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July 8, 2009

Two (very?) important rulings on sentencing authority from the Sixth Circuit

Today the Sixth Circuit published two important sentencing opinions: a long new one covering lots of issues in US v. Herrera-Zuniga, No. 08-1540 (6th Cir. July 8, 2009) (available here), and a short older and previously unpublished one in US v. Perez-Vasquez, No. 07-6390 (6th Cir. April 30, 2009) (available here).  I think both are today's must-reads even for federal sentencing practitioners outside the Sixth Circuit.

In both Herrera-Zuniga and Perez-Vasquez, the Sixth Circuit panel rejects defendants various claims that their sentences are unreasonable.  In so doing, however, both opinions include passages discussing the nature and scope of the discretion of district judges at sentencing than seem likely to make federal defense attorneys happier than federal prosecutors.

As the title to this post is meant to suggest, I am confident when I describe both opinions as important.  But I will need a bit more time to review and reflect on whether either or both are VERY important.  Perhaps federal sentencing practitioners both inside and outside the Sixth Circuit can help me figure this out.

July 8, 2009 at 10:41 AM | Permalink


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I find Herrera-Zuniga somewhat odd. I thought the specification of departures was part of the initial step of calculating a correct guideline range. I also have trouble with argument waiver when coupled with an apparent ineffective assistance of counsel claim. I find it telling that the court actually named the federal public defender in question.

Even with those issues however, I too am surprised that the initial guideline range for this offender was so low. I guess I'm also somewhat surprised that there isn't simply a chart for illegal re-entry raising the level for each deportation or some such.

Posted by: Soronel Haetir | Jul 8, 2009 12:46:53 PM

Because the courts give expansive interpretations to the aggravated felony (+8) and "crime of violence" (+16) definitions, it is rare (in my practice) for a defendant to come in at base level 8. FN2 makes clear this def't received a +4 enhancement for prior felony.

While I agree that the Commission's assignment of offense levels to 1326 defendants is "arbitrary," I have *never* heard anyone else suggest that they are too *low*. The trial court's analysis seems particularly odd given that the un-enhanced version of 1326 (1326(a)) provides for a maximum of 2 years, not 10. That congress provides for an insanely high stat max for an ehanced crime (with no mandatory min.) does not mean that it intended run-of-the-mill cases to be sentenced severely.

Posted by: Texas Lawyer | Jul 8, 2009 2:20:35 PM

Having been with the federal defender system for many years, I am disturbed at the peformance of the defense attorney. He needs a long vacation.

Posted by: Michael R. Levine | Jul 8, 2009 2:58:57 PM

I have many reactions to Herrera-Zuniga, which I do think is a very important opinion.

1) I believe this is the first Circuit opinion to explicitly hold that Spears is not limited to the crack Guideline. Slip Op. at 18-20 ("We thus see no reason to limit the authority recognized in Kimbrough and confirmed in Spears to the crack-powder cocaine context."). While there have been several holdings that have relied on Kimbrough to justify a non-Guideline sentence (see slip op. at 20-21), I think this is the first opinion to explicitly consider and then hold that Kimbrough and Spears' allowing a categorical rejection based on policy is not limited to crack.

As I've repeatedly stated on this blog, such a holding is abundantly clear to me. Yet I've seen the US Attorney's office argue otherwise, and this issue formed a lot of discussion at the NACDL's sentencing conference. I’m glad to see the Court got it right.

2) The Sixth Cir. explained that "a categorical, policy-based rejection of the Guidelines" is most appropriate when the GL in question "do not exemplify the Commission's exercise of its characteristic institutional role." (Slip at 21), This is, of course, most Guidelines. Let me re-iterate what I’ve stated many times: The principles of Kimbrough and Spears is that if a GL is not based on empirical analysis, a district court’s rejection of that policy should not undergo close scrutiny.

3) I agree with Texas Lawyer. 2L1.2 is arbitrary...arbitrarily too high. In this case it may have produced too low of a result, but that's a rarity. The important thing about the holding is that a district court MAY categorically reject the 2L1.2 Guideline. In most 2L1.2 cases, doing so should result in a below Guideline sentence. Even though the Court affirmed an upward variance, this exact rationale can be used when a district court finds a Guideline (including 2L1.2) to produce an arbitrarily high result.

4) The distinction between procedural vs. substantive sentencing error is often frustrating and confusing. And relegating all unobjected-to procedural errors to plain-error review, regardless of whether it makes sense to do so is even more bothersome. Finally, an appellate court recognizes this.

Although it places the alleged errors on appeal to "procedural" error, the panel declines to apply plain-error review because doing so would not "serve practical ends" and the plain-error rule should not be turned "into a meaningless formality," which the Circuit said it was "loathe to do." The panel was 100% correct. Hopefully other Circuits will follow suit.

5) Michael is exactly correct. What was this defense attorney thinking? I am shocked. After reading Part V and footnote 12, he's not going to be having a good day, and rightfully so.

6) Departures are a part of the Guideline calculation process. The Court seems to overlook this wihtout explanation when it says it will only apply a presumption of reasonableness to "the initial sentencing range recommended under the Guideline."

Posted by: DEJ | Jul 8, 2009 4:24:50 PM


Prof. B has posted a number of opinions remanding specifically to fix #6 on your list. I don't recall if any were from the 6th circuit, but since so many of the highlighted cases are I would be surprised if none of them are from that court. Especially with the SCOTUS pronouncements on the importance of calculating a correct guideline range before applying 3553() this panel's hand waving on the issue seems baffling. What are the 6th circuit's rules on the precidental weight to be afforded panel rulings? Are other panels free to continue remanding for clarification or are they supposed to follow this ruling until a case is taken en banc or by SCOTUS on this issue?

Posted by: Soronel Haetir | Jul 8, 2009 6:01:44 PM

The Sixth Circuit follows the Prior Panel Rule: a three-judge panel speaks for the Court and binds future panels unless a relevant intervening event (such as a Supreme Court decision, change in the applicable statute, etc.) exists.


Posted by: Mark Pickrell | Jul 8, 2009 6:22:23 PM

The sexual batterer should consider himself lucky he got less than a six-year sentence. Any sex offender who is deported and comes back here really ought to be executed. LWOP is another option.

Posted by: federalist | Jul 9, 2009 1:06:59 PM

While the 6th Circuit and the district judge in this case make a point of saying the USSC failed to perform their "characteristic" role with regards to the reentry guideline they both utterly fail to provide any EVIDENCE of this accusation. The fact that most of you think the base offense level and offense characteristics for reentry are too HIGH and this judge thought they were too LOW is not evidence of anything other than an opinion - an opinion which is not empirically based and NOT PERSUASIVE.

Posted by: Dweedle | Jul 9, 2009 1:40:55 PM

Defense counsel should have followed the rule, that if you can't find something nice to say, say nothing at all. I have represented plenty of unpleasant folks, and had little to work with at sentencing. Trying to point out the good in a defendant can lead to backlash from the bench. That's is the time to say "my client is very sorry and asks for mercy." Revealing his personal opinion of his client's activity was a serious misjudgment. Defense counsel should have withdrawn if he was unable to keep his opinion to himself.

(I am a CJA panel attorney).

Posted by: Bryan Gates | Jul 9, 2009 1:46:49 PM

"I have represented plenty of unpleasant folks"

translation: I have represented plenty of scum.

Posted by: federalist | Jul 9, 2009 2:12:55 PM

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