Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively.  On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines.  He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.”  The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.). 

Following the application notes contained in the guidelines, the court relied on the definition of terrorism set forth in 18 U.S.C. § 2332b(g)(5)(B): the commission of a listed crime (including destruction of government property) ”calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”  In light of that definition, it was not hard to conclude that Rivera qualified as a terrorist:

Here, the purpose behind defendants’ actions was to further ELF’s political agenda: the end to industrial society. . . . Because the defendants do not look the part of our current conception of a terrorist does not separate them from that company.  Indeed, it doesn’t matter why the defendants oppose capitalism and the United States government — if they use violence and intimidation to further their views, they are terrorists.

I agree there is little legal (or, I suppose, moral) basis to distinguish criminals who are motivated by extremist environmental views from criminals who are motivated by extremist religious views.  But I think it is an interesting question whether a passionate desire to reform society (on environmental, religious, or any other grounds) ought to be treated as an aggravating sentencing factor.

Imagine a hypothethetical variation on Christianson: Although Rivera was motivated by a desire to change government policy on genetic engineering, Christianson was only in it for the thrill of sneaking into a government facility in the middle of the night and destroying something.  Is it right that Rivera ought to be punished more severly than Christianson based on his motive?  At least he was seeking the greater good and not acting in a purely self-interested manner — arguably, his motives are mitigating, not aggravating, relative to hers.

Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. § 3553(a), which tells judges to account for the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution.  When a mandatory minimum must be imposed, however, most courts have held that only the defendant’s assistance may be considered when imposing a sentence below the minimum.

The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35.  See United States v. Johnson, No. 08-3541 (7^th Cir. September 4, 2009); United States v. Shelby, No. 08-2729 (7^th Cir. October 20, 2009). 

In both cases, the court ruled that only a defendant’s substantial assistance can be considered when determining the extent of the reduction, and that other factors normally relevant under § 3553(a) can be used only to reduce or leave in place that reduction, but never to increase it.  At least one other circuit has criticized this as an unfair “one way ratchet” in applying § 3553(a) factors to these cases.  See United States v. Grant, 567 F.3d 776 (6^th Cir. 2009) (which is also now in flux as on October 16 the Sixth Circuit vacated that decision and ordered a re-hearing en banc).

Does it make sense to limit sentencing judges’ discretion in these cases to considering only substantial assistance for the extent of the reduction?  For 3553(e) motions it may because the language of that statute states that a court has limited authority to sentence a defendant below a statutory minimum so as to reflect a defendant’s assistance.  Rule 35(b) contains no such language and states a defendant’s sentence can be reduced if the defendant provided substantial assistance, but does not otherwise limit the factors that can be considered.  The Shelby court found that despite this difference in language, it does not make sense to treat Rule 35(b) motions differently from those filed under 3553(e), and did so largely on various policy grounds.

Judge Terrance Evans wrote an interesting dissent in Shelby.  He wrote that United States v. Booker, 543 U.S. 220 (2005), which held that the United States Sentencing Guidelines were no longer binding on sentencing courts, and Kimbrough v. United States, 128 S.Ct. 558 (2007), which held that judges can legally disagree with the disparity between how crack and powder cocaine are treated under the guidelines, represented a “sea change” in federal sentencing law.  He criticized the “one-way ratchet” approach, stating, “If it’s kosher to rely on the § 3553(a) factors in giving only 50 percent of a sentence reduction sought by the government in a Rule 35 resentencing, why can’t those factors also be considered in giving the defendant more of a reduction?”  He fears that judges will now just “fudge” these hearings when they want to grant reductions larger than what may be deserved based solely upon the defendant’s assistance by exaggerating the assistance and disingenuously cloaking their reasoning in factors related only to assistance.

Evans also criticized the government for bringing the appeal, saying, “I would hope it has much better things to do.  Without an appeal, Shelby’s sentence would have passed under the radar screen without notice,” and further noting, “After all, it’s not like we’re running out of people behind bars.”  He cited a Pew Charitable Trust study that found America’s prison population has increased by 700 percent since 1970, and that America now incarcerates more people than Russia, South Africa, Mexico, Iran, India, Australia, Brazil, and Canada combined — at an average cost of $22,650 per year per inmate.

Does it make sense to base federal sentencing jurisprudence on the prison population?  Or on minor differences in wording between statutory provisions that ostensibly accomplish the same thing (i.e., reducing sentences for cooperation, with the only difference that one governs cooperation given before sentencing and one given after sentencing)?  Should we base it on individual judges’ discretion and wisdom, the very thing the Sentencing Guidelines were supposed to limit when they were enacted in the mid-1980’s? 

The uncertainty in federal sentencing is representative of the uncertainty inherent in the criminal justice system as a whole.  I remember back to my first-year criminal law class taught by Professor O’Meara (with a generous recent refresher discussion via email), where he talked about criminal justice as an area of law “without an effective theory.”  He borrowed this term from Columbia University Professor George Fletcher, and it refers to the observation that the criminal justice field does not seem to have an overarching goal or objective to address the problem of criminal conduct in our society.  Are we trying to primarily deter crime?  Achieve retribution and punish the criminal?  Incapacitate them (commonly referred to as “warehousing” them in prison)?  Do we want to rehabilitate them and have them (hopefully) return to society as productive citizens?

The criminal justice system seems to try to address all of these concerns without really accomplishing any of them.  The long federal mandatory minimum sentences for drug crimes have been in effect for over twenty-five years without much decline in drug dealing.  Almost none of my federal clients (many of whom are no strangers to the state criminal justice system) have any concept that ten-, fifteen-, and twenty-year mandatory minimum sentences are common in federal court until after they are indicted.  Punishment doesn’t seem to work well either because many criminal defendants reoffend, which also indicates they have not been rehabilitated.  Perhaps the goal the federal system accomplishes best is warehousing criminals, keeping them out of the community and stopping them from committing crimes for at least as long as they are in prison. 

Ultimately, the criminal justice system may be incapable of having an overriding theory because it is a purely reactive system: it operates only after a crime is committed, a victim is identified (whether it is an individual or the community), and a defendant is charged with a crime.  I’ve often thought that the only real way to address crime would be to go after its root cause, whatever it may be: poverty, lack of education, lack of family support, mental illness, drug-addiction, etc.  The problem is that the cause of crime is as varied as the individual committing it.  Until this can be truly addressed, federal sentencing law (as an example), and the criminal justice system as a whole, will continue to struggle with finding an effective theory of addressing crime.

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply.  In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .”  The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial.  Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice.  This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices.  But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence. 

Relying on prior cases, the court characterized the legal standard this way: “[A]s long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that is good enough.”  And Williams could not prevail on this “substantial compliance” test:

[T]he notice says that the government would rely on all “applicable” convictions in the pretrial services report, and it was apparent that the second felony drug conviction was “applicable,” that is, a basis for enhancement.  It was the only other felony drug conviction in the list of 19 dispositions [contained in the report]; . . . a lawyer reading the list would notice that in about fifteen seconds; and if the defendant’s lawyer had had any doubt about which conviction the prosecutor was planning to rely on for an enhancement he could have sought clarification from the prosecutor, and he didn’t — doubtless because it was clear.

Although Williams lost on his § 851 claim, the court made clear that it was not adopting a rule that any attempt at notice would always be sufficient:

We can imagine a notice and a list of convictions that were so confusing that the defendant and his lawyer could not be expected to pick out the one or ones that the government might try to use to enhance the defendant’s sentence. . . .

The government takes a risk by sloppy compliance . . . : the risk that either the court will hold that the government failed to provide the defendant with adequate notice or that the defendant will have a claim that by failing to interpret a confusing notice correctly his lawyer rendered ineffective assistance of counsel.

Interestingly, the Eleventh Circuit seems to be taking a very different view of § 851 compliance.  For instance, United States v. Bowden, No. 08-11935, 2009 WL 32755 (11th Cir. Jan. 7, 2009), apparently employs a strict compliance standard and holds that a failure to meet the standard deprives the sentencing court of jurisdiction to impose the mandatory life sentence.  Williams reports that the Solicitor General recently filed a petition for certiorari in Bowden, so the § 851 issue may be in the news again soon.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958). 

For conditions of supervised release, 18 U.S.C. § 3583 (in its pre-2008 form) authorized a sentencing court to select just about any of the permissible conditions of probation (except assignment to a halfway house) and “any other condition it considers to be appropriate.”  In Anderson, the Seventh Circuit (per Judge Wood) held that this latter language, the “catch-all provision,” permits assignment to a halfway house.  In Head, the court had rejected this reading of the catch-all provision, reasoning that the inclusion of the halfway-house condition in the probation statute and the lack of specific authorization for the condition in the supervised release statute decided the question; a general catch-all provision could not overcome the negative implication created by the statute’s failure to authorize the condition expressly. 

Anderson downplayed this aspect of Head:

Head indicated in a footnote that the catch-all provision did not recapture the power to impose the halfway-house condition . . . . This theory, however, had not been pressed by the Government . . . .

In effect, Anderson seems to treat Head’s analysis of the catch-all provision as mere dicta and adopts a quite different interpretation: the “any other condition” language means what it says, “confer[ring] broad discretion on the district courts to fashion appropriate conditions of release that compl[y] with the broad goals of sentencing.”  Thus, it turns out (per Anderson) that Head only held that the halfway-house condition was not expressly authorized by the supervised-release statute; Head did not really decide whether the condition was prohibited.  Anderson now tells us that the condition is not prohibited.

Anderson’s interpretation of Head strikes me as rather strained.  But the Anderson panel circulated its opinion to the full court, and not one judge voted to hear the case en banc.  It seems odd that the court has so thoroughly undermined such a recent decision as Head, which is only nine months old, without a single voice raised in protest.  I suppose this is a rather arcane aspect of sentencing law, and perhaps no one really cares.  Or perhaps something in the new cases convinced the judges that Head had sacrificed too much by way of sound corrections policy in the name of textualist purity.  Perhaps the overwhelming weight of contrary precedent in the other circuits also contributed to the judges’ discomfort with Head.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place.  Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges.  This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine.  That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1.  But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut. 

Writing for the Welton panel, Judge Bauer expressly disavowed Liddell “to the extent that Liddell is inconsistent with [earlier holdings] that a district court may not rely on the 100:1 crack/powder disparity embedded in  § 4B1.1 as a basis for imposing a non-Guidelines sentence.”  Moreover, because of the avowed overruling of Liddell, Welton was circulated to the entire court, and only three judges voted to rehear the case en banc.  (On behalf of these three dissenters, Judge Williams wrote what seems to me a quite persuasive opinion in Welton arguing the basic “advisory means advisory” point.)

The majority’s position seems to boil down to this: the Sentencing Commission did not come up with § 4B1.1 on its own, but instead followed a directive contained in 28 U.S.C. § 994(h) that the guidelines “specify a sentence to a term of imprisonment at or near the [statutory] maximum” for career offenders.  The court thus sees  § 4B1.1 as embodying a congressional policy choice, which is binding on district judges because it is not merely a Commission policy choice.

