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April 6, 2007

Technicality leads Eleventh Circuit to require 5-year mandatory for veteran

Because I am personally involved in the case, I cannot provide an objective scholarly view of the Eleventh Circuit's work today in US v. Lett, No. 06-12537 (11th Cir. Apr. 6, 2007) (available here).  But I think it is fair to say that the case involves an honorable veteran being ordered by the Eleventh Circuit to serve a five-year mandatory minimum sentence based essentially on a techinicality.  I would be interested in hearing reader reactions.

I expect that an en banc rehearing request and a cert petition will follow, so this is surely not the end of the road for this case (or for my involvement).

Some related posts on the Lett case:

BIG REMEDY QUESTION:  As folks process this ugly ruling, I hope someone can help me undestand why it is appropriate for the Eleventh Circuit to remand for resentencing with the instruction that an unreasonable (and not legally mandated) five-year sentence be imposed, rather than just remand for resentencing.  Though I disagree with the ruling that resentencing is required at all, I am especially troubled (and puzzled) about why and how the Eleventh Circuit has authority to require a particular sentencing term upon resentencing.

April 6, 2007 at 09:47 AM | Permalink


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The military vet will serve more time than the CNN office building shooter got for his first murder.

Posted by: federalist | Apr 6, 2007 10:18:30 AM

Federalist, Why don't you say, "If you can't do the crime, don't do the time." Obviously, this person committed a crime that the legislature thinks is worth punishing, and the 11th just reversed an activist judge's making of new law.

I will sleep easier knowing that he won't be harming society.

Posted by: S.cotus | Apr 6, 2007 10:53:21 AM

S.cotus: I wish you'd stay on-point rather than keep trying to pick fights with federalist.

Posted by: Doug B. | Apr 6, 2007 10:55:00 AM

Harming society, Federalist? Did you even read the opinion? The guy sold drugs for like a month, stopped doing so and returned to military service despite having left because of traumatic experiences in Iraq, serves more than honorably for an entire year, and is then arrested. What harm does he pose?

Posted by: anon | Apr 6, 2007 11:02:04 AM

Harming society, Federalist? Did you even read the opinion? The guy sold drugs for like a month, stopped doing so and returned to military service despite having left because of traumatic experiences in Iraq, serves more than honorably for an entire year, and is then arrested. What harm does he pose?

Posted by: anon | Apr 6, 2007 11:02:06 AM

Isn't it implicit in the remand that the district court has to impose the original sentence? Once the COA holds that the lower court cannot use Rule 35(a) to change the original sentence, it seem like the original sentence has to stand. Otherwise, the lower court could circumvent the COA's ruling. I know that other COAs have done similiar things, meaning that they remand with instructions to impose a sentence of "no less than" or "no more than" some specified term of imprisonment.

Posted by: Educated Guess | Apr 6, 2007 11:07:55 AM

My comments should have been addressed to S.cotus, not Federalist. My mistake.

Posted by: anon | Apr 6, 2007 11:18:22 AM

For starters, I do not believe that the sentence is based on a technicality. (As I see it, Lett's argument is more "technicality"-based than the government's appeal.) This appeal involves two main issues, one substantive and one procedural. The substantive issue is the safety valve. The procedural issue is Fed. R. Crim. P. 35. While the CoA's decision focuses on the procedural issue, I think that, as you look at the appeal, you have to START with the substantive issue.

One key premise of the safety valve is the role of the prosecutor. Under 3553(f), the government has to be "afforded the opportunity to make a recommendation" to decide upon and argue the applicability of the safety valve. Another key premise is that the defendant's crime not involve "a continuing criminal enterprise." And another is that the defendant must truthfully prove all information and evidence to the government regarding the offense prior to the sentencing hearing. The CoA's prolonged discussion of the nature of the conspiracy indicates to me that they thought this was a continuing criminal enterprise; the fact that the government objected to application of the safety valve indicates that they did not get the chance to appropriately weigh in regarding application of the safety valve; and the fact that there is no indication that Lett provided "all infomation and evidence" (i.e., his own testimony against his family members) shows that the CoA believed that, substantively, the safety valve should not apply.

As for Rule 35, I think that the CoA's substantive analysis controlled the outcome. They did not believe that the safety valve applied, so use of Rule 35 to apply the safety valve was that much more inappropriate. Although the case was discussed primarily with regard to the use of Rule 35, I believe that the CoA's substantive application of the safety valve significantly affected the Rule 35 analysis.

