Sentencing Law and Policy

"Booker at 20": introducing a coming series of posts (and more)

Just over nine months ago via this post, I set out a call for papers as part of plans to produce a new Federal Sentencing Reporter issue on "Booker at 20."  That post noted it was way back in January 2005 when the Supreme Court through its opinions in United States v. Booker ushered in a new era for federal sentencing.  Through dueling 5-4 opinions concerning the application of the Sixth Amendment, Booker made the guidelines “effectively advisory,” rather than “mandatory.”  The Court’s opinion invited Congress to rework federal sentencing in keeping with this ruling, but the Booker advisory guideline system has proved remarkably durable: while "mandatory" guidelines were operational for 16 years, we are now just days away from the 20th anniversary of Booker and the advisory guidelines it created.

Booker was handed down the morning of January 12, 2005, so its official 20th birthday will not be until this Sunday.  But an opinion like Booker merits more than just a single day's attention.   So I am here starting a series of posts on the topic of "Booker at 20."  The full Federal Sentencing Reporter issue on this topic is to be published in the coming weeks, and I will be blogging about its contents when it is released.  A few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles.  So look for those in the coming days. 

In addition, I am eager in this space to highlight notable post-Booker data, rulings and scholarship and anything else that should be seen as standing the test of (sentencing) time.   Because my curation of post-Booker developments and "greatest hits" will surely be warped by my particular parochial interests (as well as fading memories), I welcome and urge folks to flag items from the era of Booker sentencing that they think ought not be forgotten.

A last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of months ago, I set out the full call for papers for a forthcoming (early 2025) issue of the Federal Sentencing Reporter in which we will note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As noted there and in subsequent posts, the "soft" deadline for receiving drafts for this FSR issue is this week (though we may have a bit of flexibility).  For full effect, here is a full reprint of the original call:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process. 

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Not-quite-last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As detailed below, the "soft" deadline for receiving drafts for this FSR issue is next week (though we may have a bit of flexibility depending on the number of submissions).  So, though I expect the true last call for submissions will be next week, anyone planning to submit a draft that migth need a little extra time should eb sure to let me know of their plans.  And, for full effect, here are some of the specifics of the call:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Calling once more for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  I previously threatened to repost this call every few weeks until the deadline tard the near end of May, so a mid-May re-post on a Monday seems like good timing.  I will forego all the background about Booker in this reminder call and be content with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Call for Papers: Federal Sentencing Reporter issue on "Booker at 20"

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Notable concurrence laments that Eleventh Circuit's "sentencing precedent is a crazy quilt"

A helpful colleague made sure I did not miss a remarkable concurring opinion by Eleventh Circuit Judge Kevin Newsom in US v. Curtin, No. 22-10509 (11th Cir. Aug. 28, 2023) (available here).  Judge Newman authored the lengthy opinion for the Court, which affirms the conviction and above-guideline sentence for a defendant convicted of multiple changes stemming from a threat made against a federal magistrate judge.  But his lengthier concurring opinion is the real must-read for sentencing fans, and the start and end of that opinion highlights why:

Among the many issues that this case presents, one recurs with some frequency, and our treatment of it has always struck me as a little odd.  Our precedent has (albeit haphazardly) categorized a criminal defendant’s argument that the district court considered an impermissible factor in imposing a sentence as a challenge to the sentence’s “substantive” reasonableness, rather than an allegation of “procedural” error.  See Maj. Op. at 17.  That didn’t — and for reasons I’ll explain, still doesn’t — make much sense to me.  So I decided to look into it.

The deeper I dug, though, the more problems I uncovered. As it turns out, our sentencing precedent is pretty hopelessly conflicted — not only with respect to the categorization of particular sentencing-related challenges as “substantive” or “procedural,” but also with respect to the rules that govern the preservation of those challenges for appeal and, as a result, the standards by which we review alleged sentencing errors. In the pages that follow, I hope to (1) unmask the contradictions in our precedent and (2) briefly propose a better way of classifying and adjudicating sentencing-related challenges....

Clearly, I got more than I bargained for in this case — and, by extension, so did you.  What I found, though — and what I hope I’ve demonstrated — is that our sentencing precedent is a crazy quilt.  First, we’ve been freakishly inconsistent in our characterization of sentencing challenges as “substantive,” “procedural,” or (tellingly) both.  And in important respects, even where we have settled into something that might be called a pattern, we’ve chosen poorly.  Nowhere is that more true, in my view, than in our classification as substantive of what is to me the self-evidently procedural challenge to a district court’s consideration of an improper sentencing factor.  Second, we’ve been just as erratic in our pronouncements about what suffices to preserve sentencing-related challenges: One day, a boilerplate objection will suffice, the next day it won’t.

Enough is enough.  We should convene the full Court to restore some order. And when we do, we should take our cue from the Supreme Court’s own sentencing decisions.  To start, we should hold that all (as I’ve called them) “input”-related challenges are allegations of “procedural error” and should be assessed at the outset, before turning to evaluate, as a matter of “substantive reasonableness,” the district court’s “output” — i.e., the sentence itself.  And when determining whether a defendant has properly preserved his sentencing-related challenge — whether substantive or procedural — we should apply the usual rules and ask whether he specifically stated the grounds of his particular objection, in a manner that clearly put the district court on notice of its alleged error.

Interesting new resource sorting through complicated realities of "drug decriminalization"

I just came across this notable report titled "Decriminalizing Drug Possession In The US: Emerging Models & Recommendations For Policy Design And Implementation."   This document, which was produced by multiple public health scholars and was funded by Johns Hopkins Bloomberg School of Public Health, seeks to unpack and assess different approaches to drug decriminalization.  Here is its executive summary:

Amid calls to address substance use as a public health issue, jurisdictions nationwide are rethinking the paradigm of criminalization for possession of drugs other than cannabis.  While decriminalization of all drugs through official legislation (de jure) has only been enacted in Oregon, many localities are leveraging prosecutorial discretion to de facto decriminalize simple drug possession.  However, the different policy provisions and implementation experiences of de facto strategies have not yet been systematically captured.  Through key informant interviews (N=22), we describe and contrast emerging models of de facto drug decriminalization (specifically, the use of prosecutorial discretion to depenalize and/or decriminalize the possession of drugs other than cannabis) in 14 jurisdictions nationally. 

Systematic thematic analysis revealed four distinct implementation models of de facto drug decriminalization: expanded diversion, substance-specific declination, case-by-case declination, and unconditional declination. Challenges and opportunities for implementation of de facto decriminalization included data availability and quality, addressing past and non-drug charges, and stakeholder and public engagement.  Key recommendations include tailoring policies to the local context, seeking multisectoral collaboration early in implementation, establishing research and evaluation partnerships, and explicitly adopting measures to improve outcomes for racial/ethnic minority and low-income communities disproportionately affected by drug enforcement.  The use of these strategies can help reduce exposure to and disparities in the carceral system, even in the absence of formal legislation.

UPDATE: Intriguingly, less than an hour after putting up this post, I saw an intriguing new headline and story on Fox News, "Vivek Ramaswamy breaks with GOP on decriminalization of hard drugs: 'I'm in that direction'."

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.

Eighth Circuit panel affirms time-served sentence for enticement of a (fake) minor when guidelines recommended 46-57 months

A helpful reader made sure I did not miss this interesting Eighth Circuit panel ruling today in US v. Davis, No. 21-1283 (8th Cir. Dec. 20, 2021) (available here). Here are portions from the opinion's start and heart:

Fredrick M. Davis pled guilty to attempted coercion or enticement of a minor in violation of 18 U.S.C. § 2422(a).  The district court sentenced him to time served and 120 months’ supervised release, including one year of home confinement. The United States appeals the below-guidelines sentence....

In 2019 Davis contacted “Addyson” and “Sara” online.  They identified themselves as 14-year-old girls, but were actually personas of undercover law enforcement. Davis asked them to meet with him in a hotel in Dickinson, North Dakota.  He sent them sexually explicit messages and a graphic picture, and asked them to send him explicit pictures.

Davis was arrested at the North Dakota hotel where he intended to meet the girls. Under a pretrial agreement, Davis pled guilty to one charge—attempted coercion or enticement of a minor. His advisory guideline range was 46-57 months.  As required by the pretrial agreement, the parties jointly recommended a 60-month sentence and five years of supervised release.  The district court sentenced Davis to time served (two months) and 120 months of supervised release, including one year of home confinement, participation in sex offender treatment, and registration as a sex offender....

The government objected to the sentence for failing to afford adequate deterrent effect (the district court noted the objection).  But a district court has “wide latitude” to weigh factors, and it “may give some factors less weight than a [party] prefers or more weight to other factors, but that alone does not justify reversal.”  United States v. Brown, 992 F.3d 665, 673–74 (8th Cir. 2021).  In its written statement of reasons, the district court did acknowledge the need to afford adequate deterrence to criminal conduct. It chose to give other factors more weight than the deterrence factor, which is not a clear error of judgment.

The government also argues that the district court erred in weighing the Post Conviction Risk Assessment.  The record shows the district court considered the PCRA in conjunction with other factors.  In fact, at sentencing, the court asked the prosecutor: “do you agree with the assessment in the PSR that the risk level is very low for this offender to reoffend?”  He replied, “I do agree, yes, Your Honor.”  It is within the district court’s discretion to weigh such factors.

The government contends Davis’s commendable 20-year military career and his exemplary behavior on pretrial release are not “sufficiently compelling” to justify his below-guidelines sentence.  See Gall, 552 U.S. at 50.  But, this court “may not require ‘“extraordinary” circumstances to justify a sentence outside the Guidelines.’” Feemster, 572 F.3d at 462, quoting Gall, 552 U.S. at 47.  The district court’s rationale for granting the variance does not need to be extraordinary, only substantively reasonable.

18 U.S.C. § 3553(a)(1) instructs the sentencer to consider a defendant’s history and characteristics.  In his meritorious military career — half his adult life — he earned numerous awards and commendations, including the Combat Action Ribbon and recognitions for service in Iraq and Somalia.  Cf. U.S.S.G. § 5H1.11 (“Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.”).  He also did more than simply staying out of trouble while on pretrial release: he acknowledged his conduct, expressed remorse, sought ongoing treatment for his service-related PTSD, and got and maintained a job....

The ten years of supervised release, one year of home confinement, and other restrictions here are a substantial punishment.  “[T]he Guidelines are only one of the factors to consider when imposing a sentence, and § 3553(a)(3) directs the judge to consider sentences other than imprisonment.” Gall, 552 U.S. at 59.  “[C]ustodial sentences are qualitatively more severe than probationary sentences of equivalent terms,” but “[o]ffenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty.” Id. at 48.  In Gall itself, the Court reversed for not giving due deference to the district court’s “reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence” of probation. Id. at 59-60. 

Sixth Circuit reversal of denial of compassionate release shows how appellate review can sometimes reduce sentencing disparities

A few months ago in this post I flagged a lengthy CNN article discussing disparities in who was receiving compassionate release sentencing reductions in federal courts.  That CNN article featured the case of Horacio Estrada-Elias, an ill 90-year-old inmate serving a life sentence for marijuana trafficking crime, who had his request for compassionate release denied by Judge Danny Reeves in July 2021.  I was pleased to learn this week about notable updates to this story, reported in this new CNN piece headlined "A 90-year-old was serving life for marijuana despite serious illness. Now he's going home."   Here are some of the details:

In a dramatic reversal, a 90-year-old, seriously ill federal inmate serving life in prison for a nonviolent marijuana trafficking crime will go free after a judge granted him compassionate release on Tuesday -- overturning his previous order denying release.  Horacio Estrada-Elias, who was the subject of a CNN investigative story in September, is set to be freed this week after more than a dozen years behind bars....

Estrada-Elias suffers from congestive heart failure, atrial fibrillation and chronic kidney disease, and also contracted the coronavirus while in prison, according to court affidavits filed by doctors.  His prison doctor predicted in April 2020 that he had "less than 18 months" to live, and his warden recommended release, noting his spotless disciplinary record and writing last year that "he has been diagnosed with an incurable, progressive illness in which he will not recover."

Federal Judge Danny Reeves denied Estrada-Elias' motion for compassionate release in July, arguing that a life sentence is "the only sentence that would be appropriate."  But last month, an appeals court ordered Reeves to reconsider.  Two judges on a three-judge panel of the 6th Circuit Court of Appeals wrote that Reeves had "abused (his) discretion" by ignoring the fact that Estrada-Elias is unlikely to reoffend and "overly emphasizing" his nonviolent crimes. One judge dissented.

