Case o' The Week: Ruff Case for the Government, Big Sentencing Win for the Defense

In an important decision that has real-world impact for our clients, Judge Fisher (left) emphasizes the discretion of a district court to fashion a sentence that avoids full custodial confinement. See United States v. Ruff, 2008 WL 2940535(9th Cir. Aug. 1, 2008), decision available here. The opinion sparks a vigorous dissent from Judge Gould, however, who articulates a worrisome skepticism about white collar sentences. See id.

Players: Interesting split: authored by Judge Fisher, joined Judge by Ikuta (W. Bush appointee), dissent by Judge Gould (Clinton appointee).

Facts: Ruff stole stuff. A hospital employee, he took over $640k worth of supplies and sold it on eBay. Id. at *1. When caught he confessed, and ultimately pled guilty to health care fraud, theft, and money laundering. Id. at *1. The PSR’s range was 30-37 months. Id.

At sentencing the judge worked through the § 3553(a) factors, noting Ruff’s employment history, his cooperation and remorse, his support from his siblings, the absence of risk to the public and the appropriateness of restitution, and Ruff’s mental health problems – including pathological compulsive gambling. Id. at *1. The court sentenced Ruff to a year and a day at a particular residential confinement facility, so Ruff could get work release, visit his son, and get counseling. Id. at *1.

When the judge discovered that this jail could only house Ruff if it was a condition of supervised release, he flipped the sentence to one day of BOP custody and three years supervised release – with a condition of a year and a day in the same facility. Id. at *2. The government appealed.

Issue(s): “The government insists that this modification overstepped the bounds of the district court’s sentencing authority.” Id. at *1.

Held: “We disagree. Applying the requisite deferential standard of review, we conclude that the district court did not abuse its discretion and that the sentence it imposed is reasonable.” Id. at *1.

Of Note: Judge Gould isn’t happy. Id. at *4 (Gould, J., dissenting) (“Ruff’s sentence with only one day of imprisonment is not reasonable and we should say so in no uncertain terms.”) The gist of his dissent is that Ruff is a white collar criminal, the whole sentence had been manipulated so Ruff could go to a residential confinement center, and that courts are too soft on white collar crime. Id. at *5-*6. “It seems inescapable that we as a court need to spend more time thinking about the appropriate punishment for white collar crime.” Id. at *6.

In response, Judge Fisher counters with a great collection of low sentences given in a range of crimes. See id. at *3 & n.1. He concedes that “more time thinking about the appropriate punishment for white collar crime” may be appropriate, but counters that Ruff’s case wasn’t treated any differently than other crimes. Id.

Judge Gould’s dissent is worrisome. There are plenty of “liberal” judges who are tired of meting out decades of mandatory-minimum sentences to minority drug defendants, and probation to white, white collar criminals. Of course, unfair and unjust sentences for drug crimes do not require the same unfair and unjust sentences for all crimes. With mortgage fraud cases exploding, however, Gould’s trend bodes ill for our future white collar clients.

How to Use: The important Ruff rule? With the proper § 3553(a) showing, a district court can craft a sentence to control the conditions of confinement and to provide alternatives to incarceration. One of these questions that we had as Apprendi law developed was whether this new sentencing power would let a judge get into the nitty-gritty of custodial conditions.

Turns out, after Gall and Ruff, it does – and with the right § 3553(a) showing, these sentences are safe on appeal. Use Ruff to push for split sentences, home confinement, and intermittent confinement. As in Ruff, use “conditions of supervised release” as the stick to make the mulish BOP actually follow the district court’s orders.

For Further Reading: By happy coincidence, our fellow blogger Steve Sady has just finished his magnum opus “The Sentencing Commission, The Bureau of Prisons, And The Need For Full Implementation Of Existing Ameliorative Statutes To Address Unwarranted And Unauthorized Over-Incarceration.” See blog posting here.

It is excellent.

Sady’s article and Ruff are the keys out of hard custodial time for many of our clients: use both in your next sentencing memo.


