Case o' The Week: (De)construction Ahead - Henderson and Child Porn Guidelines

At a fundamental level, Apprendi, Booker, Kimbrough and Gall are skirmishes in a separation-of-powers war between Article III judges and Congress, arising from the politically-expedient policy decisions that have plagued federal sentencing for the last several decades. Plainly-stated, Congressionally-dictated sentencing guidelines flatly intrude on what judges do best: judge.

If you had to choose, who is one of the best jurists to bear the Bench's banner in this battle?

We think so, too. United States v. Henderson, 2011 WL 1613411 (9th Cir. Apr. 29, 2011) (Fletcher, B., J., writing majority opinion explaining child pornography guideline is squarely subject to Kimbrough deconstruction challenge and must be addressed by district court when raised), decision available here.

Players: Remarkable decision by Judge Betty Fletcher, equally good concurrence by Judge Berzon, additional concurrence by Judge Callahan. Important victory by CD Cal AFPD James Locklin.

Facts: An undercover FBI Agent discovered Henderson through Limewire and downloaded child porn from him; there followed a search and a full confession. Id. at *1. Over 8,000 files were recovered, as well as hard-copy pictures of actual female minors who had been brought into Henderson’s home. Id. (There were no allegations of sex with these minors).

Henderson pleaded guilty to possession of child porn, with guidelines in the 108-120 range. Id. at *2. Based on Henderson’s tragic history of childhood abuse and documented mental illness, the Probation Office recommended a departure to 70 months. Id. The district court departed downwards to 78 months, but balked on the defense recommendation of 36 months. Id. at *2-*3.

At sentencing, the district court refused to engage with the defense policy challenge to the child porn guidelines explaining, “I’m going to need direction from the Ninth Circuit before I accept those other arguments . . . .” Id. at *3.

Issue(s): “Henderson challenges the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States, 552 U.S. 85 (2007) to vary from the Sentencing Guidelines based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. at *1.

Held: “We . . . hold that, similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, § 2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. at *7 (footnote omitted). “[A] district court commits procedural error when it fails to appreciate its Kimbrough discretion to vary from the child pornography Guidelines based on a categorical policy disagreement with them.” Id. at *8.

Of Note: “District judges who, after having considered § 2G2.2, conclude that it constitutes bad advice should be encouraged to reject it as such.” Id. at *9 (Berzon, J., concurring) (emphasis added). So explains concurring Judge Berzon, who reveals the “anomalous” history of a guideline that produces “unjust and sometimes bizarre results.” Id. at *8 (Berzon, J., concurring). Henderson is a must-read for anyone with a child porn case in the Ninth: it reflects the palpable distrust of the Commission’s child pornography guidelines by the federal bench, and is a beautifully-detailed chronicle of how this particular guideline is the by-product of Congressional -- intervention -- instead of a reasoned, empirical analysis by the Sentencing Commission.

How to Use: Almost any district judge will be more comfortable with a variance based on a defendant’s individualized factors, rather than a full-frontal assault on the Sentencing Guidelines. In reality, however, Henderson (and all Kimbrough policy attacks) can make those individualized variances more attractive: after all, a significantly substantial variance based on regular § 3553(a) factors can moot the defense pitch for a Kimbrough reduction.

For those admirable D.J.’s who are feeling their Article III oats, however, Henderson is the green light to gambol after years of chaffing under the guideline yoke. Judge Fletcher carefully explains how Henderson is right in line with Mitchell, which opened the season on the Career Offender guideline for Kimbrough policy attack. Id. at *7 n.5. What’s the next guideline to fall? Our nominee is § 2L1.2, the hated and often-arbitrary illegal reentry guideline. For a great attack on this lousy guideline, see article here.

For Further Reading: WD Mo. AFPD Troy Stabenow is a hero of the defense community for his early and exacting deconstruction of the child pornography guidelines. See Troy Stabenow, Deconstructing the Myth of Careful Study: A primer on the Flawed Progression of the Child Pornography Guidelines, Jan. 1, 2009, available here.

How good is Troy’s piece? It is cited very favorably in the first paragraph of Judge Berzon’s concurrence (and she is not the first appellate judge to do so). Id. at *8 (Berzon, J., concurring).

