A Great Fisher (left) opinion may provide some relief for two men with a century and a half or so of federal time ahead of them. See United States v. Garcia, __ F.3d. __, Slip. Op. 9681 (9th Cir. Aug. 10, 2007), opinion available here. In Garcia, the Ninth reminds us that there are -- remarkably -- still some limits to conspiracy liability. It also makes clear that discouraged Guideline departure factors are fair game as Section 3553(a) mitigators.
Players: Opinion by Judge Fisher.
Facts: Garcia, Smith, and others were charged with meth and gun crimes in Montana. Slip. Op. at 9685. At trial, Garcia’s Rule 29 motion challenged five conspiracy counts. Id. That motion was denied. Smith pleaded guilty. Id. at 9686. Garcia was sentenced to 1,284 months (107 years). Id. at 9685. Smith was sentenced to 369 months - 30 years. Id. at 9686. At sentencing, District Judge Cebull thought he was barred by the guidelines from considering Smith’s pitch that drug addiction was a mitigating sentencing factor. Id. at 9686.
Issue(s): 1. Could Garcia be held criminally liable for substantive acts committed by the conspirators before he joined the conspiracy? Id. at 9687.
2. “Smith challenges his sentence, arguing that the district court erred by not considering drug addiction as a mitigating factor under 18 USC § 3553(a)(1), which requires the sentencing court to consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’” Id. at 9695.
Held: 1. “[Garcia] cannot be held liable for substantive offenses committed before joining or after withdrawing from a conspiracy . . . . We agree with Garcia that there is insufficient evidence that he entered the conspiracy to distribute methamphetamine as of July 2003.” Id. at 9687.
2. “The district court . . . adopted too narrow a view of its discretionary authority post-Booker. . . . The system of downward departures that still guides the sentencing court’s determination of the Guidelines-recommended range as required under §3553(a)(4) does not preclude the court’s discretion to consider other § 3553(a) factors . . . . We . . . hold that district courts are not prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence.” Id. at 9695-96.
Of Note: How does the Ninth review the district court’s application of the Guidelines to the facts? Abuse of discretion? Or is it a de novo standard of review?
The answer is, “Yes.”
Two Ninth Circuit cases, a year apart, hold that these different standards apply. Id. at 9690 (discussing intracircuit conflict). Here, Judge Fisher refuses to jump where angels fear to tread – the panel punts, and avoids deciding the S.O.R. via an en banc call. Id. at 9690-91. This artful dodge sound familiar? Think back to Jimison, the “Rambo” case decided July 16th. There, Judge Kozinski (also on this Garcia panel) avoided the intracircuit conflict by using a very similar approach. See blog here. It’s a fair guess that the Ninth is (unofficially) either holding out for Supreme Court guidance in Gall or Kimbrough, or may resolve the split in Zavala / Carty.
How to Use: This is old conspiracy law, but Garcia lays out the principle again: a defendant is not liable for the substantive offenses committed by a conspiracy before he or she joined. Id. at 9686. This is tricky stuff, though: a late-arriving co-conspirator can be vicariously liable for acts establishing the crime of conspiracy itself – even of those acts preceded his involvement. Id. at 9688 & n.1. Note that this distinction may push a defendant below mandatory-minimum triggering amounts in a multi-defendant conspiracy – footnote one is worth a very close read.
Garcia also makes clear what we’ve argued since Blakely – Guideline “discouraged” factors are now entirely fair game for Section 3553(a) mitigation arguments. In this particular case, the “discouraged” factor is drug addiction – but the principle applies with equal force to all Chapter Five mitigators, such as age, community service, and lack of youthful guidance. See USSG § 5H1.1 - H1.12.
For Further Reading: Sixty-eight year old Judge Raymond Fisher is a Stanford Law grad, who was appointed by Clinton in ‘99. See profile here. He clerked for Judge Wright on the Ninth, as well as Justice Brennan, and was an Associate US Attorney General. Id. He also has a more-than-passing background in DNA evidence. See DOJ article here.
Steven Kalar, Senior Litigator. Website at www.ndcalfpd.org