The Constitutional Right To Speedy Sentencing

United States v. Ray, 578 F.3d 184 (2d Cir. 2009)

There was a 15 (that's right -- 15) year gap between a decison by the Second Circuit reversing Ray's sentence and remanding for resentencing, and the actual resentencing hearing, at which Ray was sentenced to six months of community confinement.  Check out the decision for all the details concerning the basis for the ruling, but the bottom line is that the Second Circuit found that the 15 year delay violated Ray's right under the due process clause of the Fifth Amendment to "speedy sentencing."  And although it did not directly decide the issue, the Second Circuit indicated that the appropriate remedy for a speedy sentencing violation is a sentence of time served (particularly where the delay in imposition of a custodial sentence "threatens to undermine her successful rehabilitation").

Imposing Role Adjustment Without Specific Factual Findings Constitutes "Plain Error"

United States v. Ware, 577 F.3d 442 (2d Cir. 2009)

Ware was convicted of securities fraud and conspiracy to commit securities fraud, and was sentenced principally to 97 months imprisonment.  Proceeding pro se on appeal, Ware challenged, among other things, the district court's application of a 4 level role enhancement.  At sentencing, though, Ware had not challenged the district court's role enhancement.  Accordingly, his challenge to the sufficiency of findings was reviewable only for plain error.  And the Second Circuit found such error to have occurred.  Specifically, it "conclude[d] that the findings of the district court are not sufficient to reveal a factual basis for the court's conclusion that Ware's criminal activity involved five or more 'participants' or was 'otherwise extensive' within the meaning of the Guidelines 3B1.1(a).  Thus, the Second Circuit reversed Ware's sentence, and remanded either for supplemental factual findings or for resentencing.

The underlying facts relating to the district court's conclusions concerning the absence of an adequate factual basis for the role enhancement are not as important as the larger point -- to wit, that it is "plain error" for a district court to impose a role enhancement whatever the circumstances without adequate findings of fact.  This is consistent with the Second Circuit's general direction concerning how sentencing hearings should  be conducted in the post-Booker world.  The only question is this: Will "plain error" analysis be extended to any other factual findings upon which sentences are based?

Procedural Error For Presuming The Guidelines To Be Reasonable

United States v. Peguero, No. 07-2306-CR., 2009 WL 2524006 (2d Cir. Aug. 19, 2009)

Peguero appealed from a judgment sentencing him to 50 months imprisonment.  At sentencing the district court stated: "I have the ability to do justice and depart [or impose] a sentence independently of the Guidelines, but my opinion is that that is reserved for really special situations, and I even then take the Guidelines into serious consideration."  From the Second Circuit's viewpoint, that statement crossed the line.  Specifically, the Second Circuit found that "the district court presumed that the Guidelines sentence was reasonable," and therefore committed procedural error.

Possible Signal Concerning Higher Level Of Scrutiny For Restitution Orders From The Second Circuit?

United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (found here)

Pearson appealed from a judgment convicting him, following a guilty plea, of multiple counts of producing, transporting, receiving and possessing child pornography.  He was sentenced to fifteen years imprisonment and ordered to pay $974,902 in restitution to the child victims of his crime to account for future medical expenses.  On appeal, Pearson challenged whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for future estimated medical expenses and, if so, whether the amount of restitution ordered was reasonable.  The Second Circuit answered "yes" to the first question (future medical expenses are authorized by the statute), but concluded "no" on the second question (the amount of the restitution ordered was not reasonable).

The Second Circuit acknowledged that it had not yet addressed the question of whether Section 2259 authorizes compensation for future medical expenses.  Relying on the conclusions of three of its sister circuits, the Second Circuit agreed that future medical expenses are contemplated by Section 2259 because "the amount of loss is too difficult to confirm or calculate."

But the Second Circuit also concluded that the district court failed to properly estimate those future medical expenses.  Specifically, "although the record contains evidence of the victims' need for long-term counseling and of the cost of that counseling, the district court did not explain how it estimated the victims' future expenses. . . . [W]ithout more information as to how the district court reached the lower figure, we are unable to conduct even deferential review of whether the final restitution order reflect a reasonable estimate of the cost of future counseling."  Accordingly, the Second Circuit remanded "to secure a more thorough explanation from the district court as to the basis for its restitution determination."

