Downward Departure to Cat I for Overrepresented Criminal History Does Not Make Defendant Safety-Valve Eligible

United States v. Jasso, No. 10-40203 (5th Cir. Feb. 17, 2011) (Garza, Stewart, Haynes)

Let's say you're facing a mandatory minimum, but you're ineligible for safety valve relief because you've got more than one criminal history point.  What if you persuade the district court that your criminal history category is overrepresents the seriousness of your criminal history, and you get a departure to category I under guideline §4A1.3?  Will that make you safety-valve eligible?

No.  The safety valve criteria—including the no-more-than-one-point limitation—are found in both a guideline (U.S.S.G. §5C1.2(a)) and a statute (18 U.S.C. § 3553(f)).  In 2003, the guideline was amended "to require . . . that the defendant not have more than one criminal history point 'as determined under the sentencing guidelines before application of subsection of 4A1.3.”  And prior to that time, courts had interpreted the statute to have the same restriction.

What about Booker?  Didn't it render § 3553(f) advisory? "Although this is an issue of first impression in this circuit, we note that every court of appeals that has addressed this argument has rejected it. . . . We join our sister circuits in holding that Booker did not impair or render advisory § 3553(f)(1)’s requirement that a defendant 'not have more than 1 criminal history point' as a prerequisite to safety valve relief."

One last shot:

Jasso argues alternatively that the 2003 amendment to U.S.S.G. § 5C1.2(a)(1), which added the words “before application of subsection (b) of § 4A1.3,” constituted an improper delegation by Congress of its rule-making authority to the United States Sentencing Commission. This argument is frivolous. The constitutionality of the Guidelines, and the Commission’s authority to promulgate them, is beyond cavil. See Mistretta v. United States, 488 U.S. 361 (1989); accord Booker, 543 U.S. at 242 (“Our holding today does not call into question any aspect of our decision in Mistretta.”). We do not find that the 2003 amendment to § 5C1.2(a)(1) falls outside the Commission’s authority or violates the nondelegation doctrine.

Fives Reiterate That District Court May Not Impose Sentence Below Statutory Minimum, Absent Substantial Assistance Motion or Safety Valve

United States v. Montes, No. 08-10932 (5th Cir. Mar. 26, 2010) (Reavley, Davis, Stewart)

That's what the court held in United States v. Krumnow, and that's what it holds here:

In United States v. Krumnow, 476 F.3d 294, 295-98 (5th Cir. 2007), we held that district courts could impose a sentence of imprisonment below a statutory minimum only if: (1) the government so moves pursuant to 18 U.S.C. § 3553(e), asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the “safety valve” criteria set forth in 18 U.S.C. § 3553(f). Otherwise, post-Booker sentencing courts lack discretion to depart below relevant statutory minimums. Id. at 297.

Montes does not contend otherwise. Instead, he argues that United States v. James, 468 F.3d 245 (5th Cir. 2007) gave the district court the discretion to depart below the mandatory minimum sentence. In James, this court opined that “[t]here is . . . no statutory provision or jurisprudential holding that would prohibit a court from departing below the section 924(c)(1) minimum if the court felt that such a sentence was appropriate.” Id. at 248. This court’s holding in Krumnow, however, forecloses any interpretation of James’s language that would imbue district courts with discretion to depart below the mandatory minimum absent a substantial assistance motion under 18 U.S.C. § 3553(e) or application of the 18 U.S.C. § 3553(f) safety valve, both of which are not present in the instance case. In Krumnow, this court clarified its ruling in James and expressly held that the language upon which Montes now relies was “simply either subsumed in the analysis for why the § 924(c) sentence may be reduced if the Government requests it or is dictum. Restated, this statement [the one upon which Montes now relies] in James is not its holding.” Krumnow, 476 F.3d at 297-98 (emphasis in original and some citations omitted). Thus, the district court could not depart below the sentences it actually imposed for the section 924(c)convictions.

Montes's sentence, in case you're wondering, was 4,705 months' imprisonment.

District Court May Categorically Reject Crack Guidelines Based Solely on Policy Disagreement, Even Without Individual Mitigating Circumstances

Spears v. United States, No. 08-5721 (U.S. Jan. 21, 2009) (per curiam)

You thought it was already clear from Kimbrough that a district court may categorically reject the crack guidelines based solely on the court's policy disagreement with the crack/powder ratio? So did a majority of the Supreme Court, hence this summary reversal of the Eighth Circuit's contrary understanding of Kimbrough.

In this case, Spears was convicted of participating in a large-scale crack and powder cocaine conspiracy. The district judge thought the then-100:1 crack/powder ratio was excessive, so he recalculated the guidelines using a 20:1 ratio and ultimately sentenced Spears to the mandatory minimum of 20 years' imprisonment. On cross-appeal, the Government argued that the district court could not simply subsitute its own ratio for the Guidelines' ratio. The Eighth Circuit agreed, and vacated the sentence. Spears petitioned for cert, and the Supreme Court GVR'ed for reconsideration in light of Kimbrough. The Eighth Circuit again vacated the sentence, holding, inexplicably, that the district court could not categorically reject the Guidelines' ratio and replace it with a 20:1 ratio.

