Sunday, January 20, 2008

Case o' The Week: A Cure for "Guidelinitus", Castendada

Sixth Circuit Senior Judge Gilbert S. Merritt (right) had nothing to do with the Ninth's Case o' The Week in United States v. Castenada, __ F.3d __, 2008 WL 126641 (9th Cir. Jan. 15, 2008), decision available here. Judge Merritt's recent dissent on guideline practice after Gall and Kimbrough, however, is such an honest and candid assessment of federal sentencing that it deserves national recognition (and heavy citation in sentencing memoranda). (See below).

Players: Nice win by former ED Cal AFPD (and Hon. H.P. clerk) John Balazs.

Facts: Casteneda was convicted of crack crimes. 2008 WL 126641, *1. The defense urged a below-guideline sentence based on the Guidelines’ 100:1 sentencing disparity between crack and powder. Id. The district court did not “believe it’s appropriate to reduce a sentence under . . . § 3553(a) on the basis that the Congress and the . . . Sentencing Commission are wrong in establishing different penalties for different types of controlled offenses. Id. at *1. The panel denied the first appeal.

Issue(s): “In a Petition for Rehearing, Medina-Casteneda requested that we reconsider our decision in light of the Supreme Court's then-pending decision in Kimbrough . . .”

Held: “These statements [at sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough. Thus, the district court did not feel free to consider whether ‘any unwarranted disparity created by the crack/ powder ratio produced a sentence . . . greater than necessary’ to achieve § 3553(a)’s purposes. We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence ‘greater than necessary’ under § 3553(a).” Id. at *2.

Of Note: There’s so much “of note” after Gall / Kimbrough that Defender Jon Sands and I have written an article on the topic for the NACDL's Champion. Look for the article in the upcoming edition.

How to Use: Here are some bullet points on opportunities presented by Gall / Kimbrough:

● The “parsimony provision” in § 3553(a) was strongly endorsed in those decisions; judges should be shooting for sentences ‘no greater than necessary’ to reach § 3553 goals;

Guidelines with lousy empirical and analytical pedigrees are more vulnerable to attack – like other mand-min drug guidelines, fraud guidelines, and child porn. See United States v. Baird, 2008 WL 151258 (D. Neb. Jan. 11, 2008) (halving child-porn sentence given lousy empirical pedigree of child-porn guidelines);

● Non-guideline sentences to offset disparities are now encouraged (so fast-track, Section 1326 disparities are again fair game);

● Non-guideline sentences in light of co-defendant disparities are endorsed;

● Whether a basis for a non-guideline sentence is “discouraged” in Guidelines Chapter 5 is not relevant – these theories are still completely fair game for a § 3553 below-guideline sentence;

● Belt and suspenders are best – ask for both a guideline departure and a § 3553 “statutory” below-guideline sentence, because there’s some troubling language about potentially different standards of appellate review for the two.

For Further Reading: As always, start at The site has several articles on these developments – including a great appellate brief on the newest issue on the horizon, keeping acquitted conduct out of sentencing. (See blog on Ninth Circuit's acquitted conduct decision in Mercado, here -- with a great B. Fletcher dissent Mercado cert. petition now in Supreme Court conference).

AFPD Jennifer Coffin has prepared an interesting list of appellate Gall and Kimbrough cases, with commentary – defense counsel can get a copy from me.

A must-read is Sixth Circuit Judge Merritt’s remarkable dissent in United States v. Sedore, __ F.3d __, 2008 WL141046 (6th Cir. Jan. 11, 2008), decision available here. The first paragraph gives a flavor of the opinion: “Except for those judges and lawyers who prefer to continue routine conformity to the old pre- Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened – continuing under the pretext that the guidelines are only ‘advisory’ instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or ‘guidelinitis,’ the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.” Id. at *9 (Merritt, C.J., dissenting).

Finally, Gall / Kimbrough have their dark sides as well. AUSAs, Judges, and Probation officers interested in how the cases have already been used to support above-guideline sentences should visit an insightful article here, see the statistics available here, or review the materials at this web site.

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


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