Case o' The Week: Winning Isn't Everything (and Sometimes, It's Nothing . . . .) - Horob and Vindictive Sentencing on Remand

It goes to eleven.

(And it stays there).

United States v. Horob, 2013 WL 5943405 (9th Cir. Nov. 7, 2013), decision available here.

Players: Per curiam decision by Judges Silverman, Fletcher and Callahan.

Facts: Horob was a cattleman that made-up cows and concocted “investments” when faced with mounting losses. Id. Horob was convicted of a fraud-related charges and aggravated identity theft – a two-year mandatory-minimum consecutive count. Id. at *1. The district court departed downwards 27 months from the guidelines, and imposed a total ultimate sentence of 11 years. Id. Horob won part of his first appeal when the Ninth reversed the agg ID theft conviction. Id. The celebration was short-lived: on remand, the district court imposed an identical 132-month custodial sentence, despite the lack of the 2-year-consecutive, mand-min, agg ID theft count of conviction. Id. Horob appealed again.

Issue(s): “Horob contends that the district court acted vindictively when it imposed the same total sentence on remand.” Id. at *2.

Held: “[W]e hold that the presumption of vindictiveness does not apply when a district court does not impose a more severe sentence on remand, even when the vacated conviction carried a mandatory sentence.” Id. at *1. 

  “The presumption of vindictiveness does not apply to Horob because it is apparent that the district court considered his overall sentence at the time of his original sentence and again on remand, and because his overall sentence was not increased.” Id. at *2 (emphasis in original). 

  “A sentence is not more severe merely because a mandatory sentence has been eliminated if the overall sentence remains the same and there is no net increase in his punishment.” Id. (internal quotations and citation omitted).

Of Note: “Horob is understandably disappointed that his successful appeal . . . did not

Todd Kenneth Horob

result in a reduction of his final sentence, but this does not give rise to a presumption of vindictiveness.” Id. at *3. 

  The Ninth probably understates Horob’s disappointment. 

  The per curiam Court relies on authority that holds a sentence becomes “unbundled” on remand and re-sentencing – ergo, there’s no presumption of vindictiveness when the reversal of a two-year min-mand produces an identical prison (re)sentence. Id. at *4. This is a head-scratcher for us in the trenches: a defendant gets eleven years of custody when his “reasonable” sentence included a two-year mandatory minimum consecutive term, yet the “reasonable” term on a victorious remand, where the consecutive mand-min is gone, is identical? Maybe the district court felt that eleven years was just the right sentence the first time around, and jiggered a guideline variance to offset the mand-min to get there? 

  On its surface, Horob is about resentencing, but the opinion’s larger lesson is the lunacy of mandatory-minimum sentences. District courts think so little of agg ID theft mand-mins that guideline sentences are just “varied” to absorb these 2-year tails. It’s a rational approach– Section 1028A charges have much more to do with an individual AUSA’s mood than with the crime actually committed or the culpability of the defendant – but Horob reveals how nonsensical agg ID theft mand-mins really are.

How to Use: Maybe the real lesson of Horob is this: the Ninth won’t second-guess a district court for off-setting a Section 1028A mand-min by varying from the guideline range. Pretty clear that’s what happened here at the original sentencing, and it prompted nary a “tsk” from the Ninth. Granted, there’s that language in Section 1028A(b)(3) that discourages (er, prohibits) such an offset . . . but that didn’t get much traction in Horob.

                                               

For Further Reading: Mand-mins wrongly limit judicial discretion, unfairly increase prosecutorial discretion, shield bad police work by discouraging suppression litigation and trials, and produce inexplicable sentences like the one in Horob. They also cram prisons with more inmates than they can hold. For a compelling indictment of federal overcrowding – projected to 55% over capacity by 2023 – see the Urban Institute’s new report here. 

Spinal Tap image from http://www.metalizer-records.de/bilder/produkte/gross/SPINAL-TAP-This-Is-UP-TO-11-EDITION-3DVD-SET-.jpg

 Image of Mr. Horob from http://billingsgazette.com/news/state-and-regional/montana/article_89659d1b-1360-5035-b9b1-fa9701e6f2f1.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Hears Us on Being Heard, and Hears Us Out (then denies . . . ) - Dunn and Crack Resentencing

 With the Supreme Court (arguably) slashing away at appellate jurisdiction, for defendants seeking relief on crack re-sentencing just getting to the Ninth is half the fun. 

