Sunday, October 04, 2009

Case o' The Week: "A Masterpiece of Craftsmanship" - Paul, "Unreasonable" Guideline Sentences, and Mem Dispos

The Ninth Circuit denies an en banc call for an opinion that is (in our view, if not Judge O'Scannlain's) a "masterpiece of craftsmanship" -- finding an in-guideline sentence "unreasonable" in one of the few post-Booker sentencing review cases to do so. United States v. Paul,__ F.3d __, No. 08-30125, 2009 WL 3109873 (9th Cir. Sept. 30, 2009) (Ord.), decision available here.

Players: Concurrence in order denying rehearing en banc by Judges Reinhardt (above left) and M. Smith. Dissent from order by Judge O’Scannlain (above right), joined by four other judges. Nice victory by Montana AFPD Michael Donahoe.

Facts: Patricia Paul was convicted of embezzlement and sentenced by Montana District Judge Haddon to an in-guideline sentence of sixteen months. Id. at *1. In Paul I, a memorandum disposition, a panel reversed the sentence as “not reasonable” because the judge hadn’t fully considered the many mitigating factors. United States v. Paul, 239 Fed.Appx. 353, 355 (9th Cir. Aug. 17, 2007) (mem.).

On remand, Judge Haddon reduced the sentence by a whopping month. 2009 WL 3109873, *1.

Paul appealed again, and the panel of Judges Reinhardt and M. Smith reversed again in a published opinion, finding Judge Haddon had “flouted” both the “spirit and express instructions” of the mandate. Paul, 561 F.3d 970, 973-74 (Paul II). In Paul II (a published decision), the per curiam panel explained in detail why the 16-month in-guideline sentence was unreasonable, and sent it back to another district court judge. Judge Hall dissented.

There was a sua sponte en banc call on Paul II; the order rejecting that call is the subject of this memo.

Issue(s): Either 1. “[W]hether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence,” 2009 WL 3109873, or “[W]hether Paul’s new 15-month sentence was substantially unreasonable,” id., or both.

Held: En banc call rejected - either Judge Haddon ignored the spirit and express instructions of the mandate, or the 15-month in-guideline sentence was unreasonable, or both.

Of Note: This Paul order is worth a read because it lifts the curtain to the Ninth Circuit’s battles in this post-Booker sentencing. It contains a passage just for us – Judge O’Scannlain writes, “I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul's sentence was substantively unreasonable.” Id. at *1. Message received – Criminal Defense Bar take note: a distinct minority of the Ninth Circuit (five dissenting judges) doesn’t want you to cite Paul for the proposition that an in-guideline sentence can be unreasonable.

Of course, the remaining twenty-two active judges may think that such use of Paul is just fine . . . .

How to Use: Should you cite Paul I or II when arguing that an in-guideline sentence is unreasonable? You don’t have much choice – there’s precious few decisions reversing an in-guideline sentence as unreasonable.

This order also continues the interesting debate on mem dispos. Judge O’Scannlain grumbles in his dissent that Paul I should not be cited, because it is a mem dispo (despite the fact that its language and holding were “elevated” into a published opinion in Paul II).

Of course, thanks to an inane Supreme Court rule, mem dispos can now be cited. Granted, as Judge Tashima pointed out recently in Contreras, mem dispos often contain pretty dubious analysis. 2009 WL 2960623, *3 n.4 (referring to the McCoy mem dispo).

One of the biggest fights over the significance of mem dispos took place in the (now withdrawn) Carver v. Lehman case (see blog here). In Carter, two judges fought over the precedential value of mem dispos in a heated debate. The two jurists? Judges Reinhardt and M. Smith – the two judges now standing by Paul I and Paul II against Judge O’Scannlain’s dissent.

For Further Reading: Depressing that this brouhaha is over - gasp - one reversal of an in-guideline sentence. Who stole our Booker revolution? For a very interesting look at the state of our sentencing scheme, hit Professor Berman’s blog here. He describes a new article by Professor Ricardo Bascuas titled, “The American Inquisition: Sentencing after the Federal Guidelines.” From the abstract, sounds like a great piece – a blunt assessment of federal sentencing in the shadow of the mandatory – er, “advisory” – guidelines.

Image of the Hon. Diarmuid O'Scannlain from . Image of the Hon. Stephen Reinhardt from

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


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Anonymous Rebecca Pennell said...

Another significant order from Sept. 30 is in US v. Lomeli-Mences, No. 07-50452, which withdrew a prior published opinion holding that a 1326 defendant had agreed to an aggravated offense conduct date in his plea agreement. Lomeli-Mences was replaced with a mem dispo, which still affirmed the sentence but ommitted the offense conduct reasoning.

Monday, October 05, 2009 2:09:00 PM  

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