Case o' The Week: Second bite at Sentencing Apple Just a Nibble in the Ninth - Section 3582 Sentencing Limitations Upheld

  Why fret now about good new sentencing guidelines coming next fall, when 18 USC § 3582(c)(2) will permit re-sentencing?

  A: United States v. Davis, Jr. 2014 WL 114691 (9th Cir. Jan. 14, 2014), decision available here.

Players: Decision by Judge Canby, joined by Judges Watford and Hurwitz. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: In 2008 Davis pleaded guilty to a crack charge and a gun charge. Id. at *1. His guidelines were CH IV / OL 29, producing a low-end of 121 months. Id. The district court varied downwards to 70 months. Id. In 2012, Davis filed a motion to reduce his sentence under 18 USC § 3582(c)(2), after the Fair Sentencing Act (“FSA”) resulted in reduced crack guidelines. Id. Though the low-end of Davis’s (lowered) post-FSA guidelines were still higher than 70 months, he sought a variance down to sixty months, the mand-min. Id. 

  At issue at sentencing was Policy Statement § 1B1.10(b). In 2011 the Sentencing Commission amended this Policy Statement– it now sets the resentencing floor in this context to the low-end of the amended guideline range. Id. “The district court held that the Sentencing Commission’s Policy Statement § 1B1.10(b) precluded a sentence reduction because Davis had already received a sentence below the minimum of the amended guideline range.” Id. at *1.

Issue(s): “[ ] Davis, Jr. appeals the district court’s denial of his motion to reduce his sentence pursuant to 18 USC § 3582(c)(2) . . .  Davis argues that § 1B1.10(b) exceeds the Commission’s statutory authority and violates the separation of powers doctrine.” Id. at *1.

Held: “We . . . reject Davis’s argument that the amendment of § 1B1.10(b) exceeded the Commission’s statutory authority. We also reject Davis’s contention that amended § 1B1.10(b) conflicts with Congress’s directive that the Commission promulgate policy statements that will further the purposes of sentencing set forth in 18 USC § 3553(a)(2), 28 USC § 994(a)(2) (outlining the Commission’s duties).” Id. at *2. “Finally, we reject Davis’s contention that amended § 1B1.10(b) violates the separation of powers doctrine because it requires the district court to rescind a previously granted departure or variance.” Id. at *3. “Section 1B1.10(b) does not offend separation of powers principles because it is simply the result of an exercise of Congress’s power to control the scope of judicial discretion regarding sentencing.” Id.  

Of Note: With no offense to Ms. Chen’s formidable powers of persuasion, Davis is not an entirely unexpected result – many of these issues had already been decided in the Ninth, or rejected by other Circuit decisions. See, e.g., Tercero blog here.  

  Davis is an important read now, however, because it foreshadows battles to come when the many (pro-defense) amendments to guidelines kick-in on November 1, 2014 – particularly to the drug guidelines.

How to Use: What would you have done differently on your crack cases, with the benefit of hindsight and our experiences on FSA re-sentencing? It’s a timely question: good guideline amendments will almost-certainly become effective Nov. 1, 2014. See reader-friendly amendments here. (Drug guidelines on page 32).  

  What will we say to today’s clients, when they call next Halloween from the BOP prison and want a re-sentencing motion? Push hard now to get rid of § 3582(c) waivers in today's plea agreements, with an eye towards the November amendments. 

  (Or put the brakes on the case: November 1 is just a short 286 days away!)

                                               

For Further Reading: The proposed amendments strike sentencing guru Doug Berman “as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months.” See blog here.

  The Prof’s take? “Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.” Id.

 

Apple image from http://www.valiant.com/authors/valiant/a-hidden-benefit-of-filing-a-bid-protest-could-give-your-company-a-second-bite-at-the-apple-if-you-lose-a-competition/

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

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Case o' The Week: No Tercero "Crack" at Resentencing - Tercero, USSG 1B1.10, and FSA Resentencing

  First Round: the district court finds the defendant a minor player, varies downwards from the guideline range by 15%, and imposes a crack cocaine sentence a year below the low-end of the guideline range

  Second Round: After the Fair Sentencing Act is passed, the district court gives the low-end of the new guideline range at resentencing (a mere two months off!), and holds it can’t depart or vary downwards from the guidelines.

