State of Disagreement

United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)

Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court.

Williams and Shuler sold crack together in Yonkers. They were first charged in state court, then the case was transferred to federal court. For reasons that are not clear, they were separately charged and their cases were handled by different district judges.

Williams was sentenced first, by Judge McMahon. He faced a 70 to 87 month range (now it would be 57 to 70 due to the crack guideline amendments) but the judge, persuaded by Williams’ attorney that the plea offer from Westchester County D.A.’s office’s would have been between 12 and 66 months, sentenced him to 36 months’ imprisonment. She characterized the disparity between the guideline range and the likely state sentence was “unwarranted.” Later, Judge Brieant sentenced Shuler. Although the judge had intended to impose a 70-month sentence, he instead gave him 40 months, to avoid a disparity with Williams.

The government appealed, and won. Focusing largely Williams, the circuit found the 36-month sentence to be procedurally unreasonable. First, the district judge erred by not treating the guidelines as a “starting point,” and by instead deciding to rely her “personal policy” of conforming to what she viewed as the likely state court sentence. The judge focused on the wrong disparity - § 3553(a)(6) is intended to eliminate disparity on a “national,” not a local, level.

The appellate court was also concerned with basing a federal sentence on the pleading policies of a particular district attorney, since New York has sixty-two of them. Such a practice could easily increase, rather than decrease, sentencing disparities within the federal districts in New York State. Finally, the circuit was concerned about the district court’s reliance on hearsay representations as to what would have happened in state court.

The court also vacated Shuler’s sentence, “if only because” it vacated Williams’. The court identified some other problems, however. While it agreed with Judge Brieant that avoiding disparities among “persons who are engaged in the same misconduct together” is permissible, the court was concerned that he relied too heavily on Williams’ sentence “without making his own assessment of an appropriate sentence.”

The court’s parting shot was to question the “assignment practice” that created Judge Briant’s “predicament.” “[I]t seems difficult on any score to justify the assignment of the Williams and Shuler cases to different judges.” The court suggested that, on remand, one judge take both cases.

On a brighter note, the court speculated that the “real reason” that Judge McMahon imposed such a low sentence was her “understandable desire to ameliorate” the federal crack-v-powder sentencing disparity. It reminded her that she has the discretion to do so on remand.

Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it - although he elected not to do so - and the opinion does not say whether the judge's belief was correct or incorrect.

The opinion does, however, hold that fast-track sentences in other jurisdictions do not “require” a lower sentence in non-fast-track districts under the parsimony clause. “[S]entences in fast-track districts cannot be compared with sentences in non-fast-track-districts in order to demonstrate that the latter are longer than necessary [because] the two are not directly comparable.”

Comment: This unfortunate decision actually creates more questions than it answers. We still do not know for sure whether a court can consider the fast-track argument. And now, because of the way this opinion is written, we also do not know for sure whether a court can consider the parsimony argument. Does this opinion mean that district courts are not “require[d]” to consider fast-track sentences under the parsimony clause, or that they cannot? It can be read either way.

Fast-Track Train Still Stalled

United States v. Ramirez-Sucar, No. 06-2909-cr (2d Cir. February 20, 2008) (per curiam)

Here is yet another case in which the circuit does not decide whether a district court can consider the lenient illegal-reentry sentences that are regularly imposed in “fast-track” districts as the basis for downward variance. Once again, all the court notes is that a district judge does not have to consider fast-track sentences. But, of course, we already knew that.

Comment: Just decide the *$&@#)$ issue already. It is not even all that controversial any more, in light of Gall and Kimbrough.

Breach Baby

United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)

In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility.

Facts: Defendant Michael Griffin pled guilty to possessing child pornography by using the file-sharing service Kazaaa. His plea agreement left open a number of disputed Guidelines issues, which were the subject of a lengthy evidentiary hearing, but stipulated that the government would not oppose a three-level acceptance of responsibility adjustment. Before sentencing, Griffin filed numerous objections to the Guidelines calculations in the presentence report; most pertinently, he denied knowingly possessing a particularly disturbing video known as “BabyJ,” and also denied telling the FBI, in a post-arrest statement, that he knew that the video had been on his computer.

