Saturday, July 22, 2006

Case o' The Week: Beezer's Booker Broadside: Carty and 3553 Factors at Sentencing

Senior Judge Beezer (left) articulates some good new procedural protections for post-Booker sentencing. See United States v. Alphonso Carty, __ F.3d. __, 06 Cal. Daily Op. Serv. 7899, (9th Cir. July 17, 2006), available here. In Carty, the Ninth requires a sentencing court to articulate its consideration of § 3553(a) factors.

Players: Hard fought sentencing win by AFPD Milagros “Millie” Cisneros, D.Az.

Facts: After trial Alphonso Carty was convicted of various sex abuse charges involving his minor niece. 06 Cal. Daily Op. Serv. at 7903. He was sentenced at the bottom of the guideline range to 235 months: over 19 ½ years. Id. The district court stated that it had reviewed materials before it (which included a pitch for a much lower § 3553(a) sentence). Id. at 7912.

Issue(s): “Carty . . . argues that the district court treated the Guidelines as mandatory and failed to consider adequately the factors of 18 U.S.C. § 3553(a). Carty’s challenge amounts to a claim that his sentence his unreasonable under . . . Booker. Post-Booker, we have jurisdiction to review sentences imposed within the Guideline range.” Id. at 7909.

Held: Although several circuits have afforded the presumption of reasonableness to within-the-Guidelines sentences . . . we have not adopted this position. We offer no opinion whether the district court’s within-the-Guideline sentence here was, in fact, reasonable. We hold only that post-Booker, when imposing a sentence, a district court must provide on the record some articulation of its consideration of the § 3553(a) factors and explanation of the reasons underlying its sentence selection. Because the district court did not create such a record, we remand for resentencing.” Id. 7913.

Of Note: Carty answers one of the big questions post-Booker: must a district court articulate its consideration of § 3553(a) factors? The answer is yes, sort of. A sentencing court does not have to make a “specific articulation of each factor separately.” Id. at 7910. Booker requires, however, a showing that “the district court considered the statutorily-designed factors in imposing a sentence.” Id. Simply reciting the old ritual that the court has “reviewed the materials before it” and “considered the Guidelines” won’t cut it anymore – that just shows that one § 3553(a) factor was considered (the guidelines). Id. at 7912.

How to Use: Why wouldn’t a court always articulate its § 3553(a) reasoning anyway? Maybe old guideline habits, maybe a busy calendar. A more cynical answer, however, is that it sometimes is very difficult to articulate a reasonable rationale on why a defendant’s § 3553(a) pitch shouldn’t carry the day.

Because of this, Carty could be far more important than it looks on its face. Forcing a sentencing court to specifically articulate why unbelievable childhood abuse, or staggering family responsibilities, or superhuman rehabilitation efforts do not merit a lower sentence makes it harder for a court to deny the lower sentence. More importantly, a transcript with the specific denial of a § 3553 argument is a record riper for review (and remember, after Plouffe, in-guideline sentences can be reviewed).

For Further Reading: Judge Beezer was appointed by Reagan in ‘84. See profile here. While no judge likes to be conned in oral argument, Judge Beezer, however, does not hesitate to ably point out a lack of candor for the whole world to see. See blog on Beezer's - pointed - concurrence here.

Like Ninth Circuit Judges Tashima, Pregerson, and Hawkins, Judge Beezer is a veteran of the Marine Corps. See article here. Beezer took senior status in 1996. He was succeeded in 1999 by a Clinton appointee, Judge Ronald Gould. See article here.

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



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