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: Go to Jail to Get Time-Served Sentence -- Aguilar-Reyes and absent defendants on sentencing remand

Hon. Diarmuid O'Scannlain

  Mr. Aguilar-Reyes will enjoy the triumph of standing before the district judge and being re-sentenced, after the government conceded error in the Ninth.

  (He just needs to illegally return to the U.S. and endure incarceration to claim that resentencing prize).  United States v. Aguilar-Reyes, 2013 U.S. App. LEXIS 14542 (9th Cir. Aug. 8, 2011), decision available here.

Players: Decision by Judge O’Scannlain, joined by Judges Hurwitz and DJ Piersol. Hard-fought appeal by Arizona Federal Public Defender’s office.

Facts: Aguilar-Reyes was convicted in state court of attempting to commit smuggling. Id. at *2-*3. He was deported, re-entered, was caught, and pleaded guilty to illegal reentry. Id. at *3. Over defense objection, the PSR hit Aguilar-Reyes with a sixteen offense level enhancement due to this state smuggling prior. Id. The district court (ultimately) agreed with the defense, gave the defendant time-served, and Aguilar-Reyes was deported to Mexico. Id. at *4. The government appealed and won, and the revised judgment was stayed. Id. at *5. Then the Ninth considered Aguilar-Reyes’s appeal (this opinion). On this appeal, the government agreed with this defense and conceded error: the Az. smuggling statute is overbroad for guideline purposes because it lacks an element of the federal statute. Id. at *5. While they agreed on the merits, the parties fought in the Ninth over the remedy: whether Aguilar-Reyes could move for a re-sentencing if he ever returned (government), or whether the case should be remanded to the district court so it can decide what to do (defense).

Issue(s): [Defense] “counsel says he is not arguing for resentencing in abstentia exactly. Rather, he is arguing for a remand to the district court so that it can figure whether resentencing can occur consistent with Aguilar-Reyes’s statutory and constitutional rights. He suggests that the district court could conclude that resentencing may proceed without Aguilar-Reyes since the proceeding would resolve only a question of law: whether the modified categorical approach allows for imposition of a sixteen-level enhancement . . . . No fact questions would arise, Aguilar-Reyes contents, because all the relevant issues bearing on the 18 USC § 3553 sentencing factors have already been presented and litigated, both in the original sentencing proceedings and the resentencing proceedings (in which the district court was acting outside its jurisdiction).” Id. at *11 (internal quotations and citations omitted).

Held: “Such argument . . . fails . . . [I]n a true resentencing, everything--both issues of law and fact--are back on the table, so the proceeding is necessarily one not limited strictly to matters of law. It is for this reason that the leading treatise on federal procedure declares, "If a sentence is set aside and the case remanded for resentencing, the presence of the defendant is necessary." 3A Charles Alan Wright, et al., Federal Practice and Procedure § 723 (1982). The courts appear to be unanimous on this general point.” Id. at *11-*12. “[W]e therefore affirm Aguilar-Reyes’s sentence without prejudice to a later request by him, if and when he should return to the United States or waive his right to be physically present at resentencing, that his previous sentence be vacated and that he be resentenced in light of this opinion.” Id. at *12.

Of Note: In this case, the characterization of the state smuggling prior meant a twelve offense-level swing. How does one identify and attack priors in this complicated modified categorical morass? First turn to Steve Sady’s superb recent primer on Decamps, available here.

How to Use: The procedural tangle in this case arose because the district court corrected its own sentence – but did so after 14 days had elapsed. In a previous opinion, a Ninth panel held the district court had lost jurisdiction to correct its sentence. See 653 F.3d 1053. If there are problems with a sentence, remember that two-week clock ticks away towards a hard jurisdictional bar: move to fix sentencing problems early.

                                               

For Further Reading: ED Va. Fed. Def. Michael Nachmanoff will be testifying in the Senate

on July 23 at noon Pacific. Michael will be explaining the impact of the budget crisis on federal indigent defense. FPD or CJA, this is a hearing you’ll want to see. The webcast is available here.

  While waiting for the testimony, enjoy a terrific New York Times editorial on the impact of the budget crisis on indigent defense, available here.

Image of the Honorable Judge Diarmuid O’Scannlain from http://www.discovery.org/e/224

"New York Times" logo from http://www.thesaleslion.com/wp-content/uploads/2013/03/the-new-york-times.jpg

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

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