Saturday, September 20, 2008

Case o' The Week: A "Real" Defense Victory, Waknine

A slow week in the Ninth means we can stretch back a bit to the interesting decision of United States v. Waknine, __ F.3d __, 2008 WL 4149666 (9th Cir. Sept. 10, 2008), opinion available here. In this appeal from the Honorable Manuel Real (left), the Ninth Circuit rejects defense complaints that the government did not get a full chance to speak at sentencing. (Yes, that was written correctly).

A good ultimate result, however, on the need for a statement of reasons at sentencing.

Decision by Judge Gould, joined by Judge Wallace, partial concurrence by Judge Ikuta.

Facts: Waknine went to trial on RICO charges, for laundering money extorted from the Tel Aviv Trade bank and brokering loans through extortion. Id. at *1. Five days into trial he pleaded guilty. Id.

His plea agreement said “At the time of sentencing, the government agrees to recommend that defendant be sentenced to a 108-month sentence.” Id. The PSR came back with CH II, OL 31: 121-151 months. Id. The government filed a sentencing memo recommending 108 months. Id. at *2.

At sentencing, defense counsel spoke, the defendant allocuted, but the government wasn’t given a chance to speak – and the court imposed a 121 month sentence. Id. at *2. The government then reminded the court that it wanted 108, and asked how the court got to 121. Id. at *2. (“Mid-range of CH I, OL 31,” answered the district court).

Issue(s): Waknine “argues the government violated the plea agreement by not orally recommending at the sentencing hearing a 108-month prison term pursuant to the plea agreement.” Id.

Held: [Rejects the above challenge on plain error review, but] “We conclude that there was plain error in the sentencing, and we therefore vacate the sentence, and remand with instructions for the district court properly to calculate the United States Sentencing Guidelines range, to discuss the 18 USC § 3553(a) factors in rendering sentence, and to comply with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence.” Id.

“[W]e reject Waknine’s request for a new sentencing judge.” Id.

Of Note: This was an appeal from the Honorable District Court Judge Manuel L. Real. Waknine alleged, “‘[t]here is a generalized pattern of cowering by attorneys who appear’ before Judge Real and a general pattern of parties afraid to advocate in Judge Real’s courtroom.” Id. at 10. The Ninth demurred: “We are confident that in future proceedings counsel will not hesitate to advocate before the district court.” Id. at *11.

How to Use: Waknine didn’t object to the government’s failure to orally recommend 108 at the sentencing hearing, so the Ninth dodges this issue on plain error review. Id. at *3-*4. It is interesting – and a little disturbing – that the Court refused to construe the plea agreement in favor of the defense (the traditional rule) because it was on plain error review. Id. at *4. That approach seems like a new rule, and an unwelcome one at that.

The useful part of this opinion is the Court’s embrace of Rule 32 – the right of both parties to be heard at sentencing – and its holding (on plain error review!) that the Court did not sufficiently explain its Section 3553(a) rationale for the sentence. Id. at *5-*6. That makes Waknine one of very few post-Booker decisions to remand for an insufficient Section 3553(a) “statement of reasons,” and a valuable addition to the defense arsenal. (Although, bear in mind the above “Of Note” observations when relying on this decision – a sub silencio fact of the decision, perhaps?)

For Further Reading: Judge Real is far too big a topic for this little memo. See Wikipedia entry here. Still, its worth mentioning some sweet with the sour.

One of the first – and best – post-Booker decisions in the Ninth Circuit upheld a dramatic departure by Judge Real. See blog here, discussing United States v. Menyweather, 447 F.3d 625 (9th Cir. 2006).

Judge Real’s sentence was equally admirable in United States v. Green, 105 F.3d 1321 (9th Cir. 1997) (reversing Judge Real’s departure from four years to probation for manufacture and cultivation of marijuana with intent to distribute).

And, whatever one’s views of this district court judge, it must be conceded that he’s unafraid of the Ninth: he stuck by his probationary sentence in Menyweather despite two appeals to the Ninth, and two remands.

Article III independence, in spades . . . .

Steven Kalar, Senior Litigator N.D. Cal. Federal Public Defender. Website at

Image of Judge Real from


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