After a long hiatus, I am back blogging. If there's anyone who actually reads this blog, I would suggest heading to Professor Berman's blog and the Tenth Circuit blog to catch up on the blog backlog. At any rate, the Tenth issued an interesting sentencing decision today in US v. Servin-Acosta.

The defendant argued that his prior conviction for robbery was not sufficient to be considered a crime of violence under the sentencing guidelines. In short, he argued that the district court erred by relying on a minute entry of his prior conviction and that the evidence offered at sentencing was insufficient to establish that his prior robbery conviction was for the crime of generic robbery, as required by 2L1.2.

The Tenth rejects the defendant's argument that a minute entry is insufficient, noting that the United States also furnished the district court with two immigration reports from the defendant's deportation proceedings. Because the defendant failed, however, to present any evidence to contradict the prior conviction, the court holds that the government met its burden and the documentation provided was sufficiently reliable.

The Tenth does find merit in the defendant's contention that the California robbery statute is broader than the definition of generic robbery utilized by the guidelines. As the court notes, "[a] State's designation of a criminal provision as its 'robbery' statute does not necessarily mean that it qualifies as "robbery" under 2L1.2." Instead, the court adopted a "uniform generic definition" of robbery, and concluded that the California statute could encompass a broader range of conduct than "generic robbery." The Tenth further observed that the government "has conceded that second-degree robbery in California is broader than generic robbery, and it has presented no evidence that Mr. Servin-Acosta's specific offense was generic robbery. It simply put all its eggs in one defective basket..." The court remanded the case for further sentencing proceedings.

Tenth's Latest Attempt at Reasonableness Review

For any federal practitioner who thought that Rita, Gall, and Kimbrough clarified the state of reasonableness review, take a look at US v. Smart. The majority affirms the district court's sentence of 120 months for a defendant convicted of inducing a minor to engage in sexually explicit conduct, despite the fact that he received an enhancement for obstruction of justice and did not receive acceptance of responsibility because he exercised his right to trial. The district court declines to impose the guideline sentence of 168-210 months because of the potential disparity with a more serious co-defendant who pled guilty and received 120 months.

The United States appealed, arguing that it was improper for the judge to consider the disparity and the trial penalty in its sentence. The Tenth affirms, rejecting the government's contention that disparity is an improper consideration in light of Gall. The Court likewise finds that "[b]ecause the district court plainly did not rely on Smart's decision to go to trial as a justification for its downward variance, we need not decide whether such a consideration would constitute procedural error after Gall." Also noteworthy is the Tenth's explicit rejection of its prior decision in Garcia-Lara, relying on the intervening law set forth in Gall and Kimbrough.

The dissent, however, takes issue with the distinction between procedural and substantive reasonableness offered by the majority. Judge Hartz, while not actually finding that there was procedural error, would characterize a district court's consideration of erroneous factors as procedural error rather than analyzing the substantive reasonableness of the sentence as the majority does. Hartz's concerns over the characterization of error are likely unnecessary in this particular case, but his assessment of error is at least interesting.

I suspect that other justices, inclined to give less deferential review to defendants who have prevailed in the district court, will likely strain their analysis to ensure that many errors are characterized as procedural rather than substantive. While the opinion and dissent may not appear to be ground-breaking at first glance, the issue at stake is indeed great as it affects the very standard of review that will apply on appeal.

Categorical Confusion

If the categorical and modified categorical approaches weren't confusing enough, take a look at the Tenth's latest foray into prior conviction analysis in US v. Maldonado-Lopez. The defendant appealed the district court's determination that his three prior misdemeanor convictions warranted a four-level bump under 2L1.2(b)(1)(E). At issue was whether each of the prior misdemeanor was properly classified as a crime of violence. The district court analyzed two of the available transcripts for the prior convictions, but relied solely on a judgment for the third. Because the Colorado statute at issue criminalized behavior that did not necessarily involve physical force, the Tenth declined to apply the categorical approach. Because the third conviction, for which there was no plea transcript, did "not describe Defendant's actual conduct but only the statutory section to which he pled guilty," the district court erred in classifying the prior conviction as a crime of violence.