There is no question that Congress could write a statute requiring district judges to sentence career offenders “at or near the statutory maximum.”  But Congress has not written such a statute.  By its terms, § 994(h) is a directive to the Sentencing Commission, not district judges.  And, if there is anything we have learned from Justice Scalia and his New Textualism, it is that Congress’s mere “policy choices” are not binding on anyone; it is only through the written law, as contained in statutes enacted through constitutionally mandated procedures, that Congress can make binding policy decisions. 

Instead of issuing a directive on career offenders to district judges, Congress chose to issue its directive to the Sentencing Commission, recognizing that its policy choice regarding career offenders would be embedded within, and necessarily qualified in all sorts of uncertain ways, by a larger structure of sentencing guidelines.  Rather than pass a stand-alone mandatory minimum statute, Congress evidently believed that it was best for the specifics of career-offender sentencing to be worked out in a way that cohered with the rest of the federal sentencing system.  Post-Booker, such coherence means that the career offender guideline should be treated as no less advisory than any other guideline.

Moreover, treating § 994(h) as binding on judges risks reversing Booker by the back door.  Section 994(h) is not the only congressional directive to the Sentencing Commission; the whole of § 994 is chock full of them.  Indeed, very nearly all of the guidelines could be fairly characterized as embodying one congressional policy choice or another.  (There is, in fact, an interesting debate in the scholarly literature over whether the worst features of the federal guidelines are due more to Congress’s or the Commission’s policy choices.)  Once we start saying that congressional policy choices embodied in the guidelines are binding, it is not clear where a principled line is to be drawn to save Booker.

In fact, the whole point of Booker is that Congress does not get to have its way when it comes to sentencing guidelines.  The Sixth Amendment trumps congressional preferences.  And the Sixth Amendment prohibits courts from treating the policies contained in sentencing guidelines as binding in the absence of jury fact-finding.

Judge Williams concluded her dissent with a call for the Supreme Court to address the § 4B1.1 problem in light of the disagreement it has sparked within the lower courts.  I heartily agree.

In the meantime, I take solace in the fact that there remains some interest and ability on the part of the Seventh Circuit to impose other sorts of limits on the mandatory application of the § 4B1.1 100:1 ratio, as evidence by the court’s recent decision in United States v. Knox, which held that the ratio is not binding on defendants convicted merely of conspiracy to commit a crack offense.  (My post on Knox is here.)

When a person is caught in a lie, we normally assume that he is covering something up.  But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing?  Such was the question in United States v. Edwards (No. 08-1124).

Edwards was arrested after making arrangments to sell crack to a government informant.  The intended sale did not actually take place, but that is no barrier to conviction for drug trafficking.  And, once convicted, a drug dealer becomes responsible under the federal sentencing guidelines for the entire quantity of drugs he has ever sold that counts as “relevant conduct.”  (For an earlier post on the pitfalls of relevant conduct, see here.)  In order to establish the amount that Edwards sold, the sentencing judge relied on, among other things, $765 in cash that Edwards was carrying at the time of his arrest.  Edwards tried to explain away the cash with an unsubstantiated and seemingly implausible story about selling his minivan, but the judge was not convinced.  If the minivan story was fabricated, then Edwards must have earned the money from selling crack, right?  The sentencing judge concluded as much, and increased Edwards’ drug quantity accordingly.

On appeal, however, the Seventh Circuit held that the judge moved to this conclusion too quickly.   Judge Posner, writing for the panel, sensibly observed,

The falsity of the defendant’s testimony makes reasonably clear that the $765 was proceeds of an illegal transaction of some sort, but does not show that it was proceeds from selling crack.  For all one knows, the defendant sold other illegal drugs (he had been convicted in the past of possession of marijuana) or other contraband, such as guns, but did not want to acknowledge other illegal behavior, which he might have thought would get him into even worse trouble than he was in.

In light of these possibilities, it appeared that too much crack might have been attributed to Edwards when his guidelines sentence was calculated.  The Seventh Circuit thus vacated Edwards’ sentence and remanded for resentencing.

It is true that Edwards’ false testimony does not logically require an inference that the $765 came from crack sales, but it is still surprising to see the Seventh Circuit not permit the inference.  After all, what was at issue was a district court’s finding of fact, to which appellate courts are supposed to show some deference.  Indeed, the First Circuit upheld a district court’s decision on similar facts in United States v. Jackson, 3 F.3d 506 (1st Cir. 1993).  However, the Seventh Circuit felt that Jackson was inconsistent with other cases that reject “the automatic inference from disbelief in one part of a witness’s testimony to disbelief in the rest.”

Although the Seventh Circuit may not have shown its typical deference to district-court fact-finding in Edwards, the lower court’s piling on of relevant conduct is a reminder of why the drug sentencing guidelines have provoked so much criticism.  Quantity tends to overwhelm other considerations in drug sentencing, and the determination of quantity under the guidelines makes no distinction between what was proven to a jury beyond a reasonable doubt and what was proven to a judge by a preponderance of the evidence.  The diminished burden of proof under the guidelines invites dramatic increases in punishment on the basis of the sort of flimsy inferences used in Edwards.  This is especially troubling when the defendant is being sentenced under the crack guideline, which is widely recognized to be unjustifiably harsh.

The Seventh’s Circuit opinion last week in United States v. Noel (No. 07-2468) reveals a substantial division over how to handle violations of a defendant’s right to address the court at sentencing.  As now codified in Federal Rule of Criminal Procedure 32, the Supreme Court has held that defendants must be personally invited to address the court before being sentenced; it is not enough for defense counsel to be given an opportunity to speak.  I have long thought this right of allocution to be a Rorschach test of sorts, revealing fundamental disagreements in the way that criminal procedure rights are conceptualized. 

According to one view – probably the most common — criminal defendants have procedural rights so to ensure the accurate sorting of the guilty from the innocent.  Thus, for instance, we give defendants a right to counsel so that falsely accused defendants are able to mount a successful defense.  On this view of procedural rights, though, the right to allocute appears a largely empty technicality.  By the time of sentencing, the defendant’s guilt has already been established, and the selection of a sentence is not the sort of decision that has a singular right answer.  It is hard to see how allocution fits the accuracy-enhancement paradigm.  Perhaps defendants may occasionally use their opportunity to speak in ways that persuade an otherwise skeptical judge of their remorse, and perhaps the sentences these defendants receive are improved as a result.  Even so, allocution still seems to be making a rather weak contribution to the search for “right answers” in the criminal justice system; other rights (such as the rights to counsel, to obtain exculpatory evidence in the government’s possession, to confront accusers, and to suppress coerced confessions) seem far more weighty.

On a competing view, though, the rights of criminal defendants are not exclusively (or perhaps even primarily) about accuracy-enhancement, but about showing respect for defendants’ essential human dignity.  (I discussed this point of view in religious terms here.)  Central to the dignitary paradigm is giving defendants the opportunity to tell their side of the story before punishing them.  From this perspective, allocution is not merely a peripheral, “technical” right, but a core right — indeed, it is perhaps the most important right in our plea-bargaining-dominated system that rarely gives defendants an opportunity to tell their side of the story at trial. 

It is interesting to read Noel against this backdrop of accuracy versus dignitary views of criminal procedure.  Noel was convicted of possessing and producing child pornography.  He appealed both his conviction and sentence.  The Seventh Circuit (per Judge Kanne) affirmed, but only narrowly so.  For one thing, the court indicated that a police officer improperly testified at trial that Noel’s images fit the legal definition of pornography.  Although the court scolded the government for presenting this testimony, the error did not warrant reversal because Noel did not object to the testimony at trial, and the testimony did not rise to the level of plain error. 

Likewise, although the court noted a nationwide debate on the propriety of the jury instruction used by the trial judge to define child pornography (the so-called Dost instruction), any problems with the instruction did not support a finding of plain error.

This brings us to the allocution issue.  The trial judge solicited a statement from Noel’s attorney, but not Noel himself.  Once again, the Seventh Circuit found error, but not one warranting reversal. 

Because Noel failed to object in the district court, he could not win on appeal unless he showed (1) a plain error that (2) affected his substantial rights and (3) seriously affected the “fairness, integrity, or public reputation of the judicial proceedings.”  And the court did find plain error that affected substantial rights.  With respect to the latter element, the court relied on United States v. Luepke, 495 F.3d 443 (7th Cir. 2007), which held that the court “presume[s] prejudice when there is any possibility that the defendant would have received a lesser sentence had the district court heard from him before imposing sentence.”

But Noel lost on the third element.  In finding that the error did not seriously affect the “fairness, integrity, or public reputation of the judicial proceedings,” the court relied on the following facts: the sentencing judge twice mentioned Noel’s right to allocute (even though he did not personally solicit a statement from Noel), Noel’s lawyer read a letter from him at sentencing, the letter was structured much as an allocution would be, everyone at the sentencing overlooked the error, and Noel received a sentence far below the recommended guidelines range.

Chief Judge Easterbrook wrote a concurring opinion arguing that the Luepke rule of presumed prejudice should be overturned and the burden of proving prejudice placed on the defendant.  Luepke reflected a concern that defendants would have an unduly hard time showing prejudice: how could a defendant really show that he would have received a different sentence if allowed to speak?  But Easterbrook did not share this concern: “[T]he reason it is hard to show injury is that violations of [Rule 32] usually are inconsequential.”  In the same vein, he characterized a violation of the right to allocute as merely “technical.”  His emphasis on prejudice, of course, is characteristic of the accuracy paradigm in criminal procedure.  One wonders if he will be looking for an opportunity to press his desire to overturn the Luepke rule in future cases.

Judge Williams wrote a dissenting opinion with two purposes.  The first was to take issue with the majority’s conclusion that the allocution error did not seriously affect the fairness of the sentencing proceeding.  In particular, Judge Williams was far less impressed than the majority with the fact that defense counsel read the letter from Noel, which was not apparently written with the intention that it be presented in lieu of an in-court statement. 

Judge Williams’ second purpose was to defend Luepke.  In her view, “the importance of the right to allocute cannot be minimized.”  She noted the contribution of allocution to the “perceived equity” of the sentencing process, and suggested that allocution implicated “core values” of sentencing.  Plainly, Judge Williams has much more of the dignitary perspective on process than Chief Judge Easterbrook.  

The importance she would attach to the right to allocute contributed to her conclusion that the rules of appellate review should give defendants a realistic opportunity to enforce the right.  More specifically, because the burden of proving prejudice would be ”almost insurmountable for defendants,” the Luepke presumption plays an important role in ensuring that the right to allocute is something more than an “unenforced honor code” for district judges. 

Other new opinions in criminal cases were:

United States v. Johnson (No. 08-3541) (Kanne, J.) (affirming district court’s denial of Franks hearing and affirming sentence).

United States v. Plummer (No. 07-4031) (Rovner, J.) (affirming finding in drug case that substance involved was crack cocaine).

United States v. Zahursky (No. 08-1151) (Tinder, J.) (in child enticement case, reversing enhancement of defendant’s sentence under U.S.S.G. § 2G1.3(b)(2)(B) because defendant did not engage in prohibited sexual conduct).

United States v. Winbush (No. 08-1602) (Kanne, J.) (affirming sentence and conviction in drug trafficking case)

United States v. Meece (No. 09-1211) (Bauer, J.) (affirming conviction and sentence in felon-in-possession case).

