Sunday, August 13, 2006

Case o' The Week: Ninth Brings the Mountain to Mohamed (Then Buries Him Beneath It). Booker and Guidelines "Departures" the Same on Appellate Review

In a surprising result from a panel that includes Judge B. Fletcher and Tashima, the Ninth upholds a five year sentence in a 12-18 month guideline case. See United States v. Mohamed, 06 Cal. Op. Serv. 9399 (9th Cir. Aug. 11, 2006), decision available here. Of more interest, the Ninth eliminates any distinction between Guideline departures and Booker non-guideline sentences.

Players: Authored by Judge Betty Fletcher, joined by Tashima (?!?)

Facts: Zameer Mohamed called in a fake bomb threat for a L.A. shopping mall. Id. at 9404. The hoax shut down many businesses, and the feds spent significant resources investigating it. Id. Turns out he called in the threat to falsely inculpate several men against whom he had a grudge. Id. He also had a history of theft and ID theft offenses, but no real criminal history. Id. at 9406. The district court quintupled the guidelines of 12-18 months, and imposed a sentence of five years. Id.

Issue(s): 1. Appellate Review of “Booker” Departures: An exercise of discretion to sentence outside of the advisory guidelines is reviewed, just like a decision to sentence inside of the applicable range, for reasonableness . . . . It is still an open question of law, however, how this court reviews so-called post-Booker ‘departures.’” Id. at 9410.

2. Reasonableness: “The more difficult question in this case is whether the sentencing court’s decision to impose a sixty-month sentence, which far exceeded the advisory guideline range of twelve to eighteen months, was reasonable.” Id. at 9414.

Held: 1. Appellate Review of “Booker” Departures: We think the better view is to treat the scheme of downward and upward ‘departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence. The discretion that the district court judge employs in determining a reasonable sentence will necessarily take into consideration many of the factors enumerated in Section 5K of the Sentencing Guidelines, but to require two exercises — one to calculate what departure would be allowable under the old mandatory scheme and then to go through much the same exercise to arrive at a reasonable sentence — is redundant. In addition, the use and review of post-Booker departures would result in wasted time and resources in the courts of appeal, with little or no effect on sentencing decisions.”

2. Reasonableness: “We hold that it was [reasonable].” Although the sentence imposed is substantially higher than what the advisory guidelines had recommended, we are satisfied that the district court acted reasonably when it decided to go outside those guidelines and impose a five-year sentence.” Id. at 9414.

Of Note: Judge B. Fletcher upholds an upward departure to five years, on a 12-18 month case? Why? There’s a couple of possible explanations for the Mohamed decision. First, hate to admit it, but maybe Mohamed had it coming – there were some bad facts. As Fletcher observed, “Discretion is a double-edged sword” for a defendant. Id. at 9416. Still, why a published opinion that appears to green-light massive upward departures? Tashima was on the panel: surely the pair of them could have swung an affirming mem dispo?

Notably, in an important Guideline decision a decade ago, Judge Tashima dissented from the mere doubling of a sentence in a bomb case. See United States v. Sablan, 114 F.3d 913 (9th Cir. 1997) (en banc). Sablan is interesting, and merits a read in conjunction with Mohamed. Betty Fletcher was on the panel that rejected the Sablan enhanced sentence: she got reversed en banc. Compare 90 F.3d 362. In ‘97, Sablan set forth a judge’s discretion to depart under the guidelines: maybe Fletcher and Tashima see Mohamed the same way – as giving increased flexibility to district courts to give below-guideline sentences without worrying about USSG “departure” authority. If so, it’s a tough way to get that point across.

How to Use: Federal Rule of Criminal Procedure still requires notice before a Court goes above the guidelines on a basis not identified by the parties or PSR; at least this gives a little protection against Mohamed’s melange of Booker sentences and upward departures. See Fed. R. Crim. Proc. 32(h).

For Further Reading: Professor Berman notes the Mohamed decision, without much analysis. See blog here. The story hoax made the national news at the time. See article here.

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



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