Case o' The Week: Shades of Gray - United States v. Gray and Rule 32 rights at Form 12 sentencings

   Probation may see black and white, but there are many shades of Gray.

  United States v. Gray, 2018 WL 4763175 (9th Cir. Oct. 3, 2018), decision available here.

Players: Per curiam decision with Judges Leavy, Hawkins and Tallman. 

   Nice win for AFPDs David A. Merchant II and Josyln Hunt, District of Montana.

Facts: Ashley Gray was charged with violations of supervised release. Id. at *1. Gray was arrested and the district judge then referred the case to the magistrate judge “for hearing, finding of facts, and recommendation.” Id. 

  At the revocation hearing before the magistrate judge, Gray admitted to all but one of the allegations. Id. The guideline range was 4-10 months: Defense counsel asked for three months of custody; the government, five. Id. 

  The magistrate judge recommended five months. Id. 

  The MJ advised Gray she had the right to appear before the district judge, but would have to file a written objection within two weeks to do so. Id. Gray didn’t file any written objections to the magistrate judge’s findings and recommendation. Id. at *2. 

  The Honorable District Judge Lowell then relied on a Probation Officer’s (confidential) sentencing recommendation of 20 months. Id. The district judge considered Gray's monitored jail phone calls that – according to Probation -- revealed a “lack of remorse.” Id. Without a hearing, the district court imposed Probation's recommended custodial sentence of twenty months. Id. 

   The district court’s twenty-month custodial sentence was “four times the length of the sentence recommended by the magistrate judge and the government.” Id. at *3 (emphasis in original).

Issue(s): “Gray contends that the district court violated Federal Rule of Criminal Procedure 32 by failing to disclose to her factual evidence on which it relied at sentencing.” Id. at *2.

Held: “The government concedes that the district court erred, and we agree.” Id. 

  “Rule 32 ‘require[s] the disclosure of all relevant factual information to the defendant,’ including ‘factual information underlying a probation officer’s confidential sentencing recommendation.’ . . . . In its order sentencing Gray, the district court relied on the probation’s officer confidential sentencing recommendation, which included factual information that had not been disclosed to Gray and to which she had no opportunity to respond before sentence was imposed. Accordingly, we must vacate and remand for resentencing.” Id.

Of Note: For many in the Ninth, this Montana procedure seems foreign: a District Judge delegated sentencing of a supervised release violation to a Magistrate Judge? Here, Gray consented and agreed to proceed before the MJ. Doesn’t matter, explains the Ninth. “In conducting proceedings based on an order of reference by a district court, a magistrate judge does “not possess the authority to impose sentence; only the district court possesse[s] that authority.” Rodriguez, 23 F.3d at 921. Thus, even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed.” Id. at *3.  

How to Use: There’s an interesting waiver holding buried in Gray. Gray didn’t object to the Magistrate Judge’s findings and recommendation: why didn’t she lose her right to complain about the D.J.’s later sentence? 

  The Ninth held that Gray's general lack of objection to the MJ's recommendation wasn’t an “explicit waiver of her right to be present and allocute.” Id. at *3. Gray teaches that waiver of Rule 32 rights isn’t a casual thing: invoke it when the government hides behind a waiver argument in sentencing and allocution claims.

                                               

For Further Reading: In Gray, the defense, the M.J., and the AUSA were just months apart in their sentencing recommendations – and all were in or near the guideline range. Probation, by contrast, urged a custodial term four times the government’s recommendation and double the high-end of the guidelines. 

  Does the largely-unfettered discretion of Probation to initiate violation proceedings, or to recommend sentences, increase sentencing disparity? 

  For an interesting piece wrestling with that question, see Probation and Parole Officers and Discretionary Decision-Making: Responses to Technical and Criminal Violations, available here.

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Steven Kalar, Federal Public Defender, N.D. Cal.

New website available at https://www.ndcalfpd.org/ (many thanks to creative web master AFPD Candis Mitchell!)

