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January 10, 2006
Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos
In a decision that is not surprising but is still disappointing, the Tenth Circuit has affirmed in US v. Angelos, No. 04-4282 (10th Cir. Jan. 9, 2006) (available here), the sentence given to Weldon Angelos, a first offender who was begrudgingly sentenced to 55 years' imprisonment by Judge Paul Cassell for marijuana sales under federal mandatory minimums. Back in November 2004, the Angelos case made headlines because Judge Cassell wrote a lengthy opinion in which he lamented being compelled to impose a sentence he considered to be cruel, unusual, and irrational. (More background on Judge Cassell's initial remarkable decision is here, and commentary here and here.)
The Tenth Circuit in Angelos concludes "that this is not an 'extraordinary' case in which the sentences at issue are 'grossly disproportionate' to the crimes for which they were imposed." In a remarkable passage, the Tenth Circuit faults Judge Cassell for having "erroneously downplayed the seriousness of Angelos's crimes":
Although the district court concluded that Angelos's sentence was disproportionate to his crimes, we disagree. In our view, the district court failed to accord proper deference to Congress's decision to severely punish criminals who repeatedly possess firearms in connection with drug-trafficking crimes, and erroneously downplayed the seriousness of Angelos's crimes. Although it is true that Angelos had no significant adult criminal history, that appears to have been the result of good fortune rather than Angelos's lack of involvement in criminal activity. The evidence presented by the government at trial clearly established that Angelos was a known gang member who had long used and sold illicit drugs. Further, the government's evidence established that, at the time of his arrest, Angelos was a mid-to-high drug dealer who purchased and in turn sold large quantities of marijuana. In addition, the government's evidence established that Angelos possessed and used a number of firearms, some stolen, to facilitate his drug-dealing activities. Lastly, the evidence established that although Angelos had some involvement in the music industry, he failed to financially profit from that involvement and indeed never reported any positive earnings to the Internal Revenue Service. Thus, the only reasonable inference that could be drawn was that Angelos's sole source of income was his drug-trafficking operations.
To my knowledge, the allegations that Angelos was a tax cheat or possessed stolen guns or sold large quantities of marijuana have never been proven to a jury. But, of course, that would only matter in some alternative universe in which lower federal courts actually take the principles of Blakely seriously. In the Tenth Circuit, apparently a defendant's reputation, and not simply the crimes of conviction, are central to an analysis of the Eighth Amendment's prohibition on cruel and unusual punishments.
Early press coverage of the Tenth Circuit's decision in Angelos is available from the AP and from the Salt Lake Tribune. Though overshadowed by the Alito hearings — and I cannot help but cynically wonder if the timing is not a mere coincidence — the Angelos case will likely get a new round of media attention. But, to echo my recent comments about the dynamics of sentencing reform, I wonder if anyone in the libertarian/conservative crowd, which claims to champion liberty and small government, will speak out against what seems to be an excessively long punishment.
January 10, 2006 at 06:21 AM | Permalink
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» 10th Circuit Affirms Angelos' 55 Year Sentence from TalkLeft: The Politics of Crime
by TChris The conservative judge who imposed the mandatory sentence thought it was excessive. Twenty-nine former judges and prosecutors agreed, joining a brief that asked the Tenth Circuit to reverse the sentence. Yesterday the court ruled: A federal a... [Read More]
Tracked on Jan 11, 2006 11:11:20 AM
» 10th Circuit Affirms Angelos' 55 Year Sentence from TalkLeft: The Politics of Crime
by TChris The conservative judge who imposed the mandatory sentence thought it was excessive. Twenty-nine former judges and prosecutors agreed, joining a brief that asked the Tenth Circuit to reverse the sentence. Yesterday the court ruled: A federal a... [Read More]
Tracked on Jan 11, 2006 12:04:13 PM
Comments
Does anyone know what Angelo's pretrial plea offer was? I just settled a case in the Kansas, exact same charges and facts and forced my client to take one 924(c) to avoid risking a mandatory 55 years. The District Court would have had no discretion otherwise.
Posted by: Ronald Richards | Jan 10, 2006 7:06:24 AM
I am pretty sure Angelos was offered 15 years.