All that being said, it's a tough loss. And a good example of why Congress should re-examine mandatory minimums.

Best of luck on the en banc and cert.


Posted by: Mark | Apr 6, 2007 11:18:54 AM

To follow up on your remedy question: the case has to go back for resentencing. The CoA did not want to give the district court the chance to, upon resentencing, give Lett the chance to fulfill the requirements of 3553(f). That's a tougher call, in my opinion. The Rule 35 procedure was inappropriate, but, because the case HAD to go back for resentencing, the district court would have had the opportunity to go through 3553(f) (specifically, giving the government the "opportunity to make a recommendation" regarding the safety valve and giving Lett the opportunity to provide "all information and evidence" to the Government prior to the (re-)sentencing hearing). The CoA, by ordering a specific sentence or remand, intentionally wanted to avoid those two possibilities. They did not want the district court's misapplication (in the CoA's view, not mine, by the way) of Rule 35 to be an opening for the district court to reopen the sentencing hearing on remand to a 3553(f) proceeding.

All of this is incredibly wasteful, because Lett will have a great 2255 ineffective-assistance-of-counsel argument, which would require a more substantive analysis of 3553(f). It would be better to have that issue resolved now. (Something to think about for your en banc.)

The Eleventh Circuit, on Booker remands, has been rather pointed with reversing sentencing decisions and saying "on remand, a reasonable sentence must be at least X." Those decisions, coupled with Lett's case, show that the Eleventh is worried that district judges in their circuit are not as pliant on remand as the CoA would like. That fear has made for some bad law, in my opinion, but I take solace from the fact that, apparently, the district judges in the Eleventh apparently have enough spine and intelligence that the CoA has to worry about getting their way after a reversal.

Again, best of luck.



Posted by: Mark | Apr 6, 2007 11:32:47 AM

You're reading way too much into this decision, Mark. The 11th Circuit had no problem with the district court's finding that the 5 safety valve criteria were satisfied. It held simply that post-Booker, it was not clear that the safety valve could be used to sentence below a statutory minimum when the Guidelines range was above that minimum. Pre-Booker this wouldn't seem to have been a possibility because the Guidelines were mandatory, meaning that the only time a sentence could fall below the minimum is when the Guidelines range did as well. The court's point is just that it's not clear whether Congress would have enacted this statute under an advisory Guidelines system. And that's the rub: in order to use Rule 35, it has to be *clear* that an error was committed. That seems to me to be the natural reading of the opinion. Am I missing something here?

As for the remedy question, the obvious answer is that given by Educated Guess. The govnerment appealed the district court's use of Rule 35 to resentence Lett. The 11th Circuit found that Rule 35 did not allow the district court to alter its original sentence. The natural effect of striking down the second sentence is to reinstitute the first sentence. Absent some other procedural vehicle that would let the district court alter its original sentence, the district court has no choice but to impose that sentence.

Posted by: keep it simple | Apr 6, 2007 11:53:36 AM

Of course I agree with you folks. This guy is going to have to serve too long a sentence, and he didn’t do much harm to society. (I am a little unsure whether credit for military service is a coherent doctrine unless you factor in similar services to society or similar hardships, but I will go with you on that. After all, there are both good and bad people that served in the military, and it is pretty much impossible (and impractical) for recruiters to screen for pureness of heart and “character.”)

Unfortunately, Professor and anon, you seem to be forgetting that these debates are taking on political dimensions. Whenever you argue that someone’s sentence should be lower (as you usually do), someone will jump in and put your argument in political terms. No matter how technical your argument, or how well-grounded in 6th or 8th amendment jurisprudence, someone will call you a “liberal” something. Federalist reliably does this.

Sometimes things get strange. When the individual defendant has characteristics that can be stated in a politically positive way (i.e. military service or border guard) the politics is reversed, and people jump in and pound the table for leniency. But why? His crimes are remarkably similar to those of many people. Sure he served in the military. Sure his life is tragic, but the only reason that your argument are carrying the day with those that usually want to put people in jail for long periods of time is because of the political appeal of the person.

PS: By the way, I think that the practice of a CTA setting a minimum “reasonableness” floor is incorrect, since it usurps their discretion.

Posted by: S.cotus | Apr 6, 2007 11:58:32 AM

I will assume, for the sake of my first analysis here, that the COA is right and that Rule 35 was not applicable here. Because no "correction" was allowed to occur, this means that on remand, the original sentence must be imposed.

