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Comments on Criminal Issues
October 9, 2007
CRIMINAL ATTORNEYS STILL WATCHING THE U.S. SUPREME COURT, DECISIONS EFFECTING SENTENCING GUIDELINES
Rita v. United States, 125 S.Ct. 2456, 2463, 168 L.Ed.2d 203 (2007)
While the U.S. Supreme Court’s decision in Booker gave many defense attorneys hope that the often draconian Sentencing Guidelines would soon be pronounced dead, they still remain largely intact. Judges must still consult and consider the guidelines and, with Rita’s “presumption of reasonable” standard, any sentence they hand down within the guidelines will most likely withstand appellate review. However, the Supreme Court has created a real opening for “thorough adversarial testing” of the sentencing procedure by allowing judges to depart from the guidelines if given good reason under the factors set forth in 18 U.S.C. § 3553. Defense attorneys must take this opportunity to effectively present their clients’ best case at sentencing before the federal courts. After all, criminal defendants and their offenses of conviction are unique and individual and should be treated as such by the courts when assessing a just punishment.
The United States Supreme Court three terms ago recognized that federal courts of appeal have the authority to review federal sentences and set aside those they find “unreasonable.” See: United States v. Booker, 543 U.S. 220, 261-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
A United States District Court judge must consider two sources of authority in determining the sentence to impose on a criminal defendant: 18 U.S.C. § 3553(a) (2000) and the U.S. Sentencing Guidelines. § 3553 guides both the trial judge and the U.S. Sentencing Commission on the objectives Congress desires in the sentencing process and the Guidelines instruct the judge what factors to consider in determining the appropriate sentence under that statute. Those factors are:
• Offense and offender characteristics.
• The need for a sentence to reflect the basis aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, and (d) rehabilitation.
• The sentences legally available.
• The Sentencing Guidelines.
• Sentencing Commission policy statements.
• The need to avoid unwarranted disparities.
• The need for restitution.
• Imposition of a sentence sufficient, but not greater than necessary, to comply with the basic sentencing objectives set out above.
See: Rita v. United States, 125 S.Ct. 2456, 2463, 168 L.Ed.2d 203 (2007).
Prior to sentencing, a federal probation officer, with the assistance of the parties, investigates the background of both the offender and his offense and prepares a presentence report (“PSR”) that is submitted to the trial court. See: Fed.Rules Crim.Proc. 32(c)-(d); 18 U.S.C. § 3552(a).
In Rita the defendant was convicted of perjury before a federal grand jury. The grand jury was investigating a gun company called InterOrdnance for purportedly selling a “PPSH 41 machinegun ‘parts kid’” without having secured proper registrations for the importation of the guns. Id., 125 S.Ct. at 2459. Rita bought one of these machinegun kits which became a source of inquiry by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF). Before speaking with ATF agents, Rita called InterOrdnance and promptly returned the kit he had purchased. He then gave ATF agents a different kit that did not amount to a machinegun. Id., 125 S.Ct. at 2460.
Federal prosecutors thereafter subpoenaed Rita to testify before the grand jury. Prosecutors questioned him under oath about the purchase of the PPSH kit. Rita first denied that ATF agents had asked him about the kit, and, second, he denied that he had ever spoken to anyone at InterOrdance about the kit. The grand jury indicted him for perjury for making these two false statements as well as for a third count of obstruction of justice. He was convicted by a jury of all counts. Id.
The trial court ordered the requisite presentence investigation. In addition to the offender/offense characteristics, this investigation examined other issues relevant to sentencing and calculated a Guideline sentence. The PSR then outlined factors “potentially relevant” to a departure from the Guidelines or relevant to imposition of a sentence “other-than-Guidelines sentence.” Id. Having provided the trial judge with all this information, the PSR then recommended a sentence based on the Guidelines.
With respect to Rita’s “offense characteristics,” the PSR pointed out that all the convictions stemmed from a single incident; accordingly, pursuant to the Guideline § 3D1.1, the PSR grouped all the convictions together and treated them as one conviction based upon the most serious offense: perjury. Guideline § 2J1.3(c)(1) instructed the trial judge, and the probation officer, to calculate the Guidelines sentence for “perjury” by “applying the Guidelines for an ‘accessory after the fact,’ as to that criminal offense.” Id. See also: § 2X3.1. The Supreme Court explained further:
“And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is ‘6 levels lower than the offense level for the underlying offense,’ (emphasis added) (the offense that the perjury may have helped someone commit). Here the ‘underlying offense’ consisted of InterOrdnance's possible violation of the machinegun registration law. App. 124; USSG § 2M5.2 (providing sentence for violation of 22 U.S.C. § 2778(b)(2), importation of defense articles without authorization). The base offense level for the gun registration crime is 26. See USSG § 2M5.2. Six levels less is 20. And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation. App. 45.
