Tuesday, March 27, 2007

Compound Interest on the Nickle-and-Dimed

In its Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, the United States Sentencing Commission, discussing the career offender provisions of the Guidelines, noted that the career offender provision was a sentencing rule "that [has] a disproportionate impact on a particular offender group [namely, African-Americans] but that serve[s] no clear sentencing purpose . . . The recidivism rate for career offenders more closely resembles the rates for offenders in the lower criminal history categories in which they would be placed under the normal criminal history scoring rules in Chapter Four of the Guidelines Manual. The career offender guideline thus makes the criminal history category a less perfect measure of recidivism than it would be without the inclusion of offenders qualifying only because of prior drug offenses." At 134 (emphasis in original). "[C]riminologists and law enforcement officials testifying before the [Sentencing] Commission have noted that retail-level drug traffickers are readily replaced by new drug sellers so long as the demand for a drug remains high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else." Id.

Jimmy Gene Brumley was a nickle-and-dime street dealer who appears to have sold drugs mainly to support his own habit. He was caught by police in Memphis, Tennessee, with such a small amount of Dilaudid and Vicodin tablets that his offense level based on the quantity of drugs was an 8. [While federal court has, in most districts, been reserved for large quantity drug cases, the U.S. Attorney for the Western District of Tennessee has for years prosecuted what would anywhere else be small quantity state drug cases, using the hammer of the crack cocaine sentences and the career offender provisions to the benefit of the Bureau of Prisons and the stockholders of Correctional Corporation of America.] When the calculation of Jimmy Gene's criminal history was factored in, his Guidelines range was 12 - 18 months. Coupled with some intensive drug treatment, a high-end of the range sentence might have helped Jimmy Gene break the cycle of drug use and imprisonment at a total cost to taxpayers of about $37,000.

In addition to other things, however, Jimmy Gene was also a career offender under the Guidelines. This pushed his offense level from 8 to level 32 and pushed his criminal history to the highest category, VI, with a concomitant range of 151 - 188 months. At the sentencing hearing, Jimmy Gene's defense attorney pointed out that this was a twelve-fold increase for the conduct to which he had pleaded guilty, pointed out the role that his drug addiction had played in his life (and its impact on his criminal history) and urged the court to impose a lower sentence. Although acknowledging the impact of his drug usage and his "urgent need for drug counseling," the district court imposed a sentence of 144 months.

On appeal, Brumley argued that the district court had failed to analyze how the 144 months would further the objectives of § 3553(a) more than the lower sentence he proposed, and had failed to explain its rationale for the imposition of the 144 months. United States v. Brumley, No. 05-6747 (slip op. 5) (6th Cir. Jan. 9, 2007) (unpublished). Writing for Judges Moore and Clay, District Judge Bell notes the presumption accorded to sentences within the Guidelines range. Id. at 3. Brumley's sentence, of course, was actually just below the Guidelines range. "However, because it was below the guideline range, and because we are considering a challenge to the sentence by Brumley rather than by the government, his sentence is entitled to the presumption of reasonableness." One searches in vain for the legal support for this newly-crafted proposition. There is none. One searches, also in vain, for the dissent from Judge Moore, who originally refused in U.S. v. Webb to find a within-range sentence to be per se reasonable.

One continues this same Grail quest for some sign of objection from Judge Clay, who once wrote, "While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. ... Nothing in the text of the § 3553(a) elevates the now-advisory Guidelines sentence above other factors or permits the district court to 'presume' that the advisory sentence would be reasonable for an individual defendant." United States v. Cage, 458 F.3d 537 (6th Cir. 2006) (Clay, J., dissenting). In a footnote in Cage, Judge Clay noted, "I also question whether the rebuttable presumption language in Williams should be considered to be binding on this Court given the fact that the Webb Court had already stated that it declined to hold that a sentence within the Guidelines range is per se reasonable." Id. at n2.

