Case o' The Week: No Laughing Matter . . . Ochoa and Finality of Sentences Under Section 3852(c)
Hon. Chief District Judge Gloria Navarro |
“The majority’s ruling upholds the draconian decision of the
sentencing court to suddenly double the term of incarceration initially
pronounced and impose the statutory maximum sentence based solely on a
perception that the defendant was laughing at the court. Affirming this injudicious
decree of the sentencing court defies the unambiguous language of Rule 35 of
the Federal Criminal Rules of Procedure and the express limitation of 18 U.S.C.
§ 3582(c).”
United States v. Ochoa, 2015 WL
6217319 (9th Cir. Oct. 22, 2015), at *5 (Navarro, Chief District
Judge, dissenting), decision available here.
Players:
Decision by Judge Rawlinson, joined by Judge Murguia. Compelling dissent by Chief District Judge Navarro,
District of Nevada. Hard fought appeal by (former) CD Cal AFPD Carl Gunn.
Facts: While on supervised release, Ochoa failed to
participate in a residential reentry program, and was allegedly “argumentative
and disrespectful” to the program’s staff and P.O. Id. His Grade C guidelines were 7 to 13 months – Probation recommended
a year and a day. Id.
At sentencing,
Ochoa explained he did not mean to be disrespectful and apologized for his
behavior. Id. The court accused Ochoa
of being disrespectful, predicted he was going to be back in the system because
of his attitude, and told him he was when he thought he was “on the same level
and same par with people who are responsible to get you on the right track.” Id. at *1-*2. The district court then imposed
the recommended year and a day sentence. Id.
at *2.
The judge then observed Ochoa laughing – Ochoa explained it was because he
was “just surprised.” Id. The court “expressed
the view that Ochoa ‘won’t learn without giving the maximum,” and imposed the two
years of custody. Id.
Issue(s): “Ochoa specifically contends that the district court
erred in increasing his sentence to the two-year statutory maximum based on
Ochoa’s apparently disrespectful conduct after the district court imposed a
sentence of twelve months and a day. Ochoa maintains that the district court
lacked jurisdiction to increase an already imposed sentence.” Id. at *1. “Relying on 18 U.S.C. §3582(c), Ochoa contends that the district court lacked jurisdiction to increase
his sentence once the district court pronounced a lower sentence.” Id. at *2.
Held: “We
do not agree.” Id. at *1. “We are
persuaded by the reasoning of our sister circuits [the First, Fifth and Tenth],
and conclude that Rule 35 was not intended to deprive the district court of
jurisdiction to alter a sentence during the court of the same hearing.” Id. at *4. “[N]either 18 U.S.C. § 3582(c) nor Rule 35 deprived the
district court of jurisdiction to alter Ochoa’s sentence due to Ochoa’s
apparently disrespectful conduct during the ongoing sentencing hearing.” Id. at *5.
Of Note: “It is hard to imagine a more draconian rule than
the one adopted by the majority today.” Id.
at *7 (Navarro, Chief District Judge, dissenting). So muses dissenting Chief
District Judge Navarro, who wonders how the majority avoids recognizing the
district court’s first sentence as an
“oral announcement” that could not be then doubled. Id. at *6.
Judge Navarro questions the majority’s analysis of the
Section 3582 and Rule 35 limitations, and grounds her discussion within the
context of a very troubling reaction to a defendant. Id. at *7 (“These provisions [Section 3582(c) and Rule 35] embody
the notion that a judge’s decision as to how long a defendant should be
involuntarily imprisoned must be careful, measured, and deliberate – not subject
to impulsive change or emotional whims.”)
This dissent is quite a read, and is a
compelling attack on a decision of first impression in the Ninth Circuit.
How to Use:
Sauce for
the goose . . . . In defending its decision, the majority explains that this
new rule may work in the defendant’s favor – a witness may arrive late, or a
new piece of mitigating evidence might be discovered. Id. at *4.
Take the Ninth up on its invitation (which seriously undermines
the “finality” of a pronounced sentence).
A sentence is no longer “final” after oral
pronouncement, and it seems the sentencing window now remains wide open for reconsideration. Use Ochoa to keep slugging away after the
sentence is pronounced with new defense evidence or witnesses, to move a term
down. After Ochoa, there are fewer Section 3582 or
Rule 35 bars to these second bites at the sentencing apple.
For Further
Reading: What’s the latest on the Johnson struggle? For an accessible
article with useful links, see Caroline
Gruelskin, “13 Words that Could Mean
Freedom for Many,” available here.
Image
of the Hon. Chief Judge Gloria Navarro from http://ih.constantcontact.com/fs127/1102070670742/img/113.jpg?a=1116191767415
Image of Second Bite at the Apple from http://futureofmusic.org/sites/default/files/imagecache/05col_snap/blog/apple%202%20bites.jpg
Steven
Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
.
Labels: Johnson, Rawlinson, Rule 35, Section 3582(c), Sentencing, Supervised Release
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