”The presentence report next considers Rita's ‘Criminal History.’ Id., at 125. Rita was convicted in May 1986, and sentenced to five years' probation for making false statements in connection with the purchase of firearms. Because this conviction took place more than 10 years before the present offense, it did not count against Rita. And because Rita had no other relevant convictions, the Guidelines considered him as having no ‘criminal history points.’ Ibid. The report consequently places Rita in criminal history category I, the lowest category for purposes of calculating a Guidelines' sentence.
”The report goes on to describe other ‘Offender Characteristics.’ Id., at 126. The description includes Rita's personal and family data, Rita's physical condition (including a detailed description of ailments), Rita's mental and emotional health, the lack of any history of substance abuse, Rita's vocational and nonvocational education, and Rita's employment record. It states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita's financial condition. Id., at 126-132.
”Ultimately, the report calculates the Guidelines sentencing range. Id., at 132. The Guidelines specify for base level 20, criminal history category I, a sentence of 33-to-41 months' imprisonment. Ibid . The report adds that there ‘appears to be no circumstance or combination of circumstances that warrant a departure from the prescribed sentencing guidelines.’ Id., at 133.” Id., 127 S.Ct. at 2460-61.
At the sentencing hearing both the government and defense were able to present their sentencing arguments. Rita argued for a sentence lower than the recommended Guidelines 33-to-41 months. The trial judge informed Rita that his request for a lower sentence could be based, first, on the premise that circumstances made his case “atypical” and placed it outside the “heartland” of the Guidelines [§ 5K2.0(a)(2)], or, second, the sentencing factors of § 3553(a), independent of the Guidelines, warranted a lower sentence. Id. See also: Booker, supra, 543 U.S. at 259-60, 125 S.Ct. at 738.
The trial judge identified three reasons for which Rita was seeking a lower sentence: a) fear of retaliation because the defendant had previously been involved in criminal justice work that sent people to prison; b) his military service; and c) his poor physical condition. Rita presented evidence in support of these three reasons while the government argued against departure because the defendant had interfered with its investigation of InterOrdance and, as a former criminal justice employee, he should have known not to commit perjury. Id., 127 S.Ct. 2461-62.
The trial judge did not find Rita’s reasons persuasive. The judge briefly concluded that he was “unable to find that the [PSR’s] sentencing guideline range … is an inappropriate guideline range for that, and under 3553 .. the public need to be protected if it is true, and I must accept as true the jury verdict.” Id. The judge then sentenced Rita to a term of 33 months. Id.
Rita appealed. He argued that his 33-month sentence was “unreasonable” for the following reasons:
• It did not adequately take into account “the defendant’s history and characteristics,” and
• It “is greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).”
Id., 127 S.Ct. at 2463.
The Fourth Circuit Court of Appeals had rejected these arguments, finding that the sentence was within the properly calculated Guidelines range and, therefore, was presumptively reasonable. In his application for certiorari review, Rita pointed out that the circuits were split on the issue of “presumption of reasonableness” for sentences within the Guidelines: the Fourth, Fifth, Sixth, Seventh, Eighth, Tenth and D.C. circuits applying the presumption while the First, Second, Third and Eleventh did not. The Supreme Court granted certiorari to resolve this circuit-conflict issue and to decide whether the district court imposed a reasonable sentence after properly analyzing factors relevant to sentencing. Id.
Concluding that use of presumption of reasonableness was proper, the Court pointed out that “the presumption is not binding. It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case.” Id. The court bolstered this finding with the observation that by the time an appeals court reviews a sentence, both the trial judge and the Sentencing Commission have made a determination of reasonableness for a “within-Guidelines” sentence which provides the appellate court with a natural “presumption of reasonableness.” Id.
“With respect to the concerns that the sentence satisfy the mandate of § 3553(a)(2), the Court pointed out that very ‘nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task’ adopted the “basic sentencing objectives” set forth in that statute. Id. The Court provided additional explanation:
“Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. Thus, 28 U.S.C. § 991(b) indicates that one of the Commission's basic objectives is to ‘assure the meeting of the purposes of sentencing as set forth in [§ 3553(a)(2)].’ The provision adds that the Commission must seek to ‘provide certainty and fairness’ in sentencing, to ‘avoi[d] unwarranted sentencing disparities,’ to ‘maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices,’ and to ‘reflect, to the extent practicable [sentencing-relevant] advancement in [the] knowledge of human behavior.’ Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to § 3553(a). See 28 U.S.C. §§ 994(f), and 994(m).
”The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.” Id., 127 S.Ct. at 2463.
