Case o' The Week: Doubting Thomas - Joel Leon Thomas Jr., Guideline variance, and Mand-Mins

DJ wanted to give shorter sentence.

DJ could have given shorter sentence.

Ninth agrees.

Yet half-century sentence stands?

United States v. Joel Thomas, 2016 U.S. App. LEXIS 22625 (9th Cir. Dec. 20, 2017), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Wallace. Dissent in part by Judge Kozinski.

Twenty-four years old when sentenced, Thomas will be 73 when released.

Facts: Thomas was a bank teller. Id. at *3. Using insider information, he worked with a crew that robbed a string of banks. Id. at *4. 

  Convicted after trial, Thomas was hit with stacked Section 924(c) counts and a mand-min sentence of 32 years. Id. at *6-*7. The district court then added 210 months for the conspiracy and robbery counts, for a total sentence of 49.5 years. Id. at *7.

Issue(s): “On appeal . . . Thomas contends the resulting sentence was substantively unreasonable. He argues that a 49.5 year sentence is disproportionate to the crimes for which he was convicted.” Id. at *14. “The . . . issue is the reasonableness of Thomas’s sentence under 18 U.S.C. § 3742, the statute authorizing appellate review of sentences. Thomas argues that his sentence was unreasonably high. In imposing the 49.5 year sentence, the experienced district judge was well aware of the impact of the mandatory minimum sentences. Indeed, the district judge expressly said that he believed that the total 32 year mandatory minimum for use of a firearm in this case was excessive, but recognized that he had no discretion with respect to its imposition. Thomas agrees. In imposing the sentence on the robbery and conspiracy counts themselves, the district judge concluded that the within-range 17.5 year sentence, under all the circumstances, was not unreasonable.” Id. at *9-*10.

Held: “We agree, but Thomas does not.” Id. at *10. “The troublesome issue in this case arises because the mandatory minimums must be combined with the sentence imposed on the underlying crimes, to create a very long sentence. Yet this does not make the sentence unreasonable . . .” Id. at *17.

Of Note: In dissent, Judge Kozinski compellingly details the district court’s fundamental misunderstanding of its discretion to vary downwards. Note that Thomas was only 24 years old when he was sentenced, with no real criminal history, and wasn’t even present for two of the robberies. Id. at *19. With the sentence imposed, Thomas will be 73 when he gets out of prison. Id. In fact, Thomas got a dozen years more than a terrorist who plotted to blow up LAX. Id. at *23.

  Do you feel bad about that half-century of incarceration? So did the district judge.

  The D.J. complained the sentence was “too much. I wouldn’t impose that sentence if I had the discretion. But I don’t.” Id. (emphasis in original?) As Judge Kozinski observes, “The district judge mistakenly believed he was required to calculate the Guidelines portion of the sentence as if it were a stand-alone sentence, rather than as one component of a combined sentence. There is, at the very least, a serious risk that the district judge meant what he said: He imposed a 49.5 year sentence because he believed he had no discretion. This is a major procedural error that requires reversal.” Id. at *21-*22.

  What happened in this case? It appears the D.J. didn’t understand that he could vary downwards on the guideline component of the sentence – all the way down as far as the 32 year mand-min, if he wanted. As Judge Kozinski observes, the erroneous resulting sentence is far “greater than necessary” – a tragic result from a fundamental sentencing mistake, that stands uncorrected by the Ninth.

How to Use: That infernal tangle of mand-mins and guidelines will be coming more frequently to a court near you, soon. Before that happens Thomas is worth a close read to understand how those two components interrelate -- Judges Schroeder and Kozinski both agree on the variance that could have happened in this case.

                                               

For Further Reading: Inauguration on Friday. How will President Trump affect the Ninth? For an interesting early analysis, see How Big a Deal are Four 9^th Circuit Vacancies that Await Trump?, available here.

