Case o' The Week: The Plouffe is in the Pudding for In-Guideline Appeals

In an amended opinion the Ninth joins its sister Circuits and holds that it has jurisdiction to review the “reasonableness” of a guideline sentence after Booker. United States v. Plouffe, __ F.3d. __, No. 05-30045, Ord. at 06 Cal. Daily Op. Serv. 4495 (9th Cir. Jan. 18, 2006, amend. Apr. 21, 2006), decision available here. This good case arising out of Browning, Montana (left) has the danger of being read too broadly on the “reasonableness” of discrepancy between co-defendant sentences.

Players: Gould writes, Berzon and (D. Ct.) Schwarzer join.

Facts: Plouffe got a guideline sentence nearly double that of his co-D, “Mad Plume.” 06 Cal. Daily Op. Serv. at 4506. The Ninth sua sponte considered its own jurisdiction to review this guideline sentence, asking for additional briefing. Id. at 4502. (NB: Before Booker, the Ninth had no jx to consider a sentence within the guideline range. Id.)

Issue(s): Does the Ninth have jurisdiction to review the reasonableness of a sentence within the guidelines? Id.

Held: “The Supreme Court’s holding and reasoning in Booker is ‘clearly irreconcilable’ with our prior line of precedent that disclaimed jurisdiction over a challenge to a sentence within the Guidelines range . . . . Stated another way, Booker requires that appellate courts review the reasonableness of all sentences, which is informed by the Guidelines calculation as well as by the other factors set forth in § 3553(a). If our review were eliminated for sentences within the Guidelines range, there would be no review of the other factors for such sentences, and we would thus contravene Booker’s mandate regarding appellate review.” Id. at 4503. “Accordingly, we hold that we need not follow the prior precedents that constrained our jurisdiction to review an appeal of a sentence in the Guidelines range . . . .” Id. at 4505.

Of Note: In Plouffe, there was a new and novel issue in the Ninth, out-of-circuit decisions going against the government, and the AUSA did not disclose the out-of-circuit authority in supplemental letter briefs. Id. at 4501 n.1. The Montana USAO earns a public ding for that “oversight.” Id.

Also, another Ninth panel recently opined – in footnote dicta – that “guideline sentences are reviewed for violations of law and incorrect application of the Guidelines, not reasonableness.” United States v. Mix, __ F.3d. __, 2006 WL 802535, n.2 (Mar. 30, 2006). As was noted in the Case o’ the Week memo on Mix, that panel jumped the gun. Mix’s footnote two should be deleted, because it conflicts with Plouffe.

How to Use: Defender Jon Sands and other commentators have noted the importance of Plouffe (and Zavala) in expanding district courts’ guideline-constrained sentencing horizons. Another important benefit of Plouffe is that it increases defense bargaining power. After Plouffe, every case has a live appellate issue – even if the defendant receives the low end of the guideline range – because “reasonableness” varies by case and by defendant. Better yet, lazy AUSAs can’t threaten to withhold the third “acceptance” point for defendants who preserve these sentencing appeals.

How can a USAO stem the flood of Booker sentencing appeals? By buying the defendant off with a reasonable deal, and securing appeal waivers. In reality, Plouffe is probably most valuable as a defense bargaining chip. (How often will guideline sentences really get reversed for “reasonableness?”)

For Further Reading: The actual issue in Plouffe was whether a 71 month guideline sentence was “reasonable” when a co-D received 37. Id. at 4506. Plouffe, his co-D Mad Plume, and friend Four Horns severely beat an acquaintance named Stripped Squirrel. United States v. Plouffe, Brief of Appellee, 2005 WL 2175339. The Plouffe decision, unfortunately, simply reassures the reader that the district court considered all the § 3553(a) factors. 06 Cal. Daily Op. Serv. at 4506. Plouffe’s criminal history, however, was more serious than Mad Plume’s – and Plouffe committed another assault after this case, but before being indicted! U.S. Brief, 2005 WL 2175339, *6. Plouffe does not stand for the proposition that discrepancy among co-D sentences is never unreasonable – there were some unusual facts in the Plouffe case that didn’t make it into the opinion.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org