What happened to the objections of these two reasoned jurists to the march back to mandatory Guidelines that they saw as contrary to the Supreme Court's holding in Booker? Have they changed their positions? Have they been overwhelmed by the press of sentencing appeals? That is not clear. The only thing that is clear is that they go along with Judge Bell's expansion of the presumption of reasonableness where, apparently, no one has gone before. But I digress ...

What of Jimmy Gene's arguments against the reasonableness of his sentence? Addressing the district court's alleged failure to explain the sentence it chose, Judge Bell writes, "A defendant's 'mere allegation that the sentence imposed is greater than necessary to achieve the goals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of reasonableness,' and the fact that the district court did not give a defendant the more lenient sentence he requested does not jusitfy setting his sentence aside." Citing U.S. v. Dexta, 2006 WL 3589790 (6th Cir. 2006). This, of course, does not answer the question of whether the district court complied with the procedural requirement that it explain its sentence. Judge Bell finds that because the district court addressed the § 3553(a) factors the sentence was both procedurally and substantively reasonable.

No one ever explains why a twelve-fold sentence for a drug addict, that will cost the taxpayers around $300,000, is "sufficient, but not greater than necessary" to accomplish the aims of sentencing as opposed to the lower sentence requested. Given the acknowledgement by the Sentencing Commission itself in its Fifteen Year report that the career offender provisions are a poor measure of recidivism, the blind faith adherence to the Guidelines (and worse, given the expansion of the presumption) shown by both the district court and the Court of Appeals in this case raises questions about the continued vitality of Booker.

Thursday, March 22, 2007

Makes You Think

In Booker the Supreme Court told us that the Guidelines were but one factor to be considered in deciding the sentence. The Court of Appeals has since confirmed that the Guidelines do not have any more weight than any other factor at sentencing. Review of a sentence in the Court of Appeals is for the reasonableness of the sentence. A Guidelines sentence is accorded a presumption of reasonableness. [But Webb at fn9?] A sentence must be procedurally and substantively reasonable.

Surely, the first measure of what is reasonable would be to examine the Guidelines in the context of the statutory range? Surely, too, the statutory range would set the limit of what could possibly be reasonable? Maybe in some world where everyone agreed about what the post-Booker structure of sentencing would be, but not here.

In United States v. Merrell, No. 05-6577 (6th Cir. 2007), the Guidelines range in this methamphetamine case was 360 months - life, but the statute carried a maximum of 20 years (240 months). Judge Katz (district judge, NDOhio), writing for Judges Clay and Rogers, finds the maximum sentence of 240 months to be substantively reasonable noting that the 240 months was "a figure one-third less than the low end of the Guidelines range." (Slip Op. at 12)

Some might think that a Guidelines range that exceeded the statutory maximum by 50% (and more) would itself be per se unreasonable. Some might think that such a Guidelines calculation would demonstrate the very Sixth Amendment problem in Blakely and Booker where uncharged conduct is used to increase a potential sentece above the statutory maximum. Some might take this to be evidence that the Guidelines are, in fact, deeply flawed and out of true with the very statutes to which they purport to pertain. Some might think that the statutory maximum would be reserved for the worst of the worst who had no mitigation, instead of a case involving meth manufacture by a meth addict where even the sentencing court noted that the defendant's criminal history was all related to his drug addiction. Some might think so, but not this court.

Friday, March 16, 2007

Departure Affirmed

Just as there is much backsliding toward a scheme that would effectively re-institute mandatory Guidelines, the Sixth Circuit's decision in United States v. Husein, No. 05-2548 (6th Cir. 3/2/07) (Gilman, Martin & Cole, JJ.), shows clearly how advisory guidelines can work post-Booker.

