Sentences with Aggravating Role Enhancements and Upward Departure Affirmed in Alien Smuggling and Money Laundering Case

United States v. Chon, No. 11-50143 (Apr. 10, 2013) (Higginbotham, Smith, Elrod) (per curiam)

The panel affirmed convictions for alien smuggling, money laundering, and aiding and assisting in the filing of a false tax return despite challenges to the sufficiency of the evidence. Two defendants also challenged the reasonableness of their sentences.

The panel rejected Garcia-Rico’s argument that the district court erred in imposing a three-level enhancement (§ 3B1.1(b)) for his alleged role as a manager or supervisor of the conspiracy in light of the unrebutted facts in his PSR that "Garcia-Rico received wired monetary payments from alien smugglers that were then used to smuggle, transport, and harbor illegal aliens." Chon also challenged his four-level enhancement (§ 3B1.1(a)) for being a leader or organizer of the money-laundering offense, but the panel affirmed given the evidence in the record.

The panel found, however, that the district court procedurally erred by not explaining the upward departure of forty-five months for Chon’s sentence. Chon did not object before the district court, so this was subject to plain error review. The district court only made a passing reference to § 3553(a) and did not provide any explanation for the sentence it selected. In the statement of reasons, however, the court indicated that it was departing "for reasons authorized by the sentencing guidelines manual" and then selected the box indicating that the sentence was based upon the government motion for upward departure. While this was clearly erroneous, the panel held that it did not affect Chon’s substantial rights since the government’s motion extensively discussed the rationale for recommending the statutory maximum for each count of conviction.

So, be sure to object in district court to unreasonable sentences. Otherwise, a judge’s mere checking of a box and the government’s arguments in a motion or in the PSR will be sufficient for appellate review.

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.

Why the Departure/Variance Distinction Matters, Part Two

United States v. Gutierrez-Hernandez, No. 08-20620 (5th Cir. Aug. 28, 2009) (King, Higginbotham, Clement)

Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review." Turns out that I couldn't have been more wrong. Exhibit 1: the Sixth Circuit's recent decision holding that, even post-Booker, a district court's discretionary refusal to depart is unreviewable on appeal, which is in accord with at least one unpublished Fifth Circuit decision. Exhibit 2: Gutierrez-Hernandez, in which the court reverses a sentence involving an upward departure, because the district court erroneously applied two of the Guidelines departure provisions.

What happened? Gutierrez pleaded guilty to illegal reentry.

The district court adopted the presentence report which preliminarily calculated a guideline sentence range of 10 to 16 months based on a total offense level of 10 and a criminal history category of III. The PSR then recommended two guideline departures. First, it pointed to a 2008 state handgun conviction for which Gutierrez was sentenced to 20 days imprisonment. The report suggested a departure under § 4A1.3, Inadequacy of Criminal History Category, because if the crime had been federally prosecuted, Gutierrez would have faced a greater sentence. Second, the PSR recommended a departure under § 5K2.0, Other Grounds for Departure, based on a 2003 state drug conviction, which, based on a police department offense report, the probation officer considered more serious than the guidelines accounted for. Gutierrez filed written objections to the upward departures in the PSR. In its statement of reasons, the district court repeated the language from the PSR and checked the boxes indicating that both departure provisions applied, thereby increasing Gutierrez’s offense level from 10 to 17. This resulted in a guidelines range of 30 to 37 months. Gutierrez was sentenced to 30 months.

On appeal, Gutierrez argued that the district court committed procedural error by misapplying the departure Guidelines. The court agreed. As for the criminal history departure, the court said that "[t]he prior state sentence may well under-represent the seriousness of Gutierrez’s criminal history[,]" but declined to "reach that question because the district court erred in determining the manner in which an adequate criminal history score is accounted for." The Guidelines require that a criminal history departure be made by adjusting the criminal history category, not—as the district court did—by adjusting the offense level. "A departure based on the inadequacy of criminal history is not made by adjusting the factor that accounts for the offense level of the instant crime."

A similar flaw underlay the district court's application of §5K2.0. The district court justified the departure on the ground of Gutierrez's prior Texas conviction for delivery of a controlled substance. That conviction did not trigger the "drug trafficking" enhancement under §2L1.2 because the Shepard-approved documents did not exclude the possibility that the conviction rested on an offer-to-sell, which at the time of sentencing in this case did not qualify as a drug-trafficking offense. Nevertheless, "the district court looked to the police report—a document it could not consider under the [Taylor-Shepard approach]—to determine that Gutierrez’s conduct involved an actual sale of cocaine, activity within the federal definition of a drug trafficking offense, and not merely an offer to sell, which is outside the definition. It determined that Gutierrez’s conduct would have triggered the enhancement if the indictment had described Gutierrez’s conduct in detail. It therefore applied the § 5K2.0 departure." That was error, said the court of appeals:

A district court cannot escape Taylor and Shepard by looking to a police report—which it could not earlier use to determine whether a prior conviction was a drug trafficking offense—to later justify a departure on the basis that the enhancement should have applied. Even more fundamentally, the 2003 conviction cannot support this departure because prior offenses serve as the basis for § 4A1.3 departures, which specifically focus on criminal history, and not § 5K2.0 departures, which consider circumstances of the instant offense. The provision identifies inter alia as relevant circumstances death, physical injury, psychological injury, abduction, and property damage, all pertinent to the offense at hand.

(emphasis added). Thus, the district court committed procedural error within the meaning of Gall, because "it gave no valid basis for the § 5K2.0 departure and misapplied the § 4A1.3 departure." More importantly, this error was fatal to the sentence:

The government urges that this Court can affirm the sentence as reasonable, under the second step of Gall, despite the procedural error in calculating the guideline sentencing range. If this case were in the Seventh or Ninth Circuit that argument might have traction. Those circuits, after United States v. Booker directed that the Guidelines were advisory, found that the guideline departures provisions had been “rendered obsolete” and “replaced by the requirement that judges impose a ‘reasonable’ sentence.”

This Circuit, however, has found otherwise. In a case vacating and remanding because the district court misapplied a guideline enhancement, we stated “nothing suggests that Booker injected a reasonableness standard into the question whether the district court properly interpreted and applied the Guidelines or that an appellate court no longer reviews a district court's interpretation and application of the Guidelines de novo.” Booker left in force 18 U.S.C. § 3742(f) which provides: “If the court of appeals determines that . . . the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate.” A district court must correctly apply the sentencing guidelines.

Of course, a court may impose a non-guidelines sentence based on the reasonableness factors in 18 U.S.C. § 3553(a). But one of those factors is the sentence established by the guidelines. The properly-calculated guideline sentencing range is the point from which the court may vary, a necessary factor in determining reasonableness. The Eleventh Circuit labels this the “consultation requirement,” and the Third Circuit recognizes that error in calculating the guideline range “may presage the sentence ultimately set.” Without the correct guideline range, the court varies from the wrong point.

Because the district court erred in the application of the departure provisions we VACATE Gutierrez’s sentence and REMAND for resentencing.

No doubt a key factor in this winning appeal is that Gutierrez submitted written objections to the PSR's call for an upward departure, thus avoiding plain error review. And you should always have the opportunity to do that. Remember that Fed. R. Crim. P. 32(h) still requires advance notice that the court is contemplating a departure (although not for variances).

Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation Sentence

United States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)

If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutively to any other sentence, even though the sentence for the original offense—as required by the terms of the plea agreement—ran concurrently with an already-imposed state sentence? That question, and others concerning plain error and reasonableness review (including a circuit split!), are answered in Whitelaw.