More interesting than the result in Maldonado-Lopez, however, is Judge McConnell's concurring opinion, which begins with the observation that "[t]his Circuit's precedent has become confused regarding when to use the pure 'categorical method,' when to use the 'modified categorical method,' and when to use the 'factual approach,' in determining when various sentencing enhancements apply on account of prior convictions." McConnell details the muddled state of Tenth Circuit law on the issue of the categorical approach, even noting that his own prior opinions contradict one another. While McConnell observes that Maldonado-Lopez does not present the occasion to fully clarify the Tenth Circuit's contradictions, he does remark that "[i]t thus appears our Circuit has been overly casual in considering what role charging papers and plea agreements play in determining the elements of a crime. At some point we will have to resolve that contradiction in our case law and determine whether the 'modified categorical approach' can properly be used in determining the elements of a state-law offense."

ACCA Trap for the Unwary

The Armed Career Criminal minimum of 15 years will typically apply if an offender has three prior convictions for violent felonies. This enhancement applies so long as the violent felonies were "committed on occasions different from one another." See 18 U.S.C. 924(e). In an unpublished decision in US v. Stupka, the Tenth Circuit holds that three burglaries committed on apartments under the possession and control of the same people, on the same day, at the same address, and by using a master key suffice for the requisite violent felonies.

The fact that the statute is specifically targeted at career criminals is of no consequence since the burglaries were committed "on occasions different from one another." As the Court noted, "Mr. Stupka could not have simultaneously burglarized all three apartments. In addition, although the apartments were in the same complex ... he had to "break and enter" each apartment separately."

This bizarre decision should cause defense attorney to seriously scrutinize all of the potential predicate offenses before entering a plea. Different counts in the same charging document can give rise, as in Stupka, to multiple predicate offenses even though the convictions appear at first blush to be inextricably intertwined.

Error in Calculating Guideline Range Reason for Reversal

In United States v. Todd, the Tenth held that the district court's failure to properly calculate the guideline range warranted reversal. The district court failed to take into account the admissions of the defendant that he obtained at least two ounces of meth per month over the year preceding the indictment, instead noting that the government had failed to prove the quantities by a preponderance of the evidence.

Relying largely on the uncontroverted admissions of the defendant, the probation department, the government, and the Tenth Circuit all agree that the defendant's guideline range should have taken into account the quantities acknowledged (and unrefuted) by the defendant himself. Because the guideline error resulted in a range of 77-96 months rather than 188-235 months, the court of appeals declines to find the error harmless, noting that "the district court expressly relied upon the lesser Guidelines range when passing sentence."

Though not central to the disposition of the appeal, the Tenth Circuit also addresses the defendant's argument that acquitted conduct should not factor into a court's sentence. The Court, while also noting that the case did not really present the issue of acquitted conduct, holds that Watts remains good law and acquitted conduct can be properly considered.

The Todd decision should provide a reminder to all defense counsel that admissions of prior conduct will be counted as relevant conduct. Also of interest is that Gorsuch authored the opinion in this case. He has taken the lead, so to speak, in parsing out the Tenth's view of post-Rita and post-Gall sentencing (he also authored the recent McComb decision), which could cause reason for concern among defense practitioners as his views appear to be extremely deferential to the government (and not just in a Gall-mandated deference).

District of Arkansas Judge Tackles Gall and Guidelines

First noted on Professor Berman's blog, there is a fascinating sentencing memo detailing (and assailing) the blind adherence to the guidelines, the severity of home confinement, the need to account for medical infirmities, alternatives to imprisonment, and a host of other issues. District Judge Robert Dawson's 30 page sentencing memorandum is a must read for those interested in a thoughtful analysis of sentencing practices.

In justifying the sentence of home confinement because of the defendant's serious medical issues, the court notes,
The Court is not unaware that the sentence imposed today will dismay those who feel no punishment other than imprisonment can adequately punish Coughlin or any defendant convicted of any crime. But the Court is more concerned with engendering derision for the law in those aware of Coughlin's medical condition that might well be outraged by a criminal justice system that, despite the real investments of intelligence and moral judgment that contribute to that system, produces a sentence plainly inhumane. Imprisonment is unnecessary because probation can accomplish the goals of punishment, while avoiding a serious threat to Coughlin's life.