     There is, sadly, no Tercero round.

United States v. Tercero, 734 F.3d 979 (9th Cir. Oct. 31, 2013), decision available here.

Players:  Decision by Judge D.W. Nelson, joined by Judges M. Smith & Ikuta. Hard-fought appeal by ND Cal CJA stalwart Mark Rosenbush.

Facts: Teniah Tercero was charged with conspiracy to distribute crack cocaine, and distribution of crack. Id. at 980. The plea agreement to the distribution charge permitted her to argue down to a (below-guideline) sentence of 72 months. Id. That’s where the district judge landed, concluding Tercero’s minor role “was less serious than a mechanical application of the guidelines would suggest.” Id. The plea agreement included the ND Cal’s USAO’s general appellate waiver provision. Id. at 982. After sentencing, the Fair Sentencing Act was passed and (amended) USSG Section 1B1.10 was adopted by the Sentencing Commission. Id. Tercero came back for resentencing under Section 3582(c) (the government didn’t object). Id. The district went down to the low-end of the new crack guidelines – 70 months – but held that under USSG § 1B1.10(b)(2)(A) it could go no lower. Id. at 981. (USSG § 1B1.10(b)(2)(A) has a policy note, added in 2011, that prohibits courts to resentence below the minimum of the amended guideline range. Id.) Tercero appealed.

Issue(s): “Tercero contends that § 1B1.10 contradicts Congress’s general intent in passing the FSA, which was to restore fairness to Federal cocaine sentencing.” Id. at 982 (quotations and citation omitted).

Held: “[W]e remain unpersuaded that Congress intended the FSA to implement the retroactive reduction of sentencing ranges in any particular way, much less one that conflicts with § 1B1.10 as revised.” Id. at 982-83. “[W]e hold that the district court correctly interpreted and applied both § 3582(c) and § 1B1.10.” Id. at 981.

Of Note: What’s with the substantive discussion of Tercero’s appeal, when there was an appellate waiver in the plea agreement? That’s the government’s complaint, but the Ninth was unmoved: “Tercero did not waive her right to appeal the reduced sentence.” Id. at 981. The broad waiver in the plea agreement (she did “agree to waive any right . . . to appeal any aspect of [her] sentence”) does not encompass the right to appeal a § 3582(c) decision.” Id. at 981 (citing Lightfoot, 626 F.3d at 1095).

How to Use: Crack resentencing has pretty much made its way through the pipeline. The Fair Sentencing Act is not, however, just yesterday’s news – battles fought in the FSA wars will reverberate when the Commission gets around to fixing the many other lousy guidelines. Today’s plea agreements are tomorrow’s Section 3582(c)(2) fights – and Tercero’s waiver (or rather, non-waiver) discussions are of some solace when forced to swallow waiver provisions in many standard USAO plea agreements. For an interesting, though doctrinaire, summary of the procedural issues arising from Section 3582 resentencing, see the Commissions’ outline here.

                                               

For Further Reading: Crack resentencing was the first major guideline reduction in many a year. Is it prudent to really fret over Section 3582 resentencing waivers for current cases? After all, how likely is it that the Commission (and lightning) are really going to strike twice?  

  Um, very. A.G. Holder and Congress are signaling a new skepticism towards the barbarically high federal drug sentences. Changing membership on the Sentencing Commission may let the USSG catch up to the national gestalt. In August, the Commission voted to begin a “sweeping” review of federal sentences for drug dealers. See article here. It has made it an official priority to review – and possibly amend – the Drug Quantity Table in § 2D1.1. See article here. 

  Ms. Tercero’s miserly two-month FSA reduction gives much food for thought on how to anticipate and litigate some of these positive guideline changes that may be on the horizon.

Image of crack cocaine from http://www.justice.gov/dea/pr/multimedia-library/image-gallery/cocaine/crack_cocaine8.jpg

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

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Case o' The Week: Baptist Fails to Convert Reinhardt, et al -- FSA and Retroactivity

The good news? The picture to the right shows President Obama at the Fair Sentencing Act (FSA) signing ceremony on August 3, 2011. The FSA reduces terrifically unjust sentencing disparities between crack and powder cocaine.

