Tenth Circuit panel finds sentence increase for open plea to be procedurally unreasonable

One of many challenges in the world of sentencing policy and practice, especially when it comes to appellate review, is that a sentencing judge who often extensively explains his or her sentencing decision-making at length is often more likely to articulate a legally problematic reason that then provides the basis for a sentence reversal.   This reality is demonstrated in a new Tenth Circuit panel decision in US v. Cozad, No. 20-3233 (10th Cir. Jan. 3, 2022) (available here).  Cozad is a really interesting opinion for lots of reasons, and it starts with the district court at sentencing explaining why the defendant was here getting a sentence a few months above the bottom of the guideline range in this particular way:

[I]t’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low end guideline range.  But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.

Here is how the Tenth Circuit panel framed the issue that this statement of sentencing reasons presented on appeal:

This appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement. For the reasons explained below, we hold that it is.

There are lots of parts to the opinion that follows which serves as an effective overview of various aspects of reasonableness review and plea policies and practices. I highly recommend the full opinion for federal sentencing fans, and here are some notable excerpts (with lots of cites omitted):

[A]lthough the district court stated that its practice was not “a hard-and-fast rule by any means,” the court did not explain why it was applying the rule in Ms. Cozad’s case.  Similarly, although the district court made a passing reference to “the agreements that typically happen in a plea agreement,” the court did not specify what those “agreements” are. On this record, therefore, we cannot but conclude that the district court gave Ms. Cozad a longer sentence than she otherwise would have received simply because she pled guilty without a plea agreement. Whether it was permissible for the district court to do so appears to be a question of first impression in this or any other circuit....

For reasons of history, as well as congressional intent, appellate courts have interpreted § 3553(a) liberally.  Nevertheless, a district court does not enjoy boundless discretion with respect to the facts it relies on at sentencing.... Even when the fact ostensibly relates to the defendant’s conduct or characteristics, its consideration may be grounds for remand when the fact has no bearing on any of the aims of punishment set forth in § 3553(a)(2)....

The government argues that a district court may consider the absence of a plea agreement because such agreements often include certain conditions, such as appellate waivers.... When the parties reach an agreement, a district court can evaluate the terms, including any waivers, in the context of the agreement as a whole to determine the degree to which the waivers may show some additional acceptance of responsibility. By contrast, when the defendant enters an open plea, the court may not know whether any plea agreement was offered, let alone under what terms. Indeed, there is no evidence in this case that an appellate waiver was ever discussed. In these circumstances, without more information, it is unreasonable to penalize the defendant for the absence of an appellate waiver in a nonexistent agreement....

The government further argues that courts may “for uniformity purposes” grant “additional leniency” to defendants who enter into plea agreements and withhold it from those who do not.  The government reasons that, were a court required to sentence a defendant who pleads open “to the same sentence he would have had, had he taken a plea agreement,” there would be “no compelling reason” for a defendant to accept the conditions of a plea bargain.  We are not convinced....

[E]ven in cases where there is only a single viable charge, the government could threaten to recommend a harsher sentence or to pursue an aggressive interpretation of the guidelines.  Consequently, because courts are free to take the government’s recommendation into account, a defendant who refuses to plea bargain would still risk receiving a higher sentence in many cases.

More fundamentally, the government’s argument fails because providing a “compelling reason” for a defendant to enter a plea agreement, whether by granting “additional leniency” or withholding it, is not a valid sentencing rationale.  Section 3553(a) provides that courts are to impose no more punishment than is necessary to comply with the four penological goals enumerated in § 3553(a)(2). When a court imposes a sentence to achieve some other purpose, that sentence is unlawful.