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Case o' The Week: An Unappetizing Petri Dish -- Petri, Rule 32, and Sentencing Objections

Six years ago, we complained of the Ninth’s decision in United States v. Saeteurn, 504 F.3d 1175 (9th Cir. 2007); see blog entry here. In Saeteurn, the Court held that there was no need to resolve disputed facts in a PSR, when those facts don’t actually affect the term of imprisonment imposed. Put differently, Saeteurn allowed the district court and the government to dodge meaningful appellate review, even when the defense squarely alleged factual errors at sentencing.

In the wise words of Yogi Berra, déjà vu all over again. United States v. Dan Petri, 2013 U.S. App. LEXIS 2714 (9th Cir. Feb. 8, 2013), decision available here.

Players: Decision by Judge Tallman, joined by Judges Schroeder and McKeown. Hard-fought appeal by D. Wa. AFPD Michael Filopovic and R&W Attorney Alan Zarky.

Facts: With two co-D’s, Petri worked an ATM card-skimming scheme that netted over $200k. Id. at *2. Petri pleaded guilty, and Probation balked at a minor role reduction. Id. at *3. In a sentencing memo, Petri’s counsel explained that the (at-large) “Sorin” was the real heavy, that Petri was coerced to participate in the scheme, and that Petri received less than $20k of the proceeds. Id. The district court denied minor role, didn’t really rule on the “Sorin” facts, but took Petri’s arguments “into account” and varied downwards under §3553(a) to impose a below-guideline sentence. Id. at *6. Petri appealed. Id.

Issue(s): “A full decade after an amendment to Rule 32 . . . we are asked for the first time to determine whether the amendment represented a vast expansion of the district court’s fact-finding responsibilities at sentencing. The defendant . . . insists that Rule 32(i)(3)(B) extends the district court’s fact-finding responsibility to all matters controverted, no matter how they are presented, throughout the entire sentencing phase.” Id. at *1.

Held: “The rule’s context and history . . . demonstrate an intent to narrow the rule’s scope to only those factual objections to the presentence report that have the potential to affect the sentence. Because we cannot square this strong evidence of legislative purpose with the defendant’s broad interpretation, we affirm.” Id at *2. “Because Rule 32(i)(3)(B) pertains only to unresolved objections to the presentence report, the district court had no responsibility to address either of the arguments raised during sentencing.” Id. at *17 (emphasis added).

Of Note: “Petri’s argument,” Judge Tallman opines, “is a valiant attempt at grammatical dissection.” Id. at *9. At issue is a 2002 amendment to Rule 32. The real issue is whether, under the amended rule, the district court has to decide “other controverted matter[s]” – that is, decide any issue disputed at sentencing, even if the disputed fact isn’t in the PSR. Id. at *9. “Rule 32,” the panel holds, “does not extend so far.” Id. Because Petri objected only to the PSR’s refusal to give a minor role reduction, “but did not allege a factual inaccuracy in the presentence report,” Rule 32’s requirement that factual objections be resolved wasn’t triggered. Id. at *18.

How to Use: Read Petri with a practitioner’s eye and you’ll quickly see the unwritten back story. At sentencing Petri’s counsel explained how Petri was the victim of an armed and at-large Svengali, who manipulated and coerced this low-level schmo as part of a larger skimming scheme. Id. at *4. Notably, there was no evidence submitted in support of this version of events, no declaration from Petri himself, and no demand that these defense facts be put in the PSR – and thus little risk of obstruction or loss of acceptance if the facts didn’t pan out. (A familiar and prudent defense strategy). 

There’s a sure way to circumvent Petri and make a district court rule on objections – throw down and insist that the defense facts be included in the PSR. (Of course, you’ll risk obstruction and loss-of-acceptance). Petri well-illustrates a profoundly unfair dis-symmetry. If the government’s version of events is rejected, the AUSA just loses the enhancement. If our version of facts is rejected, we risk five more offense levels with the loss of acceptance and an obstruction bump. Saddling only one party with this huge litigation disincentive is a lousy way of getting to the truth of the matter.

