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July 19, 2010

Sixth Circuit provides some intriguing advice during plain error sentence reversal

A sixth Circuit panel does some interesting work this morning in US v. Wilson, No. 08-1963 (6th Cir. July 19, 2010) (available here), which gets started this way:

Lashawn Wilson (“Wilson”) pleaded guilty to a single count of mail fraud, in violation of 18 U.S.C. § 1341, and was sentenced to 48 months of imprisonment. She now brings this sentencing appeal, arguing that the district court committed plain error by selecting her sentence based on the clearly erroneous premise that she had stolen one thousand money orders and five hundred cashier's checks. We agree, and we therefore vacate her sentence and remand for resentencing.

Though any plain error sentence reversal is worth noting, footnote one of the Wilson majority opinion (per Judge Boggs) and the concurrence (per Judge Martin with Judge Cole joining) are what really caught my attention.  Here is the footnote (emphasis in original):

Wilson does not object to the district court’s use of a written sentencing opinion to explain the reasons for her sentence.  We note, however, that this practice is somewhat disconcerting. Indeed, the use of a pre-prepared sentencing opinion in lieu of an oral recitation creates the worrisome impression that the district court’s decision was etched in stone before the parties had the opportunity to be heard. If that were the case, the procedural safeguards enshrined in Federal Rule of Criminal Procedure 32(i) would be drained of meaning.  Consequently, we expressly encourage judges who prepare opinions in advance to be particularly mindful of Rule 32(i)’s requirements. In addition, we observe that a final sentencing decision should not be reached until after the hearing has been completed.

Here is how Judge Martin piles on at the start of his Wilson concurrence:

I concur in the lead opinion, but I feel compelled to comment upon the practice of a judge walking into a sentencing hearing with an opinion already prepared.  The lead opinion quite properly discusses the matter in a footnote, as neither party directly took issue with the practice. I write separately because the practice deserves the kind of piling on that cannot be accomplished in a footnote.

July 19, 2010 at 10:36 AM | Permalink


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