The lengthy backstory:

Alan Whitelaw was convicted of theft of money in an amount exceeding $200,000 in state court and was sentenced to 60 years of imprisonment. Whitelaw subsequently pleaded guilty to federal bank fraud charges in the Southern District of Texas. While the same type of fraudulent conduct was the basis for both of Whitelaw’s convictions, the federal and state convictions involved different specific conduct, dates, and victims.

Although Whitelaw pleaded guilty to the federal charge without a written plea agreement, the Government made an oral agreement at rearraignment that it would recommend that Whitelaw’s sentence run concurrently with his state court sentence. The district court accepted the agreement as a plea agreement under FED. R. CRIM. P. 11(c)(1)(C), ruling that Whitelaw would be allowed to withdraw his guilty plea if it did not order that his sentence run concurrently with his state court sentence. The district court sentenced Whitelaw to 46 months of imprisonment, the sentence to run concurrently with his state court sentence, and five years of supervised release.

For reasons not explained in the opinion, Whitelaw was released from state prison after serving just five years of his sentence. He then began serving his federal supervised release term.

A little over three years later, Whitelaw was arrested on a revocation violation warrant. The Government then filed two motions to revoke Whitelaw's supervised release, the latter of which alleged six violations, including "committing the felony offense of theft of copper wire valued in excess of $1,000 or possession of stolen copper wire valued in excess of $1,000," lying to his probation officer about it (both orally and with forged documents), and technical violations.

After a hearing, the court found all but one of the alleged violations (a failure to report) to be true. Whitelaw requested a sentence at the low end of the advisory 4- to 10-month Guidelines range. The court instead sentenced him to 36 months—the statutory maximum—"and ordered that sentence run consecutively to any other state or federal sentence."

Following the revocation of his supervised release, Whitelaw filed a pro se motion that included a claim that he should be allowed to withdraw his guilty plea because his sentence upon the revocation of supervised release was not ordered to run concurrently with any state court sentence he received. The district court struck the motion because Whitelaw was represented by counsel and, therefore, not entitled to make pro se filings. In the alternative, the district court denied the motion on its merits.

Which finally gets us to the issues on appeal . . .

Standard of Review
For at least the third time, the court declined to decide whether revocation sentences are reviewed for reasonableness or plain unreasonableness, because all the issues Whitelaw raised were subject to plain error review:

• "Whitelaw did not raise any of the specific claims of procedural error that he argues in this appeal when he was before the district court for sentencing[,]" so plain error review for those (failure to consider the policy statements in Chapter 7 of the Guidelines Manual, and an inadequate statement of reasons for the sentence).
• Whitelaw's motion challenging the consecutiveness order "was stricken by the district court because Whitelaw was represented by counsel. Accordingly, Whitelaw did not properly raise this claim of specific legal error below, and this court reviews it for plain error only."
• "Whitelaw also did not object to the substantive reasonableness of the sentence below. Whitelaw’s contest of the revocation charges and request for a sentence at the low end of the guidelines range are insufficient to preserve the substantive reasonableness of the sentence for review." See Peltier. (But don't forget that circuit split.)

No Error In Running Sentence Consecutive to Any Other Sentence, Notwithstanding Plea Agreement on Original Offense
Whitelaw challenged the consecutive order on his revocation sentence on two grounds, both of which the court rejected. First, he argued that the district court didn't indicate it realized that it could order the sentence to run concurrently with any other sentence. While the district court didn't specifically acknowledge it's discretion in the matter, the Government asked for the revocation sentence to run consecutively, and the district court express doubt that it could do that. "In the absence of evidence to the contrary, this court assumes that the district court knows the law and applies it correctly[,]" so no plain error.

Second, Whitelaw argued that the terms of his original plea agreement required any revocation sentence to run concurrently to any other sentence, as was the case with his original sentence. Not so, said the court. The rearraignment transcript wasn't in the record, but the PSR

describes the plea agreement as requiring that Whitelaw’s sentence run concurrently with the state court sentence Whitelaw was then serving. We see no indication that the plea agreement applied to any sentence other than for the crime upon which he was charged. The judgment of conviction provides only that Whitelaw’s sentence of imprisonment would run concurrently with the state court sentence that Whitelaw was then serving; it did not impose any restrictions upon possible sentences that could be imposed if Whitelaw’s later term of supervised release was revoked.

(emphasis added). Is that right? It may be the case that the plea agreement didn't purport to cover what would happen in the event of a revocation of supervised release (and given the lack of a written plea agreement or a rearraignment transcript, it's impossible to say the court's wrong about that). But to the extent that the court is suggesting that a revocation sentence is for a crime other than the one for which a defendant was originally convicted, the court applies a mistaken understanding of revocation. As the Supreme Court explained in Johnson v. United States, a post-revocation sanction is an additional punishment for the original offense, not a punishment for the violation of the terms of release. 529 U.S. 694, 699–701 (2000). Treating post-revocation sanctions as punishment for violations of conditions of supervised release would raise "serious constitutional questions," given that "the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt." Id. at 700. The court doesn't address Johnson here, but it's something to keep in mind if you find yourself with a case similar to Whitelaw.

Whitelaw Failed to Show that the District Court Failed to Consider the Guidelines' Revocation Policy Statements
Whitelaw argued on appeal that the district court failed to consider the Chapter 7 policy statements. But the court of appeals held that he failed to show that, because 1) the district court correctly calculated the advisory revocation range and referred to it before imposing sentence, 2) "[d]efense counsel referred to that range in its argument[,]" and 3) the Government also referred to that range in its motions to revoke, and "made arguments for an above range sentence related to the § 3553(a) factors[.]"

District Court Plainly Erred in Failing to State Reasons for the Sentence, but That Error Did Not Affect Whitelaw's Substantial Rights Because the Record Reveals the Reasons
Given that the district court imposed a sentence that was more than three times the high end of the advisory Guidelines range, Rita required some explanation. The district court gave no reasons. That was clear and obvious error. But did the error affect Whitelaw's substantial rights? And how does the court of appeals assess that?

As it turns out, up until now the Fifth Circuit "ha[d] not yet applied plain error review to a district court’s failure to state reasons for an above guideline sentence." (emphasis added). As you'll recall, Mondragon-Santiago reviewed such an error in the context of a within-Guidelines sentence. It held that that the defendant must "show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon-Santiago rejected the approach of "other circuits [that] have relaxed this requirement in the sentencing context[.]"

But given that Mondragon-Santiago involved a within-Guidelines sentence, Whitelaw had to decide whether that approach to the third plain-error prong also applies to review of above-Guidelines sentences. To that end, Whitelaw canvassed what appears to be a circuit split on the question:

In cases involving above guidelines sentences, the D.C. Circuit and the Second Circuit have relaxed the showing required by a defendant to demonstrate that the error affected the defendant’s substantial rights. These courts reason that the absence of a statement of reasons affects the appellate court’s ability to perform a meaningful review of the sentence. Both circuits also conclude that the failure to state reasons undermines “the public reputation of judicial proceedings” because the statement of reasons indicates to the public that the sentencing judge has thoughtfully discharged his responsibilities and demonstrates that the judgment is not arbitrary. [So has the Sixth Circuit.]