United States v. Anderson (No. 08-2925) (Ripple, J.) (affirming conviction and sentence in telemarketing fraud case).

United States v. Garcia (No. 07-3964) (Kanne, J.) (affirming conviction and sentence in drug trafficking case).

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer.  Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence. 

Villegas-Miranda follows in a very interesting line of cases from United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), which held that a district judge must “give reasons for its sentencing decision and address all of a defendant’s principal arguments that ‘are not so weak as to not merit discussion.’”  (Page 5, quoting  Cunningham.)  (My recent article on what I call the “Cunningham explanation requirement” just appeared in print at 36 Fla. St. U. L. Rev. 459; an earlier draft on SSRN is here.)

Although a consecutive sentences argument was one of Villegas-Miranda’s two principal arguments at sentencing, the district judge in his case did not respond to it.  On appeal, however, the government contended that the consecutive sentences argument did not trigger Cunningham because it was “so weak as to not merit discussion.”  Villegas-Miranda thus illustrates how Cunningham creates an opportunity for the Seventh Circuit to provide a preliminary assessment of a sentencing argument without definitively ruling on its strength. 

In the end, the court agreed with Villegas-Miranda that his consecutive sentences argument should have been addressed, relying particularly on the fact that several other circuits had previously found the argument to have merit.

Other new opinions in criminal cases were:

United States v. Thyfault (No. 07-2769) (Bauer, J.) (reversing dismissal of charges on issue preclusion grounds).

United States v. Hart (No. 07-3395) (Ripple, J.) (”[W]e hold that a violation of 18 U.S.C. § 751(a), as a categorical matter, is not a crime of violence under the Sentencing Guidelines.”).

United States v. Hargrove (No. 06-2883) (Bauer, J.) (affirming constitutionality of mail fraud statute over vagueness challenge).

United States v. Elst (No. 09-1175) (Tinder, J.) (affirming denial of motion to suppress based on good-faith exception to exclusionary rule).

United States v. Oros (No. 08-2511) (Williams, J.) (affirming conviction and sentence for bribery).

United States v. Gibbs (No. 08-2186) (Wood, J.) (vacating sentence based on district court’s failure to calculate sentencing guidelines range).

United States v. Salem (No. 08-2034) (Tinder, J.) (remanding for hearing on Brady issue).

United States v. Deloney (No. 07-3451) (Bauer, J.) (affirming reasonableness of sentence in crack trafficking case).

United States v. Canady (No. 08-1267) (Williams, J.) (affirming conviction and sentence in felon-in-possession case).

United States v. Fouse (No. 07-3945) (Rovner, J.) (affirming conviction and sentence for conspiracy to distribute cocaine).

United States v. Shabaz (No. 08-3751) (Wood, J.) (affirming denial of motion to suppress confession).

United States v. Corson (No. 08-2094) (Tinder, J.) (affirming defendants’ robbery convictions).

United States v. Booker (No. 07-3094) (Williams, J.) (”[W]e remand for resentencing because Booker’s prior involuntary manslaughter conviction does not qualify as a ‘crime of violence.’”).

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack.  An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.

Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).

Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act.  Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana.  Looks like a slam-dunk issue on appeal, right? 

To be sure, the briefs in Foster were submitted before Smith was decided, which might possibly excuse defense counsel’s failure to challenge the ACCA sentence in his written filings.  On the other hand, briefing occurred after the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008), which threw open the whole question of which prior convictions count as “crimes of violence” and paved the way for Smith.  In the aftermath of Begay, it is hard to see why any defendant with an ACCA sentence and a pending appeal would not raise the “crime of violence” issue.

Nor was Foster’s lawyer holding back on ACCA in his brief in order to push an even stronger issue.  His brief focused only on whether the evidence was sufficient to support a different sentence enhancement — a line of attack the Seventh Circuit later characterized as “frivolous.”

Whether or not there was a good excuse for the counsel’s failure to raise the ACCA issue at the briefing stage, it is hard to see any justification for what happened at oral argument, which occurred nearly three full months after Smith was decided.  With Foster’s lawyer continuing to push the same losing argument he had put in the brief – or perhaps “push” is too strong a word, as we are told that “Foster’s attorney all but admitted the folly of this appeal during oral argument” — the court advised him of its holding in Smith and invited him “to consider the appropriateness of Foster’s ACCA enhancement.”  The lifeline was tossed . . . and Foster’s lawyer declined to take it.  His response: “I think the case law is clear that firing a handgun in and of itself under the circumstances of a case such as this is, can be considered a crime of violence.” 

In light of counsel’s express waiver of the issue, the Seventh Circuit (per Judge Cudahy) refused to consider it: “We cannot make a party’s arguments for him, or force him to make arguments he seems determined not to raise.”

The case raises difficult questions about the waiver doctrine and the limits of the adversarial system.  The Seventh Circuit framed the issue as one of party autonomy (”We cannot . . . force him to make arguments he seems determined not to raise.”), and I am quite sympathetic to the basic principle of antipaternalism.  One of my favorite cases to teach in Crim Pro is Faretta v. California, 422 U.S. 806 (1975), which recognized the right of defendants to represent themselves at trial — even if it means that they face a greater risk of conviction as a result.  As I see it, Faretta stands for the proposition that defendants have legitimate interests not just in maximizing their chances of a favorable outcome, but also in ensuring that their cases are presented in ways that are consistent with their personal values and beliefs.  Defendants should not be required to present defenses with which they disagree. 

But it seems a bit odd to invoke antipaternalism in Foster.  It is hard to believe there was an informed decision by Foster to surrender a strategic opportunity, as there was by Faretta in surrendering his right to counsel.  Why challenge one sentence enhancement on appeal, but not the other?  Instead, this seems pretty clearly an instance of uninformed waiver – counsel simply did not understand that the governing law had recently changed in ways that mattered to his client’s case.  Whatever we might say about the importance of respecting informed choices, decisions that are based on a mistake are not entitled to the same deference.

The real animating value in Foster is not autonomy, but efficiency.  In Foster itself, it would not have been hard for the Seventh Circuit to make the argument that the lawyer did not make, but where would the line be drawn in future cases?  Making the lawyers’ arguments for them would obviously impose a heavy burden on the court — even more so to the extent that the court would have to disentangle which waivers were truly informed and which were due to misunderstanding.  It is much easier to indulge the legal fiction that the client has given informed consent whenever the lawyer waives a potentially winning argument.  Easier on the court, that is.  When the costs of defendants sitting in prison for unnecessarily long periods of time are factored in, it may not be so clear which direction the efficiency value cuts.

Other new criminal cases last week were:

United States v. Cox (No. 08-1807) (Wood, J.) (”[T]he Government need not prove in a prosecution under 18 U.S.C. § 2423(a) that the defendant knew that the person being transported was under the age of 18.”).

United States v. Gear (Nos. 07-4038 & 07-4039) (per curiam) (holding that prior conviction for reckless discharge of a firearm in violation of 720 ILCS 5/24-1.5(a) does not trigger sentencing guidelines enhancements based on prior convictions for crimes of violence).

United States v. Dooley (No. 08-4131) (Ripple, J.) (reversing defendant’s conviction on wire fraud count based on lack of causal connection between defendant’s actions and communication at issue).

United States v. Bright (No. 08-1770) (Bauer, J.) (affirming defendant’s conviction and sentence over challenges to admission of eyewitness identification evidence, admission of “guilt-by-assocation” evidence, and sentence enhancement based on obstruction of justice).

United States v. Nurek (No. 07-3568) (Sykes, J.) (affirming 20-year sentence for defendant who pled guilty to receiving child pornography over objections to determination of guidelines range and general reasonableness).

The Armed Career Criminal Act and § 4B1.1 of the federal sentencing guidelines both provide for lengthened prison terms for certain defendants with three or more prior convictions for crimes of violence.  It’s clear that certain prior convictions qualify (e.g., rape and armed robbery), but there are a surprisingly large number of offenses in the gray area between violent and nonviolent. 

As I discussed in an earlier post, the Supreme Court recently developed a new definition for “crime of violence” in Begay v. United States, 128 S. Ct. 1581 (2008), in which the Court held that prior DUI convictions do not trigger ACCA’s fifteen-year mandatory minimum.  Begay cast a lot of circuit-court precedent into doubt, and the Seventh Circuit has been struggling ever since to develop a consistent, coherent approach to identifying what types of offenses count as ”violent.”  (See, for example, this post.)  Meanwhile, the Supreme Court has also remained active in this area.  Last term, for instance, the Court held that failure to report to prison and walkaway escapes are not crimes of violence in Chambers v. United States, 129 S. Ct. 687 (2009).  And the Court recently granted cert in Johnson v. United States to decide whether a battery offense counts as violent.

Reflecting the turbulence in this area of the law, the Seventh Circuit had three — count ‘em, three – notable new opinions dealing with the “crime of violence” question last week. 

In one, United States v. Patterson (No. 08-2240), the court (per Judge Flaum) held that transporting a minor for prostitution is a crime of violence.  But in another, United States v. High (No. 08-1970), the court (per curiam) held that second-degree reckless endangerment under Wisconsin law is not.

The most important of the three, though, was United States v. Woods (No. 07-3851).  In Woods, the court (per Judge Wood) self-consciously sought to clarify the Seventh Circuit’s post-Begay approach to “crime of violence.”  Reflecting the opinion’s importance, Woods was circulated in draft form to the full court.  Seven judges approved Judge Wood’s opinion, while just three voted to hear the case en banc.  (Chief Judge Easterbrook authored a thoughtful dissenting opinion on behalf of the three.)

Much of Woods focuses on the so-called “categorical approach” developed by the Supreme Court for use in “crime of violence” cases.  Under this approach, offenses are categorized as violent or nonviolent based not on the particular facts of the defendant’s conduct, but on the formal elements of the crime of which the defendant was convicted.  For instance, a defendant convicted of failure to report to prison may have violently resisted police when finally apprehended, but the conviction would still count as nonviolent because all failure-to-report convictions are treated the same under the categorical approach, and the Supreme Court held in Chambers that failure to report is not violent.  The categorical approach has efficiency on its side; if sentencing judges had to evaluate the conduct underlying prior convictions, the result would be a great deal of collateral litigation regarding things the defendant may have done years earlier.

The big question with the categorical approach (which has produced a few seemingly inconsistent post-Begay opinions in the Seventh Circuit) is under what circumstances the sentencing judge can look beyond the bare elements of the offense of conviction and consider such additional sources as the charging document, the plea agreement, and the guilty plea colloquy. The Supreme Court has sometimes permitted recourse to such documents as a limited exception to the categorical approach, but the Court has not clearly delineated the scope of the exception.   

Woods now clears up the matter in the Seventh Circuit: “[T]he additional materials . . . may be used only to determine which crime within a statute the defendant committed, not how he committed that crime” (10).  Thus, the “expanded inquiry” may be made only when a defendant has been convicted under a statute that is “‘divisible’ — that is, expressly identifies several ways in which a violation may occur” (14).  For instance, a single burglary statute will sometimes list several different types of structures (house, vessel, garage, etc.) whose unlawful entry constitutes the crime of burglary.  The statute is thus divisible, and the additional materials may be consulted for the limited purpose of determining which type of structure the defendant entered.  It is possible that burlary of certain types of structures would be treated as violent, while burlary of others would not.

