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June 17, 2008

Third time's (almost) the charm in Tenth Circuit sentencing case

In an interesting decision in a case that may seem to the Tenth Circuit to be never-ending, a panel today affirms an above-guideline sentence in US v. Wittig, No. 07-3051 (10th Cir. June 17, 2008) (available here).  Here is how the panel opinion starts:

David C. Wittig appeals — for the third time — from his sentence for conspiracy, bank fraud and money laundering. We vacated his first two sentences (51 months imprisonment and 60 months imprisonment). United States v. Weidner, 437 F.3d 1023 (10th Cir. 2006) (Wittig I); United States v. Wittig, 206 Fed. Appx. 763 (10th Cir. 2006) (unpublished) (Wittig II). The district court has now sentenced Wittig to 24 months imprisonment, followed by a three-year term of supervised release with special conditions, including an occupational restriction. United States v. Wittig, 474 F. Supp. 2d 1215 (D. Kan. 2007) (Wittig III). Wittig appeals from the prison sentence and the occupational restriction. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a), we affirm the sentence but reverse the occupational restriction.

There are numerous interesting aspect to this round of the Wittig sentencing, but most notable is a concurring opinion by Judge Hartz that is joined by both other members of the panel (which seems a bit unusual to me). 

In this concurring opinion, Judge Hartz complains about the Tenth Circuit's "this court's recent jurisprudence regarding substantive reasonableness of sentences," which he feels have turned substantive reasonableness review into "an empty gesture."  Judge Hartz advocates "a different approach" to substantive reasonableness

In my view, a sentence is substantively unreasonable if the only reason that the length is outside the range of what judges ordinarily impose for “defendants with similar records who have been found guilty of similar conduct” is that the sentencing judge has an idiosyncratic view of the seriousness of the offense, the significance of the defendant’s criminal history and personal qualities, or the role of incarceration in the criminal-justice system.  Determining whether a particular judge has idiosyncratic views could be problematic, except that the United States Sentencing Commission has, in large part, developed its Sentencing Guidelines by studying the sentences being handed down by district judges throughout the country.  See Kimbrough v. United States, 128 S. Ct. 558, 574–75 (2007).  Thus, the consideration of the Guidelines Sentencing range required by § 3533(a)(4) ordinarily provides the sentencing judge with knowledge of sentencing practice within the federal judiciary. A significant variance from that practice should be considered unreasonable if it can be justified only by disagreement with the general views of other judges.

I am not sure I accept (or even entirely understand) this proposed "different approach" to substantive reasonableness That said, I do share the concern that substantive reasonableness review may have become (or will become) an empty gesture in lots of cases. 

But, critically, my chief concern is not that some idiosyncratic views of federal district judges may influence sentences (especially since there is little doubt that idiosyncratic views and plea practices of federal prosecutors surely influence sentences all the time without being subject to any kind of review or even transparency).  Rather, my chief concern is that sometime (perhaps often) the idiosyncratic aspects of the guidelines (such as enhancements based on acquitted conduct) influence sentences and yet, nearly 3.5 years after Booker, only a single within-guideline sentence has even been declared substantively unreasonable by a circuit court.

June 17, 2008 at 04:47 PM | Permalink


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Interesting. I'm not sure how I understand how Judge Hartz's idea of substantive reasonableness review differs from seeing whether or not the sentence falls within the Guidelines.

20+ years ago, many people shared Judge Hartz's concern for judges imposing sentences solely on the basis of their "idiosyncratic view[s] of the seriousness of the offense, the significance of the defendant’s criminal history and personal qualities, or the role of incarceration in the criminal-justice system."

Their solution was the mandatory federal Sentencing Guidelines.

Posted by: anonymous | Jun 17, 2008 6:10:10 PM

Well, Hartz's opinion is "interesting" in that it conflicts with settled Supreme Court law. It simply assumes that a guideline sentence is reasonable, therefore a non-guidelines sentence is unreasonable, unless justified by adequate reasons. But that is entirely contrary to Rita and Gall, which state that there is no presumption that a non-guidelines sentence is unreasonable.

