Wednesday, June 04, 2008

White En Banc today

United States v. White, dealing with the propriety of the use of acquitted conduct at sentencing is being argued en banc this afternoon. White was the two page opinion last October that stated that two of the three members of the panel had voted to reverse the sentence before United States v. Mendez was decided, upholding the use of acquitted conduct. The panel in White specifically requested that the defendant seek this en banc review.

Douglas Berman of Sentencing Law and Policy blog fame has a post on his role arguing for the amici in White.

Monday, June 02, 2008

OUT WITH A WHIMPER ... NOT WITH A BANG

The ruling in the panel decision in United States v. Vonner seemed pretty straight-forward by post-Booker standards – post-Booker, a district court needs to explain its ruling sufficiently that the appellate court can perform its reasonableness review, and must address any mitigation urged by the defense in favor of a downward variance. Despite Judge Siler’s dissent, it was with some surprise that the Court of Appeals granted the government’s petition for en banc review, particularly in light of the cert grants in Rita and Claiborne.

As has been noted on this blog before, from the very beginning there has been a continuing split within the Sixth Circuit about how the post-Booker process would work. See, Paradigm Shift or Business As Usual? A Brief History of Reasonableness Review in the Sixth Circuit , Feb. 13, 2007, post. This has also included how much or how little a district judge needed to say in imposing sentence in order to comply with Booker. See, e.g., United States v. Richardson, 437 F.3 550 (6th Cir. 4/17/06) (clarifying that in addition to addressing the 3553(a) factors, the district court must also, where a defendant raises a particular argument in seeking a sentence below the Guidelines, address the proffered mitigation and explain its basis for rejecting it.); compare to United States v. Jones, 445 F.3d 865 (6th Cir. 4/17/06) (noting that a sentence within the applicable Guidelines range does not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence; the dissent points out that circuit precedent required that the record reflect both that the district court considered the defendant’s argument and that the judge explained the basis for rejecting it.); United States v. Ray, 2006 U.S. App. LEXIS 18285 (6th Cir. 7/19/06) (unpublished) (reversing a 600 month sentence due to the district court’s failure to adequately explain the 25-year upward departure.); United States v. Harden, No. 05-4079 (6th Cir. 8/16/06) (reversing as procedurally unreasonable an 188-month sentence and noting that 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.)

The grant of en banc review in Vonner, then, seemed to signal an intention by the Court of Appeals to clear up the confusion in this area. Given that the panel’s decision, however, found that the district court’s sentencing explanation was inadequate, there would seem to be no reason to grant en banc review in this case unless the en banc court was inclined to agree with Judge Siler’s dissent and find that the district court’s statement was sufficient. But events would work to muddy the waters.

The panel decision in Vonner was released on June 29, 2006, and en banc review was granted on October 12, 2006. The decision in Rita was released on June 21, 2007, and Gall (the successor to Claiborne) and Kimbrough were argued on October 2, 2007, and the opinions released December 10, 2007. The Vonner en banc decision was released February 7, 2008.

Given the guidance that the Supreme Court gave in Rita, Gall and Kimbrough concerning the need for a district court’s explanation of its sentencing decision, the en banc court would be hard-pressed to say that the explanation in Vonner sufficed, given that the defense clearly presented several well-supported grounds in support of its request for a downward variance, none of which were directly addressed by the district court. If the court granted en banc review to affirm the district court, it could hardly do so now, so what to do? Since the Court of Appeals apparently doesn’t have the option of dismissing an en banc grant as "improvidently granted," the resolution was to blame the defense attorney.

Despite all that it could have said about post-Booker sentencing, United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), sidesteps that main issue and, instead, finds that the defendant’s failure to object to the district court’s minimal statement of sentencing reasons was a waiver that resulted in plain error review, which it found the defendant couldn’t meet. (Judge Sutton wrote the opinion which was joined by Chief Judge Boggs and Judges Siler, Batchelder, Gibbons, Rogers, Cook, McKeague, and Griffin. Judges Martin, Cole, Clay, Daughtrey, Moore and Gilman dissented.

As Judge Clay points out in his dissent, Vonner was sentenced only 26 days after the Supreme Court’s decision in Booker, and before the Sixth Circuit had explained the two components – procedural and substantive – of reasonableness review. While this timing is sufficient for the majority in its opinion to excuse the district court from knowing that it had to make a decent explanation for its sentencing decision, it is not enough for the majority to excuse defense counsel’s failure to specifically object on a ground not yet explained by the Court of Appeals. In Judge Clay’s view, such a ruling doesn’t meet standards that are "at least minimally fair."

It is not clear why the majority has such opposition to requiring a district court judge to explain why s/he is choosing a particular sentence and, if applicable, why s/he is rejecting a defendant’s specific request for a lower sentence. This does not appear to be too great a burden, and helps to facilitate review on appeal. Yet they persist in their opposition.

While the majority opinion offers nothing new for criminal defense practitioners in the Sixth Circuit, the different dissenting opinions require close reading by the defense bar. Judge Martin’s discussion of the Supreme Court’s basis for requiring an explanation by the sentencing judge, Judge Clay’s discussion of plain error review in the sentencing context and further discussion of the sentencing judge’s duty, and Judge Moore’s call to reject the presumption of reasonableness are all important reading for anyone doing sentencing hearings in federal court in this circuit. One thing is clear: while Vonner went out with a whimper, not a bang, this will not be the last word on the duty of sentencing judges to address the issues raised and clearly explain their decisions.