Sentencing Law and Policy

In Eighth Circuit, US Attorney says Miller is "substantive" and so should be applied retroactively

A helpful reader sent me this week a copy of a notable filing from a federal 2255 action in Johnson v. US, No. 12-3744, involving a federal defendant seeking resentencing based on the Supreme Court's Miller decision concerning the unconstitutionality of mandatory LWOP for juvenile offenders. The filing is notable because the feds concede that Miller can and should be given retroactive effect because, in the government's view, Miller announced a new rule that is "substantive."  Here is how the lengthy filing, which can be downloaded below, gets started:

The United States of America, by and through its attorneys, B. Todd Jones, United States Attorney for the District of Minnesota, and Jeffrey S. Paulsen, Assistant United States Attorney, submits this memorandum in response to petitioner Kamil Hakeem Johnson’s November 16, 2012, Motion Pursuant to Title 28 U.S.C. § 2244, Requesting Authorization To File a Second or Successive 28 U.S.C. § 2255 To The District Court (“Application”).

Johnson, who was a juvenile at the time of his 1996 offense, seeks authorization to file a second motion under Section 2255 to challenge the constitutionality of his mandatory life-without-parole sentence.  In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Although the Court had earlier held that a lifewithout- parole sentence for a non-homicide offense committed by a juvenile is always unconstitutional, see Graham v. Florida, 130 S. Ct. 2011 (2010), Miller did not bar such a sentence for a homicide committed before the age of 18.  132 S. Ct. at 2469. But under Miller, the sentencer for such a juvenile offense must have “discretion to impose a different punishment.” Id. at 2460.

Johnson’s mandatory life sentence is therefore constitutionally flawed.  This Court may certify a second or successive Section 2255 motion where, as relevant here, the application makes a prima facie showing that it relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2).  Because the United States agrees that Johnson’s reliance on Miller makes such a prima facie showing, his motion should be granted and the case certified for filing in the district court.

Download USA Miller 2255 Response

Notable Sixth Circuit reversal for procedural unreasonableness

The Sixth Circuit today has an interesting little reasonableness decision in US v. Garcia-Robles, No. 07-2209 (6th Cir. April 9, 2009) (available here). Here is how the decision starts, and a few key lines from the ruling:

In June 2007, Julio Cesar Garcia- Robles (“Garcia-Robles”) pleaded guilty to unlawful re-entry of an alien deported after an aggravated felony conviction. The district court and the parties agreed that Garcia- Robles’s sentencing guidelines range was 30 to 37 months of incarceration.  At sentencing, Garcia-Robles asked for a downward variance to a sentence of 24 months of incarceration.  The government asked that the court impose a sentence within the guidelines range.  The district court determined that, because of the severity of the offense and the fact that Garcia-Robles had previously returned to the United States after deportation, an upward variance was necessary.  The district court sentenced Garcia- Robles to 96 months of incarceration. Garcia-Robles appeals this sentence and argues that the district court failed to give proper notice of this upward variance and that the sentence imposed was procedurally and substantively unreasonable.

We VACATE Garcia-Robles’s sentence as procedurally unreasonable and REMAND for resentencing....

Given the unique circumstances of this case, we hold that the district court’s sentence was procedurally unreasonable because the district court failed to provide Garcia-Robles with an opportunity meaningfully to address the district court’s chosen sentence.  Based on the PSR and the government’s position that the guideline range was reasonable, Garcia-Robles entered the sentencing hearing believing that he should be arguing against the backdrop of a 30-to-37-month sentence.  Garcia-Robles was unaware that the district court was contemplating a significantly higher sentence and thus had no chance to argue against such a variance before the court announced its sentence.

Irizarry is interesting, but is it important or just iterant?

The three short opinions in Irizarry are all quite interesting (basics here), though I am not sure upon first read whether the ruling is very important or just a review of matters established by modern Booker progeny like Gall and Kimbrough.  Here is key language from the majority opinion by Justice Stevens that serves to emphasize the departure/variance distinction:

“Departure” is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines....

Although the Guidelines, as the “starting point and the initial benchmark,” continue to play a role in the sentencing determination, see Gall, 552 U. S., at ___ (slip op., at 11), there is no longer a limit comparable to the one at issue in Burns on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. §3553(a) (2000 ed. and Supp. V).

In turn, Justice Breyer in dissent fights against making a big deal about the departure/variance, though he does so primarily to continue his effort to promote the primacy of the guidelines.  And Justice Alito's silence in this case is an especially notable component of the division among Justice still fighting over the Booker's meaning and impact (including Justice Thomas, who write again to attack the Booker remedy).

So, dear readers, as I take time for a second look, do you think Iriazarry is important or just iterant?

A split decision (and a victory, of sorts) in SCOTUS Irizarry decision

Though the rest of the legal world will be focused on the dentainee decisions from the Supreme Court today, I have different case and a much shorter opinion to obsess about (while watching golf).  As detailed by the SCOTUSblog live blogging:

The Court has released the opinion in Irizarry v. United States (06-7517), on whether a district court must provide a criminal defendant notice of the contemplated grounds for a sentence above the range recommended by the sentencing guidelines.  The ruling below, which found for the government, is affirmed.

Justice Stevens wrote the opinion.  Justice  Breyer dissented, joined by Justices Kennedy, Souter, and Ginsburg.

The full decision (which runs only 18 total pages, including the syllabus) is now available here.