Having clarified how to use the categorical approach, Woods turned to the specific offense at issue, involuntary manslaughter under Illinois law (720 ILCS 5/9-3(a)).  The key language from the statute was:

A person who unintentionally kills an individual . . . commits manslaughter if his acts . . . which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.

Because the statute did not specify different means by which it could be violated, it was not “divisible”; hence, the “expanded inquiry” was impermissible. 

In determining whether the elements of the statute established a crime of violence, Woods reaffirmed the important holding of United States v. Smith, 544 F.3d 781 (7th Cir. 2008), that a crime is not violent if its mens rea is merely negligence or recklessness.  Because the key mens rea element of involuntary manslaughter is recklessness, the court determined that the offense was not a crime of violence.

The government tried to distinguish Smith by arguing that the Illinois statute required that the defendant perform an intentional act; the recklessness requirement pertained only to the consequences of the act.  But, as anyone who has taken first-year Criminal Law should appreciate, the requirement of a volitional act is a basic requirement that applies to nearly all crimes.  Thus, as the Seventh Circuit observed, the government’s reasoning would “obliterate[]” the “classic line that has been drawn between the actus reus and mens rea of a criminal offense” (23). 

Other new opinions in criminal cases last week were:

United States v. Williams (Nos. 08-1470 & 08-1493) (Wood, J.) (reversing conviction because district court abused discretion in denying request for continuance).

United States v. Ramirez (No. 08-3216) (Tinder, J.) (affirming conviction in wire fraud case over defendant’s objection that “ostrich instruction” was improper).

United States v. Aguilar-Huerta (No. 08-2505) (Posner, J.) (”[W]e do not think a judge is required to consider . . . an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.”).

United States v. Wescott (No. 08-1211) (Rovner, J.) (holding that defendant in Section 922(g)(8) case may not “wage a collateral challenge to the predicate state court hearing”).

United States v. Jackson (No. 08-2295) (Cudahy, J.) (holding that police had probable cause to arrest defendant and affirming sentence).

United States v. Gearhart (No. 08-1558) (Cudahy, J.) (affirming conviction over objections based on rights to speedy trial and counsel of one’s choice).

United States v. Peleti (No. 08-1507) (Wood, J.) (holding that district court did not abuse discretion in refusing to permit defendant to withdraw guilty plea).

On the one hand, we have grown accustomed to think of judges as case managers.  We want them to dispose of cases efficiently, and splitting the difference is often the quickest way to get to a result that everyone can live with.  On the other hand, we also think about the court system as a place where objective truth is sought in an uncompromising way.  This ideal is connected, I think, to the common metaphor of judge as umpire.  In a baseball game, we would be shocked if an umpire began to award “half-strikes” for close pitches.  Or — a better comparison still — imagine a football game in which it was unclear whether a receiver cleanly caught or merely trapped a low pass in the end zone.  The ref announces, “I could take a look at the replay, but that would be a lot of trouble and probably wouldn’t provide a good angle on the play anyway, so I’ll just split the difference and call it a field goal.”  We would think such a call fundamentally inconsistent with the integrity of the game and a proper understanding of the referee’s role.  Should we feel any more comfortable when a judge simply splits the difference, rather than resolving a disputed question of fact?

The Seventh Circuit addressed this question last week in United States v. Dean (No. 08-3287).  A jury convicted Jeffery Dean of conspiring to distribute methamphetamine.  In a special finding, the jury found that the weight of the meth was less than 500 grams.  However, for purposes of determining the appropriate sentencing range under the federal guidelines, the sentencing judge is not bound by jury findings.  In preparing a presentence investigation report, the probabation officer found that Dean should actually be held responsible for more than 150 kilograms of meth. 

The difference between the jury’s finding of 500 grams and the probation officer’s finding of 150 kilograms was a very significant one.  If the judge accepted the jury’s view, then Dean’s maximum sentence under the guidelines would be 121 months, but if the probation officer’s finding prevailed the minimum sentence would be 235 months. 

Rather than expressly resolving the dispute over quantity, the judge stated that she would simply “split the difference.”  Dean then received a sentence of 156 months.

The Seventh Circuit (per Judge Ripple) held that this was an improper way to resolve the dispute and remanded for fact-finding on quantity.

In general, I am sympethetic to the view that judges ought to resolve disputes in a more principled fashion than by splitting the difference.  My own sense of the judge’s proper role is closer to the umpireal than the managerial, which leaves me with real doubts about the legitimacy of difference-splitting adjudication.

Still, two aspects of the result in Dean give me pause.  First, the federal sentencing guidelines have been merely advisory, and not binding on judges, since 2005.  The judge could have almost certainly imposed a sentence of 156 months regardless of the quantity of meth involved.  The legitimacy problem with difference-splitting adjudication seems rather less when the adjudication is not outcome-determinative. 

To go back to the football hypo: if the dispute was not about whether the ball was cleanly caught, but about whether the receiver caught the ball with one hand or two, we would not care how the dispute was resolved — it just doesn’t matter in any way that is significant to the outcome of the game.  Arguably, fact-finding disputes under the federal sentencing guidelines should now be seen as equally inconsequential. 

Indeed, the Seventh Circuit itself indicated earlier this year in United States v. Sanner that sentencing judges need not resolve all factual disputes and are free, in the words of Jon Deitrich, to “skip to the chase.”  (Jon’s insightful post on Sanner is here.)  There seems some tension between Dean and Sanner.  They might be reconciled, however, on the ground that the judge in Dean did not say that the fact-finding on quantity was irrelevant.  Perhaps the lesson for sentencing judges is this: you can skip unnecessary fact-finding, but if you choose to resolve a factual dispute and treat the fact-finding as important to the outcome, then you better find the facts on some more principled basis than splitting the difference.

Second, Dean implicates one of the enduring and powerful criticisms of the federal sentencing guidelines: the guidelines authorize judges to override jury fact-finding.  Thus, for instance, Dean would have faced the exact same sentencing range if the 150 kilos were found by a jury beyond a reasonable doubt as if they were found by a judge using the lower preponderance-of-the-evidence standard.  This approach seems to devalue the constitutional rights of criminal defendants to jury fact-finding beyond a reasonable doubt.  For this reason, there have been repeated calls for the guidelines to be modified so that judges cannot override jury determinations.  A compromise approach would, in effect, split the difference: judges could find facts inconsistent with jury verdicts, but such facts would be given reduced weight in the guidelines calculus.  (This approach has been suggested, for instance, by former Chief Judge Jon Newman of the Second Circuit – one of the most knowledgeable authorities on sentencing on the federal bench.) 

The record in Dean is not entirely clear, but it may be that the sentencing judge was trying to implement just such a weight-reduction concept.  (The judge stated, “It seems reasonable to me to make an adjustment in light of [the jury's] finding.”)  If so, then the judge split the difference not as a matter of convenience, but based on a principled belief about the best way to show respect for important constitutional values in the sentencing process.  Put differently, the judge was making a policy decision, not a decision about historical fact.  (It may seem odd for a judge to make a policy decision, but this is now a permissible aspect of the judge’s sentencing authority under the Supreme Court’s 2007 holding in Kimbrough v. United States.)  If such was the sentencing judge’s intent, then we might think about her decision to “split the difference” in very different terms.  After all, splitting the difference is a common and accepted way of making policy.

The other new Seventh Circuit opinion in a criminal case last week was:

United States v. Hurt (No. 08-2986) (Bauer, J.) (affirming conviction and sentence in drug case).

It has been widely recognized for years that federal sentences for the crack version of cocaine are unjustifiably harsh relative to sentences for the powder version.  As far back as 1995, the United States Sentencing Commission — a body not generally known for its lenience — called for equalization between crack and powder sentences.  However, progress in softening the so-called 100:1 crack-powder disparity has proceeded at a glacial pace.  In 2007, the Commission finally succeeded in reducing (but not eliminating) the disparity as it exists in § 2D1.1 of the sentencing guidelines, but statutory disparities will require congressional action to correct.  Fortunately, a bipartisan House bill cleared subcommittee last week, and the prospects for legislative reform appear unusually strong this term.

 As reformers have argued their case in the Commission and Congress, the 100:1 disparity has collided with the Supreme Court’s reinvigorated Sixth Amendment jurispudence.  In light of constitutional concerns, the Court transformed the sentencing guidelines from mandatory to advisory in 2005.  Then, in 2007, the Court affirmed what should have been obvious (but had been rejected by the Seventh Circuit and other intermediate courts of appeals): the crack-powder disparity contained in § 2D1.1 is no more binding on sentencing judges than any other aspect of the guidelines. 

But the Seventh Circuit remains resistant to the new world of advisory guidelines.  The 100:1 ratio still lives on in § 4B1.1, the career offender guideline.  And, in United States v. Harris, 536 F.3d 798 (7th Cir. 2008), the Seventh Circuit held that district court judges still may not act to correct or soften the crack-powder disparity when sentencing career offenders.  The court reasoned that the disparity in § 4B1.1 was congressionally mandated, while the disparity in § 2D1.1 was not. 

Last week, though, the Seventh Circuit limited the reach of Harris in United States v. Knox (Nos. 06-4101, 06-4376 & 07-1813) (Tinder, J.). 

In Knox, the court held that the crack-powder disparity is not binding on crack offenders convicted of just conspiracy to distribute crack, as opposed to distribution or possession with intent to distribute.  Although conspirators are covered by § 4B1.1, the Commission went beyond what was congressionally mandated in this regard.  Since application of the crack-powder disparity to conspirators is only the Commission’s policy choice, and not Congress’s, it is not binding on sentencing judges.

It strikes me as a bit odd to distinguish between defendants convicted of conspiracy to distribute and defendants convicted of possession with intent to distribute, but I am happy to see further chipping away at the unjust crack-powder disparity.  Better still would be a reversal of Harris.  The basic point of the relevant Supreme Court jurisprudence is that the sentencing guidelines are now advisory.  Period.  It should not matter whether a particular provision of the guidelines was mandated by Congress or not — the whole package is nonbinding. 

Other new criminal cases this past week were:

United States v. Hensley (No. 08-1204) (Manion, J.) (affirming conviction and sentence in solicitation of minor case).

United States v. McNeil (No. 08-1772) (Cudahy, J.) (finding plain error when sentencing court did not supplement presentence investigation report with information regarding status of state sentences).

United States v. Carter (No. 09-1608) (Flaum, J.) (finding that evidence was improperly suppressed by district court; underlying search was illegal, but connection to suppressed evidence too attenuated).

United States v. Alexander (No. 07-3718) (Tinder, J.) (holding that motion to suppress was properly denied by district court).

United States v. Alviar (Nos. 07-2333, 07-2336, 07-2366 & 07-2385) (Flaum, J.) (affirming convictions and sentences of multiple defendants in drug trafficking case).

United States v. Polak (No. 08-3381) (Williams, J.) (upholding appellate waiver’s validity notwithstanding Rule 11 error in acceptance of guilty plea).

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.  An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties.  The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal. 