Posted by: Doug B. | Jan 10, 2006 7:33:56 AM
And even if all those unproven accusations were 100% true, would it somehow make a 55 *year* sentence something other than cruel and excessive? Maybe not "unusual" -- a sad commentary on our current standards and politics.
Posted by: Peter G | Jan 10, 2006 10:22:22 AM
Prof. Berman's post appears to be mildly disingenuous, because there was no Blakely issue in the Angelos case. Even Judge Cassell, who "grudgingly" imposed the 55-year sentence, correctly reasoned that, under current precedent, the sentence did not violate the Eighth Amendment. It is bad public policy, perhaps, but Congress is within its rights to punish these crimes severely.
Much of Judge Cassell's opinion went well beyond what was strictly necessary to reach the correct legal outcome. Can one criticize the Tenth Circuit for redressing the balance? Their point is that Angelos is a big-time criminal -- precisely the kind of offender Congress was thinking about when it enacted these sentences.
Posted by: Marc Shepherd | Jan 10, 2006 10:32:00 AM
Marc, I really do not think I am being "disingenuous" when I complain that heavy reliance on uncharged and unproven crimes to uphold this sentence runs counter to the "principles of Blakely." You say with great confidence that Angelos is a "big-time criminal." If that claim was properly alleged and established in a court of law (or admitted by the defendant) this case never would have garnered any attention.
But this case has prompted so much attention --- and caused obvious concern for Judge Cassell --- because the government only alleged and proved at trial a few small pot deals. You may not care about this fact because you (and the 10th Circuit) are so confident that Angelos is a "big-time criminal." But Blakely at least suggested the principle that the Founders cared about ensuring that a defendant should first have to be charged and a jury convinced before we lock someone away essentially forever based on just the executive branch's allegations.
Posted by: Doug B. | Jan 10, 2006 10:56:34 AM
I'll take the bait.
From a conservative's point of view, 55 years' imprisonment is probably about right for gun-carrying drug dealers. The only reason for carrying a gun during and in furtherance of a felony is to use it to kill someone. We may disagree about the proper sentence for Mr. Angelos' drug-dealing (and we probably do), but his carrying of a firearm during this felony deserves SEVERE punishment. I, for one, am tired of representing accused murders who bring guns along "for a little protection" and then kill innocent people. Maybe our felons should just deal drugs without bringing the guns along -- many more innocent people would be alive. 55 years for knowingly engaging in illegal conduct that often leads to murder sounds about right to me -- and the elected members of Congress.
To answer your question directly: Conservatives believe in keeping government as small as possible, because limited government maximizes freedom for innocent, law-abiding citizens. Make no mistake, however, that ALL conservatives believe that government must be large enough, strong enough, and, most importantly, WILLING to protect our society from felons -- as the first priority of government. After we've taken care of this priority, then we can move on to others. (Note: requiring that criminal laws and sentences be approved by an elected legislature, that indictments be sought by elected District Attorneys or U.S. Attorneys under the oversight of elected Presidents, that indictments be authorized by a Grand Jury, and that convictions be based on the unanimous decision of a petit jury are simply ways that we protect ourselves from potential thugs in the legislatures, executive offices, and judges' chambers in our society, as well. That's why, from a conservative's perspective, the criminal provisions of the Bill of Rights are part of the FIRST priority of government.)
I'd like to know: What kind(s) of freedom do American liberals believe in? Are liberals interested in protecting the freedom, lives, and property of innocent citizens? For liberals, what is the FIRST priority of government?
Congress and the Tenth Circuit are quite rational, reasonable, and responsible in making the protection of our society from Angelos a high priority.
Simple question: are you willing to bet your life that Angelos won't commit another felony in the next 55 years if he's released back into society before then? If not, and if you think that Angelos' sentence is too long, then at least be honest and admit that you are willing to bet the lives of your fellow citizens when you're not willing to bet your own life. That's the essence of the abdication of civic responsibility.
If, however, you are willing to bet your life that less than 55 years protects society (really even if you aren't -- it's a free country), then feel free to write your Congressman and try to get this mandatory minimum reduced by Congress. But, please, let's agree that we should reduce the mandatory minimum ONLY to a level that reasonably assures the protection of society, and that a debate and vote in Congress is the only legitimate way to reach this outcome in our democracy.