Spears again sought cert, with the result being this summary reversal that essentially says, "Remember Kimbrough? We meant it." The Court made crystal clear that "district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines[,]" adopting the "correct interpration of [Kimbrough] . . . offered by the dissent in Spears II:

"The Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances—no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation—a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of §3553(a),’ and is ‘at odds with §3553(a).’ The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines—its policy view that the 100-to-1 ratio creates an unwarranted disparity." 533 F. 3d, at 719 (opinion of Colloton, J.) (citations omitted).

Justice Kennedy would have granted cert and set the case for oral argument, rather than summarily reversing the Eighth Circuit. Justice Thomas dissented without explanation. Chief Justice Roberts, joined by Justice Alito, dissented largely on his view that summary reversal was inappropriate given the lack of a circuit split on what he viewed as an issue "arguably distinct" from that in Kimbrough (whether a district court can categorically adopt its own ratio, as opposed to simply determining that the 100:1 ratio would produce an excessive sentence in an individual case), and that the issue should be allowed to percolate in the lower courts before the Court steps in to settle their hash.

The majority responded that the Chief's characterization of Kimbrough's holding---requiring an individualized determination in addition to a policy disagreement before rejecting the crack Guidelines---"was [actually] the Government's position in Kimbrough, which did not prevail." And as for percolation,

The dissent says that "Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period." True enough—and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible. Finally, the dissent points out that other courts have followed the Eighth Circuit’s course, see United States v. Russell, 537 F. 3d 6, 11 (CA1 2008); United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008). Both of those courts, like the Eighth Circuit, seized upon the language from Kimbrough quoted above in order to stand by the course they had adopted pre-Kimbrough—and in the case of the First Circuit, despite this Court’s having vacated and remanded, in light of Kimbrough, the prior First Circuit judgment which had established that course. See Pho v. United States, 552 U. S. ___ (2008). If the error of those opinions is, as we think, evident, they demonstrate the need to clarify at once the holding of Kimbrough.

(By the way, if it wasn't already obvious from the rest of the opinion, that paragraph makes it pretty easy to guess the author.)

Finally, note that, although the issue arises here in the context of the crack guidelines, the rationale of Kimbrough should apply with equal force to any other guidelines that lack an empircal basis, and there's lots of those.

And if you're interested in a behind-the-scenes look at the saga that was Spears, start here.

When No Guideline Yet Exists for Offense, and Sentencing Commission Has Proposed One, It's Plain Error Not to Consider It at Sentencing

United States v. Sanchez, No. 07-30578 (5th Cir. May 13, 2008) (Jones, Barksdale, Stewart)

Lots of Sentencing Guidelines amendments are bad. But every now and then the Commission proposes an amendment that would actually result in reduced sentences. Wouldn't you like to be able to take advantage of those proposed amendments before they actually go into effect? Well here's some support for an argument that the district court has to at least consider the nascent guidelines.

Our facts: Sanchez was convicted of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. At the time of his sentencing, there was no specific guideline applicable to that crime, and the court concluded that there was no sufficiently analogous guideline to apply. The district court noted that the statutory maximum was 10 years, stated it had considered the 3553(a) factors, and sentenced Sanchez to 60 months' imprisonment.

"However, unbeknownst to the district court or the parties, prior to Sanchez’s sentencing on June 11, 2007, the Sentencing Commission had promulgated and submitted to Congress a proposed guideline for violations of § 2250." And that guideline would have resulted in an advisory range much lower than the 60 months Sanchez received (either 15 to 21 or 21 to 27, depending on which party's calculation is correct).

Sanchez appealed, arguing that the district court erred by not considering the proposed guideline when imposing sentence. Since he didn't raise this argument in the district court, the court of appeals reviewed for plain error.

The court first concluded that there was error, and that it was plain. Under Gall, it is "signficant procedural error" to miscalculate or to fail to calculate the applicable Guidelines range. When there is no applicable guideline for a felony offense, guideline §2X1.5 directs a court to "apply the most analogous offense guideline." If there's not one of those, then "the provisions of 18 U.S.C. § 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable.” In United States v. Armstead, the Fifth Circuit stated that, "'[w]hen dealing with a new statutory crime, we believe the courts should defer to the authority of the Sentencing Commission to define, by amending the guidelines, which particular guideline will be applicable to the new crime.'" Furthermore, where "'evidence of the [Sentencing] Commission’s policies and goals are publicly available to the courts, we should utilize those proposed new amendments in making determinations as to ‘analogous guidelines’ for sentencing purposes under § 2X5.1.'" Thus,

although Armstead arose in a different context, the Court’s statements regarding the propriety of considering proposed guidelines are relevant to the case at hand. Here, although there was no applicable guideline at the time of sentencing, “evidence of the [Sentencing] Commission’s policies and goals” was publicly available to the district court in the form of the proposed amendments to the guidelines. Id. Therefore, the district court should have “defer[red] to the authority of the Sentencing Commission” and utilized the proposed new amendments in determining Sanchez’s sentencing range. The district court’s failure to do so constituted plain error.

