Second Circuit: Guidelines Sentence CAN Create Unwarranted Sentencing Disparity

United States v. De La Cruz, No. 09-4641-cr, 2010 WL 4136669 (2d Cir. Oct. 21, 2010)

De La Cruz's argued that his sentence was procedurally and substantively unreasonable.  In particular, he argued (among other things) that the district court committed procedural error in making the following statement: "The next factor is the Court has to avoid unwarranted sentencing disparity.  I would have to say a Guidelines sentence by definition really can't create unwarranted sentencing disparity."

The Second Circuit found that any error on the district court's part in making that statement was harmless, particularly in light of other statements made that indicated the district court understood its sentencing responsibilities and obligations.  Still, the Second Circuit made one observation worth noting -- that is, that "Appellant is correct insofar as he asserts that a Guidelines sentence can create an unwarranted disparity, a proposition supported by the Supreme Court's decision in Kimbrough v. United States."

4 Month Sentence for Federal Class B Misdemeanor

United States v. Dugan, No. 10 Cr. 06-1 (RWS), 2010 WL 4118374 (S.D.N.Y. Oct. 12, 2010)

Dugan was convicted of having obstructed the entryway to a medical clinic in Manhattan.  Because the offense was a class B misdemeanor, the Guidelines did not apply.  Rather, the court was required to consider the remainder of the 3553(a) factors.  And, in doing so, the court concluded that a four month prison term was appropriate for purposes of specific and general deterrence.

Second Circuit Finally Rules On The Ex Post Facto Clause And The Guidelines

United States v. Ortiz, Docket No. 08-2648-cr (2d Cir. Sept. 1, 2010) (found here) (hat tip to Zachary Margulis-Ohnuma, who handled the appeal on behalf of Ortiz)

Ortiz was sentenced to 120 months imprisonment for firearms and narcotics offenses in what amounted to a non-Guidelines sentence.  On appeal, he contended that his sentence violated the ex post facto clause of the U.S. Constitution because an enhancement, used to calculate his Guidelines sentencing range, was increased after the date of his offense.  Ortiz's sentencing range under the unamended Guidelines would have been 151 to 188 months; under the amended Guidelines the range would have been 168 to 210 months.  The Ortiz case finally provided the Second Circuit with an opportunity to address the applicability of the ex post facto clause to the Guidelines in the post-Booker world.  And here is how it came out.

Specifically, the Second Circuit adopted the "substantial risk" standard enumerated by the D.C. Circuit in United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008).  In that case, the D.C. Circuit held that an ex post facto violation may occur when a defendant is able to show that use of amended Guidelines "create[s] a substantial risk" of a more severe sentence.  No definitiveness is necessary; rather, a defendant only need show that there is a "substantial risk" of a harsher sentence if the ex post facto clause is not applied when calculating a Guidelines range.  Put differently (as described by the Second Circuit), the standard "recognizes that there may be circumstances where an amended Guidelines range can influence a sentence that violates the Ex Post Facto Clause."

In Ortiz's case, the "substantial risk" standard did not benefit the defendant because the sentence imposed was well below both the amended and unamended Guidelines range.  Thus, the Second Circuit concluded that there was "no risk at all [] that the sentencing judge, having made such a generous deviation from the amended Guidelines range, would have imposed a non-Guidelines sentence of less than 120 months had the bottom of the applicable sentencing range been 151 months, as it was before the Guidelines, rather than 168 months."

As detailed in my July 1, 2009 article in the New York Law Journal entitled "The Ex Post Facto Clause In The Post Booker World" (found here), my view on the issue is different.  Specifically, my article argued that the ex post facto clause continues to apply in the post-Booker world for any number of reasons.  But, even if I'm wrong, it seems that the clause either applies or doesn't apply -- a "yes or no" answer, rather than the "maybe" answer provided by the Second Circuit in Ortiz. 

What are your thoughts?

Remanding To Different District Court Judge For Failure To Conduct Resentencing Hearing

United States v. Johnson, No. 06-2026-cr (2d Cir. July 28, 2010) (found here)

Johnson's prior life sentence was vacated, and his case remanded for resentencing.  On remand, the district court declined to conduct a new sentencing hearing and instead issued a new sentencing opinion once again sentencing Johnson to life.  As the Second Circuit noted, it's prior order required a new sentencing hearing.  The district court's failure to conduct one constituted reversible error.