Could this have wide implications for, say, restitution in financial fraud cases in circumstances in which a district court does not build a sufficient record concerning restitution?  With United States v. Rutkoske in mind, is the Second Circuit signaling increased interest and awareness of restitution decisions?

Failure To Abide By "Transitional Supervision" Not A Violent Felony Within The Meaning of ACCA

United States v. Mills, Docket No. 07-0308-cr (2d Cir. June 26, 2009)

Mills challenged a district court's finding that he qualified for ACCA sentencing because of his prior Connecticut escape conviction.  Specifically, Mills was released from Connecticut prison and placed in "transitional supervision," under which he was authorized to reside in a private residence.  By statute, however, he remainder under the jurisdiction of the Connecticut Commissioner of Correction, and was required to satisfy conditions similar to those required of parolees, including reporting regularly to a community enforcement officer.  Mills failed to appear as required after his initial report date.  Thus, he was charged with escape.

Under Taylor v. United States, 495 U.S. 575 (1990) courts are required to take a "categorical approach" when determining whether an offense qualifies as a "violent felony" under the ACCA.  But where a statute encompases crimes that would qualify both as violent felonies and crimes that would not -- like the Connecticut statute at issue here, which defined escape as both an affirmative escape from custody or a mere failure to return -- courts can make a limited inquire into which part of the statute the defendant was convicted of violating.  So, when the Second Circuit combined its limited inquiry into Mills' conduct (he basically walked away) and the Supreme Court's decision in Chambers v. United States, 129 S.Ct. 687 (2009) (finding that a failure to report or failure to return is not a violent felony under the ACCA) . . . well, you can imagine what happened.  Reversed and remanded for resentencing.  Even the Government conceded the mistake.

No Surprise: Procedural Error Based On District Court's Adoption Of Two Different Advisory Guidelines Ranges

United States v. Hossain, No. 08-3805-cr (2d Cir. June 24, 2009)

Hossain complained about procedural error in his sentencing hearing -- specifically, the district court "erred by not calculating and identifying the applicable Sentencing Guidelines range and by failing to state the reasons for his sentence in open court."  The Second Circuit agreed that the district court's "sparse statements at the sentencing hearing and subsequent adoption of two different PSR addenda (and accordingly two different Guidelines ranges) in two separate Statements of Reasons, constitute unreasonable procedural error."  This "lack of clarity unduly frustrates the purposes of § 3553(c) -- to inform the defendant, the public, and relevant prison/probation officers of the reasons for imposition of a particular sentence and to permit meaningful appellate review." 

One final note: The sentence was obviously vacated and remanded for resentencing.  But the Second Circuit denied Hossain's request that it be assigned to a different judge.  Specifically, it found that "reassignment is not necessary in the circumstances presented, either for reasons of bias or to preserve to appearance of fairness."

A Series Of Procedural Errors

United States v. Weisberg, No. 07-CR-066A, 2009 WL 1373676 (W.D.N.Y. May 15, 2009)

A United States District Judge was compelled to reverse and remand the sentencing decision of a United States Magistrate Judge after discovering several procedural errors.  The lesson to be learned is this: Make a good record.

First, the magistrate judge "erroneously presumed that a within-the-Guidelines sentence should be applied absent exceptional circumstances.  In his initial sentencing decision, the Magistrate Judge found that '[t]he factors defendant suggests should warrant either a downward departure or imposition of a non-Guidelines sentence, collectively are not so extraordinary to justify a departure.'  This was error ebcause the Supreme Court made clear in Gall that post-Booker, there is no requirement that a sentencing court find 'extraordinary circumstances' in order to justify the imposition of a non-Guidelines sentence."

Second, the magistrate judge "erroneously applied a presumption of reasonableness to the advisory Guidelines range. . . .  [T]he Supreme Court has made clear that no presumption of reasononableness should be applied by the sentencing court."

Finally, the magistrate judge "was not required to sentence the defendant within the advisory Guidelines range unless he articulated a specified policy disagreement with the Guidelines.  While it is true that such a disagreement may provide a reason for imposing a non-Guidelines sentence . . . it does not follow that the failure to disagree with the policy statements mandates the sentence be within the advisory Guidelines range."

