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April 16, 2014

Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized

220px-TrialKafkaThe more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system.  In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:

1.  Cantu's original federal sentencing as guidelines numerology:  My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison.  I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.

2.  Cantu's original federal sentencing as federal actors gone numb:  Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers.  One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right.  But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.

3.  Cantu's dismissed 2255 motion as federal prosecutors possessed:  Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic.  In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants.  But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.  

Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a  typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error.  Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late.  I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.

I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison.  But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse."  In addition, according to the Times reporting, Cantu is married and has 8-year old daughter.  Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?

I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation.  Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system.  But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common. 

April 16, 2014 at 12:50 PM | Permalink


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The remedy has been proposed many times, here.

An arithmeic error, aduty to the victim, a failure to correct after notice, false imprisonment, the need to prevent such mistakes, those are features of automatic tort liability, and the notice lands the government in exemplary damages land.

All parties were careless and had duties of care.

End alll self dealt lawyer immunities.

Posted by: Supremacy Claus | Apr 16, 2014 3:03:18 PM

This strikes me as a situation where all the players missed the point. Sentencing guidelines are designed to capture a category of social norms that apply to a given, millrun set of circumstances. Remember that sentencing guidelines are set before the fact, which is a time when the problem is not fully knowable. At best they are crude. For example they fix a duration of restraint, but not its precise level. They should not be taken so literally.

What is missing in this case is good sense.

Posted by: Tom McGee | Apr 16, 2014 5:04:25 PM

Please forgive my ignorance. Isn't the judge in the loop here? Isn't there a judge that pronounced the sentence?? And why would that judge give a sentence that he or she felt was too long?

If the judge felt that the sentence was appropriate (whatever the guidelines say), then I don't see that there is any injustice here. And if the judge was constrained by a mandatory sentence which the judge felt was unjust, then that judge should have said so and resigned before giving such a sentence.

Posted by: Boffin | Apr 16, 2014 8:57:38 PM

Are scrivener errors time-barred? I know that's a fairly nitpicky procedural question from a policy perspective (although one that, if favorable, would be dispositive from a legal perspective), but I would just hope that would be the case and this can be resolved favorably anyway. I do agree that it is disconcerting that a Prosecution would want to benefit solely from a typo. From an Apprendi/legal perspective, I wonder how Booker applies. Since the Judge made the actual sentencing decision, maybe it's not technically a scrivener's error even if the Judge did make the decision based on a typo (the typo might have made it voidable, but didn't make it void or something to be automatically corrected).

As for sentences being determined solely by a number, I'm of two minds. On the one hand, I appreciate the effort to quantify the normally qualitative determinations that go into a sentencing decision. In theory, this system can promote uniformity while still taking into account individual actions. It should allow the court to actually evaluate all the things you mention without being subconsciously biased by impermissible factors. That being said, I also realize the numbers are somewhat arbitrarily chosen, will never truly capture anything, and, the more complex they get in an effort to do so, the more likely that mistakes like this one will be made.

Posted by: Erik M | Apr 16, 2014 9:28:31 PM

Reminder. Mandatory guidelines were not for the benefit of lawyers and judges. They were not to make punishment more uniform. They were not to generate a lot of appellate jobs.

They had one sole purpose. They took the decisions to punish away from criminal coddling judges, and increased incapacitation. Crime was out of control in the 1970' and 1980's. After they were placed into effect, crime dropped to more tolerable levels.

Crime is still outrageously high, and destroys a $trillion in economic value, not to mention the suffering endured by the public at the hand of the criminal advocating lawyer profession. I would suggest not only a return to mandatory automated sentencing formulas, but excluding the lawyer from all benches. The lawyer has been a gigantic catastrophe.

I know that ending tort immunity for these careless, incompetent, and pro-crminal biased lawyers is beyond discussion. But it is the best remedy, and this case makes a compelling argument. Imagine a typo in a computer program, in a defamatory article, the negligence would be automatic. All lawyer parties cry out for tort liability by their devastatting damages. Their duties to the victim are all enumerated in statutes, in the Rules of Conduct, of Evidence, of Criminal Procedure, making the liability per se. The lawyer profession is in utter failure across the board and cries out for tort remedies. To deter.

Posted by: Supremacy Claus | Apr 16, 2014 10:45:45 PM

Good post Doug. I doubt Bill Otis or any AUSA will respond.

Bill has been quieter lately. The love of his life ( federal guidelines ). Are slowly being dismantled.

Tom McGee nailed it. Common sense was missing in this case, along with a conscience.

