Sunday, May 29, 2011

Case o' The Week: The Final Depature of Guideline Depatures -- Ellis, CH Departures Now Get Booker Reasonableness Review

In 1988, fresh out of UCLA Law, Judge Sandra Ikuta (left) clerked for (now Chief) Judge Kozinski. It was right on the cusp of the full invasion of the federal sentencing guidelines -- odds are that during her clerkship she worked on Restrepo, the Ninth's big case on the constitutionality of the federal sentencing guidelines.

Twenty-three years later, now a Ninth Circuit Judge in her own right, Judge Ikuta pens a decision continuing a trend that (inadvertently, perhaps) undermines the guidelines' dominance.
United States v. Ellis, 2011 WL 2043238 (9th Cir. May 26, 2011), decision available here.

Players: Hard fought appeal by CD Cal AFPD Jonathan Libby. Decision by Judge Ikuta.

Facts: Ellis robbed a few banks. Id. at *1. Well, maybe more than a few – he simulated a gun, put tellers in a closet in one robbery, and lead cops on a high-speed chase before being caught on unlucky number seven. Id. at *1. He pleaded guilty in a complicated deal that let him argue departures, and had the government agreeing to a guideline calculation. The agreement, however, allowed the government to argue for a sentence of up to 151 months under Booker, and/or argue for an upward departure in Ellis’s criminal history. Id. at *2.

The PSR came in at 97-121 months, in Criminal History Category II: at the government’s urging, the Court departed upwards one criminal history category, undertook a § 3553 analysis, and imposed a sentence of 151 months. Id. at *4. Ellis appealed, arguing – among other things – erred in its upward Criminal History Departure to CH III. Id. at *7.

Issue(s): How does the Ninth review departures from the Criminal History category, under USSG § 4A1.3?

Held: “[W]e hold that where a district court ‘has framed its analysis in terms of a downward or upward departure’ for a criminal history category, we will analyze such a departure as ‘an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range.” Id. at *8.

Of Note: Ever feel like we’re making up federal sentencing law as we go along? In United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011), the Ninth refused to let a district court insulate its guideline error with a shadow, “harmless error” Section 3553(a) sentence.“A district court’s mere statement that it would impose the same above-Guidelines sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand, because the court's analysis did not flow from an initial determination of the correct Guidelines range. The court must explain, among other things, the reason for the extent of a variance . . . The extent necessarily is different when the range is different, so a one-size-fits-all explanation ordinarily does not suffice.” Id. at 1031.

In Ellis, by contrast, the Ninth doesn’t get around to deciding whether the district court “correctly applied the departure provision” when it departed upwards from the criminal history category. Id. at *8 (quoting with approval Tankersley). Why bother reviewing a guideline departure? It all just gets lumped into the “reasonableness” of a 3553(a) sentence anyway – and Ellis’s sentence was ultimately reasonable, explains Judge Ikuta. Id. at *8-*9.

How does one reconcile Ellis and Munoz-Camarena ?

Admittedly, there's a difference between an error in calculating the guidelines, and an error in departing from them -- the former would still be reviewed by the Ninth under the Zavala/Carty framework, and the latter is more akin to a Section 3553 analysis anyway. Moreover, Judge Ikuta is simply extending to Criminal History departures an analysis that had already been applied to offense level departures. Nonetheless, it still is a remarkable thing, to realize that the Ninth is now officially out of the business of reviewing departures as departures. Lots of folks have spent big chunks of their careers creating a body of law on guideline departures and their review on appeal: that line of authority is just a historical footnote, now.

The CD Cal USAO won the battle here, but Sentencing Commission and DOJ be warned: this type of analysis is costing the guidelines the sentencing war. When appellate courts don’t bother to check whether the guidelines are right – because § 3553(a) cures all – the guidelines are not just “advisory:” they’re slouching towards obsolescence.

How to Use: Ellis’s loss = addict’s gain. Ellis is a green light for district courts to Do The Right Thing, and dive downwards from the PSR’s Criminal History category. Flag Ellis for our many clients with too many CH points courtesy of driving violations, addiction/possession offenses and dusty old priors that nonetheless are snagged by the over broad time frames of USSG § 4A1.1. Generous downward departures from the Guidelines’ Criminal History category are now bulletproof on appeal: shaving off a CH category (or two) (or three) may have been an abuse of discretion in the old days, but will now never get flipped thanks to uber-tolerant Booker reasonableness review.

For Further Reading: As discussed above, Ellis can be read as another in the line of cases diminishing the importance of the guidelines. Two other recent Ninth cases have done the same, in different ways: Henderson and Apodaca. For a thoughtful essay on these child porn decisions, see blog here. As author Joshua Matz observes, the pair of cases “suggest[] that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework.”

Image of the Honorable Sandra S. Ikuta from

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



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