Other circuits have declined to follow that lead. The Tenth Circuit affirmed a below guidelines sentence in which the government argued procedural error for failure of the sentencing court to cite reasons for a downward departure. The Tenth Circuit refused to find that the error affected the government’s substantial rights because, applying traditional plain error analysis, the government could not explain how a more detailed reasoning process might have led the court to select a higher sentence. In other words, the government could not show that the error made a difference in the sentencing outcome. The court refused to presume prejudice.

(cites omitted). Ultimately, Whitelaw found it unnecessary to take sides on this question, because "our review of the record reveals the reasons for Whitelaw’s sentence, even if not explicitly stated by the district court." The revocation hearing was extensive. The district court heard evidence, and both parties presented sentencing arguments. "The government then urged the court to sentence Whitelaw to 36 months in prison (the statutory maximum) for the five reasons set forth in its motion to revoke and that the sentence be consecutive to any other sentence. The district court then granted the government’s motion and sentenced Whitelaw to the government’s recommended 36 month term of imprisonment." (By the way, a portion of the Government's motion is reproduced in the opinion, and is predictably purple.) The court then reaches this troubling conclusion:

We have no trouble concluding that by granting the government’s Motion to Revoke and sentencing Whitelaw to the term of imprisonment recommended and supported in that motion, the district court implicitly adopted the government’s rationale for that sentence as set forth in the motion. These reasons thoroughly explain Whitelaw’s sentence. The factual basis supporting them is implicit in the district court’s findings that most of the revocation charges were true. By reviewing the record of the sentencing proceedings in this case, we are able to conduct a meaningful appellate review. Accordingly, the district court’s failure to state these reasons on the record has not prejudiced Whitelaw.

Will that give prosecutors an incentive to paper the case with overheated arguments for a stiff revocation sentence, in hopes that the district court won't state reasons of its own? Perhaps. If possible, you might consider trying to blunt the effect of such pleadings with your own written submission (which may or may not be possible, depending on whether the releasee challenges the alleged violations, and on whether the court will allow time for written arguments before deciding on a disposition). Of course, it's also a good reason to object to procedural errors at the hearing so you're not stuck with plain error review in the first place.

On Review for Substantive Reasonableness, Whitelaw's Sentence was not Plain Error
After all that, the court's resolution of Whitelaw's substantive reasonableness challenge was pretty brief. The court simply said that because the sentence did not exceed the statutory maximum, it wasn't plain error, citing other Fifth Circuit opinions that also so held. Is the court relying on a broader principle that a sentence within the statutory range can never be plain error? If so, that sounds questionable. Hopefully, the court is just saying that, as a descriptive matter, such sentences will have a very hard time satisfying all four plain error prongs. And given the poor track record of preserved substantive reasonableness challenges, that's probably true.

Nice Opinion on Error Preservation and Harm In Appeal From Erroneous Guidelines Calculation

United States v. Neal, No. 08-30693 (5th Cir. Aug. 7, 2009) (Wiener, Garza, Elrod)

You'll want to keep this opinion handy, in case you get into a battle over whether an objection to a sentencing error was properly preserved in the district court. It's also a nice go-to for harm arguments when the district court miscalculated the advisory Guidelines range.

As the court recounted the facts,

Police officers responded to a domestic disturbance call at Neal’s apartment. Upon arrival, Neal’s estranged girlfriend informed the officers that Neal was in possession of illegal drugs. Neal consented to a search of his apartment, and the officers discovered (1) two firearms in the bedroom closet and (2) undetermined amounts of cocaine, ecstacy, hydrocodone, and marijuana elsewhere in the apartment.

After pleading guilty in state court to possession of hydrocodone, Neal pleaded guilty in federal court to being a felon in possession of firearms. Enter the probation officer, who contended that Neal was subject to a heightened offense level under the armed career criminal guideline (§4B1.4(b)(3)(A), (c)(2)), on the ground that “the defendant possessed the firearms along with controlled substances, therefore the defendant is deemed to have used or possessed the firearms in connection with a crime of violence or a controlled substance offense.” Neal objected, but the district court adopted the probation officer's recommended calculations and imposed a sentence at the bottom of the resulting 188- to 235-month Guidelines range.

Neal appealed. As is often the case, the court had to first resolve a dispute over whether Neal had preserved error. The discussion is important not only because it finds Neal's relatively spare objection sufficient to preserve error, but also because of some great language addressing the effect of a district court's misunderstanding of, or failure to respond to, an objection.

To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). Here, Neal raised the following complaint in his written objections to the PSR:

"2. Page 4 ¶ 20, defendant objects to the Probation Office’s finding that, pursuant to U.S.S.G. § 4B1.4(A), defendant should be considered an armed career criminal in that he used or possessed a firearm or ammunition in connection with a crime of violence or controlled substance offense as defined in U.S.S.G. § 4B1.2(A). Weapons found in Mr. Neal’s residence were not used nor were they possessed in connection with a crime of violence or controlled substance offense."

The government contends that this objection was too general to preserve error, as Neal never specifically alleged that simple possession of drugs fell outside the Guidelines definition of a “controlled substance offense.”

The government notes that the district court construed Neal’s written response as objecting solely to the proximity of the drugs, i.e., to whether the firearms found in the bedroom closet were possessed “in connection with” the drugs found elsewhere in the apartment. The government faults Neal for failing to clarify the basis of his objection after the district court’s initial response.

While Neal could certainly have been more clear and more persistent in raising an objection based on the definition of “controlled substance offense,” we conclude that his actions were sufficient to preserve error. For preservation purposes, we have never required a defendant to reiterate an objection simply because the trial court misconstrues or fails to respond to the original. The central inquiry is the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief. See Medina-Anicacio, 325 F.3d at 642 (“[O]nce a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal.”).

Here, it is sufficiently clear that Neal objected to his possession conviction being deemed a “controlled substance offense.” The second paragraph of Neal’s written response to the PSR, set forth supra, specifically objects to the PSR’s finding that the firearms were possessed in connection with a “controlled substance offense,” and cites to the relevant definitions section of the Guidelines for support. While the district court may have subsequently focused its analysis on the spatial relationship between the drugs and the firearms, we note that Neal raised this “proximity” objection explicitly and separately in the first paragraph of his written response. As such, it is reasonable to infer that the second paragraph was intended to raise a different objection, one based on the definition of a “controlled substance offense.” Moreover, during the sentencing hearing, Neal emphasized that his “predicate offense” was simple possession of a small amount of hydrocodone. While this statement standing alone may have been insufficient, we conclude that the combination of Neal’s oral and written objections was sufficient to preserve error in this case. See Ocana, 204 F.3d at 589.

Thus, de novo review of the Guidelines calculation, which was an easy one. A "controlled substance offense," for purposes of the armed career criminal guideline, does not include simple possession. There was no finding or evidence that Neal possessed the drugs with intent to distribute, dispense, etc., so application of the enhanced offense level and criminal history category was erroneous.

But was there harm? Yes. Without the enhancement, Neal's advisory Guideline range would have been 180 to 188 months, rather than the 188- to 235-month range calculated by the district court.

Where, as here, the district court commits a significant procedural error such as miscalculating the Guidelines range, we must vacate the sentence unless the error did not affect the selection of the sentence imposed. Delgado-Martinez, 564 F.3d at 753. The proponent of the sentence has the burden of establishing that the error was harmless. Id. Here, the government notes that Neal’s 188-month sentence falls within both the correctly and incorrectly calculated ranges. However, “[w]hile the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.” Id. Based on our independent review of the record, we find no indication that the district court would have imposed the same sentence regardless of the Guidelines range. Accordingly, we cannot conclude that error was harmless and must remand. See id. at 754.

