distributor of child pornography. The sentence was more than five years under the sentencing range outlined in the federal sentencing guidelines, but over Dubina's dissent, two other judges affirmed the seven-year term.

That decision appears to follow the deferential approach adopted by the high court in a pair of major sentencing decisions issued Dec. 10, Gall v. United States, 128 S.Ct. 586, and Kimbrough v. United States, 128 S.Ct. 558.... While it didn't cite Gall specifically, another dissent issued this week, in the long-running bribery case of two men convicted over a Fulton County, Ga., bond deal, also demonstrated that the 11th Circuit is wrestling with sentences. In that case, Judge Edward Carnes was on the losing end of a 2-1 vote that affirmed the sentences of Michael deVegter and Richard P. Poirier Jr., which prosecutors argued were too short.

January 4, 2008 in Gall reasonableness case | Permalink | Comments (0) | TrackBack

Friday, December 28, 2007

Split Eleventh Circuit affirms below-guideline sentence in another post-Gall ruling

When it rains, it pours (at least when it comes to reasonableness review on a Friday afternoon).  Not long after I saw the Fourth Circuit's Pauley decision upholding a below-guideline sentence as reasonable, I discovered a similar (though split) Eleventh Circuit ruling in US v. McBride, No. 06-16544 (11th Cir. Dec. 28, 2007) (available here).  Here is how the majority opinion in McBride begins:

In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3553(a) factors and imposed an unreasonable sentence.  Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.

Here are snippets of the dissent in McBride:

Though I agree with the majority that the district court followed the proper procedures in calculating the Guidelines range and considering the 18 U.S.C. § 3553(a) factors, I disagree with the majority’s conclusion that the sentence imposed is substantively reasonable, and thus, I respectfully dissent....

Though the district court gave lip-service to other § 3553(a) factors, the district court’s downward departure was based largely, if not solely, on the defendant’s childhood, which it deemed to be one of the worst it had ever seen.  Some reduction might have been appropriate based on the defendant’s childhood, but a downward departure of almost 50% from the bottom of the Guidelines range was unreasonable when the other § 3553(a) factors, such as reflecting the seriousness of the offense, the need for deterrence, and the need to protect the public, all support a more lengthy term of incarceration than the one given.

December 28, 2007 in Gall reasonableness case | Permalink | Comments (1) | TrackBack