The Seventh Circuit had only two new opinions in criminal cases last week, with both focusing on sentencing issues. The first, United States v. Abbas, clarified the harmless error doctrine as it relates to mistaken sentencing calculations. The second, United States v. Nagel, considered the constitutionality of a ten-year mandatory minimum for enticement of a minor. By some coincidence, both cases involved impersonation.
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.