And that failure affected Sanchez's substantial rights under the United States v. Villegas standard. The fact that his sentence was more than twice as long as the high end of even the Government's calculations under the proposed guideline was enough to show that, absent the error, Sanchez would have received a different sentence. For the same reason, "this plain error also affects the fairness of the judicial proceedings and warrants the exercise of our discretion to correct the error."

But lest defense attorneys get any wise ideas, the opinion concludes with this admonition:

Finally, we must emphasize the narrowness of our holding. We hold only that, where, at the time of sentencing there is no guideline in effect for the particular offense of conviction, and the Sentencing Commission has promulgated a proposed guideline applicable to the offense of conviction, the district court’s failure to consider the proposed guideline when sentencing the defendant may result in reversible plain error.

Nevertheless, the rationale for considering new offense guidelines would surely seem to apply any time there's a proposed amendment waiting to take effect, even amendments to existing guidelines. That's especially so now that the Guidelines are merely advisory, rather than mandatory. So you might not want to wait until November 1st to haul out the good part of these proposed amendments.

More Guidelines Amendments On the Horizon

Yesterday, in addition to promulgating some Guidelines amendments effective immediately, the Sentencing Commission submitted a new slate of amendments to Congress (official version, and redline). This group of amendments will take effect on November 1, 2008, absent Congressional action. Most of these amendments address matters that don't come up all that often (false liens, official corruption, animal fighting, and some technical issues). But there are a couple of amendments that you'll want to take a close look at.

First, the Commission has finally acknowledged the Booker line of cases in the Guidelines introduction found at the beginning of Chapter One, and put quite an interesting spin on them. According to the Commission, those cases emphasize the "continuing importance of the guidelines in the sentencing determination." There's also a paragraph that all but invites Congress to "exercise its authority through specific directives to the Commission with respect to the guidelines," noting that line in Kimbrough about how Congress knows how to do so if it wants to. (Even though several paragraphs earlier there's a paean to Mistretta.)

Second, there's some good and bad changes to guideline §2L1.2. The amendment effectively overrules the Sarmiento-Funes line of cases by defining "forcible sex offense" in the 16-level COV definition to include offenses "where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced." The synopsis of the amendment specifically mentions that this change "would result in an outcome that is contrary to cases" such as Gomez-Gomez, Luciano-Rodriguez, and Sarmiento-Funes. (Making one wonder whether the Fives will go forward with en banc review in Gomez-Gomez.)

The amendment also effectively overrules United States v. Gonzales by adding an "offer to sell" a controlled substance as one of the acts constituting a DTO for purposes of the 12- and 16-level enhancements.

Finally, the amendment adds an application note suggesting that "a departure may be warranted" in "cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction[,]" and gives a couple of examples. Such as when a defendant isn't hit with a 12- or 16-level DTO enhancement for a drug offense involving a quantity inconsistent with personal use (effectively codifying the dicta in Lopez-Salas, which held that possession of even a large quantity of a controlled substance isn't a DTO if the offense lacks an intent-to-distribute element, but also suggested that an upward departure might be warranted in that instance). On the other hand (and here's the good part I mentioned earlier), the note also says that "[i]n a case in which subsection (b)(1)(A) [the 16-level bump] applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted." Such as a burglary-of-a-dwelling conviction for which the guy got a sentence of less than one year.

Interesting Sixth Circuit En Banc Decision Deepens Circuit Split Over Reasonableness Review and Plain Error

As you'll recall, the Fifth Circuit held in United States v. Peltier that "a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." That decision was wrong for a variety of reasons, but that's not the point of this post, which is instead about the circuit split that has developed on this issue and what that means for counsel representing defendants at sentencing. Peltier mentioned the split, but didn't discuss it, or the plain error question, in great detail. For that, you should read the Sixth Circuit's very interesting en banc decision today in United States v. Vonner, No. 05-5295 (6th Cir. Feb. 7, 2008).

Vonner pleaded guilty to distributing crack. The PSR, which Vonner didn't object to, calculated his Guidelines range at 108 to 135 months. At his sentencing hearing, which was held just three weeks after Booker was decided, Vonner asked for a downward variance based on several factors. The district court, after giving a skimpy statement of reasons, imposed a within-Guidelines sentence of 117 months. "After announcing the sentence, the court asked Vonner’s counsel whether 'the defendant [has] any objection to the sentence just pronounced not previously raised.' Vonner’s counsel responded, 'No, Your Honor.'" (That last question was required by United States v. Bostic, a pre-Booker decision from the Sixth Circuit.)