Mark
Posted by: Mark | Jan 10, 2006 12:40:12 PM
Here is perhaps the key point of disagreement, Mark: the Angelos jury (which heard all the evidence at trial) and Judge Cassell (who had additional evidence he could consider) both reached the reasoned conclusion that 18 years for Angelos would "reasonably assure the protection of society." Also, by the way, the federal prosecutors in this case, whom I hope are concerned about "reasonably assuring the protection of society," offered a plea deal for a 15 year sentence.
My "first priority" of good decision-making is to trust people with the most information, and all of those folks believed a sentence much lower than 55-years would do the trick in the Angelos case. Obviously you do not agree, and I have no idea what my view would be if I'd heard all the evidence.
Skipping all the rhetoric about liberals and conservatives, my core concern is good government (i.e., I want the government making sensible and effective use of my tax dollars). I believe that we'd all be a lot safer by putting the money that will be spent warehousing Angelos after he turns 50 into more police on the street or into other law enforcement interests.
I heartily favor severe punishments for people who deserve them, and I understand your concern about the risks of sentences that are too lenient. But are you not at all concerned about sentences that are too harsh?
Posted by: Doug B. | Jan 10, 2006 1:03:44 PM
My analysis is set forth at length at my blog (http://washparkprophet.blogspot.com). The highlights:
"Common sense tells us that people are supposed to be sentenced for the crimes of which they have been convicted, not based on other crimes for which they have been acquitted or with which they have not been charged. Juries exist, not just to distinguish the totally innocent from those who are guilty of something, but to determine for which crimes someone should be punished. To do otherwise is to make a mockery of due process. Why have the American Cadillac criminal justice system due process protections, if you are simply going to allow them to be grossly circumvented in a sentencing hearing?"
and
"Habitual offender sentences such as the ones applied in the Angelos case can make some sense in a case where an individual has been convicted, spent many years in prison where he has been given an opportunity to mediate on the gravity of his crimes, and gone out into the world on notice that another mistake puts him at grave risk of a draconian sentence (although even then the idea is flawed). This is how the habitual offender enhancements in Colorado's drug laws are drafted. But, it makes no sense at all, when an individual such as Angelos is charged with three offenses, that are part of the same overall pattern of activity (low level drug dealing over a short time period), at the same time.
Habitual offender laws only have a deterrent effect on people who know that they are prior offenders, not on people who have no prior convictions when they are arrested."
and
"[T]here is nothing soft on crime about wanting serious crimes to have longer sentences than less serious crimes. . . .
Reasonable people can differ about the seriousness of making a couple of modest sized marijuana deals while secretly having a gun on your person. Maybe it shouldn't be a crime at all, maybe it should be about as serious as a shoplifting incident involving the same amount of money, maybe it should be a serious as a burglary. But, reasonable people ought to be able to agree that simply having a gun on your person is less serious than brandishing the gun or firing it or harming someone with it. Likewise, reasonable people ought to be able to agree that a modest sized marijuana deal is less serious than a rape, an armed robbery in which guns are brandished and millions of dollars are stolen, a kidnapping in which the victim is harmed by not killed and a large ransom is collected or an unaggravated murder."
and
"The impression that even minor drug offenses can put in in prison for life also puts cops at risk. You might not be willing to risk kill a cop to keep yourself out of jail for a few years. But, if the word gets out that even a minor marijuana bust results in life in prison, many minor dealers will consider it worth taking the risk to kill a cop to prevent themselves from being apprehended."
and
"Why should the federal government be prosecuting and setting sentences for intrastate drug deals and gun possession at all? This case could easily have been prosecuted by state prosecutors in a state court. These cases happen every day. It isn't legal to conduct marijuana deals involving 8 ounces of pot in any state of the Union. Indeed, there is a very reasonable likelihood that the marijuana in this case was grown in the state where it was sold (marijuana is a hearty plant and also often grown indoors). The gun was also likely procured in the state where it was found. The prosecutors certainly didn't prove any interstate activity in this case."