On Tuesday, the day after the formal appeal mandate was transmitted to his court, Reeves issued a new opinion approving compassionate release.  "The defendant's medical condition constitutes an extraordinary and compelling reason for release... when considered in conjunction with the defendant's advanced age," Reeves wrote, reducing Estrada-Elias' sentence to time served....

Reeves has an especially tough record on compassionate release, rejecting the vast majority of more than 100 release motions that came before him since the beginning of the coronavirus pandemic, according to a CNN analysis of court records.  In his earlier opinion, he had argued that the large volume of marijuana that Estrada-Elias trafficked had shown "a flagrant disrespect for the law that can only be reflected in an equally severe sentence."

His reversal "seems to be rooted in common sense and human dignity as opposed to legal formalities," said Alison Guernsey, a University of Iowa law professor who has studied compassionate release cases and reviewed Reeves' opinion.  She said it is uncommon for inmates who are denied compassionate release to win on appeal.

Estrada-Elias was sentenced to life in April 2008 after pleading guilty to a conspiracy to traffic tens of thousands of pounds of marijuana into and around the United States. Reeves, who handled his case, was required to give him a life sentence because he had previous drug convictions.  But the mandatory minimum law that applied was taken off the books in 2018.  If Estrada-Elias hadn't been subject to the mandatory minimum, the guideline for his sentence range would have been about 12 to 16 years in prison, according to court documents.

Estrada-Elias' case is an example of the wide disparities across the country in compassionate release during the pandemic.  In 2020 and the first half of 2021, some federal courts granted more than 40 percent of compassionate release motions in their districts, while others granted less than 3 percent, according to data from the US Sentencing Commission -- even though judges in all of the districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases.

In Estrada-Elias' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions, the data shows. Guernsey, the law professor, said the vast disparity in grant rates between courts "really calls into question the equity of compassionate release." "It appears to depend not on the gravity of your medical condition or the type of extraordinary and compelling circumstances that will dictate whether you're released," she said, "but almost a fluke of geography."

As the title of this post is meant to highlight, I think appellate review can and should play a significant role in reducing extreme sentencing outcomes that seem like a "fluke of geography." Notably, Justice Breyer's opinion for the Supreme Court in the remedial section of Booker stated that appellate review for reasonableness "would tend to iron out sentencing differences," but harsh sentencing outcomes are almost never reversed as unreasonable.  The panel Sixth Circuit opinion in US v. Estrada-Elias, No. 21-5680 (6th Cir. Nov. 24, 2021) (available here), which is unpublished(!?!) and a split decision, is a real rarity that shows reasonableness review can function to improve equity.  The majority opinion in this case starts this way:

Horacio Raul Estrada-Elias, a ninety-year-old man suffering from a terminal illness, appeals the district court’s order denying his motion for compassionate release filed pursuant to 28 U.S.C. § 3582(c)(1)(A)(i).  Estrada-Elias has spent fifteen years in prison for conspiracy to distribute marijuana.  Because of his illness, Estrada-Elias is bedridden.  He has never been convicted of a violent crime and has not received a single disciplinary infraction in prison.  The warden of the prison in which Estrada-Elias is incarcerated agrees that Estrada-Elias should be released from custody.  Despite Estrada-Elias’s age, illness, incapacity, and lack of any violent convictions, the district court denied his compassionate-release motion, finding that life in prison is “the only sentence that would be appropriate and that would protect the public” from this ninety-year-old terminally ill grandfather. R. 210 (Dist. Ct. Order at 14) (Page ID #2214) (quotation omitted).  We hold that the district court abused its discretion in denying Estrada-Elias’s compassionate-release motion.

Fourth Circuit panel finds probation sentence for abusive police officer procedurally and substantively unreasonable

I just saw a notable Fourth Circuit per curiam panel ruling which was handed down on Thanksgiving Eve.  The (unpublished) opinion in US v. George, No. 19-4841 (4th Cir. Nov. 24, 2021) (available here), gets started this way:

A jury convicted Robert Michael George, a former sergeant with the City of Hickory Police Department, of using objectively unreasonable force against a pretrial detainee, Chelsea Doolittle, depriving her of the constitutional right to due process of law, in violation of 18 U.S.C. § 242.  The presentence report calculated an advisory guidelines sentencing range for George’s crime of 70 to 87 months of imprisonment, but the district court sentenced him to a downward variance term of four years’ probation.  The Government appeals, arguing that George’s sentence is procedurally and substantively unreasonable. Because the district court grounded its reasoning for the chosen sentence in conclusions contrary to the evidence and the jury’s verdict, we cannot uphold the sentence as either procedurally or substantively reasonable.  Accordingly, we vacate the sentence and remand to a different judge for resentencing.

Here are some passages toward the end of a fairly lengthy opinion in George:

In its reasoning, the district court relied heavily on its view, counter to the weight of the evidence and George’s conviction, that the incident was “almost accidental.”  Through the prism of that impermissible belief, the district court determined that the Guidelines range, reflecting the appropriate sentence for an officer that willfully deprives someone of their constitutional rights, did not apply to George because he was not in that category of offender.  Other circuits have vacated sentences as substantively unreasonable in instances in which the trial court took an impermissible view of the facts, and that is the predominant reason for our holding as to substantive reasonableness today....

Further, the district court gave excessive weight to its favorable perceptions of George as a former police officer, and in turn the post-conviction consequences for George, dismissing other considerations set forth in the Guidelines.  However, “a defendant’s status as a law enforcement officer is more akin to an aggravating as opposed to a mitigating sentencing factor, as criminal conduct by a police officer constitutes an abuse of public position.”  United States v. Thames, 214 F.3d 608, 614 (5th Cir. 2000).  Rather than acknowledge an abuse of public trust, the court relied heavily on its positive perception of George as a former law enforcement officer in its discussion of the first and second § 3553(a) factors, failing to significantly weigh the seriousness of the crime.  As to the goals of the § 3553(a) factors to “promote respect for the law,” “provide just punishment,” “afford adequate deterrence”, and “protect the public,” the court spoke first and foremost of the “total life changes to Mr. George,” enumerating collateral consequences, including George’s loss of his job and pension, as sufficient deterrent to justify the variance. J.A. 512.  But such outcomes are common in § 242 cases and do not justify this significant variance to a probationary sentence.  Indeed, “it is not unusual for a public official who is convicted of using his governmental authority to violate a person’s rights to lose his or her job and to be barred from future work in that field.”  Koon, 518 U.S. at 110.  That reasoning does not provide the “significant justification” necessary for such a substantial departure.  Gall, 552 U.S. at 50.

Second Circuit panel reverses 48-month (way-below-guideline) sentence as substantively unreasonable for abused woman who provided material support to ISIS

Regular readers know I do not blog much these days about federal sentence reasonableness review because there are not that many blogworthy opinions.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and all but a few dozen involve miscalculation of the guideline range.  The government rarely appeals, though it has a much better success rate in the relatively few appeals it brings each year. 

In one particular (and relatively rare) categories of cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  This category is terrorism cases, and a Second Circuit panel added another example in this category with its ruling today in US v. Ceasar, No. 19-2881 (2d Cir. Aug. 18, 2021) (available here).  Federal sentencing fans will want to review this 53-page opinion in detail, but here is the opinion's introduction:

It is undisputed that beginning in or around January 2016, the defendant-appellee, Sinmyah Amera Ceasar, conspired to provide material support to the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B(a). Using social media and the encrypted messaging application Telegram, Ceasar expressed her support for ISIS, encouraged others to join ISIS abroad, and helped individuals in the United States contact ISIS members overseas. The overseas ISIS members then facilitated U.S.-based ISIS supporters' travel to ISIS-controlled territory. Ceasar herself intended to travel to ISIS territory by way of Sweden, where she planned to marry another ISIS supporter. In November 2016, Ceasar was arrested at New York's John F. Kennedy International Airport on her way to Sweden via Turkey. Following her arrest, Ceasar entered into a cooperation agreement with the government in which she pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization. In April 2018, the United States District Court for the Eastern District of New York granted her presentence release.

While on presentence release, Ceasar reoffended.  Despite the fact that the conditions of her release explicitly prohibited her from contacting individuals or organizations affiliated with foreign terrorist groups, Ceasar obtained a laptop computer, recreated pseudonymous social media accounts, and resumed contacting or attempting to contact several individuals known to be supporters of ISIS or other extremist groups.  The FBI, investigating Ceasar's conduct, found that she had intentionally deleted incriminating communications and had instructed others with whom she had been in contact to do the same.  The bond underlying her presentence release was revoked, and she was remanded pending sentencing. When the FBI interviewed Ceasar about her conduct while on presentence release, she made a significant number of false and misleading statements....

Mental health professionals who met with and treated Ceasar characterize her conduct as a misguided search for community stemming from a lifetime of sexual, physical, and emotional abuse and neglect.  Beginning in her childhood, Ceasar's father sexually abused her.  At age 13, she entered the foster care system and was abused or neglected in each home in which she was placed.  While Ceasar has never been legally married, she entered into three successive so-called "religious marriages" with older men, beginning when she was 16.  In each of those marriages, her husband physically or emotionally abused her.  Ceasar was diagnosed with complex post-traumatic stress disorder as a result of the abuse and trauma she endured.

Ceasar faced a Sentencing Guidelines range of 360 to 600 months' imprisonment.  Prior to sentencing, the district court ordered the government and Ceasar to provide expert witness testimony or other materials to assist in its sentencing determination.  The district court held a multiday sentencing hearing at which two government and three defense experts testified as to Ceasar's involvement with and support of ISIS and whether she would be likely to reoffend. 

The district court concluded that the advisory Guidelines range was "excessively harsh" and varied downward from it dramatically.  The court found that Ceasar was motivated by the abuse and trauma she suffered most of her life, and that she needed educational and mental health support in lieu of a long prison sentence.  On June 26, 2019, despite the Guidelines minimum of 360 months, the court imposed a 46-month sentence on Ceasar for the Material Support Offense, one month for the Obstruction Offense, and one month for committing an offense while on presentence release, pursuant to 18 U.S.C. § 3147, all to run consecutively for a total term of 48 months' imprisonment.  Because she had been in custody from the time of her arrest in November 2016 until she was granted presentence release in April 2018, and was then remanded to custody on July 19, 2018 (following her violation of the conditions of her presentence release), Ceasar served only 13 additional months from the time of sentencing (June 26, 2019) until she was released from prison on July 28, 2020. 

The government appealed on substantive reasonableness grounds, arguing that the district court abused its discretion by considering Ceasar's need for rehabilitation to the exclusion of other sentencing factors, and that this mitigating sentencing factor could not bear the weight assigned to it. The government further argues that Ceasar's sentence was shockingly low compared with other sentences imposed for similar crimes. 

We are not without sympathy for Ceasar, but we are constrained to agree with the government. We conclude that the district court placed more emphasis on Ceasar's need for rehabilitation than that sentencing factor could bear, and failed adequately to weigh section 3553(a) factors that balance the needs and circumstances of an individual defendant against, among other things, the goals of protecting the public, deterring criminal behavior, and engendering respect for the law. We further conclude that in comparison with sentences for similar terrorism crimes, Ceasar's sentence of 48 months' imprisonment was shockingly low and unsupportable as a matter of law. We therefore vacate the judgment of the district court and remand for resentencing.

Prior posts on similar reasonableness ruling:

• Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case (from Nov 2020)
• Split Second Circuit panel finds 17-year (way-below-guideline) prison sentence in terrorism case substantively unreasonable (from Dec 2019)
• En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable (from March 2012)
• Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable (from Sept 2011)
• Second Circuit issues huge opinion (with sentencing stuff) in Lynne Stewart case (from Sept 2009)
• A terror-filled debate over substantive reasonableness (4th Circuit from June 2008)

Interesting split Fourth Circuit panel debate while upholding resentencing to 52 years for violent offenses by 15-year-old

A helpful reader made sure I did not miss the interesting discussion of sentencing practices and outcomes by a Fourth Circuit panel yesterday in US v. Friend, No. 20-4129 (4th Cir. June 28, 2021) (available here). The first paragraph of the majority opinion sets the terms:

Appellant Philip Friend, who actively participated as a fifteen-year-old juvenile in a series of violent carjackings, challenges the fifty-two-year sentence imposed by the district court after a remand in this case.  Our remand instructed the district court to give a more thorough explanation for its sentence, with the prospect that a more tempered sentence might also result.  United States v. Friend, 755 F. App’x 234 (4th Cir. 2018).  These things have now both come to pass. The offenses in question occurred long ago, but their consequences have been long lasting. Because the district court acted within its discretion in imposing the present sentence, we affirm.

