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July 7, 2009

Ninth Circuit discusses consideration of state-federal disparities after Booker

In a narrow little opinion today in US v. Ringgold, No. 06-10492 (9th Cir. July 7, 2009) (available here), the Ninth Circuit discusses the consideration of state-federal disparities after Booker.  Here is how the opinion starts:

This appeal concerns the question whether, after United States v. Booker, 543 U.S. 220 (2005), a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court.  Under the circumstances presented by this case, we hold that the district court did not abuse its discretion or commit procedural error in declining to consider such a disparity.  Additionally, we hold that the sentence imposed by the district court was not substantively unreasonable.

July 7, 2009 at 02:00 PM | Permalink


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Taking state penalties into consideration raises Equal Protection (as applied to the feds under the 5th Amendment) issues.

Posted by: federalist | Jul 7, 2009 2:23:31 PM

Not necessarily, federalist. People in different states are treated differently all the time under federal law without running afoul of the Equal Protection Clause. Bankruptcy and tax law come immediately to mind. Note that the Ninth Circuit did not say that it would have been improper for the district court to have considered what the defendant would have received shoudl the court have wanted.

Posted by: anon | Jul 7, 2009 4:07:30 PM

Certainly, issues are raised--how they're resolved is a different issue. Certainly, statutory exemptions and deductability of state taxes are distinguishable from federal criminal law.

Posted by: federalist | Jul 7, 2009 5:52:59 PM

federalist: can you further explain your claim that "Taking state penalties into consideration raises Equal Protection (as applied to the feds under the 5th Amendment) issues."

Federal prosecutors often state that they decide whether to prosecute an offender at the federal level in part based on how state sentencing provisions might be applied if the offender was prosecuted by the state. Are you suggesting that federal prosecutors who take these state sentencing realities into account when making charging (and plea) decisions might be violating the Equal Protection clause?

Posted by: Doug B. | Jul 7, 2009 6:12:49 PM

First of all, it wouldn't be the Equal Protection Clause--see my original post. Not to be snippy, but I'd expect a little more exactitude from a law prof.
Second of all, prosecutorial discretion that of course varies by prosecutor has not been held to violate Equal Protection.
The point is, of course, there is a problem with federal courts treating a federal criminal law violation differently merely because of the state in which the crime was located. Are we really going to countenance a regime where a federal crime is going to be punished differently because of a difference in how the state chooses to punish it?

Posted by: federalist | Jul 7, 2009 7:00:13 PM

Since, as the Supreme Court unwisely has held, a federal district judge can base his sentencing on his personal disagreement with the policy of the FEDERAL legislature, I see no way that that same judge could be barred from basing his sentencing on his disagreement with the policies of the STATE legislature.

The truth of the matter is that, after Booker, Gall and Kimbrough, federal judges can go through the window dressing rehearsed for them in those opinions and then do whatever they want.

This will bring yelps from the defense bar when the judge goes above the guidelines, and from the government when he goes below, but once mandatory guidelines and effective appellate enforcement went out the window, this was inevitable.

Posted by: Bill Otis | Jul 7, 2009 7:59:43 PM

Doug --

"Federal prosecutors often state that they decide whether to prosecute an offender at the federal level in part based on how state sentencing provisions might be applied if the offender was prosecuted by the state."

As you know, I was an AUSA in Eastern District of Virginia for 18 years. We would take cases from the state only at the state's request. By far the two most frequently cited reasons the state offered in asking us to take a case were (1) we had more resources, or (2) the state wanted the defendant to face the federal mandatory minimum, for which the state had no counterpart. This latter reason was the driving force behind Project Exile, in which we took what could have been state cases involving armed drug dealers, who had become a major problem in Richmond and were causing a public outcry.

Footnote: The first year of Project Exile, the murder rate in Richmond was cut in half. The second year, it was cut by a third.

Posted by: Bill Otis | Jul 7, 2009 8:44:59 PM

Bill, thanks for confirming my sense that federal prosecutorial choices are often influenced by state request for federal intervention. Your comments Bill confirm my sense that we have long had a federal crime and punishment system in which in many instances "a federal crime is going to be [prosecuted and therefore] punished differently because of a difference in how the state chooses to punish it."