Posted by: ohwilleke | Jan 10, 2006 1:34:30 PM
I think Marc's comment about being "mildly disingenuous" with regards to _Blakely_ is that all of Angelos's 55 years come from statutory mandatory minimum sentences, not the sort of relevant conduct sentences common under the Guidelines (IIRC - it's been a while since I read Cassell's opinion and haven't made it to the 10th's yet). So while the jury may have agreed that 55 years is too harsh, this was not a case where the jury found 1 fact, the judge found a dozen more, and the combination of them resulted in a huge increase in the sentence.
What the jury was expressing was a disagreement with Congress over mandatory minimums in cases like this (with which I happen to agree, BTW). But I'm not sure that the "principles of _Blakely_" are violated by not following their suggestion.
Posted by: JDB | Jan 10, 2006 1:53:46 PM
I think the post was disingenuous in its treatment of Blakely, but it does strike me (as a conservative) that 55 years is a very long time.
I understood the ONLY holding of Blakely to be that a judge's sentencing discretion within statutory bounds cannot be reduced other than by proof before a jury beyond a reasonable doubt of facts presented in an indictment.
I don't think there was any Blakely holding that long sentence should only be meeted out based on facts proven to a jury - for what constitutional reason should a judge not be allowed to consider the type of material presented for years in guidelines sentencing hearings? Sometimes (as here) that material is unfavorable to the defendant because it suggests a wider pattern of criminal activity. But we all know that such material often makes a defendant more sympathetic.
That being said, I don't understand on what theory of conservatism 55 years is not an extraordinary sentence. Certainly much longer by orders of magnitude than sentences at the founding. I don't know what's the "right" sentence for a multiple drug-gun offender. But as a conservative, I think we need to keep in mind in sentencing that the convict is a citizen as well. 55 years is an awfully long time.
Posted by: Cheburashka | Jan 10, 2006 2:18:21 PM
Professor,
I only brought up the "conservative/liberal" stuff because you asked the question.
I am concerned about sentences that are too harsh (as well as sentences that are too lenient). When it comes to the harshness of minimum sentences, the forum for my opinion is Congress. Not the judge. Not the jury. Not the prosecutor. Not the appellate court.
Juries are, and should be, a check on society. (I strongly believe in nullification.) But once a petit jury says "guilty," I have no problem with a judge sentencing the defendant within the limits set by Congress. Our society gets its say about guilt through the jury, AND it gets its say about an appropriate sentence through the legislature. Our society, through the legislature, may decide to give judges sentencing discretion. But if society, through the legislature, decides to limit the judge's discretion (for example through minimum sentences), that ultimate power rightfully belongs to society acting through its elected legislature.
In the end, my personal opinion matters only so much as the opinion of any other citizen. Personal opinion only becomes legitimate policy through the exercise of majority vote (first for representatives, then by representatives). You may think 55 years is too harsh. I may agree with you. A majority of the House and Senate, however, may think 55 years is appropriate. In our democracy, the view of the majority of the House and Senate is the "right" policy. Our individual opinions lack political legitimacy. Obviously, you can (and should) voice your opinion in an effort to try to persuade the legislature, but once the vote is taken, each of us must give the will of the legislature its due. In particular, if we lawyers don't openly acknowledge the legislature's heightened legitimacy over our own individual opinions (and, it should be added, the individual opinions of unelected judges), then we threaten the very essence of democracy and, in the end, the Rule of Law.
Personally, I think 55 years is probably a little too long. Based on my experiences in life, judgment, opinions, attitudes, and education, I think that 30 years should be the minimum sentence for this defendant's crime. What do you think? What does any other person think?
In the end, Congress gets to decide a number. (Or to decide not to give a minimum number -- indeterminate sentencing.) I believe -- strongly -- that their number is a lot more politically legitimate than my number. Or your number. Or anyone else's number. We lawyers must acknowledge this fact, or we risk all that we hold dear (unless our own power is the thing that we hold most dear).
Mark
Posted by: Mark | Jan 10, 2006 2:22:21 PM
Mark, part of my concern with the Angelos case is that there is little reason to believe the jury here was able to serve as the sort of check you recommend. Had they known Angelos faced 50+ years, they might have nullified.
