Mondragon-Santiago Clarified: Just How Much Explanation of a Within-Guidelines Sentence Is Necessary?

United States v. Camero-Renobato, No. 11-20224 (5th Cir. Feb. 8, 2012; rev. Feb. 17, 2012) (per curiam) (Benavides, Stewart, Higginson)

On considering a challenge to the adequacy of the district court's explanation for a 71-month within-Guidelines sentence in an illegal reentry case:

We clarify to Camero that our decision in United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009), which perceived procedural unreasonableness in the inadequacy of sentencing reasons, involved not “giv[ing] any reasons for its sentence beyond a bare recitation of the Guideline’s calculation.” Id. at 363 (emphasis added). As we quoted in Mondragon-Santiago, the district court in that case offered only a single sentence about a Guidelines calculation, hence gave no elaboration of sentencing reasons. Id. at 364. By contrast, the district court in the instant case entertained lengthy comments from both parties and then elaborated its particularized explanation for a within-guidelines sentence. No more is required.

Unfortunately, it's not altogether clear what the district court said. Here's the account from the opinion:

Almost the entire sentencing hearing was devoted to Camero’s request for a below-guidelines sentence. After listening to Camero’s arguments, inviting and listening to the Government’s response, and permitting the defense to respond further, the district court noted that a within-guidelines sentence was appropriate in light of the § 3553(a) factors. Indeed, the district court’s statements regarding the 71-month sentence reflect that it considered the history and characteristics of Camero, the nature and circumstances of the offense of conviction, and the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of Camero. The district court’s failure to give additional reasons did not constitute procedural error.

Without some idea of what the district court actually said, it's hard to tell how much "beyond a bare recitation of the Guideline’s calculation" is sufficient, unless it's literally anything more than that.

Fast-Track Going Nationwide

So you're probably aware of the circuit split over whether a court in a district without a fast-track disposition program may vary downward from the advisory range in order to avoid unwarranted sentencing disparities with defendants sentenced in districts that do have such programs. Despite many opportunities, the Supreme Court has declined to take up the issue. But now we learn, via Professor Berman, that a resolution is at hand, and from an unlikely source, no less: the Department of Justice.

Behold a January 31, 2012, memo from Deputy Attorney General James Cole to all United States Attorneys: "Department Policy on Early Disposition or 'Fast-Track' Programs". It requires all districts that prosecute illegal reentry cases to establish a fast-track program by March 1, 2012, and sets forth baseline eligibility requirements for defendants and minimum requirements for the plea agreement.

As for eligibility, local U.S. Attorneys have discretion to limit or deny a defendant's participation in a fast-track program for various reasons, such as the number of times a defendant has been deported or convicted of illegal reentry and other immigration offenses, and whether a defendant has a prior "violent felony" conviction (which is defined paradoxically to include such non-violent offenses as drug trafficking and firearms offenses).

So what's a defendant got to do to get the deal? Agree to enter into a plea agreement within 30 days of being taken into custody on the charge. (Note that the memo appears only to require an agreement to agree; it does not require that the defendant actually plead guilty within 30 days, something that may not be possible due to circumstances beyond the defendant's control.) The agreement must include, at a minimum:

• that the defendant "agree[ ] to a factual basis that accurately reflects his or her offense conduct and stipulates to the facts related to the prior conviction and removal;"
• that the defendant agree not to file any of the pretrial motions listed in Fed. R. Crim. P. 12(b)(3) (motions challenging indictment defects, to suppress evidence, for discovery under Rule 16, etc.); and
• consistent with local law, policy, and practice, waivers of the rights to seek a variance from the advisory range and to appeal and to seek collateral review via 28 U.S.C. § 2255 (except on grounds of ineffective assistance of counsel).

Local U.S. Attorneys have discretion to impose additional procedural requirements; "specifically, the United States Attorney has discretion to require that the defendant agree to enter into a sentencing agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), and/or to waive a full pre-sentence investigation as conditions of participation."

What's a defendant get in exchange? A government motion at sentencing, pursuant to U.S.S.G. §5K3.1, for four levels off. EXCEPT for defendants in Criminal History Category VI "or with at least one felony conviction for a serious violent offense." Cat VI-ers appear to be categorically barred from receiving a fast-track deal. As for the SVO group (a term that isn't actually defined in the memo, although it presumably relates to the "violent offense" term in the eligibility requirements), they only get a motion for two levels, and only "with supervisory approval and on a case-by-case basis after considering the interest of public safety."

To repeat: this is just the floor. Eligibility in a given district or division may be available to a smaller class of defendants than authorized by the memo, and the plea agreement may require more stuff. And don't forget that the district court will have to be on board with this; fast-track departures under §5K3.1 aren't mandatory, and depending on the nature and terms of the plea agreement, the defendant may not be allowed to withdraw his plea if the court refuses to go along.