In addition, the judge provides a thoughtful analysis of the stautory goals of sentencing, remarking that "3553(a) permits variance because, based on the unique facts of a particular case, the sentence suggested by the Guidelines is not appropriate, as one size cannot be said to fit all. No chart of numbers will ever fully contemplate, quantify and cipher the endless variations of the human experience. While it might provide a normalizing force in sentencing, we cannot, with a system of points and categories, reduce justice to a universal formula."

In final rhetorical flourish, Judge Dawson observes that "[a] court that mechanically doles out precalculated sentences on a wholesale basis to categories of faceless defendants fails to do justice. A court that succumbs to apathy, bred by repetition, will cease to see defendants as individuals, with pasts and potentials, with humanity and promise."

While I am not sure that I agree with the ultimate sentence of home confinement imposed in this case, I recognize the appeal of Judge Dawson's criticism of the rote, mechanical nature of the guidelines as well as appreciate the thoughtfulness of his reasoning. If Rita and Gall are to have any real meaning, it is imperative that sentencing judges fully explain their reasoning and rationale without simply falling back of the mathematical precision of a sentencing matrix. I hope that more judges will follow Judge Dawson's lead.

District Court Error in Granting One Level Post-Trial Acceptance Not Harmless

The Tenth Circuit in U.S. v. Lozano addressed whether the district court's error in awarding the defendant a one-level reduction for acceptance of responsibility was harmless given the circumstances. The defendant had gone to trial solely to contest a conspiracy count, expressing a willingness to plead guilty to lesser counts of distribution. After being convicted at trial of the distribution counts and acquitted on the greater conspiracy count, the defendant requested a two-level adjustment for acceptance of responsibility, to which the government objected. The district court split the proverbial baby, granting a one-level reduction instead of the two-level adjustment provided by 3E1.1.

While the government acknowledged the district court's error, it maintained that any error was harmless since the judge would simply impose the same sentence on remand. The government also contended that the post-trial reduction was inappropriate as an adjustment for acceptance of responsibility post-trial is to be used sparingly, and the defendant did not admit factual guilt on the distribution charges.

The Tenth finds that the error was not harmless, remarking that the court sentenced the defendant at the low end of the guideline range and that "hazarding a guess as to what the district court would do upon resentencing absent the erroneous downward adjustment under 3E1.1 'places us in the zone of speculation and conjecture.'"

District Court's Presumption of Reasonableness Deemed Harmless Error

In an unpublished decision today, the Tenth Circuit in U.S. v. Prieto-Chavez affirmed the defendant's sentence of 57 months despite the fact that the AUSA and the court both assumed that the presumption of reasonableness for a guideline sentence applied at the district court level. In fact, the district court judge stated that "basically there is a presumption of reasonableness that attaches to a correctly calculated guideline sentence" and that the "presumption of reasonableness has not been overcome by the defendant..."

The panel starts its analysis by noting that the district court erred by according a presumption of reasonableness to a guideline sentence as well as imposing a burden on the defendant to overcome that presumption. Because the defendant did not object, however, the court initially suggests that plain error review is appropriate. Interestingly, the court also reviews the district court's sentence under a harmless error standard as well since "a review of our caselaw both prior to an after Rita indicates that there was some confusion about the propriety of a district court's application of a presumption of reasonableness to a Guidelines sentence."

The panel, reviewing under both plain error and harmless error standards, holds that there was no reversible error. The decision is predicated in large part on the fact that the district court conducted a thorough review of the 3553(a) factors. The panel at least provides some analysis under the plain error standard, but it summarily concludes that the government met its burden under the harmless error standard.

There is little discussion about the possible impact on the defendant's sentence that the government's erroneous legal stance had, nor is there any substantive discussion about how a court operating under the assumption that the defendant bears the burden to show the advisory guideline unreasonable might plausibly consider a different sentence once it recognized its error. The harmless error analysis--if one can even call the summary remarks analysis--is disappointing at best and disingenuous at worst. The deference to the sentencing judge's consideration of 3553(a) factors is understandable given the Supreme Court's recent decisions, but this decision undermines the importance of procedural reasonableness espoused by the Court in Rita.