Even on its own terms, the Umpire metaphor does not seem to accord with human behavior.  Baseball umpires are notorious for having different strike zones, and for applying strike zones inconsistently, in ways that affect the outcome of games.  There have been persistent calls for Major League Baseball to use machines that would call balls and strikes without error, much like the League adopted instant replay to correct mistaken calls by the officials.  If umpires are not perfect, is it fair to demand perfection from judges.   

 In fact, it is a good thing that judges do not all act alike, as if they were machines, and that our system of justice provides room for individualized discretion.  It is in our discretion that we express our humanity.  Judge Jose Cabranes (the “good Hispanic” on the Second Circuit, according to the conservative critique of the Ricci firefighters case) defended the individuality of the judging process in his 1998 book Fear of Judging.  He was writing in the context of the federal Sentencing Guidelines, and their attempt to limit the sentencing discretion of judges:

  “[W]e should start with the simple recognition that the Sentencing Guidelines are based on a fundamental misconception about the administration of justice: the belief that just outcomes can be defined by a comprehensive code applicable in all circumstances, a code that yields a quantitative measure of justice more easily generated by a computer than a human being.  We must recognize, in other words, that no system of formal rules can fully capture our intuitions about what justice requires.  The federal Sentencing Guidelines of today are based on a fear of judging: they attempt to repress the exercise of informed discretion by judges.  Instead, in the typical case, the judge is supposed to perform an automaton’s function by mechanistically applying stark formulae set by a distant administrator.  The unhappy consequences of such a system are borne by all participants in the sentencing process, including the judges themselves.  As one federal judge has put it, the Guidelines ‘tend to deaden the sense that a judge must treat each defendant as a unique human being . . . . [I]t is quite possible that we judges will cease to aspire to the highest traditions of humanity and personal responsibility that characterize our office.”  [p. 169]

 The Umpire metaphor should be rejected for the same reason: it is an attempt to appeal to the fear of judging.  The metaphor is designed to undermine any exercise of discretion by judges in the mind of the general public.  Most significantly, when a federal judge exercises their constitutional power to “say what the law is,” the general public will be primed to respond with resentment towards a judge who failed to act in accord with their expectations — despite the fact that these expectations were unrealistic in the first place.

 The Sotomayor hearings contained a second metaphor that was used to describe a Supreme Court Justice who is not objective.  The Wise Latina is a judge who incorporates her life experiences into her rulings from the bench, and who views the law through the lens of her own prejudices and beliefs.  The metaphor of the Wise Latina was created by Republican Senators in order to represent someone who possesses racial or gender grievances, who holds an ethno-centric world view, and who will choose winners and losers in the courtroom in order to redress past grievances and advance that view.  It was put forth in order to provide a negative contrast to the Umpire metaphor.

 The Wise Latina metaphor is actually a more honest description of what judges do than the Umpire metaphor.  Life experiences do influence how judges view facts and precedent.  However, the Wise Latina metaphor tells us nothing about how a judge should use their life experiences to inform their judgment whilst avoiding the danger of individualized bias.  Judge Sotomayor’s only sin was in admitting that as a federal judge she possesses a range of discretion that many people fear, and that in the case of life tenure judges this discretion is subject only to self-policing.  During the confirmation hearings, Senators Sessions and Kyl tried to argue that the Wise Latina metaphor provided a basis for predicting that Judge Sotomayor would favor ethnic minorities and women in her rulings on the Supreme Court, but they never made the causal connection between their descriptive metaphor and her future propensities.

 Not surprisingly, in her testimony Judge Sotomayor chose to embrace a third metaphor — one that is distinct from either the Umpire or the Wise Latina.  In describing her approach to the law, she put forth a vision of a Supreme Court Justice that I will call the Cabinetmaker.  As Judge Sotomayor described the job, a Supreme Court Justice is like a craftsman (or craftswoman) who takes the raw materials on the workbench (the particular facts of the case and the relevant precedent) and carefully joins them together into an opinion that is solidly constructed as to both form and function.  In so doing, the Cabinetmaker stays focused on the individual task at hand, and on serving the immediate needs of his customer, rather than on advancing some personal agenda to revolutionize home furniture design.  The result is a piece of furniture that reflects the cabinetmaker’s influences, but that does not substitute the cabinetmaker’s own taste for the client’s desires.

There is much to admire in the Cabinetmaker metaphor.  It demands that Supreme Court opinions adhere to an internal formal logic, and that they conform to the facts as found by the lower court and to prior precedent.  This metaphor therefore provides a prescriptive guide to judging.  It holds judges to an objective set of rules and it evaluates the judge’s performance on the basis of how closely they follow those rules.  Personal bias cannot be eliminated, but personal bias is not likely to overcome the formal rules of logic or to force a syllogism to arrive at a particular result.  Judges are more like craftsmen, akin to a cabinetmaker who is highly regarded for the fine construction of his furniture.  Poor craftsmanship will be obvious to most objective observers (my students will no doubt recall my in-class description of Roe v. Wade as a “wobbly three-legged stool”).

 However, despite these advantages, the Cabinetmaker metaphor is likely to prove unappealing to judicial conservatives.  The Cabinetmaker metaphor accepts the status quo, and assumes that change in legal doctrine will be slow and incremental.  It treats all precedent equally.  It incorporates the doctrine of stare decisis and calls for judges to follow precedent in all but the rarest cases.  A cabinetmaker begins each day with the expectation that they will follow the same blueprint that they applied to the last cabinet.  They do not decide one day to stop making cabinets, and become violin makers.

 Originalism has a powerful hold on the minds of judicial conservatives because it is a theory that denies the legitimacy of non-originalist precedent.  Therefore, an originalist judge considers himself justified in refusing to adhere to precedent that he views as “wrongly decided.”  Before any prescriptive model of judging is acceptable to judicial conservatives, it must provide for a means of un-doing liberal precedent.  The judge as Cabinetmaker metaphor does not do this.  Therefore, judicial conservatives will embrace the Umpire metaphor and overlook its obvious defects.

 It would be folly to read too much into these three competing metaphors.  They do not arise from any sort of critical analysis.  The Umpire metaphor had its origin in a comment by Justice Roberts during his confirmation hearings.  The raw materials from which Senate Republicans constructed the Wise Latina metaphor came from the “stump speech” that Judge Sotomayor regularly delivered to various law schools.  The Cabinetmaker metaphor was chosen and emphasized by Judge Sotomayor in order to make her less threatening to moderate Republicans and therefore more likely to sail smoothly towards confirmation.

 None of these metaphors were put forward as a closely argued, carefully considered explication of a particular judicial philosophy.  Instead, they were used as simplistic tools to convey a particular message about what judges do to the general public.  During the course of the Sotomayor hearings, the media inflated the Umpire and the Wise Latina metaphors to the point where they seemed to represent the yin and the yang of theories of judicial process.  As a result, Judge Sotomayor’s Cabinetmaker metaphor came across as evasive.  By presenting a third alternative view of judging, the Cabinetmaker metaphor was perceived as an attempt to change the subject (which it was).   

 However, before we put these metaphors back onto the shelf, to be dusted off at the next confirmation hearing, we should pause to further examine the messages that these metaphors are sending to the general public.  Scientists who study the human brain tell us that metaphors have a powerful impact on the human mind.  This is because metaphors create the internal narrative that our mind uses to understand the exterior world.  Once our mind chooses to adopt a particular narrative, that narrative becomes one of the many “stories” that our brain applies to predict outcomes.

 The recent controversy over the arrest of Harvard professor Henry Louis Gates, Jr. is illustrative.  When we human beings hear the word “policeman,” our mind immediately applies an internal narrative that creates certain expectations of how a policeman should behave (catching criminals, helping victims, acting heroically).  When our brain receives information that a particular policeman has behaved contrary to our internal narrative (i.e., by behaving rudely towards a law abiding citizen), this creates a disconnect between the fact and the narrative that our mind tries to resolve.

 If the policeman narrative has a strong hold on our brain, then the contrary information will provoke an immediate negative emotion in our mind.   This is because this particular policeman did not behave in the way that our internal narrative tells us that a policeman is supposed to behave.  In order to avoid experiencing this negative emotion, our mind may reject the contrary information (the rude behavior didn’t happen) or, in instances where the original policeman narrative has only a weak hold on our brain, replace it with a different narrative (policemen are racists).  Scientists who study the brain tell us that this process occurs immediately, and without any conscious deliberation on our part.

Therefore, the metaphors put forth during the Sotomayor hearings will greatly influence the way in which the public understands how federal judges should behave.  If the public embraces the narrative of a federal judge as an Umpire, then it will expect judges to behave in a way consistent with that narrative.  Most significantly, the public will react negatively to a judge who does not behave in a way consistent with the expectations created by their internal narrative.  I assume that we would all agree that it is dangerous to generate public discontent with the federal judiciary for performing the very role envisioned for them by the Constitution.

 As academics, we try to explain what judges do in the courtroom on the basis of reasoned inquiry.  But our academic theories stand little chance of influencing public opinion if they run counter to the public’s chosen narrative of how judge’s should behave.  Law professors ignore the influence of metaphors at our own peril.

Myers was tried on arson charges.  During closing arguments, defense counsel highlighted the fact that gasoline was not found by investigators on the floor of the building that Myers allegedly burned down.  In response, the prosecutor stated:

[A]ny speculation on the part of [defense counsel] about why or why there wasn’t gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water.  Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground.  So, ladies and gentlemen, that’s an easy explainable different part of what [defense counsel] was trying to suggest.

On appeal following his conviction, Myers challenged this statement as prosecutorial misconduct. 

In addressing Myers’ argument, the Seventh Circuit noted that the government was free to argue “the mere possibility that water could have cleaned or diluted the surface of the carpet.”  The problem was that “the government did not couch its argument in such hypothetical terms.” 

The Seventh Circuit observed:

[T]he government stated that the absence of gasoline was “easily explained” by the water from the fire hoses and that water “has a tendency” to “remove all sorts of different things” from the ground.  In other words, the government may have crossed the line from suggesting that such a hypothetical event occurred to vouching for the fact that it did occur.

Although the court seemed uncomfortable with the prosecutor’s statement – ”this remark would have been better left unsaid” – the court nonetheless affirmed Myers’ conviction because Myers was unable to demonstrate prejudice.  The evidence against him was strong, the questionable statement was only tangential to the government’s case, and Myers’ lawyer invited the remark by arguing the absence-of-gasoline point — all of these considerations cut against him in the prejudice analysis. 

Other new opinions in criminal cases this past week were:

United States v. Huffstatler (No. 08-2622) (per curiam) (affirming sentence in child pornography case).

United States v. Cole (No. 06-2547) (Sykes, J.) (affirming validity of appeal waiver and dismissing appeal).

United States v. McGraw (No. 08-2705) (Sykes, J.) (affirming decision that defendant voluntarily consented to search).

As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range.  In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts.  My proposal seeks to promote engagement with both guidelines and purposes.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference.  It will appear in a symposium issue of the Marquette Law Review this winter.  The abstract appears after the jump. 