Now you're probably wondering why DOJ decided to do this. According to the memo, there's several reasons. For one thing, "these programs address a compelling, and otherwise potentially intractable, resource issue." (Translation: we've got bigger fish to fry.) For another, fast-track programs spread to some non-border districts after the 2003 Ashcroft Memo on the subject, even though they're not available in some border districts where the need for fast-track arose in the first place. "The existence of these programs in some, but not all, districts has generated a concern that defendants are being treated differently depending on where in the United States they are charged and sentenced." (Translation: this situation really is untenable and it's getting harder and harder for the SG to tell the Supreme Court with a straight face that it's not a problem worth addressing.) Finally, because of the circuit split, "USAOs in non-fast-track districts routinely face motions for variances based on fast-track programs in other districts. Courts that grant such variances are left to impose sentences that introduce additional sentencing disparities." (Translation: if it's gonna happen, we want it to happen within the Guidelines framework, not as a variance.)

En Banc Grant: Is Proximate Cause Required for Child Porn Restitution?

The Fifth Circuit will be revisiting en banc its decision in In re Amy Unknown, 636 F.3d 190 (2011), a mandamus action arising out of Doyle Paroline's prosecution for possession of child pornography. Two of the images Paroline possessed were of Amy Unknown; the images had been produced years before by an uncle who abused her as a young child.

After Paroline pleaded guilty, Amy Unknown sought restitution under 18 U.S.C. § 2259, which mandates restitution for losses incurred by victims of various offenses involving sexual exploitation of children. The district court denied restitution, concluding both that § 2259 requires that the defendant proximately cause the losses for which restitution is allowed, and that the Government failed to prove that Paroline's conduct was the proximate cause of Amy's losses.

Amy appealed the order denying restitution and also sought mandamus under the Crime Victims Rights Act (18 U.S.C. § 3771(d)(3)). A panel of the Fifth Circuit denied mandamus. A second panel was assigned both the direct appeal of the restitution order and Amy's petition for rehearing of the decision denying mandamus. That panel held, contrary to several other circuits, that § 2259 does not require a victim to show that the defendant proximately caused the losses for which restitution is allowed (except for a catch-all category of losses for which the statute specifically requires proximate cause). Also at issue was whether a crime victim has a right to a direct appeal in these circumstances; the second panel did not reach that issue because "the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA."

This AP story provides additional background about the case. (link via SL&P).

SORNA's Registration Requirements Do Not Apply to Pre-Act Sex Offenders Until AG Validly Specifies That They Do Apply

Reynolds v. United States, No. 10-6549 (U.S. Jan. 23, 2012)

One of the provisions of the Sex Offender Registration and Notification Act gives the Attorney General the authority to specify whether the Act's registration requirements apply to sex offenders whose convictions occurred prior to the effective date of the Act, which was July 27, 2006. The Attorney General promulgated an Interim Rule on February 28, 2007, specifiying that the registration requirements apply to sex offenders with pre-Act convictions. The Attorney General later promulgated additional regulations concerning SORNA.

At issue in Reynolds was "whether the Act requires pre-Act offenders to register before the Attorney General specifies that the Act's registration provisions apply to them." More specifically,

The present case focuses upon the applicability of the Act’s registration requirements to pre-Act offenders during the period between (1) July 27, 2006 (when the Act took effect) and (2) the moment when the Attorney General promulgated a valid rule specifying the registration requirements’ applicability, namely, February 28, 2007 (or a later date if the February 28 specification was invalid).

The Court, per Justice Breyer, held that the Act does not apply to offenders with pre-Act convictions until the Attorney General has validly so specified. I'd go through the reasoning, but it's just a routine matter of statutory interpretation.
 
Justice Scalia, joined by Justice Ginsburg, dissented. In his view, by its own terms the Act applied to offenders with pre-Act convictions as of the Act's effective date, regardless of any action by the Attorney General. But what of the Act's language that appears to put such authority in the AG's hands?

The Act’s statement that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements” to pre-Act sex offenders, §16913(d), is best understood as conferring on the Attorney General an authority to make exceptions to the otherwise applicable registration requirements.

Justice Scalia also added a dash of constitutional avoidance to the mix:

[I]t is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable, and “[i]t is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Construing the Act to give the Attorney General the power to reduce congressionally imposed requirements fits that bill, because such a power is little more than a formalized version of the time honored practice of prosecutorial discretion.

(internal citations omitted).
 
