Thursday, April 02, 2009

U.S. v. Paul, No. 08-30125 (4-2-09). The defendant had embezzled some federal funds: it was her first offense, she returned the funds, she apologized profusely before charges were filed, and she explained that she had taken the funds because she felt, wrongly, that it was compensation for work she had done for the school district. The court nonetheless gave her a 16 month sentence! The judge, the Hon. Sam E. Haddon, D. Mont., explained that it was for abuse of trust. The 9th found that the sentence was unreasonable, and had vacated and remanded, explaining that the court had to more closely look at the mitigating factors. The court, upon resentencing, still focused on the abuse of trust, and gave a 15 month sentence. The 9th (per curiam with Reinhardt and M. Smith) found the sentence again to be unreasonable. The 9th put down the marker that the reasonableness of a sentence is an inquiry, and that the appellate courts can say, in specific cases, that the sentence is too much. Moreover, the court did not appear to give sufficient, if any, weight to the recognized mitigation specifically found by the 9th. The case is also reassigned to a different judge because of the appearance for justice. In a dissent, Hall argues that the recent cases of Gall and Rita focus on the individualization of a sentence, and that is what took place here. The dissent would uphold the sentence as reasonable for the reasons stated, even if the 9th disagreed. The dissent seems to adopt the approach, championed by Scalia and Thomas, that focuses on procedure and not substance in appellate review. The response would be that a sentence still has to be rational and reasonable, and indicate a weighing of 3553 factors.

U.S. v. Rollness, No. 07-30411 (4-2-09). The 9th holds, per curiam, that the sentence for a conviction for murder in the aid of racketeering under 18 U.S.C. 1959(a)(1) has to be death and a fine; or life imprisonment and a fine. It rejects the defendant's argument that it could only be a fine with no imprisonment or capital punishment. The 9th held that this made no sense, and did not comport with the statute's clear intent. The minimum sentence is life imprisonment.


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