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October 25, 2010

Remarkable opinion with postponement of resentencing in notorious Irey case

Regular readers will likely recall the Irey case, in which a split Eleventh Circuit panel initially affirmed, but thereafter decided en banc to reverse, a lengthy (but still well below-guideline) sentence given to a middle-aged man for what all agree was an "utterly gruesome" sex offense.  A helpful reader today sent me a copy of the latest Irey opinion and order entered on Friday by U.S. District Judge Gregory Presnell.  This opinion, which represents just the latest remarkable chapter in a remarkable case, can be downloaded below.  Here is the opinion's introduction and conclusion:

This matter comes before the Court on the Unopposed Motion for Continuance of Resentencing Hearing Pending Review in United States Supreme Court (Doc. 80).  As the motion’s title suggests, the parties seek to have this Court delay its resentencing of the Defendant, William Irey (“Irey”), on the chance that the Supreme Court will grant his petition for writ of certiorari, due to be filed on October 27, 2010.  As things now stand, this Court is obligated by the July 29, 2010 decision of the United States Court of Appeals for the Eleventh Circuit (henceforth, the “July 29 Order”) to impose a 30-year sentence on Irey.  Given that Irey is in the early stages of serving the 17-and-a-half-year sentence originally imposed by this court, there is no pressing need to impose the longer sentence — a fact apparently recognized by the Government, which does not oppose the motion.  For these reasons, the motion will be granted, and the resentencing will be continued.

Under normal circumstances, that would be the end of the matter. But these are not normal circumstances.  The July 29 Order raises a host of important issues, a fact recognized both by the Defendant in the instant motion and by the appellate court in the order itself.  The pendency of the petition for a writ of certiorari provides the Court with a rare opportunity to respond to certain aspects of the appellate decision, prior to its possible review by the Supreme Court, with information that only the undersigned possesses.  In addition, the July 29 Order has certain implications that affect the courts that are tasked with the imposition of criminal sentences — implications that might not be apparent to the parties themselves. The Court believes that a discussion of these points may assist the Supreme Court in determining whether the petition ought to be granted.

It is for these reasons, and not out of any disrespect for the Circuit Court’s authority to reverse the sentence I imposed, that I will take this opportunity to respond to certain portions of the July 29 Order....

I normally conclude the sentencing process by coming back to a consideration of the need for the sentence imposed to promote respect for the law and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A).  These are subjective factors that overlay the other statutory considerations.  As I said at the sentencing, “I just do the best I can under the circumstances.  It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a thirty year sentence . . . is greater than necessary to accomplish the statutory objectives.” (Tr. at 61).

The Circuit Court acknowledged that I properly calculated the guideline score, committed no procedural error, and gave thorough and thoughtful consideration to the statutory sentencing factors.  Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me, and concluded that there were no mitigating circumstances to justify any sentence other than the 30-year guideline sentence.

This is an extraordinary and unprecedented result.  The Circuit Court has effectively usurped my sentencing discretion and raised serious questions regarding Irey’s right to due process.  I concede that the majority opinion has raised valid concerns about the reasonableness of the sentence I imposed.  Were this case remanded to me for re-sentencing, I would take these concerns into account and exercise my discretion accordingly.  But as it now stands, I will not be given that opportunity.  Nor, it appears, will Irey be given the opportunity to confront the facts and arguments raised for the first time on appeal, which resulted in a 12 and a half year increase in his sentence.

In his separate opinion, Judge Tjoflat states that the majority opinion’s approach — i.e., resentencing defendants on appeal — does “immense and immeasurable institutional damage.” Irey III at 1267. In my opinion, it also undermines the basic tenets of sentencing law developed over the past five years, and opens a Pandora’s box of new sentencing issues. I regret that my sentencing of this defendant — including any errors I made in doing so — appears to have led to this result.

Download Irey FINAL post-sentencing opinion with Apps

By my lights, this opinion stands as a de facto amicus brief in support of a cert petition that has not yet even been filled.  As such, this opinion is quite unusual, and I wonder if commentors think it should be lauded or lamented.