Vonner appealed, challenging both the reasonableness of the length of his sentence, as well as "the district court['s] fail[ure] to explain in sufficient detail why it rejected some of his arguments for a downward variance." The en banc majority held that although Vonner's request for a downward variance preserved his substantive reasonableness challenge, his failure to object to the district court's explanation after the sentence was imposed subjected his procedural reasonableness challenge to plain error review. The court was careful to point out (contra Peltier) that defendants are not required to object to the "reasonableness" of the sentence in the district court, because that's the appellate standard of review, not the standard the district court is required to follow. As the majority framed it, the question is whether the specific ground on which the defendant is challenging his sentence was presented to the district court. Thus, if a defendant argues that his sentence is substantively unreasonable on grounds other than those he urgued in the district court, then the court of appeals will review only for plain error. Likewise, if a defendant failed to object to a procedural defect in the sentencing process (such as an error in calculating the Guidelines, or a failure to provide an adequate statement of reasons), then plain error review applies.

The majority opinion drew three sharp dissents, which cover a lot of ground. The principal point of disagreement concerned the "divisibility" of reasonableness review. According to the dissenters, although there are both substantive and procedural components to reasonableness review, Gall and other decisions make clear that "these two inquiries are simply different aspects of the overall reasonableness review required by Booker." It's a single analysis that evaluates both the procedural and substantive reasonableness of the sentence. Thus, to preserve a reasonableness challenge a defendant simply needs to present his § 3553(a) argument (which would include any objections to the PSR or to Guidelines calculations) to the district court. Having done so, he should have no further obligation to object to the procedural reasonableness of the sentence after it has been imposed.

Another dissent catalogued the "strikingly different approaches adopted by the circuits," plaintively expressing "hope that the Supreme Court chooses to resolve the issue of whether defendants must object after the district court has imposed a sentence to preserve some, any, or all, of their Booker reasonableness claims."

Okay, so what does all of this mean on the ground? Well, in light of Peltier, it would be prudent to object to the length of the sentence after it's imposed. That should preserve at least a substantive reasonableness challenge. And even though Vonner isn't binding precedent in our circuit (and conflicts with Peltier in some respects), you should probably also specifically object to any procedural defects that you haven't already objected to by the time the sentence is imposed. To review, Gall provided a list of possible procedural flaws,

such as failing to calcluate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence---including an explanation for any deviation from the Guidelines range.

Now you will have already made some of those objections (such as an objection to the Guidelines calculations) before the sentence is imposed, and there's no need to re-urge them after the district court has ruled on them. But you may need to specifically raise others (like an inadequate explanation for the chosen sentence) after the sentence is imposed. That's not to say that Vonner (or Peltier) is right, but considering the fact that there's no telling how the Supreme Court might resolve this question (if it resolves it at all), prudence dictates that you dot all the I's and cross all the T's, lest your client's appeal get poured out on plain error review.

LA "Molestation of a Juvenile" Is a "Forcible Sex Offense," and Reasonableness Review Sans Rita

United States v. Beliew, No. 06-30400 (5th Cir. July 5, 2007) (Jones, Higginbotham, Clement)

The court addresses two questions in this felon-in-possession case: 1) whether "molestation of a child" under La. Rev. Stat. § 14:81.2(A) is a "crime of violence" as defined in U.S.S.G. §4B1.2(a), and 2) whether the "district court unreasonably denied downward departure at sentencing, believing itself legally bound to ignore his mitigating evidence." The answers: 1) yes, and 2) no.

We'll start with the COV question. The Louisiana statute prohibits a broad range of conduct, the broadest being "the commission . . . of any lewd or lascivious act . . . in the presence of any child [under 17], where there is an age difference of greater than two years between the two persons, . . . by the use of influence by virtue of a position of control or supervision over the juvenile." The court held that this offense is a "forcible sex offense," which is an enumerated COV under §4B1.2(a). It conceded that "an adult's 'use of influence' over a juvenile isn't obviously forcible compulsion[,]" but nevertheless held that the influence "can be deemed constructive force as the interstitial federal common law of 4B1.2." It agreed with the Fourth Circuit's reasoning in a case involving a similar North Carolina statute that "[w]hen a child is the victim of adult conduct, force can be inferred." (By the by, this opinion should be equally applicable to the enumerated "forcible sex offense" found in guideline §2L1.2's 16-level COV definition.)

You may be wondering how this squares with United States v. Sarmiento-Funes. Here's what the court had to say:

Expansion of the term “forcible sex offense” through the fiction of “constructive force” is bounded by Sarmiento-Funes, where this court held that a rape statute which encompasses assented-to-but-not-consented-to conduct was not a forcible sex offense. The statute in Sarmiento-Funes voided the victim’s consent to sex in cases of deception and where the victim’s judgment was impaired by intoxication. Under such a statute, there is at least assent, and so we held that there is no force extrinsic to penetration, constructive or otherwise. But here the Louisiana statute requires that an adult abuse his supervisional authority over a juvenile, a form of psychological intimidation that carries an implicit threat of force, a species of force extrinsic to penetration, distinguishable from Sarmiento-Funes.

