A federal district court judge enjoys broad discretion in determining the criminal sentence to be imposed following conviction. This judicial discretion, however, is limited by the requirement that a judge consider the sentencing factors spelled out in 18 U.S.C. § 3553(a) and the advisory recommendations of the U.S. Sentencing Guidelines. An integral component of a federal criminal sentence is not only the term of imprisonment but the terms and conditions of supervised release following discharge from the U.S. Bureau of Prisons.
Federal judges also enjoy wide discretion in determining the conditions of release, although this discretion is again limited by statute (here, here, and here). The federal courts of appeal have consistently instructed that 18 U.S.C. § 3583(d) distinguishes the differences between “mandatory and special conditions” of supervised release. Specifically, the statute confines special conditions to four factors:
- “the nature and circumstances of the offense and the history and characteristics of the defendant”;
- “the need … to afford adequate deterrence of criminal conduct”;
- “the need … to protect the public from further crimes of the defendant”; and
- “the need … to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”
Special Conditions of Mandatory Supervised Release
Within this statutory framework, differences of opinion often surface between federal district judges and federal circuit judges when called upon to review special conditions attached to supervised release. This was evidenced in a May 24, 2017 decision, United States v. Ramos-Gonzales, handed down by the Fifth Circuit Court of Appeals.
Laura Ramos-Gonzalez was arrested in the Southern District of Texas on October 4, 2015 for trying to transport “undocumented individuals” into the United States “under the rear seat of her vehicle.” On October 9, 2015, U.S. Magistrate Jason Libby ordered that Ramos-Gonzales be held without bail pending trial. A Corpus Christi grand jury indicted her nearly three weeks later (October 28) on two counts of transporting an alien.
Immigration crimes represent almost 30 percent of all crimes prosecuted in federal court. As in all crime categories, an overwhelming majority of federal defendants in immigration cases quickly, almost routinely, enter into plea agreements. Ramos-Gonzales was no different. She pled guilty to one count on November 15, 2015 pursuant to a written agreement with the Assistant U.S. Attorney (AUSA) handling the case. The district court ordered a presentence investigation report (PSR).
PSR Adopted Without Objection
The PSR was subsequently prepared and submitted to the court with copies sent to Ramos-Gonzales’s Federal Public Defender and the AUSA. The report recommended a sentence in the range of 8 to 14 months followed by a three-year supervised release term. Defense counsel did not object to the PSR’s recommended sentence calculations.
On January 26, 2016, the district court, as pointed out by the Fifth Circuit, “adopted the PSR as the findings of the court” and imposed a 12-month term of imprisonment followed by three years of supervised release. The court imposed the standard statutory terms and conditions as part of the supervised release before adding to special conditions: 1) a curfew between 12:00 midnight and 6:00 a.m.; and 2) drug surveillance. The latter condition required periodic urine analysis and/or breath saliva and skin test by a federal probation officer to detect possible drug use. The defendant must pay for the costs of any of these tests performed based on his or her ability to pay as determined by the probation officer.
Appeal of Conditions of Release
Ramos-Gonzales’s attorney did not object to the special conditions of supervised release. Defense counsel, however, did appeal the sentence to the Fifth Circuit seeking a “plain error review” of the two special conditions of supervised release. The genesis of counsel’s appellate argument was that the district court had failed to explain its reasons for ordering the special conditions which were not supported by record. Specifically, counsel informed the three-judge Fifth Circuit panel that her client had not engaged in any illegal drug use for 25 years and that her current conviction had “nothing to do with drug use.”
The argument was persuasive. Even the Government suggested a remand for resentencing because the “district court committed reversible error by failing to explain the reasons for imposing [the] special conditions” when the record was “silent” in support of those conditions.
It can be assumed that the district court relied upon a 2012 conviction against Ramos-Gonzales for “possession of 44 pounds of marijuana” and the fact that she had previously smoked marijuana at age 14, according to the PSR.
Both defense counsel and the Government countered this premise by telling the Fifth Circuit that there was “no indication in the record” to suggest that Ramos-Gonzales “had an illicit drug problem.”
Guided by these arguments, the Fifth Circuit conducted its own “independent [plain error] review of the case” and on August 17, 2016 remanded the case back to the district court for resentencing.
