Tuesday, November 15, 2011

Ceballos: Isn’t There A Right To A Ruling On A Sentencing Request Under Rule 32 And Due Process?

In the recent case of Ceballos, the Ninth Circuit appears to have degraded sentencing rights without considering its own precedents that protect those rights. Mr. Ceballos’s sentencing letter included a request for a judicial recommendation for designation to a facility close to his family, a recommendation that the designation statute – 18 U.S.C. § 3621(b) – requires the Bureau of Prisons to consider. Rule 32(i)(3)(B) requires that the sentencing court shall, for “any disputed portion of the pre-sentence report or other controverted matter,” rule on the question or determine that a ruling is unnecessary, a rule that requires “strict compliance” (Fernandez-Angulo, 897 F.3d at 1516; accord Houston, 217 F.3d at 1208). The sentencing judge simply did not rule on Mr. Ceballos’s request; then eight days later, the government and the defense jointly agreed the judgment should be amended to include the recommendation. The district judge, acting as if he had no discretion in the matter, denied the request: “It is the Bureau of Prisons’ responsibility for the housing of prison inmates. Mr. Ceballos should request his housing from the Bureau of Prisons.” And the Panel affirmed this non sequitur, claiming no jurisdiction to review.

This case needs a second look. Where the sentencing judge failed to rule initially on the designation request, the sentencing court should have jurisdiction under Rule 35 to correct “clear error.” Under both Rule 32 and due process, the failure to rule on a request for a judicial recommendation was erroneous. Mr. Ceballos unquestionably alerted the sentencing judge to his desire that the court make a ruling on his request, which § 3621(b) makes a relevant factor at sentencing. As the Ninth Circuit has stated, supported by Supreme Court authority, “The existence of discretion requires its exercise” (Miller, 722 F.2d at 565). Or as the Supreme Court said in Koon regarding sentencing discretion, “A district court by definition abuses its discretion when it makes an error of law” (518 U.S. at 100). Here, the sentencing judge failed to exercise discretion that Mr. Ceballos invoked. What could be easier or fairer than agreeing with the parties to correct the error by amending the judgment? Especially where, as a prior panel held in Rodriguez, the BOP is required to consider the factors enumerated in § 3621(b), including the recommendation of the sentencing judge, in determining the appropriate correctional facility.

The Ceballos opinion purports to be the first Ninth Circuit precedential opinion on § 3621(b) recommendations, although the Reynolds opinion addressed post-sentencing nunc pro tunc designations to achieve concurrent sentences. In finding that recommendations are not reviewable, the Panel relied on a series of out-of-circuit opinions involving actual court recommendations, which were made during sentencing hearings, that were supported by the record. In contrast, the Ceballos case involved a complete failure to rule. The other circuits’ holdings that the recommendations themselves did not present reviewable questions are far different from the complete failure to rule in Ceballos. In a final footnote, the Ceballos opinion stated that district courts have the authority “to make (or not make) non-binding recommendations to the Bureau of Prisons at any time – including but not limited to – during the sentencing colloquy.” However, the sentencing court does not have the option to fail to rule on a request for a recommendation, absent the findings required under Rule 32(i)(3)(B), especially where the prejudice from the lack of a recommendation can immediately affect the BOP’s initial placement of the prisoner.

Basic sentencing rules should require a decision on the merits. By allowing courts to ignore recommendation requests, the Panel trivialized the statutory instructions to the BOP in § 3621(b) and undermined sentencing advocacy regarding recommendations that, as described in our recent Guide to BOP advocacy available here, provide important means for ameliorating otherwise overly harsh sentencing. A ruling on the statutorily-based recommendation regarding designation is not optional. The judge must exercise discretion either for or against the request. If a recommendation is rejected on the merits, the sentencing judge should state simply why the recommendation was denied. An improper motive would certainly justify reversal, such as race or dislike for the defendant’s haircut. How about if – as it appears in Mr. Ceballos’s case – the judge does not believe the authority exists to make a recommendation? As the Supreme Court held in Rita, the sentencing court needs to provide a minimum amount of information to enable the reviewing court to determine that sentencing discretion was properly exercised (551 U.S. at 356-57). Where there is jurisdiction under 18 U.S.C. § 3742 to review a sentence “in violation of law” under Rule 32 or Rule 35 or the due process clause, a ruling on the merits with a minimal explanation is not asking too much.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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