Image of Mr. Thomas from http://www.yourwestvalley.com/suncitygrand/article_be608910-3a18-11e4-8e9c-a70dc4cf1458.html

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

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Case o' The Week: Guidelines "Steer" Ninth's Decision - Cruz-Mendez and "Captain / Pilot" Enhancement

Michael, row your boat ashore.

  Hallelujah.

Base offense plus two more.

  Hallelujah.

United States v. Cruz-Mendez, 2016 WL 360723 (9th Cir. Jan. 27, 2016), decision available here.

 

 Players: Decision by visiting District Judge Michael Posner, joined by Judges Rawlinson and Nguyen. Hard-fought appeal by Ass’t Fed. Defender Sara Weinman, Federal Defenders of San Diego, Inc.

Facts: From the air Custom and Border agents saw a panga off of Ensenada, heading north towards the States. Id. at *1. They saw bales of “suspected narcotics” in the open hull – the panga was stopped and searched and agents found thirty-one bales of marijuana. Id. 

Cruz-Mendez was arrested and charged with possession of marijuana with intent to distribute, on a vessel. Id. Cruz-Mendez was on supervised release for transporting undocumented aliens on a vessel. Id. 

He pleaded guilty, and there was a consolidated sentencing hearing for the marijuana charge and the supervised release violation. Over defense objection, the PSR recommended a two-level bump for the “pilot/captain” enhancement because Cruz-Mendez had the skill to pilot the panga. Id. The District Court imposed the “pilot / captain” enhancement and ran the supervised release term consecutive. Id. at *2.

Issue(s): “On appeal, he raises two issues. First, Cruz–Mendez challenges the district court's imposition of a two-level enhancement to his offense level for the marijuana conviction, as contemplated under U.S.S.G. § 2D1.1(b)(3)(C) (the “pilot/captain” enhancement). Second, he contends that the combined sentence of ninety-two months was substantively unreasonable.” Id. at *1.

Held: “The proper application of a “pilot/captain” enhancement is an issue of first impression in this circuit. We agree with every other circuit court to consider this issue—the First, Fifth, Seventh, and Eleventh—and hold that the proper reading of the “pilot/captain” enhancement is not as constrained as Cruz–Mendez suggests. . . . ” Id. at *2 (citations omitted). “We find no error in the application of the “pilot/captain” enhancement on the facts of this case. By Cruz–Mendez's own account, he was a lifelong fisherman hired to transport marijuana bales, and in so doing he operated a boat laden with substantial cargo in open water by controlling both its speed and direction. Such conduct fully justifies the imposition of the two-point enhancement. . . . Id. at *3 (citations omitted).

Of Note: “A panga boat is an open-bow vessel commonly used for smuggling.” Id. at *1 & n 1. If you’ve traveled south of the border, you’re familiar with these simple boats with attached outboard motors. See generally article here.  

Here, Cruz-Mendez “operated the panga by standing at the tiller of the outboard motor.” Id. at *2. To get hit with the “captain” enhancement for the mundane act of steering a panga seems analogous to the “use of a computer” bump for child porn. See USSG § 2G2.2(b)(6). It’s a frustrating outcome, but now is an effective guideline tax for many of these offenses.

How to Use: The Ninth rejects Cruz-Mendez’s argument that he had no authority over his co-defendant, by countering that the co-defendant did not have any control over him. Id. at *3 n. 3. This enhancement may be avoidable if a crew member steered a boat at the direction of the captain – though a tough needle to thread.  

                                                                   

For Further Reading: Those dedicated to indigent defense lost an often-surprising ally with the passing of Justice Scalia this week. See, e.g., Ring v. Arizona, 536 U.S. 584, 613 (Scalia, J., concurring) (“There is really no way in which JUSTICE BREYER can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, JUSTICE BREYER is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.”)

With Justice Scalia’s passing, will the Western U.S. finally have more of a voice in a Court dominated by Eastern jurists? See article here.   

Perhaps – the Ninth’s own Judge Paul Watford is a leading candidate among the pundits. See blog here. 

