Monday, February 16, 2009

Case o' The Week: "Cursing the Opacity of Guidance Received from Above," Autery and Post-Booker Sentencing review

District and appellate courts after Booker and Gall are "like Hansel and Gretel, looking for the now-missing breadcrumbs that would lead us back to clarity in sentencing." United States v. Autery, __ F.3d __, No. 07-30424, 2008 WL 349801 (9th Cir. Feb. 13, 2009), decision available here. In an interesting -- and potentially, double-edged -- decision, Judge Milan Smith creates a new rule for the Ninth: appellate review for the substantive "reasonableness" of a sentence is under the abuse of discretion standard, regardless of whether there was an objection below. A decision that makes dissenting Judge Tashima want to "figuratively curse the opacity of the guidance [courts] have received from above." Id. at *12 (or, maybe, literally curse . . . .)

Players: Decision by Judge M. Smith, joined by Judge Thompson, vigorous dissent by Judge Tashima.

Facts: Autery’s possession-of-child-porn guidelines were 41-51 months. Id. at *1. He took a plea agreement and argued for low-end, while the government asked for high. Id. The district court sentenced Autery to five years probation, citing the defendant’s “redeeming personal characteristics” and need for continued family support. Id. at *2. The government didn’t object – then appealed. Id. at *2.

Issue(s): “Before deciding whether to uphold the district court’s sentence, we must first determine the appropriate standard of review under the facts presented.” Id. at *3. “Neither this circuit nor the Supreme Court has squarely addressed the proper standard of review where the appellant fails to object to the sentence’s substantive reasonableness at sentencing.” Id.

Held: “The slight majority of those courts [that have considered this issue] has held that where no objection was made to the sentence at sentencing, the court still reviews for abuse of discretion to determine whether the sentence was reasonable.” Id. at *4. “After weighing Supreme Court authority, the views of other circuits, and public policy considerations, we hold that abuse of discretion is the proper standard of review in this case." Id. at *3. “[T]he substantive reasonableness of a sentence – whether objected to or not at sentencing – is reviewed for abuse of discretion.” Id. at *5. “We further hold that the district court did not abuse that discretion in sentencing Autery to five years probation with conditions.” Id. at *12.

Of Note: Judge Milan Smith (right), a W. Bush appointee, upholds a child-porn sentence of probation. Judge Tashima (left), a Carter appointee, vigorously dissents. What gives? Autery illustrates the imprudence of predicting outcomes from a judge’s political affiliation. The opinion may also reveal that some grizzled liberals fear Scalia’s unfettered and unreviewable sentencing discretion – a fear shared by many grizzled vets in the defense bar.

Autery explains the difference between a sentence reviewed for procedural error, and one reviewed for substantive reasonableness. Id. at *3-*4. Remember that in Gall the Supreme Court explained that the standard of review for substantive reasonableness is abuse of discretion . Autery only addresses the narrow question of substantive reasonableness review when there is no objection in the district court. The new Ninth rule? Substantive reasonableness is reviewed for “abuse of discretion,” regardless of whether the parties objected in the district court.

How to Use: Judge Smith’s thoughtful recitation of each § 3553(a) factor (and how that factor could justify this probationary sentence) is a welcome template for child-porn sentencing and a vindication of our sentencing mitigation arguments. Id. at *7-*8. Moreover, as Judge Tashima notes in his dissent, Autery was actually a run-of-the mill child porn defendant – and nonetheless his whopping “variance” was upheld. Id. at *12 (Tashima, J., dissenting). Use Autery and this dissent to reassure a sentencing court that its good § 3553(a) sentence will be bullet-proof on appeal.

The problem? A bad § 3353(a) sentence will be bullet-proof on appeal. A bad judge, or bad facts, means a client’s exposure is effectively the stat-max. For those courts and cases, Autery reinforces the value of 11(c)(1)(C) deals.

Finally, note that a separate standard-of-review remains for procedural sentencing error. If you fail to object at sentencing to procedural error, you’ll plunge into the tar pit of “plain error” review on appeal. Id. at *3. Object to everything – don’t risk having your issue characterized as “procedural” and getting stuck with plain error review.

For Further Reading: Remember that recent and disappointing Gonzalez-Zotelo decision, that held it was unreasonable to impose a reduced § 3553(a) sentence given fast-track disparities in illegal reentry cases? See blog here. How can Gonzalez-Zotelo possibly be reconciled with the deference afforded in Autery? Short answer? It can’t – Hubachek cited Autery in his Gonzalez-Zotelo petition for rehearing before the ink was dry in Judge Smith’s decision. Hopefully Autery will help spark review of Gonzalez-Zotelo.

Hansel and Gretel image from Image of the Hon. Judge Milan Smith from . Image of the Hon. Judge Wallace Tashima from

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


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