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March 29, 2013

Two notable resentencing stories via the New York Times

Continuing its recent notable extra interest in an array of modern sentencing stories, today's New York Times has two pieces that are both must reads for all sentencing fans.  And because neither story enables simply summarization, I will just here reprint the headlines and the links:

Ever the nerdy and obsessed sentencing law professor, I could readily imagine teaching a week of classes about either of these noteworthy cases.  But I wonder if readers think one or the other of these modern sentencing stories merits some extra blog attention.

March 29, 2013 at 10:56 AM | Permalink


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Great reads. In particular, Judge Gleeson's advocacy, reference in the first article, is rather unprecedented and fascinating.

Posted by: AnonymousOne | Mar 29, 2013 11:30:32 AM

Doug, I encourage you to blog about "Long Prison Term Is Less So Thanks to Regrets by a Judge."

Intending no criticism whatever, I wonder whether the judges referenced in the article (particularly Judge Gleason) have thought through their roles as federal trial judges when they endeavor on their own to correct sentencing error regarding a defendant. Does the ratchet work the other way?

Coincidentally, just yesterday, I blogged about a big sentencing error (mine) that went the other way–in favor of the defendant. Kopf’s big blunder(s) at http://herculesandtheumpire.com/ I used that post to speak about role definitions. (Please forgive the reference to my blog and what may seem shameless self-promotion.)

Richard G. Kopf
Senior United States District Judge

Posted by: Richard G. Kopf | Mar 29, 2013 5:32:00 PM

After reading "Long Prison Term Is Less So Thanks to Regrets by a Judge," I am left with many thoughts and questions:

1) The article says she was sentenced as a "career criminal." I take that to mean "career offender" under 4B1.1 and 4B1.2. Without a gun conviction, she was not ACCA (for which the term "career criminal" would be more apt).

2) The article says she was convicted of distributing "a few ounces of crack cocaine." Assuming "a few" means 3 or more, that means she distributed at least 85 grams. If so, under the pre-FSA statute, she faced a 10 year mandatory minimum (at least). It would have been helpful to discuss what, if any, statutory mandatory minimums applied.

3) Assuming it's true that her guideline range was calculated under 4B1.1, and assuming she faced only a 10 year mandatory minimum, why didn't Judge Lagueux issue a downward departure down to the mandatory minimum based on the reasoning that "career offender" over-represented her criminal history? He obviously felt the career offender guideline range was overly sever. Why not depart (as many judges do in the situation of career offenders)?

4) If the answer to "why not depart?" is that he was constrained by a mandatory minimum (one not mentioned in the article), then isn't the real complaint about the statutory mandatory minimum, and not -- as the article represented it -- the guidelines? And if the real complaint was the guidelines, then I reiterate my original question: "why not depart?" Was there no on-point departure provision? Why wouldn't over-representation have applied? On the other hand, if the answer to "why not depart" is that Judge Lagueux did, in fact, depart then I would like to know that fact, and I would like to know why he felt he couldn't depart more. I am well aware that departures pre-Booker were severely restrained, but I'm not sure that's true for career offenders. I guess I just want more facts.

5) What was the "technical flaw" or "procedural flaw" in the original sentence? I can hypothesize that it was that she should not have been career offender -- maybe one of her prior offenses did not qualify as a crime of violence. But I'm guessing here. I would really like to know.

6) What jurisdiction did the Court have to correct the sentence. I can guess that it was a 2255, but I'd like to know.

7) How much time did she actually serve? How much of a reduction did she get? If the original error was a Guideline-calculation error, how much lower was the correct guideline range compared to the originally calculated one? If the error had never occurred, what would the correct sentence have been?

This article raises more questions in my mind than it answers.

Posted by: DEJ | Mar 30, 2013 12:20:01 AM

Judge Kopf,

I realize the question was not addressed to me. With that in mind, I hope you don't mind my thoughts. You ask: "Does the ratchet work the other way?" What would the mechanism (or jurisdiction) be to 'work the other way'? How would a judge go about correcting an error that went in favor of the defendant?

It seems evident that there are avenues to correct errors that work against the defendant (some more successful than others) such as pardon/commutation, 2255, 3582(c)(1) or (c)(2), appeal, etc. But what avenues exist "the other way"?

In an attempt to get an answer to that question, I read your blog post. I'm now wondering: what jurisdiction did you have to correct Mr. Perry's sentence? (I don't mean to suggest there was none; I'm just curious). I might guess that it was Rule 35, if it were within 14 days after sentencing. Is that a correct guess? If so, would there be an avenue to correct the sentence on day 15? What about more than a decade later (as in the case in this NYT article)?

I suspect the reason why it does not easily "work the other way" is because there are few (if any) avenues to correct a government-adverse error long after sentencing occurred. But maybe you can point me in a direction I hadn't thought of.

Posted by: DEJ | Mar 30, 2013 12:57:24 AM

Judge Kopf --

Although the second of your listed lessons is almost surely the most important for the administration of justice, the third (be skeptical of everything) is the one that struck me.

I started at DOJ right out of law school. I was one naive young man, and I didn't know how it actually works. In partcular, it came as a shock to me that opponents would, with great, poignant and convincing emotion, lie to my face.