Scathing Dissent Assails Guidelineitis

Ok, so it's another case from outside of the Tenth Circuit, but the dissent in United States v. Sedore is a must read. Judge Merritt of the Sixth Circuit skewers the "guidelineitis" of the federal system, defining the term as "the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone." Thankfully, his criticism of the guideline-centric federal regime does not end there.

Judge Merritt labels the sentencing process as a "disingenuous process" that is "completely inconsistent with the Blakely and Booker opinions." He further comments that courts have failed to faithfully apply the holdings of Booker and Blakely, noting that it is clear "that the district courts and the courts of appeals ... are not applying [Blakely] and do not believe the Supreme Court actually intends to enforce it."

For the most part, Judge Merritt's dissent offers a frank assessment of the sad realities of post-Booker federal sentencing, a reality about which defense practitioners and their clients are likely already aware. The old adage that 'the more things change, the more they stay the same' has felt appropriate for the past few years of the post-Booker regime. What was initially hailed as a breakthrough for defendants and a re-affirmation of the oft-ignored Sixth Amendment rights has regressed to the status quo ante. If there is a glimmer of hope in the current sentencing malaise, it will come from dissents like Judge Merritt's, which rightly bemoans the sorry state of affairs. Sure, Gall and Kimbrough have provided some hope, but the rumors of the Guidelines' demise have been greatly exaggerated.

A Most Reasonable Upward Departure

In an unpublished decision today, the Tenth Circuit affirmed a 327 month sentence in United States v. Akers when the advisory guideline was 140 to 175 months. The decision is notable for its discussion (and deference to) Gall as well as for the detailed analysis of the defendant's criminal record, which included defrauding others after being indicted, after pleading guilty, and up until the time of sentencing. While the Tenth noted that it would affirm based on pre-Booker case law, it also observed that the deference to the district court under Gall would compel the court to affirm (particularly since the defendant did not argue substantive reasonableness on appeal).

As an aside, the striking conduct of the defendant makes it difficult for one to surmise how even the most liberal judge would not have imposed such a sentence. One could imagine the government appealing the sentence had the judge only imposed a guideline sentence. The factual narrative of the opinion is a must read--not for any legal insight, but for a reminder that there are a few cases out there that truly are deserving of upward departures.

Tenth Rejects Minor Participant Adjustment for Drug Couriers

The Tenth Circuit in United States v. Martinez upheld the district court's denial of a mitigating role adjustment under 3B1.2, noting that a defendant must be substantially less culpable than the average participant. The Tenth rejected the defendant's assertion that he was less culpable because he was only a courier or drug mule, observing that the mere fact that one is a courier is insufficient to establish his status as a minor participant.

In just about the only helpful dicta in the decision, the panel did indicate that the defendant was by no means categorically precluded from a minor participant reduction, remarking that "[o]ur holding merely reaffirms that a defendant does not deserve an adjustment based solely on his status as a drug courier."

Refusal to File 5K1.1 Motion Unconstitutional When Based on Defendant's Assertion of Right to Trial

The Eleventh Circuit held that a prosecutor's refusal to file a 5K1.1 motion on the basis of the defendant's exercise of his right to a trial constitutes an unconstitutional motive. While the factual findings were insufficient for the defendant in United States v. Dorsey to prevail (as the case was remanded for additional findings), the Eleventh joined the Third and Ninth Circuits in its holding. (The Tenth has suggested the same in dicta in United States v. Easter.)

On remand, the defendant must show prosecutorial vindictiveness in the refusal to file the 5K1.1 motion. Because the government in this case proffered a legitimate basis (though a seemingly flimsy one) to overcome the defendant's proffer of facts giving rise to a presumption of vindictiveness, the defendant will have to show that actual vindictiveness motivated the refusal to file the motion in order to prevail.

Rita's Reasonableness Requirement Reigns (for a day, anyway)

While the Tenth Circuit did not offer any published opinions today, there was interesting action in the Sixth Circuit. In a brief opinion in United States v. Peters, the Sixth held that the district court's cursory statement acknowledging the defendant's sentencing arguments was insufficient to satisfy Rita's demands. When the defendant presents nonfrivolous reasons for imposing a non-guideline sentence, the district court should address the party's arguments and explain why he rejected those arguments. The Peters panel found the sentencing judge's brief comments insufficient, and the case was remanded for re-sentencing.