The Federal Corner - April 2010

"THE FEDERAL CORNER"

The Challenge of Convincing Federal Judges to Impose Sentences Below the Advisory Guidelines Range

F. R. (Buck) Files, Jr.

I have never tried to run a marathon, but every year an average of 20,000 runners go to Boston to run the world's oldest marathon. 26 miles and 385 yards is a long way to run. I have never tried to climb a mountain, but approximately 1,000 people have made it to the summit of Mount Everest - and, since 1921, more than 200 have died trying. 29,029 feet is a long way to climb. Marathon runners and mountain climbers are regularly challenged in what they do.

TCDLA members who represent defendants in the United States courts are confronted with a different kind of challenge: How do you convince a United States district judge -- who is philosophically married to the United States Sentencing Guidelines - to impose a sentence for your client that is below the advisory Guidelines range?

I remember November 1, 1987, when the United States Sentencing Guidelines became effective. I heard some federal judges mutter about congressional aides having more power than they did. Many judges were restless and frustrated by the sentencing restraints imposed upon them by Congress. And then something happened. Judges who were known for anguishing over sentencing decisions realized that the burden had been lifted from their shoulders. They didn't have to worry about whether probation or confinement was appropriate. All they had to do was determine the Guidelines range and impose a sentence within that range. There were, of course, the occasional departure motions, but there weren't enough of them to be a problem.

Then along came the Supreme Court and the Guidelines became the advisory Guidelines. SeeUnited States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Gall v. United States, 552 U.S. 38, 49, 128 S.Ct, 586, 169 L.Ed2d 445 (2007); United States v. Kimbrough, 552 U.S. 85, 111, 128 S.Ct. 558, 169 L.Ed2d 481 (2007); and, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203.

Although the Supreme Court has spoken with clarity in each of these opinions, federal judges seem to be confused as to what they should do in light of these cases; e.g, Judge Rudy Lozano of the United States District Court for the Northern District of Indiana, at a sentencing hearing, said this:

I attended a conference last year with regards to the Guidelines. And I was put on notice by the Congress, and by their staff members. As you know there has been a controversy where there was a Supreme Court case that talks about the Guidelines only being advisory. And we were put on notice by Congress that if we departed from them on a regular basis for no valid reason-I say valid, because I was looking to see if there is authority for doing that-that what Congress was going to do is come back and have mandatory minimums and everything.... So I don't have a problem with the departure, but I have to find some authority, some basis for it before I'm going to do it. Otherwise, I'm going to have some reluctance to go through with it.

United States v. Carter, 530 F.3d 565 (7^th Cir. 2008)

[Note: Judge Lozano went on to impose a sentence within the Guidelines range and a panel of the Seventh Circuit vacated the judgment and remanded the case for resentencing.]

So, as defense lawyers, what are we to do in an attempt to try to divorce these federal judges from their dependence on the Guidelines and convince them, in an appropriate case, that there is nothing wrong - but everything right - with imposing a sentence below the advisory Guidelines range? We should file a detailed response and an addendum to the PSR along with a sentencing memorandum, when appropriate. And I have a case for you to include in your next sentencing memorandum: United States v. Mendoza-Mendoza, ___ F.3d ___, 2010 WL 7466431 (4^th Cir. 2010). This case is important because it focuses on the role that the advisory Guidelines are to play in sentencing determinations.

Dario Mendoza-Mendoza was a Mexican citizen who had illegally reentered the United States after being deported, in violation of 8 U.S.C. § 1326. There was a 16-level increase in his offense level recommended in the PSR because he had been convicted of the North Carolina felony offense of taking indecent liberties with a child. At the time of his arrest on the federal offense, he was living with the woman who was the victim in the "indecent liberties with a child" case and they were the parents of two children.