Hence vacation and remand.

Why the Departure/Variance Distinction Matters

In a recent case, the Fifth Circuit noted that it continues to draw a distinction between variances based on 3553(a) factors, and Guidelines departures. I suggested at the time that this "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review."

Turns out I hadn't thought through the issue thoroughly enough, as demonstrated by this post by Sumter Camp at the Sixth Circuit Blog. I had forgotten that, pre-Booker, a district court's discretionary refusal to depart was unreviewable on appeal. And if a court of appeals continues to observe a distinction between departures and variances, then the district court's rejection of a defendant's request for a lower sentence based solely on departure grounds would not be reviewable. That's the conclusion the Sixth Circuit reached in United States v. Blue. And though I haven't found a published, post-Booker Fifth Circuit opinion reaching the same conclusion, there are some unpublished opinions that have so held (like this one, for example).

How to avoid this appellate trap? As Sumter notes:

[You can] present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing.

One exception, at least in our circuit, is when it comes to arguing for a 3553(a) variance based on unwarranted fast-track disparities (or maybe not). In any event, you can still preserve that argument in the district court for further review in light of the circuit split.

Remorse Not Requried for Acceptance of Responsibility, But Lack of Remorse a Valid Basis for Upward Variance

United States v. Douglas, No. 07-11007 (5th Cir. May 29, 2009) (O'Connor,* Wiener, Stewart)

Can a defendant receive an acceptance-of-responsibility adjustment under guideline §3E1.1, even if he is not remorseful for having committed the offense? Yes. That's the good news in Douglas. The bad? A district court may impose an above-Guidelines sentence based on that lack of remorse.

Our facts:

Chuck Lavon Douglas pled guilty . . . to a single count of possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The charge arose after a minor who was at Douglas’s home at the time accidentally shot himself in the hand with a loaded handgun that Douglas had handed to him. After the child was taken to the hospital, police obtained a search warrant and searched Douglas’s residence. Douglas cooperated in the search and led police to the handgun and several rounds of ammunition. Although these events took place in late August 2003, Douglas was not charged until February 27, 2007, in part because he had been living in Mexico in an attempt to avoid arrest on other state charges.

Douglas's Guidelines range worked out to 18 to 24 months, which included the full 3-level adjustment for acceptance of responsibility. When asked by the district court at sentencing if he had learned anything from his offense, Douglas said that he "should have stayed in Mexico" with his wife and child. Pressed by the court as to whether he was remorseful, Douglas responded that the minor had shot himself. Ultimately, "[t]he district court determined that a non-Guidelines sentence [of 36 months' imprisonment] was appropriate based on the Guidelines range and the § 3553(a) factors, citing Douglas’s lack of remorse, that a child was injured as a result of his offense, and that he had repeatedly indicated that he should have stayed in Mexico."

On appeal, "Douglas argue[d] that the district court committed procedural error when it did not first consider [his] lack of remorse in calculating the applicable Guidelines range before using that factor to justify a higher, non-Guidelines sentence[,] . . . contend[ing] that 'lack of remorse' is essentially the same basis on which [the court] contrarily granted him a three-point reduction from his offense level pursuant U.S.S.G. § 3E1.1 for 'acceptance of responsibility.'" He relied primarily on the Fifth Circuit's 2004 decision in United States v. Andrews, which held that the "district court committed reversible error by granting the defendant an offense level reduction for acceptance of responsibility, but then finding his lack of acceptance of responsibility to justify an upward departure from the Guidelines."

Apples and oranges, the court replied:

We hold that “lack of remorse” and “acceptance of responsibility” can be separate factors and that a district court may consider each independently of the other. The district court in Andrews used contrary findings on the very same factor to grant a downward enhancement and then upwardly depart, while here the court based its upward variance on “lack of remorse,” an independent factor. Because lack of remorse is a different consideration from finding acceptance of responsibility pursuant to § 3E1.1, it need not be addressed during the Guidelines calculation. . . . Acceptance of responsibility accounts for the defendant’s guilty plea, which relieves the government of the burden of being put to its proof. See § 3E1.1(b), cmt. 2, 3. It is not inconsistent for the district court to have determined that Douglas accepted and admitted his culpability for the crime but at the same time demonstrated a lack of remorse for his conduct.

Moreover, "[u]nder the advisory Sentencing Guidelines, the district court . . . is free to give more or less weight to factors already accounted for in that advisory range."

A couple of other things to note:

1) Preservation of claimed procedural error. Unlike in many recent cases, the court found that Douglas had properly preserved the issue below. Here's how:

In response to a question from defense counsel, the district court stated that the sentence was “a non-Guidelines sentence.” Defense counsel then objected to the court’s non-Guidelines sentence based on the minor’s injury. The district court clarified that the reasons for the upward departure were Douglas’s lack of remorse and his statements that he should not have returned from Mexico, not the injury to the minor. It further explained that a twenty-four month sentence was not adequate to address the § 3553(a) concerns of promoting respect for the law and just punishment. Defense counsel maintained the objection to the upward departure, on grounds that it deprived Douglas of his credit for acceptance of responsibility and that lack of remorse was not taken into account by the court in determining the Guidelines range.

Whether this much objecting is necessary the opinion doesn't say. But it does illustrate what would be sufficient to avoid plain error review on this particular issue.

2) The Fifth Circuit continues to draw a distinction between Guidelines and non-Guidelines sentences for purposes of reasonableness review.

This court’s post-Booker case law recognizes three types of sentences: (1) one within a properly calculated Guideline range; (2) one that is an upward or downward departure as allowed by the Guidelines, which is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence. United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).

This ostensibly matters because only Guidelines sentences get a presumption of reasonableness on appeal. But it may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review.

*Yes, that's retired Supreme Court Justice Sandra Day O'Connor, sitting by designation.

Ninth Circuit Finds Illegal Reentry Sentence Substantively Unreasonable

In United States v. Amezcua-Vasquez, No. 07-50239 (9th Cir. June 1, 2009). Check out the Ninth Circuit Blog's summary of the case here.

Kimbrough's Not Just For Crack, and How to Vary Based On Policy Disagreements with Guidelines

United States v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (King, Stewart, Southwick)

In case there was any doubt left after Mondragon-Santiago as to whether Kimbrough allows a district court to vary from the advisory Guidelines range based on policy disgreements with guidelines other than the crack guidelines, Simmons makes things crystal clear:

Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar. In Kimbrough, the Court referred to the following concession made by the government: “the Guidelines are now advisory and . . . , as a general matter, courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” Kimbrough, 128 S. Ct. at 570 (emphasis added) (internal quotation marks omitted). The Court added, however, that the appellate court may need to conduct a “closer review” if the judge has varied from the Guidelines because of a belief that the resulting sentence range, even in an unexceptional case, is inconsistent with Section 3553(a) factors. Id. at 575.

Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal. See id.; see also Lindsay C. Harrison, Appellate Discretion and Sentencing after Booker, 62 U. MIAMI L. REV. 1115, 1136 (2008). The Court also required a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.

So how does this policy disagreement work? The court provides a helpful recipe:

Consideration of a policy statement is among the factors under Section 3553(a). Disagreement with the policy should be considered along with other factors. See id. After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived. Id.

Pop quiz: what kind of error is a district court's mistaken belief that it cannot vary based on policy disagreements with the Guidelines? Procedural error. Don't forget to object if the district court makes that mistake in one of your cases, lest you get saddled with plain error review on appeal.

