Ever since the Supreme Court converted the federal sentencing guidelines from mandatory to advisory in 2005, I’ve followed with particular interest the case law on how sentences must be explained in the new regime. Even more specifically, I have focused on the question of when sentencing judges are required to respond expressly to defendants’ arguments for lenience. (See, for example, my post here.) I’ve also wondered about the flipside of that question — when must judges respond expressly to prosecutors’ arguments in aggravation? — but cases on this seem far less common. Last week, though, the Seventh Circuit addressed an issue that seems closely related to my hypothetical question.
In United States v. Glosser (No. 08-4015), the judge made a promise to the defendant at his change-of-plea hearing that he would impose the statutory minimum 120-month sentence in the case, notwithstanding the prosecutor’s suggestion that the government might seek more. And, indeed, it turned out that the government sought a 210-month sentence in light of firearms found at Glosser’s resident. The judge, however, mostly stuck to his promise and imposed a 121-month sentence. The government appealed.
Although predetermining the sentence before hearing a party’s arguments is not exactly the same thing as passing over a party’s arguments in silence, they seem functionally much the same. And, in Glosser, the Seventh Circuit indeed indicated that the former is a reversible procedural error. The government’s success in Glosser thus suggests the government has much the same opportunity to challenge sentence explanations as defendants.
Another aspect of Glosser also strikes me as noteworthy, that is, the court’s consideration of whether the error was harmless. The sentence explanation cases do not often include express consideration of harmlessness, which is not surprising because a failure to address a party’s sentencing arguments does not lend itself to a harmlessness analysis — post-Booker federal sentencing is so discretionary that it is difficult to see how harmlessness could be either proven or disproven.
The Glosser court seemed ambivalent about whether harmless error analysis was appropriate. On the one hand, the court did conclude (in a rather conclusory way) that the error was not harmless (“Although the district court have several reasons at the sentencing hearing for imposing a below-guidelines sentence of 121 months, we are not confident that it would have done so if it had not decided it would impose the mandatory minimum sentence when Glosser changed his plea to guilty.” (14)). On the other hand, the court also suggested that the error might be more properly analyzed as “fundamental procedural error” that would not require harmless error analysis (15). Because the outcome would be the same either way, the court did not need to definitively resolve whether the error was fundamental or not — an interesting open question.
Cross posted at Life Sentences.