The really good news? Lyndon "L-Dog" Baptist, who sought Ninth Circuit relief under the FSA, drew a panel of Judges Betty Fletcher, Reinhardt, and Wardlaw -- three of the Circuit's (and, we think, the country's) best jurists.

The bad news? Baptist's small crack transaction, his federal sentencing, and the five-year mand-min sentence imposed at that sentencing, all preceded the effective date of the FSA. United States v. Baptist, 2011 WL 2150993 (9th Cir. June 2, 2011), decision available here.

Players: Judge B. Fletcher, Judge Reinhardt, and Judge Wardlaw, per curiam.

Facts: “L-Dog” Baptist orchestrated a 14 gram crack sale between an informant and his cousin. Id. at *1. Critically, the sale, his plea, and his federal sentence all took place before August 3, 2010: the date President Obama signed the Fair Sentencing Act into law. Id.

Had the sale taken place on August 4th, no mandatory minimum sentence would apply (the new trigger for a five-year mand min is 28 grams). Id. Because the sale took place before August 3rd, however, CD Cal District Judge Robert Whaley was forced to impose a five year term – saying it “made his stomach hurt,” that he “did not believe” five years was a “just sentence,” that it was “too much,” it was “disproportionate” and “wrong from a moral sense.” Id.

Issue(s): “[Baptist] seeks to have his pre-enactment sentence for his pre-enactment transaction vacated with instructions for resentencing pursuant to the Fair Sentencing Act. He argues that the Act should be applied retroactively to reduce the harsh and unfair sentence imposed on him before the Act’s passage of the version of § 841 that Congress has since modified.” Id.

Held: “Supreme Court precedent requires us to uphold Baptist’s sentence, which was imposed under the former sentencing regime, unless the Fair Sentencing Act expressly or impliedly provides for its reduction.” Id. at *2. “Like every other circuit court to have considered this question, we can find no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment.” Id. at 3.

Of Note: How do three of the Ninth’s Best and Brightest really feel about the blatant injustice of Baptist’s sentence? “As individual judges, we believe that the result that we reach in this case – affirming a sentence of sixty months’ imprisonment for a minor drug offense under a law that Congress appears to have concluded was groundless and racially discriminatory – subverts justice and erodes the legitimacy of the criminal justice system . . . We are without power, however, to undo the injustice that we are compelled to authorize when we affirm the congressionally mandated sentence that the district judge understandably declared made his 'stomach hurt[ ]' because it was ‘disproportionate [with respect to] African Americans’ and ‘wrong from a moral sense.’ We agree wholeheartedly with the district judge. Nevertheless, unless the Supreme Court revises its view of the effect of the General Savings Statute as it applies to ameliorative sentencing laws, only Congress is able to achieve the Fair Sentencing Act’s promise ‘[t]o restore fairness to [f]ederal cocaine sentencing,’ by amending the Act so as to make it retroactive for all defendants whose sentences had not become final as of the date of its enactment.” Id. at *4 (fn. omitted).

Amen.

How to Use: Baptist was sentenced before the FSA came into effect. What about defendants whose conduct preceded the FSA, but who were sentenced after it went into effect? The panel gives us some dicta on steroids for that setting: “It would be especially egregious to require judges ‘to continue to require that courts impose unfair and unreasonable sentences on those offenders’ who have not yet been sentenced. Id. at *4 & n.2 (citations omitted).

For clients in this procedural posture, Baptist footnote 2 should be front and center for your sentencing memos and appeals.

For Further Reading: Last week AG Holder testified that the FSA should be retroactive!

Well, sort of. DOJ supports retroactivity of the FSA to the crack guidelines.

Well, sort of. Defendants with guns are out, and also excluded are defendants with “significant” criminal histories as well.

Finally, Holder opposes FSA retroactivity as to mandatory minimums. For a summary of this – nuanced – position from the DOJ, with many interesting links, see Professor Berman’s post here.


Image of the FSA signing ceremony from http://en.wikipedia.org/wiki/File:Obama_signing_the_Fair_Sentencing_Act.jpg


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


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