Posted by: Midwestguy | Apr 16, 2014 11:26:46 PM

"Reminder. Mandatory guidelines were not for the benefit of lawyers and judges. They were not to make punishment more uniform. They were not to generate a lot of appellate jobs.

They had one sole purpose. They took the decisions to punish away from criminal coddling judges, and increased incapacitation. Crime was out of control in the 1970' and 1980's. After they were placed into effect, crime dropped to more tolerable levels."


Mandatory Minimums serve one primary single end purpose, whether the government apologists or its mundanes realize it or not and that purpose is CONTROL.

It is control of the masses under the many illusions of the freedoms granted by a "Democracy", no more and no less. There are people who want to be controlled, who feel comfortable having their children and future generations indoctrinated in government schools to the point of eventually being venerated for dying for their country, aka, government. Controlled in the name of "safety".

As far as crime reductions, I guess perception is the new reality in the systems that we have created. You are only permitted to think about and discuss the "news" that is deemed proper to distribute.

As for Bill taking his ball and going home, at least we don't have to take the majority of our time tearing down his straw men and the meaninless platitudes.

Often, your observations on the "lawyer(ing) profession are spot on. That the sentencing error could not be easily corrected is further damning evidence of the new government priesthood and its new deity.

Posted by: albeed | Apr 17, 2014 9:31:26 AM

I am curious as to why the district court judge didn't exercise his power to correct the clerical error under Fed. R. Crim. 36, which provides a district court with jurisdiction to correct a clerical error in a judgment at "any time." I am equally curious as to why the AUSA didn't simply direct the district court's attention to Rule 36 instead of arguing that the 2255 was time-barred. Seems like this could have been avoided all the way around had the lawyers, judge, probation office, and the judge's law clerk paid a bit more attention.

Posted by: Zachary B. | Apr 17, 2014 10:02:40 AM

I wondered if Booker means it isn't a clerical error. The clerical error was in the recommendation to the Judge, not the Judge's order. The Judge intended to give that sentence and wrote the sentencing order correctly. He just received bad advice, essentially.

I had missed this the first time around, but the extra length of the sentence was commuted by the President? I'm glad this is a happy ending even if I agree it shouldn't have come to that.

Posted by: Erik M | Apr 17, 2014 10:18:58 AM

There appears to be a little more to the story. Cantu received a Rule 35 cooperation reduction in 2009 down to 180 months. See fn 2 of the 2255 dismissal. Perhaps the gov believed that even if the original typo was not there that the gov would not have sought anything less than 180 with the Rule 35 reduction. Unclear.

Posted by: AUSA12 | Apr 17, 2014 11:14:10 AM

Erik M.,

But I think there would have been a clerical error in the judgment because the Statement of Reasons portion of all criminal judgments in federal court requires the district court judge to state the offense level, criminal history category, and Guidelines range of imprisonment.

Posted by: Zachary B. | Apr 17, 2014 11:29:36 AM

I find quite unpersuasive the order's analysis of the equitable tolling issue, which appears to amount to this: after the defense lawyer, the AUSA, the probation officer and the Court, all of whom had duties to review and assure the accuracy of the PSR including typos wrongly inflating the offense level and sentence, all failed to do their duty, the defendant, after he was incarcerated, had a duty to review his PSR and timely bring to the Court's attention the multiple errors committed by it and its other officers. And the defendant's failure to discharge this duty and cure the undisputed and material mistakes of the Court and its officers prevents application of the doctrine of equitable tolling. Finality uber alles, indeed.

Posted by: Robert L. Abell | Apr 17, 2014 11:39:14 AM

no offense Robert but it's not the inmates job to do the fed's job for them. That's just retarded.

Which of course is the main reason we're in this mess in the first place. Too many in gov't service can now wear that label with pride! "I'M A GOV'T FUCKTARD! = gov't retard"

Posted by: rodsmith | Apr 17, 2014 5:29:28 PM

I wonder if the response to this case is being insensitive to the roles of the actors involved. Is it really the role of a federal judge to ignore things like statutes of limitations? Is it the role of a federal prosecutor to do so, as well? Wouldn't both smack of adventurism? It seems unfair to blame the judge for a restrictive statute of limitations doctrine that was not of his or her own making.

On the other hand, isn't it exactly the role of clemency to come and correct cases where the rules, however well-meaning or however flawed, fail us? Hence why it's purely discretionary. It has the potential to serve as a kind of stopgap when the rules, however well-meaning or flawed, let things slip through the cracks.