At the sentencing hearing, Mendoza's lawyer argued that a Guidelines sentence was excessive because of the various facts which were peculiar to Mendoza's case. In response to that argument, Judge W. Earl Britt of the United States District Court for the Northern District of North Carolina stated:

I have determined, though I have not agreed with, that the guideline calculations are correct, and unless I find a reason for a departure from those guidelines, or a variance based on 18 U.S.C. section 3553, then I am obligated to pass a sentence within that guideline range. (Emphasis added)

Judge Britt assessed a sentence of 46 months imprisonment - which was within the advisory Guidelines range of 46-57 months - and Mendoza gave notice of appeal. On March 5, 2010, a panel of the United States Court of Appeals for the Fourth Circuit vacated the judgment and remanded the case for resentencing. United States v. Mendoza-Mendoza, ___ F.3d ___, 2010 WL 746431 (4^th Cir. 2010). Circuit Judges Wilkinson, Niemeyer and Davis heard the oral arguments in this case. The panel's opinion was written by Judge Wilkinson and Judge Niemeyer joined in the opinion. A separate opinion concurring in the judgment was written by Judge Davis. Judge Wilkinson's opinion contains, in part, the following:

[THE ROLE OF THE GUIDELINES IN SENTENCING DETERMINATIONS]

While it is clear that treating the Guidelines as mandatory is procedurally unreasonable after Booker, the precise role the Guidelines are to play in sentencing determinations has been a source of some confusion. In Rita, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203, the Supreme Court addressed the question of whether the Guidelines could be given presumptive weight. The Court held that an appellate court is allowed to presume that a district court's chosen sentence is substantively reasonable if it is within a correctly calculated Guidelines range. Id. at 351, 127 S.Ct. 2456. Rita was also clear, however, that a district court making the initial sentencing decision may not presume that the appropriate sentence in a given case will come from the Guidelines.

[THE RITA PRESUMPTION]

We shall refer to any presumption in favor of a Guidelines sentence as a 'Rita presumption.' The reason Rita presumptions are forbidden in sentencing courts is that they confer the force of law upon the Guidelines. See id. at 47, 50. Such a Rita presumption means that, unless there is an effective rebuttal, a sentencing court is obligated to pronounce a Guidelines sentence. Giving mandatory effect to the Guidelines in this way revives the Sixth Amendment problems Booker laid to rest. See Rita, 551 U.S. at 347, 351, 353, 127 S.Ct. 2456. Additionally, Rita presumptions at trial conflict with the reason Rita presumptions are allowed on appeal. An appeals court may presume a sentence within the Guidelines is reasonable because the sentencing court's independent judgment coincides with that of the United States Sentencing Commission, which bears responsibility for the Guidelines. If Rita presumptions were used at sentencing, appellate courts, as well as the Commission, would lose the benefit of a district court's individualized application of the Commission's general judgment. See id. at 350-51, 127 S.Ct. 2456.

[WHAT A RITA PRESUMPTION IS AND IS NOT]

Because the costs of sentencing review are significant, it is important to realize not only what an impermissible Rita presumption is, but also what it is not. First, it was no Rita presumption for the sentencing court here to use the Guidelines to orient its thinking. A court must consider and may be influenced by the Guidelines. The Supreme Court has been clear that the process of sentencing begins with correctly calculating the Guidelines sentencing range. Gall, 552 U.S. at 49, 128 S.Ct. 586. And although courts are free to depart from the Guidelines, they are expected to explain the basis of their disagreement. Nelson, 129 S.Ct. at 892. Indeed, 'a major departure should be supported by a more significant justification than a minor one.' Gall, 552 U.S. at 50, 128 S.Ct. 586. Similarly, while sentencing courts must always conduct an individualized assessment, they are permitted to provide more abbreviated explanations when they sentence within the Guidelines.

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Second, the district court does not apply a Rita presumption simply by selecting a Guidelines sentence in the case or by deeming it the most fitting or appropriate sentence for the case. After all, we may and do treat on appeal a district court's decision to impose a sentence within the Guidelines range as presumptively reasonable.