Fadya Husein pleaded guilty to her role in two sales of a total of 763 ecstasy pills. (She helped arrange the meetings and was physically present, but was neither the buyer nor seller.) Her Guideline sentencing range was found to be 37 - 46 months in prison. As mitigation at sentencing, she offered that her father was a stroke victim who required around-the-clock attention which she and her mother provided, and that she was the only one in the household with a driver's license, critical for those occasions when her father needed to be taken to the doctor or the hospital. (Interestingly, after reading this information in defendant's sentencing memorandum, the district judge sent the probation officer to the house to report on the extent of the father's problems, which he did.) After hearing proof about Ms. Husein's necessary part in the household, the district court granted a downward departure and sentenced her to 1 day of imprisonment and 3 years supervised release with 270 days of home confinement as a condition thereof.

In affirming the district court sentence, the Court of Appeals confirms certain principles that would seem to naturally flow from a finding that the Guidelines are advisory and are but one factor to be considered. The panel first notes that the circumstances of Ms. Husein's situation meet the definition in §5H1.6 for exceptional family circumstances. Beyond that, however, the court points out that "'[p]ost-Booker caselaw confirms Husein's understanding that family circumstances can form the basis of either a Guidelines-authorized departure or a non-Guidelines, § 3553(a)-based departure, also known as a variance." (Slip op. at 8) Adopting language from the Ninth Circuit, the court notes that "[i]n the broader appraisal[ ] available to district courts after Booker, courts can justify consideration of family responsibilities, an aspect of the defendant's history and characteristics, 18 U.S.C. § 3553(a)(1), for reasons extending beyond the Guidelines; district courts now have the discretion to weigh a multitude of mitigating and aggravating factors that existed at the time of mandatory Guidelines sentencing, but were deemed not ordinarily relevant, such as age, education and vocational skills, mental and emotional conditions, employment record, and family ties and responsibilities.'" (Slip op. at 9) (citing U.S. v. Menyweather, 431 F.3d 692 (9th Cir. 2005).

In finding the sentence to be substantively reasonable, the court noted that there was no mandatory minimum sentence applicable to Ms. Husein. The significance of this fact may resonate beyond the facts of this case: "Congress thus not only envisioned, but accepted, the possibility that some defendants found guilty of that subsection of the statute would receive no jail time at all. This is especially significant in the area of drug-related crimes, where mandatory minimum sentences ... are most common. ... Accordingly, if a mandatory minimum denies discretionary authority to a sentencing judge, then that authority is a fortiori restored where, as here, no mandatory minimum exists." (Slip op. at 11)

The Court also notes that, as to departures from the Guidelines (and not variances under § 3553), the pre-PROTECT Act standard of abuse-of-discretion review was the appropriate standard of review.

The sentence in this case was affirmed because of the work of defense counsel in presenting the district court with all of the facts that it needed to make this decision, and by the careful and thoughtful way that the district court approached this sentencing and explained its decisions. The result here is consistent with the Sixth Circuit's rulings in cases like United States v. (Lonnie) Davis, 458 F.3d 505 (6th Cir. 2006), in which the Court upheld a district court's within-Guidelines sentence based on the district court's careful review of the facts and its thorough explanation of the reasons for its sentence. Its recognition of the broader landscape in which judges can work post-Booker also appears to be more consistent with the intent of Booker than those decisions that would take us back to mandatory guidelines (de facto if not de jure).

Dicta About Dicta

It is axiomatic that one panel of a Court of Appeals cannot overrule a decision of another panel. See, Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985). This apparently, however, does not prevent attempting to limit to nothingness the holding of the other panel's decision.

In discussing what the Court of Appeals requires of district judges in order to conduct its own reasonableness review, the Sixth Circuit has held, "We emphasize the obligation of the district court in each case to communicate clearly its rationale for imposing the specific sentence. Where a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable." United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).

