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April 1, 2008

Fourth Circuit demands consideration of acquitted conduct (in an unpublished order)

Though I wish the ruling was just an April Fool's joke, I fear the a Fourth Circuit opinion today in US v. Ibanga, No. 06-4738 (4th Cir. Apr. 1, 2008) (available here), is all too real.  In Ibanga, the Fourth Circuit in an unpublished per curiam decision holds that a sentencing court "committed significant procedural error, ... by categorically excluding acquitted conduct from the information that it could consider in the sentencing process."  In other words, Ibanga essentially holds that a district court must consider acquitted conduct at sentencing even after Blakely and Booker.

Regular readers may recall the terrific district court opinion in Ibanga (discussed here), in which District Judge Walter Kelley thoughtfully explained why he thought that acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  Because Judge Kelley wrote such a thoughtful opinion that focused on the text and precise instructions of 3553(a), I had hoped the Fourth Circuit would uphold the decision as a sound exercise of post-Booker discretion.  Instead, the Fourth Circuit, without showing enough courage to deliver a full published and signed opinion, just smacked the case back to Judge Kelley with a cursory opinion that starts this way:

This appeal by the government arises out of a drug trafficking and money laundering prosecution of a group of individuals that included Michael Ibanga.  The jury convicted Ibanga of conspiracy to launder money and acquitted him of the drug trafficking charges.  Nonetheless, the district court found at sentencing that the government had proven by a preponderance of the evidence that Ibanga had trafficked in 124.03 grams of methamphetamine (meth).  Although acquitted conduct proven by a preponderance of the evidence may be taken into account in sentencing, the district court sentenced Ibanga to a prison term that did not reflect any drug trafficking.  The government appeals Ibanga’s sentence, arguing that the district court contravened 18 U.S.C. § 3661 by categorically refusing to consider acquitted conduct -- Ibanga’s drug trafficking found by the court -- in determining his sentence.  Because it appears that the district court applied a standard that would categorically exclude consideration of acquitted conduct in every case, we vacate Ibanga’s sentence and remand for resentencing.

Because I think the Fourth Circuit mis-read's Judge Kelley's work AND because this case clearly justifies a lot more attention and analysis than the per curiam panel opinion provides, I hope that Ibanga will seek en banc review and cert if necessary. 

It is bad enough that circuits are always finding reasonable a district court's discretionary decision to enhance greatly a sentence based on acquitted conduct; it is really disheartening that the Fourth Circuit in Ibanga now finds unreasonable a district court's discretionary decision not to enhance greatly a sentence based on acquitted conduct.  Am I just crazy to believe that the rich discussion of the importance of jury findings in Blakely and Booker should have some resonance in modern federal sentencing?

April 1, 2008 at 05:48 PM | Permalink


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No, the Fourth Circuit is crazy. That much has *long* been clear.

Posted by: Reader | Apr 1, 2008 6:22:14 PM

without showing enough courage to deliver a full published and signed opinion

Right... because if a court of appeals addresses one of SL&P's pet issues, declining to put that order in the Federal Reporter shows a lack of courage, particularly when the opinion below cites 2 SL&P Hall of Fame judges and Charles Dickens. Despite the fact that it's "per curiam," all three panelists are named in the opinion and had to approve it before it went out. I doubt it's a lack of courage. Surely you have something more to say about the opinion than that.

For what it's worth, my gut reaction tells me that the CA4 opinion is wrong. After Kimbrough, courts can use "categorical" reasoning in fashioning a sentence. The crack guidelines are categorically unjust; it's categorically wrong to consider acquitted conduct at sentencing, etc. Judge Kelley used his discretion, he considered the acquitted conduct, and determined that it was entitled to no weight at all when considered next to the 3553(a) factors, particularly the need to promote respect for the law. Cutting the other way, though, section 3661 says what it says, and Watts has not been overruled. Moreover, one of the underlying themes in the cases pointing in the direction of greater discretion for the judges is to put more information on the table, not less. Thus, the judge who can consider letters from relatives, good works, policy statements by the sentencing commission, etc., can also consider acquitted conduct found by a preponderance and should not refuse to do so outright.