And here is a key passage from the majority's extended discussion and the concluding sentiments of the majority (cites removed):

But to sum it up, it is clearly permissible for a sentencing court to weigh the gravity of the offense or the impact a defendant’s crimes have had on a community and to vindicate that community’s interest in justice.  That after all, is the reason a defendant is before the court.  An exclusive focus on one factor impermissibly vitiates the requisite individualized consideration.  On the other hand, for appellate courts to micromanage sentencings and demand a district court assign equal weight to each § 3553(a) factor would also disregard a sentencing’s individualized inquiry and toss our deferential abuse-of-discretion review to the winds.  Ultimately, defendant’s disagreement with the district court’s weighing of the sentencing factors is not enough to find the sentence procedurally unreasonable....

To find this sentence unreasonable would displace the discretion that district judges possess in setting sentences. We are a court of appellate review, not a panel of appellate sentencers. District courts are granted exceptional discretion in sentencing for a reason.  They view the full criminal tableau first-hand, and they weigh the conflicting evidence and competing arguments. Their choices are not easy. When a court abuses its discretion, it is this court’s duty to correct the error. But when a district court is responsive to our mandates and reasonably exercises its sentencing power, we must respect its judgment.  So we do here.

Writing in dissent, Judge Floyd explains at length why he sees matters differently. His opinion starts this way:

At the age of fifteen, Philip Bernard Friend and various members of his family committed a series of extremely serious crimes.  Nobody disputes the severity of those offenses or the irreparable harm that Philip visited upon the lives of his victims and their families.  But this appeal tests the legality of the district court’s imposition of a fifty-two year sentence on a juvenile offender.  Today, the majority declares Philip’s half-century sentence procedurally and substantively reasonable.  Because I cannot agree with the majority’s conclusion on either score, I respectfully dissent.

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

Second Circuit panel affirms 55-year federalsentence for 15-year-old while lamenting the "unavailability of parole"

A helpful reader made sure I did not miss the interesting opinion by the Second Circtuit today in US v Portillo, No. 19-2158 (2d Cir. Nov. 24, 2020) (available here).  Here is how the opinion gets started:

This appeal, challenging as unreasonably severe a sentence of fifty-five years imposed on a defendant who was fifteen years old at the time of the offense, presents the legal issue of the lawfulness of the sentence and also serves as a classic illustration of the unfortunate consequences of the congressional decision to eliminate parole in the Sentencing Reform Act of 1984.  Defendant-Appellant Josue Portillo appeals from the July 12, 2019, judgment entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, then-District Judge).  Pursuant to a guilty plea, Portillo was convicted of participating in a pattern of racketeering activity evidenced by his role in the murder of four teenagers, in violation of 18 U.S.C. § 1962(c).

On appeal, Portillo makes two arguments.  First, he urges an extension of the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), that would require the District Court at sentencing in this case to consider the factors that Miller ruled must be considered in sentencing a juvenile to life imprisonment without the possibility of parole.  Second, he contends that his sentence was substantively “unreasonable,” the standard the Supreme Court instructed federal appellate courts to use on review of sentences, see United States v. Booker, 543 U.S. 220, 260-64 (2005), after the Court determined in 2005 that the federal Sentencing Guidelines, which had become effective in 1987, were no longer mandatory, see id. at 245, 259-60.

We conclude that the challenged sentence was lawfully imposed and therefore affirm the judgment.  We also add some observations on the relationship between this sentence and the unavailability of parole.

Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case

Regular readers know I do not blog much about federal sentence reasonableness review these days because there is usually not that much worth blogging about.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and these are usually involve miscalculation of the guideline range.  The government rarely appeals, though it does often have a better success rate in the few dozen appeals it brings each year. 

In one particular (and rare) categories of cases, namely terrorism cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  A helpful reader made sure I did not miss a new Seventh Circuit panel ruling handed down yesterday in this category: US v. Daoud, No. 19-2174 (7th Cir. Nov. 17, 2020) (available here).  Federal sentencing fans will want to review this 26-page opinion in detail, but the start and few passages from the body of the opinion provides the basics:

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam.  Fortunately, the bomb was fake, and the FBI arrested him on the spot.  Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb.  Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad.  Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing.  The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes.  The government appeals that sentence on the ground that it was substantively unreasonable.  We agree.  We vacate the sentence and remand for resentencing....

[W]hile the district court paid lip service to the seriousness of the offenses, it undercut its own statements by unreasonably downplaying Daoud’s role in each offense.  District courts have broad discretion as to how to weigh the § 3553(a) factors, but a district court’s sentence must reflect a reasonable view of the facts and a reasonable weighing of the § 3553(a) factors....  Here, the district court sterilized Daoud’s offense conduct in ways that cannot be reconciled with the objective facts of these violent offenses.  That unreasonable view of the facts prevented the district court from properly weighing the seriousness of the offenses when selecting its sentence....

In the district court’s telling, Daoud’s age, mental health, and general awkwardness and impressionability converged to render him uniquely susceptible to criminal influence. A sentencing court is well within its rights to consider a defendant’s mental limitations in mitigation.... But that factor only goes so far in this case.  Daoud committed the attempted bombing around his 19th birthday.  He was 19 when he solicited the FBI agent’s murder and 21 when he tried to stab a fellow inmate to death.  In other words, he was college aged at all relevant times.  He may have been immature, but, as the court recognized, he was old enough to know what he was doing.

Prior posts on similar reasonableness ruling:

• Split Second Circuit panel finds 17-year (way-below-guideline) prison sentence in terrorism case substantively unreasonable (from Dec 2019)
• En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable (from March 2012)
• Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable (from Sept 2011)
• Second Circuit issues huge opinion (with sentencing stuff) in Lynne Stewart case (from Sept 2009)
• A terror-filled debate over substantive reasonableness (4th Circuit from June 2008)

Another notable cert petition providing the new Justices (and older ones) another chance to look at reasonableness review of federal sentences

In this post a few years ago, I flagged an interesting cert petition while asking in my post title "Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?".  That post from April 2018 stemmed from my frustration with the US Supreme Court's seeming disinterest in examining how reasonableness review of federal sentences was functioning in the circuits.  For years and years, judges, scholars and commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review. 

As long-time readers likely know, I have long been particularly troubled by the so-called "presumption" of reasonableness permitted by Rita v. US, 551 U.S. 338 (2007), which has largely functioned as a problematic, un-rebuttable, safe-harbor for within-guideline sentences even in settings where the US Sentencing Commission's data and analysis demonstrate the obvious unreasonableness of certain guideline provisions.  But, over these oh-so-many-years of excessive federal sentences, my grumpiness over the failure of SCOTUS to take up reasonableness review anew has largely turned to resignation and acceptance of the fact that the Justices were just not that into the issue.

But perhaps hope should spring eternal, especially with Carissa Hessick flagging a new cert petition in this extended PrawfsBlawg post titled "Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster."  Here are excerpts (and links) from Carissa's post:

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States.  Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges....

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision — the decision to allow different legal standards for sentencing — troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits.... 

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.

Give the Supreme Court's long history of dodging many reasonableness review issues for now more than a dozen years, I am a bit fearful of the statement that the "chances that the Court will grant cert in Demma look pretty good."  But as the title of this post hints, I am hopeful that the newer members of the Court, Justices Gorsuch and Kavanaugh, who had to grapple with reasonableness review issues during long tenures as circuit judges, might now be eager to help further define the contours of reasonableness review. 

In the end, though, I suspect Justice Breyer is always a critical Justice on this front, as he both created reasonableness review with his remedial opinion in Booker and defined its essential form in Rita.  If Justice Breyer's voice and vote on these matters carry some extra weight, those of us eager to see the full Court take up reasonableness review might need to root for him to be eager to tackle these issues yet again. 

Some (of many, many) older related posts about reasonableness review:

• Another reminder that substantive reasonableness review has very little bite (from Feb 2019)
• As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review? (from Sept 2018)
• Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review? (from April 2018)
• Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough? (from July 2017)
• Has anyone formally calculated exactly how very few federal sentences are found unreasonable? (from March 2014)
• "More than a Formality: The Case for Meaningful Substantive Reasonableness Review" (from Jan 2014)
• "Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines" (from Feb 2013)
• Making a full-throated pitch for SCOTUS to again address reasonableness review (from May 2012)
• New scholarship complaining that reasonableness review is now quite unreasonable (from March 2010)

Fifth Circuit panel rejects claims of unconstitutional or unreasonable trial penalty at sentencing

A Fifth Circuit panel ruling today addresses, but ultimately rejects, a white-collar defendant's claim that "her sentence should be vacated because it was the result of an unconstitutional 'trial penalty' — a punishment for choosing to exercise her right to stand trial instead of pleading guilty." US v. Gozes-Wagner, No. 19-20157 (5th Cir. Sept. 28, 2020) (available here).  Because I helped with an amicus brief in the case, I will not comment extensively beyond recommending the opinion be read in full and highlighting these passages (with footnotes and cites removed):

Here, however, Gozes-Wagner and Voronov were ultimately charged with different crimes that carried different statutory maximum sentences.  Although they may have participated similarly in the conspiracy, our job is not to look at their two sentences and decide whether we think Voronov and Gozes-Wagner should have been punished more equally based on their conduct.  Instead, our duty is to determine whether the district court sentenced Gozes-Wagner more harshly than it otherwise would have because she went to trial instead of pleading guilty.  And on this record, we cannot say that it did...

For example, if the district court plainly stated that it was punishing the defendant more severely than it otherwise would because she went to trial, that would clearly amount to a constitutional violation even absent a comparison to others similarly situated to the defendant. But that did not happen here.

We recognize that most — if not all — cases will not be so cut-and-dried, and that a defendant’s constitutional rights may be violated even absent such an explicit statement.  In those cases, it is the comparison to others that necessarily sheds light on whether a constitutional violation occurred.  If the only meaningful difference between defendants was that one went to trial and the others did not, and the trial-standing defendant received a much more severe sentence than the pleading defendants, it could very well be the case that vacatur of the sentence will be required on trial penalty grounds.  But a defendant who cooperates with the Government is not similarly situated to one who refuses to do so.  Nor are defendants similarly situated when they are convicted under different statutes that carry different maximum sentences.  If the case were otherwise, we would be holding that the Constitution mandates that defendants convicted of committing different crimes be sentenced similarly if the conduct underling those convictions is similar.  We see no such mandate in the Constitution or in the Due Process caselaw addressing claims like Gozes-Wagner’s.

I cannot help noting that, though nothing "in the Constitution or in the Due Process caselaw" may speak to sentencing disparities, Congress expressly instructed sentencing judges, in 18 USC 3553(a)(6), to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  And the sentencing judge in this case knew that defendant Voronov (who "participated similarly in the conspiracy") faced a 5-year maximum sentence after pleading guilty, but he still gave Gozes-Wagner a sentence of 20 years.  That served as one basis for arguing that this sentence was unreasonable even if not unconstitutional, but the Fifth Circuit panel was ultimately unmoved on reasonableness arguments:

Nothing in the record suggests that the court went out of its way to punish Gozes-Wagner for going to trial. To the contrary, when presented with arguments that she was similarly situated to her co-defendants, the district court correctly pointed out that for various reasons, including the fact that her co-conspirators pleaded guilty to charges carrying lower maximum sentences, she was not similarly situated to them at sentencing. The record does not reflect a clear error of judgment in the district court’s balancing of the § 3553(a) factors.

Spotlighting notable series of substantive reasonableness reversals by the Sixth Circuit

A helpful reader sent me this thoughtful review of some notable recent reasonableness rulings by the Sixth Circuit:

The review of sentences for substantive reasonableness is often thought of as toothless, or as a “one-way ratchet” toward more severe sentences.  Of the countless appeals challenging sentences as overly harsh, only a couple of dozen have prevailed.  (Government appeals challenging sentences as too lenient seem to have found more success).  Appellate courts have been far more willing, on a defendant’s appeal, to say the sentencing court failed to follow proper procedures than to say the sentence was just too long.  In a trio of recent 2-1 decisions, however, the Sixth Circuit has done just that, reversing above-Guidelines sentences where there was an insufficient justification for the upward variance and putting some substance into substantive reasonableness review.

