Thursday, April 12, 2007

Post-Sentencing Assault = +15 Years

Reginald Ragland was sentenced in his possession of over 5 grams of crack cocaine case to 300 months as a career offender. His record included two separate aggravated assaults, two separate kidnappings, and an attempted rape. His Guidelines sentencing range was 265 - 327 months. He appealed this sentence and, when Booker was decided during the pendency of his appeal, had his case remanded for re-sentencing.

While his case was on appeal, however, Ragland got into an argument with his appointed counsel and assaulted him, causing counsel to move to be relieved. This might have just passed as one of those things that appointed counsel have to go through, except that the U.S. Attorney urged the district court at the sentencing hearing to use this assault as the basis for an upward variance to the statutory maximum of 40 years. New appointed counsel for Ragland objected that the government had provided no notice of its intent to seek an upward variance. The district court overruled this objection and sentenced Ragland to 480 months, citing his assault on his attorney as evidence of the public’s need to be protected from him. Ragland appealed anew.

The Court of Appeals in United States v. Ragland, No. 05-6732 (6th Cir. 4/2/07) (unpublished), with Judge Norris writing for Judges Cole and Clay, dispenses with the notice issue in two pages and the 15-year upward variance in a page, affirming both the notice and the sentence.

The government argued that Ragland had notice "because he was well aware of his own conduct." (Slip op. 5) Amazingly, the Court finds this position to equal "reasonable notice," noting that Ragland "had some prior notice that the incident would be discussed at the hearing." (Id.) Knowing that something will "be discussed" and knowing that a party will use that "something" to ask for a sentence 60% greater than the sentence originally imposed are two different things. Indeed, Ragland’s prior aggravated assaults had been used to find him a career offender and increase his sentence into the 265 - 327 month range. Who could imagine that another assault would then be used to increase his sentence by another 180 months?

In affirming the 480-month sentence, the Court notes that the district court "provided a reasoned explanation for variance and concluded that Ragland was likely to commit violent crimes in the future and that the public needed protection from him." In United States v. (William) Davis, 458 F.3d 491 (6th Cir. 2006), in which the Court reversed as substantively unreasonable a downward variance of 30 months, the Court ruled that "when the district court independently chooses to deviate from the advisory guidelines range (whether above or below it), we apply a form of proportionality review: ‘the farther the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)’ must be." 458 at 496. An extraordinary variance must be based on extraordinary factors. Id.

Although the upward variance in Ragland is 6 times the number of months varied downward in Davis, there is no discussion in Ragland of proportionality. This is all the more remarkable since the only intervening factor between imposition of the mid-range sentence of 300 months originally imposed by the district court and the 480-month sentence on remand is the assault on his attorney. Without diminishing the extent of that conduct, the court's approach raises a number of questions that go unanswered. Why does this conduct deserve a sentence 60% greater than that originally imposed by the district court? Why is the statutory maximum "sufficient, but not greater than necessary" to achieve the goals of sentencing? Why was a mid-range sentence appropriate at the first sentencing, but an above-range, statutory maximum sentence appropriate at re-sentencing based on the assault? While the district court may be right that such behavior indicates the defendant is a violent person, why does that justify a 15 year increase in his sentence, especially when the district court already knew he was a violent person (based on his record) to begin with? Why is this also true when Ragland is being sentenced for a drug conviction, not a crime of violence?

Another disturbing aspect of this case is the willingness of the Court to use post-sentencing negative conduct to enhance a sentence when it has expressly forbidden the use of post-sentencing positive conduct to lessen a sentence. See, e.g., United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006) ("Post-sentencing event or conduct [such as rehabilitative efforts] simply are not relevant to th[e] inquiry [of whether the district court would have imposed a different sentence in the absence of mandatory guidelines]."); United States v. Adams, No. 06-1185, 2006 WL 3791317, at *5 (6th Cir. 12/26/06) (district court properly declined to consider post-sentencing rehabilitative efforts); United States v. Feazell, No. 06-1147 (6th Cir. 3/7/07) (same); United States v. Smith, No. 05-4644, 2006 WL 3717660 (6th Cir. 12/18/06) (reversing lower sentence by district court based on post-sentencing rehabilitative conduct).

This case continues a recent trend in this Circuit in which sentences get longer and explanations get shorter. Having "a reason" has become synonymous with being "reasonable." Blacks Law Dictionary (5th Ed.) defines "reasonable" as "fair, proper, just, moderate, suitable under the circumstances . . . not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable." So, is a 15-year increase in a sentence to the statutory maximum based on post-sentencing conduct that, under the Guidelines, would've provided for an incremental increase in criminal history "not immoderate or excessive, honest, equitable, fair, suitable, moderate or tolerable"? Maybe so, but the record in this case would not indicate it.

[UPDATE: The original of this post described the assault as a misdemeanor simple assault based on the description in the Court's opinion. AFPD Randy Alden e-mailed me to explain that the injuries suffered by AFPD Pat Brown in this case were more serious than described in the opinion. He also explained that Pat was called to testify about the assault and the extent of his injuries at the sentencing hearing. Based on that information I have changed this post to reflect that this was not a misdemeanor. I don't think it changes the legal issues and problems with this case, but I do not want anyone to think that we are belittling what happened to Pat. I know Pat Brown to be a strong advocate for his clients and was sorry to hear the extent of his injuries in this case. - SLC]

1 comment:

Sumter Camp said...
This comment has been removed by the author.