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

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Case o' The Week: Paris is Worth a Mass, Cherer

The Guidelines have no clothes -- and Gall and Kimbrough give experienced federal jurists just the platform they need to bluntly point this out. The latest broadside fired at the guideline edifice comes in a great dissent by Judge Noonan in United States v. Cherer, __ F.3d __, 2008 WL 200553 (9th Cir. Jan. 25, 2008), decision available here. While the Cherer opinion is a mediocre decision that dodges meaningful "reasonableness" review, Judge Noonan's great dissent foreshadows debates that will occupy the Ninth in '08.

Players: Spot-on dissent by Judge John Noonan.

Facts: Mr. Paris Cherer had a sexually-explicit dialogue with an FBI agent on AOL. 2008 WL 200553, *1. In several e-mails, the agent represented that she was fourteen, sent Cherer a picture of a fourteen-year old girl, and talked about her parents’ supervision. Id. at *3. Cherer traveled to meet “Susie”, was arrested, and was convicted at trial of 18 USC § 2422(b), attempting to entice a minor to have sex. Id. at *1.

At trial, the district court judge: 1. refused to give the defendant’s mens rea instruction, 2. let in FRE 404(b) evidence on Cherer’s prior state conviction for “lewdness with a child under fourteen,” and previous complaints made to AOL about his sexual dialogue from his screen name.

At sentencing, the court imposed a guideline sentence of 293 months - over 24 years. Id. at *1.

Issue(s): 1. Mens Rea/ Instructions: “On appeal, Cherer argues that the court committed prejudicial error by refusing to deliver his proposed [mens rea] instruction . . . .” Id. at *

2. FRE 404(b): “Cherer argues that Rule 404 or 403 should have barred evidence of this prior conviction and the AOL complaints.” Id. at *5.

3. Sentencing: “Since the district court committed no procedural error, the only question remaining is whether the sentence was reasonable - i.e., whether the District Judge abused his discretion in determining that the § 3553(a) factors supported a sentence at the top of the Guideline range.” Id. (internal quotations and citation omitted).

Held: 1. Mens Rea/ Instructions: “[T]he instructions did not explain that the jury was required to find that Cherer believed that the target, ‘Susie,’ was a minor. In other words, neither appropriately connected the requisite state of mind – knowledge – with the statute’s object – a minor victim.” Id. at *3. [But, harmless error.]

2. FRE 404(b): “The district court properly exercised its discretion to admit both pieces of evidence.”

3. Sentencing: “[E]ven without presuming that a within-Guideline sentence is reasonable, we cannot say that Cherer’s within-Guidelines sentence is unreasonable.” Id. at *8.

Of Note: Last week we touted Sixth Circuit Judge Merritt’s broadside on “guidelinitus;” this week brings us a remarkable dissent by our own Judge Noonan (left). Id. at *9 (Noonan, J., dissenting). He begins with a clean list that summarizes the playing field after Gall and Kimbrough: the Guidelines are only advisory, a district court can not presume they are reasonable, sentencing must be individualized, and comparison of various types of sentences may be taken into account where the reasonableness of the sentence is at issue. Id. at *9-*10.

Here, Cherer got straight probation in the prior Nevada case for actual sexual contact with a minor – then nearly twenty-five years for attempted sex with (what turned out to be) an adult FBI agent! Judge Noonan compares another home-invasion rape case that earned the defendant seven years – while Cherer gets a quarter-century for his “clumsy efforts to obtain forbidden sex?” Id. at *11. "A majority of judges appear to agree that Cherer's sentence was 'unduly harsh.' But the court finds the sentence not 'unreasonable.' That is such a fine distinction as not to be readily comprehensible." Id. at *12.

Emperor USSG has no clothes: Gall and Kimbrough give license to experienced jurists like Merritt and Noonan to expose the realities of Guideline injustice.

How to Use: There’s little admirable in the Cherer majority decision, but don’t let the outcome overshadow an important defense victory on the mens rea requirements in Section 2422 cases. The Court concedes that “when a defendant, like Cherer, has targeted an adult decoy rather than an actual minor, the Ninth Circuit requires that the defendant have believed the target was a minor.” Id. at *2. This is an important affirmation of a viable defense – particularly because many districts are seeing huge upswings in these types of prosecutions.

For Further Reading: Sentencing discrepancies between state and federal prosecutions are fair game for § 3553(a) variances. So are inane guidelines that generate wildly disparate sentences for attempt crimes. Judge Noonan’s dissent amplifies arguments that we’ve made in our upcoming Champion article on Gall and Kimbrough – an article that will be widely available at www.fd.org within a week or two.