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves. The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such “explanation review” is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts’ failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

First, the Seventh Circuit agreed with the government that the expense and stress of protracted litigation could not be considered as a mitigating factor for Presbitero.  Since Presbitero spent almost ten years (!) defending charges brought by the government, it is hard to see how anyone could qualify for a sentence reduction based on the burdens of protracted litigation if he does not.  The court cited concerns about encouraging defendants to overspend on expensive lawyers as a reason not to treat litigation costs as a mitigating factor.  There would also be equitable concerns in giving a sentence benefit to defendants who are able to spend a lot of money on private lawyers.  Still, I wonder if the court has given too little regard to the nonfinancial toll of litigation.  In some cases, as Malcolm Feeley famously observed in a book of the same title, “the process is the punishment.”  Although lawyers may make neat distinctions in their heads between the process by which guilt is determined and the punishment imposed afterwards, many defendants surely experience the process as deeply traumatic and stigmatizing in its own right.  In extreme cases, it may not be inappropriate to reduce the length of the formal sentence in recognition of the fact that the defendant has already suffered a great deal prior to the imposition of the sentence. 

Second, the Seventh Circuit rejected the government’s contention that Presbitero’s “obstinate behavior” should have been considered an aggravating factor. 

By “obstinate behavior,” the government apparently meant the defendant’s failure to make a personal expression of contrition at sentencing; rather than exercising his right to allocute, the defendant chose not to add anything to what his lawyer said.  The Seventh Circuit was properly skeptical that this was truly “obstinate,” and distinguished the case from others in which the defendant has continued to assert his innocence at sentencing.  Even in the latter cases, the court indicated that a lack of contrition could be, but is not required to be, treated as an aggravating factor. 

Finally, the Seventh Circuit rejected the government’s argument that Presbitero’s age (65) could not be considered a mitigating factor.  Thus, the district court did not abuse its discretion in finding that the defendant’s age, in combination with other factors, made him unlikely to recidivate.

Other criminal cases last week were:

United States v. Heckel (No. 07-3514) (Sykes, J.) (affirming sentence over various objections; district court correctly applied “mass-marketing” enhancement under sentencing guidelines).

United States v. Griggs (Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012) (Posner, J.) (in trial on conspiracy charges, jurors need not agree on a single overt act).

United States v. Hoke (No. 08-3883) (Ripple, J.) (district court did not abuse discretion in refusing to permit defendant to withdraw his guilty plea; defendant’s right to allocute not violated).

United States v. Taylor (No. 07-4013) (Kanne, J.) (district court did not abuse discretion is declaring mistrial).

United States v. Dodds (No. 08-2458) (Rovner, J.) (affirming various evidentiary rulings by district court).

United States v. Severson (No. 08-1508) (Bauer, J.) (affirming sufficiency of evidence to support conviction on fraud charges, jury instruction, and sentence).

As everyone living in the Milwaukee area knows, Bartlett and his codefendants were police officers convicted of civil rights violations for the savage beating suffered by Jude, a biracial man.  For many, the Jude case, which received intense local media coverage, was emblematic of the state of police-community relations in inner-city Milwaukee. 

Bartlett’s “win” on appeal resulted from a discrepancy in his sentencing. 

The federal sentencing guidelines recommended a sentence within the range of 151-188 months for Bartlett.  The sentencing judge announced that Barrtlett’s sentence would be at the top of the range, but then imposed a sentence of 208 months.  The Seventh Circuit appropriately decided that Bartlett’s sentence could not stand when there was a risk it resulted from a misreading of the guidelines:

A 208-month sentence is reasonable substantively, but no one, not even a Bartlett, should lose 20 months of freedom because a district judge read across the wrong line in a table.  (The range 168 to 210 months is the next highest in the Guidelines’ sentencing table.)

Of course, by stating that the 208-month was “reasonable substantively,” the Seventh Circuit has cleared the way for the lower court simply to reimpose the same sentence.  Bartlett’s victory may be short-lived.

Aside from the bottom-line result, a couple of other aspects of the opinion deserve note.  First, the Seventh Circuit upheld the lower court’s decision to exclude the defendant’s proposed expert testimony on the high error rates in eyewitness identification.  Along the way, though, the Seventh Circuit acknowledged the compelling social scientific evidence demonstrating the problems with eyewitness identification of strangers.  The court also indicated that expert testimony on these problems might be appropriate in some cases: “Expert evidence can help jurors evaluate whether their beliefs about the reliability of eyewitness testimony are correct.”  However, in the Jude case, such expert evidence was not improperly excluded because the convictions did not rest on a single eyewitness identification of a stranger, but on multiple identifications, some of which were made by witnesses who knew the defendant.   

Second, the court tried to sort out the messy case law on when a defendant must object to a sentence in the lower court in order to preserve the right to raise a sentencing issue on appeal.  (The government argued that Bartlett had forfeited his sentencing claim.)  The need to raise an issue in the lower court is governed by Rule 51:

Rule 51(b) . . . requires a protest immediately after the ruling if the litigant did not have an opportunity to argue the point earlier. . . . But when an issue is argued before the judicial ruling, counsel need not take exception once the court’s decision has been announced.  That’s what Rule 51(a) says.  Bartlett’s sentence was the subject of extensive argument and evidence; his lawyer did not need to argue with the judge once the sentence had been pronounced.

Other criminal cases with new opinions last week were:

United States v. Longstreet (Nos. 07-1657, 07-2685, 07-3083) (Kanne, J.) (affirming conviction and sentences arising from drug conspiracy, with limited remand for possible resentencing in light of Kimbrough).

United States v. Kincannon (No. 08-2891) (Evans, J.) (affirming conviction and sentence in drug case).

United States v. Lacey (No. 08-2515) (Manion, J.) (affirming conviction and sentence in child pornography possession case).

David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

Not so fast, said the Seventh Circuit last week in United States v. Harris (Nos. 08-1192, 08-1543, & 08-1694).  The court, per Judge Williams, vacated Morrow’s sentence because the sentencing judge failed to address the health argument, which was not an argument “clearly without merit”:

[W]e cannot assure ourselves that the district court weighed Morrow’s health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it.  We therefore remand Morrow’s case for resentencing.

In emphasizing the importance of thorough sentence explanations, particularly to demonstrate that the defendant’s arguments for lenience were at least considered, Harris indicates (contrary to an earlier prediction of mine) that the Seventh Circuit’s important decision in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), is still alive and well.  Sometimes it is nice to be proven wrong. 

As I have noted in earlier posts, my forthcoming article in the Florida State Law Review, ”Explaining Sentences,” argues that Cunningham properly required sentencing judges to give express responses to nonfrivolous arguments for lenience, but also identifies tensions between Cunningham and the Supreme Court’s subsequent decision in Rita v. United States, 551 U.S. 338 (2007), as well as various other worrisome trends in the post-Cunningham caselaw. 

As I discuss at greater length in the article, the occasional recent decisions that have vacated sentences based on Cunningham violations generally seem to ignore or misinterpret Rita.  Harris, though, suggests an interesting basis for distinguishing Rita.  In Rita, the Supreme Court held that the sentencing judge was not required to address the defendant’s arguments for a below-guidelines sentence (which, coincidentally, also included arguments based on health concerns).  But, as the Seventh Circuit noted in Harris, Rita’s guidelines range (33-41 months) was much narrower and lower than Morrow’s (360 months to life). 

And, intuitively, Rita does not seem entitled to as thorough an explanation for his 33-month sentence (at the bottom of his relatively low guidelines range) as is Morrow for his 504-month sentence (twelve years above the bottom of his relatively high guidelines range).  This is consistent with the logic of Mathews v. Eldridge, 424 U.S. 319 (1976),  which indicated that the strength of required procedural protections varies according to the magnitude of the individual interests implicated by a government decision.  Additionally, the fact that Rita was sentenced at the bottom of his range at least implicitly reflects consideration of mitigating circumstances, while Morrow’s mid-range sentence provides no such reassurance.  In short, I think Harris may be onto something in focusing on the severity of the guidelines range and placement within the range.

As an aside, I am currently working on a paper that will discuss sentence explanations in Wisconsin law and propose a specific set of principles to guide appellate courts in reviewing the adequacy of sentence explanations.  I will present the paper at the Marquette Criminal Appeals Conference on June 16, and I hope to have a draft on SSRN by the end of the month.

Other new Seventh Circuit opinions in criminal cases last week were:

United States v. Lewis (No. 08-1854) (Evans, J.) (defendant’s robbery conviction affirmed; trial court did not commit plain error in permitting certain prejudicial evidence to be given to jury; undisclosed impeachment evidence not material).

United States v. Kirkland (No. 08-3410) (Kanne, J.) (drug conviction affirmed; defendant forfeited Fourth Amendment claim).

United States v. Hosking (No. 08-1826) (Cudahy, J.) (trial court properly determined that victim’s investigation costs were recoverable through restitution order and that order could require lump-sum payment from defendant’s IRA, but order vacated because basis for amount of restitution not adequately explained).

One aspect of the case merits at least brief comment.  The defendant was awarded only a two-point, not the possible three-point, reduction in offense level under the sentencing guidelines for “acceptance of responsibility.”  The third point requires a motion from the government, and the government did not make such a motion for Sainz-Preciado.  Normally, defendants who enter a timely guilty plea, as Sainz-Preciadio did, receive the full acceptance benefit.  However, Sainz-Preciado was penalized by the government for contesting his responsibility at the sentencing hearing for drug deals that he was not even charged with.  This is a nice reminder for defense counsel of the perils of challenging “relevant conduct” at sentencing — and, to invoke one of Justice Scalia’s favorite themes, of the extent to which the guidelines system has replaced the common-law values of adversarial testing of evidence with the bureaucratic values of efficient case-processing.

Many environmentalists are apt to bristle at the apparent demonstration that federal judges are “soft” on environmental crime.  Given how little the government must prove to get an environmental conviction, however — prosecutors need not show either harm to the environment or an intent to harm the environment — I am not convinced that judges really are devaluing the environment through their sentencing decisions.  Still, I think the data warrant a rethinking of the environmental guidelines in order to give them more credibility with judges.

Here is the abstract: 

The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but the most trivial of environmental offenses. Although the terms of imprisonment are not long, the prospect of even a short period of incarceration is doubtlessly capable of getting the attention of the white-collar professionals who typically commit environmental offenses. Research I conducted in 2004, however, indicated that the bark of the environmental guidelines was considerably worse than their bite. Judges “departed” below the applicable guidelines range in an unusually high percentage of environmental cases, barely one-third of convicted environmental defendants received prison sentences, and only about forty percent of prison sentences exceeded one year in length.

Although the data contained in my 2004 study were striking at the time, ensuing developments might appropriately raise questions as to their reliability today. For instance, the Supreme Court fundamentally restructured federal sentencing law through its 2005 decision in United States v. Booker, which changed the status of the federal sentencing guidelines from mandatory to advisory.

With Booker and other developments in mind, the present article updates the data from my earlier study, demonstrating a surprising level of continuity from the Clinton to the Bush eras, and from pre-Booker to post-Booker. Simply put, despite notable institutional and legal changes, the bark of the environmental guidelines remains considerably worse than their bite.