Image of the Honorable Judge Betty Fletcher from http://connect.in.com/betty-binns-fletcher/photos-1-1-1-360b4c8fe3b65f272bc434950f5b4467.html

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

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Case o' The Week: Goodwin Finds Gold in Corner of Seventh Circuit - Mitchell and Kimbrough Policy Variances

A district judge looks at a guideline range, and knows in his or her gut that it is unfair -- it is based on bad policy, and would create unwarranted disparities in sentencing. Can that judge vary from the guideline under Section 3553(a), after Kimbrough?

Yep, if the guideline in question is Career Offender. (And, we think, the same logic must apply to the "fast-track" guidelines for illegal reentry cases as well). United States v. Mitchell, 2010 WL 4105220 (9th Cir. Oct. 20, 2010), decision available here.

Players: Decision by Judge Goodwin (right).

Facts: Mitchell, a Career Offender, pleaded guilty to distributing over fifty grams of a mixture containing crack. Id. at *1. The district court varied downward 43 months from Career Offender, id., because of its disagreement with the crack/powder sentencing disparity. Id. at *3.

Issue(s): Mitchell “challenges . . . the district judge’s consideration of the crack/powder disparity in his sentence.” Id. at *1.

Held: “We . . . join other circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.” Id. at *1.

“Acceding to the [Supreme] Court’s confirmation of the advisory only use of the Sentencing Guidelines, the circuits that have recently addressed the crack/powder differential in sentencing a career offender have concluded that ‘district judges are at liberty to reject any Guideline on policy grounds – though they must act reasonably when using that power.’ United States v. Corner, 590 F.3d 411, 415 (7th Cir. 2010) (en banc) . . . . We agree with this analysis and now follow it in this circuit.” Id. at *4 (emphases in original) (footnote and citations omitted).

“Because the sentencing judge carefully considered and explained his downward adjustment of Mitchell’s imprisonment term to account for the crack/powder differential, even though Mitchell was a serial offender, the judge was entitled to disagree with the policy behind the advisory Sentencing Guideline and did not abuse his discretion in sentencing Mitchell.” Id. at *5.

Of Note: What, exactly, was Mitchell’s beef? It isn’t clear from the opinion. The original fight in the opening brief was over the judge’s failure to fully vary down to a 1:1 crack / powder ratio. See Appellant’s Opening Brief, 2009 WL 3760268. This argument obviously pre-dated the Fair Sentencing Act of 2010 (“F.S.A.”) – which changed the crack / powder ratio needed to trigger the mandatory minimums from 100-to-1 to 18-to-1. See general summary here.

Along the course of briefing the dispute veered into the power of the district court to vary from Career Offender based on a policy dispute with the crack laws: a happy diversion for defendants generally, though it didn’t do much for Mitchell himself.

How to Use: Those brainy folks at the San Diego FPD (and, in particular, AFPD Steve Hubachek) have seized on a broader impact of Mitchell: a sub-silencio rejection of a previous, unfortunate Ninth Circuit decision, United States v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009).

In Gonzalez-Zotelo, the Ninth reversed a § 3553(a) variance by a district judge who rejected the government’s refusal to give fast-track to one illegal reentry defendant when it had given the deal to another, more-culpable defendant the same day. Id. at *738. See blog describing decision here. Judge Silverman wrote that Kimbrough didn’t permit § 3553(a) variances for policy disagreements with Section 1326 fast-track disparities. Id. at *740.

Zip forward a year to Mitchell, and the Ninth now relies on the Seventh Circuit’s en banc decision in Corner to hold that a court can use Kimbrough for a § 3553(a) variance based on policy disagreements with the crack laws. 2010 WL 4105220 at *4.

The Seventh has since recognized that Corner changes everything – it has just held that Corner overrules its own limitations on Kimbrough variances for fast-track disparities. United States v. Reyes-Hernandez, 2010 WL 3911336, *10-*13 (7th Cir. Oct. 7, 2010). And, the Ninth has just adopted Corner - ergo, the Ninth appears to have rejected its own regrettable Gonzalez-Zotelo decision.

Like the more-enlightened Seventh, the Ninth should now take Gonzalez-Zotelo en banc and get rid of a decision that cannot be squared with Kimbrough and post-Booker sentencing.

For Further Reading: The Fair Sentencing Act of 2010 changed the crack/powder ratio for mandatory-minimums. The Sentencing Commission just adopted “emergency amendments” that affect the guidelines for these drugs. For a summary of this new amendment, see the Sentencing Resource Counsel brief here.


