Sunday, March 30, 2008

Case o' The Week: If We Won, Why is He So Happy? Zavala / Carty En Banc

Chief Judge Alex Kozinski (right) loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence. United States v. Carty, __ F.3d __, 2008 WL (9th Cir. Mar. 24, 2008) (en banc), decision available here. Great news -- except that 595 months (49 1/2 years) of guideline sentences are affirmed despite the new rule . . . .

Players: Judge Rymer authors; Chief Judge Kozinski writes an unfortunately accurate concurrence.

Facts: In October 2006 an en banc panel in the Ninth heard oral argument on Zavala / Carty, a brace of cases that presented a dozen sentencing issues of first impression. See blog here. The Ninth then kicked (and kicked, and kicked) the cases while the Supremes issued a trio of decisions that resolved all but one of these issues: Rita, Kimbrough, and Gall. Id. at *1.

Issue(s): “Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate ‘presumption’ of reasonableness for sentences imposed within the Guidelines range.” Id. at *1.

Held: “We decline to do so, although we recognized that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal.” Id.

Of Note: Hate to admit it, but Kozinski’s concurrence is probably right. Id. at *8. He crows that the majority effectively adopts a presumption of guideline reasonableness, because the opinion’s appellate review (and acceptance) of the two (remarkably high) sentences given to Zavala and Carty is so casual, and so deferential, that the Court essentially assumes that the pair of guideline sentences are “reasonable.” Id. at *8-*9.

How to Use: Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. Id. at *3-*6. If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty.

Judge Rymer also teaches us how to salt an appellate record (to the extent still possible). Want to force your district judge into actually wrestling with your arguments, on the record? Then raise “a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence.” Id. at *5 (emphasis added). Faced with such arguments, the sentencing judge “should normally explain why he accepts or rejects the party’s position.” Id. On the subject of salting, here’s a list of procedural errors that the Ninth targets for its first pass on appellate review:

• failure to calculate, or incorrect calculation, of the guideline range;

• treating the Guidelines as mandatory instead of advisory;

• failure to consider the § 3553(a) factors;

• choosing a sentence based on clearly erroneous facts; and

• failure to adequately explain the sentence selected, including any deviation from the Guidelines range.

Id. at *5.

For Further Reading: As fellow blogger Jon Sands notes, Carty’s first use is in United States v. Crawford, __ F.3d __, 2008 WL 819772 (9th Cir. Mar. 28, 2008), available here. In Crawford, Judge McKeown invokes the new Carty decision to quash a Booker attack on a Career Offender sentence. Id. at *2-*3.

[And we “won” Carty / Zavala ?]

Carty and Crawford teach that the Courts of Appeal (at least the Ninth) are effectively out of the sentencing business. That’s bad news when a sentencing judge methodically plugs-in guideline ranges generated by the Commission’s (and Congress’s) latest whim.

The back-story, however, is that the Ninth is not reversing (or even really hearing) § 3553(a) sentences that are far below the guidelines. (And Rita / Kimbrough will only help that trend). Anyone notice lately that the USAOs are too spooked to take-up a below-guideline § 3553(a) sentence, terrified of creating “bad” law endorsing the district court’s exercise of discretion? Maybe Booker’s legacy will be relocating sentencing battles to the district court trenches.

Photograph of the Honorable Chief Judge Alex Kozinski by Vern Evans, from California Lawyer. Website available here.

Salt shaker painting by Jeff Hayes, blog here.

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


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