HOWEVER, nothing from today's opinion would foreclose Mr. Lett from appealing the sentence given on remand. Naturally, that sentence will be 5 years, but that does not mean it is the correct sentence. Mr. Lett should appeal the 5 year sentence given on remand, arguing that that 5-year sentence is the result of a mistaken belief that the safety valve did not apply. (He should also be able to argue “reasonableness”, but if the mand. min. does apply, he would almost certainly loose on that issue, unless a panel is willing to hold that Booker’s reasonableness review is a check on Congress’s mandatory minimum penalties.).

The key thing to remember is that this opinion does not hold the district court's second analysis (i.e. Prof. Berman's analysis) was wrong. See Slip Op. pg. 16. Nor should any potential en banc or Supreme Court case consider this issue. Today's opinion only held that the second analysis was not "clear error." If he ultimately looses all of his appeals on whether Rule 35 applied, Mr. Lott should then be free to appeal the merits of the issue (i.e. whether post-Booker, the safety valve is not applicable if the advisory range is higher than the mand. min.).

Now there is the question of what standard of review would apply for the "merits" appeal. For the purpose of this second analysis, I will assume that Prof. Berman's analysis of the safety valve post-Booker is correct, and the district court erred in imposing a 5 year sentence based on his mistaken view of law. Under such an assumption, there is error, but, as today's opinion makes clear, it would not be "plain." Slip. Op. at 20. However, Mr. Lott's request at sentencing for a sentence of “probation” or "the minimum sentence possible" might be enough to preserve the merits issue, so that harmless error (not plain error) applies on the merits appeal.

Essentially, my point that Mr. Lott's 5 year sentence imposed on remand will not necessarily be the correct sentence, and he will still have avenue for relief even if he looses this line of appeals. Given that, the panel probably should not have specified a 5 year sentence on remand, but should have just left it at "impose the original sentence."

Posted by: DEJ | Apr 6, 2007 12:06:22 PM

I am the defendant's lawyer in this case. "Keep it simple" got the question exactly right. The government conceded at sentencing and on appeal that my client qualified for safety valve. So safety-valve eligibility was not an issue in the case. "Keep it simple" also got the remedy analysis exactly right. Re-imposition of the original sentence is the remedy required by existing Eleventh Circuit case law. That's why I made the "plain error" argument/analogy on appeal, which is referenced in the court's decision. What the court fails to mention in the opinion (which I feel is somewhat intellectually dishonest) is that errors that are "plain" at the time of appeal are "plain" for purposes of the plain error standard. My position was that (is that) the error is now clear or plain under the court's Poyato decision. I was trying to get the court to go that way with the Rule 35(a) "clear error" standard. Any thoughts on that analogy that may help me with rehearing en banc?

Posted by: FedDef | Apr 6, 2007 12:10:28 PM

To follow up, I think the title of the post that the COA "require[s] 5-year mandatory for veteran" might be a bit (intentionally?) sensational. The COA only said "not clear error." In a future appeal, this same Court could consistently hold that a 5-year mandatory minimium is not "required."

Posted by: DEJ | Apr 6, 2007 12:13:09 PM

S.cotus, we entrust district court's to make person-specific determinations at sentencing, so I see no reason why we wouldn't trust them to separate honorable military service from less-than-honorable military service. What's most significant about Lett, however, is not that he returned to military service, but that he voluntarily put the drug dealing aside and returned to the very source of his trauma, where he served for a year without negative incident.

Posted by: anon | Apr 6, 2007 12:16:14 PM

keep it simple,

You write:

"You're reading way too much into this decision, Mark. The 11th Circuit had no problem with the district court's finding that the 5 safety valve criteria were satisfied."

I think you've overstated the CoA's analysis of the safety valve issue. The CoA clearly had a potential problem with the district court's finding that the safety valve criteria were satisfied. The CoA wrote, "At most, the district court misunderstood the breadth of its discretion under the safety valve provisions of U.S.C. s. 3553(f) adn U.S.S.G. s. 5C1.2 . . . causing the court to impose a sentence a sentence higher than it would have had it correctly gauged the law. We say 'at most,' because it is not clear that the district court's initial understanding of the scope of its discretion was mistaken." In other words, the CoA says that it's not clear that the district's belief that it was bound by the statutory minimum was not mistaken. In other words, the CoA says that it's not clear that the safety valve applies to Lett. In other words, the CoA apparently looked at 3553(f) and they weren't convinced it applies to Lett. But the CoA states specifically that it "does not reach the merits" because it only has the Rule 35 issue before it. But they did clearly examine the merits of Lett's safety-valve argument, IMHO.

