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August 12, 2014

Eleventh Circuit finds probation sentence for public corruption substantively unreasonable

All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781].  And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.

In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments.  For the reasons which follow, we hold that such a sentence was indeed unreasonable.

Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion.  Here is how it gets started (with footnotes omitted):

I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed.  In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing.  The truth is that it was the Government’s doing.  To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence.  This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.

In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error.  To the contrary, it accepts the fictitious Guideline range the court adopted.  All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable.  Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal.  Yet the court fails to acknowledge that a procedural error has occurred.  Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error.  I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue.  Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief.  Part IV concludes.

August 12, 2014 at 02:05 PM | Permalink


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It has been a while since I did a sentencing appeal, but isn't it clear that Judge Tjoflat is taking a very idiosyncratic and incorrect view? He says that a District Court, when considering a 5k1.1 motion, CAN'T describe itself as departing down to a new Guidelines level/range. (Right?) In my experience, courts very commonly do exactly that - and then go on (as this District Court did) to consider "variance" as a next step. That procedure certainly makes sense. I can't really understand why Judge Tjoflat thinks it's a problem, or thinks that it's clearly wrong. I GUESS that what he's saying is that a District Court MUST say "If I were allowed only to consider the Guidelines and the 5k1.1, I would give a sentence of xx months, but now let me tell you what I am going to do in light of my discretion to consider all other relevant factors ..." But how would following that script change the outcome in any particular case? Or would Judge Tjoflat say that even that would somehow be wrong?

Posted by: Sam | Aug 12, 2014 3:05:58 PM

It is ironic that a sentencing hawk like the Supremacy is forced to tell the defense bar how to do its job. Ironic, but not surprising, since 1) they are dumbasses; 2) owe their jobs to the prosecution, not to the client; 3) will never attack the other side nor deter in any way.

I would ask the judge if he has ever tried to get work done on his home. It is very hard to find anyone interested. Then it is hard to get anyone to show up, to write a bid, and to start a job. Getting someone to complete a job is nearly impossible. One then has to chase down the contractor in court to get one's mooney back, consuming days of lost wages on retrieving it.

Each of those steps in the process of contracting has tremendous value. Compare to the cost of other similar jobs. The sum of the value of each step should deducted from the damage done by the defendant. If it turns out the profit was too low for the value returned, the defendant should sue the state for its unjust enrichment.

If the politician got the job done, and the bribe was too low for his effort, then he should be compensated further as well.

Posted by: Supremacy Claus | Aug 12, 2014 9:54:54 PM

But Supremacy. Your method makes too much sense. The feds cant have that. The guidelines arenot binding, just merely a starting point.

So if you come along and rational analogies, this entire mess goes away and things are understandable.

Unlike, it doesnt satiafy 3553 factors. Oh yeah everyone knows precisley what is meant.

Even though nobody respects the feds, for precisely because of 3553 factors. Its all so over done it sucks. But I wont really tell ya how I feel about ghe federal guidelines now.

Have a nice day.

Posted by: Midwest Guy | Aug 13, 2014 2:36:23 AM

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