Cheburashka, the Blakely holding has limits, but its principles that I referenced come from Justice Scalia's powerful assertion that the jury should "function as circuitbreaker in the State’s machinery of justice" and should not be "relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish." In this Angelos decision, the court upholds Angelos' sentence based in part on the 10th Circuit's "judicial inquisition" about what it thinks Angelos really did, rather than on what Angelos was duly convicted of doing.
Posted by: Doug B. | Jan 10, 2006 3:46:55 PM
The problem Mark with your defer to Congress argument is that:
(1) The Constitution did not envision the Courts giving total deferrence to Congress with regard to long sentences for minor crimes. The 8th Amendment was enacted precisely for the purpose of forcing the Courts to give Congressional judgments in this regard a hard second look when faced with particular cases.
Congress likely did not foresee the kind of situation that arose here (where someone got two subsequent mandatory minimums at the same time that he received his first mandatory minimum) in a case where the gun involvement was so unaggravated, even if they could have had they been imaginative. Judges are not robots. The 8th Amendment opens the door to considering, on a case by case basis, if a particular Congressional statute, as applied, may be unconstitutional, even if it isn't in the usual case or on its face. Indeed, I fault the trial judge in this case for not making that determination, even though he came very close.
(2) Likewise, there is nothing clear about the notion that the Constitution intended this kind of decision to be made by Congress at all. Congress is not the only legislature in the United States. The Utah legislature took a more lenient stance towards the same set of facts. Why should Congressional views prevail over those of the Utah legislature?
(3) Also, why shouldn't the Utah legislature's determination be a reasonable starting point for making a reasonableness determination under the 8th Amendment? The cruel and unusual standard has usually focused on the cruel element, because most 8th Amendment cases arise in state court where the vast majority of criminal cases are prosectued and everyone in state court is subject to the same set of laws. But, here we have a Defendant whose case has been cherry picked to receive an extraordinarily high sentence that would not have been available. Doesn't this make the sentence not just cruel but unusual.
The President also has a constitutional obligation (admittedly non-justicable) to use his pardon and clemency power to commute sentences which are cruel or unusual. The 8th Amendment is primarily enforced by the Courts, but this does not mean that the Executive Branch can ignore it.
Posted by: ohwilleke | Jan 10, 2006 4:09:47 PM
I don't think the Tenth Circuit's discussion of Angelos's unindicted conduct is actually crucial to their decision. It appears they're just chastising the trial judge for an opinion they viewed as overly sympathetic to a defendant not deserving of such sympathy.
Judge Cassell clearly was looking for a way to pierce the mandatory minimum, but after wading through the controlling precedent (with which he apparently disagreed), concluded that he had no choice in the matter.
As far as I can tell, the comments for which Prof. Berman chastises the Tenth Circuit are dicta. They come near the end of the opinion, and don't appear to be essential to the result. In essence, the Tenth Circuit is mirror-imaging Judge Cassell, who went on for pages and pages about why the sentence was unfair, only to impose it anyway.
To be clear, as a matter of public policy, I disagree with mandatory minimums; I don't think Angelos is the kind of defendant Congress was trying to punish; I am offended by the gross disparity of the plea offer (15 years) and the final sentence (55 years); and, I think this is the kind of prosecution that belongs in the states.
But the court was obligated to rule as it did, given Harmelin's "narrow proportionality principle." Whether Harmelin was itself correctly decided is a whole other question, but it remains the law of the land.
Posted by: Marc Shepherd | Jan 10, 2006 4:30:38 PM
Ohwilleke calls this a minor crime. In my experience, he is so wrong it's not even funny. Carrying firearms in connection with drug dealing is a big deal. People die when felons carry firearms with them to commit their felonies.
Also, Ohwilleke says that the Eighth Amendment "opens the door" for "as applied" judicial review in particular cases. I know of no precedent that uses "as applied" judicial review under the 8th; I'd love to see it, because I don't think that such jurisprudence makes any rational sense.
The problem with Ohwilleke's Eighth Amendment analysis is that it is IMPOSSIBLE to implement with any legitimate, rational foundation when looking at prison terms for felonies. "I call it the way I see it" is the approach taken by monarchs and dictators, not unelected judges in a democracy. If a majority of Congressmen think that fifty years is an appropriate minimum sentence for a felony, and a district judge thinks that 18 years is appropriate, by what rational legal standard does the judiciary decide that the majority of Congress is wrong as a matter of (constitutional) law?