 United States v. Dunn, 2013 WL 4767357 (9th Cir. Sept. 6, 2013), decision available here.

Players: Decision by Judge Milan Smith, joined by D.J. Anello. Concurrence by Judge O’Scannlain. Hard-fought appeal by ND Cal CJA Counsel Mark Goldrosen.

Facts: Dunn sold crack to an undercover agent, near a school, while on supervised release. Id. at *1. The district court imposed a 100 month sentence on the crack case; Dunn didn’t appeal. Id. 

  In 2010, Congress passed the Fair Sentencing Act (FSA) that lowered Dunn’s crack guidelines to 77-96 months. Id. at *2. While in prison, Dunn took advantage of educational opportunities, got transferred to a lower security facility, and offered his kidney to his ailing brother. Id. 

  Dunn moved to reduce his crack cocaine sentence under the F.S.A., emphasizing his post-convictions efforts. Id. The district judge denied that motion, and Dunn appealed the discretionary denial of a reduced sentence. Id. at *2.

Issue(s): “We first must decide whether we have jurisdiction to review the district’s court’ denial of Dunn’s motion for a § 3582(c)(2) sentence reduction.” Id. at *3. “As applied in this case, the pertinent inquiry is whether the reasoning or theory of [the Supreme Court’s decision in Dillon] regarding the extension of Booker to § 3582(c)(2) proceedings is clearly irreconcilable with [the Ninth Circuit’s earlier] decision in Colson [permitting appellate review of § 3582(c)(2) proceedings in their entirety].” Id. at *4.  

Held: “We conclude that Dillon does not clearly conflict with Colson because: (1) Dillon is not ‘closely on point’ with regard to the jurisdictional question at issue, and (2) Dillon does not revise the reasonableness standard under Booker.” Id. at *4. “We hold that we have jurisdiction to review § 3582(c)(2) discretionary decisions under . . . Colson, which is not ‘clearly irreconcilable’ with Dillon. Miller v. Gammie, 335 F.3d 889, 989 (9th Cir. 2003) (en banc).” Id. at *1.

Of Note: Judge M. Smith ultimately denies the defendant’s appeal in Dunn and upholds the district’s court refusal to resentence lower. While disappointing, other aspects of the case are of more interest.

 Judge Smith spends most of his time wrestling with a question that comes up frequently: what happens when the Ninth holds one way, the Supremes later (arguably) hold another, and the en banc Circuit Court hasn’t yet revisited the original decision? That’s a Miller v. Gammie problem, and is a problem that arises surprisingly often. (The Supremes have yet to fully appreciate the wisdom of the Ninth’s ways). 

  The rule is this: a three-judge panel can only change course from the Ninth’s previous decision when the Ninth law is “clearly irreconcilable” with the Supreme’s. That question is the heart of Dunn, and Judge Smith spends much of the opinion wrestling with whether the intervening Supreme Court decision in Dillon really conflicts with the Ninth’s previous Colson case. 

  It’s an intellectually honest analysis that preserves appellate review on discretionary denials of crack reductions (for now), and an interesting chapter in the Ninth’s often uneasy relationship with the Nine.

How to Use: Ninth precedent survives, Supreme Court law doesn’t (yet) control: huzzah! Good news – in this case. In another area of evolving law, such as Apprendi and mand-mins, or the Fourth Amendment and technology, we may someday be arguing the reverse: urging a three judge panel to do the right thing and scrap moldy old Ninth law in favor of some shiny new Supreme Court holding. When that happens, remember and re-read Dunn – Judge Smith’s analysis and interpretation of Miller v. Gammie can cut both ways.

                                               

For Further Reading: It is 1.1 miles from S.F.’s Moscone Center – where A.G. Holder announced the DOJ’s new drug policies – to SF’s Federal Building, where AUSAs make charging decisions. Has the Holder Memo made the distance yet? For a great article on the real distance between the Memo’s goals and cases in the trenches, see article in The Atlantic here.

Image of Cunard poster from http://farm4.staticflickr.com/3243/3125825374_1cec14c579.jpg

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org

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