Image of the Honorable Alfred T. Goodwin from http://www.uoregonlaw.com/s/293/index.aspx?sid=293&gid=1&pgid=445



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


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Case o' The Week: Ninth's blow to Kimbrough, Gonzalez-Zotelo and fast-track disparities

A disappointing decision authored by Judge Barry Silverman (left) deepens a circuit split on the scope of a district court's sentencing discretion after Kimbrough. See United States v. Gonzalez-Zotelo, __ F.3d __, 2009 WL 37144 (9th Cir. Jan. 8, 2009), decision available here.

Players: Hard-fought appeal by San Diego AFPD Steve Hubachek.

Facts: Gonzalez-Zotelo was denied a fast-track offer because of a prior conviction for lewd & lascivious acts with a child. Id. at *1. Earlier on the day he was sentenced, another illegal-reentry defendant – with armed robbery priors – was sentenced by the same judge to thirty months on a fast-track deal (about half of Gonzalez-Zotelo’s guideline range). Id. Unable to rationalize these disparities, the district judge sentenced Gonzalez-Zotelo to thirty months. Id. The government did not object to the lower sentence on this basis, then took this appeal. Id. at *2.

Issue(s): “The government argues that it was unreasonable for the district court to base its sentencing decision solely on disparities between a defendant who did not receive a fast-track plea offer and a defendant who did.” Id.

Held: “Because the district court erred when it imposed a lower sentence on Gonzalez-Zotelo based solely on what it misperceived to be unwarranted sentencing disparity, we vacate the sentence and remand for re-sentencing. Under our cases, the disparity in question is indeed warranted, because it is justified by Congress’s approval of fast-track plea bargaining programs.” Id. at *1.

Of Note: In Gonzalez-Zotelo, Judge Silverman places the Ninth on the wrong side of growing circuit split by rejecting the discrepancies in fast-track offers as a basis for a reduced sentence. Id. at *3. This important new rule is set forth in, respectfully, an unpersuasive decision. The opinion looks back to a pre-Kimbrough case, United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006), for the proposition that the government’s often-whimsical decisions on which defendant receives a fast-track offer is not a basis for a reduced sentence. Id. at *2. How Marcial-Santiago survives Kimbrough, however, is a head-scratcher. The opinion distinguishes the Supreme Court case by concluding that Kimbrough authorizes variances when a district court disagrees with a Guideline – but not Congressional policy. Id. at *3.

The biggest problem with this distinction, however, is that Congress didn’t articulate the (arbitrary) distinctions that new AUSAs concoct to deny the fast-track offer. As Hubachek has pointed out, Congress (or the Commission) said nothing about unaggravated PC § 288 crimes being ineligible for fast-track, but knife-wielding robbers being entitled to the break. The discrepancy in this case was created by the government – not Congress – and that disparity has long been a sound basis for a reduced sentence. See, e.g., United States v. Daas, 198 F.3d 1167, 1180-81 (9th Cir. 1999) (“Downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances.”)

A threshold question, however, is how the government ever survived plain error review in this case? Hubachek astutely observes that when the defense is fighting plain error, a circuit split has been the kiss of death. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040-41 (9th Cir. 2008) (Silverman, J.). Again, with all respect, seems tough to reconcile the Miranda-Lopez plain-error approach with Gonzalez-Zotelo. Gonzalez-Zotelo creates broad new Ninth sentencing law, deepens a circuit split, and is inconsistent with very recent law on plain error. It deserves a second look en banc.

How to Use: Because the Supremes may someday resolve this circuit split arguments based on fast-track disparities are worth preserving. A prudent approach, however, would to be to urge different bases for imposing the same sentence, on less-controversial grounds. The district court here could have broadly stated that it considered the Section 3553(a) factors, reflected on the unique facts of the prior conviction (see United States v. Sanchez-Rodriguez, 161 F.3d 556, 561-62 (9th Cir. 1998)) and imposed the lower sentence on those grounds. While the full scope of Kimbrough is being slugged-out, prudent to urge belt-and-suspender sentencing departure/variance bases.

For Further Reading: For various commentary on Gonzalez-Zotelo, visit Professor Berman’s sentencing site here.


Image of the Hon. Barry Silverman from http://www.eastvalleytribune.com/story/96288


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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