                                               

For Further Reading: For a compelling explanation of how the Guidelines’ procedural dis-symmetry is unfair to the defense and frustrates the pursuit of truth at sentencing, see Margareth Etienne, Parity, Disparity, and Adversariality: First Principles of Sentencing, 58 Stan. L. Rev. 309, 318 (Oct. 2005), available here.

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

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Case o' The Week: Fond Adieu, Rule 32 -- Cruz-Perez and Notice Before Above-Guideline Sentences

Notice anything odd about a district court doubling a guideline sentence without advance warning to the defense, or a continuance of the sentencing hearing? Judge Tallman doesn't (right), in United States v. Cruz-Perez__ F.3d __, No. 06-30343, 2009 WL 1607897 (9th Cir. June 10, 2009), opinion available here.

Players: Hard-fought case by E.D. Wa. & Idaho AFPD Kathleen Moran. Decision by Judge Tallman, joined by Judges Beezer and M. Smith.

Facts: Cruz-Perez pleaded guilty to his third § 1326 conviction, after receiving 24 month sentences for his previous two illegal reentry cases. Id. at *1. He acknowledged when he pleaded guilty that the stat max was twenty years for this crime. Id. (Ed. note: reading this fact in the first paragraph bodes ill for the rest of the decision. . .)

The PSR incorrectly put Cruz-Perez at 46-57 months, and the government recommended a sentence in that range. Id. The defense then won a Taylor challenge to the use of a California prior, lowering the guideline range to 21 to 27 months. Id.

At the same hearing, the district court explained that it was considering going above the guidelines; defense counsel did not request a continuance or object to lack of notice. Id. at *2. The district court then essentially doubled the guidelines and imposed a sentence of 48 months. Cruz-Perez appealed.

Issue(s): “Cruz-Perez argues that the district court erred in imposing a sentence above the Guidelines range without providing him adequate prior notice under Federal Rule of Criminal Procedure 32(h).” Id. at *2.

Held: “The district court appropriately exercised its discretion when it sentenced Cruz-Perez to 48 months, a sentence above the applicable Guidelines range. The grounds for the district court’s imposition of this above-Guidelines sentence were clearly presented in the PSR and explored by the parties in both their written submissions and oral arguments. No objection for untimely notice or request for continuance was made. Even assuming that the sentence imposed was subject to Rule 32(h), Cruz-Perez received sufficient advance notice of the factors that warranted the sentence imposed.” Id. at *4.

Of Note: The gravamen of the defense complaint is that it was given inadequate notice, and thus never had full chance to be heard by the district court before the sentence was essentially doubled without advance notice or a continuance. Given the nature of this challenge (that the defense never got a fair fight on the dramatic sentencing increase) it is unfortunately ironic that the Ninth submitted the case without oral argument. See id. at *1 n.1.

How to Use: This short opinion undertakes a brief analysis of Irizarry, then concludes that Federal Rule of Criminal Procedure 32(h) (the rule requiring notice before an upward departure) is essentially dead letter law: it remains in effect, but the justification for the rule no longer exists. Id. at *3. Judge Tallman assures us that it doesn’t matter whether the increased sentence is a guideline departure or a variance when the grounds for the above-guideline sentence were identified before the hearing and explored by the parties. Id. at *4.

It is important, however, to emphasize that this is a plain-error case: no defense objection was made at sentencing to the Rule 32(h) violation. (There is curiously little discussion of plain error in the decision, making it dangerously vulnerable to incorrect citation as a general Rule 32(h) holding). The first and best way to fight Cruz-Perez notice problems is to object at sentencing, and request a continuance if an above-guideline sentence is threatened or imposed.

For Further Reading: The Cruz-Perez decision incorrectly flips the lead Supreme Court decision’s name: the correct cite is Irizarry v. United States, __ U.S. __, 128 S. Ct. 2198 (2008), decision available here. See id. at *3. In Irizarry, Justice Breyer persuasively questions in dissent why Federal Rule of Criminal Procedure Rule 32(h)’s notice provisions would apply to upward departures, but not to upward variances. 128 S. Ct. at 2204. The ABA and the Rules Committee are now taking a look at amendments to Rule 32. Unfortunately, thanks to DOJ’s active involvement in the amendment process some of these amendment “cures” may be worse than the Rule 32 disease.