Thus, the only question for the Second Circuit was whether to send it back to the same judge or assign a new judge.  It chose to reassign the case.  Specifically, it stated that:

Though we do not doubt Judge Johnson would comply faithfully with out instructions following remand, and express no view as to the proper sentence in this case, the number of errors that have attended defendant's repeated sentencing proceedings could lead a reasonable observer to question the court's impartiality.  Though we are mindful of the inefficiencies associated with reassignment, we further note that because defendant is entitled to de novo resentencing, any district court judge would be required to update the record and re-weigh the factors contained in 18 U.S.C. § 3553(a).

Reunited (And It Feels So Good)

United States v. Gil-Arenas, No. 09-CR-864-01 (JBW), 2010 WL 2816582 (E.D.N.Y. July 12, 2010)

Gil-Arenas pled guilty to illegal reentry into the United States, for which he faced an advisory Guidelines range of imprisonment of between 37 and 46 months.  He was sentenced to a 15 months in prison.  Why? 

It is worthy to note that the defendant reentered the United States in order to reunite with his son and sister following the death of a close relative.  The defendant seems to have a good background except for one prior crime committed over twenty years ago.  He benefitted greatly from receiving Distress Tolerance Skills Training from the Columbia University Social Work Extern Program at MDC Brooklym, and was awarded a Certificate of Achievement for his participation.

United States v. Gil-Arenas, No. 09-CR-864-01 (JBW), 2010 WL 2816582 (E.D.N.Y. July 12, 2010)

Gil-Arenas pled guilty to illegal reentry into the United States, for which he faced an advisory Guidelines range of imprisonment of between 37 and 46 months.  He was sentenced to a 15 months in prison.  Why? 

It is worthy to note that the defendant reentered the United States in order to reunite with his son and sister following the death of a close relative.  The defendant seems to have a good background except for one prior crime committed over twenty years ago.  He benefitted greatly from receiving Distress Tolerance Skills Training from the Columbia University Social Work Extern Program at MDC Brooklym, and was awarded a Certificate of Achievement for his participation.

United States v. Gil-Arenas, No. 09-CR-864-01 (JBW), 2010 WL 2816582 (E.D.N.Y. July 12, 2010)

Gil-Arenas pled guilty to illegal reentry into the United States, for which he faced an advisory Guidelines range of imprisonment of between 37 and 46 months.  He was sentenced to a 15 months in prison.  Why? 

It is worthy to note that the defendant reentered the United States in order to reunite with his son and sister following the death of a close relative.  The defendant seems to have a good background except for one prior crime committed over twenty years ago.  He benefitted greatly from receiving Distress Tolerance Skills Training from the Columbia University Social Work Extern Program at MDC Brooklym, and was awarded a Certificate of Achievement for his participation.

United States v. Gil-Arenas, No. 09-CR-864-01 (JBW), 2010 WL 2816582 (E.D.N.Y. July 12, 2010)

Gil-Arenas pled guilty to illegal reentry into the United States, for which he faced an advisory Guidelines range of imprisonment of between 37 and 46 months.  He was sentenced to a 15 months in prison.  Why? 

It is worthy to note that the defendant reentered the United States in order to reunite with his son and sister following the death of a close relative.  The defendant seems to have a good background except for one prior crime committed over twenty years ago.  He benefitted greatly from receiving Distress Tolerance Skills Training from the Columbia University Social Work Extern Program at MDC Brooklym, and was awarded a Certificate of Achievement for his participation.

United States v. Gil-Arenas, No. 09-CR-864-01 (JBW), 2010 WL 2816582 (E.D.N.Y. July 12, 2010)

Gil-Arenas pled guilty to illegal reentry into the United States, for which he faced an advisory Guidelines range of imprisonment of between 37 and 46 months.  He was sentenced to a 15 months in prison.  Why? 

It is worthy to note that the defendant reentered the United States in order to reunite with his son and sister following the death of a close relative.  The defendant seems to have a good background except for one prior crime committed over twenty years ago.  He benefitted greatly from receiving Distress Tolerance Skills Training from the Columbia University Social Work Extern Program at MDC Brooklym, and was awarded a Certificate of Achievement for his participation.