So what does this mean for those of us in the Fifth Circuit? Very little. The Fives already held in United States v. Johnson, 632 F.3d 912 (2011), that the Act "delegates to the Attorney General the decision of whether and how the SORNA registration requirements apply to offenders with pre-enactment convictions." The real fight is over whether the AG's Interim Rule of February 28, 2007, was valid. Defendants have argued that the Interim Rule violated the notice-and-comment provisions of the Administrative Procedures Act, and that giving the Attorney General the power to make the call violates the non-delegation doctrine. Johnson held that the Attorney General did violate the APA in promulgating the Interim Rule, but went on to hold that the error was harmless on the facts and circumstances of the case. And the Fifth Circuit rejected the non-delegation challenge in United States v. Whaley, 577 F.3d 254 (2009). Reynolds himself appears to have made those same arguments in the district court, but the Court did not address or resolve them (presumably because the Third Circuit held that the Act applied to pre-Act offenders as of the date of enactment, and so did not address the validity of the Interim Rule).

§2L1.2 Enhancement for Unlawfully Remaining In U.S. Following Certain Convictions Applies Only If a Removal Order Was Issued or Reinstated After Such a Conviction (Even If Not in Response to It)

United States v. Nevares-Bustamante, No. 10-31110 (5th Cir. Jan. 25, 2012) (Higginbotham, Stewart; Haynes, specially concurring)

Let's say an alien is deported a couple of times (both times following convictions of aggravated felonies), returns again to the United States, is convicted of rape in state court and sentenced to prison, is released from prison without the Border Patrol being notified and without any removal order having been issued or reinstated following his most recent reentry, and is arrested about a year later while still in the United States? Does the new conviction trigger an enhancment under guideline §2L1.2(b)(1)?

These are, of course, the facts of and question presented in Nevares-Bustamante. The question arises because §2L1.2(b)(1) provides for a range of enhancments not only if a defendant was removed after having been convicted of various offenses, but also if he "unlawfully remained in the United States" after such. That would seem to be the end of it, as Nevares did remain in the United States unlawfully after his release from state prison. But that's not the end of it. Application Note 1(A)(iii) explains that,

A defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction.

As it turns out, the First Circuit has already done the heavy lifting here:
Read more »

Fives Affirm Suppression of Un-Mirandized Statements Made In Response to Interrogation During Execution of Search Warrant at Suspect's Home

United States v. Cavazos, No. 11-50094 (5th Cir. Jan. 19, 2012) (Benavides, Prado, Alvarez, D.J.)

Following Cavazos's successful motion to suppress un-Mirandized statements he made in response to interrogation during the execution of a search warrant at his home, the Government took an interlocutory appeal. It argued that Miranda warnings weren't required because Cavazos was not in custody when he was interrogated, relying on the facts that the interrogation took place in Cavazos's home and that the interrogating agents told Cavazos it was a "non-custodial interview."  The Court disagreed:

Here, the totality of circumstances, drawn from the record as seen in the light most favorable to Cavazos, indicates Cavazos was in custody at the time he made his incriminating statements. Just after 5:30 a.m., Cavazos was awakened from his bed, identified and handcuffed, while more than a dozen officers entered and searched his home; he was separated from his family and interrogated by two federal agents for at least an hour; he was informed he was free to use the bathroom or get a snack, but followed and monitored when he sought to do so; and he was allowed to make a phone call, but only when holding the phone so that the agents could overhear the conversation. An interrogation under such circumstances, and those others discussed above, would lead a reasonable person to believe that he was not “at liberty to terminate the interrogation and leave,” notwithstanding the fact that the interrogation occurred in his home and he was informed the interrogation was “non-custodial.”

(internal cite snipped).

SCOTUS GVR's Breland In Light of SG's Position That Tapia Applies Equally to Revocation of Supervised Release

You'll recall that the Supreme Court held in Tapia v. United States that a court may not impose or lengthen a term of imprisonment in order to promote a defendant's rehabilitation. You'll also recall that the Fifth Circuit held in United States v. Breland that Tapia's holding does not apply when imposing a sentence on revocation of supervised release. That set up a circuit split with the First and Ninth Circuits.

Turns out the Fives are going to get another crack at it. Earlier this week the Supreme Court granted certiorari in Breland, vacated the Fifth Circuit's judgment, and remanded the case "for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed on December 19, 2011." The SG's position?

Although Tapia concerned a term of imprisonment imposed on initial sentencing rather than on revocation of supervised release, the United States now agrees with petitioner that Section 3582 (a), as construed in Tapia, precludes a court from lengthening the time a defendant must serve in prison based on the defendant's rehabilitative needs when supervised release is revoked.

(I can't find a free copy of the SG's brief anywhere on the intertubes, but those of you with Westlaw access can find it at 2011 WL 7051682.)