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July 22, 2011

Sixth Circuit panel reverses drug sentence on "the admittedly unfair ground of insufficient clairvoyance"

The title of this post makes more sense if and when one reads today's ruling by the Sixth Circuit in US v. Priester, No. 08-2391 (6th Cir. July 22, 2011) (available here).  Here is how the decision starts:

In some cases we hold the district court to a standard we would dislike imposing on ourselves.  This is such a case.  Xavier Priester pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana.  The district court sentenced him to a within-Guidelines 180 months’ imprisonment.  The court’s explanation as to why it chose that sentence was exemplary — with one exception.  The exception is what Priester targets here.  He argues, specifically, that the district court failed to recognize that it had the authority to “vary categorically” from the crackcocaine guidelines in choosing Priester’s sentence.  The existence of that authority was made clear in a Supreme Court case — Spears v. United States, 555 U.S. 261, 265–66 (2009) (per curiam) — that was itself decided after the district court sentenced Priester. S o we have the benefit of that decision, whereas the district court did not.  Having parsed the sentencing transcript, we agree with Priester that the district court appeared unaware of the authority that the Supreme Court expressly announced months later.  And thus — on the admittedly unfair ground of insufficient clairvoyance — we vacate Priester’s sentence and remand the case for resentencing.

Judge Boggs dissents from the panel's disposition, and his opinion begins this way:

While the majority opinion acknowledges the problematic nature of reversing a district judge because of a Supreme Court decision issued after the judge ruled, (Maj. Op. at 2), that is a problem inherent in our system.  What the majority opinion calls “the admittedly unfair ground of insufficient clairvoyance,” ibid., does occur with some frequency, and is not a basis for dissent.  However, I think there is a more fundamental problem here.  The perceived flaw in the district judge’s conduct was not in following a legal principle that the Supreme Court later rejected.  Instead, it was (apparently) in not realizing that he needed to articulate on the record his recognition of a power that had not been explicitly sanctioned by the Supreme Court.  See Spears v. United States, 129 S. Ct. 840, 843-44 (2009) (per curiam).  To make matters worse, this failure occurred in a context where no one clearly asked him to assert such a power.

July 22, 2011 at 01:06 PM | Permalink


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Interesting. Is the issue, in the minds of the Sixth Circuit majority, fairness to the judge??? That seems wholly wrongheaded. Boggs seems to have the better of the argument--waiver.

Posted by: federalist | Jul 22, 2011 1:41:19 PM

I think Kethledge has the better argument here, though this has been an axe of Boggs's to grind for a few years now. This might not be the right analytical framework, but I always have looked at this as essentially a retroactivity issue: Kimbrough/Spears came down while these cases were on direct review and, for purposes of what the lower courts had held, "changed the law" with respect to policy disagreements with the (crack) guidelines -- it gave them a green light where before the light had been a very bright red.

Many judges, like Boggs, apparently uneasy at this change have been trumpeting the argument of "well, the judge didn't *say* he couldn't vary from the Guidelines for policy reasons" as a reason to affirm, when no one thought they could vary for policy reasons. It strikes me as a silly thing to argue about -- as Kethledge intimates, resentence him and move on.

Posted by: MJG | Jul 22, 2011 2:48:52 PM

federalist: It appears to me that Boggs thinks "fairness to the judge" is appropriate whereas the majority thinks it a necessary result of our legal system. From the majority:

"Cases are better decided on reality than on fiction. The reality here is that we have no reason to think—and affirmative reason not to think—that the district court knew what was coming in Spears. And Spears is now binding precedent for this case. The lawful result, and the sensible one, is to remand the case to allow the district court to decide for itself whether Spears would make any difference to the sentence the court thinks appropriate in this case."

As for the waiver argument, it's not really a waiver argument Boggs is making but trying to call out the majority for what seems a weak distinction between this case and one from a few years back decided on plain error grounds. Boggs does have a point that the majority's distinction between that case and the plain error one -- U.S. v Simmons -- is thin, two facts must be remembered. One, the Sixth Circuit has a particularly onerous plain error doctrine where there's a "speak now or forever hold your peace" moment in sentencing hearings dictated by the rule in U.S. v Bostic. The second is that U.S. v Simmons is a bit of a confusing hash decision. Back in 2009 when Spears was decided the Sixth Circuit batted this issue around and Boggs rushed out Simmons as a way to try to tilt the debate the other direction away from the other cases the majority cites, U.S. v Johnson and Curb.

If you remain unconvinced that the majority got this one right, the good news is that there are so many sentencing decisions in the Sixth Circuit the judges on each side tend to just cite the ones they like and ignore the others anyway. If anyone wanted to do a serious study of all the legitimate intra-circuit splits in the Sixth Circuit (to say nothing of conflicting dicta) their minds would probably explode. So this decision may have little practical impact.

Posted by: MJG | Jul 22, 2011 2:55:37 PM

"The reality here is that we have no reason to think—and affirmative reason not to think—that the district court knew what was coming in Spears."


Posted by: Jonathan Edelstein | Jul 22, 2011 5:26:30 PM

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