(law clerk and beginning law prof, came here through a link from NY Times)

Posted by: NA | Apr 18, 2014 2:40:32 PM

The most disturbing and probably revealing comment is Boffin's "it is disconcerting that a Prosecution would want to benefit solely from a typo". How does this extra 3.5 years "benefit" the prosecution? How does it benefit anyone?

The basic thing that's at fault here is our adversarial justice system, a series of contests to be "won" by the prosecution or defense. The contests are refereed by the judges, judged by the juries, and scored according to conviction rates and lengths of sentences. No one in this absurd scenario is assigned the task of seeking justice. It's a Kafkaesque system that is bound to cause Kafkaesque outcomes, and they will continue as long as the system exists.

[I'm an IT professional; came here from NY Times]

Posted by: Harvey Wachtel | Apr 18, 2014 6:22:38 PM

Some prosecutors forget that "the Government wins its point when justice is done in its courts." Brady v. Maryland, 373 U.S. 83, 87 (1963).

Posted by: Michael R. Levine | Apr 19, 2014 11:16:36 AM

"But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred."

A little over the top? Personally, assuming that this was truly a scrivener's error, I support what the President did.

This was eye-catching from the Times: "A naturalized citizen"---too bad his citizenship cannot be revoked. If there were truly any justice, he would be deported back to where he came from.

Posted by: federalist | Apr 19, 2014 2:20:04 PM

"Good post Doug. I doubt Bill Otis or any AUSA will respond."

I don't see libs ever trying to defend indefensible votes for stays . . . .

Posted by: federalist | Apr 19, 2014 2:23:27 PM

So, no one is going to defend the prosecutor's invocation of the statute of limitations? Good.

Posted by: Gray Proctor | Apr 19, 2014 4:23:00 PM

Gray, not something I would do (i.e., invoke the SOL), but its not like we're talking about innocence here. For very good reason Section 2255 has a one-year SOL. I am not sure that an immigrant who bit the hand of the society to whom he should be grateful deserves to have the law bent for him.

And Doug's evil and satanic is more suited for capital-murder coddling judges who grant stays based on whim, rather than legal analysis. Why don't we start by getting that right?

Posted by: federalist | Apr 19, 2014 5:39:29 PM

Prosecutors have discretion whether to invoke the statute of limitations. Saying that ignoring the limitations here would be "bending the law" is about the same as saying prosecutors have to charge the most serious crime possible on every given set of facts, have to seek the lengthiest sentence, etc.

I have published the docket sheet here: http://www.appealsandhabeas.com/cantu_docket.pdf
The motion to dismiss by the United States is here. http://www.appealsandhabeas.com/cantu_mtd.pdf

The MTD confirms that the United States did not address the merits of the claims at all, relying solely on the procedural defense.

Now, if the position of the United States was that Mr. Cantu was not prejudiced by counsel's deficient performance because it would not have offered such a substantial 35b reduction (Fed. R. Crim. P. 35, authorizing reduction of sentence for cooperation on the motion of the prosecutor after sentence is imposed, for the civilians out there) - it could certainly have taken that position in the MTD. If the position of the United States was that Mr. Cantu's was correct regardless of the guidelines range, it could certainly have taken that position. The United States did not. Is this a lazy AUSA, failing to address the merits in the alternative? Is this the product of a "defend 2255 at all costs" policy from higher up than the AUSA on the case? We'll (probably) never know. All we know is that POTUS himself had to intervene to fix a clerical error, and that POTUS had to waste his time on it because the AUSA chose to invoke a procedural defense to an ineffectiveness claim that clearly showed deficiency and certainly made a colorable showing of prejudice. (Guidelines calculations matter - see Peugh).

Although the idea of therapeutic justice (explaining to individual defendants why it's fair that they are in jail) is hardly the most important concept here, I would note just in passing that failing to address the merits of a claim on procedural grounds greatly increases the sense of the unfair/arbitrary application of the law. I would consider that bad judging. I consider it bad prosecuting too, but I am more inclined to sympathy for the position that it's not the job of a busy prosecutor to do that sort of hand-holding.

And let me say that, although I believe the decision of the district court was correct under the law governing equitable tolling, when you look at the reasons for the delay (BOP prisoners can't have Presentence reports in their possession; Cantu gets his PSR from a family member after discovering the mailroom at his institution does not intercept the reports; Cantu appears not to know that he can view his PSR in private BOP rooms) this is a particularly mean-spirited use of the limitations defense. Given the high regard in which most attorneys hold themselves and their training, it is extraordinary to me that they hold pro se defendants to an above-average level of competence - and yes, in my experience you can't expect the average attorney to decipher BOP regs, much less the substantive law.