This line of cases started with United States v. Perez-Rodriguez, where the Sixth Circuit reversed an above-Guidelines sentence of 24 months in an illegal re-entry case where the Guidelines range was 8 to 14 months. 960 F.3d 748 (6th Cir. 2020).  Over a dissent, the Court held that the upward variance was substantively unreasonable because this was a “mine-run” case where the upward variance was unjustified and “created unwarranted sentencing disparities.” (Interestingly, in doing so, Judge Stranch drew on her opinion in United States v. Boucher, 937 F.3d 702 (6th Cir. 2019), where the court had held that a sentence of just 30 days for Rand Paul’s attacker, when the Guidelines range was 21 to 27 months, was substantively unreasonable because it was a “mine-run case.” Thus, at least in this instance, the ratchet went both ways.)

In the less than four months since Perez-Rodriguez, the Sixth Circuit has twice struck down above-Guidelines sentences as substantively unreasonable, each time over a vigorous dissent.  In United States v. Lee, the court held that a sentence of 60 months for possession of a stolen firearm, when the Guidelines range was 30 to 37 months’ imprisonment, was “far too long for his offense of conviction” and that the sentencing court “placed too much weight on Lee's criminal history, and not enough weight on the need to treat like defendants alike.”  __ F.3d __, 2020 WL 5269820 (6th Cir. Sept. 4, 2020). Then, in United States v. Brown, relying on Perez-Rodriguez and the unpublished 2-1 decision in United States v. Warren, 771 F. App’x 637 (6th Cir. 2019), the Sixth Circuit again held that an above-Guidelines sentence of 60 months for distributing heroin was substantively unreasonable because this was a “mine-run case” and the upward variance from the Guidelines range of 24 to 30 months would create “unwarranted sentencing disparities.” __ F. App’x __, 2020 WL 5569677 (6th Cir. Sept. 17, 2020).         

It’s hard to say whether this recent spate of substantive reasonableness reversals reflects an increasing recognition by (some) federal appellate judges of the realities of mass incarceration and overly harsh sentences, or simply a lucky streak by defendants.  Cutting in favor of the latter interpretation is that both Brown and Perez-Rodriguez are sentencing appeals from the same district judge — as was Warren — and that in each instance the sentencing judge upwardly varied even though the Government sought a Guidelines sentence.  These reversals may, then, simply reflect an attempt by appellate judges to rein in a particularly punitive district judge.  But I tend to think that this string of cases reflects an attempt to give some substance to substantive reasonableness review, and to use it as a tool to curb at least the most egregiously punitive sentences.  

Though the Sixth Circuit’s newfound willingness to find upward variances unreasonable in cases that fall within the heartland of the Guidelines is encouraging, it nonetheless is worth considering the limitations of this approach.  To begin with, it implicitly accepts that the Guidelines are the starting point for reasonableness review.  This is perhaps a natural outgrowth of the appellate presumption of reasonableness that the Sixth Circuit (and some but not all other circuits) afford to within-Guidelines sentences.  But it risks blunting the impact of Booker and Gall, which held that district courts must start by calculating the Guidelines range but then must proceed to give the sentence required by the factors enumerated in 18 U.S.C. § 3553(a), regardless of what the Guidelines may advise.  Accordingly, in certain districts such as the Southern and Eastern Districts of New York, only a quarter of sentences have been within-Guidelines in recent years.  In the view of many district judges, it seems, the proper sentence for a “mine-run case” is a below-Guidelines one. 

Indeed, anyone with a working knowledge of the Sentencing Guidelines — or any regular reader of this blog — is likely familiar with just how harsh the Guidelines can be.  Yet the approach of Perez-Rodriguez requires only that above-Guidelines sentences provide sufficient justification; it offers no path to challenging harsh but below- or within-Guidelines sentences.  A more robust appellate review of the reasonableness of above-Guidelines sentences is certainly welcome, but it is not by itself a panacea for the ills of mass incarceration. 

I am always grateful for (and eager to post) any and all caselaw reviews, so I thank this author and encourage others to help me track and report on lower court sentencing developments like this one.

Seventh Circuit panel finds way above-guideline (stat-max) sentence to be "not sufficiently" justified

As long-time readers know, I have long been troubled be the fact that the Booker-created reasonableness standard of review has been pretty toothless as a check on extreme federal sentences. But because so few sentences have been found unreasonable, any such decision is noteworthy, and so here I highlight a new Seventh Circuit panel decision handed down last week in US v. Jones, No. 19-1644 (7th Cir. June 19, 2020) (available here). The 12-page ruling is worth reading in full, and here is how the opinion starts and one notable substantive paragraph:

In 1998, a federal jury convicted Jerry Jones of two carjackings, an armed bank robbery, and using firearms during those crimes of violence.  The district court sentenced him to 840 months in prison. Twenty years later, the district court vacated its original sentence and ordered resentencing because Jones no longer qualified as a career offender under the federal Sentencing Guidelines.

At resentencing, Jones’s effective Guidelines range was 348–390 months.  The district court deviated from the Guidelines and once again sentenced Jones to 840 months in prison. That was an increase of 450 months, approximately 215% above the high end of Jones’s Guidelines range.  Jones now appeals his sentence.  Because the district court did not sufficiently justify the extent of its deviation from the Guidelines, we vacate its judgment and remand for resentencing....

Here, the district court acknowledged the need to avoid unwarranted sentence disparities, noting that Jones’s co-defendants—“with similar records [and] similar conduct” — had received sentences of 675 months and 728 months.  Notwithstanding the three defendants’ similar records and similar conduct, Jones received a sentence 165 months longer than one co-defendant and 112 months longer than the other.  The court did not explain why it singled Jones out for different treatment.  Quite the contrary, it synthesized the offenders and their offenses, observing they had “similar records [and] similar conduct.”  It was therefore incumbent on the court to specify what warranted Jones’s sentence disparity.  See 18 U.S.C. § 3553(a)(6).  Without such a justification, and because the court did not sentence Jones within the Guidelines range, we cannot assure ourselves that the court sufficiently considered the interest in consistency between similarly situated defendants.

No matter how long I follow the federal sentencing system, I will continue to be awed (in a bad way) by the scale of sentences that get handed out in seemingly run-of-the-mill cases. Here, after co-defendants receive sentences of over 55 years and 60 years, the judge decided that he should round up to an even 70 years for Mr. Jones (meaning that, even with time off for good behavior in prison, he could be not released until age 95).  I am pleased that this Seventh Circuit panel is now demanding a more meaningful justification for such a sentence, but I am displeased that such extreme sentences can be deemed justifiable in part because they are just not all that unusual in the federal system.

Split Sixth Circuit panel finds above-guideline illegal reentry sentence to be substantively unreasonable

Since Booker made the federal sentencing guidelines advisory and invented a reasonableness standard of review more than 15 years ago, there have been now well over one million federal sentences imposed.  And yet only a few dozen of these million+ sentences have been declared substantively unreasonable by a federal appellate court (even though, by my lights, a good many are truly unreasonable in one sense or another).  Because so few sentences have been found substantively unreasonable, every such decision is blogworthy, and so here I highlight a split Sixth Circuit panel decision handed down yesterday in US v. Perez-Rodriguez, No. 18-4203 (6th Cir. May 27, 2020) (available here). The 15-page ruling is worth reading in full, and here is how the majority opinion starts and its concluding substantive paragraph:

Eduardo Perez-Rodriguez, a citizen of Mexico, was sentenced to 24 months in prison for one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court applied an upward variance that more than doubles the middle of his 8- to 14-month Guidelines range. Perez-Rodriguez challenges the substantive reasonableness of the upward variance and argues that the district court considered facts outside the record in selecting his sentence. Because Perez-Rodriguez’s sentence was substantively unreasonable, we REVERSE the district court’s judgment and REMAND for resentencing....

Because Perez-Rodriguez’s case falls within the mine-run of cases of illegal reentry under the Guidelines, it is subject to closer review to assure that the justification given “is sufficiently compelling to support the degree of variance.” Gall, 552 U.S. at 50.  Based on its upward variance, the district court entered a sentence of 24 months, a 118% increase from the middle of the Guidelines range.  The court’s justification for the upward variance is rooted in Perez-Rodriguez’s “return to the United States after having been previously removed and after having been convicted of reentry after deportation.”  These facts, however, have been accounted for twice in the Guidelines range, both in the criminal history calculation and in the sentencing enhancement under § 2L1.2(b)(1)(A).  Our review of the extent of the upward variance imposed in light of the sentencing goals of § 3553(a) and our caselaw indicates that the court placed too much weight on the § 3553(a) factors concerning criminal history, deterrence, and protection of the public from further crimes of the defendant, and that the court selected the sentence without properly considering sentencing disparities.  Beginning with the correct standard — the Guidelines range, comparing the circumstances in this case to Commission data and our precedent, and applying the § 3553(a) factors show that Perez-Rodriguez’s upward variance was improper and created unwarranted sentencing disparities.  The upward variance imposed was substantively unreasonable.

Here is how the dissent by Judge Murphy gets started:

If I were the sentencing judge in this case, I likely would not have chosen the 24-month sentence imposed on Eduardo Perez-Rodriguez.  He pleaded guilty to illegally reentering this country in violation of 8 U.S.C. § 1326, and his guidelines range was only 8 to 14 months.  My general weighing of the sentencing factors in 18 U.S.C. § 3553(a) would likely place great emphasis on uniformity concerns.  See 18 U.S.C. § 3553(a)(6).  Heavy reliance on the guidelines guards against a system in which each defendant’s sentence turns “on the spin of the wheel that determined the judge to whom the case was assigned.”  Pepper v. United States, 562 U.S. 476, 517 (2011) (Alito, J., concurring in part, concurring in the judgment in part, and dissenting in part).  Yet United States v. Booker, 543 U.S. 220 (2005), gave district judges substantial freedom to adopt competing sentencing views. It allows district courts to depart from a defendant’s guidelines range based on other sentencing factors, including the defendant’s specific circumstances, 18 U.S.C. § 3553(a)(1), or more general penological goals like the need for adequate deterrence, id. § 3553(a)(2)(B).  And, as an appellate judge tasked with implementing Booker’s regime, I do not see a sufficient basis to overturn the district court’s upward variance in this case.  I thus respectfully disagree with my colleagues’ considered contrary opinion.

SCOTUS unanimously clarifies (in narrow way) that no special words are needed to preserve substantive reasonableness review

In this post when cert was granted in Holguin-Hernandez last June, I rejoiced because it has been nearly a decade since SCOTUS has said anything significant about reasonableness review.  But, recognizing that the case concerned only an appellate procedural issue, I was prepared for the ultimate ruling to be a narrow one.  And this morning in Holguin-Hernandez v. United States, No. 18–7739 (S. Ct. Feb. 26, 2020) (available here), the Justices through a unanimous opinion said about as little as possible while ruling for the defendant.  Here are some key excerpts from Justice Breyer's opinion for the Court, with my favorite and least favorite passages bolded (and lots of cites removed):

Congress has instructed sentencing courts to impose sentences that are “‘sufficient, but not greater than necessary, to comply with’” (among other things) certain basic objectives, including the need for “just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 581 U.S. ___, ___ (2017)... If the trial court follows proper procedures and gives adequate consideration to these and the other listed factors, then the question for an appellate court is simply, as here, whether the trial court’s chosen sentence was “reasonable” or whether the judge instead “abused his discretion in determining that the §3553(a) factors supported” the sentence imposed....

Judges, having in mind their “overarching duty” under §3553(a), would ordinarily understand that a defendant [advocating for a shorter sentence] was making the argument (to put it in statutory terms) that the shorter sentence would be “‘sufficient’” and a longer sentence “‘greater than necessary’” to achieve the purposes of sentencing. Nothing more is needed to preserve the claim that a longer sentence is unreasonable.

We do not agree with the Court of Appeals’ suggestion that defendants are required to refer to the “reasonableness” of a sentence to preserve such claims for appeal.  The rulemakers, in promulgating Rule 51, intended to dispense with the need for formal “exceptions” to a trial court’s rulings....  The question is simply whether the claimed error was “brought to the court’s attention.” Rule 52(b).  Here, it was.

The Court of Appeals properly noted that, to win on appeal, a defendant making such a claim must show that the trial court’s decision was not “reasonable.” Gall, 552 U.S., at 56.  But that fact is not relevant to the issue here.  Our decisions make plain that reasonableness is the label we have given to “the familiar abuse-of-discretion standard” that “applies to appellate review” of the trial court’s sentencing decision. Id., at 46 (emphasis added); ... The substantive standard that Congress has prescribed for trial courts is the “parsimony principle” enshrined in §3553(a).  Dean, 581 U.S., at ___ (slip op., at 4).  A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is “greater than necessary” has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence.  He need not also refer to the standard of review.