In United States v. (Dontay) Tyler, No. 05-2252 (6th Cir. 3/2/07) (unpublished) (Per Curiam: Merritt, Daughtrey & Griffin, JJ.), the defendant/appellant argued that the district court had failed to address the mitigation presented at the sentencing hearing, citing Richardson. The per curiam court states, "We conclude that the defendant has read too much into our opinion in Richardson. ... And, in dicta, we further suggested that '[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it.'" (Slip op. at 4)

While this "holding" would seem to limit the holding above in Richardson out of existence, it should be noted that the statement in Tyler appears to be dicta itself. It is certainly not critical for the ruling because the court finds that the district court complied with "both the holding and the dicta in Richardson." Such a holding is not, therefore, necessary and would seem to be dicta in and of itself. So if dicta is not persuasive authority, what is the impact of dicta about dicta?

Even as dicta, however, this appears to signal a retreat from that arm of the court that has been trying to give teeth to the changes wrought by Booker. (See, Paradigm Shift or Business as Usual?, below) Given the questions asked by the Court during the arguments in Rita and Claiborne, it is unclear how much of the post-Booker mess the Supreme Court will clean up. There may yet be much to be done in Vonner. More to come.

Thursday, March 01, 2007

How Much Is Enough?

How much does a district court have to say when imposing a sentence in order to protect that sentence on appellate review? "A district court’s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination. Absent from the district court’s statement of reasoning is any application or explanation of the various § 3553(a) factors..." United States v. Harden, 195 Fed.Appx. 382, 386 (6th Cir. 2006) (unpublished) "Although we have held that it is not necessary for a district court to engage in a ‘ritualistic incantation’ of the Section 3553(a) factors, we have also not held that the mere recitation of the magic words ‘Section 3553(a)’ is itself sufficient to immunize a district court’s sentencing decision from reversal. To so hold would send a false message to district courts that all they need to do at sentencing is list the Section 3553(a) factors, impose a Guideline sentencing, and conclude by stating that the sentence provides ‘just punishment and affords adequate deterrence.’ Magic words are not necessary, but nor are they alone sufficient." United States v. Vonner, 452 F.3d 560, 568 n4 (6th Cir. 2006), rehearing en banc granted, judgment vacated (Oct 12, 2006) (emphasis in original).

According to the opinion in United States v. Snowden, No. 05-6778 (6th Cir. 2/26/07), the district court’s explanation for the imposition of a 240-month sentence for 15.7 grams of crack cocaine and a gun in possession of a felon was, "[T]he guideline range affords the Court more than enough discretion in imposing an appropriate sentence [in this case]. Such a sentence will reward the defendant for the substantial assistance that he’s rendered the government; it will also serve to reflect the seriousness of the offense, provide just punishment for the offense, to afford adequate deterrence for this type of criminal conduct, and also protect the public from future crime that Mr. Snowden might be inclined to commit." The Court of Appeals found that "These considerations directly comply with those laid out in § 3553. ... Hence, the sentence is procedurally reasonable." (Slip Op. at 7-8)

But is it? Why is this perfunctory statement of enumeration of the factors sufficient? Because it is certainly true about the statement in Snowden that absent from it is any "application or explanation of" the factors. Harden. What does the statement in Snowden tell us about why the district court imposed a sentence of 20 calendar years on a young man who had never served more than 1 year before? About why 20 years is "sufficient, but not greater than necessary" to achieve the aims of sentencing in this case? While the district court certainly recites the factors, missing is any true application of the factors to the facts in Snowden, or any explanation of why the factors mandate a two-decade sentence.

What this case does tell us about is the ideological distinctions within the Sixth Circuit over the development of post-Booker reasonableness review. Clearly one part of the fight is over the extent to which a district court should have to "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). There are those judges of the Sixth Circuit who, as in Harden and Vonner, insist that the explanation be meaningful and sufficient for the appellate court to understand why the particular sentence was chosen. There are those judges who would find it sufficient for the district court to simply state that it had considered the factors without requiring any further explanation. While the questions accepted for review in United States v. Rita could resolve this issue, they by no means have to. It may very well be that this issue takes the fore in the Vonner en banc. In the meantime, the result in sentencing cases in the Sixth Circuit continues to depend on who’s on the panel.