Sunday, September 02, 2012

Case o' The Week: Guidelines, Schmuidelines - Vasquez-Cruz and Sentencing Guideline Review

The Hon. Sandra Ikuta

The approach of the Federal Sentencing Guideline is obsolete, and doesn’t merit appellate review.

The approach of the Federal Sentencing Guidelines is obsolete, and doesn’t merit appellate review.

Hold the first, and the second is (happily) one step closer. United States v. Vasquez-Cruz, 2012 WL 3743167 (9th Cir. Aug. 30, 2012), decision available here.

Players: Decision by Judge Ikuta (above), joined by Judges Rawlinson and Hug. Hard-fought case by Nevada AFPDs Michael Kennedy and Dan Maloney.

Facts: At his sentencing for illegal reentry, Vasquez-Cruz argued for a downward departure for cultural assimilation, and a § 3553(a) variance in light of his learning disorders and retardation. Id. at *1. The district court refused to go down, and gave a low-end guideline sentence. Id.  

Issue(s): “On appeal, Vasquez–Cruz argues that the district court procedurally erred by failing to determine whether he was entitled to a departure under the Sentencing Guidelines before considering whether he was entitled to a variance under 18 U.S.C. § 3553(a). This failure, Vasquez–Cruz argues, violates the sequencing required by U.S.S.G. § 1B1.1, as amended in 2010, which directs district courts to first determine the Guidelines range, then consider departures from the Guidelines, and finally consider ‘the applicable factors in 18 U.S.C. § 3553(a) taken as a whole.’” Id. at *2 (emphases added).

Held: “[W]e adhere to our precedent that requires us to decline to review whether the district court procedurally erred by failing to grant Vasquez–Cruz a departure or by failing to consider departures before applying the § 3553(a) factors. Accordingly, we decline Vasquez's invitation to review the district court's denial of a departure (as well as the court's consideration of Vasquez's departure and variance arguments together, rather than as separate steps). Instead, we review the district court's exercise of discretion only for substantive reasonableness.” Id. at *5.   

Of Note: Judge Ikuta has driven a fair number of nails into the Guidelines’ coffin. A year ago Judge Ikuta wrote United States v. Ellis, 641 F.3d 411 (9th Cir. 2011), see blog here. In Ellis, Judge Ikuta dodged appellate review of an (upward) Criminal History departure, explaining that the Ninth would just review the end result for “reasonableness” and a district court’s exercise of “post-Booker discretion.” Id. at 421. The practical impact of Ellis was to weaken the Guidelines -- how important can they be, if it is irrelevant on appeal whether a departure analysis was right? 

The identical reasoning (and result) continues in Vasquez-Cruz. After Booker the Sentencing Commission expressly dictated a three-step sentencing process: first determine the correct guideline, then evaluate departures, finally consider Booker variances. See USSG § 1B1.1. “Meh,” shrugs the Ninth – departures are “obsolete” post-Booker anyway, so it isn’t reviewable error if a district court doesn’t follow correct sentencing procedure. 

A loss for Mr. Vasquez-Cruz, but a win for those of us who long for true “advisory” guidelines. Cases like Ellis and Vasquez-Cruz relegate the Guidelines to the P.E. of federal sentencing: how seriously can you take a class that isn’t graded?   

How to Use: Despite Vasquez-Cruz, departures remain important defense tools. There’s a valuable legacy of departure law from decades of litigation, and these concepts have the nice heft of appellate approval. A variance for lost opportunity to serve concurrent time with a state sentence? Sounds like a Hail Mary from a defense training seminar. But a departure to recoup lost time? That’s an en banc- sanctioned procedure: more comfortable territory, for a skittish D.J. See United States v. Sanchez-Rodriguez, 161 F.3d 556, 564 (9th Cir. 1998) (en banc).
For Further Reading: How badly did the Supremes want a shot at the Ninth’s Aguila Montes de Oca, on modified-categorical sentencing? So badly that it groped around and snagged a mem dispo. The Court just granted cert. on Descamps, an unpublished decision on Cal burgs and the ACCA. See Lyle Denniston, Court grants two more cases, SCOTUSblog (Aug. 31, 2012), available here

  Preserve modified categorical challenges – that jurisprudential goo of the Tayloranalysis will morph again, next term. To revisit the long, strange trip of Aguila Montes de Oca, before the Supremes take it up next term, visit the blog collection here.

Image of the Honorable Judge Sandra Ikuta from

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


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