Appellate Law & Practice

CA1: Big case on post-Gall sentencing procedure and substance

US v. Martin, No. 06-1983.  This case begins with “This appeal represents our first full-fledged application of the teachings of Gall.  At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda.”  The defendant, in this case sought to be sentenced at the statutory minimum for a career offender under 21 U.S.C. § 841(b)(1)(B), which would be ten years.  The defendant got twelve years.  The government appeals.  A year later, the Judge wrote a post-sentencing memorandum.   

The First ends by saying it does not like really late-filed sentencing opinions – that were filed after the case was briefed on appeal.  The First says: 1) 18 U.S.C. § 3553(c) requires that the reasons for the sentence be stated in open court; 2) after the notice of appeal the District Court lacked jurisdiction; and 3) when the district court files a tardy sentencing memorandum after an appeal has been taken, it runs a risk of creating an unwelcome appearance of partisanship.  But, still there might be some cases where a late-filed memorandum might be good. 

After the appeal, Gall v. U.S., No. 06-7949 (Dec. 10, 2007)  came down.  The First sees Gall as adopting its way of sentencing, “A sentencing determination should begin with the calculation of the particular defendant's GSR. As a final step in arriving at a defendant's GSR, the district court must assess the appropriateness vel non of any departures.”  On appeal, “Once the appellate court has satisfied itself that the sentence is procedurally sound, it must proceed, under the same abuse of discretion rubric, to review the substantive reasonableness of the sentence, taking into account the totality of the circumstances.”

CA1: en banc court holds that 32(h) notice at sentencing is required sometimes based on vague yet easy-to-understand standard

US v. Vega-Santiago,  06-1558 (en banc).  Panel Decision here.  Our coverage here.  The First granted rehearing to determine whether  “the district judge must provide "notice" to litigants before imposing a sentence outside the guideline range--a requirement that the panel found satisfied in this case.”  The First says that notice is required under Federal Rule of Criminal Procedure 32(h)“when proposing to adopt a variant sentence relying on some ground or factor that would unfairly surprise competent and reasonably prepared counsel, a judge must either provide advance notice or, on request, grant a continuance in order to accommodate a reasonable desire for more evidence or further research.”  Oh, great. a non-decision.  Unfair surprise is unfair surprise.

See, the First says that 32(h) codified Burns v. United States, 501 U.S. 129 (1991), and since Booker is a judicial creation, Burns shouldn’t be automatically applied to variances.  Moreover, in post-Booker sentencing, the process is a lot more “fluid” than before, but competent counsel should be able to tell when a variance is at issue.  So, there won’t be too many issues of unfair surprise.  Moreover, in this case, any additional mitigating evidence would have been relevant regardless of this variance.  (I think the First might be missing the fact that if a variance is on the table, different strategic concerns come into play.)

If you list Klingon as a second language on your resume, you can read on.
 

CA1: supervised release revocation doesn’t get Booker or Blakely protection

US v. Eirby, No. 07-1062.  As usual, Selya uses big words when sending someone to a hole.  This is a supervised-release revocation case based on a guilty plea in state court.  The judge “imposing an additional thirty-three months of immurement.”  Apparently “jail time” or “incarceration” is not specific enough. 

Selya says that “It is settled law that once a court imposes a fixed sentence in a criminal case, subsequent proceedings in regard to that sentence are not subject to the full panoply of Sixth Amendment protections.”  I don’t know if it is “well-settled” or not.  If it was so well-settled, he Selya could have cited to one post-Blakely (or even post-Apprendi) from the Supreme Court saying that.  But, he didn’t.  Instead, he says that United States v. Work, 409 F.3d 484 (1st Cir. 2005) (our coverage here) applies.

CA1: another drug seaman appeal sinks

US v. de la Cruz, No. 05-2210 (unpublished).  This case summarily affirms yet another drug “seaman” case.  This guy got was denied a downward adjustment for being a “minor participant” but got a safety valve adjustment.

Even though it is unpublished, there are some weighty issues. 

The first one shows the difference between a change of plea hearing and an actual guilty plea, namely and concludes that “Even assuming that at the time of the initial change-of-plea hearing in October of 2004 there existed an "informal agreement" that the defendant would be permitted to plead guilty without waiving the right to appeal from the denial of the suppression motion, he does not argue that the actual plea, entered three months later, was pursuant to such an agreement.”

Since the defendant was charged with “charged with possession with intent to distribute and with conspiring to import drugs” as opposed to distribution, the First says that determining his role must be assessed not with regard to the role of the buyers and sellers, but with regard to the much more modest elements of “possession with intent.”

A challenge to a failure to get“downward departure on the ground of duress, as was granted to several of his co-defendants” is waived because it wasn’t raised below!

A Booker error argument – that the facts needed to go to the jury – is summarily rejected.

CA1: First rejects just about all challenges to fast-track program disparities

US v. Andujar-Arais,  06-1189.  Oh boy.  In this sentencing (for illegal re-entry) appeal, the First Circuit holds that the “Fast Track” program for quick guilty pleas doesn’t create the kind of disparities that a judge address under 18 U.S.C. § 3553(a)(6).  Moreover, the existence of the program in some districts doesn’t violate his 14th amendment equal protection rights.