The U.S. Sentencing Commission, observed the Supreme Court, has sometimes made controversial efforts to carry out the mandate of § 3553(a). The Commission refers to the statute in its description of the Guidelines. USSG §1A.1. In its “Mission Statement,” the Commission specifically states that Congress “sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct” and sought “proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.” Id., 127 S.Ct. at 2463-64.
In the face of divergent views in the criminal justice system on how to achieve sentencing equity, the Commission pointed out that the “goals of uniformity and proportionality often conflict.” Id., 127 S.Ct. at 2464. The Commission’s commentary lists the difficulties faced in trying to reconcile these two frequently conflicting sentencing objectives. For example, some criminal justice forces stress moral culpability and just punishment while others emphasize the need for crime control. Id. Rather than choose between these kind of opposing views,
“ … the Commission took an ‘empirical approach,’ beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past and then modifying and adjusting past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like …” Id.
The result of these efforts, as well as continuing efforts by the Commission, is a set of Guidelines that, according to the Rita court, attempt to embody the sentencing objectives outlined in § 3553(a) despite the “abstract and potentially conflicting nature” of those objectives. Id. Against this backdrop, the court concluded that it is only fair to assume, as far as practicable, that the Guidelines do in fact produce sentences that “reflect a rough approximation” of the § 3553(a) sentencing objectives. Id., 127 S.C.t at 2465. The following factors convinced the Rita court to favor the position taken by those circuits that apply the “presumption of reasonableness”:
• The trial judge prior to imposition of sentence will review the PSR that adequately interprets the Guidelines.
• He can entertain arguments by either the defense or prosecution that the sentence should not apply because the case falls outside the “heartland” of the individual Guidelines.
• This dual vetting process permits a thorough adversarial testing of the contemplated sentence pursuant to Fed. Rule Crim. Proc. 32(f),(h), (i)(C) and (i)(D). Id.
The Supreme Court, however, cautioned that simply because it endorsed the “presumption of reasonableness” rule, this did not “mean that courts may adopt a presumption of unreasonableness.” Id. The Court then turned its attention to the finding that the trial judge had provided legally sufficient reasons for imposing the 33-month sentence on Rita as required under § 3553(c). Id., 127 S.Ct. at 2568. The Court provided these reasons for so finding:
“In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority…Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3353(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under § 3553(a)-that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way-or argues for departure, the judge normally need say no more. Cf. § 3553(c)(2) (2000 ed., Supp. IV). (Although, often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.)
”Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation. Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so. To our knowledge, an ordinary explanation of judicial reasons as to why the judge has, or has not, applied the Guidelines triggers no Sixth Amendment “jury trial” requirement. Cf. Booker, 543 U.S., at 233, 125 S.Ct. 738 (“For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant”) and id., at 242, 125 S.Ct. 738 (requirement of finding, not articulation of it, creates Sixth Amendment problem).
”By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve. The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court. That being so, his reasoned sentencing judgment, resting upon an effort to filter the Guidelines' general advice through § 3553(a)'s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission. The reasoned responses of these latter institutions to the sentencing judge's explanation should help the Guidelines constructively evolve over time, as both Congress and the Commission foresaw…” Id., 127 S.Ct. at 2468-69.
While the sentencing judge in Rita provided only a brief statement of reasons for the sentence imposed, the Court found those reasons “legally sufficient.” Id., 127 S.Ct. at 2469. The record was clear that the judge considered the three arguments Rita made for a “downward departure” from the 33-to-41 month sentence recommended by the Guidelines and found they did not warrant a sentence lower than the Guidelines-recommended sentence. He then imposed the lowest range recommended: 33 months. Id.
“We acknowledge that the judge might have said more,” the Court said. “He might have added explicitly that he had heard and considered the evidence and argument; that (as no one before him denied) he thought the Commission in the Guidelines had determined a sentence that was proper in the minerun of roughly similar perjury cases; and that he found that Rita's personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, reasoning, underlies the judge's conclusion. Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.” Id.
Rita reflects the enormous difficulty faced by the courts, Sentencing Commission, and Congress to apply a set of Guidelines in both a uniform and proportionate manner. This process hoped to achieve some semblance of fairness and equity by preventing unfettered discretion to impose sentences based on individualized circumstances of cases which gave rise to horrendous disparities in sentencing. However, the Sentencing Guidelines have too often had the opposite and inhumane effect of unreasonably punishing the individual defendant without proper consideration and weight being given to the unique characteristics of the defendant and the facts surrounding the offense of conviction. (As defendants and their cases are inherently unique, I would argue uniformity should only be considered when judging the overall fairness of the application of the sentencing regime in total.)
Stay tuned, we shall see how The Supremes soon tinker with the Guidelines in their upcoming decisions in Gall and Kimbrough.
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