The Government and amicus raise other issues.  They ask us to decide what is sufficient to preserve a claim that a trial court used improper procedures in arriving at its chosen sentence.  And they ask us to decide when a party has properly preserved the right to make particular arguments supporting its claim that a sentence is unreasonably long.  We shall not consider these matters, however, for the Court of Appeals has not considered them.  We hold only that the defendant here properly preserved the claim that his 12-month sentence was unreasonably long by advocating for a shorter sentence and thereby arguing, in effect, that this shorter sentence would have proved “sufficient,” while a sentence of 12 months or longer would be “greater than necessary” to “comply with” the statutory purposes of punishment. 18 U.S.C. §3553(a).

I am pleased to see that this decision clarifies, yet again, that district judges under Booker are duty-bound to impose sentences that are "sufficient, but not greater than necessary, to comply with" statutory requirements.  A full 15 years after Booker, more than a few courts still talk about their obligation to impose a "reasonable" sentence even though this is an appellate standard of review.  Kudos to SCOTUS for stressing in this case that "the substantive standard that Congress has prescribed for trial courts is the 'parsimony principle' enshrined in §3553(a)."

But I am displeased to see that this decision refuses to address any other reasonableness review issues.  I respect the Court's decision to be circumspect in a case only raising a small issue, but there are thousands of sentence appeals each year that could benefit from additional clarity about how reasonableness review should proceed and how various issues are properly (or improperly) preserved.

Interestingly, and perhaps not surprisingly, Justice Alito (joined by Justice Gorsuch), feels compelled to write a short concurring opinion in order "to emphasize what we are not deciding."  His opinion asserts that "the plain-error rule serves many interests" and he suggests that there are many ways even after Holguin-Hernandez to apply this limited review standard to various sentencing claims on appeal.

Sixth Circuit panel declares one-day prison sentence (plus 10 years on supervised release) for large child porn possession substantively unreasonable

In a series of rulings in recent years, most notably United States v. Bistline, the Sixth Circuit has found sentences for child porn possession that lacked some significant prison time to be unreasonable.  Another such ruling was handed down this past on Friday in United States v. Demma, No. 18-4143 (6th Cir. Jan 24, 2020) (available here).  The 15-page panel ruling, authored by Judge Gilman, gets started this way: "This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not."  The full opinion is worth a read, and here are some key passages:

At the sentencing hearing, the district court focused almost entirely on Demma’s individual characteristics in deciding not to impose a term of incarceration. It relied, in particular, on the testimony of Dr. Peterson and Dr. Tennenbaum, both of whom opined that Demma’s use of child pornography was directly caused by his service in the military and his resulting PTSD.

To be sure, the district court did not err by recognizing Demma’s military service and PTSD diagnosis under § 3553(a)(1) as considerations relevant to his sentence.  See United States v. Reilly, 662 F.3d 754, 760 (6th Cir. 2011) (explaining that the defendant’s military service and lack of criminal history were “permissible considerations in the ‘variance’ determination under 18 U.S.C. § 3553(a)”).  But the court in the present case gave these considerations unreasonable weight in deciding to vary downwards to an essentially noncustodial sentence....

Moreover, in focusing on the role of Demma’s military service as purportedly causing his crimes, the district court cast Demma more as the victim than the perpetrator, stating that Demma’s crimes were “the result of his voluntary service to his community and his country” and “an unintended consequence” of his decision to serve in the Army.  This court has explained, however, that “[k]nowing possession of child pornography . . . is not a crime that happens to a defendant.”  Bistline I, 665 F.3d 758, 765 (6th Cir. 2012)....

Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining Demma’s sentence.  This is not to say that some other defendant possessing far fewer and less offensive images over a much shorter period of time might justify such an extreme downward variance, but that is not Demma’s case.  As this court noted in United States v. Elmore, 743 F.3d 1068 (6th Cir. 2014), a United States Sentencing Commission report states that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” Id. at 1076 (emphasis in original).  We find no basis in the record for Demma to not become part of this overwhelming statistic.  

Split Second Circuit panel finds 17-year (way-below-guideline) prison sentence in terrorism case substantively unreasonable

On Friday, the Second Circuit released a notable sentencing opinion in US v. Mumuni, No. 18‐1604 (2d Cir. Dec. 27, 2019) (available here).  The start of the panel's majority opinion provides a basic overview of the key issue in the appeal:

In this terrorism case, the Government appeals the substantive reasonableness of the sentence imposed on Defendant‐Appellee Fareed Mumuni (“Mumuni”).  He was convicted of, inter alia, conspiring to provide material support to the Islamic State of Iraq and al‐Sham (“ISIS”) and attempting to murder a federal agent in the name of ISIS.  His advisory sentence under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 85 years’ imprisonment. The sole question on appeal is whether the United States District Court for the Eastern District of New York (Margo K. Brodie, Judge) erred — or “abused its discretion” — by imposing a 17‐ year sentence, which constitutes an 80% downward variance from the advisory Guidelines range. We conclude that it did. Accordingly, we REMAND the cause for resentencing consistent with this opinion.

Just over 30 pages later, the majority provides this summary of its rulings:

(1) Mumuni’s sentence of 17 years’ imprisonment — which constitutes an 80% reduction from his recommended Guidelines range of 85 years — is substantively unreasonable in light of his exceptionally serious conduct involving a domestic terrorist attack against law enforcement in the name of ISIS.

(2) Where a district court has accepted a defendant’s guilty plea and his allocution to the elements of each charged offense, it cannot make findings of fact during sentencing that contradict or otherwise minimize the conduct described at the defendant’s plea hearing.

(3) Where a sentencing court opts to compare the relative culpability of co‐defendants, it cannot selectively rely on a factor when it serves a mitigating function in one case, but then subsequently ignore the same factor when it serves an aggravating function in the other case.

(4) A defendant’s legally‐required compliance with institutional regulations during his term of pre‐trial and pre‐ sentencing detention is not a substantially mitigating factor for purposes of sentencing.

(5) At Mumuni’s resentencing, the District Court, on the basis of the record that supported Mumuni’s guilty plea, shall accord substantially greater weight to the following 18 U.S.C. § 3553(a) factors: (a) the nature and circumstances of the offense; (b) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (c) the need for the sentence imposed to afford adequate deterrence to criminal conduct; and (d) the need to protect the public from further crimes of the defendant.

Judge Hall partially dissents, explaining that he thinks that the sentencing court needs to better explain its chosen sentence but making this point at the start of his opinion:

“We set aside a district courtʹs sentence as substantively unreasonable only if affirming it would damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013) (quotation marks and ellipsis omitted) (emphasis added). As an initial matter, I do not believe the seventeen‐year sentence is shockingly low and, therefore, I must dissent in part.

Reviewing two notable SCOTUS sentencing oral arguments finishing up the 2019 calendar

I flagged here a few days ago the SCOTUSblog argument previews before SCOTUS talked to counsel Tuesday in Holguin-Hernandez v. U.S., No. 18-7739 and Wednesday in McKinney v. Arizona, No. 18-1109.  The SCOTUSblog folks now have posted reviews of both the arguments, and here are links and their starts:

"Argument analysis: Court likely to rule that a defendant preserves appellate challenge to length of sentence merely by arguing for lower one, but precise wording of opinion will be important" by Rory Little:

Justice Byron White, who as a retired justice hired a law clerk named Neil Gorsuch, once wrote that “a prime function of this Court’s certiorari jurisdiction [is] to resolve” conflicts between the federal circuits.  Yesterday the court heard argument in Holguin-Hernandez v. United States to review a sentencing rule of the U.S. Court of Appeals for the 5th Circuit that is out of step with nine other circuits. The argument was unusually brief, just over 45 minutes, and the transcript reads as somewhat desultory.  It seems clear that the 5th Circuit will be reversed; indeed, one can wonder why the court even bothered with briefing and argument (but see below).  A need to fill the argument calendar?  Or perhaps Gorsuch, who asked no questions, is imbued with White’s circuit-split-correction spirit.  In any case, Justice Sonia Sotomayor asked the only really difficult question: “How do we write this opinion?” in order to offer the doctrinal “clarity” that the solicitor general has requested.

"Argument analysis: Justices debate impact of 'do-over' in capital case" by Amy Howe:

[On Wednesday] the Supreme Court heard oral argument in the case of James McKinney, who was sentenced to death for two murders in 1991.  After the U.S. Court of Appeals for the 9th Circuit threw out McKinney’s death sentence four years ago, the Arizona Supreme Court reinstated it.  The state court first rejected McKinney’s argument that a jury, rather than a judge, should resentence him. It then concluded that the mitigating evidence — that is, the evidence why McKinney should not receive the death penalty — was not “sufficiently substantial” to warrant a lesser sentence.  Although it wasn’t entirely clear, after an hour of debate ..., McKinney appeared to face an uphill battle in convincing the justices to overturn the Arizona Supreme Court’s most recent ruling.

With the holiday season upon us, the Supreme Court now does not have any other oral arguments scheduled for a full month. When the Court is back to hearing arguments in January 2020, it will have on its calendar a notable white-collar crime case in Kelly v. US (January 14) and yet another of the never-ending ACCA cases with Shular v. US (January 21).

Without discussion of 3553(a) factors, Eleventh Circuit needs just one sentence to declare 120 years (LWOP) imprisonment for child porn offenses reasonable

Earlier this month in this post, I flagged the Sixth Circuit panel ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), which concluded that a month-long sentence was unreasonably short after an intricate multi-page analysis of § 3553(a) factors.  The detailed circuit analysis especially faulted the district court's consideration of personal factors and the failure "to address the risk of sentence disparities."  In my post about the Boucher ruling, I noted that I favor reviewing courts conducting robust and searching forms of reasonableness review, but I  lamented the fact that circuit courts often seem much more interested in seriously questioning 30-day sentences when federal prosecutors appeal than in questioning 30-year sentences when federal defendants appeal.  

Interestingly, today I was alerted to a new Eleventh Circuit panel ruling in which it is not a 30-year sentences, but actually a 120-year sentence(!), that gets short shrift in the reasonableness review process.  Specifically, in US v. Kirby, No. 18-11253 (11th Cir. Sept. 17, 2019) (available here), the defendant was convicted after trial of three counts of producing child pornography and two counts of possessing child porn.   As described by the Eleventh Circuit panel, the defendant had a large (but not enormous) number of child porn images and he created (but did not distribute) many images of his "thirteen-year-old stepdaughter, either captured by hidden cameras in bathrooms or taken while Kirby was assisting his stepdaughter with stretches due to a sports injury [and also had one] pornographic image of a friend of [his] stepdaughter."  This is serious criminal behavior, but the district court responded (based it seems on a maxed-out guideline range of life) by maxing out all the counts to the statutory maximum and running the terms consecutively to arrive at sentence of 1440 months (120 years) of imprisonment.

In addition to making a technical challenge to how the guideline range of life was used by the district court, the defendant here contended that his sentence was substantively unreasonable.  After discussing the technical issues for a number of pages, here is the full substance of the Kirby panel's response to the reasonableness claim:

As an initial matter, Kirby’s argument is largely predicated on the erroneous conclusion that the district court imposed an above-guidelines sentence.  Regardless, the sentence was not unreasonable.  Before imposing the longest sentence that it could, the district court thoroughly discussed Kirby’s particularly heinous conduct and direct participation in the creation of child pornography, his breach of public trust as a police officer, and his total failure to take responsibility for his actions.

Without seeing the full factual record or the parties' briefs, I am disinclined to assert that the substantive judgment of reasonableness here was obviously wrong.  But where is the circuit concern in this case for the district court's consideration of personal factors and the failure to address the risk of sentence disparities?   And what does strike me as obviously wrong is the obvious fact that there is such a contrast in the amount of attention and deliberation given to the reasonableness claims in cases like Boucher and Kirby.  As long as reviewing courts (and so many others) are so much more likely to worry so much more about undue leniency than about undue severity, over-incarceration will still define our criminal justice systems.

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

The long legacy of drug wars: Eighth Circuit panel affirms LWOP sentence for drug dealer as reasonable

As long-time readers likely realize, I do not blog much these days about how federal circuit courts are conducting reasonableness review of sentences — largely because there are precious few cases in which circuit judges seriously question (or even seriously engage with) the sentencing judgments of district courts.  A helpful reader alerted me to a reasonableness review decision from the Eighth Circuit today which provides another example of how disinclined circuit courts are to question even the most extreme prison sentences.