Imagine the situation where CoA thinks that the the safety valve clearly applies to Lett. I don't think they use their "at most" discussion at all. I think that they write a different opinion. I think they affirm the sentence.

I may be wrong about what the CoA would have done if the safety valve clearly applied to Lett, but I don't think I've misread what they did here at all.


Posted by: Mark | Apr 6, 2007 12:16:32 PM

Mark, I should've been clearer in my initial post, and I think I see the source of our confusion. The 5 safety valve criteria serve 2 purposes. First, under the Guidelines, they can result in a 2-level reduction of the base offense level. Second, under 3553(f), they can allow a district court to sentence below a mandatory minimum. The 11th Circuit's doubts are about whether it is clear, under an advisory Guidelines regime, that courts can apply the statutory safety valve when the Guidelines range falls above the statutory minimum. They didn't have any doubts that the 5 criteria which underlie both the Guidelines reduction and the availability of the safety valve were met. I should have made this distinction in my initial post.

Posted by: keep it simple | Apr 6, 2007 12:26:11 PM

S.cotus--I think your argument about reverse politics is decidedly unfair. Military service to one's nation is, or should be, axiomatically, a good thing. I also think that it is possible to argue that people ought to have that count for something in sentencing (kind of a "military discount" so to speak) without being subjected to catcalls of hypocrisy from the likes of you.

Lett does deserve some mercy for his service to our nation. (Whether that's enshrined in the law, I'll leave to the lawyers.) In any event, I don't think my views on criminal law are inconsistent and change when the "politics" changes. Mostly, I focus on public safety, and, what is in my view, insane "jurisprudence" that interferes with society's right to punish wrongdoers.

Posted by: federalist | Apr 6, 2007 12:29:06 PM

Anon, I agree with you about such distinguishing.

Posted by: S.cotus | Apr 6, 2007 12:30:21 PM

keep it simple,

I think we're getting somewhere. I don't care what is in 5C1.2. That's just part of a Guidelines calculation. Post-Booker, who cares? We've got a variance here from the Guidelines (good!), so the question becomes, "How low can the district judge go?" That's why 3553(f) matters. It lets you get below the statutory minimum (which is 60 months). Booker did not get rid of any statutory minimum sentences. Booker does not affect statutory minimum sentences. But a STATUTE can affect a statutory minimum sentence, and that's what 3553(f) does. I think that the CoA looked at 3553(f) and -- regardless of what the defense counsel, prosecutor, and the probation officer who prepared the PSR may have thought -- the CoA thought, "We don't think that 3553(f) applies to Lett." (Possibly for the reasons that I discuss above, maybe for others, I don't know.) So, if 3553(f) does not apply to Lett, then the 60-month statutory minimum applies to Lett. Ergo, Lett has to have at least a 60-month sentence. No one wants it to be more than 60 months, so, on remand, Lett gets a 60 month sentence. Q.E.D.

Posted by: Mark | Apr 6, 2007 12:42:40 PM

Yeah, the COA basically said, "It's not clear that 3553(f) applies to Lett." The key is that they thought this, not because he failed to satisfy one of the 5 criteria in f(1)-(5), but because his Guidelines range was above the statutory minimum.

Posted by: keep it simple | Apr 6, 2007 1:18:30 PM

The COA did NOT say: "We don't think that 3553(f) applies to Lett." It only said: "We don't think it is clear error to believe that 3553(f) does not apply to Lett."

Posted by: DEJ | Apr 6, 2007 1:22:06 PM

It's a technicality, but I don't see any arguments from anyone that the 11th Circuit misinterpreted Rule 35(a). If it's really the case that the rules don't allow the district court to reconsider (as opposed to correct) its decision, then the 11th Circuit's decision is right.

To get around the ruling, it seems to me, someone has to make an argument that either (1) Rule 35(a) is broader than the CA11 says it is, (2) there's some other source of authority for the district court to reconsider a sentence under the circumstances here, or (3) there's some sort of due process/equity right to ignore Rule 35(a) when, as here (assuming that the "safety valve" can defeat the mandatory minimum, which is dubious), the defendant is prejudiced as Lett is and there's no compelling reason to bind the district court to its initial ruling.

Posted by: Bill | Apr 6, 2007 1:41:49 PM

Somebody already mentioned this, but on remand, after a 5-year sentence is given, why can't the defendant appeal that his sentence was "unreasonable" because the district court made an error of law in its belief that it couldn't sentence below the mandatory minimum? If post-Booker, the safety valve can, as a matter of law, undercut a mandatory minimum sentence, and the judge when it initially gave the five-year sentence believed to the contrary, isn't the resulting sentence necessarily procedurally unreasonable?