Contrary to what the court says, I'm not sure the decision here is consistent with Sarmiento-Funes since the same constructive force argument could have been made with respsect to the Missouri statute at issue in that case. This opinion also pushes the boundaries of the Taylor/Shepard approach, raising the same kind of Sixth Amendment concerns that shaped the decisions in those cases.

But enough about that. Let's move on to Beliew's reasonableness challenge to his sentence (or what looks like a reasonableness challenge; the court's discussion of this issue isn't very clear). Beliew argued "that he was using the gun for hunting, an activity that might have earned him a reduction had he not also been twice convicted of child molestation, and he argues that this fact should have reasonably earned him a reduction under the section 3553(a) factors." At the sentencing hearing the district court told Beliew it was "listening to [his] argument and . . . taking it into account," even though the court had a "standing rule" against parties making such arguments without submitting a sentencing memorandum in advance of the hearing. The court went on to say,

I have to tell you, Mr. Beliew, I really feel sorry for you, but I don’t think I have a legal ground here to deviate from the guideline range that puts you in a position any different from somebody who is a felon in possession with a criminal history like you, to give you a sentence that is other than in the guideline range. I really feel sorry for you, I have to tell you.

And here's how the court of appeals resolved the reasonableness challenge:

Beliew argues that second paragraph suggests that the district court was not aware that section 3553(a) did provide a legal ground for downward variance. We cannot agree. The first paragraph makes clear that the district court was well aware that the guidelines had become advisory. To make sense of the matter, the court’s reference to no “legal ground” for departure must have been to the court’s requirement that counsel abide her “standing rule” of giving notice of such arguments. The judgment of the district court is AFFIRMED.

The district court's statement about no "legal ground" is ambiguous, to be sure, but it doesn't sound like the court was referring to its policy on written sentencing memoranda, especially since the district court told Beliew it was "taking [his argument] into account[.]" If anything, it sounds like the district court thought it needed some legal reason beyond 3553(a) itself in order to sentence outside the guidelines, a view that is plainly wrong, especially in light of Rita's holding that no presumption of reasonableness applies in the district court.

Which brings up one last odd point: this opinion doesn't even mention Rita, much less discuss how, if at all, Rita modified existing Fifth Circuit precedent on reasonableness review. For that reason it's hard to draw any broad conclusions about the post-Rita world of reasonableness review from this case. Except for the obvious one: if you're before a judge that prefers the parties to submit some form of written notice or argument in advance of the sentencing hearing, it would behoove you to do so.

Substantial Upward Variance Vacated Because District Court Failed to Identify Case-Specific Reasons for the Variance

United States v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (Garwood, Smith, DeMoss)

Walters was convicted of several counts relating to a mail-bombing, including a § 924(c)(1) use-of-destructive-device-in-crime-of-violence count that required a 30-year mandatory minimum to be served consecutively to the sentences on the other counts. The Guidelines recommended the minimum 30-year consecutive sentence on the § 924(c)(1). However, the district court, "primarily focus[ing] on the fact that his crime involved the use of a bomb[,]" imposed a non-guideline sentence of 60 years (720 months). When combined with the 262 months for the other counts, Walters' overall sentence was 982 months.

Walters appealed, challenging the reasonabless of his sentence. The court of appeals reversed, "conclud[ing] that the [district] court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence." In particular, the district court "only articulated factors that are inherent in all bomb-related crimes, and not specific facts relating to this particular defendant and his actions." Under the Smith framework, that won't fly. The court also said, somewhat confusingly, that

we do not believe that the court abused its discretion in deciding to depart. However, the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure.

The court's analysis is pretty brief, so it's hard to tease out any broader implications from the opinion. But the more-than-mere-lip-service-to-3553(a) language could be helpful to defendants challenging upward variances on appeal. It also shows that there's some limit on the magnitude of upward variances, even if it that limit may be pretty high.

Note also that one aspect of the Smith framework is at issue in a case the Supreme Court will decide next term. Smith holds, among other things, that "[t]he farther a sentence varies from the applicable Guideline sentence, the more compelling the justification based on factors in section 3553(a) must be.” In Gall v. United States, the Supreme Court will decide

[w]hether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.

Will Smith survive? We'll have to wait and see.

Upward Variance Based on Defendant's Arrest Record Plain Error, But Not So Bad That It Requires Reversal

United States v. Jones, No. 06-30855 (5th Cir. June 15, 2007) (Smith, Benavides, Dennis)

Just a week after being placed on probation in Louisiana state court for attempted possession of crack with intent to distribute, a felony, Jones was caught with a gun. He pled guilty in federal court to a felon-in-possession charge, and was looking at a guideline range of 30 to 37 months (17, III). At sentencing the district court advised the parties that it was considering an above-guideline sentence, and granted a continuance for the parties to submit memos on the matter. "In its memo, the government did not argue for a sentence outside the range." When the sentencing hearing resumed, the district court imposed a non-guideline sentence of 60 months on the grounds that Jones's "extensive arrest record indicates to me that his criminal history category probably or clearly understates the significance of his past criminal conduct" and was evidence that Jones had "some kind of fascination with guns."