In response to these objections, the government wrote to the district court and noted that it was “troubled by some of the defendant’s objections which seem to raise questions regarding whether the defendant has truly accepted responsibility.” The letter went on, however, to remind the court that the defendant had timely notified the authorities of his intention to plea guilty. In a subsequent, unsolicited, communication with the Court, the government took up this theme again, noting again that Griffin’s arguments were “troubling,” and, again, that the government questioned “whether the defendant has truly accepted responsibility.” This second brief contained a long discussion of the case law about acceptance of responsibility and it noted that a defendant’s guilty plea can be “outweighed by conduct that is inconsistent with acceptance of responsibility.” It concluded that it was “unclear” whether Griffin’s objections rose “to the level of outweighing his acceptance of responsibility,” but that they surely raised “questions on the issue of acceptance.”

During the sentencing hearings, which took place a few months after this briefing, the judge repeatedly warned the defendant that his apparently false denials relating to the BabyJ video and his post-arrest statements put his acceptance at risk. After the hearings, and just one day before sentencing, Griffin suddenly changed his position and “corrected” his previous statements. He admitted that he possessed a BabyJ video, and indicated that he might have told the FBI, although he did not recall for certain.

The district judge ultimately decided against applying the acceptance of responsibility adjustment, but indicated that he came to this position on his own, and was not influenced by the government’s briefing. Griffin received a 120-month sentence, the statutory maximum.

The Circuit’s Decision: The majority concluded that the government’s second letter was “beyond the pale,” and violated the plea agreement. First, the arguments Griffin made that triggered this response were “permitted by the plea agreement.” Moreover, the government’s extended discussion of the law of acceptance was not solicited by the court; rather, the government, “on its own initiative,” warned the court about the defendant’s “troubling” arguments and extensively reviewed the law surrounding acceptance of responsibility. The government’s letter also exceeded the bounds of the plea agreement, which only permitted it to correct inconsistencies in fact or law made by Griffin. Moreover, the government did nothing to retract its statements or ameliorate their impact. Although the government never expressly opposed the adjustment, it “could have done little more to attempt to persuade the court to deny it.” Finally, the majority was unimpressed by the district court’s disclaimer of reliance on the government’s statements; the appellate court did not want to have to speculate whether the court “was in fact influenced, even unconsciously.”

As it always does when the government has breached a plea agreement, the court remanded the case for resentencing before a different judge.

Comment: This case provoked an interesting debate between the dissent and the majority. Judge Wesley, in dissent, agreed that the government’s second communication to the court breached the plea agreement. His beef was with the majority’s choice of remedy, given that Griffin ultimately admitted that he had falsely denied important aspects of the relevant conduct. Judge Wesley acknowledged that since the government breached first, a later finding that Griffin lied after that initial breach would not render the breach harmless. But Judge Wesley saw this case differently. Griffin’s last minute change of position was, to Judge Wesley, an indication that Griffin had been lying along. Thus, Judge Wesley would have affirmed on a basic contract principle - Griffin did not bargain in good faith. “I am ... hard pressed to award defendant a remand in light of his acknowledged untruthfulness long before the government’s breach.” The majority’s response to this is actually fairly weak: it notes that the government “never made” this argument, and that there is “no authority” for Judge Wesley’s position.

This case is also interesting for what it does not say. Griffin raised a host of other issues - a Rule 16/due process argument based on the government’s refusal to turn over a copy of his hard drives, and challenges to certain enhancements that were based on his use of Kazaa. The majority ultimately ducked these, although Judge Wesley, perhaps imprudently, noted that he would have resolved them all in the government’s favor. With respect to the Rule 16 claim, the majority noted that last year’s Adam Walsh act contains provisions that address these matters; since similar Adam Walsh challenges have not yet reached any court of appeals “we think it better for the district court to address” the arguments first. More interestingly, for the Kazaa issues, the majority noted that, despite a lengthy hearing about the operation of Kazaa, the record is “confused and difficult to follow.” The appellate court suggested that it “would benefit from further exposition and clarification in the district court.”

Have You Hugged A Sex Offender Lately?

United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)

United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)


The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges.

Juwa pled guilty to possessing child pornography, and faced a 24 to 30 month range. At the time of his federal sentencing he was charged in state court with sexually abusing his nephew on multiple occasions, and had worked out a plea agreement under which he would plead to a single count in exchange for a 5-year sentence that would be concurrent to his federal sentence.

At his federal sentencing, however, the district court went way above the agreed-upon range “based on the information before” it about the state case. The court knew that Juwa had not yet pled guilty in the state case but, taking that case into account, sentenced him to 90 months’ imprisonment. The court described this as an upward departure and also imposed it, in the alternative, as a non-guideline sentence.

At times during the sentencing the district judge seemed to recognize that Juwa had agreed to plead to only one count in the state, but the judge also made statements suggesting a finding that Juwa had acted on multiple occasions. In addition, the written judgment noted that Juwa would be pleading guilty in the state to “molesting his nephew for 3 years.”

