Wednesday, December 10, 2014

Must Read Part II: Tenth Circuit on Sentencing Error

We return to Sabillon-Umana and its discussion of the extent of a district court's authority to depart downward via USSG 5K1.1 (cooperation). Below, the government convinced the district court that it could not impose a sentence below that recommended by the government in light of its 5K1.1 motion. That was incorrect (the government acknowledged this on appeal). The short of it: "Section 5K1.1 does not grant prosecutors the power to control the length of a defendant’s sentence. Rather, it is emphatically for the court, not the government, to determine the appropriate sentencing reward for the defendant’s assistance." In fact, the government's recommendation is just one factor of five listed in USSG 5K1.1. The defense is free to argue (assuming no contrary language in a plea agreement) for a reduction greater than the government's recommendation, and the court can depart beyond the government's recommended sentence (or impose a sentence greater than the recommendation). 
 
But this seemingly obvious error is not what gets our attention. Instead, we are intrigued by the Court's application of the standard of review. The defense did not object in the district court (there is some debate about this), and so the defendant had to establish plain error on appeal (see Fed.R.Crim.Pro. 52(b)).

At least in the Tenth Circuit, plain error has typically meant "no relief." It is described as a "demanding" and "rigorous" requirement; one that requires a defendant to "run the gauntlet" in order to get relief. 

But in Sabillon-Umana, the Court levels the plain-error field, at least for guideline errors. Plain error review has four sequential questions that require four affirmative answers:
1) is it error?
2) is it plain error, such as a violation of a known rule?
3) does it affect the defendant's substantial rights?, and then
4) does the error seriously affect the fairness, integrity, or public reputation of judicial proceedings? 

The first two are given. On the third, "[i]f the guidelines form the essential starting
point in any federal sentencing analysis (and they do), it follows that an obvious error in applying them runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside the range the guidelines suggest."  Got that? If the court misapplied the guidelines in the first place, maybe by assessing too much loss or by finding an unsupported quantity of drugs, it presumptively affected the defendant's substantial rights, even if a variance or departure was granted below the calculated range. If the start is wrong, the end is wrong."[T]the whole point of the guidelines is to affect the defendant’s 'substantial rights' by guiding the district court’s analysis of how much of his liberty he must forfeit to the government." 

Now, the final question, which is (or was) often fatal to the defense: does the error affect the fairness, integrity, or public reputation of the judicial proceedings? Of course is does. "[W]hat reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?" 

Now, presumptions can be overcome, but that will be the exception, according to the Court. The presumptions are "sensible and consistent" because "the benchmark for the entire sentencing process rests on an obviously mistaken premise."  The Court also walked back, as an accidental deviation from settled precedent, any requirement that the defendant show a "strong possibility of receiving a lower sentence on remand." This burden would be contrary to the plain-error presumption.  

Plain error does not always require remand. But the Court pointed out the small cost of remedying a guideline error: "A remand for resentencing, after all, doesn’t require that a defendant be released or retried but simply allows the district court to exercise its authority to impose a legally permissible sentence." 

The bottom line is that an obvious guideline error is plain error and should be remanded. 

Moving forward, recognize that this case is a significant shift in sentencing law in the Tenth Circuit (many of the other Circuits have sung this tune for years now). And remember yesterday's post: the (il)legitimacy of judicial findings to support guideline increases is back in play. This revamped argument calls for caution when a defendant might be asked to admit facts not necessary to a guilty plea, but that could support a Guidelines enhancement.

Post from The Volokh Conspiracy here

We end on this: the Court was openly critical of the government's arguments in this case, and it appears as if the government might have got the hint. Yesterday, it confessed error on a similar issue in a case currently pending in the Tenth Circuit (United States v. Valencia, No. 14-2091).  This is not to say that the case necessarily changed the government's position, but it was quick to pick up on the decision and to recognize the significance of it. 

No comments:

Post a Comment