A great Booker decision comes from an unexpected front: Judge Susan Graber (left). See United States v. Dorothy Menyweather, __ F.3d __, 2005 WL 3440800 (9th Cir. Dec. 16, 2005). In Menyweather, the Ninth upholds a dramatic departure by Judge Real on both guideline and Booker grounds.
Players: Judge Manuel L. Real. ‘Nuff said.
Facts: Ms. Menyweather was a USAO clerk who embezzled a lot of money – spending it on trips, gifts, computers, etc. 2005 WL 3440800, *1; *9 (Kleinfeld, J., dissenting). Judge Real departed eight levels pre-Booker, going beyond the defense-recommended sentence. Id. at *1. Unfazed by two appeals and two remands, Judge Real stuck by his sentence of five years probation with forty days in a jail-type situation. Id.
Issue(s): “The government objects to the district court’s eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinary family circumstances, a departure that the district court has reimposed twice after remands from this court.” Id. at *1.
Held: “We conclude that the district court did not abuse its discretion by downwardly departing from the Guidelines. Moreover, even if the district court strayed from the departure authority available under the Guidelines, any error was harmless in view of the sentencing factors listed in 18 USC § 3553(a) (which the district court can now consider after Booker) and in view of our belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence. Finally, we conclude that the resulting sentence was reasonable, and we affirm.” Id.
Of Note: This case is now the definitive decision in the 9th for post-Booker sentencing. It is too full of bon mots to fully summarize here: consider it a must-read for federal practitioners. Judge Graber explains how a district court is to consider the guidelines after Booker, and how the Circuit will review that decision. Id. at *3-*4. She upholds departures (under a guideline analysis) for dim cap and for the defendant’s family situation. Id. at *4-*6. The Court notes that even under Booker, a district court must articulate its reasons for its sentence. Id. at *6. Finally, there is very broad and very deferential language on a district court’s discretion to impose a Booker sentence – and wide latitude for that sentence under “reasonableness” review. Id. at *7. One curious note is the Court’s “reasonableness” analysis – it evaluates a Booker sentence by comparing it to pre-Booker departures that had been upheld. Id. at *8. This may be a worrying trend. If that approach gains traction, it would limit the brave new Booker world to the muddy limitations of guideline practice. We should characterize that language in Menyweather as an analytical aid, but not a limitation on Booker sentencing.
How to Use: In a heated dissent, Judge Kleinfeld points out the seriousness of the Menyweather’s crimes and the weaknesses of the departure. Id. at *9. One fact in support of Kleinfeld’s argument is that Judge Real surpassed even the defense recommended sentence! Id. at *10-*11. Judge Kleinfeld’s dissent is a defense holiday gift: quote his parade of bad facts heavily to show that if the Booker sentence was reasonable in Menyweather, surely it is reasonable in your (much less dramatic) case.
For Further Reading: What more could one ask for from a Booker case? How about it being authored by a judge who not a traditional defense ally? Judge Susan Graber received her commission in ‘98 after being nominated by Clinton. See profile here. She has been described as following a “strong law-and-order course in criminal matters.” See article here. “She was not what we considered our best friend on the court,” says Oregon State Deputy Public Defender Groom, “She was definitely ‘tough on crime.’” Id. Some speculate that her view on criminal cases may be influenced by the brutal carjacking and murder of her father. Id. In any event, she is one of the most prolific judges on the Ninth. Hopefully, the fact that Menyweather was penned by Judge Graber will stave off en banc rumblings – despite Judge Kleinfeld’s dissent.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org