The circuit reversed. It concluded, at least on this record, that it would have been “improper” for the district court to base the federal sentence on charged conduct alone, a violation of the due process right to be sentenced based on accurate information. Here, apart from the indictment in the state case, there was nothing to establish that Juwa committed any acts other than the one that he had agreed to plead to. The indictment alone could not establish any other facts, even by a preponderance of the evidence. “[A]t sentencing, an indictment or charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed. Some additional information, whether testimonial or documentary, is needed to provide evidentiary support.”

Here, because there was “uncertainty both from the sentencing transcript and the written order” about whether, and to what extent, the sentencing enhancement was based on the court’s assumption that Juwa had engaged in multiple instances of abuse, it remanded the case for clarification.

In Baker, a summary order, the court, remarkably, vacated a within-guideline sentence as unreasonable, an apparent first in this district.

Baker faced a 108-month guideline minimum for transporting child pornography, and that was the sentence he got. He had argued strenuously for a below-guideline sentence, but the district court made it clear “from the outset that it would only consider a sentence within” the range. It did not say why a 9-year guideline sentence was appropriate, nor did it say why a the 5-year mandatory minimum sentence was not. Moreover, the court did not specifically respond to any of Baker’s arguments for a lower sentence, arguments that the circuit found so compelling that the district court, “at the very least,” should have explained why it was rejecting as them as the basis for a non-guideline sentence. Most significantly, the also court concluded that the district court’s statement that it had considered all of the 3553(a) factors was not enough, because it was obvious that the court really had not done so.

The mystery of Baker is whether the court viewed the sentence as substantively unreasonable, or procedurally unreasonable, or both. The disposition of the case - remanding to the district court to provide reasons for the sentence - suggests that this was a procedural unreasonableness case. But the cases the court cites as the basis for the remand, Sindima, and Rattoballi, are substantive unreasonableness cases. Curious, aint’ it?

To Life!

United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)

Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted.

The court rejected various challenges to the sentence. It held - again - that the statutory maximum for violating 18 U.S.C. § 924(c) is life, thus the life sentence was legal. It also held that the district court had complied with the circuit’s requirement that it “consider” the acquittal, and that the district court properly found that Freeman himself committed the murders.

Freeman also challenged an evidentiary ruling. At trial, the court admitted a redacted version of his confession that contained only the inculpatory part, but omitted exculpatory statements suggesting that some of his actions constituted self defense. Freeman had objected to this, citing the so-called “rule of completeness,” Fed.R.Evid. 106. The circuit affirmed, agreeing with the district court that the redacted portion, which dealt with what occurred during the robbery, neither explained the admitted portion, which dealt with the planning of the robbery, nor placed it in context.

Location, Location, Location

United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)

Gerard Cavera received an above-Guidelines sentence based on the district court’s view that gun offenses were more serious in densely populated areas like New York city. This opinion is the court’s second attempt to deal with a location-specific reason for imposing a non-Guideline sentence. Confusingly, both attempts have been in this same case.

The first opinion here, back in June, held unequivocally that a district court’s “reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered [the] sentence unreasonable.” This opinion held that it was always inappropriate to use “community-specific” considerations as the basis for deviating from the Guidelines, because such sentences would lead to unwarranted regional disparities in sentencing. Judge Calabresi concurred in the result, but disagreed with the majority’s analysis, rejecting the “broad language . . . that denies the possibility of any consideration of geographic factors” in sentencing. He went on to decry the “false dichotomy” between sentencing factors that relate to individual culpability and those that do not, calling it a “legal fiction.” He suggested that it would be “permissible” for a court to conclude that “taking into consideration all the circumstances of the particular crime, including geography, the sentence should be enhanced.”

And now we have a new opinion to replace the one from June. It should first be noted, however, that the court has not done a particularly good job of explaining itself. A footnote reveals that the June opinion “prompted comments from several members of the Court,” without saying what the comments were. Well, whatever they were, they were sufficient to prompt the panel to withdraw both the June opinion and Judge Calabresi’s concurrence and try again.

The new opinion seems to have embraced, to a much greater degree, Judge Calbresi’s view. It definitely leaves open the possibility that, in some circumstances, findings about the characteristics of the location of the offense could legitimately affect the sentence, at least if those findings are tied to something specific about the case. The new opinion is more nuanced than that of the June opinion. It holds that under the “circumstances of this case” the reliance on location specific factors was error because the district court made “no reference to any characteristic particular to the defendant or his crime” and relied instead “entirely on circumstances common to all defendants charged with gun trafficking in New York and similar large cities.” Just to make the point clear, the court says the same thing again, about four pages later, too. It even drops a couple of footnotes on this issue: one that expressly holds, contrary to the June opinion, that it is not true that a court may “never consider characteristics of the locality” in deciding the seriousness of a crime, and another that gives an example of one type of argument that might support a location-based variance.