Also, this, "the United States Sentencing Commission has, in large part, developed its Sentencing Guidelines by studying the sentences being handed down by district judges throughout the country" is by and large false, even if the Supreme Court said it in Kimbrough Kimbrough v. United States, 128 S. Ct. 558, 574–75 (2007). Almost all the Guidelines were, like the crack guidelines in Kimbrough, developed ad hoc or based solely on Congress's maximum and mandatory minimum sentences. And the Supreme Court said in Kimbrough that where the latter is true, courts do not owe the Guidelines much deference.

Back to the books, 10th Circuit.

Posted by: David in NY | Jun 17, 2008 8:34:29 PM

What is the one within-guidelines sentence that a CA found unreasonable? Thx.

Posted by: cite please | Jun 17, 2008 10:50:45 PM

CP, Substantive unreasonable, or procedurally unreasonable? There are now both.

Posted by: S.cotus | Jun 18, 2008 12:09:12 PM

After reading the 3-judge concurrence, my response was, quite simply: WHAT?!?!

It is wrong on so many levels. First, if the district court is required to look at the defendant and his offense as an individual (and is the best person to do so), then how can a district judge's view of that person/conduct be idiosyncratic relative to the Commission's view, who has never done the individual analysis? Second, in response to the panel's concern that "[t]he resulting inequalities will have our imprimatur," I think they need to be reminded that "Booker recognized that some departures from uniformity were a necessary cost of the remedy [the Court] adopted” in Booker. See Kimbrough at 574. Third, this is directly contrary to Rita's explanation that the Commission and the district judge have entirely different roles that must be exercised independently. Fourth, this is directly contrary to Gall's holding that extraordinary circumstances are not needed to justify a variance (essentially the panel is saying if there aren't extraordinary circumstances, the judge must be idiosyncratic). And fifth, it is directly contrary to Kimbrough's holding that a variance can be justified by mere policy differences with the Guidelines, even in the "mine-run case."

So, where does this concurrence leave us? (And thank goodness it's only a concurrence)

All three members of this panel tell us that a sentence is unreasonable if it is due to disagreement with the general view of other judges. And the general view of other judges can be determined by looking to the Guidelines.

I can't believe three CoA judges thought this was a good idea. This is a prime example of
CoA judges clinging to their ability to review sentences.

The current 10th Cir. law is correct: The CoA must "defer to the district court’s judgment
so long as it falls within the realm of...rationally available choices.” McComb (cited at slip op. 12). Apparently, all 3 judges on this panel disagree because this makes their roles an "empty gesture."

I don't agree. The CoA could exercise their substantive reasonableness review power by analyzing the purpose underlying a Guideline enhancement and finding that it does not apply in this case, making the sentence substantively unreasonable. Prof. Berman alludes to another idea, namely, the CoA analyzing the reasonableness of acquitted conduct enhancement in a particular case.

Essentially, the Supreme Court has said that substantive reasonableness review CANNOT be a re-weighing of 3553(a) factors. But that does not mean it must be an "empty gesture."

And finally, I will submit that even if it does turn out to be "an empty gesture," if that is what it takes to fulfill the principles of an advisory Guideline system, then so be it.

Posted by: DEJ | Jun 18, 2008 12:13:39 PM

These are great comments. The original posting and the comments are helping a brief that I'm working on right now.

Posted by: Mark | Jun 18, 2008 12:50:11 PM

DEJ--if appellate review is an "empty gesture", I submit the advisory guideline system has no principles.

Posted by: mjs | Jun 18, 2008 12:53:47 PM

mjs: First, it is only "appellate review" for the length of a sentence that I am discussing.

Second, I think you are overlooking the Sixth Amendment principles motivating Apprendi, Blakely, Booker (merits), Rita, Gall, and Kimbrough. Those are the exact principles I was referring to in my post.

Posted by: DEJ | Jun 18, 2008 1:53:42 PM

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