Monday, May 14, 2007

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.

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