Reversal For Failure To Consider Age-Recidivism Correlation

United States v. Hamilton, et al., No. 07-2874-cr (2d Cir. April 14, 2008) (found here)

Hamilton argued that the district court abused its discretion by failing to consider Hamilton's age and his reduced likelihood of recidivism.  He argued that because his case was decided before Gall and Kimbrough the district court was not aware that it could consider an age-recidivism correlation.  And, the Second Circuit agreed, but only because of the language used by the district court at sentencing.  Specifically, the district court stated that it considered "each of the factors in the Sentencing Guidelines in the context of Mr. Hamilton's case" and sentenced Hamilton within the Guidelines.  The district court therefore -- by its own admission -- considered only "factors in the Sentencing Guidelines."  Thus, because an age-recidivism correlation is not in the Guidelines, the Second Circuit concluded that it could not "assume that the district court understood that it had the discretion to consider the policy argument disagreeing with the Guidelines' refusal to consider age and its correlation with recidivism."  The district court therefore "abused its discretion in not taking into account policy consideration with regard to age recidivism not included in the Guidelines."

Reversed and remanded for resentencing.  Me?  I think it was probably just a slip of the tongue on the part of the District Court.

The Longest . . . Resentencing Hearing

United States v. Hernandez, No. 89-CR-229 (TCP) (E.D.N.Y. March 27, 2009)

Hernandez was highlighted for me in an email I received.  The substance of the re-sentencing is not nearly as interesting and perplexing as the process by which it came to be.  I don't understand it how it could have happened.  Perhaps you can explain it to me.

Hernandez was sentenced (likely) in late 1991 to 405 months imprisonment.  On December 3, 1993 the Second Circuit vacated the defendant's sentence and remanded for resentencing because the district court had not made findings as to the defendant's role in the offenses and did not set forth a sufficient basis for applying a four level enhancement of his leadership role.

Fast forward fifteen years.  Yes, fifteen years.  Hernandez is resentenced to the same amount of time.  What happened in those intervening fifteen years?  How could this have slipped through the cracks?  Why was no one ringing an alarm bell?  What happened to defense counsel?  To the defendant?  To the U.S. Attorney's Office?  To U.S. Probation?  To the court?

Procedural Error Found, Yet No Remand For Resentencing

United States v. Ramirez, No. 08-2771-cr (2d Cir. April 1, 2009) (found here)

It's no April Fools joke.  The Second Circuit denied a Government appeal based on procedural errors.  Here's how it went down.

The Government submitted that Ramirez's sentence was infected by procedural error -- the district court's "refusal" to calculate the Guidelines range based on the $500,000 in narcotics proceeds and five kilograms of cocaine that he'd delivered in his livery cab.  More specifically, in declining to calculate Ramirez's Guidelines range by reference to the amount of drugs or money transported, the district court explained that: (1) the trial evidence failed to indicate Ramirez's awareness of these quantities; and (2) it did not want to "disturb" the jury's specific finding that less than 500 grams of cocaine was the amount within the scope of criminal activity undertaken. 

This, says the Second Circuit, was procedural error because the "appropriate course [] would have been to calculate Ramirez's base offense level with the aid of U.S.S.G. § 1.3(a)(1)(A), which directs that a defendant's offense level must be calculated with reference to" all relevant conduct and which notes that "[w]ith respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was involved," without regard to whether the quantities were either actually known or reasonably foreseeable to him.  Thus, the Second Circuit found that Ramirez's Guidelines calculation should have been made using at least 5.036 kilograms of cocaine as the relevant drug quantity.

Still, the Second Circuit didn't reverse the district court, nothwithstanding that the case represented a "significant procedural error that would generally require remand for resentencing."  Why?  Well, the Supreme Court has written that, in determining whether a remand is appropriate, a court must decide whether the district court would have imposed the same sentence had it not relied upon the invalid facotor or factors.  Williams v. United States, 503 U.S. 193, 203 (1992).  And a remand is not necessary if the reviewing court concludes, on the record as a whole, that the error was harmless -- to wit, that the error did not affect the district court's selection of the sentence imposed.  Id.

Here, the "district court made it clear that, in its view, a higher sentence would not be 'fair and just' . . . .  Thus, a remand for resentencing is unnecessary in this case as the record suggests that the district court would impose the same sentence on remand."