Guidelines Calculation Error Doesn't Require Reversal If Sentence Didn't Result From That Error, Plus More on Plain Error

United States v. Ruiz-Arriaga, No. 08-40242 (5th Cir. Apr. 9, 2009) (Jones, Wiener, Benavides)

We know that, when imposing sentence, the district court must correctly calculate the advisory Guidelines range. Let's say the court gets the Guidelines calculation wrong, but says something along the lines of, "Even if the Guidelines range was different, I would still impose a sentence of X months, for the following reasons . . . ." Does the procedural error require vacation of the sentence?

Not necessarily. The Fifth Circuit recently clarified that a procedural error does not require reversal if the error was harmless, meaning that the error did not affect the sentence imposed. That's essentially what Ruiz-Arriaga holds, although it couches the matter in slightly different terms.

In this case, Ruiz pleaded guilty to illegal reentry. He had a prior Texas conviction for sexual assault of a child. The PSR recommended a 16-level COV enhancement for that prior conviction, producing an advisory range of 46 to 57 months. Ruiz objected to the enhancement (the details of which the opinion doesn't explain), arguing that the correct range was 10 to 16 months (presumably based on treating the sexual assault prior as a 4-level "any other felony" under §2L1.2(b)(1)(D), although the opinion doesn't explain that, either). The district court overruled the objection and sentenced Ruiz to 46 months, explaining that,

in the event that the court is incorrect about the guideline range, that a sentence at certainly something more than 10 to 16 months, which if the court were wrong is what—I haven’t recalculated, but that’s what [defense counsel] says would be the range. The court believes that a sentence of 46 months in custody would be reasonable, even if the court is not correct about the guideline range.

Ruiz appealed. Without addressing whether the district court erred in applying the 16-level enhancement, the court of appeals concluded that any error was harmless:

As we noted in United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008), “[n]ot all errors in determining a defendant’s guideline sentence require reversal.” Id. at 656. Where the district court “considered the possible guideline ranges that might apply to the defendant with and without a disputed enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense.

Of course, this brings up the question of just how much 3553 explanation is necessary to avoid a causal link between a Guidelines-calculation error and the sentence imposed. It must be more than the above quote from the district court, because the opinion also mentions that "[d]uring the sentencing hearing, the district court stated that it had considered the non-enhancement range offered by the defense and would have imposed the same sentence independently of the Guidelines in light of the seriousness and recent nature of the statutory rape conviction." So an explanation stating simply that "this court would impose the same sentence even if it is wrong about the applicable Guidelines calculation" shouldn't cut it. The district court must still address the defendant's argument, and provide 3553-based reasons for the alternative non-Guidelines sentence.

And in keeping with a recent theme, the opinion offers another sign that the Fifth Circuit is getting stricter about plain error review. Although Ruiz argued in the district court that the correct advisory range was 10 to 16 months, he argued on appeal that it was actually 8 to 14 months due to an error in the criminal history calculation. As Ruiz didn't make the argument below, plain error review applied. Quoth the court:

First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel now disavows. Trial counsel’s misstatement essentially waives the argument for any other sentencing range in this appeal. It is well established that appellate courts may correct errors of law under a plain standard where trial counsel simply stood mute at sentencing and failed to object to the PSR. . . . This is because a “plain” error is one that the district court, in its oversight of sentencing, should have been alert to correct. Sentencing under the Guidelines is so complex, however, that the court should not be faulted for “plain” error when counsel’s affirmative statements allay any possible concern.

(emphasis added). Plus, no prejudice: "It is hardly likely that the court would have responded differently to a two month difference in range when it so clearly rejected the slightly higher range."

Prior Conviction for Conduct In Furtherance of Drug Conspiracy Can Be Used to Enhance Sentence for Later Conviction In Same Conspiracy

United States v. Moody, No. 07-11222 (5th Cir. Apr. 6, 2009) (Smith, Southwick, Engelhardt)

Let's say a defendant gets convicted of a charge arising out of his participation in a drug conspiracy, serves his sentence, rejoins the same conspiracy, and gets convicted of conspiring to possess more than 50 grams of crack with the intent to distribute it. Under 21 U.S.C. § 841(b)(1)(A), does the prior conviction elevate the statutory minimum from 10 years to 20 years? Yes:

Our sister circuits have held that prior convictions for conduct in furtherance of a conspiracy can be used to enhance the statutory penalty for a later arrest under the same conspiracy. We agree and also conclude that an earlier conviction from the same conspiracy can be used to enhance mandatory minimums. A defendant should not benefit in sentencing because he continued in a criminal enterprise even after he was already arrested and convicted for the same enterprise. “[T]he purpose of the mandatory minimum enhancement is to target recidivism . . ., [and] it is more appropriate to focus on the degree of criminal activity that occurs after a defendant’s conviction for drug-related activity is final rather than when the conspiracy began.” United States v. Garcia, 32 F.3d 1017, 1019-20 (7th Cir. 1994) (citation omitted).

The opinion does not address the potential double jeopardy implications of this holding.

By the way, there's some inaccurate language about reasonableness review that you need to be aware of. Before addressing the § 841 enhancement issue, the opinion says this:

Sentencing guideline decisions are reviewed for abuse of discretion. See United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). “Though we review a sentence for abuse of discretion, we review the district court’s application of the guidelines de novo and its findings of fact at sentencing for clear error.” Klein, 543 F.3d at 213(citation omitted). “An error in applying the guidelines is a significant procedural error that constitutes an abuse of discretion.” Id. (citation omitted).

That's incorrect for a couple of reasons. First, reasonableness review has nothing to do with whether § 841 authorizes an enhanced sentence in these circumstances. That's simply a matter of statutory interpretation to be reviewed de novo (assuming the issue was preserved below, which it appears to have been). Second, it is an incorrect statement of how reasonablness review operates. Rowan did not say that sentencing guideline decisions are reviewed de novo; it said "We review District Court sentencing decisions for abuse of discretion. Gall, 128 S. Ct. at 597[,]" before going on to explain the bifurcated review process Gall established (and which another panel explained again recently in Delgado-Martinez). Moreover, it doesn't make sense to say that guideline decisions are reviewed for abuse of discretion and to then say that guideline application issues are reviewed de novo (for legal issues) and for clear error (for factual issues). So the first sentence should just say "sentencing decisions," rather than "sentencing guideline decisions."

Unfortunately, the court makes the same mistake a few paragraphs later when it addresses a guideline issue that the same defendant raised:

We review guideline decisions, whether inside or outside the guideline range, for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 597 (2007). “In performing that review, we are ‘first [to] ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.’” United States v. Williams, 517 F.3d 801, 808 (5th Cir. 2008) (citing Gall, 128 S. Ct. at 597) (quotations and ellipses omitted). Findings of fact are reviewed for plain error; legal conclusions, de novo. See United States v. Villanueva, 408 F.3d 193, 202 (5th Cir. 2005).

Although the court cites Gall in this paragraph, rather than Rowan, it's still incorrect. Here's what Gall said:

Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (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. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.

Thus, abuse-of-discretion is the standard of review at step two when the court of appeals evaluates the substantive reasonableness of the sentence, it is not the standard for determining whether a district court committed procedural error in the Guidelines calculation.