I think, federalist, that Bill Otis is helping me highlight that you are "clowning yourself" when you suggest there are constitutional problems with federal prosecution and punishment being influenced by state law realities. What is especially telling is that it Bill does not even question the appropriateness of unregulated and unreviewed federal prosecutors being influenced by state punishment realities, but you are eager to raise concerns about regulated and reviewed federal judges taking such considerations into account.

You are right, of course, that this is all technically a due process issue as a matter of federal law. I will preserve that exactness if you think it is critical to this conversation, but your perculiar comments in this thread suggested to me that you were not really too concerned about legal precision in this dialogue.

Posted by: Doug B. | Jul 7, 2009 10:25:48 PM

Doug --

I should add one more footnote that may enlighten things. First, Project Exile was not popular with the federal district judges, who complained that they were getting inundated with what "should be" state cases. (This complaint, however, was never cast in terms of any constitutional problem with the program). It got so bad that one of the district judges in Richmond (a Democratic appointee) issued a show-cause order against my then-boss, the US Attorney (also a Democratic appointee).

The US Attorney asked me and the head of the Richmond Office, AUSA Jim Comey, to represent her at the show-cause hearing. We made sure the courtroom was packed with Richmond police officers, who were of course delighted (and, for their own safety, relieved) that Project Exile had so effectively reduced violence in their town.

I was also quite sure the judge hadn't a leg to stand on. The offenses were obviously covered by federal statutory law, so there was no way on earth it was a contempt of court for us to use federal jurisdiction. If the judges had to work more hours, my feeling was, too bad. They could quit any time. There were about 1000 lawyers waiting to sit where they were sitting.

I also knew that the judge who had issued the show-cause order would realize that he was cooked, and that after a display of nastiness, would back down.

It didn't take long. About 30 seconds after he convened the hearing, he announced that he was not going to hold the US Attorney in contempt, but wanted to express his dim view of what we were doing. There ensued what amounted to a not-all-that-polite argument between the judge and the US Attorney. Anyway, he got it off his chest, and that was that.

The judge of course knew who everyone was at the government's table. He knew in particular that I was the chief of appeals, surmised that I had a motion in my back pocket to stay any contempt order he issued, and that it would take me a New York minute to walk across the hall to the Fourth Circuit to file it. In this surmise he was correct.

One interesting sidelight to the case is that although the US Attorney -- a brave and determined lady -- was a Democrat, both the people she chose to represent her were well known to be Republicans.

Years later, I would go on to total obscurity. Jim Comey would go on to become Deputy Attorney General.

Posted by: Bill Otis | Jul 7, 2009 10:59:10 PM

Bill, your comment further highlights the dynamic (and in my view, valuable) interplay between state and federal prosecution and punishment schemes. It also shows, yet again, how strange and obtuse the comments by federalist have been when he asserts that consideration of state criminal justice realities in the federal system raises constitutional issues and/or when he suggests we would not "countenance a regime where a federal crime is going to be punished differently because of a difference in how the state chooses to punish it." In fact, as your comments help document, that has been the regime in which federal crime and punishment has functionally operated throughout American history. (And, comically, I would have thought someone wo uses the moniker "federalist" ought to welcome and endorse state realities influencing federal practices.)

Posted by: Doug B. | Jul 8, 2009 8:19:51 AM

Doug --

Our accommodation of the state and consideration of the state's needs and desires was so completely routine that it was never an issue. It's not like the US Attorney's Office was dropped into Virginia from Mars.

I don't mean to be disrespecting federalist, with whom I often agree. To be honest, I'm just telling war stories, a favorite avocation of former AUSA's who, like me, want to re-live their youth.

I should probably clarify my comment that I went on to "total obscurity." I was actually pretty active in the years after the Project Exile dust-up. I left the USAO in 1999, in light of Walter Dellinger's decision not to defend 18 USC 3501 in the Supreme Court in Dickerson v. United States. I did a bit of TV and public speaking and writing (some of it at Federalist Society events), received a political appointment as Counselor to the head of the DEA in 2003, and left there two years ago, shortly before the departure of the Administrator.

Since then, as you know, I have become a classic old coot.

Posted by: Bill Otis | Jul 8, 2009 9:13:20 AM

I have to wonder, though, if the problem in Richmond was so bad, why didn't the Virginia state legislature take action? As a New York-based taxpayer, I would rather fund the Federal government for those functions that only it can do, and leave the crime wave in Richmond for Virginians to solve.

