Friday, April 14, 2006

Case o' The Week: Two Ninth Judges Lose Guidelines "Weight," Zavala & Booker

Two former district court judges (Tashima and Paez, left) fight for sentencing discretion – and against any “extra” weight to the guideline range – in a very good new Booker decision. United States v. Juan Antonio Zavala, __ F.3d. __, No. 05-30120, Slip. Op. 4013 (9th Cir. Apr. 11, 2006), available here.

Players: Per curiam (Tashima and Paez), dissent by Judge Fernandez.

Facts: Zavala got thirty years for meth; one offense level below the guideline range of life. Slip. op. at 4018. Over defense objection, the district court “start[ed] with the Guideline range and then work[ed] from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion.” Id.

Issue(s): Zavala’s “sole claim on appeal is that the district court violated Booker when it ‘presumed’ that the advisory Sentencing Guideline calculation set forth the proper range for sentencing.” Id. at 4016.

Held: If a district court does show a kind of resistence and, instead, makes the Guideline calculation the presumptive sentence, it will commit legal error by misapplying § 3553(a), which now makes the Guideline a, but only a, factor to be considered. It will fail to embrace the discretion that it has, which is to reach the right answer to the sentencing decision rather than a merely plausible answer.” Id. at 4024 (emphasis in original). “We vacate the sentence and remand.” Id. at 4016.

Of Note: What if a judge gets it wrong? What if a Booker sentence is actually less “just” than the guideline range? Paez – or Tashima – nails the reality of judicial discretion with this thoughtful disclaimer: “We are neither beasts nor angels, and our power to do good always entails the possibility that something ill will result.” Id. at 4024. Some literate member of the bench has read C.S. Lewis: “We were made to be neither cerebral men nor visceral men, but Men. Not beasts nor angels but Men - things at once rational and animal.” C.S. Lewis, Afterword to the Third Edition, “The Pilgrim's Regress: An Allegorical Apology for Christianity, Reason and Romanticism.” (Grand Rapids: Wm. B. Eerdmans, 1992).

How to Use: The Ninth is finally really wrestling with Booker. This decision is chock-o-block with well-reasoned analysis on how a district court judge is to use her sentencing discretion. The panel explains that while a judge can use the guidelines as a “starting point,” the guidelines are entitled to no more weight than any other § 3553(a) factor. Id. at 4022. To give the guidelines extra weight is “much more than a mere consult for advice, and the Guidelines are to be no more than that.” Id. “Simply put, a presumption at the district court would give undue weight to the Guidelines. The dangers averted by declaring them to be merely advisory would become recrudescent.” Id. at 4023.

[Ed. note: Recrudescent: adj., the revival of an unfortunate situation after a period of abatement. Judges Paez and Tashima are both plain-spoken jurists. Is “recrudescent” a zing at the thesaurus-thumping Fernandez?]. Compare Zavala, slip op. at 4027 (Fernandez, J., dissenting) (“Whatever other readers of the opinion might think of it, whether they consider its reasoning eximious or exiguous, I deem it extraneous.”) [Eximious: adj., select; choice; hence, extraordinary, excellent. Exiguous: adj., extremely scanty.]

For Further Reading: As fascinating as these Ninth Booker skirmishes may be, Congress is unamused. As previously noted in the Mix memo, post-Booker sentences have gone up. See post here. Remarkably, House Judiciary Chair Sensenbrenner still complains “the data is now in and the picture is not pretty.” See press release here. He opines, “The Sentencing Commission’s report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.” Id.

Cross your fingers for further Immigration distractions . . . .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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