Jones appealed his sentence, naturally "arguing that the court erred in considering his arrest record at sentencing." Unfortunately, Jones didn't object in the district court and therefore failed to preserve the issue. So the court of appeals reviewed for plain error.

The court had no trouble concluding that there was error and that it was plain. After all, guideline 4A1.3(a)(3) flat out says that "[a] prior arrest record itself shall not be considered for purposes of an upward departure," and the record clearly showed that the district court based the above-guideline sentence on Jones's arrest record. The court assumed for the sake of argument that the error affected Jones's substantial rights,* but concluded, unconvincingly, that the error did not affect the fairness, integrity, or public reputation of judicial proceedings:

Neither party disputed that Jones had a history with guns, and the court was “particularly disturbed” by Jones’s possession of a gun little more than a week after a state court felony conviction. The court engaged in a lengthy discussion of the defendant’s criminal history and the offense characteristics, and it addressed the arguments raised by defense counsel. Finally, the court sought to align Jones’s sentence with similarly situated defendants, and it sentenced Jones in line with United States v. Smith, 440 F.3d 704 (5th Cir. 2006), in which we upheld a larger departure to sixty months for a felon-in-possession charge. Our respect for the district court’s diligent effort at the sentencing hearing is not undermined by its unnecessary discussion of Jones’s arrest record.

*(The court "noted that this circuit has applied two different tests to determine whether an error in sentencing affected substantial rights." The "objective" test says "that error affects substantial rights only if the district court cannot impose the same sentence on remand." The "subjective" test, on the other hand, "states that error affects substantial rights where there is a reasonable probability that, but for the error, the court would have imposed a lesser sentence." The court didn't pick a horse in this dispute, because of the way it handled the fourth prong of plain-error review here.)

Above-Guideline Sentence Affirmed, Notwithstanding Erroneous Guideline Calculation

United States v. Antuna-Moran, No. 06-40103 (5th Cir. May 17, 2007) (per curiam) (Davis, Barksdale, Benavides)

The court's analysis here is so brief that rather than summarize the opinion, I'll just let you read the relevant portion for yourself:

Jose Cruz Antuna-Moran appeals his guilty-plea conviction and 46-month sentence for illegally reentering the United States after having been deported previously. Antuna-Moran argues that the district court erred by enhancing his base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based upon a determination that his Texas conviction for aggravated assault of a peace officer was a crime of violence. He also argues that the district court’s statement that it would have sentenced him to 46 months of imprisonment, even if its guidelines calculations were incorrect, does not render the alleged sentencing error by the district court harmless.

Given our decision in United States v. Fierro-Reyna, 466 F.3d 324, 326, 329-30 (5th Cir. 2006), the district court erred in enhancing Antuna-Moran’s offense level under § 2L1.2(b)(1)(A)(ii) based upon his prior Texas conviction for aggravated assault on a peace officer. When a district court misapplies the Guidelines, remand is appropriate unless this court concludes, “on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.” United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007).

Here, Antuna-Moran’s sentence was not the result of the district court’s incorrect application of the Guidelines because the district court stated that, even if it had miscalculated the Guidelines, the resulting guidelines range would be unreasonably low and that it would impose the same 46-month sentence. See United States v. Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir. 2006). Moreover, the alternate non-guidelines sentence imposed by the district court is reasonable considering the case-specific factors cited by the district court. See id. at 527-28.

If you're thinking, "That reads a lot like an unpublished decision," you're right. The court designated this opinion as unpublished when it was originally issued on May 17th (link here). For whatever reason, it's now published.

Exclusion Not An Available Remedy for Violation of Pen-Trap Statute, and Just How Rebuttable Is the Presumption of Reasonableness?

United States v. German, No. 06-30013 (5th Cir. May 14, 2007) (Higginbotham, Weiner, Prado)

This case involves a crack cocaine conspiracy. Okay, there's a lot more to it than that, but the details aren't all that important to the two issues I'll highlight here: 1) the court holds that there's no exclusionary remedy for violations of the federal pen-trap statute, and 2) the court rejects all three defendants' reasonableness challenges to their sentences in a way that makes the presumption of reasonableness look all but conclusive.

No Exclusion for Violations of Pen-Trap Statute
One of the defendants sought to suppress evidence that he claimed was obtained in violation of the pen-trap statute, 18 U.S.C. § 3122. (The opinion doesn't say what the claimed violation was.) The district court declined to hold a hearing to determine whether the Government violated the statute, because it concluded that there's no suppression remedy available for violations of § 3122.