Related posts on Irey case:

October 25, 2010 at 03:26 PM | Permalink


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I had previously thought the circuit court reviewed the work of the district court, not the other way around.

Posted by: Bill Otis | Oct 25, 2010 5:53:24 PM

It would seem that this judge is asking for the right that so long as no admitted error is made that the discretion of the sentencing judge be unbounded. I don't think any of the SCOTUS cases stand for that result. Wide latitude is still not unfettered.

Posted by: Soronel Haetir | Oct 25, 2010 6:20:30 PM

This isn't justice. Since when does the circuit court take into consideration any mitigating factors. The sentencing court should ALWAYS have the latitude in punishment using a sentencing guide. Do the judges in the lower courts no longer have the ability to do their jobs? Seems the 11th circuit thinks they can do a better job even though they did not "hear" the testimony, nor did they "see" the defendant in court. No, the 11th circut court only "read" the transcripts for error. The 11th circuit needs to remember that there is a human being at the other end of that court transcript. That's WHY we have judges at that level!

Posted by: Book38 | Oct 25, 2010 10:05:03 PM

yea kind of loved this part!

" Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me,"

Sorry over 100 extra charges that evidently the state COULDNT' PROVE but still wants to count! sorry that's a non-starter or should be! then to add to it considered facts and arguments NOT brought out in the trial! any one want to take a guess at the number of appeals that have been tossed by this same group of idiots becasue the individuals DIDNT' BRING IT UP IN COURT! any bets the number is in the 1,000's?

Posted by: rodsmith | Oct 26, 2010 2:27:03 AM

The tricky thing about this case is that there is only one guideline sentence -- 30 years, the statutory maximum. This is because the government charged Irey with only one count of producing CP. His Guideline range is far higher (life, I think?), taking into account all the relevant conduct. If the government had charged him with even some of that conduct, he would at least be eligible for life, if not subject to a statutory minimum life sentence. I tend to agree with the 11th Circuit that the sentenced was imposed was substantively unreasonable, but the effect -- ordering a district court to impose a specific sentence, because there is no "range" in this case -- is somewhat troubling.

Posted by: Jay | Oct 26, 2010 8:45:39 AM

From Jay's comment, it seems that the State wants it both ways. First, they want the easy way out on charging and proving their case (one count, which they presumably had nailed tighter than a coffin). Then, at sentencing, they want the benefit of all the other stuff they "could have proved" beyond a reasonable doubt. They are entitled to take the gamble (or make the resources trade-off) in the hope that whatever they actually proved BRD, plus whatever weight the district court is willing to place on uncharged conduct, will get them to the result they want (30 years here, I guess). But if they wanted to ensure that result under the law, they should have charged everything they thought they could prove, and then proved it. If his guilt of all the uncharged stuff is as obvious as everyone seems to think, then that shouldn't have been so difficult.

Posted by: Anon | Oct 26, 2010 10:16:10 AM

"I tend to agree with the 11th Circuit that the sentenced was imposed was substantively unreasonable, but the effect -- ordering a district court to impose a specific sentence ... is somewhat troubling."

Based on his memorandum, I think that Presnell wouldn't disagree too strongly with this comment. I got the feeling that he realizes a longer sentence may be appropriate, but resents having to impose the stat. max., without any room for variance (even if smaller than the original variance).

I'm not convinced that the sentence was substantively unreasonable. But, IMO, I do think the Circuit over-stepped its bounds in telling the district court what sentence to impose on remand. This was detailed by Judge Tjflat in his concurrence.

If I'm writing the cert petition, my first issue is the obvious one: whether the Circuit was correct in concluding the district court abused its discretion. But another issue I would be sure to include is, assuming the sentence was substantively unreasonable, did the Circuit err by mandating a GL sentence (i.e. 30 years) be imposed on remand. I think both issues are cert worthy in this case. But if the Court does not want to delve into the first issue, the "scope of the remand order" issue may still provide relief.

Posted by: DEJ | Oct 26, 2010 11:56:40 AM

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