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In an unpublished decision today, the Tenth Circuit in U.S. v. Prieto-Chavez affirmed the defendant's sentence of 57 months despite the fact that the AUSA and the court both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.