US v. Duke, No. 18-1371 (8th Cir. July 310, 2019) (available here), involves the appeal after a resentencing of a man originally sentenced three decades ago.  Back then, arguably at the height of the modern drug war, "Ralph Duke was sentenced in 1990 to a term of life imprisonment plus forty years for committing several serious drug trafficking and firearms offenses."   Here is a description of Duke's crimes from this latest opinion:

Duke controlled all phases of a drug trafficking organization in the Minneapolis/St. Paul area from 1984 through June 1989.  He purchased cocaine primarily from a Colombian-affiliated source in Houston or from sources in Los Angeles.  The cocaine was transported to Minnesota in vehicles owned by Duke and driven by younger members of his drug trafficking organization.  Duke then distributed kilograms of cocaine to dealers for resale at the street level in smaller quantities.  Duke laundered the proceeds of drug sales by purchasing homes and cars in the names of others.  All told, Duke and his organization trafficked over fifty kilograms of cocaine before law enforcement interrupted their operations.  When Duke was apprehended in May 1989, officers found two loaded handguns in his bedroom and two assault shotguns and two AR-15 semi-automatic rifles in his residence.  The government charged at least twenty-five people as a result of the investigation of Duke’s organization. 

In other words, Duke was a big-time drug dealer in the 1980s, though it does not appear that he was actively involved in any violent activities or that his case involved other aggravating factors (though I suppose he might be called a drug kingpin).  But back in the 1990s, when the drug war was ranging and the federal sentencing guidelines were mandatory, perhaps it is not surprising that the federal district judge originally imposed an LWOP sentence on Duke.

But fast forward nearly 30 years, and Duke had the chance to benefit from a full resentencing in 2018 due to various legal developments.  Circa 2018, the federal sentencing guidelines were now advisory and, according to Duke, a lower sentence was justified in light of his "exceptional institutional conduct over the last 29 years, lack of criminal history, age, medical history, family ties, rehabilitation, remorse, and low risk of recidivism."  But the same federal district judge was unmoved and decided to give Duke an LWOP sentence yet again.  And the Eighth Circuit panel, in the ruling linked above, decided this LWOP sentence was reasonable.

When Booker was first decided and circuit courts were tasked with reasonableness review based on 18 U.S.C. § 3553(a), I had sincerely hoped appellate judges would come to embrace the task of ensuring sentences were "not greater than necessary to comply with the purposes set forth" by Congress.  But it became all too clear all too quickly that all too few circuit judges were eager to rigorously review long prison sentences, especially if those sentences fell within calculated guideline ranges.  Years later, even with mass incarceration and long sentences for drug offenses subject to considerable criticism, we still see federal judges finding no problem with giving a "death-in-prison" sentence based on drug dealing many decades ago.

Fourteen+ years after inventing reasonableness review in Booker, SCOTUS finally grants cert to address how it works procedurally

The Supreme Court's new order list this morning includes an exciting blast (from the past?) for federal sentencing fans in the form of a cert grant in Holguin-Hernandez v. US, No. 18-7739. The petition for certiorari in this case sets forth this simple question presented: "Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence."   

Notably, the government has this slightly different accounting of what's at issue in this case in its cert opposition brief: "Whether the court of appeals correctly reviewed for plain error petitioner’s claim that the district court imposed a substantively unreasonable term of imprisonment for petitioner’s violation of the terms of his supervised release, when petitioner failed to object in the district court to that term of imprisonment."  (The two-page Fifth Circuit panel ruling in this case is here; SCOTUSblog has the briefing and other documents in this case at this link.)

There is a circuit split on this issue of just how reasonableness review is to operate procedurally, but that split has been pretty well established and entrenched for the better part of a decade.  I suspect that the recent new arrivals to the Supreme Court, particularly Justice Kavanaugh but maybe also Justice Gorsuch, may explain why this long-ignored issue has now gotten taken up by the Justices.

Sadly, it seems the cert grant in this case concerns only a procedural issues surrounding the standards of review rather than the substantive particulars of how circuit courts should judge the reasonableness of a sentence.  But, given that it has been nearly a decade since SCOTUS has said anything significant about reasonableness review (I think of the 2011 Pepper case as the last big ruling in this space), even this Holguin-Hernandez glass of reasonableness water looks like an oasis in the desert of post-Booker SCOTUS jurisprudence.

Split Sixth Circuit panel finds statutory max sentence substantively unreasonable(!) for felon-in-possession with long criminal history

A helpful reader made sure I did not miss the interesting (unpublished!) ruling of a Sixth Circuit panel late last week in US v. Warren, No. 18-3141 (6th Cir. May 10, 2019) (available here). Here is how the majority opinion in Warren starts and ends:

At Davian Warren’s sentencing hearing, both Warren and the government sought a 51-to-63-month sentence — a term that was recommended in Warren’s presentence report and that fell within the applicable Sentencing Guidelines range.  Instead, the district court imposed the statutory maximum of 120 months’ imprisonment. Warren challenges his sentence as substantively unreasonable, arguing that the district court’s explanation for its upward variance does not justify doubling the Guidelines-recommended sentence and imposing the statutory maximum.  We agree, vacate Warren’s sentence, and remand for resentencing....

To be clear, we have declined to impose a “bright-line rule” that district courts cannot rely on factors accounted for by the Guidelines in imposing a variance, Tristan-Madrigal, 601 F.3d at 636 n.1, and we have affirmed the imposition of sentences that deviate from the Guidelines to some degree based upon a defendant’s criminal history, e.g., United States v. Villarreal, 609 F. App’x 847, 850 (6th Cir. 2015) (finding that serious criminal history “warranted a slight upward variance”); United States v. Lanning, 633 F.3d 469, 476 (6th Cir. 2011) (finding that serious criminal history warranted 42-month sentence, which was “well above [the defendant’s] advisory Guidelines range of 18 to 24 months, though considerably below the statutory maximum sentence of 60 months”).  But we have also made plain that “the greater the district court’s variance, the more compelling the evidence must be.” Stall, 581 F.3d at 281–82.  Even granting that some variance based on Warren’s criminal history was justified, we are left with the definite and firm conviction that, in this case, the trial court imposed a sentence that was “greater than necessary” in roughly doubling the recommended sentence and imposing the statutory maximum based on Warren’s criminal history without a fuller consideration of whether such a sentence avoids unwarranted sentencing disparities.  Vowell, 516 F.3d at 512.

On the record before us, the district court failed to provide a sufficiently compelling justification to impose the greatest possible upward variance under the statute.  See Gall, 552 U.S. at 50; Stall, 581 F.3d at 281–82.  We are “confident that on remand, the district court can fashion a sentence that reflects [the defendant’s] actual crime, that takes into account his dangerousness to the community, and that is sufficient, but not greater than necessary, to achieve the purposes of sentencing.” Allen, 488 F.3d at 1262.

Here is how the dissenting opinion authored by Judge Batchelder gets started:

I respectfully dissent.  The majority holds that, “Because the district court’s only discussion of whether the selected sentence avoids unwarranted sentencing disparities hinges on criminal history factors addressed by the Guidelines, the district court insufficiently distinguished Warren from other offenders in the same criminal history category,” and thus the district court’s reasoning was “insufficient to justify such a stark departure from the Guidelines.”  The majority also characterizes Warren’s criminal record as “the only reason” offered by the district court for the sentencing disparity. I must disagree.  The district court’s extensive discussion of its reasoning for an upward variance did not only “hinge on criminal history factors,” and in my view the district court did sufficiently explain how Warren was different “from other offenders in the same criminal category.”  The district court’s reasoning for imposing an above-Guidelines sentence for Warren was clear: the danger to the community posed by the unique combination of his refusal to be “deterred” by prior sentences and his “violent nature.”

I always find it heartening to see a circuit court take seriously its responsibility to review sentences for substantive reasonableness, and I wonder if this kind of rulings has become a bit more common now that there is more bipartisan concern for mass incarceration and the severity of federal sentences.  As long-time readers know, I followed reasonableness review patterns closely for a number of years after Booker, but ultimately got very discouraged by this jurisprudence due to the unwillingness of many circuits to ever find within-guideline sentences unreasonable (and their eagerness to find below-guideline sentences unreasonable).  The federal defenders have this notable list of reasonableness reversals through Nov 2017, and I think it would be a great empirical project to explore in great detail how reasonableness review has operated in the 15 years since the Booker ruling.

While excited by the Sixth Circuit panel here giving teeth to reasonableness review, I am also struck by the interesting fact that the defendant in this case was not subject to the extreme mandatory sentencing enhancement of the Armed Career Criminal Act given his extended criminal history.   Given the Sixth Circuit setting here, I am reminded of a case from five years ago, US v. Young, in which a unanimous panel upheld against a constitutional challenge the 15-year ACCA sentence for a defendant with a much more modest criminal history than Davian Warren.  Of course, Eighth Amendment claims are even harder to win (unless you are on death row) than reasonableness appeals.  But comparing these defendants and the appellate outcomes serves as another reminder of how much arbitrariness infests the federal sentencing system.

Another reminder that substantive reasonableness review has very little bite

A helpful reader made sure I saw a notable little federal sentencing ruling handed down by an Eighth Circuit panel in US v. Johnson, No. 17-2572 (8th Cir. Feb 22, 2019) (available here). The start of the main opinion sets out the basics for the reasonableness review discussion that follows:

Michael Johnson pleaded guilty in 2016 to possession with intent to distribute cocaine base.  Police arrested Johnson after a traffic stop and found him in possession of two baggies that contained rocks of crack cocaine.  A search of Johnson’s pocket discovered 22.9 grams of cocaine base and $895 in cash.

At sentencing, the district court calculated an advisory guideline range of 57 to 71 months’ imprisonment, but concluded that several factors justified an upward variance from the advisory range and imposed a sentence of 204 months.

The panel ultimately rejects the defendant's various claims that his sentence is unreasonable, but Judge Grasz write separately to lament the conclusion.  Here are excerpts from a short opinion worth reading in full:

While I believe the sentence here was excessive, I cannot conclude it is reversible error under the standard of review mandated by Supreme Court precedent.  This precedent makes the substantive reasonableness of a sentence nearly unassailable on appeal and renders the role of this court in that regard somewhat akin to a rubber stamp in all but the rarest cases....

So, what is left for appellate courts to review in terms of substantive reasonableness in sentencing when they cannot meaningfully police compliance with the Guidelines? Of course, sentences must still comply with the sentencing factors in 18 U.S.C. § 3553(a), but these “sentencing factors . . . are so broad that they impose few real restraints on sentencing judges.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  Thus, appellate review of substantive reasonableness is usually an exercise in futility.

There is no doubt that maximizing sentencing court discretion has its benefits.  See, e.g.,Kimbrough, 552 U.S. at 101–05 (allowing sentencing courts to depart based on a disagreement with the Guidelines’ unjustified disparity in treatment of powder and crack cocaine).  But the downside, in other contexts, is the resulting disparities and inconsistencies in sentencing. In the Sentencing Reform Act, Congress sought to reduce sentencing disparities by placing some limitations on the discretion of sentencing courts by means of the mandatory Guidelines.  However, “[i]t is unrealistic to think [the goal of reducing sentencing disparities] can be achieved over the long term if sentencing judges need only give lipservice to the Guidelines.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  In reality, the result of Gall and Kimbrough is that “district judges have regained most of the unconstrained discretion that Congress eliminated in 1984.” Feemster, 572 F.3d at 470 (Colloton, J., concurring).

Second Circuit, on third pass of child porn sentence, affirms 25-year prison term it calls "barbaric without being all that unusual"

Back in June I noted here a Second Circuit panel opinion in US v. Sawyer, No. 15-2276, in which a split Second Circuit reversed a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography because the district court, even at a second sentencing, insufficiently addressed statutory sentencing factors and failed "to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  The third time around, the district judge gave a different rationale for imposing a 25-year sentence, and this new split Second Circuit opinion now affirms in an opinion by Judge Jacobs that starts and ends this way:

Jesse Sawyer, having pled guilty to sexual exploitation of children and receipt of child pornography, was originally sentenced primarily to 30 years in prison and a lifetime of supervised release. We ruled that that sentence was shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community, and remanded to the district court for resentencing. The district court disagreed with our analysis but found that Sawyer’s exemplary record as an inmate justified a reduction to 25 years. Sawyer returned the matter to our docket, challenging his new sentence on both reasonableness and law‐of‐ the‐case grounds. By order of July 30, 2018, we affirmed Sawyer’s new sentence. We now explain that we did so because the district court effectively complied with our instruction to significantly reduce Sawyer’s sentence and because that sentence is now within the realm of reasonableness....