Judge Kelley wrote a good opinion about 3553(a), but as far as I can tell it makes no mention at all of section 3661, and I find it difficult to fault the Fourth Circuit panel for being unconvinced by Judge Kelley's arguments to the effect that Watts has been undermined by Booker and other cases in that line. Page 12, footnote 3 of Judge Kelley's opinion is particularly weak. What Justice Stevens meant (I believe) in Booker is that acquitted conduct might raise a constitutional issue if it results in a sentence that exceeds the statutory maximum. That would obviously be unconstitutional, but that doesn't seem to be what happened in Ibanga, and I think Judge Kelley stretches that line of Booker more than it can support.

As the issue seems to be squarely raised, I share Prof. Berman's hope that Mr. Ibanga will pursue this further. The briefing will improve, perhaps the Fourth Circuit will give this issue more attention, and perhaps the Supreme Court will confront one of the issues that's been floating out there at least since Blakely. (By "floating out there" I just mean that there are strong arguments against the settled law that deserve to be addressed, not that the law is unsettled).

What I'm wondering is if, on remand, Judge Kelley can simply give the acquitted conduct next to no weight on the theory that it's (1) less reliable than the facts found by the jury and (2) even if it's not off the table entirely, the use of such evidence tends to undermine respect for the law and should therefore be given diminished weight. An extra day or an extra month in prison for Mr. Ibanga, and life goes on unless the government wants to force the issue.

Posted by: | Apr 1, 2008 6:46:08 PM

6:46:08, our Founders threw a revolution tea party for less. Then they drafted a Constitution, including a Bill of Rights, because The People suspected the government would try to pull stuff like this.

This is outrageous and when enough of The People understand it they will drink tea as they sit at their computers a voice their rage.

What is amazing is that the government would appeal for this result and the courts would agree. Maybe District Judge Walter Kelley is our modern day Patrick Henry.

Posted by: George | Apr 1, 2008 8:09:08 PM

George, the web address for dailykos.com is so easy to remember that there's really no excuse for posting here by accident.

The argument for the government is not hard to follow. Off the top of my head, it probably goes like this:

(1) Under the Apprendi line of cases, other than the fact of a prior conviction, only facts admitted or found by a jury beyond a reasonable doubt may be used to increase a sentence beyond the statutory maximum.

(2) A judge may give any sentence under the statutory maximum for any reason within the bounds of 3553(a) without violating Apprendi.

(3) It is not unconstitutional to consider acquitted conduct in sentencing a defendant, so long as the resulting sentence is below the statutory maximum allowed based on facts either found by the jury beyond a reasonable doubt or admitted by the defendant. See Watts, Apprendi.

(4) Section 3661 of Title 18 says that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

(5) By refusing to consider acquitted conduct, regardless of whether the district court complied with 3553(a), it violated 3661 and misread Watts--both of which are good law--and thereby committed error.

The end.

To succeed, Ibanga probably needs to argue (1) that the district court's choice to assign acquitted conduct zero weight is within its discretion under 3553(a), and 3661 was not violated because the opinion reflects taht the district court did indeed "receive and consider" the evidence pertaining to the acquitted conduct, and/or (2) as Prof. Berman has argued elsewhere and as the District Court argued, acquitted conduct has no place in the sentencing calculus.

Perhaps Ibanga's attorney decided to spout off about tea instead, in which case the reversal would hardly be surprising.

Read Apprendi. As long as we have that, perhaps the solution to everyone's tea-slurping outrage over all of this is lower statutory maximums or more specific statutory definitions of criminal offenses. It's certainly not idle rants and poorly-written op-eds in the LA Times.

Posted by: | Apr 1, 2008 8:35:30 PM

Commentor 6:46:08, I want to address your concern with my calling out the Fourth Circuit for a lack of courage. Let me explain my adjective:

1. I think that under any reasonable standard of what types of rulings merit publication, this Fourth Circuit panel ruling ought to be published. So why isn't it?

2. I think it is fair to complain that the panel did not have the "courage" of its convictions because a published/signed opinion would have required a much greater explanation for why the very points you highlight should not carry the day, especially since appellate review is now clearly to be for abuse of discretion. You seem to concede that adding 1 day to the sentence might be sufficient, but of course the 4th Circuit does not speak to these matters. So the law is left more confused, in part because of the way the 4th Circuit decided to resolve this appeal.

3. Complaining about a lack of courage seems especially important given Gall's stated concern about the "perception of fair sentencing." How does this cursory opinion by the Fourth Circuit, especially in light of Judge Kelley's extended opinion, promote the perception of fair sentencing?

