Sunday, April 05, 2009

Case o' The Week: Peanuts for Carter, Post-Booker Sentencing Review in the Ninth

Post-Booker appellate review of sentencing is an "empty formality," complains dissenting Judge Tashima in a decision that reveals where the Apprendi revolution fell short. United States v. Carter,__ F.3d __, No. 05-50303, 2009 WL 805801 (9th Cir. Mar. 30, 2009), decision available here.

Decision by Judges Tashima and Ikuta, joined by Judge Bea, dissent by Judge Tashima.

Facts: Carter was convicted after trial of conspiracy to rob two banks, and § 924(c) counts. Id. at *1. He was sentenced to 471 months. Id. At sentencing, defense counsel made several Booker arguments to try to get back down to the stat max of 360: “He cited numerous personal hardships Carter had endured throughout his life, such as the lack of a relationship with his father, his mother’s inability to provide ‘basic food, utilities, electricity,’ Carter’s attempts as a youth to provide for his family, and his placement in a group home.” Id. at *3.

Issue(s): “Carter argues the record fails to establish that the district court exercised its sentencing discretion under Booker because the court did not adequately discuss the sentencing factors it must consider under 18 U.S.C. § 3553(a) as they applied to Carter, and because the court did not directly address Carter’s arguments. As a result, Carter contends, the record is insufficient for us to determine whether Carter's sentence was reasonable.” Id. at *7.

Held: “Under the Supreme Court's guidance in Rita v. United States, 127 S.Ct. 2456 (2007) and Ninth Circuit case law, the district court's explanation of its sentence, although brief, was adequate in context. Moreover, under the Supreme Court's guidance in Gall v. United States, 128 S. Ct. 586 (2007), the district court did not abuse its discretion by imposing a within-Guidelines sentence.” Id. at *6.

Of Note: Judge Tashima, a grizzled Ninth vet, has had a long interest in sentencing issues. In Carter he expresses his frustration at the post-Booker system in a fascinating dissent. Id. at *13 (Tashima, J. dissenting). He complains that the district court’s “rote recitation of a few of the § 3553 factors does not begin to constitute ‘an individualized assessment based on the facts presented.’” Id. at *14. In his view, the majority’s consideration of the district court’s sentencing decision was so deferential that it makes “appellate review of sentencing an empty formality.” Id. at *15 (internal quotations and citation omitted).

Judge Tashima persuasively takes on the substantive reasonableness of the sentence – particularly when the two co-defendants in the case received sentences that were a fraction of the 471 months doled out to Carter. Id. at *15 n.4. He also embraces Judge Gould’s earlier essay on the disparate (low) sentences received by white collar defendants – and of the “stark contrast” to the sentence in Carter. Id. at *15 n.3 (citing United States v. Ruff, 535, F.3d 999, 1005 (9th Cir. 2008) (Gould, J., dissenting)).

The policy pendulum is still a long way from the disparity tipping-point that sparked the guidelines in the first place, but Judges Tashima, Gould, and Reinhardt are among the first wave that question the justice of the ad hoc Breyer patch in Booker.

How to Use: If you’re defending a “lenient” sentence in the Ninth, Carter, Ruff, and Autery are your cases. As Judge Tashima complains, these opinions reveal that appellate sentencing review is now an “empty formality.” See Autery blog here.

If you’re attacking a harsh sentence on appeal, however, check out the recent decision in United States v. Paul, 2009 WL 861287 (9th Cir. Apr. 2, 2009), decision available here. In Paul, Judges Reinhardt, Hall, and M. Smith reverse – for the second time – an in-guideline sentence for theft of government property because it was not “reasonable.” Id. at *1. (But be forewarned: reversals for substantive unreasonableness are rare birds indeed).

For Further Reading: Another shell in these sentencing wars was recently fired by Judge Gould, in his dissent from denial of rehearing en banc in United States v. Whitehead, 2009 WL 606423 (Mar. 11, 2009) (ord.) (Gould, J., dissenting), dissent available here. While we disagree with Judge Gould’s ultimate conclusions, the dissent is a well-written essay on sentencing disparities for white collar defendants. It is interesting to see Tashima and Gould come to the same conclusion about post-Booker sentencing disparities, one judge from the perspective of a sentence that is too harsh, and the second from the perspective of a sentence that is too lenient.

Image of the Hon. Wallace Tashima from

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


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Monday, April 06, 2009 9:32:00 AM  

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