That's why "cruel and unusual punishment" cases deal with prison sentences for non-felonies, along with conditions of confinement and bodily injury for felonies and, finally, capital punishment issues. The courts are simply incompetent to decide whether a given prison term for a felony is "too harsh."
As for the Congressional Power arguments at the root of Ohwilleke's other comments; those arguments go to the validity of Angelos' conviction, not his sentence. I have an opinion on that matter, but I'll leave it for a "Separation of Powers and Federalism" Blog.
Mark
Posted by: Mark | Jan 10, 2006 5:20:54 PM
I want to add a perspective I have not seen, from a paralegal who served more than 15 years in federal prison. I was sentenced to 235 months as a first-time offender after trial; the plea offer was for 8 years and the additional 11 years and 7 months was “paying rent on the courthouse”. To be in Angelo’s position at sentencing, I’ve been there, a defendant does not see any distinction between 30 and 55 years, it is too enormous to imagine, because there is a point when it does not matter any more. To change a prisoner’s way of thinking, he must have a sentence with a possibility of release or hope of release, then he can make his mind up to do something in prison to keep his mind active. Short sentences of 1 to 5 years make any number of months important, but the difference between 30 and 55 years to a prisoner beginning a sentence is unremarkable. If judges and Congress want to change the way a prisoner thinks, let him believe he must serve 30 years and in the first 2 to 5 years, after he gets over the initial anger, he will establish a busy schedule to keep his mind and body active planning on doing the time and being a better person when he leaves, but give a man 55 years and he may give up all hope of release, and time will be hard on him and those who guard him. No sentence need exceed 60 years, the maximum amount of time anyone could probably live after an adult conviction, so set 60 years as the maximum for the most dangerous criminals and use this as a guide when sentencing those society is just mad at.
Posted by: Barry Ward | Jan 12, 2006 8:38:49 AM
Hey mark
It seems illogical to argue that a crime that "leads to" murder (i.e. possessing a gun at a drug deal) should have a punishment worse than murder itself. Specifically, you argue that Angelos should receive a sentence of 30 years or so. But murder typically results in a sentence of 10 years or so. Would you care to explain why a nonviolent crime (i.e. selling marijuana while possessing a gun) should receive such an extreme sentence? Also, perhaps you could explain why this crime should receive a sentence longer than hijacking (25 years), rape (5-10 years) and other serious offenses? perhaps you think these sentences are too short? Should rape and murder have sentences longer than 30 years? if you believe this, then you are essentially arguing that virtually any violent crime, and even many nonviolent crimes, should be punishable by life imprisonment. In my view, this is certainly cruel and unusual. It is an extremist view and denies the possibility of rehabilitation.
This sentence is utterly outrageous.
Repeatedly rape a child in vermont and get 60 days. Sell marijuana while possessing (but not using or brandishing a gun) and get 55 years. That makes so much sense. What do you legal professionals that come up with these decisions do all day anyway?
Posted by: dan steinberg | Feb 1, 2006 10:27:04 PM
Posted by: | Oct 14, 2008 10:21:36 PM
A couple of you have made comments about our "democracy." The Founders did not establish for us a democracy. "A republic, madam, if you can keep it." I consider this relevant because convicted criminals are just one of the minorities that were to be protected from the oppression of the majority that inevitably occurs in a democracy, as evidenced by the specific protections in the founding documents.
I would like to observe that when my family visited Colonial Williamsburg we learned that the Founders' principal concern with "cruel and unusual punishment" was lengthy incarceration. Dan is not the only one who thinks a life sentence falls under the Eighth Amendment.
Another concern I have with our "justice" system in general is the usurpation by the national government of jurisdiction in criminal matters from the states. I believe that originally the national government was to only have jurisdiction over specific crimes like treason and counterfeiting.
Driving a car fast also can lead to fatalities. Shall we make the penalty for speeding comparable to that for manslaughter?
There is so much wrong with the "justice" system today I don't know where to stop.
Have any of you seen the film "Minority Report"?
Duane M.
Engineer
B.S. Physics, '84
Posted by: Duane | Dec 9, 2008 11:27:16 PM