Image of "Chief" Judge Richard Tallman (?!?) from http://www.abanet.org/deathpenalty/recentevents/images/chief_judge_richard_tallman%20.jpg

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

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Case 'o the Week: Ninth Heavy Hahn-ded on Rule 32(h) Notice Requirements

Does a defendant have the right to know they're going to get hammered, before the gavel falls? In a disappointing decision, a per curiam panel of the Ninth holds that briefing and arguing a departure issue is enough "notice" under Federal Rule of Criminal Procedure 32(h) to permit an upward departure -- even if the district court hasn't given notice of its intent to do so. United States v. Brett Hahn, __ F.3d __, No. 07-30324, 2009 WL 530933 (9th Cir. Mar. 4, 2009), decision available here.

Players: Per curiam decision with Chief Judge Kozinski, Judge Betty Fletcher, and Judge Johnnie Rawlinson.

Facts: Hahn got a heavy state sentence in Montana for criminal endangerment and intimidation – then the USAO prosecuted him for felon-in-possession, arising out of the same incident. Id. at *1. The PSR hit Hahn for the § 2K2.1 + 4 bump for possessing the gun during the course of another felony (the state offense), but was silent on whether the federal sentence should be concurrent or consecutive. Id.

The defense (correctly) argued in its briefs and at the sentencing hearing that USSG § 5G1.3 requires the federal sentence to be run concurrent, when the state offense increases the federal guideline range. Id. The government argued for an upward departure from Guideline § 5G1.3, seeking a consecutive sentence. Id.

The district court seemed inclined to agree with the government, but ran the sentence concurrent because it hadn’t given notice of its intent to depart upwards before the sentencing hearing. Id. The government appealed. Id. at *2.

Issue: “The government argues that the district court erred when it found inadequate notice because both parties briefed the issue of whether the court should impose a concurrent or consecutive sentence in their sentencing memoranda.” Id. at *2.

Held: “We agree. We vacate Hahn’s sentence and remand his case to the district court for resentencing.” Id. at*2. “The district court itself is required to give notice of its intent to depart only when the PSR and the parties’ prehearing submissions fail to identify the ground for departure. Fed. R. Crim. P. 32(h).” Id. “[W]e find that because the parties’ own sentencing memoranda discussed the propriety of concurrent or consecutive sentences, Hahn cannot claim that he had no notice that the district court might consider imposing a consecutive sentence.” Id.

Of Note: Chief Judge Kozinski concurs in the per curiam decision “without reservation.” Id. at *3. He writes a special concurrence, though, to emphasize that the district court erred by imposing the concurrent sentence if it thought the “reasonable” sentence should have been consecutive. “If a judge believes that he can’t impose the right sentence without giving notice, he must give notice – and grant a continuance if necessary – rather than imposing the wrong sentence.” Id. at *3.

How to Use: This little per curiam decision takes an unwelcome bite out of sentencing-notice rights for upward departures. As a practical matter, how often does a district court sua sponte depart upwards without someone with a prosecutorial bend – be it an AUSA or a probation officer – urging the departure and its basis before the sentencing hearing? This, according to Hahn, is “notice” to the defense that the court may indeed depart upwards.

One distinction bearing emphasis is that in Hahn both parties briefed and fully argued the concurrent/consecutive issue before the sentencing hearing. A casual reference in the government’s briefs alone may not satisfy the Hahn notice requirement before an upward departure is imposed (although the Hahn PSR’s silence on the departure issue is a worrisome fact that will muddy future notice analyses).

For Further Reading: For an interesting and useful discussion of Rule 32 notice requirements in the post-Booker world, see Sentencing Resource Counsel Amy Baron-Evan’s memo, “After Irizarry: . . .”, available here .