One reason I consider published/signed opinions VERY important is because of the accountability that comes with transparency. The Fourth Circuit's work here is opaque and (intentionally?) hidden. And I think this fact alone merits criticism apart from the merits of the ruling (and this is true even if this is one of my "pet issues" and even if the Founders would not have spit out their tea when reading about modern sentence enhancements based on acquitted conduct).

Posted by: Doug B. | Apr 1, 2008 9:07:50 PM

I agree with those that said that the Fourth Circuit's recitation of the law is correct, which is what makes the conclusion so bizarre. The sentencing judge must consider all relevant information, including acquitted conduct. Judge Kelley did that - he wrote a 30-something page opinion about it, so its pretty clear he considered it. After considering all of the information dictated by 3661, the sentencing judge must then filter that information through 3553(a). Judge Kelley did that. The sentencing judge may then disregard aspects of the 3661 information he deems not to serve the 3553(a) factors. The Fourth Circuit expressly states that and Judge Kelley did that. How, then, does the Fourth Circuit come to the conclusion that Judge Kelley failed to follow the rule?

I would put a shiny quarter on Judge Kelley giving Ibanga the exact same sentence.

Posted by: | Apr 1, 2008 9:38:15 PM

OK, I was wrong. Our Founders wouldn't be spouting off about tea, which is why they threw the 2A in there.

However, maybe I'm confused and the issue is sentencing no more than the max of the convicted sentence. Even if so, sentencing on acquitted conduct is sentencing on hearsay since guilt is not a legally proven fact. That was pretty sneaky of Congress.

But then our Founders were a little teaed off at Parliament too. Imagine being found not guilty of something and sentenced as if found guilty of it. My bet is that prison guards take the brunt of it. No wonder prisons have to put mesh screens over the cell bars nowadays.

Posted by: George | Apr 1, 2008 10:36:39 PM

One issue ripe for discussion is here Scalia's now twice mentioned view that "as-applied" Sixth Amendment challenges might succeed where a sentence would be affirmed *only* because of some additional judge-found fact, here, that conduct is trafficking in meth, conduct of which the jury acquitted the D but the Judge agreed was probably established by a preponderance.

As the CA4 opinion notes, the DJ noted that without finding the Meth fact the GL range would be 51-63 months, but that the Judge-found meth dealing moved the range to 151-188 months. If the DJ had imposed a sentence of 160 months, I think the D would have a very strong case that the judge-found fact of meth distribution was, in the words of Apprendi & Booker, a "legally necessary" predicate for the sentence such that the relevant "statutory maximum" is the GL range of 51-63 months. That is, no appellate court would affirm a 160 month sentence had the DJ simply *varied* from a 51-63 month range in a case where the DJ agreed with the jury that no meth conspiracy existed.

The Sixth Circuit had a concurring opinion addressing these kinds of issues a while back, US v Conatser, I think.

Ah, I just found the post about it: http://sentencing.typepad.com/sentencing_law_and_policy/2008/02/another-notable.html

Posted by: Reader | Apr 1, 2008 11:37:57 PM

Prof. Berman, thank you for the response. The debate about non-precedential opinions is a very interesting one and I think that there are a lot of factors that affect the judges' decision to publish or not publish a panel opinion. The CA4's rule requires (1) that the case be "fully briefed and argued" and (2) that 2 panel members think that it meets the criteria for publication.

My best guess is that the panel simply thought it was more straightforward than you do or than the district judge did. They thought that 3661, Watts, Gall and Kimbrough clearly settle the matter, and that the district court simply missed 3661.

There are several other possibilities, one of which is that they're not sufficiently confident in the opinion that they're willing to bind future CA4 panels with it, but I think that there are good arguments on both sides of the question whether that's necessarily a bad thing. That said, your post makes more sense to me in light of your comment and I appreciate it.

Posted by: first 2 anonymous comments | Apr 2, 2008 12:14:39 AM

I don't know why they'd be obsessive about publication in light of the new rules. They can't prevent citation anymore. The federal judiciary was (wisely) deprived of that power last year. Similarly-situated litigants will be treated similarly because district courts will have this opinion hanging over them regardless of "official" publication status.