Professor Berman is completely right that we should "wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred." If the United States had a substantive problem with Cantu's claim, it should have raised it. The U.S. raised no substantive objection, and thus this looks like the U.S. gave the proverbial middle finger to some guy who didn't figure it out in time, after all of the "official" legal actors missed it.

If the only way to respond to that is to think of other things that may be equally or more evil or satanic - well, you have fun with that. Last I checked, hijacking a comments thread is not a federal crime.

Posted by: Gray Proctor | Apr 19, 2014 8:39:00 PM

"The U.S. raised no substantive objection, and thus this looks like the U.S. gave the proverbial middle finger to some guy who didn't figure it out in time, after all of the 'official' legal actors missed it."

Of course, Mr. Cantu gave America the middle finger. This immigrant decided to piss on the society that graciously allowed him to enter.

I am not a big fan of illegal sentences, so I likely would not have objected to the correction of the sentence error, but I'd sure be tempted to simply follow the law in this case, which the prosecutors did. I juxtapose that with the utterly lawless votes for stays in capital cases by (usually) 'rat judges.

The "evil and satanic" forces here are a figment of Doug Berman's imagination.

And Gray, you can cast a snide aside about "hijacking" a thread, but it is funny how libs never can seem to defend indefensible stays or the "wise [sic] Latina's" opinion diarrhea.

Posted by: federalist | Apr 19, 2014 10:15:07 PM

Once again - if the US felt there was some substantive problem with correcting Cantu's sentence, that problem certainly could have been raised in the MTD. If it were so important that the sentence imposed not be altered, well, absolutely any articulable basis for failing to correct the sentence in 2255 proceedings might have insulated the sentence from correction by clemency. Any good substantive reason for failing to correct the sentence may have given the POTUS some leg to stand on in refusing to grant clemency, if that were worth doing. Is the failure of the U.S. to advance a substantive basis for opposing the 2255 a product of a conscious policy decision or laziness on the part of an individual actor?

"Follow the law" - I do not understand what that means in this context. Is there some law that governs the exercise of prosecutorial discretion to invoke the statue of limitations here and would render invocation of the limitations defense mandatory? If so, please provide. Otherwise, I think what you mean is that, given a choice whether to invoke a procedural defense to a presumptively meritorious claim, the prosecutor chose to prevent the court from addressing a real problem with a sentence it imposed. Am I missing the point? I am dense at times, please let me know if I'm not getting it. But I don't think that "using a meritorious procedural defense to avoid correcting a clear substantive error" is the same as "following the law," just as "addressing a claim on the merits rather than invoking a procedural defense" is not "breaking the law."

The Judge here followed the law, despite his articulated sympathy for the defendant (letter to NYT, not opinion), so I don't think you can be complaining about that.

It appears that you and I agree that, were we in the position of this AUSA, we would not raise the SOL defense. Here's the message I think the AUSA sent: "You're right, but screw you. We'll take another 3.5 years of your life over what the guidelines recommend, without contending that they are inappropriate in your case. We're going to keep the benefit of this clerical error." That's the message in this case, after all the dust settles. Does that promote respect for the law? Do you feel better as a citizen to know how Cantu was treated? If you had been the prosecutor, would you be proud of this? It appears to me that you are too competent and too ethical to take that position, so what are you defending here?

And Fed, calling you out for changing the subject is not "snide" by any stretch of the imagination. If you want to talk about indefensible stays or Justice Sotomayor, perhaps you should start a blog, or post in threads that actually pertain to those topics. They do exist. This particular blog entry happens to be about an arguably questionable exercise of prosecutorial discretion that had to be corrected by POTUS himself. No one is under any obligation to engage with you on your pet topics (and no disrespect, I have mine too) to express an opinion on the substance of the topic of discussion, as set by blog master Berman. I think it is appropriate to be less concerned about what libs say about stays in capital cases than what the AUSA did in this case.

Posted by: Gray Proctor | Apr 19, 2014 11:24:49 PM

No one has addressed the justification for the tort immunity of the judges and prosecutors. A typo error is a straightforward act of negligence.

Bill once answered by saying we privilege government to do illegal or tortious acts on our behalf, for our welfare. For example, to kill people at war to protect us. However, in this case, specifically, there cannot be a public benefit justification.

I would appreciate an explanation that addresses the immunity from accountability for the specific carelessness, and resulting damage. The immunity should be removed to improve the practice of these parties. Liability would be for the welfare of the criminal justice system.

Posted by: Supremacy Claus | Apr 19, 2014 11:31:50 PM

Interesting thread.

Posted by: Allison Williams Esq. | May 5, 2014 10:31:51 AM

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