Posted by: Elson | Apr 6, 2007 2:36:14 PM

Elson, I think you are EXACTLY correct. See my comments at 12:13:09 PM. And I guess the argument could be described as "procedural unreasonableness." I would just hesitate to go there because it might confuse things. That phrase is usually used to described how the Guidelines were calculated, whether they were calculated accurately, and the weight given to them. In the abstract, although, I guess it is a procedural unreasonableness grounds because it contests the method by which the sentence was reached.

To avoid confusion, however, I would just phrase any merits appeal as appealing an error in interpreting the law post-Booker.

Posted by: DEJ | Apr 6, 2007 2:45:53 PM

Actually, as I think about this more, the argument can likely be made now as an alternative basis to uphold the district court’s sentence. In fact, it might be waived if not made now, which would, of course, be fatal to the defendant's claim since if the case goes back up to the 11th Circuit after remand, we already know the district court's initial sentence was not plain error. It seems like it should be made in the petitions for rehearing/rehearing en banc.

DEJ, I could be wrong, but if the district court judges makes an error of law in determining the sentence, that's a procedurally unreasonable sentence. That's what happened here. (The label, of course, doesn't matter and perhaps I'm confused about this anyway.)

Of course, there's no way the 11th Circuit holds that you can sentence below MMs if you meet the safety valve standard when the guideline sentence is above the MM.

Posted by: Elson | Apr 6, 2007 2:54:18 PM

Lett's plea agreement contains a sentence-appeal waiver provision. He cannot appeal the 60-month sentence unless the government agrees to waive the waiver. (I did not (and my office did not) negotiate that plea agreement, btw - just handled the appeal).

Posted by: FedDef | Apr 6, 2007 3:00:37 PM

But I assume the Government is just jumping at the chance to waive the waiver to ensure that the defendant has a full oppurtunity to make sure justice is done? *awkward silence*

Posted by: Elson | Apr 6, 2007 3:04:13 PM

You're beginning to see the irony in Judge Carnes' reference to Patrick's life as a "morality play." Also noteworthy is the fact that the government did not ask the Court of Appeals to re-impose the original sentence. They asked for resentencing.

Posted by: FedDef | Apr 6, 2007 3:27:52 PM


Responding to your 1:22:06 post, I agree with you. I have mainly been discussing what the Court apparently THOUGHT of the safety-valve issue, not what it said.

Using your formulation: "We don't think it is clear error to believe that 3553(f) does not apply to Lett," the CoA HAD to form a belief about the applicability of 3553(f) to Lett. Granted, it may not have thoroughly thought out the application of 3553(f) to Lett (which I doubt), but the CoA can't say that something is not "clear error" unless it analyzes whether it is "error." I pray to God that the CoA did not think, "Well, it may have been error, which I won't decide, but it was not clear error."

The district court honestly admits, "I missed this safety-valve-in-3553(f)-can-eliminate-the-60-month-statutory-minimum-sentence issue when I sentenced Lett." The error was clear enough to the district judge, within 7 days of the sentencing (as required by Rule 35). If the CoA takes the time (which it must?) to decide whether there was error, how can they say that the error was clear to the district judge but not clear error? It's not like he just changed his mind; he friggin' admitted that he forgot a key statutory provision when sentencing Lett.

That's why I've argued that the CoA really doesn't think that 3553(f) applies to Lett. I may be wrong. I sincerely hope I'm wrong. Because, if a district judge can't say, within seven days of sentencing, "I forgot a key part of the law when sentencing Defendant X, and that law permits a different, more appropriate sentence, in my judgment," then "the law is a ass." And, respectfully, the panel would be too.


Posted by: Mark | Apr 6, 2007 3:36:56 PM


Keep praying. Appellate courts all the time, under plain error review, say "Well, it may have been error, which I won't decide, but it was not clear error." See 461 F.3d at 1182 ("Even if the district court erred, the error certainly was not 'plain'.); 108 F.3d at 671 ("there is only sparse case law addressing this question, and what little case law exists is divergent and conflicting" thus not "plain").