More On Reasonableness Review, Plain Error, Failures to Explain, Policy-Based Variances, and the Presumption of Reasonableness

United States v. Mondragon-Santiago, No. 07-41099 (5th Cir. Mar. 26, 2009) (King, Dennis, Elrod)

Our circuit's really been on a sentencing tear lately, issuing a lot of opinions explaning the ins-and-outs of reasonableness review. This one's especially dense, covering:

• a failure to adequately explain a within-Guidelines sentence (which nevertheless doesn't merit vacation of the sentence on plain error review),
• a circuit split over how to apply the third plain error prong in sentencing appeals,
• district courts' ability to vary from the Guidelines based on policy disagreements, and
• whether a guideline's lack of empircal basis deprives the resulting within-Guidleines sentence of a presumption of reasonableness.

Let's set the stage: Mondragon pleaded guilty to illegal reentry. A prior aggravated assault conviction earned him a 16-level COV bump, and several criminal history points, ultimately producing a Guidelines range of 46 to 57 months. Mondragon sought a below-Guidelines sentence, arguing 1) that the range overstated the seriousness of his criminal history and "exaggerated his propensity to commit crimes[,]" and 2) several facts relevant to § 3553(a) considerations also warranted a lower sentence.

The district court heard these arguments, engaged in a brief colloquy with defense counsel regarding Mondragon-Santiago’s failure to observe the conditions of his probation, and then allowed the defendant to speak for himself. After hearing Mondragon-Santiago state that he needed to be with his family, the district court asked him how he would accomplish that goal without entering the United States illegally. Mondragon-Sandiago responded that he would not be able to see his family if the government would not let him enter the country. The district court suggested that maybe his family could visit him, and then imposed a sentence of fifty months of imprisonment followed by three years of supervised release. Mondragon-Santiago’s attorney objected on the grounds that the sentence was “greater than necessary.” The district court overruled the objection. Mondragon-Santiago appealed.

Procedural Error: District Court's Failure to Adequately Explain Sentence Was Error, That Error Was Plain, But Mondragon Did Not Show That the Error Affected His Sentence

Mondragon argued that the district court's explanation of the sentence was inadequate. But what standard of review to apply? After the sentence was imposed, Mondragon objected that it was greater than necessary. But he did not object to the inadequate explanation of the sentence. Hence, plain error review of this claim of procedural error. (So remember folks: an objection that the sentence is greater than necessary will not preserve a claim of procedural error.)

Moving on to the first prong of plain error review, the court found the district court's explanation inadequate:

In Rita, Rodriguez, and Gomez-Herrera, the sentencing court acknowledged that § 3553(a) arguments had been made and devoted a few words to rejecting them. In Bonilla, the sentencing court referred to arguments previously made and to the report, thereby incorporating that reasoning into her decision, in which she explicitly noted her consideration of the sentencing factors. Unlike in these cases, the district court in this case did not give any reasons for its sentence beyond a bare recitation of the Guideline’s calculation. This despite the fact that Mondragon-Santiago raised arguments before the district court concerning his family, his work history, and his prior convictions, all of which are relevant considerations under § 3553(a). The district court did not mention Mondragon-Santiago’s arguments, and the court’s statement of reasons did not further illuminate its reasoning. The total explanation of the court was as follows: “This is an Offense Level 21, Criminal History Category 3 case with guideline provisions of . . . 46 to 57 months. The defendant is committed to the Bureau of Prisons for a term of 50 months. He will be on supervised release for a term of three years . . . .” The district court then overruled without explanation Mondragon-Santiago’s objection that the sentence was “greater than necessary.” We conclude that the district court failed to adequately explain its reasons for the sentence imposed as required by § 3553(c), which is error under Rita.

What's more, the error was plain because "the law requiring courts to explain sentences is clear." But did it affect Mondragon's substantial rights? The Mares standard, which the Fifth Circuit borrowed from the Eleventh, requires "the defendant to show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon argued "that the district court’s error affected his substantial rights because it makes meaningful appellate review impossible." Although two circuits have adopted that argument when reviewing outside-the-Guidelines sentences, "our circuit precedents foreclose this argument so far as within-Guidelines sentences are concerned." Mondragon could not show that a better explanation would have changed his sentence, so the error did not affect his substantial rights.

(Note that the court highlights a possible circuit split on the third plain error prong. The Fifth Circuit requires the error to affect the outcome, but according to the court, "other circuits have relaxed this requirement in the sentencing context[.]" Query whether the Supreme Court's recent decision in Puckett has any effect on that split.)

Substantive Reasonableness: District Court May Vary from Illegal Reentry Guideline Based on Policy Disagreement, But That Guideline's Lack of Empirical Basis Doesn't Deprive It of a Presumption of Reasonableness

Mondragon also asked the court for a summary remand so that the district court could reconsider his sentence in light of Gall and Kimbrough, which were decided after he was sentenced. Those cases make clear that a court may disagree with the Guidelines based on policy, and also when the particular circumstances warrant it (even if the circumstances aren't extraordinary). Prior to Gall and Kimbrough, the Fifth Circuit had held both that a sentencing court may not vary from the Guidelines based on a factor that the Guidelines already take into account (Sanchez-Ramirez), and that a district court may not vary based on policy disagreements with the Guidelines (Tzep-Mejia, Rodriguez-Rodriguez). The court acknowledges that "[w]ith some justification, [Mondragon] claims that the district court was not free to accept his argument that the Guidelines double-counted his prior felony conviction because the court was not free to depart from the Guidelines for policy reasons." Nevertheless, the court concludes that Mondragon "fail[ed] to show how this influenced his case[,]" because nothing in the record indicated that the district court wanted to vary on policy grounds, but felt constrained by then-controlling precedents. "Thus, on this record, we refuse to convert a hypothesis into evidence of an abuse of discretion. Accordingly, Mondragon-Santiago is not entitled to relief on that basis."

(That's very questionable. It would make sense if the court were reviewing the substantive reasonableness of Mondragon's sentence for plain error, but it wasn't. Mondragon preserved his argument, and the court reviewed for abuse of discretion. If the district court was operating under what we now know were incorrect precedents, don't we have more than a merely hypothetical abuse of discretion, particularly given the district court's clearly erroneous failure to address the arguments Mondragon made for a lower sentence?)

Mondragon next argued that a sentence imposed under guideline §2L1.2 should not enjoy a presumption of reasonableness, because, just like the crack guideline at issue in Kimbrough, the illegal reentry guideline lacks an empircal foundation. The court, as it has done before, refused to read Kimbrough as having anything to do with the presumption of reasonableness: "Even if the Guidelines are not empirically-grounded, the rationale of Rita undergirding the presumption still holds true: by the time an appeals court reviews a Guidelines sentence, both the Sentencing Commission and the district court have fulfilled their congressional mandate to consider the § 3553(a) factors and have arrived at the same conclusion."

But significantly, the court recognized that Kimbrough is more than it's cracked up to be, as it "allow[s] district courts, in their discretion, to consider the policy decisions behind the Guidelines, including the presence or absence of empirical data, as part of their § 3553(a) analyses." Also, "[i]n appropriate cases, district courts certainly may disagree with the Guidelines for policy reasons and may adjust a sentence accordingly."

Of course, that brings up the elephant in the living room: what about varying based on fast-track disparity? The Fifth Circuit held that such variances are verboten in United States v. Gomez-Herrera. Look at it this way: Gomez-Herrera was decided after Kimbrough, but before Spears, in which the Supreme Court said, "Remember Kimbrough? We meant it." So in light of Spears and Mondragon-Sanchez, it may be time to start taking another run at the fast-track-disparity issue (not to mention the fact that there's a circuit split on it).