Finally, the article considers normative implications of the bark/bite gap. In light of the overarching purposes and premises of the federal sentencing system, the data provide important support for a fundamental redesign of the environmental guidelines. Failing such a redesign by the Sentencing Commission, the data should be regarded by the courts as providing some support for arguments by individual defendants that particular provisions of the environmental guidelines should not be applied to them.

I presented the paper at a fascinating conference on environmental crime at Utah Law School, which I posted about here.  The paper will be published in the Utah Law Review.

So, sentencing is now a two-step process. (In some circuits, it’s three steps, but let that pass.) The court must first calculate the guideline range, just as it did before Booker, and then at step two determine an appropriate sentence in light of all the statutory factors.

But guideline calculations can be quite complex. The Guidelines Manual approaches 600 pages, and studies have shown that, depending on who is doing the calculating, the same set of facts can produce divergent guideline ranges. (See Professor O’Hear’s article, “The Myth of Uniformity,” 17 Fed. Sent. Rep. 249, for more on this.) Must the court, post-Booker, still resolve all disputed guideline issues, even though it has settled on an appropriate sentence under the statutory factors? Last week, in United States v. Sanner, the Seventh Circuit addressed this question.

Sanner involved two consolidated appeals that had nothing to do with each other aside from this: the judges in both cases struggled with difficult guideline issues, but ultimately imposed sentence based on the § 3553(a) factors. The defendants appealed, challenging the courts’ guideline determinations and their sentences. The Seventh Circuit affirmed, stating: “It is hard to see . . . why a district judge should bother with a possibly controversial adjustment which will have no — or little — effect on the sentence.” With or without the challenged guideline enhancements, “the judge could have considered the § 3553(a) factors and imposed the same sentence.”

Two points on this decision. First, it provides an illustration of how the Booker remedy solved the Sixth Amendment problem with the guidelines. The Sixth Amendment, as construed in Apprendi v. New Jersey and extended to the federal sentencing guidelines in Booker, requires that any fact (other than a prior conviction) necessary to the legality of the sentence be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt, rather than being found by a judge based on a preponderance standard. On the other hand, facts that a judge merely chooses to make relevant to her sentencing determination are not subject to the Sixth Amendment. In Sanner, the judges were able to impose the same sentences under § 3553(a); their findings of fact under the disputed guideline provisions were not necessary to the legality of the sentences.

Second, while Sanner grants district courts permission to skip to the chase in some cases, it should not be viewed as an invitation to avoid hard work. The court concluded that in order for the rule to apply the “judge must make clear that the sentence is based . . . on the § 3553(a) factors.” In other words, the result might be different if a district judge accepts without analysis one side’s guideline calculation over the other’s, particularly if the difference between the two is great, then imposes a within-range sentence accompanied by a rote statement that the sentence is based on § 3553(a). (One of the sentences in Sanner was above the range, and it would seem that sentences outside the range are more likely to be “genuinely” based on § 3553(a).) Sanner is a common-sense solution to the problem of complex, but advisory, guidelines. However, Sanner’s rule should be accompanied by meaningful procedural review to ensure that courts are actually basing the sentence on § 3553(a), not simply imposing guideline sentences dressed up in statutory clothes.

The Seventh Circuit (per Judge Manion) nonetheless affirmed.  The court ultimately decided that the sentencing judge had not relied on the possibility of early release in setting the sentence.  The court particularly emphasized that the erroneous statements of law were made at a hearing three months before the sentence was imposed, and that the mistakes were not repeated when the judge actually pronounced and explained the sentence.

Judge Rovner dissented, contending that reliance on a legal error had been adequately demonstrated.

Apart from the legal merits, one interesting question in this case is why the prosecutor remained silent as defense counsel was attempting in vain to persuade the sentence judge that he misunderstood the law.  Even though we now know that the error was harmless (at least in the view of the Seventh Circuit majority), this outcome could not have been clear at the time.  It would seem both in the interests of justice and prudent from the standpoint of avoiding a close issue on appeal for the prosecutor to take responsibility for correcting an obvious misunderstanding of law at the trial-court level.

In United States v. L.E. Myers Co. (No. 07-2464), the defendant corporation was convicted of criminal OSHA violations in connection with the electrocution death of one its employees.  The Seventh Circuit (per Judge Sykes) reversed and remanded for a new trial in light of erroneous jury instructions.  The errors related to mens rea issues.  Myers was convicted under a statute that bases liability on the knowing creation of a hazardous condition in knowing violation of an OSHA requirement. 

The problem is that a corporation, as a legal construct, cannot really know anything; the only way a corporation knows something is to the extent the law is willing to impute the knowledge of particular employees to the corporation.  Seventh Circuit precedent indicated that “corporations ‘know’ what their employees who are responsible for an aspect of the business know.”  More specifically, the corporation was said to know what an employee knows if the employee has a duty to report that knowledge to someone higher up in the corporation.

In light of this precedent, the Seventh Circuit determined that the knowledge instruction in Myers was too broad.  The instruction permitted the jury to convict based on any knowledge obtained by any employee within the scope of his or her employment, regardless of whether there was a duty to report the knowledge up the corporate ladder.

The trial court also erroenously gave an ”ostrich” instruction.  Such an instruction permits conviction where a defendant has “affirmatively avoided” obtaining information that would otherwise provide a basis for liability.  The Seventh Circuit determined that the instruction should not have been given because there was no evidence that Myers affirmatively acted to avoid learning the truth: “there is evidence of deliberate indifference to the facts, but there is no evidence of deliberate avoidance, and the latter is required for the ostrich instruction.”

In United States v. Ozuna (No. 07-2480), the defendant was convicted of drug trafficking based on the discovery of cocaine in his truck by DEA agents.  Ozuna argued that the search of his truck violated the Fourth Amendment.  At a suppression hearing, the government relied on a written consent to the search that was allegedly signed by Ozuna.  The defendant, however, denied the signature was his, and the district court initially granted his motion to suppress.  Following this decision, the government requested reconsideration based on a new handwriting analysis of the signature.  At a second suppression hearing, handwriting experts testified for both the government and the defense, and the court ultimately reversed its earlier suppression ruling.  On appeal, Ozuna argued that the government should not have been given a second hearing and that the court should have performed a Daubert analysis regarding scientific reliability before admitting the testimony of the government’s handwriting expert.

The Seventh Circuit (per Judge Kanne) affirmed.  The court acknowledged that at least three other circuits impose special requirements for the government to justify a second hearing on suppression.  (Such a standard would have been hard for the government to satisfy in Ozuna, as there was no apparent reason why the government could not have performed a handwriting analysis before the first suppression hearing.)  The Seventh Circuit, however, joined two other circuits that leave the matter more squarely within the discretion of the trial court.

Turning to the Daubert question, the Seventh Circuit held that the court need not conduct a special analysis of the reliability of scientific evidence in the context of a suppression hearing.  Daubert was intended to keep junk science from being presented to juries, but there is no jury at a suppression hearing.  It makes little sense to require a judge to act as a gatekeeper with respect to evidence that will be presented only to that judge.

In United States v. Huffstatler (No. 08-2622), the defendant was convicted of producing child pornography and given a sentence above that called for by the federal sentencing guidelines.  He appealed the sentence, arguing that the child pornography guidelines should not be followed because they were not the product of empirical research by the Sentencing Commission.  Although the child pornography guidelines do indeed reflect politics more than research (a topic covered in the most recent issue of the Federal Sentencing Reporter), and although sentencing judges are authorized to take such considerations into account under Kimbrough v. United States, 128 S. Ct. 558 (2007), Huffstatler’s argument was an odd one.  After all, the judge in his case did not follow the guidelines.  Huffstatler thus seemed to be advancing the facially dubious claim the because the child pornography guidelines are poorly designed, child pornography defendants must always get a sentence below the guidelines level.  Not surprisingly, the Seventh Circuit rejected this argument in a short per curiam opinion.

With uncertainty still surrounding whether sentencing judges may issue Kimbrough variances in child pornography cases, I imagine that many Seventh Circuit defense lawyers were concerned about Huffstatler presenting a challenge to the child pornography guidelines in such an unfavorable procedural and factual context.  In rejecting the proposition that the sentencing judge must vary downward in child pornography cases, the Seventh Circuit might have (intentionally or unintentionally) said things that would discourage sentencing judges from using their Kimbrough discretion in such cases.  It appears, however, that the Seventh Circuit was careful not to send such signals: “Even assuming that district courts may exercise their discretion based solely on policy disagreements with the child-exploitation guidelines (an issue we need not decide here), Huffstatler’s argument is without merit” (emphasis added). 

Indeed, there is even some language in the opinion that is helpful to defendants:

Huffstatler correctly submits that the child-pornography sentencing guidelines, U.S.S.G. §§ 2G2.1-.2, like the drug guidelines at issue in Kimbrough v. United States, 128 S. Ct. 558 (2007), are atypical in that they were not based on the Sentencing Commission’s nationwide empirical study of criminal sentencing.

Finally, in United States v. Kingcade (No. 08-2447), the Seventh Circuit considered whether the defendant properly preserved his Fourth Amendment issue for appeal notwithstanding his guilty plea.  Federal Rule of Criminal Procedure 11 permits defendants to enter conditional guilty pleas that preserve the ability to appeal particular rulings by the trial court.  Such a conditional plea must include a written agreement between the defendant and the government stating which issues are preserved.  Kingcade’s problem was that he and his attorney made several pretrial suppression motions, and the conditional plea agreement referenced a different set of pretrial rulings than the ones Kingcade actually pursued on appeal.  The Seventh Circuit (per Judge Kanne) cut him no slack.  The court relied on principles of contract law to determine the scope of the conditional plea agreement.  Because the court found no ambiguity in the language of the agreement, the court was unwilling to consider extrinsic evidence of any different intent than that which was expressed in the agreement.

In Abbas (No. 07-3866), the defendant was convicted of several crimes, including impersonating an FBI agent.  Falsely claiming the power to make various immigration and criminal problems go away, Abbas tricked several desperate victims into paying him for assistance.  A jury found him guilty of a number of charged offenses, but acquitted him of extortion under color of official right in violation of the Hobbs Act.  Curiously, though, the district court judge sentenced Abbas based on the federal sentencing guideline for extortion under color of official right.  (As I discussed with my Sentencing students just last week, the guidelines permit defendants to be punished for crimes of which they have been acquitted.  Sound strange?  You would not be alone in so thinking!)

On appeal, Abbas argued that “extortion under color of official right” only applies when someone who is actually a public official abuses his authority, and does not cover private citizens who are merely pretending to be public officials.  In effect, Abbas argued that he was really only guilty of fraud, not the more serious offense of extortion.  And, had he been sentenced for fraud, his guidelines range would have been only 15-21 months, instead of the actual 24-30 months.

The Seventh Circuit (per Judge Tinder) agreed . . . but still declined to order a resentencing.  Abbas won the battle, but not the war.

Specifically, Abbas lost on the harmless error doctrine, which saves trial courts the trouble of conducting a new proceeding when there was merely a technical error in an earlier proceeding that did not affect the outcome. 

Taking into account the harmless error doctrine, the Seventh Circuit indicated that a two-step analysis should be used when a guidelines range is incorrectly calculated.  First, to “prove harmless error, the government must be able to show that the Guidelines error did not affect the district court’s selection of the sentence imposed.”  Second, the court of appeals must determine whether the actual sentence was substantively reasonable in light of the properly calculated guidelines range; in other words, “was the district judge’s explanation sufficient to justify an upward departure from what is the appropriate guideline range”?