The defendant apparently just wants a re-sentencing with the District Court being told to consider the disparities.  But the First isn’t going to give it to him.  (“In essence, he asks us to find that district courts must, as a matter of law, account for such disparities.”) The First finds that the statute authorizing the fast-track program is facially constitutional.  It rejects an “as-applied” challenge (based on statistical evidence), and then looks at the Feeney Amendment (which, if I recall correctly is what gave teeth to argument that won the day in Booker), and concludes that the DOJ can allocate its resources however it wants.  Moreover, “charge-bargaining” programs are also facially okay and constitutional as applied.

And, in a gentlemanly way (without being a jerk about it like some Circuits I could mention), the First rejects a “Almendarez-Torres is no longer good law” argument.

The opinion quotes an article by Rebecca K. Schendel Norris as background about fast-track programs. 

CA1: Interesting sentencing case on the reasonableness of minimal sentences and cooperation, contrition, and a bunch of other stuff

US v. Milo, No. 06-2185.  As is becoming more common the government appeals a sentence.  This defendant (a fairly middle-class one, in case you were wondering) cooperated with the government, and his sentence was deferred.  When it came time for sentencing, the government (pursuant to its agreement) moved for relief from the mandatory minimum under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, as the defendant had been a big help to the government.  The government still sought 75 months (half what was recommenced by the probation officer as per the guidelines), and the defendant argued to stay out of jail. The judge gave him “five years of supervised release with the first six months to be served in a community corrections facility, and a fine of $50,000."  The government claimed that it was surprised by the sentence.  The government appealed, and argued that the sentence was unreasonably low.  At first this appears to be a thoughtful opinion, but it includes some language which renders it overly deferential to the government.

... Read on to save your soul...

CA1: drug quanity and Apprendi give the plain error brush-off

US v. Portes, No. 05-1691.  This is an Apprendi and Booker sentencing appeal which the defendant loses.  Essentially, it comes down to a question of drug quantity. The jury wasn’t charged on quantity issues.  The District Court conducted a hearing.  This resulted in a higher statutory mandatory minimum.  On plain error review the First says that because there was “overwhelming” and “uncontroverted” evidence of quantity this isn’t a problem.

Likewise, on plain Booker error review, the First says he couldn’t have done any better with a truly advisory system.

CA1: On sentencing, The First Circuit goes deep into the record and comes up with parsimony and standards of review

US v. Cirilo-Munoz, No. 05-2469.  The earlier opinion is here, and our coverage is here.  As DotD points out here, this case shows just how divided judges are about what Booker and its progeny really direct Courts of Appeal to do. These appeals arise from the fact that the actual perpetrator – a policeman turned assassin turned cooperator – received a longer sentence then this defendant.  The facts read like Puerto Rican gangster novel.  Only they are more chilling.  The application of the guidelines was such at the District Court judge could not find a way to reduce his sentence.

Judge Torruella explains the role of a court of appeals as:

Thus, I see our role in determining the validity of a sentence whose reasonableness is questioned as one requiring analysis of the sentence and the reasons given by the sentencing court in reaching its conclusions, tested against the record of the case to determine whether the reasoning is supported by the record, and ultimately, whether the sentence is reasonable [in light of the 3553(a) factors and whether it is "sufficient but not greater than necessary" to comply with the basic aims listed in § 3553(a)(2)].

Torruella then explains how this sentence, based on the facts, fails on all accounts.  He puts considerable effort into this, going though the entire record, and then citing a number of law review articles. 

Lipez says that the opinion is “superb” but thinks that the District Judge was too vague.  Lipez also goes deep into the record. 

I don’t think that any summary can do this case justice, and everyone is just going to have to read the puppy.  I don’t feel bad telling you to do this.  It is obvious that the court put a lot of time into it, and therefore, you should to.

CA1: really interesting insider trading case with light sentence held unreasonable

US v. Tom, 07-1074.  The court holds finds that non-custodial white collar sentence (for insider trading) was unreasonably low and that even rich people have to do some jail time.  The facts seem like a garden variety “tipping” insider trading case.  He waived indictment and plead guilty, reserving the right to challenge his sentence on the grounds of “(1) because of his extraordinary family circumstances and (2) because the loss overstated the seriousness of his offense.”    A lower sentence resulted because the court wanted to avoid a disparity with a codefendant, additional administrative punishment would be forthcoming, and even though his daughter didn’t “need” him for medical care, his presence at home would be helpful. 

You can read if you on if you want.

CA1: an escort service with an over-involved lawyer

US v. Reiner, No. 06-1451.  Oh boy.  The defendant was “the attorney for Kittery Health Club, Inc.,... [which] advertised itself as a massage parlor for men, but in reality it offered sexual services in exchange for money.”  He was charged under 18 U.S.C. § 2422(a) (the Mann Act) and 18 U.S.C. § 1952 (the Travel Act).  (Hint: it would be, like “totally legal” if they offered lifetime companionship and financial security in exchange for sexual services.  I am told that there is a whole field of law dedicated to enforcing such bargains.)  Apparently he took a more active role in running the brothel (including hiring ex-cops) after some of the characters dropped out.  Anyway, based on the affidavit of an IRS agent (which was based, in part, of internet descriptions of people’s experience there), the feds got a warrant.  They didn’t actually find anyone having sex.  But, they found a lot of used condoms.