On this second appeal, Sawyer continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses.... The sentence is barbaric without being all that unusual.

The dissent by Judge Crawford includes these paragraphs at its start:

On resentencing, the district court declined to give any additional weight to either of the factors we identified. The majority accurately describes the district court’s rejection of the appeals court ruling. I intend no criticism of the trial judge.  She was candid about the reasons for her decision and recommended that the case be referred to another judge if we were to conclude that she erred in rejecting our first ruling.  That was an appropriate course of action, and we can ask no more of a judge who cannot in good conscience follow an appellate ruling.

What we cannot do — and where I part company with the majority — is to fail to enforce our original ruling.  Had the district court resentenced the defendant to the same 30‐year sentence, I have no doubt that the other panel members would have joined me in reversing and referring the case to another district judge for a second resentencing. It is not necessary to agree with an appellate ruling, but under any system of the rule of law it is necessary to follow it.

On resentencing in this case, the district court merely changed the subject.  After rejecting our decision, the court found another, previously unavailable reason to impose a reduced sentence. In the district court’s view, the defendant’s two years of model conduct within the prison system after his original sentencing justified a five‐year reduction of sentence.  This new factor led the court to impose a 25‐year sentence in place of the original 30 years.

The majority is prepared to accept the new sentence as reasonable in length and, in effect, call it a day.  I am not. The new sentence still fails to take into proper consideration the two § 3553(a) factors we singled out as the basis for reversal.  That the defendant has since demonstrated other reasons for a reduced sentence is an entirely separate development that fails to justify the district court’s refusal to follow the original mandate.  At this time, we still do not know how a district court which followed the mandate — by giving significant downward weight to the two § 3553(a) factors we identified — would sentence this defendant.  What all three members of this panel unanimously identified as significant substantive errors in the original sentencing decision remain uncorrected.  These errors continue to form the primary basis for the new sentence.

As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review?

The question in the title of this post is prompted in part by a couple of recent reasonableness rulings from the Sixth and Tenth Circuits that seemed noteworthy: in US v. Heard, No. 17-3062 (6th Cir. Sept. 11, 2018) (available here), a split Sixth Circuit panel upholds an above-guideline sentences over a spirited dissent in firearm cases; in US v. Staples, No. 17-2068 (10th Cir. Aug 27, 2018)  (available here), a unanimous Tenth Circuit panel reverses a below-guideline sentences in a fraud case.  These decisions reflect one feature of nearly all criminal appeals, namely that the government wins and the defendant loses.  But I was inspired to pose the question in the title of this post because these these decisions also reinforce my sense that, even 13 years into the post-Booker world, there is still very little jurisprudential substance to substantive reasonableness review.  These decisions represent data points, but not much more.

In this post some months ago, I provided a string cite of commentary  documenting the mess that reasonableness review has become in the circuits.   I will provide this list again in part because it support my belief that federal sentencing law and practice would benefit significantly from the Supreme Court's further engagement with reasonableness review.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

As long-time readers know, I used to regularly report on circuit reasonableness rulings in the years after Booker and the follow up cases of Rita, Gall and Kimbrough.  But now I barely notice these cases and rarely report on them, because there seems to me little significance in individual data points absent broader jurisprudential developments.  But maybe I am missing something, and thus the question here posed.

After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation

I am always pleased when politicians show a willingness to "evolve" on various issues, especially when they evolve toward a position that I embrace.  So I am quite pleased to see this lengthy new SCOTUSblog commentary by Senator Orrin Hatch under the headline "Judge Kavanaugh’s fight for stronger jury rights," which assails "basing prison sentences on conduct for which a defendant has been acquitted by a jury." I recommend the piece in full, and these particular passages justify both praise and follow-up questions:

Kavanaugh’s decisions have spanned the full spectrum of cases and controversies, including those that impinge on the liberty of some of the most overlooked individuals in America — criminal defendants.  One example, especially important to me, is his objection to basing prison sentences on conduct for which a defendant has been acquitted by a jury.  It’s a practice as outrageous as it sounds....

Every single circuit court has found it “reasonable” for a judge to enhance a sentence based on acquitted conduct. This follows the Supreme Court’s 1997 decision in United States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge because “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”  The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment....

In the current system, a judge can inflate a defendant’s sentence for a convicted crime to make up for the jury’s decision to acquit him of a separate charge.  Judges should not wield that kind of veto.

​I’m troubled by the consequences this has on the venerated role of juries in criminal justice.  Beyond these policy problems, which are in my purview as a legislator, are constitutional concerns, which have rankled Kavanaugh’s judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to question why “many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”...

I find it remarkable that Kavanaugh, despite his open campaign against the use of acquitted conduct at sentencing, has rebuffed the easy temptation of judicial activism. In the 2015 case United States v. Bell, he agreed that current precedent prevented the D.C. Circuit from reviewing the issue. The only appropriate action, he said, was for sentencing judges to think twice before choosing to consider acquitted conduct.  Only a few months ago, he again wrote separately in an acquitted-conduct case to reaffirm that precedent tied his hands, dissenting in part in United States v. Brown. But he didn’t abandon his drumbeat for change through the proper channels. He concluded, “If th[e] system seems unsound — and there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness — Congress and the Supreme Court may fix it, as may individual district judges in individual cases.”...

​The Supreme Court’s evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct.  But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law.  I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.”  The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.

​Sure, it would be much easier to let circuit judges reverse sentences that were based on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. I’m happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didn’t do.  It’s frustrating to me, and it’s frustrating to Kavanaugh. But he has prudently declined to step outside of his constitutional role. Time and time again, he has respected precedent and affirmed the repugnant power of sentencing judges to consider acquitted conduct.  However, Kavanaugh has wisely used his judicial platform to shed light on troubling law that shackles the rights of criminal defendants. His legal acumen, compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, and faithful justice.

I could not be more thrilled to hear a prominent experienced Senator calling acquitted conduct sentencing "outrageous" and asserting that "this practice must end."  I am also over the moon to hear that Senator Hatch is soon to introduce the "Acquitted Conduct Sentencing Reform Act," and I sincerely hope some folks have the sense to try to role it into the on-going federal prison and sentencing reform bills working their way through Congress. 

But I have to ask, as follow-up question number one for Senator Hatch, what took you so long?  The ugliness of acquitted conduct sentencing has been on full display since the 1997 Watts decision and your commentary here also references the 2014 dissent from certorari by Justice Antonin Scalia in an acquitted conduct case.  And Judge Kavanaugh has been calling for the barring of acquitted conduct guideline enhancements for nearly a decade.  Moreover, Senator Hatch, you served a chair of the Judiciary Committee at the time Watts was decided and also when Blakely was decided and Booker was before SCOTUS.  For those of use who have long railed against acquitted conduct sentencing, it sure would have been nice to have an ally like you, Senator Hatch, much sooner than a few months before your retirement after more than four decades in charge of helping to make the rules for the federal sentencing system.

That all said, my biggest follow-up question is for every other member of Congress: Are you willing to sign on ASAP to the "Acquitted Conduct Sentencing Reform Act" and commit to making its passage a fitting going-away present for Senator Hatch.  Because I agree with Senator Hatch that acquitted conduct sentencing is "outrageous" and is a practice that "must end," I hope all members of Congress join in on the Senator Hatch acquitted conduct (r)evolution.

A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
• Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely? 
• DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy
• Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
• Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing? 
• An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation." 

Previous related posts on the acquitted conduct stressed by Senator Hatch:

• Extended examination of ugliness of acquitted conduct enhancement
• Latest chapter in notable federal acquitted conduct case from DC
• "When Acquitted Doesn't Mean Acquitted"
• DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
• Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
• Rooting for acquitted conduct petition grant from SCOTUS long conference
• Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
• Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
• Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

Notable Sixth Circuit panel reverses as procedurally unreasonable big upward variance in cocaine sentence based on opioid overdoses

On Friday, the Sixth Circuit handed down a notable new sentencing opinion in US v. Fleming, No. 17-3954 (6th Cir. June 29, 2018) (available here). The start of the opinion reviews its essentials:

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment.  At his sentencing hearing, the district court doubled that.  It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl.  Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing.  Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed.  Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

Here is small part of the Sixth Circuit panel's analysis:

Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids.  Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

This ruling strikes me as notable or at least two reasons beyond its substantive particulars: (1) one of jurists on Prez Trump's SCOTUS short list, Judge Raymond Kethledge, was one of the judges on this Fleming panel, and (2) this Cleveland.com report highlights that the erroneous sentencing judge has a history of unreasonably long sentences:

An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday -- this time because of his reliance on a cleveland.com article....

Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.  Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give any good reasons for the higher sentences, the 6th Circuit ruled.

Split Second Circuit panel reverses lengthy child porn sentence for second time; dissent notes "sentence is barbaric without being all that unusual"

I do not tend to blog much any more about circuit opinions conducting reasonableness review because, now more than a decade since the Supreme Court ensured reasonableness review would be very deferential thanks to Rita, Gall and Kimbrough, few circuit sentencing opinions break any new ground.  But though a Second Circuit panel opinion yesterday, US v. Sawyer, No. 15-2276 (2d Cir. June 19, 2018) (available here), does not break new ground, it still struck me as blogworthy for both the majority opinion and the dissent.

The majority opinion in Sawyer is well summarized by the preamble to the opinion: 

Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J.) imposing a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography. This court previously vacated as substantively unreasonable a sentence of 360 months of imprisonment for the same offenses, identifying specific deficiencies in the district court’s analysis. The district court did not sufficiently address those deficiencies on remand and suggested that it would have difficulty putting aside its previously-expressed views.

The key factor that appears to have driven the original panel opinion and this second reversal was the "the district court’s failure to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  Tellingly, even at the second sentencing, the district court stressed that the guidelines called for 80 years in prison(!), suggesting no "failure to afford sufficient weight to the way [the defendant was] raised in determining [his] sentence, looking at the fact that [the original sentence] departed by 50 years from the [80 year] guideline range."  In this way in this case,  we can and should see how extreme guideline ranges can persistently distort a district court's sentencing decision-making even after a circuit court has concluded that the district court failed to comply with the requirements of the first time around 3553(a).

Beyond noticing the impact and import of broken guidelines even in a case in which everyone agrees they should not be followed, the Sawyer case struck me as blogworthy because of a (casual?) line in the dissenting opinion by Judge Jacobs. Here is the context for the line quoted in the title to this post, with my emphasis added:

In decrying the 25-year sentence, the majority opinion observes (fairly) that this case is not the most heinous or egregious on record.  At the same time, however, this is not a case such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed solely for looking at images created by others, and in which any harm to a child was inflicted at one or more removes. This defendant was hands-on.  He produced the pornography, and he used a 4-year-old and a 6-year-old to do it.  For these acts, a 25-year sentence is not a shocking departure from sentences routinely imposed in federal courts for comparable offenses — especially considering that the mandatory minimum is fifteen.  The sentence is barbaric without being all that unusual.

I appreciate the candor and yet remain stunned by Judge Jacobs stating simply that the defendant's sentence here is "barbaric" but yet not "all that unusual" and thus ought to be affirmed despite the obligation of circuit courts to review sentences for their reasonableness in light of the requirements of 3553(a).

Split SCOTUS outcomes for federal defendants: a plain error win in Rosales-Mireles and an explanation loss in Chavez-Meza

The Supreme Court has handed down this morning its last two sentencing cases, Rosales-Mireles v. United States and Chavez-Meza v. United States, and they are split decisions in every sense. 

In Rosales-Mireles v. United States, No. 16–9493 (S. Ct. June 18, 2018) (available here), Justice Sotomayor writes for the Court ruling in favor of the federal defendant, with Justice Thomas writing the chief dissent joined by Justice Alito.  In Chavez-Meza v. United States, No. 17–5639 (S. Ct. June 18, 2018) (available here), Justice Breyer writes for the Court ruling in favor of the federal government, with Justice Kennedy writing the chief dissent joined by Justices Kagan and Sotomayor.

Here is the Court's opening paragraph in Rosales-Mireles:

Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal.  This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence.  The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.