Case Remanded for Resentencing
Federal district court judges do not like, for a host of reasons, to have their sentencing discretion reversed on appeal. This judicial distaste can lead to stubbornness at resentencing. This apparently is what happened at the September 27, 2016 resentencing hearing during which the district court “reconsidered the [two] special conditions,” as noted by the Fifth Circuit in its most recent ruling. The district court elected to remove the nighttime curfew restriction because Ramos-Gonzales would be “living with her children” and because there “was no evidence that the offense in question occurred at nighttime.”
The district court, however, was not as considerate about the drug surveillance special condition. The court left this condition in place. Defense counsel objected, telling the court that Ramos-Gonzales had not “used drugs for many years.” The court was not persuaded, telling counsel:
“Well you have a drug conviction. So that’s going to stay and that’s the way that goes.”
Defense counsel objected, arguing that the drug surveillance special condition was both “an invasion of privacy and a financial burden.”
“Are you denying her drug conviction?” the court asked.
Counsel courteously informed the court that she was not denying the prior conviction but, as stated in the PSR, Ramos-Gonzales’s “drug use [was] very old in time.”
Special Condition Imposed Again at Resentencing
The district court dismissed that argument, re-imposing the drug surveillance special condition.
Ramos-Gonzales’s attorney appealed to the Fifth Circuit a second time. Counsel’s argued on appeal that the prior drug conviction upon which the district court had based the special condition did not involve personal drug use by Ramos-Gonzales.
This time the Government was not as understanding about the special condition. It told the court that the prior drug conviction went to Ramos-Gonzales’s “history and characteristics” as well as “protecting the public and adequately deterring the defendant from committing future criminal conduct.”
Case Appealed Again Over Special Condition
The Fifth Circuit rebuffed this argument, finding instead:
“We agree with Ramos-Gonzales that, on the facts of this case, any reasonable relationship between the drug surveillance special condition and the 2012 drug-related conviction would require evidence that Ramos-Gonzales actually used drugs. We view the more general connection between Ramos-Gonzales’s prior conviction and the special condition imposed—that is, the fact that both have something to do with drugs—as to superficial to justify imposition of the special condition.”
The appeals court also slapped the Government’s hand by pointing out that its position in the second appeal contradicted the position it took in Ramos-Gonzales’s first appeal that there was no evidence that she had “an illicit drug problem.”
The Fifth Circuit, however, did not remand this time for resentencing. The court pointed out that because drug testing is a mandatory condition under § 3583(d), there was no need for resentencing. But the court also snapped at the district court with its conclusion that the court had “abused its discretion in imposing the special drug surveillance condition on Ramos-Gonzales.”
District Judge Objects to Telephonic Sentencing
Judge Edith Jones, one of the more conservative judges on the Fifth Circuit, had had enough and objected to the procedure utilized at the resentencing hearing:
“I concur in this opinion and draw attention to its fn. 6, which states that there is no authority for the district court’s conducting the sentencing hearing by telephone conference. From what this court learned at oral argument, a Federal Public Defender was present in court for the defendant, the Judge herself only by telephone, the defendant ‘participated’ from a halfway house somewhere, and appellate counsel was unsure where the AUSA was during the resentencing ‘hearing.’ There is no indication that the defendant consented to this procedure. That no one objected, and all the professional parties to the proceeding found this process convenient does not make it proper.”
And Judge Jones was not finished there. She concluded her opinion with this obvious contempt for the way all the parties handled Ramos-Gonzales’s resentencing hearing:
“Not only was there no face to face meeting of the parties here, but even stranger, the defendant was in a halfway house somewhere while her Federal Public Defender attorney was only available to her, remotely, by telephone. Suppose a last-minute question had arisen on which the defendant needed counsel’s advice? Suppose the AUSA had produced a witness for testimony on the matter being sentenced? Suppose one of the parties in this conversation—whether counsel or judge—was trying to multitask while halfway listening to the voice on the other end of the courtroom line? There may be practical answers to these questions, but they do not override one’s commonsense notion that listeners are often inclined to ‘tune out’ audio without corresponding visual stimulation. Nor do practical excuses override the symbolic significance of procedural formality by all participants and physical proximity of the defendant to her counsel.
“There is no provision for telephonic sentencing in the Rules. Conducting resentencing, to say nothing of initial sentencing, by telephone conference reflects poorly on the dignity and integrity of federal court proceedings …”
It would seem that the Corpus Christi Federal Public Defender’s Office and the U.S. Attorney’s Office need to attend a seminar of the Federal Rules governing sentencing. The Fifth Circuit will not be as patient the next go round.