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March 30, 2009

Ninth Circuit panel splits over adequacy of sentencing explanation

The Ninth Circuit has a long set of opinions covering lots of sentencing ground today in US v. Carter, No. 05-50303 (9th Cir. March 30, 3009) (available here).  Though all practitioners in the Ninth Circuit will want to check out this opinion, the case is more broadly notable because of the panel's split view over the adequacy of the district court's explanation for its long within-guideline sentence.  Here is a part of the partial dissent from Judge Tashima, which reveals the nature of the dispute:

[I]n imposing sentence, the court gave no indication that it had heard Carter’s arguments and imposed sentence with almost no explanation. I believe that the district court erred in failing to address Carter’s arguments, failing adequately to consider the § 3553(a) factors, and failing adequately to explain the sentence that was imposed....

Carter asked the court to apply the statutory mandatory minimum sentence of 360 months — a sentence already many times longer than those of his coconspirators. He argued that his criminal history category was overrepresented.... Carter asked the court to exercise its discretion and impose a below-guidelines sentence, taking into consideration his difficult childhood, his family situation and his young children, and the rehabilitative effect of what would be, under the statutory minimum, thirty years in prison.

Rather than addressing any of Carter’s arguments, the court applied the guidelines sentence, stating that the guidelines had “adequately taken into consideration [Carter’s] actions and criminal history,” and that the “lengthy sentence is sufficiently punitive and hopefully will deter against any further criminal activity.” This rote recitation of a few of the § 3553 factors does not begin to constitute “an individualized assessment based on the facts presented.”  Gall, 128 S. Ct. at 597.  Moreover, the court’s simple affirmative responses to the government’s pointed questions regarding Carter’s arguments do not provide a record that “makes clear that the sentencing judge listened to each argument.”  Rita v. United States, 127 S. Ct. 2456, 2469 (2007).

Relying on Ninth Circuit precedents in which little was said by a district court when imposing a within-guideline sentence, the majority in Carter was not so troubled by the procedural reasonableness of what happened in the district court.

March 30, 2009 at 03:50 PM | Permalink


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The Ninth Circuit is seeking to discourage within guidelines sentencing by requiring onerous paperwork, where every bit of argument and counter-argument and justification for each element must be enumerated. When that requirement is met, no length of enumeration will ever be satisfactory.

One has to wonder if it would do the same if the sentence were below guideline. The Ninth Circuit is biased in favor of arbitrarily shorter sentences for criminals, and seeks to impose this arbitrary feeling on trial courts. The latter came to know the defendant best, but that does not matter.

In school, did you ever talk out of turn, and have to write 100 times, I will not talk out of turn? Same principle.

Posted by: Supremacy Claus | Mar 30, 2009 4:23:50 PM

As a former clerk for Judge Tashima, I know that he takes the decisions of district courts very seriously, since he was a district court judge for 20 years. So for him to dissent over an imposed sentence means that there was a real problem with it. As always, his opinions are cogent and carefully written. Judge Tashima is a true gem on the 9th circuit!

Posted by: Laura | Mar 31, 2009 12:26:14 PM

Ms. Appleman,

Sucking up to your ex-boss does not make your opinion more valid. In fact, it actually discredits him.

More directly, your words are a rather hash indictment of your boss, because it would infer that he is inclined to defer to the District Courts where no deference is due.

So, he is hardly a "gem" just because he can get one of his clerks to write a blog post.

Posted by: S.cotus | Apr 1, 2009 12:20:57 AM

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