Federal sentencing is a complex process.
The U.S. Supreme Court on April 20, 2016 was forced to confront a conflict among the federal circuits in their review of federal sentences. Their decision was handed down in the case of Molina-Martinez v. United States.
The U.S. Sentencing Guidelines
The U.S. Sentencing Guidelines provide the framework upon which is a federal sentence is fashioned. In reaching a determination of what sentence is appropriate in any given case, U.S. District Court are free to depart from the guidelines, but must begin their analysis with the Guidelines and consult them throughout the sentencing proceedings.
Incorrect Guideline Range
The Court in Molina recognized that due to the “Guidelines complexity,” a federal judge will invariably use an “incorrect Guidelines range [that] may go unnoticed” during the sentencing proceedings.
That’s what happened in the Molina case.
The defendant entered a guilty plea to being illegally present in the U.S. following his deportation after being convicted for a violent felony.
As in all federal criminal cases, Molina’s case was referred to the United States Probation Office for a “presentence report” (PSR)—the stage when the Guidelines enter the sentencing process. Drawing from the Guidelines, the PSR sets a recommended range of punishment from which the sentence should be drawn.
The PSR is then submitted to both the defendant and the government for objections. After the probation officer has an opportunity to address any objections, the PSR is formally submitted to the court, a copy of which is furnished to defense counsel and the U.S. Attorney’s Office.
Court May Depart from Guidelines
While the court may depart from the Guidelines recommended sentencing range, the Supreme Court in 2005 firmly held that the sentencing court “must consult [the Guidelines] and take them into account when sentencing.”
The PSR in Molina’s case recommended a sentence in the range of 77 to 96 months. The U.S. Probation Office recommended a sentence of 77 months while the government requested a 96-month sentence.
The defendant did not object to the recommended sentencing range in the PSR or the 77-month sentence recommended by the probation office.
With little explanation (which can often be a fatal flaw in the sentencing process), the district court imposed a 77-month term.
Issue Raised for First Time on Appeal
Attorneys for Molina appealed his sentence. For the first time on appeal they raised the issue that both the probation office and the district court had “miscalculated his Guidelines range.” He argued that the correct Guidelines range should have been 70 to 87 months which placed his 77-month sentence in the middle and not at the bottom of the range.
Incorrect Guideline Range Used
The Fifth Circuit Court of Appeals agreed that the district court used the incorrect Guidelines range.
Rule 52(b) of the Federal Rules of Criminal Procedure provides a remedy in cases in which a defendant does not object to a miscalculation in the Guidelines range of punishment. The defendant must satisfy a three-prong criterion to secure a relief under Rule 52(b):
- The miscalculation was not “intentionally relinquished or abandoned;”
- The miscalculation is a plain error (i.e., clear or obvious); and
- The miscalculation affected the defendant’s “substantial rights.”
If a defendant satisfies these procedural prerequisites, the appeals court has the discretion to correct the miscalculation if the miscalculation “seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Fifth Circuit Required Additional Evidence
The Fifth Circuit in an extraordinary expansion of this discretion said that if a defendant’s sentence would have fell within the “correct Guidelines range,” he or she must provide the court with “additional evidence” that the use of the incorrect range “affected his sentence.”
The Supreme Court called this expansion “rigid” while pointing out that at least three other courts of appeals—the Sixth, Ninth and Tenth—have held the opposite; namely, that the application of an incorrect Guidelines range “runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside that range.”
The Supreme Court decided to “reconcile the difference in approaches” by these circuits in the Molina decision.
Use of Incorrect Guideline Range Affects Substantial Rights
This reconciliation led the Court to conclude that the Fifth Circuit approach is “unworkable” by its very nature because any defendant who shows the district court used an incorrect higher Guidelines range will in almost every instance demonstrate “a reasonable probability of a different outcome.”
The Court summed up its extensive analysis this way:
“In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purpose of obtaining relief under Rule 52(b).”
Defense Counsel Should Never Assume PSR is Correct
The underlying moral of this story is simple: defense counsel should never accept the PSR’s calculation of the Guidelines range of punishment as sacrosanct. For example, the PSR in the Molina case relied upon five aggravated burglary conviction for which he had been sentenced the same day. The PSR counted each conviction separately which “resulted in the imposition of 11 criminal history points.”
Molina’s attorneys, however, argued in a merits brief on appeal that the convictions were not separated by “an intervening arrest” because he had been sentenced for all five burglaries on the same day. A calculation of this theory would have reduced his criminal history points from 11 to five, lowering his criminal history category from VI to V.
This miscalculation occurred because the PSR did not consider USSG § 4A1.2(a)(2) which deals with how multiple sentences imposed on the same day should be handled. This provision says that when sentences are imposed on the same day they should be counted as a single sentence unless the offenses “were separated by an intervening arrest (i.e., defendant is arrested for the first offense prior to committing the second offense).”
Molina is instructive to the point that the PSR will not always get it right and the sentencing court will not always be right by blindly relying on the PSR.
The ultimate responsibility, therefore, rests with defense counsel to make sure all the sentencing calculations are correct and object if otherwise.