Here is the Court's opening paragraph in Chavez-Meza:

This case concerns a criminal drug offender originally sentenced in accordance with the Federal Sentencing Guidelines.  Subsequently, the Sentencing Commission lowered the applicable Guidelines sentencing range; the offender asked for a sentence reduction in light of the lowered range; and the District Judge reduced his original sentence from 135 months’ imprisonment to 114 months’.  The offender, believing he should have obtained a yet greater reduction, argues that the District Judge did not adequately explain why he imposed a sentence of 114 months rather than a lower sentence.  The Court of Appeals held that the judge’s explanation was adequate.  And we agree with the Court of Appeals.

As regular readers should now come to expect, sentencing cases have a way of producing notable voting patters. Criminal defendants and defense attorneys should be intrigued and encouraged by that both Chief Justice Roberts and the new Justice Gorsuch signed on to the majority opinion in Rosales-Mireles. But defendants and defense attorneys surely will also be troubled that the Chief along with Justices Breyer and Ginsburg were all willing to embrace the "close enough for government work" approach in Chavez-Meza.

Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?

The question in the title of this post is prompted in part by my work, recently and in prior years, on amicus briefs in which I have noted to the US Supreme Court that many judges and many commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review.   

A little more that a decade ago, the jurisprudential troika of Rita, Gall and Kimbrough provided an initial SCOTUS accounting of reasonableness review.  But it is now pretty easy to provide a string cite of commentary noting the mess that reasonableness review has become in the circuits.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

My decision to gripe on this front today is also prompted by this pending cert petition in Ford-Bey v. US recently brought to my attention.  Here is the question presented to the Supreme Court in this petition:

In Rita v. United States, 551 U.S. 338 (2007), the Court held that an appellate court could presume that a procedurally reasonable within-Guidelines sentence is also substantively reasonable. But the Court stressed that the presumption was rebuttable, reflecting only that a sentence is more likely to be substantively reasonable where the district judge and the Sentencing Commission agree.

A decade later, the majority of Circuits have never found Rita’s presumption rebutted. In that time, fewer than ten defendants nationwide have succeeded in rebutting Rita’s presumption.  Here, the Fourth Circuit issued a routine per curiam affirmance, despite petitioner’s extraordinary post-sentencing rehabilitation — and despite the Commission’s 2012 decision to withdraw all guidance on post-sentencing rehabilitation.

Has Rita’s non-binding presumption of reasonableness become effectively binding?

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

"Why Did a Federal Judge Sentence a Terminally Ill Mother to 75 Years for Health Care Fraud?"

The question in the title of this post is the headline of this recent law.com article about a notable (and notably harsh) federal sentencing.  Here are some of the details, with some commentary to follow:

A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.

Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme.  Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November.  At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial... 

The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.  Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence.  She currently is receiving chemotherapy treatments and is in custody in a federal detention center.  “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM....

Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.  “Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all.  In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”

Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.

Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.  “I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Even so, historically, the case is highly unusual, breaking the previous record by 25 years.  Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences.  The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”

According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.

Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.

Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13....

Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including: “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence);..... Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”

Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing. “Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”

Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.

I have quoted so much of this press report because the more details it provides, the more perverse the entire federal sentencing system seems along with the perversity of this particularly extreme sentence. For starters, though we supposedly have a federal sentencing system designed to sentence a defendant based principally on the seriousness of her offense, this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant.

Trial penalty guideline calculations notwithstanding, now that the guidelines are advisory, a prosecutor and a judge would need to be able to justify such an extreme functional LWOP sentence based on all the 3553(a) statutory factors. No matter how seriously one regards health care fraud, I cannot fully understand how any of these factors (save the guideline range) can support this extreme sentence in this not-so-extreme case of fraud.  If reasonableness review has any substance whatsoever, and if the facts in this article are accurate, it seems to me that this sentence ought to be found substantive unreasonable.

Can a federal sentence really "be close to absurd" and yet also be affirmed as reasonable?

The peculiar and perhaps metaphysical question in the title of this post is prompted by a Second Circuit panel decision today in US v. Jones, No. 15‐1518 (2d Cir. Sept. 11, 2017) (available here). The Jones case get intricate thanks to the timing and uncertainties of criminal history litigation. The start of the panel opinion provides a flavor of the mess:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release.  The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first‐degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline — a second basis for finding a crime of violence — was not unconstitutional.  The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness. In light of Beckles, we find that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court.

Judge Calabresi (my former boss) authors a separate concurring opinion in which he explains the various factors and fortuities which he thinks requires an affirmance of a sentence that seems technically sound by infused with problems of timing and equity. I cannot briefly recount he are the curious particulars, but this sentence captures Judge Calabresi's obvious frustration:

What is more — and this may be the true source of my sense of absurdity — there appears to be no way in which we can ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure.

For what it is worth, I think reasonableness review can and should be a very flexible and robust means for circuit courts to require resentencing whenever it has a basis for being concerned, procedurally or substantively, with any aspects of the proceedings below in light of the sentencing commands of 3553(a). Consequently, I think the Second Circuit could have said simply that "happenstances that have worked against Jones" since the time of his initial sentencing cast new light on the 3553(a) factors and thus his sentence is procedurally unreasonable and he should be resentenced.

Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough?

The question in the title of this post was the one kicking around my head as I reviewed a DC Circuit sentencing opinion handed down last week in US v. Pyles, No. 14-3069 (DC Cir. July 7, 2017) (available here). A helpful reader made sure I did not miss this lengthy opinion (nearly 50 pages), in which the panel splits over the reasonableness of a (nearly-top-of-the-guideline-range) sentence of 132-months imprisonment for child pornography distribution.   In addition to finding generally reasonable the extended reasonableness discussion of both the majority and the dissent in Pyles, I was struck by how the discussion and debate over the nature and operation of reasonableness review has really not changed much at all in the 10 years since the Supreme Court gave us Rita, Gall, and Kimbrough.

I am not sure anyone should have expected many major jurisprudential developments in the circuit courts after Rita, Gall, and Kimbrough. But, on this summer Friday morning, I am struggling to really think of any major reasonableness review developments. Though there are some important specific rulings from specific circuits on specific issues (like the Dorvee ruling on child porn sentencings from the Second Circuit), I am not sure I could describe any defining characteristics  of reasonableness review circa 2017 that is distinct in any big way from the basic reasonableness review template set by Rita, Gall, and Kimbrough in 2007.

I would especially like to hear from federal practitioners about whether I might be missing something obvious or subtle when noting the seemingly staid nature of reasonableness review jurisprudence over the last decade.  What really strikes me in this context is the fact that debates over federal sentencing laws, polices and practices have been anything but staid over the last decade even as reasonableness jurisprudence has sailed forward ever so smoothly.

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

Seventh Circuit panel again finds below-guideline sentence for abusive police officer unreasonable

Especially because it can sometimes seem that post-Booker reasonableness review of sentences has little bite, it still seems blogworthy whenever a circuit court finds a federal sentence unreasonable.  The work of a Seventh Circuit panel yesterday in US v. Smith, No. 16-2035 (7th Cir. June 19, 2017) (available  here), struck me as doubly blogworthy because it represents the second time the same sentence has been reversed and because the defendant here is an abusive local police officer.  Here is how the opinion gets started:

A jury convicted Terry Joe Smith, a police officer, of violating 18 U.S.C. § 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil right to be free of such abuse.  The district court sentenced Smith to fourteen months’ imprisonment, less than half the low end of the applicable guidelines range. In the first appeal of the case, we affirmed Smith’s conviction but vacated the sentence and remanded for full resentencing, concluding that the court had failed to justify the below-guidelines sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016).  On remand, the court again sentenced Smith to fourteen months’ imprisonment and once more failed to adequately explain or justify the below-guidelines sentence. We again vacate and remand for a complete re-sentencing.

Here are the essential basics from the opinion of the defendant's crime and recommended guideline punishment:

Smith was a police officer employed by the Putnam County Sheriff’s Department.  In two separate incidents, Smith violently assaulted arrestees who were already under control and not actively resisting arrest. At trial, Smith’s fellow police officers testified against him, describing the unwarranted [and brutal] attacks....

Smith’s guidelines range was thirty-three to forty-one months’ imprisonment. Smith was in Criminal History Category I, based on one prior conviction for misdemeanor battery of a three-year-old child and the child’s mother, who was then Smith’s wife.

The lengthy Smith opinion follows with lots of notable and interesting discussion about how the sentencing court justified a sentence of 14 months and why the circuit panel believe this below-guideline sentence was unreasonable even at a second sentencing with additional evidence.  And, as sometimes happens in the post-Booker world, the circuit panel officially ruled the sentence procedurally unreasonable, but it seems pretty clear that the panel was troubled by what it perceived to be a substantively light sentence under these circumstances.

US Sentencing Commission releases first issue in new series "Case Law Quarterly"

Via email, I learned that the US Sentencing Commission has released this first installment of a new publication series going by the name "Case Law Quarterly." Here is how this first publication (which runs six detailed pages) describes itself:

CASE LAW QUARTERLY provides brief summaries of select appellate court decisions issued each quarter of the year that involve the guidelines and other aspects of federal sentencing.  The list of cases and the summaries are not intended to be comprehensive. Instead, this document summarizes only a few of the relevant cases, focusing on selected sentencing topics that may be of current interest.  The Commission’s legal staff publishes this document to assist in understanding and applying the sentencing guidelines.  The information in this document does not necessarily represent the official position of the Commission, and it should not be considered definitive or comprehensive.

Split Second Circuit panel declares within-guideline child porn possession sentence of 225 months "substantively unreasonable"

A dozen years after Booker, the reversal of any federal sentence as substantively unreasonable is still quite rare and notable. Today, a Second Circuit panel has issued such a rare and notable decision in US v. Jenkinss, No. 14-4295 (2d Cir. April 17, 2017) (available here). Here are excerpts from the start and heart of the majority opinion:

A jury found Joseph Vincent Jenkins guilty of one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1), based on the government’s proof at trial that Jenkins owned a collection of child pornography and brought it across the U.S.-Canada border on the way to a family vacation for his personal viewing.

The United States District Court for the Northern District of New York (Glenn T. Suddaby, Chief Judge) imposed concurrent sentences of 120 months for the possession count, the statutory maximum, and 225 months for the transportation count, just below the statutory maximum of 240 months. The court also imposed a term of 25 years of supervised release. Jenkins challenges his conviction and the procedural and substantive reasonableness of his sentence....

Here, § 2G2.2 yielded a sentence that derived substantially from “outdated” enhancements related to Jenkins’s collecting behavior.  Meanwhile, the government has not alleged that he was involved in the production or distribution of child pornography or that he was involved in any child pornography community.  In particular, the government did not claim he used peer-to-peer sharing software, distributed images, or participated in chat rooms devoted to child pornography.  Nor does the government allege that he contacted or attempted to contact a child or that he engaged in any “sexually dangerous behavior” separate from his crimes of conviction.  Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight assigned it” because the cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’s conduct and other offenders whose conduct was far worse.  Cavera, 550 F.3d at 191. It was substantively unreasonable for the district court to have applied the § 2G2.2 enhancements in a way that placed Jenkins at the top of the range with the very worst offenders where he did not belong.

The full majority opinion in Jenkins has lots of substantive sentencing review discussion that defies easy summary and that merits review by anyone deeply engaged in post-Booker sentencing and appeals.  In addition, Judge Kearse has a small dissenting opinion which highlights the defendant's aggressive disagreement with his prosecution and concludes this way:

Given this record in which Jenkins, inter alia, disputed any justification or authority for prosecuting him, and argued that instead the children who were victims of the child pornography should have been prosecuted, the district court's concern for the likelihood that, without a lengthy prison term, Jenkins would re-offend was not unreasonable, and I cannot conclude that the imposition of the prison term that was no higher than midway between the top and bottom of the Guidelines range "cannot be located within the range of permissible decisions."

Over Posnerian dissent, Seventh Circuit panel upholds two-year prison term for elderly, ill fraudster

A Seventh Circuit panel recently issued an interesting set of opinions discussing federal prison care in the course of rejecting a sentencing appeal in US v. Rothbard,  No. 16-3996 (7th Cir. March 17, 2017) (available here). The start of the majority opinion by Chief Judge Wood provides the basics of the case and ruling:

Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana.  The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.

Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.

Judge Posner dissented from the majority ruling, citing an array of sources to support his contention and concern that BOP might not adequately attend to the defendant's medical needs.  His dissent concludes this way:

To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

"Booker Disparity and Data-Driven Sentencing"

The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade.  Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case.  The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity.  The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.

This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity.  Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable.  The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually.  This data provides the tool for defining categories of similar offenders.  Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.