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

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Case o' The Week: A "Real" Defense Victory, Waknine

A slow week in the Ninth means we can stretch back a bit to the interesting decision of United States v. Waknine, __ F.3d __, 2008 WL 4149666 (9th Cir. Sept. 10, 2008), opinion available here. In this appeal from the Honorable Manuel Real (left), the Ninth Circuit rejects defense complaints that the government did not get a full chance to speak at sentencing. (Yes, that was written correctly).

A good ultimate result, however, on the need for a statement of reasons at sentencing.

Players: Decision by Judge Gould, joined by Judge Wallace, partial concurrence by Judge Ikuta.

Facts: Waknine went to trial on RICO charges, for laundering money extorted from the Tel Aviv Trade bank and brokering loans through extortion. Id. at *1. Five days into trial he pleaded guilty. Id.

His plea agreement said “At the time of sentencing, the government agrees to recommend that defendant be sentenced to a 108-month sentence.” Id. The PSR came back with CH II, OL 31: 121-151 months. Id. The government filed a sentencing memo recommending 108 months. Id. at *2.

At sentencing, defense counsel spoke, the defendant allocuted, but the government wasn’t given a chance to speak – and the court imposed a 121 month sentence. Id. at *2. The government then reminded the court that it wanted 108, and asked how the court got to 121. Id. at *2. (“Mid-range of CH I, OL 31,” answered the district court).

Issue(s): Waknine “argues the government violated the plea agreement by not orally recommending at the sentencing hearing a 108-month prison term pursuant to the plea agreement.” Id.

Held: [Rejects the above challenge on plain error review, but] “We conclude that there was plain error in the sentencing, and we therefore vacate the sentence, and remand with instructions for the district court properly to calculate the United States Sentencing Guidelines range, to discuss the 18 USC § 3553(a) factors in rendering sentence, and to comply with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence.” Id.

“[W]e reject Waknine’s request for a new sentencing judge.” Id.

Of Note: This was an appeal from the Honorable District Court Judge Manuel L. Real. Waknine alleged, “‘[t]here is a generalized pattern of cowering by attorneys who appear’ before Judge Real and a general pattern of parties afraid to advocate in Judge Real’s courtroom.” Id. at 10. The Ninth demurred: “We are confident that in future proceedings counsel will not hesitate to advocate before the district court.” Id. at *11.

How to Use: Waknine didn’t object to the government’s failure to orally recommend 108 at the sentencing hearing, so the Ninth dodges this issue on plain error review. Id. at *3-*4. It is interesting – and a little disturbing – that the Court refused to construe the plea agreement in favor of the defense (the traditional rule) because it was on plain error review. Id. at *4. That approach seems like a new rule, and an unwelcome one at that.

The useful part of this opinion is the Court’s embrace of Rule 32 – the right of both parties to be heard at sentencing – and its holding (on plain error review!) that the Court did not sufficiently explain its Section 3553(a) rationale for the sentence. Id. at *5-*6. That makes Waknine one of very few post-Booker decisions to remand for an insufficient Section 3553(a) “statement of reasons,” and a valuable addition to the defense arsenal. (Although, bear in mind the above “Of Note” observations when relying on this decision – a sub silencio fact of the decision, perhaps?)

For Further Reading: Judge Real is far too big a topic for this little memo. See Wikipedia entry here. Still, its worth mentioning some sweet with the sour.

One of the first – and best – post-Booker decisions in the Ninth Circuit upheld a dramatic departure by Judge Real. See blog here, discussing United States v. Menyweather, 447 F.3d 625 (9th Cir. 2006).

Judge Real’s sentence was equally admirable in United States v. Green, 105 F.3d 1321 (9th Cir. 1997) (reversing Judge Real’s departure from four years to probation for manufacture and cultivation of marijuana with intent to distribute).

And, whatever one’s views of this district court judge, it must be conceded that he’s unafraid of the Ninth: he stuck by his probationary sentence in Menyweather despite two appeals to the Ninth, and two remands.

Article III independence, in spades . . . .

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


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