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For one thing, 'the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives.' Rita, 551 U.S. at 350, 127 S.Ct. 2456. Moreover, in devising the Guidelines, the Sentencing Commission 'examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time.' Id. at 349, 127 S.Ct. 2456;

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We therefore should hardly be surprised if Guidelines sentences are often reasonable, as Rita put it, at the 'retail' as well as the 'wholesale' level. Rita, 551 U.S. at 348, 127 S.Ct. 2456.

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Third, where an appellate court believes that a sentencing court did not treat the Guidelines sentence as presumptively applicable, then there is no Rita presumption and a remand should not follow-even if stray language in the sentencing court's discussion, standing alone, could give the impression that a presumption was used. See Puckett v. United States, ---U.S. ----, ----, 129 S.Ct. 1423, 1432, 173 L.Ed.2d 266 (2009); Lynn, 592 F.3d at 576-77 (procedural sentencing errors are subject to either harmless or plain error review). Sentencing courts are of course well advised to avoid words like 'presumption' and 'obligation.' But what matters on appeal is what a court actually did, not whether a remark here or there, removed from the larger con text in which it was made, is on some list of forbidden phrases.

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If the sentencing court did what it was supposed to do-hearing out both sides and making an individualized assessment in light of § 3553(a)-then it should be protected from claims of having applied a Rita presumption.

[APPELLATE COURTS DON'T PLAY "GOTCHA"]

It would be wholly contrary to the Supreme Court's conferral of discretion on trial courts if we were to play a game of 'Gotcha!' with respect to the sentencing transcripts we review. See Johnson, 445 F.3d at 345 (a sentencing court need not 'robotically tick through § 3553(a)'s every subsection.'). This appellate deference is especially appropriate when Guidelines sentences are imposed because in such a case the judgment of the sentencing court and the judgment of the Sentencing Commission have converged. See Rita, 551 U.S. at 350-51, 127 S.Ct. 2456. To be sure, we review such sentences, like all others, for procedural error, but we do so under 'the deferential abuse-of-discretion standard of review that applies to all sentencing decisions' and only for error that is 'significant.' Gall, 552 U.S. at 51-52, 128 S.Ct. 586. Badgering district courts over minor procedural flaws simply fails to recognize the sense of responsibility that our colleagues on the district bench bring to the important task of sentencing.

[THE COURT'S VIEW OF JUDGE BRITT'S COMMENTS]

The comments to which Mendoza objects were not a 'mere passing reference,' somewhere in the middle of the sentencing discussion. Sayad, 589 F.3d at 1118 n. 3 (citation and internal quotation marks omitted). They came at the very out set, framing the entirety of the district court's explanation. And the words the court used were emphatic: the court declared that it was 'obligated' to impose a Guidelines sentence 'unless I find a reason for a departure from those guidelines, or a variance based on 18 U.S.C. § 3553.' Furthermore, the court pronounced a Guidelines sentence even though it had 'not agreed with' the range recommended by the Guidelines. Taken together, the language and context of these statements convince us that Mendoza's objection cannot be dismissed simply as hyper-sensitive second-guessing of the proceedings below.

Our review of the district court's comments leads us to believe that the district court accorded the Guidelines a quasi-mandatory effect, and that is impermissible under Rita. We are acutely conscious of the need to avoid overburdening district courts and ordering pointless remands, and we are compelled to re-emphasize that procedural remands do not carry some hidden appellate message of substantive unreasonableness. But there is a serious possibility the district court felt it was under an obligation to impose a Guidelines sentence, and we believe the prudent course is to remand this case to ensure that Mendoza's sentence, whatever it may ultimately be, is procedurally sound. In reviewing a sentencing determination, 'an appellate court may not guess at the district court's rationale,' Carter, 564 F.3d at 329, and we are left only to speculate as to whether the sentence herein was imposed as a matter of obligation or as an exercise of judgment.

MY THOUGHT

Run - don't walk - to your computer and download Mendoza-Mendoza. Then you will understand why I believe it to be such an important case for us.