Today in U.S. v. Gregory Bell, aka Boy-Boy, the D.C. Circuit denied appellants' consolidated petitions for rehearing en banc, which challenged the sentencing court's use of acquitted conduct to dramatically enhance appellants' sentences. Two separate and outstanding concurrences are worth a view. Judge Patricia Millett incisively critiques current sentencing jurisprudence which condones such horrific results. Judge Brett Kavanaugh agrees with Judge Millett and provides guidance for district courts who find by a preponderance of the evidence that acquitted conduct occurred, but do not want to enhance the sentence. What is the guidance? In a nutshell, utilize Booker to downwardly vary the sentence. Hopefully the Supreme Court will grant certiorari and end this appalling vestige of sentencing law.
Tag: Booker
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The case is United States v. Dibe. Claudio Dibe pled guilty, without a plea agreement, to wire fraud and received a below Guidelines sentence. He complained on appeal that his sentence would have been lower if the sentencing court had considered his counsel's ineffective assistance in failing to adequately explain the benefits of the government's initial plea offer. The Ninth Circuit held that ineffective assistance of counsel cannot be considered as a mitigating under 18 U.S.C. Section 3553(a). Distinguishing the U.S. Supreme Court's opinion in Pepper v. United States, 131 S.Ct. 1229 (2011), the Ninth Circuit noted that counsel's alleged ineffective assistance "has nothing to do with [Dibe's] own conduct."
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This week's Sentencing Guidelines opinion from the Third Circuit in United States v. Negroni underscores the importance of forcing district courts to create an adequate record at sentencing hearings. Paul Negroni and James Hall IV pled guilty to mail and wire fraud, among other crimes. They were knowing participants in a massive fraud scheme. Hall's original Guidelines range was 87-108 months, reduced to 46-57 months after the district court struck Paragraph 45 of the PSR, which had provided the factual support for a 6-level "250 or more victims" enhancement. The judge then downwardly varied to a 15 month sentence. Negroni's Guidelines range was 70-87 months. The judge downardly varied to a probated sentence with 9 months home detention. The Third Circuit vacated both sentences, because of the procedural unreasonablemess of the downward variances, and remanded for resentencing, I have commented previously on the disturbing trend in federal circuit courts of reversing downward variances based on alleged procedural irregularities, thereby gutting Gall and Kimbrough. The Fourth Circuit is particularly notorious for this.
But district judges must step up to the plate and do their part. In Negroni, the sentencing court struck Paragraph 45 of Hall's PSR, but clearly failed to articulate on the record its reason for doing so. The district court also failed to adequately articulate the substantial downward variance it granted to Negroni. Instead, like so many sentencing judges, it rather rotely recited the Section 3553 factors without intelligently discussing most of them or specifically applying them to the facts of Negroni's case and personal history.
It is really not that hard for a district judge to make an adequate procedural record. Defense counsel must force the sentencing court to discuss each Section 3553 factor and apply it in some fashion to a defendant's unique circumstances. How does counsel do this? By literally providing, in writing and in advance, a paint-by-numbers guidebook for the court. I do not know if that was attempted in Negroni. Perhaps it was. It is not always psychologically easy, in the midst of a hearing, to convince a judge who is ruling in your favor to touch all the bases. But don't kid yourself–the circuit courts are waiting, and itching, to send these babies back. Better to educate the district court beforehand, through your sentencing memorandum, about the procedural requirements for a downward variance.
Here is the opinion. Hat tip to Greg Poe for sending this decision our way.
(wisenberg)
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The U.S. Supreme Court will hear argument Monday in Pepper v. United States, out of the Eighth Circuit. The questions presented are: 1) whether a court of appeals can categorically prevent a sentencing court from considering a defendant's post-sentencing rehabilitation; and 2) whether, when a new judge is assigned to re-sentence the defendant after remand, the judge is obligated under law of the case doctrine to follow the original sentencing judge's findings that were left undisturbed on appeal.
Although Pepper was a drug prosecution, the case will have important consequences for white collar practitioners. On a broader level, the Eighth Circuit's opinion should be seen as part of a massive resistance to the Booker-Gall-Kimbrough line of cases by some of our federal appellate courts. Title 18, United States Code, Section 3553(a)(1) commands the sentencing court to consider "the history and characteristics of the defendant" in determining the sentence to be imposed and Section 3661 directs that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
As the U.S. Supreme Court established in Booker, and reiterated in Gall and Kimbrough, a sentencing Court has broad discretion to consider nearly every aspect of a particular case (and a particular defendant) in fashioning an appropriate sentence. “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Gall, 552 U.S. at 52 (citing Koon v. United States, 518 U.S. 81, 113 (1996)).
Apparently none of this impressed the Eighth Circuit. When the district court originally sentenced Jason Pepper to 24 months, based on a 75% downward departure for substantial assistance, the Eighth Circuit reversed in Pepper I. On remand the district court gave Pepper a 40% downward departure for substantial assistance, followed by a 59% downward variance, resulting once more in a 24 month sentence. One of the reasons the sentencing court cited for the variance was Pepper's post-sentencing rehabilitation. The Eighth Circuit reversed again, in Pepper II, upholding the 40% departure, but overturning the variance, based, among other things, on its flat rule prohibiting consideration of post-sentencing rehabilitation. The Supreme Court vacated the judgment and remanded the case to the Eighth Circuit for reconsideration in light of Gall. The Eighth Circuit reconsidered but reached the same result in Pepper III. Pepper was then resentenced by a different sentencing court that did not consider itself bound by the 40% downward departure for substantial assistance and also rejected any downward variance. The new sentence was 77 months, later reduced to 65 months after the Government filed a Rule 35(b) Motion. That sentence was affirmed in Pepper IV. Believe it or not, this is a truncated history.
The portion of the Eighth Circuit's ruling prohibiting consideration of post-sentencing rehabilitation is so bad that not even DOJ will defend it. The Eighth Circuit is certainly not alone in trying to gut Booker-Gall-Kimbrough. Many other circuits are piling on, usually under the guise of finding procedural errors by the district courts. More and more of these procedural errors look suspiciously substantive in nature. We are at a critical juncture.
Here are some of the briefs: Pepper Brief for Petitioner Pepper Brief for the United States Pepper Petitioner's Reply Brief Pepper NACDL Amicus Brief Pepper U.S. Reply Brief Pepper Amicus Brief in Support of Judgment Below
(wisenberg)
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