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May 31, 2017

Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

The Second Circuit today released a 139-page panel opinion in US v. Ulbricht, No. 15-1815 (2d Cir. May 31, 2017) (available here), which starts this way:

Defendant Ross William Ulbricht appeals from a judgment of conviction and sentence to life imprisonment entered in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.).  A jury convicted Ulbricht of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services.  He challenges several aspects of his conviction and sentence, arguing that (1) the district court erred in denying his motion to suppress evidence assertedly obtained in violation of the Fourth Amendment; (2) the district court committed numerous errors that deprived him of his right to a fair trial, and incorrectly denied his motion for a new trial; and (3) his life sentence is both procedurally and substantively unreasonable.  Because we identify no reversible error, we AFFIRM Ulbricht’s conviction and sentence in all respects.

The sentencing discussion covers roughly the last 25 pages of this lengthy unanimous panel opinion, and it includes a number of notable passages while covering a lot of notable ground. Here are just a few highlights of an opinion that sentencing fans and drug policy folks should read in full:

Ulbricht’s only claim of procedural error is that it was improper for the district court to consider six drug-related deaths as relevant to his sentence because there was insufficient information connecting them with drugs purchased on Silk Road.  In terms of our sentencing jurisprudence, Ulbricht claims that the district court relied on clearly erroneous facts in imposing sentence.  We are not persuaded....

[I]t was certainly appropriate for the district court to consider the risk of death from use of drugs in assessing the seriousness of the offense conduct, one of the factors that a judge must consider in imposing sentence.  See 18 U.S.C. § 3553(a)(2)(A).  That appears to be the only way the judge in this case used the evidence of the drug-related deaths. Emotionally wrenching as the statements of the decedents’ parents were, we cannot and do not assume that federal judges are unable to put their sympathies for particular victims to one side and assess the evidence for its rational relationship to the sentencing decision. And here, the record makes clear that the district court did not use the evidence of the drug-related deaths to enhance Ulbricht’s sentence, either as a formal matter under the Guidelines or otherwise....

[W]hile a life sentence for selling drugs alone would give pause, we would be hard put to find such a sentence beyond the bounds of reason for drug crimes of this magnitude. But the facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal.  Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite....

Ulbricht and amici point out that life sentences are rare in the federal system, typically reserved for egregious violent crimes, thus rendering Ulbricht’s sentence substantively unreasonable.  Moreover, according to amici, life sentences are normally imposed in cases where that is the district judge’s only sentencing option.  Thus, they claim that Ulbricht’s life sentence is substantively unreasonable in the context of the federal system, where life sentences are particularly rare for those with no criminal history who are convicted of drug crimes.

We agree with Ulbricht that life sentences are extraordinary and infrequent, which is as it should be.  But the rarity of life sentences does not mean that the imposition of such a sentence in this case is substantively unreasonable under our law.  Each case must be considered on its own facts and in light of all of the circumstances of a particular offense as well as other relevant conduct, which, in this case, includes five attempted murders for hire.  As we have described, the district court carefully considered Ulbricht’s offense, his personal characteristics, and the context for his crimes, recognizing that only exceptional cases justify such a severe sentence. Although we might not have imposed the same sentence ourselves in the first instance, on the facts of this case a life sentence was “within the range of permissible decisions” that the district court could have reached. 

A few prior related posts:

May 31, 2017 at 03:03 PM | Permalink


Have proposed the civil forfeiture of Faceboo/Twitter/Google/Apple, because thousands of crimes are committed on their platform. They moderate their content. For example they banned me. They have all waived common carrier immunity.

Posted by: David Behar | May 31, 2017 5:18:09 PM

My concern about this case is not regulated to the sentencing aspect. I found the court's discussion of what constitutes a general warrant wholly unconvincing. It is true enough that many warrants will as a practical matter require the government to sort through unrelated materials in order to find items that fit within the scope of the warrant. Yet in my view at some point in time this "practical" aspect fails a proportionality test. As I understand the court, it doesn't matter if there are a million off-topic items that get exposed so long as the government finds the needle in the haystack the warrant is not a general warrant.

Akin to what I said yesterday, I believe that the actual consequences of a presumptively valid search by the government can turn a reasonable search into an unreasonable one.

Posted by: Daniel | May 31, 2017 6:40:24 PM

This is a good result. The Ulbricht case refutes the notion held by some of his defenders that he was merely the operator of a website and not the perpetrator of crimes committed using his website. In fact, his site was intended to facilitate the distribution of contraband, which it did on a huge scale. He was a drug kingpin, even if he never handled illegal drugs himself, and he deserved to be sentenced as a kingpin.

(layman) Gary H.

Posted by: Gary H. | May 31, 2017 10:39:25 PM

Gary H,

Here is my question for you: why would 25 years or so not be enough? Why is it an imperative that a young man, with much to offer in many ways, never see the light of day? Does anyone have a rational answer to this? Another fundamental question raised by an interesting footnote in the opinion: Why does it make any sense to have a system that does not permit re-evaluation of whether incarceration is still necessary after a term of years? It seems crazy not to have an opportunity for second looks in light of future developments with the defendant? It seemed like Judge Lynch was implying this argument, without quite saying it. Anyone wish to offer a view on this?

Seems like a sad case all around. I wonder what the district court was really thinking. It seems somewhat perverse and arguably just cruel to impose a sentence like this when it wasn't mandated.

Posted by: Mark | Jun 1, 2017 9:41:06 PM


Because rehabilitation is only one aim of the criminal justice system (and IMO it should come dead last in consideration).

Posted by: Soronel Haetir | Jun 3, 2017 12:59:07 AM


What goals of punishment would not be achieved by a 25-year sentence here? Or not be achieved well enough to justify the delta between 25 years and life? The lack of rigor in comments like yours is frustrating.

Posted by: mark@mark64@aol.com | Jun 4, 2017 2:01:12 PM

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