Break Out Your Dancin' Boots: Fives Clarify That Reasonableness Review Is Two-Step Process: Review Procedure First, Then Substance

United States v. Delgado-Martinez, No. 08-50439 (5th Cir. Apr. 6, 2009) (Smith, Garza, Clement)

Have you found our circuit's pronouncements on post-Gall reasonableness review a little unclear? Then rejoice, for Delgado-Martinez explains cleanly and crisply just how sentences are reviewed these days. Here 'tis (with citations omitted for readability's sake):

Prior to the Supreme Court’s decision in Gall, as long as a sentence fell within the properly calculated range, we applied a “presumption of reasonableness” to the sentence regardless of any calculation error. Under this framework, we required the party complaining of the calculation error to rebut the presumption of reasonableness, and we applied a high degree of deference to the district court’s initial decision. The government contends that this framework survived Gall. We disagree.

Gall unequivocally established a bifurcated review process: At step one, the appellate court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range . . . .” If the sentence is determined to be “procedurally sound,” then the appellate court moves on to step two—reviewing the sentence for substantive reasonableness. Our pre-Gall analysis conflates these two distinct steps. By applying a presumption of reasonableness to sentences involving acknowledged procedural errors, our prior approach contravenes Gall’s directive to treat the two steps as sequential, dispositive inquiries. In most cases, a significant procedural error will prevent our review of the sentence for substantive reasonableness.

Nonetheless, not every procedural error will require outright reversal. While Gall itself is silent on this point, we agree with several of our sister circuits that certain “harmless” errors do not warrant reversal. A procedural error during sentencing is harmless if “the error did not affect the district court’s selection of the sentence imposed.” [The familiar Williams standard.] The burden of establishing that an error is harmless rests on the party seeking to uphold the sentence: The proponent of the sentence “must point to evidence in the record that will convince us that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error made in arriving at the defendant’s guideline range.”

In summary, regardless of whether the selected sentence happens to fall within the properly calculated Guidelines range, we adhere to the following review process: We first consider whether the district court committed a significant procedural error as defined by Gall. If the court has committed such an error, we must remand unless the proponent of the sentence establishes that the error “did not affect the district court’s selection of the sentence imposed.” If we are satisfied that the error was in fact harmless, we then (and only then) proceed to Gall’s second step and review the substantive reasonableness of the sentence imposed.

Let's take a gander at how that played out here. The district court incorrectly calculated the advisory Guidelines range---a "significant" procedural error per Gall---as 30 to 37 months. The correct range was 24 to 30 months. Delgado was sentenced to 30 months. The Government argued that the error was harmless because that sentence falls within both the correct and incorrect ranges. Not so, said the court:

[T]he crux of the harmless-error inquiry is whether the district court would have imposed the same sentence, not whether the district court could have imposed the same sentence. While the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.

Here, the district court said a sentence at "the bottom of the guidelines" would be fair and reasonable, indicating that it "consciously selected from the low end of what it believed to be the available range." Nothing otherwise suggested that the district court would have imposed the same sentence had it been working with the correct range, so the Guideline calculation error was not harmless. Thus vacation and remand.

Revocation Sentence Vacated as Plainly Unreasonable; Panel Purports to Limit Holding to Cases "Indistinguishable . . . In All Material Respects"

United States v. Willis, No. 08-10018 (5th Cir. Mar. 24, 2009) (Jolly, Smith, Owen)

In 1998, Willis was convicted of two counts of being a felon in possession of a firearm. "The two counts were premised on Willis’s simultaneous possession of two firearms and were, therefore, multiplicitous in violation of the Fifth Amendment’s prohibition against double jeopardy." Unfortunately, Willis never objected to the indictment, and he did not raise the issue on direct appeal or in two subsequent § 2255 petitions.

After serving his sentences on the two counts---which ran concurrently---Willis commenced serving two concurrent terms of supervised release. He violated, and was revoked. Willis raised the multiplicity argument at the revocation hearing, asking that a sentence be imposed for just one of the revoked terms. The district court rejected Willis's argument, and sentenced him to two consecutive 24-month terms of imprisonment.

Willis appealed. He did not challenge the underlying convictions or sentences; as the court points out, "[i]t is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence." Instead, Willis argued that the second of the two revocation sentences was unreasonable because it was multiplicitious.

The court held that the second sentence was plainly unreasonable (and, for that reason, declined for at least the second time "to decide whether to subject revocation sentences to the 'unreasonable' or the 'plainly unreasonable' standard of review"):

There is no question but that the second revocation sentence is multiplicitous in its own right. We do not hold, however, that the second revocation sentence is not a legal sentence. That revocation sentence stems from one of the two original sentences; that original sentence, which Willis has already served, remains undisturbed and therefore legal. If the original sentence is legal, then the revocation sentence, which depends upon it, is also legal. Our opinion does not question the revocation sentence’s legality.

We question instead the mere fact of the second revocation sentence, which would require that Willis serve two revocation sentences, consecutively, as a penalty for what all parties now agree was only one offense. The second revocation sentence would therefore have the practical effect of incarcerating Willis for an additional twenty-four months. We especially note that the original sentence, including the term of supervised release, was imposed to run concurrently. The fact of its multiplicity, although legal, is, under all circumstances present, plainly unreasonable.

Intriguingly, the court goes on to not only emphasize the narrowness of its holding, but also to "limit the precedential value of our holding to cases presenting indistinguishable facts in all material respects." Which of course prompts two questions: 1) Can a panel (or even the court sitting en banc, for that matter) do that? 2) Given the narrowness of the holding, is such a purported limit even necessary?

Ninth Weighs In On Circuit Split: No Objection Required In District Court to Preserve Substantive Reasonableness Challenge

United States v. Autery, No. 07-30424 (9th Cir. Feb. 13, 2009) (Thompson, Smith; Tashima, concurring in part and dissenting in part)

Remember that circuit split over reasonbleness review and plain error? Courtesy of our colleagues at the Ninth Circuit Blog (here and here), we learn that the Ninth Circuit has weighed in on that question. Much like the Sixth Circuit in Vonner---and, curiously, without ever mentioning Vonner---the Nines draw a distinction between procedural errors and substantive reasonableness: an un-objected-to procedural error is reviewed for plain error, whereas "the substantive reasonableness of a sentence—whether objected to or not at sentencing—is reviewed for abuse of discretion." In so holding, the Ninth Circuit expressly disagreed with our own circuit's contrary decision in Peltier, instead finding the Seventh Circuit's reasoning more persuasive:

In Castro-Juarez, the Seventh Circuit reasoned that “[t]o insist that defendants object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection-probably formulaic-in every criminal case.” 425 F.3d at 433-34. “Since the district court will already have heard argument and allocution from the parties and weighed the relevant § 3553(a) factors before pronouncing sentence,” the court reasoned, “we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way.” Id. at 434.

Autery also takes issue with Peltier's head-counting on the circuit split:

In Peltier, the Fifth Circuit acknowledged that the Seventh Circuit held that a defendant need not object at sentencing to the reasonableness of his sentence to preserve the issue for review, and then stated that various other circuits have taken a contrary view. 505 F.3d at 391. In support of this latter point, the court cited decisions from the Second, Sixth, Tenth, Third, and Ninth Circuits. Id. at 391 n.5. In so doing, however, the Peltier court apparently mistook the holdings of some of those cases, conflating substantive reasonableness with the procedural failure to consider the § 3553(a) factors, discussed supra. See id.