And I do think that is exactly what the Court did in this case. The panel is mainly wrestling with what "kind of error ... is clear enough for
correction under [Rule 35]." Slip at 13. And all the cases the panel cites stand for the proposition that Rule 35 is very narrow. The panel continuously says "not clear" and "not obvious." Slip at 15. See also slip at 17("arguable error is one thing, and clear error is another"). The panel begins to describe the method it would use to decide the issue, but stops short because "the merits of the issue are not before us." Slip at 16. There was no need for the court to determine if there was error in order to decide that any potential error was not clear.

Your argument seems to rest on the question: "how can the panel say that the error was clear to the district judge but not clear error?" Well, the response is that it wasn't clear to the District court judge. In fact, the district court judge said: "The answer certainly is not clear, because there is little or no guidance from the courts of appeal or even from sister courts throughout the country.” Slip at 10.

I, no doubt, believe Mr. Lett should have a lower sentence and think the amended sentence was just. I just don't think this opinion forecloses the possibility of that result from ultimately occurring.

Posted by: DEJ | Apr 6, 2007 4:46:22 PM

[I'm a law clerk.]

My dad likes to say that "a little common sense goes a long way." Here it seems that a little sense of justice could have gone a long way.

Couldn't the U.S. Attorney have let this one go?

Posted by: B | Apr 6, 2007 4:52:22 PM

There might be a way to overcome the appeal waiver hurdle.

Posted by: DEJ | Apr 6, 2007 5:05:21 PM

keep it simple,

at 1:18:30, you wrote,

Yeah, the COA basically said, "It's not clear that 3553(f) applies to Lett." The key is that they thought this, not because he failed to satisfy one of the 5 criteria in f(1)-(5), but because his Guidelines range was above the statutory minimum.

You may be right. If you are right, then the CoA's decision is bad, in my opinion, in light of Booker, 3553(a), and U.S.S.G. 5G1.1.

Prof. Berman has done a great job of showing the role of the "parsimony requirement" of 3553(a) post-Booker. (Basically, a sentence must be sufficient, but not greater, than the lowest sentence necessary to meet the sentencing goals in 3553(a)). In addition, under U.S.S.G. 5G1.1, "Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence." This has always been true. However, what it means now, post-Booker, is that a "parsimony" sentence under 3553(a) is ALSO the "guideline sentence" when the "applicable Guidelines range" is higher. (I.e., the maximimum statutory sentence is established by 3553(a), which becomes the "guideline sentence" by operation of 5G1.1.)

Therefore, if you're correct that the CoA thinks that Lett qualified for the safety valve but that 3553(f) does not apply to eliminate the 60-month minimum sentence, the CoA has, I believe, failed to apply 5G1.1 to Lett. The logic goes something like this:

1. Lett's initial Guidelines range is 78+ months.
2. Post-Booker, the district judge may sentence Lett below 78 months.
3. Post-Booker, Lett's MAXIMUM sentence under 3553(a) is that which is "sufficient, but not greater than. . . ."
4. The district judge determined that Lett's imprisonment, below 60 months, met 3553(a).
5. A sentence below 60 months would violate the "basic" statutory minimum of 60 months in 21 U.S.C., unless 3553(f) applies to Lett.
6. 3553(f) allows a district judge to impose a sentence if the sentence is "pursuant to the guidelines . . . without regard to any statutory minimum" and if the five safety-valve elements are met.
7. Under U.S.S.G 5G1.1, the "guidelines sentence" is the maximum permitted by statute, and, post-Booker, 3553(a) establishes the maximum statutory sentence for Lett (which is less than 60 months).
8. Because the "guidelines sentence" is actually less than 60 months (by operation of 5G1.1), 3553(f) permits the district court to sentence Lett "without regard to any statutory minimum sentence" if he meets the safety-valve elements.
9. Lett met the safety-valve elements.
10. Therefore, Lett's sentence, below 60 months, was permitted by 3553(f) (and mandated, according to Prof. Berman's logic, by 3553(a) and Booker).

Of course, this line of reasoning assumes that the CoA thinks that Lett meets the safety-valve requirements. And it requires a specific interpretation of "statutory maximum" in 5G1.1 and "a sentence pursuant to guidelines promulgated by the [USSC]" in 3553(f). But that's what's required post-Booker. Neither Congress nor the Sentencing Commission would have written the rules these way if they knew that SCOTUS was going to excise 3553(b) from the statute books. So, "legislative intent" interpretations of 5G1.1 and 3553(f) are useless post-Booker. Leaving "legislative intent" interpretations aside, I believe a logical application (actually, the best logical application) of 3553(a), 3553(f), and 5G1.1 MANDATES a sentence below 60 months for Lett -- assuming that he meets the elements of the safety valve.