The extent of misleading practice by some attorneys I encountered, and of manipulation by criminal defendants (like your "war hero"), was a real eye-opener.

Most of my present colleagues at Georgetown Law buy the defense schtick hook, line and sinker. I am grateful that the school tolerates my dissenting views, and grateful that we can have the voice of judicial experience among the commenters here.

Bill Otis
Adjunct Professor of Law
Georgetown University Law Center

Posted by: Bill Otis | Mar 30, 2013 1:39:20 AM

Judge Kopf,

Do you think your (healthy?) skepticism has ever prevented you from believing someone -- an attorney or a defendant -- who was telling the truth? If so, on the scale of severity, where does that grievance lie? Looking at it another way, which is worse: A) believing something to be true that is not true, or B) believing something to not be true that is true?

Especially as an independent judge, is it not our criminal justice system that doubt should be resolved in favor of the defendant? And I'm not just talking about the presumption of innocence. Even at sentencing: Does "skepticism" usually get the win over an otherwise fairly close issue (on credibility or otherwise)?

Posted by: DEJ | Mar 30, 2013 11:18:44 AM

DEJ --

Isn't the problem less that Judge Kopf is skeptical and more that he got lied to?

When a defendant like Perry just flagrantly appropriates someone else's story of the sacrifices of war, and does so as a way to plead for leniency, skepticism is not only healthy, it's inevitable.

If defendants want a more receptive greeting, the answer is easy. Quit lying and come clean. My experience in court is that defendants who genuinely, and with a remorseful heart, do that, will find a judge who'll bend over backward to give them a break.

Those who want to shake-and-jive their way to a lenient sentence, but get found out, wind up with what they have earned. None of us should shed tears about that.

No presumption of the law, the rule of lenity or anything else, requires judges to embrace credulity.

Are all your clients fully candid, straightforward and honest about what they've done? Didn't think so. It's harldy error for judges to notice what's going on in front of their faces.

Posted by: Bill Otis | Mar 30, 2013 12:13:09 PM

I will try to provide brief answers to some of the questions posed following my comment to Doug's post:

1. In the Perry case, the error was discovered the day after sentencing. As I recall both sides came and asked that I resentence Perry. By then, Perry's excellent and very ethical lawyer had withdrawn and an equally excellent and ethical AFPD stepped in. Perry was resentenced two days after the first sentence was imposed, and I believe the procedural mechanism was either Fed.R.Crim.P 35(a)or Fed.R.Crim.p 36.

2. My one-way ratchet question really was directed at how sentencing judges think about and construct their roles. For example, I lobbied for a pardon for a young black woman,with no criminal history and three kids, who had been convicted for her involvment with a boatload of crack. I had sentenced her to a god awful long time in prison. She truly turned her life around in prison. When I wrote the President was that the proper exercise of my judicial role? In contrast, if I believed a defendant lied at trial, and in addition to bumping the sentence for obstruction of justice, should I also lobby the prosecutor to file perjury charges?

3. I worry endlessly that my skepticism gets in the way of judging credibility. I try me best to be balanced. But truth be told, I am no damn good at making credibility determinations.

4. I don't know which is worse in regard to whether A) believing something to be true that is not true, or B) believing something to not be true that is true.

5. Should, and do, I give the benefit of the doubt to criminal defendants at sentencing? Sometimes I do, and sometimes I don't. For example, when it comes to drug quantity estimates given by cooperators, I frequently err on the low side. In general, I try to resolve the "who gets the benefit of the doubt" question by remembering that the government has the burden of proof (and persuasion) on Guidelines aggravators and the defendant has the burden of proof (and persuasion) on Guidelines mitigators.

Richard G. Kopf
Senior United States District Judge

Posted by: Richard G. Kopf | Mar 30, 2013 7:07:43 PM

"Isn't the problem less that Judge Kopf is skeptical and more that he got lied to?"

Neither side is more important than the other. Does it matter to Desdemona that she got killed because Othello believed Iago's lies? What difference does it make to her whether the blame is put on Othello's gullibility or Iago's malice? It makes no difference, she's dead.

@DEJ. "which is worse: A) believing something to be true that is not true, or B) believing something to not be true that is true?"

Neither is worse. Both are mistakes. Mistakes are part of the human condition.

Posted by: Daniel | Mar 30, 2013 7:14:31 PM

Daniel --

"Neither side is more important than the other."

I disagree. The moral quality of lying is vastly different from the moral quality of skepticism. Indeed, skepticism is a good thing, especially in a judge -- a powerful person who depends on getting the truth.

"Does it matter to Desdemona that she got killed because Othello believed Iago's lies? What difference does it make to her whether the blame is put on Othello's gullibility or Iago's malice? It makes no difference, she's dead."

It makes no difference to Desdemona, correct. But that's not the question. It makes plenty of difference to how those of us remaining in this world treat both Iago and Othello.

Posted by: Bill Otis | Apr 1, 2013 8:15:43 AM

The exchange between DEJ, who posed excellent questions, and Judge Kopf, who graciously and thoughtfully answered them, was the most valuable thing I've read in this blog's comments section in a long, long time.

Posted by: observer | Apr 1, 2013 7:53:30 PM

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