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

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Case o' The Week: A Cure for "Guidelinitus", Castendada

Sixth Circuit Senior Judge Gilbert S. Merritt (right) had nothing to do with the Ninth's Case o' The Week in United States v. Castenada, __ F.3d __, 2008 WL 126641 (9th Cir. Jan. 15, 2008), decision available here. Judge Merritt's recent dissent on guideline practice after Gall and Kimbrough, however, is such an honest and candid assessment of federal sentencing that it deserves national recognition (and heavy citation in sentencing memoranda). (See below).

Players: Nice win by former ED Cal AFPD (and Hon. H.P. clerk) John Balazs.

Facts: Casteneda was convicted of crack crimes. 2008 WL 126641, *1. The defense urged a below-guideline sentence based on the Guidelines’ 100:1 sentencing disparity between crack and powder. Id. The district court did not “believe it’s appropriate to reduce a sentence under . . . § 3553(a) on the basis that the Congress and the . . . Sentencing Commission are wrong in establishing different penalties for different types of controlled offenses. Id. at *1. The panel denied the first appeal.

Issue(s): “In a Petition for Rehearing, Medina-Casteneda requested that we reconsider our decision in light of the Supreme Court's then-pending decision in Kimbrough . . .”

Held: “These statements [at sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough. Thus, the district court did not feel free to consider whether ‘any unwarranted disparity created by the crack/ powder ratio produced a sentence . . . greater than necessary’ to achieve § 3553(a)’s purposes. We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence ‘greater than necessary’ under § 3553(a).” Id. at *2.

Of Note: There’s so much “of note” after Gall / Kimbrough that Defender Jon Sands and I have written an article on the topic for the NACDL's Champion. Look for the article in the upcoming edition.

How to Use: Here are some bullet points on opportunities presented by Gall / Kimbrough:

● The “parsimony provision” in § 3553(a) was strongly endorsed in those decisions; judges should be shooting for sentences ‘no greater than necessary’ to reach § 3553 goals;

● Guidelines with lousy empirical and analytical pedigrees are more vulnerable to attack – like other mand-min drug guidelines, fraud guidelines, and child porn. See United States v. Baird, 2008 WL 151258 (D. Neb. Jan. 11, 2008) (halving child-porn sentence given lousy empirical pedigree of child-porn guidelines);

● Non-guideline sentences to offset disparities are now encouraged (so fast-track, Section 1326 disparities are again fair game);

● Non-guideline sentences in light of co-defendant disparities are endorsed;

● Whether a basis for a non-guideline sentence is “discouraged” in Guidelines Chapter 5 is not relevant – these theories are still completely fair game for a § 3553 below-guideline sentence;

● Belt and suspenders are best – ask for both a guideline departure and a § 3553 “statutory” below-guideline sentence, because there’s some troubling language about potentially different standards of appellate review for the two.

For Further Reading: As always, start at www.fd.org. The site has several articles on these developments – including a great appellate brief on the newest issue on the horizon, keeping acquitted conduct out of sentencing. (See blog on Ninth Circuit's acquitted conduct decision in Mercado, here -- with a great B. Fletcher dissent Mercado cert. petition now in Supreme Court conference).

AFPD Jennifer Coffin has prepared an interesting list of appellate Gall and Kimbrough cases, with commentary – defense counsel can get a copy from me.

A must-read is Sixth Circuit Judge Merritt’s remarkable dissent in United States v. Sedore, __ F.3d __, 2008 WL141046 (6th Cir. Jan. 11, 2008), decision available here. The first paragraph gives a flavor of the opinion: “Except for those judges and lawyers who prefer to continue routine conformity to the old pre- Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened – continuing under the pretext that the guidelines are only ‘advisory’ instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or ‘guidelinitis,’ the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.” Id. at *9 (Merritt, C.J., dissenting).

Finally, Gall / Kimbrough have their dark sides as well. AUSAs, Judges, and Probation officers interested in how the cases have already been used to support above-guideline sentences should visit an insightful article here, see the statistics available here, or review the materials at this web site.


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

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