Posted by: Alec | Apr 2, 2008 2:45:01 AM

I don't know why they'd be obsessive about publication in light of the new rules. They can't prevent citation anymore.

Unpublished opinions are still not binding on other panels. If the same issue reaches the CA4 again, and they think that acquitted conduct shouldn't be considered at sentencing (or at least that a judge can properly decide to consider it but candidly state that he gives it no weight), it's free to do so and to write a published opinion saying that without having to go en banc to overrule Ibanga.

The other thing about unpublished opinions is that they don't circulate to the full court before issuing.

Unpublished opinions are less useful to appellate practitioners than published ones.

Posted by: | Apr 2, 2008 5:56:01 AM

In other words, if Ibanga had been published, the next panel considering the same issue would ask itself "does the holding of Ibanga decide this case for us."

Now, there's probably a 50/50 chance that in the next acquitted conduct case, they won't even see Ibanga if the litigants don't cite it, and if they do, the question will instead be "was Ibanga correctly decided?"

It makes a difference.

Posted by: | Apr 2, 2008 6:05:59 AM

Judge Kelley will probably not get a second crack at Ibanga, because he is leaving the bench in May.

Re: accountability - we know which 4th Circuit judges all agreed to this opinion, so how does this make them less accountable? And actually one of the judges was a Senior Judge from the 8th Circuit, sitting by designation.

Posted by: steve | Apr 2, 2008 10:07:15 AM

I certainly am no fan of sentencing based on acquitted conduct, and I do believe there are constitutional concerns about doing so. However, I also believe that current case law supports two other modest principles. (This isn't my ideal, but I do believe the following would be an appropriate practice under current SCOTUS precedent). First, acquitted conduct must be considered when arriving at an advisory guideline range. Second, even under the current law, a judge is able to exercise his/her discretion under 3553(a) and "discount" or "disregard" the acquitted conduct.

In other words, I believe that the district court must: 1) calculate the correct advisory range using acquitted conduct, 2) but then consider the 3553(a) factors (one of which includes that resulting range) 3) and then based on that analysis determine that the use of acquitted conduct will result in a sentence that is greater than necessary.

My opinion about Ibanga, therefore, depends on what Judge Kelley did. (I have not read either the dist. ct. or the panel's opinion). If he never even "considered" the acquitted conduct (i.e. never even calculated an advisory Guideline range with it) then he erred because he never calculated a correct advisory range. However, if he did "consider it" but then "disregarded it" (even categorically) under his 3553(a) analysis, he did not err.
For an example of the former situation, see US v. Todd, 515 F.3d 1128 (10th Cir. 2008). There, in coming to the base offense level, the dist. ct. only used the amount of drugs the def. was convicted of (and disregarded relevant/acquitted conduct). The Cir. reversed b/c the court erred in calculating the range. The Cir. concluded by saying: "that a procedural fault occurred in Mr. Todd's initial sentencing hearing is not, however, to suggest necessarily what result his resentencing hearing should yield. On remand, resentencing proceeds de novo. ... And it may impose any reasonable sentence, within or without the Guidelines, consistent with the considerable range of discretion afforded to it."

Posted by: DEJ | Apr 2, 2008 11:56:42 AM

Regarding Apr 1, 2008 8:35:30 PM's comments that 3661 decides the case. A statutory command that "No limitation shall be placed on the information" a judge "may receive and consider" is not a command that the judge must believe that all of the information received and considered is important. The only requirement of 3661 is that both parties can present to the Court whatever info they want at sentencing. It imposes no obligation on the Court to do anything other than allow the parties to present info.

If judge Kelley said to the govt: "I don't even want to hear or learn about any acquitted conduct" then 3661 was arguably violated. Otherwise, if the govt was allowed to present such evidence, and the ct. considered but disregarded it, then 3661 is not relevant to the case.

Posted by: DEJ | Apr 2, 2008 12:08:39 PM

DEJ, you're probably right, but this case raises interesting questions about categorical reasoning and automating the process of sentencing. Suppose that a judge "considered" whatever arguments the parties made and kept a generally open mind, but was extremely candid about what types of arguments he thought were winners and losers.