Because I helped with the brief that supported the outcome that was affirmed here, I cannot provide a completely objective assessment of the ruling.  But I can note right away the intriguing combination of Justices on each side of the 5-4 ruling, with Justice Stevens being the unusual swing vote in this case.  Fascinating stuff that confirms my view that the Supreme Court's work in criminal justice case, and especially in sentencing cases, remains joyfully unpredictable.

Will Irizarry finally explain the true nature of the post-Booker world?

I have mentioned before that I think the sleeper SCOTUS sentencing case this term in Irizarry, which technically addresses a seemingly little issue concerning notice for imposing sentences outside the guidelines. However, as revealed in the amicus brief supporting the Eleventh Circuit's ruling below (to which I contributed), the case presents an opportunity for the Justices to address more broadly the nature and status of departures and variances in the post-Booker world.  This amicus brief can be downloaded below, and here is the start of the summary of argument which highlights the deep conceptual issues that the Justices might have to address in Irizarry:

Federal Rule of Criminal Procedure 32 does not require a district court to provide notice prior to imposing a sentence outside the range recommended by the advisory Guidelines based on the factors set forth in 18 U.S.C. § 3553(a).  Neither provision of Rule 32 relied upon by Petitioner — Rule 32(h) or Rule 32(i)(1)(C) — supports a notice requirement in this context.

Petitioner’s reading of Rule 32(h) cannot be squared with the rule’s plain language, with speaks repeatedly and exclusively in terms of departures. Departures and variances are fundamentally different sentencing devices: departures depend on facts not adequately taken into account by the Sentencing Commission; variances depend on reasoned judgments based on the considerations set forth in Section 3553(a) by Congress.  In light of the fundamental distinction between a departure and a variance, the notice rule for departures has never been, and should not now be, extended to variances.

Download irizarry_amicus_brief.pdf

Another notable notice opinion before Irizarry

The Supreme Court will soon hear argument in Irizarry (basics here and here), a case which will force the Justice to explore "departures" and "variances" in the context of Rule 32(h)'s application after Booker.  As Irizarry buzz builds, the Sixth Circuit today provides another example of the case's importance through its work in US v. Alexander, No. 06-1867 (6th Cir. Feb. 26, 2008) (available here).  Here is how the (split) decision in Alexander starts:

Defendant-Appellant Donald Wayne Alexander pleaded guilty to an indictment charging him with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). The district court departed upward and sentenced Alexander to forty-two months’ imprisonment.  Because the district court failed to provide notice of the variance as required by Federal Rule of Criminal Procedure 32(h) we VACATE Alexander’s sentence and REMAND to the district court for re-sentencing.

Judge Kennedy provides this start to her dissent in Alexander: "While I agree with the majority that the district court’s failure to provide Defendant Alexander with reasonable notice of its intention to depart from the Guidelines range was plain error, I respectfully dissent with their decision to notice the error as Defendant has not demonstrated that this error affects substantial rights."

First Circuit weighs in on Rule 32(h) issue soon to be addressed by SCOTUS

As noted just earlier today, the Supreme Court will soon hear argument in Irizarry (basics here and here), a case which will force the Justice to explore "departures" and "variances" in the context of Rule 32(h)'s application after Booker.  Perhaps just to give us all some exciting pre-game reading, the First Circuit today issued an en banc opinion on this issue in US v. Vega-Santiago, No. 06-1558 (1st Cir. Feb. 21, 2008) (available here).  Here is a opening paragraph from the majority opinion:

The question before us is whether a district court, before sua sponte imposing a sentence outside the recommended guideline range, must automatically provide advance notice to the parties of its intent to do so and its contemplated reasoning. The circuit courts being divided,1 the Supreme Court is now likely to decide the issue, United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert. granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008) (No. 06-7517), but until it does, district judges in this circuit are entitled to guidance on an issue potentially present in every sentencing.  Our answer is that notice is sometimes, but not always, required.

Not only are there two lengthy dissents, but these paragraphs from Judge Torruella's dissent suggests that not all is well in the land of the First Circuit:

Although I am in substantial agreement with the views expressed by Judge Lipez in his excellent dissent, I am also deeply concerned by the serious policy, procedural, and substantive issues raised by the unwarranted haste which has characterized this en banc proceeding. Accordingly, I must state my views, even if in a preliminary and incomplete fashion.

The convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review.  See, e.g., Cerqueira v. American Airlines, No. 07- 1824 (1st Cir. XXXX) (Torruella, J. dissenting).  Time constraints do not allow for an exhaustive inventory of this asseveration, but the circumstances of this present appeal demonstrate one such example.

Exploring the relationship between departures and variances after Booker

Later this Term, the Supreme Court will hear argument in Irizarry (basics here and here), a case which may force the Justice to directly explore the status and relationship of "traditional departures" and "Booker variances" in an advisory guideline system.  Because I think these issues are very important (and yet still very under-theorized even as the Irizarry case is coming before SCOTUS), I am pleased to be able to spotlight a new version of an important note authored by a former student titled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World."   Here is the abstract from SSRN:

Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given. But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed.  This Note advocates that the Booker opinion not only created a system of advisory Guidelines, but also was an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a).  Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence.  Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range.  But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis, many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded. Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete. That said, one very positive development post-Booker has been the increasing usage of the vastly superior "variance" as opposed to traditional departures. The Supreme Court has recently given its blessing to the increased judicial discretion post-Booker, perhaps best typified by the variance concept.  This Note explores why departure "obsolescence" should be explicitly recognized in the wake of these post-Booker developments.