Sorry for the long posts. I can't keep it simple, apparently.


Posted by: Mark | Apr 6, 2007 5:35:07 PM


With regard to your 4:46 post:

There's a huge difference between a Rule 35 "clear error" situation and a Rule 52 "plain error" situation. They should not be treated, IMHO, even remotely similarly. Under Rule 35, the district judge, very shortly after imposing sentence, notices that he or she forgot to consider something. That's clear error -- at least to the judge. Why would a Court of Appeals -- if the judge is remotely correct -- care about reversing the judge's final decision WITHOUT REGARD TO WHETHER THE DECISION IS CORRECT? The district judge recognizes his or her error and corrected it. If the judge is wrong, the CoA can correct it. What other interest is involved? None.

Plain error under Rule 52 is different. There, in the trial court, NO ONE -- not the attorneys and not the judge -- sees the alleged error. More importantly, the district judge doesn't get the chance to consider and decide upon the alleged error. That's a totally different situation that Rule 35, because there's been no ruling by the trial judge -- who's in the best situation to make the many determinations that usually affect conclusion of the issue.

I'm not naive. I know that judges can engage in thinking, "I'm not sure whether there's error, but I know that it's not [clear][plain]." Such thinking is bad enough under Rule 52, but it's absolutely horrible under Rule 35. No interest implicated by Rule 35, in my opinion, calls for such thinking. Rule 35 is written to stop a judge from thinking, "Boy, I was too harsh [soft] on that defendant. I'm going to change his sentence, even though I imposed a different sentence." It simply does not apply when a judge determines that HE FORGOT TO CONSIDER A RELEVANT STATUTE at sentencing. Maybe the CoA, familiar with Rule 52 (as you are), used similar logic under Rule 35 to deny everyone the benefit of prompt and timely consideration of all relevant statutes by the district judge. If so, shame on them.


Posted by: Mark | Apr 6, 2007 6:15:25 PM

I understand your argument that it should be more relaxed under Rule 35, and I agree with your statement that the judicial logic we are talking about is "absolutely horrible under Rule 35." But unfortunately, I don't think the the Rule itself or precedent supports such an interpretation. And, again, nothing in the opinon makes me think the panel intended to give any indication on the merits issue.

The advisory notes say Rule 35 applies to "errors which would almost certainly result in a remand of the case to the trial court for further action." This does not sound like the type of review you are envisioning for rule 35.

Finally, the judge did not "forget to consider a relevant statute at sentencing." He just thought that 3553(f) did not apply to Lett. Upon reconsideration (with help from Prof. Berman), he changed his opinion and thought that it did. I might agree with you that "no interest implicated by Rule 35 calls for" not allowing the judge to do this, but the advisory notes and precdent on the rule seem to maker a more harsh standard than you or I would like.

Posted by: DEJ | Apr 6, 2007 8:40:32 PM

B, No, the AUSA could not just “let this one go.” Why? Because he has to follow a series of policy directives, memos, and the handbook. He would have to justify “letting” it go, in terms of whatever policy provisions have come down. In fact, the guidelines themselves, as well as R. 35(a) are based on “common sense.” But just not the hindsight you desire. But, this is the nature of the beast.

Perhaps the president could pardon him or commute his sentence. He seems to be an ideal pardon case. Much better than those border patrol agents.

Federalist, The legal issues here actually have very little to do with his military service. In case you have not noticed, the question is whether the District Court judge can go back and amend a sentence using Fed. R. Crim. P. 35 in the way (or to the extent) that he did, to take into account the safety valve provisions. This has nothing to do with his patriotism, military service, or lack of it. Congress decided how much time people like him should serve. They even allowed judges to account for mitigating factors.

People join the military for all sorts of reasons. Some for school. Some out of boredom. Some because they like violence. Some to keep them out of trouble. And yes, some people join out of pure patriotism. The record demonstrates that at least some people think that he joined the military for the right reasons. (Unfortunately, evaluations in the military are usually inflated, so I can’t uncritically credit peoples’ testimony.) However, circumstantial evidence has convinced me that his heart is pure. But merely saying “I am a veteran,” even if true, doesn’t carry much weight.