It's a safe bet that this issue will make its way to the Supreme Court eventually. How soon that will happen is hard to say. (See how easy it is to make a prediction that, at any given point in time, can't be wrong?) Autrey won't be the vehicle, though. You see, the Government was the appellant in Autery, and it failed to object to the substantive reasonableness of the sentence in the district court. Although the Government loses in Autrey---because the Ninth Circuit affirms the sentence two votes to one---it obviously won't be petitioning for en banc review or cert on the ground that its challenge to the sentence should have been reviewed for plain error, rather than an abuse of discretion. It's rather elegant, isn't it?

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.

Erroneous Relevant Conduct Finding Requires Vacation of Sentence, Even Though Defendant Received Downward Departure

United States v. Ekanem, No. 06-11407 (5th Cir. Jan. 7, 2009) (Wiener, Garza, DeMoss)

As this case nicely illustrates, relevant conduct liability is broad, but not unlimited, and must be supported by reliable evidence. But perhaps more importantly, the case shows that a sentence may be vacated due to a guidelines calculation error---a "significant procedural error" according to Gall---even though the defendant received a downward departure to a point falling within what would have been the correctly calculated range.

Ekanem, who owned and operated a medical supplies company, "engaged in a fraudulent scheme to provide patients with motorized scooters while billing Medicare for more expensive motorized wheelchairs." For that, he was convicted of five counts of health care fraud, in violation of 18 U.S.C. § 3147.

In determining the Guidelines loss-amount at sentencing, the district court found Ekanem responsible not only for the losses he directly caused, but also for the losses caused by a similar scheme orchestrated by the man who, among other things, helped Ekanem set up his supply business:

Here, the district court found that Ekanem entered into “a jointly undertaken criminal activity with Mendus Medical which is owned by Mr. Usanga.” Thus, the court determined that the financial losses caused by Mendus Medical were relevant conduct attributable to Ekanem and increased Ekanem’s offense level accordingly. . . . The government points to the following record evidence in support of the district court’s finding: (1) Usanga helped Ekanem set up and establish Rooster; (2) Usanga allowed Ekanem to use Mendus Medical’s supplier number when Rooster’s was temporarily revoked; (3) Rooster issued checks to Usanga for “appreciation,” “finder’s fee,” and “assistance” totaling approximately $18,000; (4) Rooster and Mendus Medical used some of the same doctors in their schemes; and (5) on at least one occasion the two companies “swapped” Certificates of Medical Necessity (“CMN’s”).

Ekanem successfully challenged that relevant conduct finding on appeal:

Our review of these facts and the record as a whole persuades us that the district court erred in determining that Ekanem entered into a jointly undertaken criminal activity regarding Mendus Medical. At most, the evidence establishes that Usanga provided start-up and operational support to Rooster, for which Ekanem compensated Usanga with “appreciation” fees, and that Rooster and Mendus Medical ran similar schemes. However, there is no indication that Ekanem agreed to jointly undertake in the distinct business of Mendus Medical. There is no evidence that Ekanem assisted in the planning, provided material support, or shared in the profits of Mendus Medical. No payments were made from Mendus Medical to Ekanem. Moreover, the investigating agent specifically acknowledged that the government lacked any evidence that Ekanem was “in anyway responsible for the operation of Mendus or of Mr. Usanga.”

As a nearly identical example from the relevant conduct guideline's commentary explains, mere knowledge of another's identical criminal scheme is not sufficient to hold the defendant responsible for that other person's actions. Thus, the district court's finding was erroneous.

And now for the "perhaps more importantly" part that I mentioned at the beginning. The district court's findings produced an advisory Guidelines range of 121 to 151 months. Ekanem was the beneficiary of a downward departure to 120 months, which fell within the correctly calculated range of 97 to 121 months. So, no harm no foul, right? Wrong: "as we cannot 'discern from the record whether the sentencing judge would have imposed the same sentence had he been departing from the [properly calculated] range,' we are required to remand." (alteration in Ekanem). Or, to put it in Gall terms, the district court's erroneous Guidelines calculation was a "significant procedural error" that prevented the court of appeals from being able to review the substantive reasonableness of the sentence, thus requiring remand.

Fives Affirm 548-Month Sentence for First-Time Offender, But Criticize Government for Jacking Sentence So High By Stacking 924(c)'s

United States v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (per curiam) (Reavley, Jolly, Garza)

Five-hundred forty-eight months. That's the sentence fifty-three year-old, first-time offender Mary Beth Looney received after a jury found her guilty of conspiracy and substantive meth crimes, as well as a couple of 924(c)'s. Why so high? As the court explains,

[b]ecause of the way the indictment was stacked by the prosecutor, Ms. Looney was subject to mandatory minimum terms of imprisonment for forty years (ten years for the drug conspiracy and possession with intent to distribute counts, five consecutive years for the first gun count, and twenty-five consecutive years for the second gun count). Although thirty years of her sentence can be attributed to possessing guns in furtherance of her methamphetamine dealing, there is no evidence that Ms. Looney brought a gun with her to any drug deal, that she ever used one of the guns, or that the guns ever left the house.

(The extra sixty-eight months were evidently the result of various Guidelines calculations, as the court refers to this as a within-Guidelines sentence.)

Looney appealed her sentence, raising three arguments. First, she argued that the sentence was procedurally unreasonable, because the district court treated the Guidelines as mandatory and failed to provide an adequate statement of reasons for the sentence. The court of appeals disagreed. It pointed to the written statement of reasons, which recited "that the Guidelines were 'advisory only.'" It also found the district court's apparently minimal statement of reasons sufficient, citing the passage from Rita opining that little explanation is required for a within-Guidelines sentence. "And since Ms. Looney did not make any argument [that hers was an atypical case warranting a below-Guidelines sentence], the district court did not need to explain why it did not find a non-Guideline sentence necessary."

Second, Looney argued that her sentence violated the Eighth Amendment because it was grossly disproportionate to her crimes. The court rejected this argument as well, which is not surprising given the Supreme Court's Eighth Amendment jurisprudence. The court nevertheless added that "although we consider Ms. Looney’s sentence to be unduly harsh for someone who has no previous conviction of any sort, [i]t is for Congress to ameliorate the result of application of[statutory mandatory minimum sentences] if it deems it too harsh." (quotation marks and citation omitted).

Third, Looney argued that one of the 924(c)'s should have been dismissed. One count was based on possession of two guns in furtherance of the conspiracy to PWID meth, and the other was based on possession of the same two guns in furtherance of the PWID. Looney argued that "she cannot be sentenced for two § 924(c) gun offenses when one of the predicate offenses is conspiracy to commit crime X and the other offense is just crime X." Unfortunately, the Fifth Circuit held otherwise in United States v. Privette, 947 F.2d 1259 (1991).

Having decided to affirm Looney's sentence, the court took the opportunity to editorialize on a particularly heavy-handed exercise of prosecutorial discretion:

We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it. As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years -- essentially determined by Congress. Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count. The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion -- rather poorly we think -- to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.

We do not question the authority -- or the wisdom -- of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence. Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence. For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat -- rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences. We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.

The opinion also includes the court's rejection of Mr. Looney's appeal of the denial of his suppression motion. That discussion doesn't break any new ground, so I won't summarize it here. But keep it in mind if you're looking for a quick summary on the law concerning challenges to search warrants based on false statements in the supporting affidavits.