Saturday, April 01, 2006

Case o' The Week: Mix-ed Booker Decision from Ninth

Bad facts make for a troubling decision in United States v. Tony Mix, __ F.3d. __, Slip. Op. 3577 (9th Cir. Mar. 30, 2006), decision available here. In Mix, the Ninth upholds a Booker sentence above the guidelines, to life in prison. The case is consistent with a national trend; sentences are actually higher after Booker. (See chart, above, from new USSC report).

Players: Judge Arthur Alarcón writes for the panel.

Facts: Tony Mix was convicted of kidnaping, agg sexual abuse, and assault with a deadly weapon on the res. Slip. Op. at 3580. Three women testified about Mix’s physical and sexual abuse over several years – the injuries to his live-in companion “were so severe that her examining physician testified that she had never seen so much trauma to a sexual assault victim who survived.” Id. The district court characterized Mix’s acts against women as “perhaps one of the most brutal, if not the most brutal, set of circumstances that the . . . Court has had the misfortune to preside over.” Id. The district court imposed a life sentence under Booker. Id. at 3581.

Issue(s): “[Mix] contends that the imposition of a life sentence was unreasonable and inconsistent with the requirements of 18 USC § 3553(a).” Id.

Held: “We affirm because the sentence imposed by the district court was reasonable.” Id.

Of Note: [Ed. note: It is disconcerting to read an important new Booker decision on a life case, where the panel did not permit oral argument. Id. at 3577.]

The Mix decision makes some big statements with little analysis. First, the district court found that two of the § 3553(a) factors were “subservient” to the other requirements of the statute. Id. at 3583 fn.1. The Court in Mix tolerates without comment this (novel) weighting of the factors, with the flat reassurance that “the district court expressly considered the factors set for in § 3553(a).” Id. at 3588.

Second, the opinion claims – without support – that “guideline sentences are reviewed for violations of law and incorrect application of the Guidelines, not reasonableness.” Id. at 3586 at n.2. Appellate review of the “reasonableness” of a guideline sentence is still very much in play, and deserves more than a flat assertion in footnote dicta. If guideline sentences are exempt from “reasonableness” review, then the guidelines have been elevated to becoming presumptively reasonable. When the Ninth gives that much deference, it courts another Booker challenge to guidelines which are far more than “advisory.” Moreover, Berzon’s Plouffe panel is now considering the Court’s jurisdiction to consider the reasonableness of a guideline sentence. United States v. Plouffe, 437 F.3d 917 (9th Cir. Feb. 13, 2006), ord. (requesting briefing). Mix jumps the gun; Plouffe was first in line. Footnote two should go, pending Plouffe.

How to Use:
S.D. Fla FPD Chief of Appeals Paul Rashkind warned us of Mix. Before Booker, he argued that unfettered sentencing discretion would hurt defendants more than help. At least at the national level, Paul was right. Consider this quote from the new Sentencing Commission report: “The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased.” See report here, at vii. (emphasis added).

Nonetheless, the defense must make the most with what we have. Bad (very bad) facts in Mix has the Ninth bending over backwards to endorse the district court’s discretion. That same, very broad exercise of discretion applies with equal force to a district court that imposes a Booker sentence below the guidelines. After Mix, it is hard to imagine a below-guideline sentence that wouldn’t be immune from “reasonableness” review – a Court just needs to “explain why . . . this defendant deserves more or less.” Mix, Slip. op. at 3588. “[A] checklist recitation of the section 3553(a) factors is neither necessary nor sufficient for a sentence to be reasonable.” Id.

For Further Reading: As mentioned above, the Commission has a new Booker tome: the “Final Report on the Impact of United States v. Booker on Federal Sentencing.” It is fascinating reading for sentencing wonks. Note the N.D. Cal. earns a special mention for its high rate of government-sponsored departures. Id. at 92.

Thanks, ND Cal USAO!

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


Anonymous Anonymous said...

not a good case, but there is some good language in the case for the rest of us to take away:

"[I]t is important that district courts clearly and carefully differentiate between the findings and conclusions as regards the application of the Guidelines, and the findings and conclusions as regards the application of non-Guidelines factors pursuant to 18 U.S.C. § 3553(a)."

that's going in my next brief.

Tuesday, April 04, 2006 7:15:00 AM  

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