Moreover, his military service did “count for something.” Just not for as much as people want it to. Perhaps Congress could pass a law providing that all people with at least 4 years of service, and an honorable discharged will only serve 30% of any sentence. So, if a rapist gets 30 years, he only serves 9. I don’t know how this would play with someone like McVeigh, but I imagine that he would be out in 5 years or so. (A provision could be made so that military service would be kept secret from the sentencing judge, so that the judge wouldn’t inflate the sentence to account for the virtual get-out-of-jail free coupon you are proposing.) This seems to be the approach that you are advocating. I wonder if this would be sort of a reverse deterrent, in which gangs would recruit ex-military types because of 1) their experience with weapons; 2) training abroad; and 3) immunity to harsh sentences. After all, people made the same argument about juveniles after Roper v. Simmons, and they might not have as much training.

Posted by: S.cotus | Apr 6, 2007 8:59:18 PM


Two responses to your 5:35 post. First, I think you'd run into problems arguing that the term "statutory maximum" now means something other than what Congress clearly intended it to mean pre-Booker. Congressional intent is precisely what the court got hung up on in Lett: they said that it's not clear what Congressional/Supreme Court intent would be post-Booker on the issue whether the guidelines must be treated as mandatory or advisory for purposes of 3553(f). I think they'd probably say the same thing about interpretation of the term "statutory maximum." That doesn't mean your argument might not convince other members of the court en banc; it just means that it won't be any easier of an argument to make than the arguments that seem to have been made already.

Second, it seems to me what your argument does is essentially to say that the Guidelines should be treated as advisory for purposes of 3553(f); you just get there in a different way than counsel for Lett did on appeal. Counsel for Lett seems to have relied on dicta from the Poyato decision for the proposition that the guidelines are now advisory for 3553(f) purposes. You reach that same conclusion by saying the statutorily-authorized maximum sentence is now the parsimony sentence, and a parsimony sentence is simply a pre-Booker guidelines range that is adjusted based on the 3553(a) factors--a sentence, in other words, that employs advisory guidelines. Again, while some members of the court might find your argument convincing, it doesn't address the concerns of the court in Lett.

Posted by: keep it simple | Apr 7, 2007 10:36:31 AM

Just wanted to point out that a second-year law student, Matthew Sinor, not Professor Berman, is the one who spotted the legal error and wrote a letter to the judge resulting in the amended sentence.

I noticed not even Lett's attorney, or Professor Berman for that matter, gives this guy any credit.

Posted by: Anon | Apr 7, 2007 11:46:45 AM

Dumb (and seemingly tardy) question. Couldn't Lett have cross-appealed here, arguing that his trial counsel was ineffective for failing to argue all of this in his initial sentence? Given the trial court's belief that the safety valve can apply, doesn't that create a "reasonable likelihood" of a different result?

Posted by: LonesomeClerk | Apr 9, 2007 8:44:50 AM

Having never read a Carnes opinion before, I might not be the best to judge him, but the opinion reads as if he really enjoyed writing it. The drama, the suspense, the quotes from Faulkner, and the references to religion. Just sick.

Posted by: JP | Apr 9, 2007 9:06:29 AM

Two points based based on recent comments:

1. Matt Sinor, my student, reported to me what he heard at Lett's initial sentencing and, on that basis, we together wondered about the application of the mandatory minimum and together talked through a strategy for inquiring about why the judge believed he could not sentence below 60 months. Needless to say, everyone gives (and should give) Matt a lot of credit for trying to keep the flame of justice burning for Patrick.

2. Though I won't speak for Lett's current counsel, I am not sure there was a basis for Lett to cross-appeal arguing IAC. First, Lett simply wanted the revised sentence to stand and so it's not clear he can appeal a determination he wants upheld. Second, IAC claims are usually addressed only through habeas actions, not on direct appeal.

Posted by: Doug B. | Apr 9, 2007 9:29:39 AM

2 responses:

1. I am admittedly unfamiliar with the FRAP, but in the State context it seems that Lett would argue that initial 5 year sentence was an interlocutory ruling that was revisited by the district judge and merged with his final, reduced sentence. Therefore, he could cross-appeal asserting that in the event that the DJ's final order is reversed, the court should also reverse the underlying interlocutory order which gave him teh 5 years. Again, though, this may have no application in the federal arena.

2. IAC is generally is raised in habeas to create a record to establish prejudice, etc. Here, due to the district judge's reduction of the sentence, a record has been created -- i.e., the current record demonstrates that if Lett's trial counsel had originally raised the safety valve issue, the resuly likely would have been different. Therefore, if Lett could have cross-appealed this issue, res judicata would bar him from raising it in a second appeal (assuming the govt. waives the waiver).

Posted by: LonesomeClerk | Apr 9, 2007 11:01:28 AM

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