So where does this leave us? Well, pretty much where we already were. The court of appeals clearly prefers sentences that are based on particular findings that relate to the individual defendant and his offense, and it continues to be skeptical of categorical sentencing decisions. One interesting side-bar to this case relates to the still unresolved issue of state-federal sentencing disparities, which are clearly “location based.” So far, the court has held that a district judge is not required to consider them, but has not yet decided whether a district court is permitted to do so. When the court finally gets to that question, this case will clearly weigh heavily in its decision.

Steal This Footnote

United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ)

This is pretty much a case about nothing. The only real nugget is in footnote 4.

Johnson appealed his 120-month gun sentence - the statutory maximum - on several grounds. As is often true, his case had begun in state court, but was later transferred to federal court. Johnson pointed out that had the state prosecution gone forward, he could not have received more than seven years’ imprisonment. On appeal he argued that the district court was required to sentence him so as to take into account (1) the disparity between his sentence and his co-defendant’s, a claim that the court has already rejected, and (2) the disparity between his federal sentence and the sentence he would have received in the state court.

The court rejected this second claim as well, holding that a district court is not “required” to consider potential federal/state sentencing disparities. However, footnote 4 expressly leaves open the more important question, which is whether such consideration is permitted.

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.

The Thirty Years' War

United States v. Cuevas, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ

In this case, the defendant Jose Cuevas, who was extradited to the United States from the Dominican Republic, argued, with out success, that a 30-year sentencing cap contained in the extradition decree should apply to him.

Cuevas was charged, in the late 1990's, with drug trafficking and money laundering offenses. He was home in the Dominican Republic at the time and, not unwisely, decided to remain there.

Undeterred, the government initiated extradition proceedings. After much diplomatic back-and-forth, the D.R. handed Cuevas over to American authorities on July 6,2002. Two weeks later, the U.S. received a copy of the extradition decree itself, signed by the president of the D.R. which invoked a treaty requirement that a “no penalty greater than ... thirty years shall be imposed.” Unimpressed with this, Judge Rakoff ultimately sentenced Cuevas to 390 months, or 32 1 /2 years’, imprisonment.

Cuevas appealed, inter alia, on the ground that the sentence was illegally long in light of the extradition decree. In an unpublished order, the Circuit remanded for a hearing on whether the U.S. and the D.R. “reached an agreement as to the sentence that could be imposed.”

On remand, it emerged that, usually, when a foreign country cares about the sentence to be imposed on an extraditee, it requests formal assurances prior to surrendering him. Here, the D.R. made no such request prior to surrendering Cuevas. The district court thus found that the U.S. never agreed to a limitation of the sentence. The extradition decree was irrelevant because the U.S. could not be bound by a condition it learned of only after taking custody. The court also noted that the D.R. know of the over-long sentence, buthad not protested it.

The Circuit affirmed. Nothing in the extradition treaty itself seemed to help Cuevas, and the court was singularly unimpressed with the extradition decree; the “Dominican Republic’s unilateral belief” that Cuevas would not be sentenced to more than 30 years’ imprisonment “is insufficient to bind the United States.”

Cuevas also relied on the U.N. Convention Against Illicit Traffic in Narcotic Drugs, a treaty that both the U.S. and the D.R. have signed. He argued that under this Convention, the U.S. had agreed that Dominican law would control the conditions of extraditions. The court rejected this interpretation of the treaty, finding that in this case the domestic law of the D.R. was not binding here.

The Circuit did, however, remand the case for resentencing because this was a pre-Booker sentencing and it could not say “with certainty” that the district court would not have imposed a non-Guideline sentence “had it perceived this to be a possibility.”

Post-Script: As of this writing, Judge Rakoff has not yet resentenced Cuevas. Let’s hope he sees the light this time. This is a particularly unfair case - the D.R. clearly expected that Cuevas would not get more than 30 years’ imprisonment, and the decree to that effect was dated four days before he was turned over to the U.S., even if it was not received until later. The equities, if not the law, clearly side with Cuevas. Given the relatively minor differences involved, it would not really be the end of the world if the judge were to give him 30 years - the bottom the Guideline range - instead of 32 1 /2.