Saturday, February 21, 2015

Case o' The Week: "Dollars to Donuts" and Non-Existent Transcripts - Burgos-Ortega and Illegal Reentry Sentencing

  In our post-Guidelines world, we’re all for district courts having “great latitude . . . in choosing a sentence.”
   Except when the court varies upwards, doubles the guideline range, and doubles the joint recommendations of the government, Probation, and the defense.
 United States v. Burgos-Ortega, 2015 WL 468186 (9th Cir. Feb. 5, 2015), decision available here.

Players: Decision by Judge Callahan, joined by Judges Graber and Gould. Hard-fought appeal by AFD Kent Young, Federal Defenders of San Diego, Inc.

Facts: Burgos-Ortega entered the US illegally, was prosecuted, and plead guilty to 8 USC § 1326. Id. at *1. His PSR calculated a range of 18-24 months: the PO recommended 2 years. Id. This included a +12 OL bump for a 1992 Washington State conviction for “delivery of heroin.” Id. The defendant had two prior reentry convictions: one in ’98 for 70 months, and second in ’06 for 46 months. Id. Both the gov’t and defense counsel argued for 24 months; the defense noted the (favorable) change in the guidelines ranges, the staleness of the heroin prior, and the client’s resolved issues with his children in the US, negating the need to return. Id. 
   The district court, however, decided to “vary up,” speculating that the prior entries had “good excuses,” musing about the other illegal reentry defendants who also “have a reason to come back,” and complaining that to give a lower sentence would be like “giving probation.” The court varied up to 4 years. Id. When defense counsel objected, the court said it was willing to bet “dollars to donuts” that the transcripts of the prior sentencings had promises by the defendant not to return to the United States. Id. at *3.

Issue(s): “Burgos-Ortega [argues] that the district court clearly erred because its sentence was based on facts not found in the record. Specifically, Burgos-Ortega argues that the district court improperly speculated that he had offered good reasons for his prior two illegal re-entries when it rejected Burgos-Ortega’s contention that he had no reason for returning to the United States in the future.” Id. at *7.

Held: “Burgos-Ortega’s argument is not persuasive . . . Our review of the record reveals that the district court’s comments played no role in its determination of an appropriate sentence . . . Viewing the record as a whole, the district court did not rest its sentence on any clearly erroneous fact.” Id. at *7.

Of Note: The holding above is disappointing, and is joined by a brace of similarly disheartening outcomes. The Court held that the Washington heroin offense was a +12 crime, because there was no realistic probability that it was overbroad and criminalized administration of the drug. Id. at *5-*6. The Court also rejects an Amezcua staleness argument, finding that any staleness was taken into account under the post-Amezcua amendment taking this offense down from +16 offense levels to +12. Id. at *8. A tough decision all around, for the defense of illegal reentry cases.

How to Use: Arguing two Ninth en banc opinions, Burgos-Ortega argues that the defense needn’t show that anyone was actually prosecuted for administering heroin because the Washington statute was overbroad on its face. Id. at *6. Judge Callahan distinguishes these cases (Grisel and Vidal), because the Washington state statute “does not expressly include conduct not covered by the generic offense, but rather is silent as to the existence of a parallel administering exception.” Id. 
   This merits a close read, for its Taylor ramifications – seems like new territory after Grisel and Vidal.
For Further Reading: Let’s not talk about disparity when grappling with federal sentencing. That provocative intro kicks off a particularly thoughtful piece by Judge Nancy Gertner – How to Talk about Sentencing Policy – and Not Disparity, available here. While working her way towards proposals for reform, Judge Gertner also gives a candid history of the different sentencing regimes in the last forty years or so. Well worth a read, and perhaps snagging a quote or two for the next sentencing memo.

Steven Kalar, Federal Public Defender ND Cal Website at


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