Suppose he went so far as to write something up as a standing order. Would that really be any different from saying "I don't even want to hear or learn about any acquitted conduct."? I'd like to see a judge be candid about his tendencies and see the courts of appeals deal with that under the Supreme Court's sentencing cases. Imagine something like the following:

Standing Orders for Judge X

The following order is meant to assist prosecutors and defendants in presenting effective arguments at sentencing. Under the Supreme Court's cases, I have considerable discretion to set an appropriate sentence. My discretion is unavoidably affected by my personal views on crime and punishment (as is everyone else's, whether they admit it or not), and what follows is a brief summary of those views, which is provided in the interest of candor and transparency. Prosecutors and defendants may make whatever arguments they wish at sentencing, and I promise to listen with an open mind, but some categories of arguments will fail to persuade me more than 99% of the time, so what follows is fair warning.

I. In my view, acquitted conduct has no place in sentencing. See generally Ibanga (EDVa 2006). The government may make whatever arguments it wishes at sentencing, but in accordance with 18 U.S.C. 3553(a)(2)(A), but it is discouraged from doing so, and I will generally give such evidence and arguments zero weight in fashioning an appropriate sentence.

II. In my view, the Guidelines pertaining to crack cocaine are unjust. In setting a sentence, I will calculate the Sentencing Guidelines as if the defendant had been convicted of possessing an equal quantity of powder cocaine. The government may make whatever arguments it wishes at sentencing, and may offer its own Guidelines calculation, but it is discouraged from doing so, and in accordance with 18 U.S.C. 3553(a)(1), (a)(6), I will generally give such evidence and arguments zero weight in fashioning an appropriate sentence.

III. In my view, defendants who harm children are among the most reprehensible and least deserving of mercy. Thus, if the defendant's crime involves harm to minors (either as an element of the offense or as a fact proven at trial), I will generally exercise my post-Booker discretion to give sentences between (a) the high end of the Guidelines range, and (b) the statutory maximum. At the very least, I will put such defendants in prison wherever possible. Defendants may make whatever arguments they wish at sentencing, but they are discouraged from making arguments to the effect that an appropriate sentence is less than the high end of the Guidelines range, and in my discretion under 3553(a)(2)(A)-(C), I will generally give such arguments little or no weight.

IV. In my view, the War on Drugs is wasteful and unjust, and the federal law enforcement authorities are going after the wrong people. Thus, whenever a defendant is convicted of a non-violent drug crime (particularly simple possession), I will generally give the minimum sentence allowable and eschew prison wherever possible. The government may make whatver arguments it wishes, but arguments to the effect that non-violent drug offenders deserve prison sentences or sentences above the statutory minimum will generally not succeed.

V In my view, rich white people catch a lot of breaks that they shouldn't, and they often try to minimize the seriousness of financial crimes. Defendants may make whatever arguments they wish at sentencing, but in my discretion under 3553(a), I will generally sentence rich white defendants harshly for financial crimes, and even more so if I detect any attempt to minimize the seriousness of the offense.

VI In my view, having grown up in poverty in a broken home is no excuse for committing violent crimes. Defendants will make whatever arguments they wish at sentencing, but they are discouraged from making arguments of that type, and in my discretion under 3553(a), I will generally treat such arguments as evincing a lack of remorse or a lack of appreciation for the seriousness of the offense and will consider a harsher sentence than I might otherwise have considered.

Posted by: 4/1/08 8:35:30 | Apr 2, 2008 1:38:03 PM

slight typo in section I. (words out of order), but the 2 people who actually read my comment can probably figure it out.

Posted by: 4/1/08 8:35:30 | Apr 2, 2008 1:39:28 PM

To adequately address the panel's concern, Judge Kelley need only append "on the facts of this case" to his conclusion that acquitted conduct doesn't impact his 3553(a) analysis.

Agreed that the unpublished/per curiam opinion is a weak response to a well-reasoned district court analysis. But it's hardly as poor as, and may be partially explained by, the Supreme's refusal to grant cert on the same issue.

Posted by: Rick H. | Apr 2, 2008 4:27:15 PM

For the history buffs among the readership the phrase "unreconstructed" must have some resonance. Not accepting federal, national, lead and guidance on matters of the constitution has always been a patriotic trademark of some southern "conservatives" since 1865 onward and certainly resurged in the Warren Court era. Those that put up the Impeach Earl Warren billboards in their younger days got onto the federal bench. This case is a disgrace, an affront to the jury system and the Sixth Amendment.

Posted by: M.P.B. | Apr 5, 2008 9:21:02 AM

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