The court of appeals agreed, holding that Congress did not intend to provide for suppression as a remedy. Unlike the wire-tap statute, which "specifically provides for an exclusionary remedy when the statutory requirements are not met[,]" § 3122 provides only "for fines and imprisonment for knowing violations[,]" This was a statutory rather than a Constitutional question because the Supreme Court has held that "the non-content surveillance of a pen register is an insufficient invasion of privacy to implicate the Fourth Amendment."

A Very Robust Presumption
All three defendants in the case argued that their sentences were unreasonable. The court disagreed, with a brief analysis that doesn't even mention the rebuttable nature of the presumption of reasonableness. Here's what the court had to say:

Felicia Smith’s challenge is the most compelling, but fails. She was sentenced to 292 months, the bottom of the advisory guideline range. As she notes, her role in the offense, largely chauffeuring and buying baking soda, was significantly less than that of her co-defendants. At sentencing, her counsel pointed out that Smith was “just a kid,” without so much as a traffic ticket in her past, who refused repeated plea offers to avoid hurting the father of her three-year-old child.

The district court considered these arguments and was unmoved. The court ruled that “the guidelines adequately take into account the seriousness of the offense for which she was found guilty, which is also one of the concerns under Section 3553(a).” The district court properly calculated Smith’s guideline range, and her resulting sentence is accordingly entitled to a presumption of reasonableness.

Eric German and Richard Jackson also urge this court to reduce their sentences on the grounds that a lesser sentence would better achieve the objectives listed in 3553(a). Richard Jackson was sentenced to 360 months. Eric German was sentence to life. Each argues that his prior conviction is either too minor or too stale to be included in his criminal history score. The district court considered and rejected Jackson’s argument and German’s argument wasn’t raised below. Both within-guideline sentences are entitled to a presumption of reasonableness.

This is certainly consistent with the pattern of reasonableness review that's developed in our circuit (and some others), but it sounds inconsistent with the Fifth Circuit's prior statement that within-guideline sentences are not per se reasonable. But as always, we'll see what the Supreme Court has to say about these matters in Rita and Claiborne, which aren't more than a month-and-a-half away at this point.

Court Reverses Below-Guideline Sentence In High-Profile Alien-Transporting Case

United States v. Sanchez, No. 06-20193 (5th Cir. Apr. 17, 2007) (King, Garza, Prado)

Sanchez was one of the defendants in the case where nineteen aliens died in the back of a tractor-trailer near Victoria, Texas. She pled guilty to one count of conspiring to transport illegal aliens. The stipulated factual basis for her guilty plea "stated that Sanchez, working in conjunction, and at times at the direction of co-conspirators, was responsible for a number of activities to promote, facilitate, and support the smuggling of undocumented aliens from South Texas, to and through the Houston, Texas area.”

When it came time to calculate the recommended guideline sentencing range, the district court applied enhancements under U.S.S.G. §2L1.1 for the number of aliens involved, reckless endangerment, and the death of at least one of the aliens. The resulting guideline range, after an adjustment for acceptance of responsibility, was 57 to 71 months.

However, the district court varied from the advisory guideline range on the grounds that 1) although Sanchez "was apparently known as someone who would assist people with smuggling[,]" this was "her only significant contact with the criminal justice system[,]" and 2) because there were multiple overlapping conspiracies involved in the case, the deaths of the nineteen aliens, as well as other aggravating factors, weren't reasonably foreseeable to Sanchez. For those reasons, the court initially imposed a 30-month sentence. After Sanchez told the court that she had already been in custody for 33 months pending the disposition of the matter, and after the U.S. Marshal told the court that Sanchez could be released immediately only if the court imposed a time-served sentence, the court sentenced Sanchez to time-served.

The government appealed the sentence. (Not a surprise, given the notoriety of the case.) The court of appeals reversed. (Also not a surprise, given the pattern of reasonableness review in our circuit.) It held that the sentence was unreasonable because 1) the district clearly erred in finding that there were multiple conspiracies involved and that the deaths were reasonably forseeable to Smith, 2) the district court's conclusion that Sanchez couldn't have foreseen 19 deaths was an improper basis for a non-Guideline sentence because the 2L1.1 death enhancement already took the death factor into account, 3) the district court failed to give sufficient weight to Sanchez's history and characteristics, i.e. her history of alien smuggling, and 4) the 42% reduction from the low end of the advisory range (what the court tellingly refers to as "the Guideline minimum") "would create significant disparity between Sanchez and other defendants with similar criminal histories convicted of similar criminal offenses."

I'm sure reasonable minds could differ about an appropriate sentence in this case, but is the sentence really unreasonable as a matter of law? This looks more like an instance of the court of appeals substituting its judgment for that of the district court (and from a very Guideline-centric perspective, no less). There's also the usual caveat: we'll see if the Fifth Circuit's approach to reasonableness review survives the Supreme Court's decisions in Rita and Claiborne, which shouldn't be more than a couple of months away at this point.

