Sunday, October 21, 2007

Case o' The Week: Close Enough for Government Work, Saeteurn & Erroneous PSRs

"Close enough for government work" is close enough the Ninth in a disappointing decision. See United States v. Saeteurn, __ F.3d __, 2007 WL 2983806 (9th Cir. Oct. 15, 2007), decision available here. In Saeteurn (written by Judge Bea) the Court tolerates disputed and erroneous information in a PSR, unresolved by the district court -- despite the fact that this error will have a profound impact on the defendant's conditions of confinement. A very troubling decision that calls out for en banc review.

Players: Hard-fought appeal by ED Cal AFPD Tim Zindel.

Facts: Saeteurn pleaded guilty to drug crimes. 2007 WL 2983806, *1. The PSR (incorrectly) described him as a legal permanent resident. Id. Actually, the defense explained, Saeteurn was a citizen with a mother who had naturalized when he was minor. Id. at *1 n.1. The district court refused to resolve the defendant’s objection to the PSR, despite the fact that this error would affect Saeteurn’s conditions of confinement. Id.

Issue(s): “[I]s the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (“PSR”), when those facts do not affect the term of imprisonment imposed but may affect how the sentence is served, including a possible early release from prison?” Id.

Held: We hold that there is no such requirement upon the sentencing judge.” Id.

Of Note: This case has the defense bar up in arms. Tim reports that the government never contested the defense objection – in other words, it was effectively conceded that the PSR was wrong. Moreover, this PSR error will have a huge impact on Saeteurn’s incarceration. Because of this alienage issue, he’ll be ineligible for a camp, will likely end up in a higher-security facility, won’t get into rehabilitative programs, and won’t be eligible for early release from prison. Id. There’s no shortage of information in a PSR that is often wrong, and that has a tremendous impact on a defendant’s incarceration: gang affiliation, conduct on pretrial release, and – most recently – allegations of prior sex misconduct. After Adam Walsh, BOP flunkies review every PSR, highlight all sex-related information, and shunt federal inmates to sexual predator civil commitment proceedings. Saeteurn is thus remarkably divorced from the reality of current practice: as PSRs become more and more critical to every aspect of an inmate’s term of custody, the Ninth responds by tolerating critical errors in the reports?

Judge Bea’s reassurance that the impact of a PSR’s error on incarceration can be corrected with a Section 2241 habeas is particularly frustrating. Id. at *4 n.12. (See DOJ's strategy for defeating 2241 habes here). While this habeas slowly grinds through the system, the inmate must wait in more-onerous conditions of confinement (based on a erroneous PSR?) Even from a pure resource-allocation perspective, this is a bad decision. Why not correct PSR errors when a defendant has counsel and everyone is prepared to litigate the issue at a sentencing hearing? Or is the Ninth hedging that by shifting the dispute from sentencing to habeas it will effectively moot many of these cases when discouraged (and unrepresented) inmates just give up?

How to Use: A petition for rehearing is brewing. In the interim, note that Saeteurn just holds that a district court can avoid resolving disputed PSR facts if these facts don’t affect sentencing. Of course, a district court retains discretion to correct PSRs – and a responsible judge will, particularly when BOP consequences are explained. Sentencing Resource Counsel Baron-Evans notes that Probation Monograph 107 provides authority to correct and amend a PSR – and has been used to black out or completely revise errors in reports.

For Further Reading: As noted above, Saeteurn hits a real nerve because BOP routinely uses PSRs to “certify” federal inmates for Adam Walsh civil commitment. Civil commitment is effectively a life sentence – and we’ve already seen examples where the PSRs of referred inmates have contained patently erroneous information about the inmate’s sexual history. Beware: every federal inmate is now being screened for civil commitment before release! See BOP Watch Blog (search “Re: Child Exploitation Conviction.”) Every federal practitioner should read the Adam Walsh Civil Commitment memo available here . This excellent memo demonstrates why pushing the district court for a “clean” PSR is so important - Saeteurn or no.

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


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Blogger Tim Zin said...

Some additional food for thought:

1. As Steve notes, the government did not dispute at sentencing that Mr. Saeteurn is a U.S. citizen. It would have taken the district court less than a minute to resolve his objection.

2. As a result of former District Judge Levi's decision not to give Mr. Saeteurn a minute of court time, Mr. Saeteurn is a prisoner at a USP, has an immigration detainer, and has no chance of RDAP credit.

3. Judge Levi's temporary replacement (he is now Dean of Duke Law School) would never have dodged this issue in the interest of saving time. Judge D. Lowell
Jensen's many years of experience in listening to criminal defendants have shown him that fair treatment can do much to keep a man working in the community, with a sense of fairness and justice.

4. Does saving court time justify incarcerating any person for a longer period of time and at higher cost?

5. Rule 32 requires the district court to either RULE on a dispute or DETERMINE that the matter will not affect sentencing. The panel recognized that the district court did not RULE on Mr. Saeteurn's objection, but it failed to note that the district court DID NOT DETERMINE that Mr. Saeteurn's status would not affect sentencing.

6. As a consequence of this opinion, I want to encourage my colleagues in the federal defense bar to forego waiving any right to seek habeas relief under section 2241, and I encourage the district judges to look forward to the many 2241s that will be filed as BOP uses uncorrected PSRs to make decisions about its prisoners.

Monday, October 22, 2007 3:25:00 PM  

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