Although the Seventh Circuit’s application of the two-part test in Abbas seemed reasonable enough, one aspect of the opinion gives me pause: the court’s reliance on the sentencing judge’s statement that she would have imposed the same sentence regardless of whether she properly calculated the guidelines range.  Whether intentionally or not, the opinion sends a message to district court judges who wish to avoid reversal that they should always make such a statement (”I would have given the same sentence whatever the guidelines say”) whenever they make a contested calculation under the guidelines.  I hope that the Seventh Circuit will not start to accept such statements uncritically.  Even if the sentencing judge makes such a statement in good faith, I would generally be pretty skeptical that the judge has made an accurate self-assessment.  Just because an after-the-fact rationalization is genuinely believed does not make it true.  As I discuss in this forthcoming article, there are a number of psychological reasons to suspect that guidelines calculations, once made, are sticky — at an unconscious level, they condition the judge’s subsequent analysis of other sentencing factors.  Taking these cognitive mechanisms into account, I should think it an unusual case indeed in which the government could satisfy its harmless error burden when there has been a guidelines miscalculation.

In Nagel (No. 08-2535), the defendant exchanged sexually explicit communications via computer chat and telephone with a fourteen-year-old girl.  When he traveled to meet her, however, he discovered that ”Maria” was really a Milwaukee cop.  Nagel then pled guilty to attempting to entice a minor to engage in a criminal sexual act in violation of 18 U.S.C. § 2422(b).  Since its amendment in 2006 through the so-called Adam Walsh Act, § 2422(b) has included a mandatory minimum prison term of ten years, and Nagel was sentenced accordingly.  On appeal, he challenged the constitutionality of the mandatory minimum on Equal Protection and Cruel and Unusual Punishment Clause grounds.  Both claims were rejected by the Seventh Circuit (per Judge Kapala, sitting by designation).

The Equal Protection claim was clever — Nagel argued that since some drug offenders get the benefit of a “safety-valve” statute that releases them from the drug mandatory minimums, sex offenders must be given similar treatment — but clearly a non-starter.  The Cruel and Unusual Punishment claim had a little more to it, but (given our anemic Eighth Amendment jurisprudence in noncapital cases) not much.  As I tell my Sentencing students, the plurality decision in Ewing v. California, 538 U.S. 11 (2003), effectively adopted a rational-basis test for noncapital sentences: as long as a sentence can be rationally seen as furthering any of the several traditionally recognized purposes of sentening, it will be upheld.  (Justice Scalia’s concurring opinion is right on the money in asserting that the test is not really a “proportionality” test, notwithstanding the plurality’s use of the term.)  Given that Ewing itself upheld a mandatory minimum of twenty-five years for shoplifting, a defendant like Nagel complaining about a ten-year term is not likely to get much traction.

Still, while there was not much doctrinal basis for the Seventh Circuit to do anything but uphold Nagel’s sentence, I am disappointed that the court seemed to embrace the rationality of the ten-year mandatory minimum without much reservation.  As noted above, it was adopted as part of the Adam Walsh Act, which is now recognized as an unusually clumsy and costly attempt to punish and control sex offenders.  And, in general, mandatory minimum statutes are bad policy: they supplant the informed judgment of the Sentencing Commission and individual judges with crude, one-size-fits-all sentencing.  But the Seventh Circuit nonetheless seemed to have no perceptible difficulty with the AWA mandatory minimum:

Because individuals who violate § 2422(b) always present a serious danger to children, it was entirely rational for Congress to conclude that violations of § 2422(b) are always serious enough to require a mandatory minimum sentence.  In contrast, while the drug offenses enumerated in [the safety-valve law] are also serious, particular drug offenders present varying degrees of risk to the community depending on the circumstances.

It’s not clear to me why the court thinks § 2422(b) violators “always present a serious danger to children,” while “particular drug offenders present varying degrees of risk.”  Interestingly, these assertions do not seem presented as characterizations of what Congress found to support § 2422(b), but as the court’s own understanding of empirical truth.  And the assertions are surely overstated.  Section 2422(b) encompasses a wide range of conduct, covering enticement of anyone under age 18 to engage in sexual activity in violation of state law.  Although no one can be pleased about unmarried teenage couples having sex, that sort of conduct is very different in blameworthiness and dangerousness from the sort of predatory or pedophiliac behavior that the court seemed to be equating with violations of § 2422(b).  Just as drug offenders present “varying degrees of risk,” so do sex offenders.

Of course, none of this is to disagree with the bottom-line result the court reached.  I just mean to suggest it would have been better if the court could have gotten to that result without reinforcing the unfounded stereotype that all sex offenders are predators and pedophiles.

McMath’s jury-selection claim centered on alleged racial bias in the prosecutor’s use of peremptory strikes.  In Batson v. Kentucky, of course, the Supreme Court made clear that prosecutors are prohibited from removing potential jurors from a case on account of their race.  Here are the relevant facts from McMath:

There were two African-Americans on the panel from which McMath’s jury was selected, and the prosecutor removed one of them.  McMath’s lawyer objected, arguing that there was little information available about the potential juror other than that he was a retired janitor, and there seemed no race-neutral reason to strike him on that basis (”There’s other jurors left on this jury that are retired.”).  The prosecutor responded, “Race neutral factor is expression on his face.  That’s all I can say.  He looked angry and not happy to be here.”  McMath’s lawyer replied, “I think pretty much the whole jury looked like that.”  Prosecutor: “I disagree.  I didn’t see that expression.”  My guess is that if the prosecutor did not see some other potential jurors who looked unhappy to be there, she was not looking very hard.  In any event, following this colloquy, the judge denied the Batson challenge without explanation.

In order to understand the Seventh Circuit’s analysis in McMath, one must be familiar with the three-step process prescribed by the Supreme Court for Batson claims: (1) the defendant must present a prima facie case of racial discrimination in the exercise of peremptory strikes, (2) the prosecutor must respond with a race-neutral explanation for the challenged strike(s), and (3) the court must decided whether the defendant has carried his burden of proving improper discrimination.

On appeal, the government argued that the defendant failed to carry his step-one burden of making out a prima facie case.  However, the Seventh Circuit (per Judge Flaum) indicated the issue was moot because, “at the time of the challenge, the prosecution provided a race-neutral reason and the district court ruled on the Batson challenge.”  The message for prosecutors seems to be this: if you want a ruling on the defendant’s prima facie case, you need to get it from the trial judge before offering your race-neutral explanation.

Despite its suggestion that the issue was moot, the Seventh Circuit also indicated that McMath actually did succeed in making out a prima facie case, emphasizing how low the burden was:

[A] defendant need only produce evidence sufficient to permit an inference of discrimination in order to satisfy the first step of the Batson analysis.  The test is not rigorous: suspicion even less than “more likely than not” suffices. . . .

Here, the defendant met this threshold. . . . While it is true that it would not have been sufficient for defense counsel merely to point to the stricken juror’s race, defense counsel’s statement that jurors sharing Juror 7’s only other known characteristic, his status as a retiree, had been retained by the prosecution pointed out a relevant circumstance that was sufficient to permit an inference of discrimination . . . .

Since McMath made out a prima facie case, the burden shifted to the prosecution to produce a race-neutral reason.  This burden was carried, though, when the prosecution invoked the stricken juror’s demeanor.  The trial court was thus required, under step three of the Batson analysis, to determine whether discrimination had been adequately proven.  The trial court indicated it found no discrimination, but offered no explanation for this conclusion.

The Seventh Circuit held, however, that Snyder required more than this bare rejection of McMath’s claim.  In Snyder, as in McMath, the prosecutor relied on a stricken juror’s demeanor for a race-neutral explanation.  Demeanor is a troubling as an explanation, though, because it is so subjective and ephemeral.  The trial judge may have difficulty recollecting for himself or herself how a prospective juror looked during voir dire, while the appellate court has no ability at all to review this type of evidence.  This is not to say that demeanor is necessarily a false race-neutral explanation, but it is to say that demeanor will generally provide a safe and convenient out for a prosecutor who lacks a good race-neutral explanation.  Snyder recognized the problem, and indicated that trial judges should make clear findings as to demeanor issues when they are raised in the Batson context.

The Seventh Circuit thus relied on Snyder in remanding McMath for explicit fact-finding on the Batson issue: “Snyder makes clear that a summary denial does not allow us to assume that the prosecution’s reason was credible; rather, the district court’s silence leaves a void in the record that does not allow us to affirm the denial.”

Although agreeing with McMath’s Batson argument, the Seventh Circuit rejected his claim that he was entitled to a new trial because of improper arguments made by the prosecutor to the jury.  Reading carefully, though, one finds some real criticism of the prosecutor’s conduct:

• “the prosecutor should not have commented directly on the officers’ credibility”
• “it was improper for the prosecutor to say that the officers would lose their jobs if they lied”
• “the prosecutor probably should not have said that she ‘knew’ McMath did not want to admit his guilt”
• “even if the comments shaded into impermissible commentary”

In denying McMath’s claim of prosecutorial misconduct, the court emphasized that — due to the failure of McMath’s lawyer to object at the time to the prosecutor’s questionable comments — it was using the deferential plain error standard of review.  In effect, it seems that the mistake of the defendant’s lawyer excuses the mistakes of the government’s lawyer.

The gentle treatment in McMath of the prosecutor’s “improper” statements contrasts sharply with the direct, personal criticism leveled by the Seventh Circuit at a prosecutor just one week earlier in Farinella, which I blogged about here.  I’ll let readers judge for themselves whether the prosecutor’s improper statements in Farinella really were so much more egregious than the challenged statements in McMath.

The other two cases from last week merit less extended discussion.

In United States v. Groves (No. 07-2227), the court (per Judge Sykes) held that suppression of evidence was not required where it was obtained after a stop based on an anonymous tip.  The Seventh Circuit has had a number of anonymous tip cases recently.  (I noted one just last week here.)  In Groves, the court observed, “Although an anonymous tip is generally insufficient to support an investigative stop, there was more supporting this stop than just an anonymous tip.”  A wrinkle here is that the police dispatcher incorrectly informed the responding officers that there was an outstanding warrant for Groves’ arrest.  However, the court relied on the Supreme Court’s very recent decision in Herring v. United States, 129 S. Ct. 695 (2009), to hold that “a negligent mistake by police personnel regarding the existence of a warrant does not require application of the exclusionary rule.”

The Groves court also affirmed the reasonableness of the sentence, 240 months, notwithstanding a sentencing guidelines range of 151-188 months.

In United States v. Shah (No. 07-1306), the court (per Judge Posner) reversed the defendant’s conviction for violating 18 U.S.C. § 2314, which prohibits the transportation of people across state lines for purposes of executing or concealing a scheme to defraud.  Shah’s conviction was apparently based on his dispatching a courier across state lines in order to further his fraudulent scheme.  The Seventh Circuit ruled, however, that the statute requires that an intended victim be the person who is transported.  It was not enough for the government to rely on the transportation of an agent of the defendant’s.