No Need to Remand Me

United States v. Elbert, No. 10-72-cr (2d Cir. September 19, 2011)(Jacobs, Cabranes, CJJ, Kravitz, DJ)

A recent anomaly in circuit practice has been its treatment of cases where the district court did not provide a written statement of reasons for the sentence that complies with 18 U.S.C. § 3553(c)(2). In cases where appellate counsel files a merits brief, counsel can waive a remand for a statement of reasons. But, where counsel files an Anders brief, under United States v. Hall, 499 F.3d 152 (2d Cir. 2007), failure to provide a statement of reasons always necessitates a remand.

Until now. This decision abrogates Hall to the “limited extent that it uniformly require remand in these circumstances.” Hall was based on the court’s understanding that the statement of reasons “assists” the BOP and the Sentencing Commission “in the collection of data.” While that is “no doubt for the good,” its effect is to require appellate counsel to seek a remand when “a remand would be of no benefit for the client” or “the court.” All Hall does is “set[] the lawyer to work for the” BOP and the Commission, and “doing a futile job of it in any event.” Thus, the bright line rule of Hall “may undermine, rather than serve, the goals of vigorous representation” that underlie the Anders brief procedures.

In a case where the absence of a written statement could benefit the client, counsel can seek a remand. But a bright line rule is not necessary to effectuate this, particularly since there might be situations where a remand for a written statement of reasons would be “detrimental to a defendant,” such as where the statement would memorialize the defendant’s cooperation or other information he would not want disseminated. “Requiring a defendant’s lawyer to elicit such information goes against the grain of advocacy.”

Even in the context of an Anders brief, then, counsel should “make an independent judgment as to whether deficiencies in a written statement of reasons present a non-frivolous appellate issue.”

An Exercise in Frivolity

United States v. Davis, No. 08-3240-cr (2d Cir. March 15, 2010)
(Winter, Sack, CJJ, Cogan, DJ)

Davis pled guilty to a two-count child pornography indictment. He faced a 60-month mandatory minimum and a guideline range of 97 to 121 months’ imprisonment. At sentencing, he argued forcefully for a 60-month sentence, focusing on his age and health problems as well as his conduct - he had no contact with a child, and did not distribute the images. The court sentenced him at the bottom of the range, noting “I see no reason to deviate form the ranges that are set forth in the Sentencing Guidelines.”

On appeal, he argued that the sentence was procedurally unreasonable because the district court treated the guidelines as presumptively reasonable, and that it was substantively unreasonable for largely the same reasons he cited in the district court. The government, in response, did not file an opposition brief. Instead, it moved for summary affirmance. The circuit denied the motion and issued this opinion to explain its reasons.

The court began by noting that summary affirmance, as opposed to full merits briefing, is discretionary on the part of the appellate court and should be treated as “a rare exception to the completion of the appeal process.” It is a “short-cut” and, given the stakes involved, is only available if an appeal is truly “frivolous.” In criminal appeals, in particular, the decision to characterize a case as frivolous is “particularly perilous.”

Next, the court defined “frivolous” - an appeal is frivolous when it “lacks an arguable basis either in law or in fact.” That a “correct resolution of [the] appeal seems obvious” is not enough. Rather, a case is frivolous only where the legal conclusions are “inarguable” or the factual allegations are “fanciful.”

Here, the panel did not think that Davis’ appeal was frivolous. His procedural claim rested on a “close reading of the language used by the district court.” He argued that the court’s statement that it found “no reason” to give a non-Guideline sentence suggested that it was operating from the presumption that a guideline sentence would be reasonable. While the panel did not rule on whether this interpretation of the district court’s statement was correct, it concluded that it was neither “inarguable nor totally devoid of support.”
Thus, while the panel did not need to reach Davis’ arguments on substantive reasonableness, it observed nonetheless that those arguments were also non-frivolous. His claim t that the district court’s sentencing decision reflected an insufficient consideration of some of the statutory factors was “not so completely baseless as to be frivolous.”

The court accordingly denied the motion for summary affirmance and directed the clerk to set a briefing schedule.

Comment

This decision, while procedurally anomalous, is nevertheless quite important because of its impact on Anders briefs. It sets a very high bar for frivolousness, and should cause all counsel who are considering filing an Anders brief to think very carefully about whether there might be some view of the record, no matter how weak, that would lend itself to a merits brief instead.

Follow The Bouncing Anders

United States v. Whitley, Docket No. 05-3359-cr (2d Cir. September 17, 2007) (Straub, Pooler, Parker, CJJ) (per curiam)

Once – or rather twice - again, in these consolidated appeals, the Circuit has bounced Anders briefs. Here the court was dissatisfied with the briefs’ treatment of the reasonableness of the sentence. One “merely recite[d] the legal standard for procedural reasonableness and desribe[d] the sentencing process” but did not analyze either the procedural or substantive reasonableness of the sentence itself. The other made conclusory statements about the reasonableness of the sentence but did not analyze the district court’s sentencing determinations or the sentence itself.

After reviewing the purposes of Anders briefs, the court held that such briefs must include a discussion of both the substantive and procedural reasonableness of the sentence, reminding the bar that there is no presumption of reasonableness for Guidelines sentences in this Circuit.

What is the lesson here? It will be a whole heck of a lot easier if appellate counsel avoids filing an Anders brief. Try not to do so unless the client got the sentence he asked for, or the mandatory minimum, or the appeal was waived by a plea agreement.

Tear Up That Anders Brief - The Court Has Found An Issue!

United States v. Hall, No. 05-6919-cr (2d Cir. August 30, 2007) (Calabresi, Raggi, Hall [no apparent relation], CJJ) (per curiam)

This case adds yet another wrinkle to the Circuit’s ever-evolving Anders jurisprudence. Here, the defendant appealed a below-Guidelines sentence and counsel filed a detailed Anders brief. In that brief, counsel correctly pointed out that the district court had omitted the written statement of reasons required by 18 U.S.C. § 3553(c)(2) but argued that any claim of error on this ground would be harmless, since the court gave adequate oral reasons.

Instead of granting Anders relief, however, the Court of Appeals remanded the case to the district court with instructions to include a written statement of reasons. The Court noted that the statement of reasons might affect way that the Bureau of Prisons treats the defendant, and thus directed counsel to remain on the case until the statement is filed. This will “ensure that the defendant has the benefit of counsel to review the written statement of reasons ... and ensure that no meritorious issues that arrive in connection with that written entry are overlooked.”