Northern District of California Judge Marilyn H. Patel (right) Did The Right Thing in Grissom: departed downwards from Career Offender guidelines, and focused on crack drug amounts in the count of conviction, instead of the discharged counts, at sentencing. United States v. Grissom, __ F.3d __, 2008 WL 1722813 (9th Cir. April 15, 2008), decision available here. Her sentence drew a half-hearted opposition from the line AUSA, and then an appeal to the Ninth.
In Grissom, the Ninth reverses, adopts a good appellate standard of review for the defense, and gives a few extra pointers on how to cut the defendant a break on remand for re-sentencing. The defense bar could use more government appeals like this . . . .
Players: Hard- fought appeal by ND Cal CJA counsel Geoffrey Rotwein.
Facts: Grissom was charged with three, ounces-quantity crack sales. Id. at *1. He pleaded guilty pursuant to a written agreement to the second count charging 49 grams: two other counts were dismissed. Id. (NB: Because the plea was to under fifty grams, it avoided the ten-year mandatory minimum. Id. at *6 & n.4).
At sentencing, ND Cal. District Judge Marilyn H. Patel rejected the drug amounts on the other two dismissed counts as relevant conduct and departed downwards from the Career Offender guidelines, for a sentence of 87 months. Id. at *2. The government’s pro forma complaint was, “I would simply note the government’s objection on the record.” Id. *2. (A lovely voce sotto “objection” by departed AUSA Michelle Morgan-Kelly).
Issue(s): “The government contends that the district court erred in rejecting quantities of crack cocaine from two dismissed counts when calculating Grissom’s base offense level under the United States Sentencing Guidelines (“Guidelines”). It argues that the quantities, properly considered, would have resulted in a Guidelines range 21 months higher than the sentence imposed.” Id. at *1.
Held: “We vacate Grissom’s sentence and remand.” Id.
Of Note: A sub-issue in this appeal is the adequacy of the government’s brief objection to preserve its appeal. Here, the government argued that Judge Patel’s “terse” rejection of its objection meant that it was preserved. Judge Tashima writes that, “Despite the seeming facial inadequacy of the objection, we agree with the government that where the district court indicates that it understands the basis for the objection and that further argument is not desired, and the record reflects this understanding, a general objection may suffice to preserve an issue for appeal.” Id. at *3.
Happily for AUSA Morgan-Kelly, she’s now 3,000 miles away and won’t return for Grissom’s re-sentencing. Sadly for the ND Cal USAO, some poor schlub from that office will have to drag into Judge Patel’s courtroom and try to explain why the government took her up after its effective “wink and a nod” at sentencing. That prospect is so daunting that it almost makes you feel bad for this new AUSA. Almost.
How to Use: The main holding of Grissom is an old (and hated) sentencing chestnut: drug amounts from dismissed counts can figure into relevant conduct. Id. at *5. (Can -- but not must. Judge Tashima describes ways to battle this injustice in the decision).
A more interesting aspect of the opinion is how the panel deals with appellate review post-Booker (and post-Rita, Gall, Kimbrough and Carty). This review is a two-step process: first for procedural error, and second for substantive reasonableness. Id. at *4. Errors in guideline calculations fall under the first step. What is the appellate standard of review for this first step, after Gall? Grissom resolves that question for the first time in the Ninth: the appellate court reviews “the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of the case for abuse of discretion, and the district court’s factual findings for clear error.” Id. at *4 & n.2.
This little aside is a big deal for the defense. The defense bar challenges guideline calculations much more frequently on appeal, and the old, less-deferential de novo standard is much better than the “abuse of discretion” standard used for the second-step "substantive reasonableness."
For Further Reading: How does this panel really feel about District Judge Patel’s sentence of Mr. Grissom? How about Judge Tashima’s own “wink and a nod,” reminding Judge Patel that on remand Grissom now benefits from the new, more-lenient crack guidelines? Id. at *7. Or how about Judge Tashima’s observation that, after Kimbrough, there would be no problem with a § 3553 sentence that departed downwards because of the crack/powder cocaine discrepancies? Id. The government appealed and reversed Judge Patel over a 21-month difference in the sentence -- one suspects that Judge Tashima's pointers could pretty easily offset this difference on remand, if the District Court were so inclined . . . .
For the full scoop on the sea changes underway in crack sentencing, visit the wealth of resources at the Federal Defender website here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org