Fives Join Crack Chorus: Disagreement with 100:1 Powder-to-Crack Ratio Is Not a Valid Basis for Non-Guidelines Sentence

United States v. Leatch, No. 06-10526 (5th Cir. Mar. 22, 2007) (Jones, Jolly, Stewart) (per curiam)

Leatch was convicted of possession of at least 50 grams of crack with intent to distribute, and with conspiracy to do so. On the first go-round, the district court imposed a sentence of 324 months, which was the low end of a guideline range calculated using the 100-to-1 powder-to-crack drug quantity ratio. However, on a Booker remand the district court imposed a lower sentence after calculating Leatch's guideline range using the 20-to-1 ratio recommended in the Sentencing Commission's 2002 report to Congress on "Cocaine and Federal Sentencing Policy":

I’m varying in this case because I think the 100-to-1 disparity between powder cocaine and crack cocaine is inappropriate. I’ve followed with great interest the thoughtful district court decisions that address that. I am not going to attempt to restate on my own the various reasons for that. But for the reasons reflected in those decisions and also reflected in the Sentencing Commission’s determination that the 100-to-1 ratio was inappropriate . . . . [a]ccordingly, I’m going to follow what I understand to be the Sentencing Commission’s recommendation and use a 20-to-1 ratio.

Slip op. at 2. The court sentenced Leatch at the bottom of the resulting 262- to 327-month range, and the Government appealed.

The court of appeals, with little analysis of its own, decided to follow the lead of the other circuits which have held "that a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair." Slip op. at 3. The court reiterated, as it had in Tzep-Mejia, that non-Guideline sentences must be based on "individualized, case-specific factors" identified in 3553(a), rather than policy disagreements with the Guidelines. It therefore remanded the case for resentencing.

This decision isn't all that surprising in light of the policy/case-specific-facts dichotomy adopted by Tzep-Mejia, but it's still disappointing, for obvious reasons (how is this different from mandatory guidelines? and what about the fact that the Sentencing Commission itself has repudiated the 100:1 ratio?). For more commentary on Leatch and the powder-crack disparity (including some head-scratching as to why the Fifth Circuit didn't wait to see how Rita and Claiborne turn out before deciding Leatch), see Professor Berman's post here. (This guy's also been working on this issue a lot lately, so he might have some commentary as well, maybe even in the form of a haiku.)

Court Reverses Downward Variance in Possession of Child Pornography Case

United States v. Perrin, No. 06-30115 (5th Cir. Feb. 9, 2007) (Higginbotham, Smith, DeMoss)

Perrin was convicted of receipt and possession of child pornography. He possessed thousands of images and videos, some of which were especially bad. His guideline range was 108 to 135 months (which included a one-level substantial assistance departure), and the statutory mandatory minimum was 60 months. Perrin's supervised release range was five years to life, and the guidelines recommended the maximum life term.

The district court imposed a non-guideline sentence of 60 months, to be followed by a 10-year term of supervised release. It gave four reasons for the variance: 1) Perrin was a consumer of child pornography, not a producer, and the guidelines for possession are disproportionate to those for production; 2) "Perrin was not a risk to the community and that there was no indication that he had ever 'attempted to perform anything similar to the visual depictions that he possessed[;]'" 3) "Perrin was aware of the consequences of his conduct, and the court was impressed that he had voluntarily begun counseling[;]" and 4) the ten-year term of supervised release was "onerous" and "double the typical amount of time spent under supervision." Slip op. at 2. The Government appealed.

The court held that Perrin's sentence was unreasonable under the first two factors of the Smith test for non-guideline sentences. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)). First, it did not account for factors that should have received significant weight, namely the "nature and circumstances of the offense" and "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Slip op. at 4 (quoting 18 U.S.C. § 3553(a)(1), (2)(A)).Here's what the court said about that:

Based on the content and numerosity of the images possessed by Perrin, this crime falls at the more severe end of possession of child pornography cases. The court did not articulate sufficiently how the severity of the crime factored into its decision to depart from the guideline range and impose the minimum sentence allowed by law, so the sentence fails to advance sufficiently the objectives stated in § 3553(a)(2)(A)-(B).

Slip op. at 5.

Second, the district court "[gave] significant weight to . . . irrelevant or improper factor[s]." The district court's reliance on the fact that Perrin was a consumer rather than a producer was improper because the guidelines also take that distinction into account by punishing production more severely than possession, and because a departure isn't warranted on the ground that a defendant didn't commit a more severe crime that he actually did. It was also improper for the district court to consider Perrin's contrition and participation in counseling: "A defendant's contrition and commencement of counseling are already accounted for, according to the guidelines manual, in the acceptance-of-responsibility reduction and thus are inappropriate as a basis for a further sentence reduction." Slip op. at 6. Finally, the ten-year supervised release term was already substantially lower than that recommended by the Guidelines, so it was "inappropriate to use such a term of supervised release as a basis for departure from the guideline range." Id.

Needless to say, the court's opinion reflects a very guidelines-centric view of sentencing. We'll see if the Supreme Court agrees with that approach in Claiborne and Rita.