Fascinating Ninth Circuit discussion of sentencing councils

The Ninth Circuit today in US v. Brigham, No. 03-30381 (9th Cir. May 5, 2006) (available here) has a fascinating discussion of whether the district judge committed error by being involved in a sentencing council that had discussed the defendant's case before sentencing.  Here are some key highlights:

Oregon has a procedure — unusual to us but evidently long established there — of regular sentencing council meetings for the district judges. According to a 1981 Federal Judicial Center study, sentencing councils of this sort were a reform implemented in four districts, intended to reduce sentencing disparity in that pre-guidelines period. But the study’s findings showed that the councils increased disparity in about as many categories as they reduced it, and mostly did not affect disparity at all.

Evidently sentencing councils are still used, or at least were when Brigham was sentenced.  They were no secret.  At Brigham’s sentencing hearing, the judge referred to the discussions that he had participated in regarding Brigham’s case at the sentencing council....  On appeal, Brigham argues that the sentencing council is a prohibited ex parte communication and that its use amounts to plain error....

None of the cases we have been directed to suggests that using a sentencing council like the one used in this case is error.  Because the error in using the Oregon sentencing council was not "plain," we do not have occasion in this case to decide whether it was error at all.  This is where we part ways with Judge Ferguson's concurrence. We do not hold that the Oregon sentencing council procedure is error, and we do not hold that it is not error.  We only hold that it is not "plain" error.

Here is what Judge Ferguson had to say at the start of his concurrence:

I concur in the majority’s remand in light of United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).  I write separately, however, to disagree with the majority's acceptance of the use of a sentencing council in determining Brigham's sentence.  Brigham entered into a plea agreement with the Government for a sentence of twenty-four months.  After meeting with a sentencing council, the District Judge increased Brigham’s sentence to thirty-seven months.  Neither Brigham nor the public will ever know what impact the council had on Brigham's increased sentence because neither party in the case was allowed to attend the sentencing council meeting, and a record of the exchange was not disclosed. Brigham's mere knowledge that a sentencing council was used in his case does not remedy this harm.