Friday, April 10, 2009

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).

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