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August 17, 2007

Ninth Circuit reverses within-guideline sentence as substantively unreasonable!!

A full 31 months and five days since Booker, today has brought what I believe constitutes the very first appellate reversal of a within-guideline sentence as substantively unreasonable.  Strangely and disappointingly, this ground-breaking ruling appears as the final paragraph of an unpublished per curiam ruling in US v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (available here).  Here is that final paragraph in full:

Paul’s 16-month sentence is unreasonable. Several factors that are absent from the district court’s sentencing analysis demonstrate that this case does not fall within the “heartland” of cases to which the guidelines are most applicable, as described by the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2465 (2007).  All of the following facts demonstrate that a 16-month sentence was unreasonably high: Paul was a first-time offender with absolutely no criminal record whatsoever; she promptly returned all of the funds to the school district; she displayed remorse in two statements given to the Department of Labor prior to the filing of criminal charges; and the misappropriated funds represented compensation for work that she had performed for the district.  The district court did not adequately consider this strong mitigating evidence in sentencing Paul to the very top of the guidelines range. Accordingly, we vacate Paul’s 16-month sentence and remand with instructions for the district court to resentence Paul after giving appropriate consideration to the above-mentioned factors.

Kudos to the panel for being willing to declare this sentence substantively unreasonable. But why not publish this disposition and explain in fuller detail all the (seemingly quite sound) reasons when the 16-month sentence does not comply with 3553(a)? 

Notably, the reference to "heartland" is a throwback to the old pre-Booker departure standard, rather than an engagement with post-Booker issues.  For this reason and others, it is hard to tell if the Paul panel is saying the sentence is unreasonable because a departure was not granted when warranted, or rather is saying that the sentencing is unreasonable because the guidelines were followed.

I would like to hear a lot more about Paul from anyone in the know.  Why did the feds even decide to prosecute what seems to be a local infraction?  Why would the district court sentence at the very top of the range in a case of this type?  Has Ms. Paul been serving time during the pendency of her appeal?  Inquiring minds want to know....

August 17, 2007 at 01:54 PM | Permalink


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Wow, good job Ninth Circuit (is that an oxymoron?)! So I guess the guidelines really are advisory...who knew?!?!

Posted by: SPD | Aug 17, 2007 2:58:28 PM

It's possible that the reason that this is not published is so that it will incentivize the DOJ not to appeal the reduction. If more courts of appeals would take this quiet approach to deal with miscarriages of justice, then things might be better for everyone. Unfortunately, the Ninth has gone way beyond simply fixing a borderline case here and there.

Posted by: federalist | Aug 17, 2007 3:21:42 PM

While what Federalist says makes good “political” sense if your ultimate goal is not be reversed, as a legal matter, published opinions are supposed to add to (or subtract from) the law, or be notable in some way or other. This is Circuit Rule 36-2 and 36-1 (second paragraph).

Whatever the case, post-E-Government act and Fed. R. App. P. 32.1, the designation of unpublished or a designation of “non-precedential” means a lot less than it did before.

Posted by: S.cotus | Aug 17, 2007 3:52:51 PM

S.cotus makes a good point re: precedent.

Posted by: federalist | Aug 17, 2007 4:08:24 PM

Interestingly, this was not a liberal panel of the 9th. Reinhardt, sure, but Hall and Milan Smith are fairly conservative.

Posted by: JPS | Aug 18, 2007 12:04:04 AM

You know, maybe it wasn't really "substantively" unreasonable. Of course, this is the gray area between "procedure" and "substance" since there seems to have been *no* consideration of the missing factors.

And, since this was a "white collar" criminal who did no real damage, they were in need of sympathy. But, I guess this shows that sentencing progress will always be made with the defendants most similar to the court in terms of social status.

Posted by: S.cotus | Aug 18, 2007 9:54:42 AM

I assume this was the decision of one or more judges on the panel to make the case a much less attractive target for a cert petition. S.Cotus is right that this only makes good "political" sense and is inconsistent with the Circuit rules. But I don't know why that makes it a less likely explanation.

Posted by: Orin Kerr | Aug 18, 2007 3:35:32 PM

I don't think it's just about avoiding a potential cert. petition. It's also about avoiding creating a landmark that can be used by other defendants.

This is a consequence of 2 things: (a) a "law and order" (or, in the current term, "strict constructionist") appointments philosophy, that puts judges on the bench whose mission is, among other things, to make courts less defense-friendly; and (b) the crushing volume of the case load facing federal courts generally and the 9th Circuit especially.

When all 3 judges agree that the right result in the case favors the defendant, but that result would create new law to which the majority are philosophically opposed, a condition gets imposed: do the right thing, if and only if it's swept under the rug in an unpublished per curiam. That avoids this panel being the one to create a precedent that will be cited by literally thousands of future defendant-appellants.

Not the way it's supposed to work in a precedent-oriented system, but there it is.

Posted by: Def. Atty. | Aug 20, 2007 10:46:28 AM

Going back over the comments, I see that some would approve of such a cynical system, calling it "quietly fixing ... miscarriage[s] of justice." Seems to me that miscarriages of justice should be fixed in the open, to prevent future ones.

Posted by: Def. Atty. | Aug 20, 2007 10:52:16 AM

I don't think that's a fair read of my comment. The reality is that the criminal justice system deals with millions of people year after year. There are going to be problems with a particular sentence from time to time, even though the sentence is, strictly speaking, legal. If judges are circumspect in their actions and "correct" a few of these from time to time, that's just a natural part of the system, and I don't think even a hard heart like myself is going to get too worked up about it. What is more of a problem is the situation where "hard cases make bad law" and leniency is given away to undeserving people because it was given once to someone else.

Posted by: federalist | Aug 20, 2007 1:20:19 PM

Def Atty., But don’t you think that there is now no way for a Court of Appeals to sweep such a decision under the rug? The Ninth can’t force people to not cite it anymore. It is available it all. It can – and will – be cited. Of course, if it is really just a “procedural” correction it doesn’t mean anything apart from that the District Court should have considered the other factors. If it is something more than this then there is absolutely no way that it can be ignored. But, in reading over it again, I am becoming convinced that it really is not as earth-shattering as it seems.

What WILL be earth-shattering, is when a Court of Appeals reverses (in favor fo the defendant) a sentence because the District Court judges considered (or pretended) all the 3553(a) factors, but the Court concludes that it did not weigh the factors correctly, and concludes that a lower sentence is warranted under what it considers to be the appropriate weighing of the factors. In essence, a court will have to say that some factors are not as important as others.

The “error correction” v. “substantive law” debate is actually quite intriguing. But, I don’t know if this is really the right case to test it.

“Strict Construction” can mean so many things that I am not convinced that it is one of those meaningless terms (like “clearly” or “justice”). For my money the language of the constitution is extremely defense friendly. It is also friendly to gays, too. But, some people disagree.

Posted by: S.cotus | Aug 20, 2007 1:24:06 PM

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