Case o' The Week: Warr - huh - What is it Good For? (Absolutely Nothing).

Edwin Starr's classic tune, "War" isn't quite the apt fit suggested in the title of this blog entry: the Ninth's recent sentencing decision in Warr is "good for" a little something -- though it takes a close read to find the silver lining in this dark cloud. United States v. Warr, __ F.3d. __, 2008 WL 2598891 (9th Cir. July 2, 2008), decision available here.

Players: Decision by Judge Tallman, joined by Kleinfeld and Tashima.

Facts: Jonah Warr was a mentally-ill 19-year old who started up to twenty forest fires in Montana. Id. at *1, *2. After pleading guilty to nine counts of arson, he proceeded to sentencing with a guideline range of 70-87 months. Id. at *2.

Montana District Judge Molloy departed upwards to 120 months with a § 3553(a) variance. Id. at *4. Among the factors used by Judge Molloy was a Bureau of Prisons study on recidivism that posited younger offenders rescinded more often – the court estimated that Warr “had a two-out-of-three chance of recidivating.” Id. at *3. Those odds weighed in favor of a longer sentence. Id.

The court had not noticed or disclosed the BOP report to the parties before sentencing. Id.

Issue(s): “Warr takes issue with the district court’s apparent reliance on the Bureau of Prisons’ study. According to Warr, this reliance was problematic because the study was not part of the record, it did not take into account mental illness, and it was not provided to the parties in advance of the sentencing hearing.” Id. at *8.

Held: “Because the district court relied on this study, it should have notified Warr of it before the sentencing hearing.” Id. at *9. [But, ultimately, the sentence is upheld on plain error review.]

Of Note: When we first heralded the Apprendi revolution, some of our grizzled colleagues warned against greater discretion for a sentencing court. Warr vindicates those warnings. Judge Tallman here trumpets the district court’s discussion of the § 3553(a) factors as a “model of thoroughness and careful deliberation.” Id. at *6. With all due respect, that isn’t the impression the opinion gives. For example, the sentencing court poached (negative) diagnoses from the defendant’s shrink to increase the sentence, but rejected the shrink’s treatment recommendations (without explanation). Id. at *7.

Policy wonks can debate the overall impact of Booker, but Warr illustrates that among the victories there will be some losers under an advisory guideline system.

How to Use: June brought us the lousy Supreme Court decision in Irizarry v. United States, 128 S. Ct. 2198 (2008). In Irizarry, the Court held that Federal Rule of Criminal Procedure 32(h) does not require notice of a court’s intent to impose a § 3553(a) upward variance. Id. at 2200. (Contrast this to an upward departure from the guideline range, which does require notice). Warr’s one redeeming holding is that – Irizarry aside – a sentencing court must provide notice of facts used to impose an upwards variance. Id. at *8.

Here, the district court erred because it did not provide advance notice of the BOP study before it used it to impose an upward § 3553(a) variance. Warr lost on appeal, however, because the defense didn’t object at sentencing, leading to plain error review. Avoid plain error – object when the district court ruminates on facts, articles, and private phone calls to the Sentencing Commission or to the BOP that weren’t part of the sentencing process.

This principle might also extend to the government’s new cynical gambit of “instructing” Article III judges to review child pornography with agents before sentencing. (A bald ploy to inflame emotions at sentencing – particularly when there is no factual dispute over the nature of the images). Cite Warr, and insist on being there – maybe with the client? – during this review.

For Further Reading: Eleven years ago an en banc court of the Ninth decided United States v. Sablan, 114 F.3d 913 (9th Cir. 1997). This opinion upheld a whopping sixteen-level upward departure for a Guam case involving a grenade lobbed towards a post office. Id. at 914. Bad news for Sablan, but – oddly – an important development for the defense bar. Sablan signaled increased discretion to depart from the guidelines, and was later cited in support of the district court’s broad discretion to depart downwards. See e.g., United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998).

Warr is the Sablan for the post-Booker era. Note that a 38% upwards § 3553(a) variance survived “reasonableness” review in Warr. Use the Tao of Warr to support the 38% downwards variance in your next sentencing case.


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


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