Image of panga from https://tribktla.files.wordpress.com/2013/09/panga-takedown-3.jpg

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

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Case o' The Week: Too Poor to Pay, High Sentence OK - Rangel, Restitution, and Sentencing

Carlo Pietro Giovanni Guglielmo Tebaldo Ponzi

With thousands of eager marks desperate for relief from foreclosure, this is a wonderful era for modern fraud artists with new spins on old Ponzi schemes.

(Unless, of course, you happen to get caught). United States v. Rangel, 2012 WL 4857207 (9th Cir. Oct. 15, 2012) (ord. amend. & denying reh’g en banc), decision available here.

Players: Decision by Judge Clifton, joined by Judges Farris and Ikuta.

Facts: Rangel defrauded lots of folks of lots of money in a classic Ponzi scheme that included mortgage fraud. Id. at *1-*2. He pleaded guilty to a deal wherein the parties jointly recommended 180 months of custody. Id. at *1.

The district court busted the deal, and then varied upwards to an above-guideline term of 264 months. Id. at *2. The district court gave no notice of its intent to impose a sentence above the guidelines. Id. at *4.

During the sentencing hearing the court “inquired into Rangel’s ability to pay restitution to his victims . . . the court was informed that Rangel was not in a position to pay any restitution toward the victims’ losses.” Id. at *2.   

Issue(s): “Rangel argues that the district court erred in considering his inability to pay restitution to his victims in determining his sentence.” Id. at *5.

Held: “We conclude that the court did not abuse its discretion in considering the serious financial impact Rangel’s crimes had on his victims.” Id. “The district court in this case did not consider Rangel’s inability to pay restitution itself as an aggravating factor in imposing a longer sentence, but focused instead on the impact on the victims of Rangel’s crimes.” Id. at *6. “Consideration of the impact on the victims was appropriate.” Id.

Of Note: This case brings to mind an analogous spin on Acceptance of Responsibility. When we first challenged the Acceptance Guideline, USSG § 3E.1.1, we were assured the approach was constitutional because the guideline didn’t punish for going to trial – it instead rewarded pleas of guilt. (?!?) See generally United States v. Gonzalez, 897 F.2d 1018, 1020 (9th Cir. 1990).

Here, the Ninth assures us that Rangel didn’t receive a higher sentence because he was poor and couldn’t pay back the victims (which would be unconstitutional). Id. at *5. Instead, Rangel received his whopping above-guideline sentence because the lack of restitution had a big impact on the victims – and that factor is fair game for a higher sentence. Id. at *6. 

For those of us who defend indigent clients, Rangel’s distinction is a bit of a head-scratcher –- and a close look at the amended language at the outset of this order doesn’t do much to reassure the reader that Rangel isn't being punished for poverty.

How to Use: Another holding of Rangel is the unsurprising conclusion that no notice is required for an upward variance under § 3553(a) (in contrast to an upward departure from the guidelines). Id. at *4. Beware that you can get blindsided with an above-guideline sentence, with no notice, if a district court is simply careful enough to characterize higher term as a Booker variance instead of an upward departure. (Although, as a matter of general fairness, a district court should voluntarily give notice of an upward variance for the same reasons it is required for an upward departure under Fed. R. Crim. Proc. 32(g)).

                                               

For Further Reading: Rangel was sentenced to whopping twenty-two years in federal custody, even though he had not inflicted any violence on any victim -- over two decades of incarceration for fraud. Id. at *1. While it appears that defense counsel did a yeoman’s effort pitching mitigating arguments, id. at *2, could more mitigation work have lowered this high term? Do capital counsel, with their years of expertise in mitigation work, have lessons to teach us for white collar defense? That’s the thesis of an interesting new piece by Professor Todd Haugh, Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases, Amer. Univ. L. Rev. Vol. 62, 2012, available here.

Image of Charles Ponzi from http://upload.wikimedia.org/wikipedia/en/0/0e/Ponzi1920.jpg

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

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