Case o' The Week: The Angel Boogie -- Gasca-Ruiz and Standard of Review for Advisory Guideline Appeals
Sometimes we anxiously await high-impact en banc decisions: decisions that affect hundreds of our clients -- controversial opinions that hit SCOTUS’s radar the moment they are delivered. See, e.g. Aguila Montes de Oca, blog entry here.
And sometimes, not so much. See United States v. Gasca-Ruiz, 2017 LEXIS 5893 (9th Cir. April 5, 2017), decision available here.
Players: Decision by Judge Watford, joined by Chief Judge Thomas and Judges O’Scannlain, McKeown, W. Fletcher, Gould, Bybee, Bea, N.R. Smith, Hurwitz, and Friedland. Concurrence by Judge Hurwitz joined by Judge W. Fletcher. Appeal by AFDs Vince Brunkow and Ryan Fraser, Federal Defenders of San Diego, Inc.
Facts: Gasca-Ruiz took agents on a high-speed chase with smuggled aliens in the truck. Id. at *3. The PSR reported that one alien had mild lacerations to his fingers and a minor burn from the heat of the car – the alien declined medical attention. Id. at *4.
Probation recommended a two-level bump under § 2L1.1(b)(7) for “bodily injury,” a “significant injury that is . . . painful and obvious.” Id. at *5. Over defense objection, the district court imposed the two offense-level hit. Id.
Gasca-Ruiz argued on appeal that the use of this guideline was erroneous, and that the review should be de novo. Id. at *6. The Ninth (had) an intra-circuit split on how to review a district court’s decision whether specific facts satisfies a Guideline: some cases had held de novo, others reviewed deferentially under abuse of discretion. Id. The three-judge panel in this case thought the standard of review would be dispositive: their (mysterious) sua sponte en banc call went up. Id. at *7; see “For Further Reading” here.
Issue(s): “We took this case en banc to resolve an intra-circuit conflict over the standard of review that applies when we review a district court’s application of the United States Sentencing Guidelines to the facts of a given case.” Id. at *2-*3.
Held: “We conclude that as a general rule such decisions should be reviewed for abuse of discretion.” Id. at *3.
“Under the standard of review we adopt today, this last component of the district court’s decision—deciding whether a specific set of facts satisfies the correctly identified legal standard—will generally be subject to review for abuse of discretion.” Id. at *11.
Of Note: A veteran appellate attorney wryly observed that the Ninth has now resolved precisely how many angels dance on the head of a pin. As Judge Watford concedes, “In most cases, the standard of review does not affect the outcome, which is why many three-judge panels in the past have been able to side-step this issue.” Id. at *7. For Judges Hurwitz and Fletcher, that would have been true here as well. See id. at *21 (Hurwitz, Jr., concurring in part and concurring in result).
How many of our client’s sentences will actually be affected by the standard-of-review holdings of Gasca-Ruiz? Not even Gasca-Ruiz’s, it appears.
How to Use: Note that Judge Watford discussed when de novo review is still appropriate (“for broad general rule[s]” on guideline interpretation), versus when the abuse of discretion standard applies (the factual application of a particular guideline to a given case.) Id. at *11.
There’s another “proviso” as well: “crime of violence” determinations are subject to de novo review. Id. at *17.
There may also be other “limited exceptions to the general rule” that guideline-application decisions are reviewed for abuse of discretion. Id. at *18.
While the (deferential) abuse-of-discretion standard is likely the answer for guideline appeals, worth taking a close look at Gasca-Ruiz to see if your issue can be shoehorned into one of these de novo exceptions.
For Further Reading: “Smart on Crime” is “Soft on Crime.” So opines Stephen H. Cook, the former President of the National Association of Assistant U.S. Attorneys.
Attorney General Sessions, is who: he has brought Mr. Cook into the “inner circle” at the Justice Department. See How Jeff Sessions Wants to Bring Back the War on Drugs, available here.
Our appeals of advisory guidelines may become nostalgic memories, if mand-mins become the go-to tool of the new administration.
Image of angels dancing on the head of a pin from http://www.ck12.org/book/CK-12-Earth-Science-Concepts-For-High-School/section/1.2/
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org