I do not dispute that under the law as it existed (and still exists), the Federal government had the authority to step in, and the results may well have been stupendous. As a matter of policy, I would rather let the states solve their own problems. Perhaps states get lackadaisical because they know they can just call Uncle Sam and get the problem solved "for free."

Posted by: Marc Shepherd | Jul 8, 2009 9:49:54 AM

Marc Shepherd --

I agree. As an AUSA, I of course never even thought about making suggestions to the state or the state legislature -- above my pay grade, as Joe Biden would say. But I think you are spot on in believing that states should make a reasonable effort to solve their own problems before turning to the feds.

Posted by: Bill Otis | Jul 8, 2009 10:06:57 AM

Marc, maybe you are not familiar with the situation with Virginia and guns that existed in the 1990s, but due to Virginia's then extremely weak gun laws and lax law enforcement, New York (and other states in the east coast and the District of Colubmia) did suffer a lot of gun violence - prior to the General Assembly finally toughening up the gun laws in Virginia, an extremely large percentage of guns used in violent crimes in New York City and other large east coast cities including Washington, DC came from Virginia.

I agree with your general point that it was a matter for Virginia to solve (and I think that Bill is taking too much credit because about the same time that Project Exile appeared, crime was generally decreasing anyway, and Virginia's General Assembly did pass some restrictions on gun sales and toughen Virginia's gun laws) - but Virginia's gun laws at the time were so weak that it did implicate sufficient national interest justifying federal involvement until the General Assembly took appropriate steps.

Posted by: Zack | Jul 8, 2009 10:07:37 AM

Doug, I guess our detente is over. Let's look at a quote from the case:

" . . . a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court."

The issue is not what prosecutors do, but what federal judges do in sentencing. Notwithstanding that, you asked me about prosecutorial discretion and Equal Protection--well, I answered it. Prosecutorial discretion other than as exercised in an invidiously discriminatory manner or completely arbitrarily does not violate Equal Protection, so it's highly unlikely that a federal prosecutor looking to state law to determine whether to throw the book at some defendant would violate Equal Protection. I don't know how Equal Protection would deal with an announced policy that certain federal marijuana laws were not going to be enforced in California--that may be problematic.

The analysis could change in the sentencing context. Note I NEVER "suggest[ed] there are constitutional problems with federal prosecution and punishment being influenced by state law realities." I responded to a post about judges taking such things into account, which is a different matter. Should a California defendant get a break from a federal sentence (presumably unavailable to a Texas defendant) simply because he committed his federal crime in California? That seems problematic from the standpoint of Equal Protection. And note, I didn't say violate--just that there were issues (one of which is, of course, standing).

Doug, my comments deal with judges taking state law into account, not prosecutors, and when you raised the prosecutorial issue, I responded. I don't see how I've clowned myself at all.

Posted by: federalist | Jul 8, 2009 10:12:57 AM

Zack --

I took no credit for Project Exile, since it wasn't my idea. Indeed I took no credit for the favorable outcome at the show-cause hearing, because, on the state of the law, a zombie could have won that case.

That being said, Project Exile was a big success, and the USAO (not me in partucular) deserves credit for it. There may have been a general lowering of the crime rate at that time, but for the murder rate in a particular city to have fallen by half one year, and then a third the next, is far, far beyond both the size and the speed of any generalized reduction in crime throughout the country.

Posted by: Bill Otis | Jul 8, 2009 10:31:00 AM

Federalist: I am glad you are finally trying to be a bit more precise, since I have been (over?) reacting to: comment #1 saying "Taking state penalties into consideration raises Equal Protection ... issues; comment #2 referencing "federal criminal law"; and comment #3 asking is we are going to "countenance a regime where a federal crime is going to be punished differently because of a difference in how the state chooses to punish it."

As Bill has highlighted, in the application of "federal criminal law" by prosecutors, it is regularly the case that "state penalties" are taken into consideration and thus we have long had a regime in which federal crimes in certain regions are "punished differently because of a difference in how the state chooses to punish it."

Especially now that Bill has reiterated "how routine" it is for federal prosecutors to apply federal criminal law based on state realities, I am still awaiting word if you find this "regime" problematic. (And I have not even gotten started with fast-track sentencing discounts....)

Your latest comment, by being more precise, seeks to bring the focus back to judges, but it still does not explain why you think judicial consideration of state realities is more constitutionally problematic than prosecutorial consideration of these realities. This matter is debated in federal sentencing courts because of statutory concerns, but your first comment threw the Constitution into the mix. That's why I initially sough clarification -- I think any constitutional concern should be as great or greater as to prosecutors (especially in light of the old SCOTUS ruling in Yick Wo).

