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February 10, 2009

Why do defense wins in sentencing appeals often go unpublished?

I tend not to be a strong believer in conspiracy theories, but this news story about a significant defense victory in an unpublished Fourth Circuit sentencing ruling leds me to again wonder why so many important defense wins in sentencing appeals often go unpublished?  First, here is the press account:

A federal appeals court has ordered a new sentencing hearing for a former Robeson County sheriff who admitted lying about corruption in his department.  The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled Monday that U.S. District Judge Terrence Boyle  erred in June when he sentenced Glenn Maynor to six years in prison. Boyle did not adequately explain the sentence, the appeals court ruled....

"The court's perceived need to right the wrongs that occurred in Robeson County since the 1950s is an inappropriate basis for a variance sentence, since Maynor was indisputably not responsible for any wrongdoing prior to 1994," the court said.

The full opinion in US v. Maynor is available here; it is officially unpublished, but includes lots of interesting and important passages such as this one:

While, after the sentencing hearing, the court provided a report checking certain § 3553 factors as the basis for its decision, this report was insufficient to satisfy the court’s duty to make an individualized assessment of Maynor’s circumstances and provide an explanation of sentence. The court relied on irrelevant and faulty assumptions and failed to tie these assumptions to the § 3553 factors.  The large variance in this case required significant analysis that is simply absent. Accordingly, we conclude that the court abused its discretion when imposing sentence and that the court’s errors require that Maynor be resentenced.

Regular readers may recall some other big defense wins that were left unpublished, such as the lone decision (from the Ninth Circuit) finding a within-guideline sentence sunstantively unreasonable in Paul (noted here) and the important decision (from the Second Circuit) upholding a huge downward variance in Adelson (noted here).  It is bad enough that defendants rarely win major sentencing appeals.  It is worse, and quite disturbing, that many circuit courts seem to want to have the rare defense win go unnoticed.

Meanwhile, as evidenced by two big published rulings today by the Tenth Circuit, circuit judges usually make sure that major losses by defendants get the full published treatment.  In US v. Friedman, No. 07-4118 (10th Cir. Feb. 10, 2009) (available here), a defendant has his below-guideline sentence reversed in a published opinion, and in US v. Yanez-Rodriguez, No. 08-2100 (10th Cir. Feb. 10, 2009) (available here), a defendant has his above-guideline sentence affirmed in a published opinion.

February 10, 2009 at 02:53 PM | Permalink


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I don't think that courts often make defense sentencing wins non-pub for any nefarious anti-defense reason. Quite the opposite, probably - my guess is that some judges make some defense wins non-pub because they want to do right by the defendant and avoid creating a high-profile target for an en banc petition or cert petition by US. (My premise here, and I believe it surely must be true, is that a non-pub decision is less likely to be reviewed en banc or by S.Ct.).

What troubles me is the mirror image situation: when a court makes a questionable pro-US sentencing decision non-pub, in a situation that makes me suspect that the reason for the non-pub status was to make it a less likely candidate for cert.

Maybe it's just that each of us has his own odd mixture of cynicism and naivete about why judges do what they do!

Posted by: Sam Heldman | Feb 10, 2009 4:15:45 PM

Having recently clerked for a district court judge who sat frequently by designation in one circuit, and then for a court of appeals judge in another circuit, I can confirm that in my experience there can be a tendency in criminal cases (as well as, to some extent, other cases, especially immigration and social security) to non-pub defendant (or petitioner) victories in order to avoid en banc scrutiny and/or cert. attention.

In some circuits, certain judges see themselves as guardians of the government against overreaching, defendant-friendly decisions (while other judges see themselves as guardians of defendants' rights against government overreaching). Those judges watch published decisions very closely and may raise a ruckus about a decision creating good precedent for defendants (and vice versa). On the other hand, because the "guardians" have to save their bullets, and because the middle-of-the-road judges have trouble getting too outraged about a supposed error in a non-pub case (en banc review being, after all, generally not an exercise in error correction), the "guardians" are likely to let a non-pub slide unless they think it is really, really wrong.

In considering whether to issue a non-pub or a published decision, therefore, a panel that has decided the defendant is entitled to relief must consider not only the formal requirements for non-pub versus published (novel issue of law, etc.), but also must account for the fact that, while a non-pub will almost certainly ensure what the panel has decided is the just result for the individual defendant, a published decision runs the risk of ending in what the panel views as an unjust result for the individual defendant (although it also provides the potential benefit of setting precedent that may help create just results for other similarly-situated defendants).

Finally, a non-pub can also sometimes be a way to head off a possible dissent. In my experience, there are some circumstances where a potential dissenter acknowledges that it is a very close case with room for disagreement, and is thus willing to "go along" with a decision for the defendant if it is non-pub. The same judge, however, may feel compelled to dissent from the same decision if it is to be published and thus create binding precedent.

Posted by: Anon | Feb 10, 2009 6:16:55 PM

Fascinating, Anon. Thanks for pulling the curtain back.

Posted by: Mark | Feb 11, 2009 3:18:56 AM

Questionable! While unpublished decisions may not
establish precedent they certainly are cited
routinely as authority.

Posted by: g.lanker | Feb 11, 2009 11:56:26 AM

I have never understood, in these days of technology and internet, the concept of "published opinions" and "unpublished opinions" Unpublished opinions are clearly authority for the guy whose case it is. Seems to me to have equal protection implications if the unpublished opinion is not good law for others.

Back when cases were printed in things called books I understood it. How many lawyers have hardback books anymore?

Do the judges do an inferior job on unpublished opinions? I hope not.

I don't get it.

Bruce Cunningham

Posted by: bruce cunningham | Feb 11, 2009 2:23:35 PM


Do you really believe that a procedrual unreasonableness holding is so pathmarking as to justify publication?

Posted by: Da Man | Feb 11, 2009 3:10:27 PM

And, while I'm at it, do you think that a District Judge who ignores the career offender provision altogether, and imposes a lenient sentence on a defendant based on nothing more than a whim, deserves to be swept under the rug? Three cheers for the Tenth Circuit!

Posted by: Da Man | Feb 11, 2009 8:17:29 PM

Thanks! Great Blog! Very useful information!

Thanks again!

I’m glad to see this post.

Thank you guys!

Posted by: חלקי חילוף לרכב במרכז | Jan 3, 2011 8:12:41 AM

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