Adding now to my confusion is your mention of "standing," which suggests that you think a federal criminal defendant might lack authority to raise the constitutional claim you think these matters implicate. Now my head is really spinning.

Let cut to the chase: you seemingly do not want defendants to succeed with a state-based argument for a lower federal sentence. Fine. But it seems obtuse and telling --- and funny in light of your chosen moniker --- that you want there to be some constitutional doctrine to help you achieve that end.

Posted by: Doug B. | Jul 8, 2009 4:48:46 PM

Doug, all I can say is wow. The post here deals with federal judges making the decision to reduce a sentence because the federal crime happened to be committed in a state where the analogous state crime has a lower penalty vis a vis the federal crime. Hence my original comment has to be viewed in that context. (N.B. Anon seems to have grasped that--look at his response.) Prosecutorial decisions in reference to state law was not the point of the post and not the point of my comment. The issue is not a lack of precision on my part, but your desire to nail me. However, I slipped your big bunch and landed a 1-2 counter.

I think upthread I explained why prosecutorial discretion doesn't raise constitutional issues. The caselaw has rejected arguments along those lines with the exceptions I mentioned. Thus your argument about the concerns being greater for prosecutors seem, um, ill-informed. Moreover, your citation of Yick Wo, a case of a neutral law being applied invidiously, is stunningly inapt.

As for the distinction of judges vs. prosecutors, the decision to prosecute and how much to seek is virtually unreviewable. Thus it stands to reason that the motivations of the prosecutors simply don't matter (absent the exceptions I mentioned). With respect to sentencing, well that's a different matter. It is one thing for federal prosecutors to (a) fill in the breach caused by a lenient state law or (b) decide to withhold some of their fire out of deference to the wisdom of the state in which they prosecute, quite another for a judge to say that defendant X is going to get a break at sentencing because he happened to commit his federal crime (under what is supposed to be unitary law) in California instead of Texas.

I think it helpful to reiterate what I said upthread:

"Taking state penalties into consideration raises Equal Protection (as applied to the feds under the 5th Amendment) issues."

Note what this does not say. I dont say that it violates Equal Protection--i just say it raises issues. Clearly, a federal criminal statute which varied the penalties for a particular crime based on the state in which the crime was committed would have constitutional problems. Does it become ok on an individual level? Perhaps. Perhaps too, it's simply unreviewable (constitutionally) if the defendant gets a break. But what of the flip-side, what if Florida is harsh on kiddie porn or kidnapping or whatever, and the federal judge was more harsh because of the state policy? Would that be ok?

Where Equal Protection comes in is the classification. Is it rational to assign punishments under what is a unitary law based on the state in which the applicable crime was committed? In other words, is the classification by naked geography ok? Given the unitary nature of federal law, it's hard to say that there are no issues.

The standing issue, Doug, is pretty obvious. If a defendant gets a break, who can complain of constitutional harm? Not the prosecutors, who would be making a jus tertii argument, i.e., asserting the harms to other criminals who didn't get the same deal, and certainly not the defendant.

This comment merits reiteration:

are we going to "countenance a regime where a federal crime is going to be punished differently because of a difference in how the state chooses to punish it."

Given the fact that the post was about judges, I'll just leave the comment at this--what does it say about what's supposed to be unitary law if the state in which the defendant commits a federal crime has legal significance?

Doug, since you asked, I'll answer about prosecutors. Prosecutoral decisions (absent the exceptions mentioned earlier) are unreviewable. That pretty much settles the matter. I'm not really interested in being a DOJ administrator telling them how to select cases etc.

Finally, you make a reference to my moniker. It's certainly not inconsistent with a respect for "our Federalism" to believe that when the federal government has the power to enact laws punishing a certain crime that the location of the crime shouldn't have legal effect.

Doug, perhaps the easiest way to understand all of this is the legal effect/practical effect distinction. Practically speaking, it matters where you commit a federal crime. Legally, it should not.

Bill, I didnt take your post as disagreeing with me. Maybe you do.

Posted by: federalist | Jul 8, 2009 9:40:13 PM

So Doug, still think I clowned myself?

Posted by: federalist | Jul 9, 2009 12:18:46 PM

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