Importance of Digging Deep Into A Client's Past

United States v. Lehner, No. 09-CR-72 (JBW), 2010 WL 2522423 (E.D.N.Y. May 24, 2010)

Lehner pled guilty to a tax offense, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to 6 months in prison.  Why?  

While on the surface defendant came from a good family, defendant was subjected to sexual abuse as a child, and had a generally unsatisfactory relationship with her parents. She made an apparently happy marriage to her second husband, and she suffered severely from his early death. She became an abuser of alcohol, and tried several times to commit suicide. She is bright and competent, and a hard and persistent worker. She has attended therapy, and apparently is no longer abusing alcohol. She recently suffered the loss of her adult son. Nevertheless, her offense was serious. Defendant deliberately entered into an arrangement to defraud the government of taxes and to drive a thriving company into bankruptcy.

United States v. Lehner, No. 09-CR-72 (JBW), 2010 WL 2522423 (E.D.N.Y. May 24, 2010)

Lehner pled guilty to a tax offense, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to 6 months in prison.  Why?  

While on the surface defendant came from a good family, defendant was subjected to sexual abuse as a child, and had a generally unsatisfactory relationship with her parents. She made an apparently happy marriage to her second husband, and she suffered severely from his early death. She became an abuser of alcohol, and tried several times to commit suicide. She is bright and competent, and a hard and persistent worker. She has attended therapy, and apparently is no longer abusing alcohol. She recently suffered the loss of her adult son. Nevertheless, her offense was serious. Defendant deliberately entered into an arrangement to defraud the government of taxes and to drive a thriving company into bankruptcy.

United States v. Lehner, No. 09-CR-72 (JBW), 2010 WL 2522423 (E.D.N.Y. May 24, 2010)

Lehner pled guilty to a tax offense, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to 6 months in prison.  Why?  

While on the surface defendant came from a good family, defendant was subjected to sexual abuse as a child, and had a generally unsatisfactory relationship with her parents. She made an apparently happy marriage to her second husband, and she suffered severely from his early death. She became an abuser of alcohol, and tried several times to commit suicide. She is bright and competent, and a hard and persistent worker. She has attended therapy, and apparently is no longer abusing alcohol. She recently suffered the loss of her adult son. Nevertheless, her offense was serious. Defendant deliberately entered into an arrangement to defraud the government of taxes and to drive a thriving company into bankruptcy.

Harsh Criticism of Mandatory Minumum Sentencing and Governmental Charging Decision

United States v. Hernandez, No. 09-CR-703 (JBW), 2010 WL 2522417 (E.D.N.Y. May 28, 2010)

Hernandez pled guilty to one count of having received images captured in a computer screenshot of child pornography, for which he faced an advisory Guidelines range of imprisonment of between 97 and 121 months.  He was sentenced to a 5 years imprisonment (the mandatory minimum).  Why?  

A sentence of 5 years' imprisonment is unnecessarily cruel in the circumstances.  The sentence overstates the seriousness of the crime; it is more than necessary to serve the purpose of sentencing.  Prison will only harm the defendant and will do nothing to protect society.  The defendant requires treatment and supervision outside of prison.

. . . .

The case constitutes a tragedy resulting from a mandatory minimum and the decision of the U.S. Attorney to charge the defendant for receipt of child pornography, rather than under a more apt statute that would permit treatment outside of prison, the development of a useful life for the defendant, and huge cost savings for taxpayers.  In light of the statutory minimum, there is nothing this court can do to ease the injustice of the sentence imposed.

This decision reminds me of Judge Gleeson's decision in United States v. Vasquez, in which he criticized not only the mandatory minimum sentencing scheme but also the U.S. Attorney's charging decision.

United States v. Hernandez, No. 09-CR-703 (JBW), 2010 WL 2522417 (E.D.N.Y. May 28, 2010)

Hernandez pled guilty to one count of having received images captured in a computer screenshot of child pornography, for which he faced an advisory Guidelines range of imprisonment of between 97 and 121 months.  He was sentenced to a 5 years imprisonment (the mandatory minimum).  Why?  

A sentence of 5 years' imprisonment is unnecessarily cruel in the circumstances.  The sentence overstates the seriousness of the crime; it is more than necessary to serve the purpose of sentencing.  Prison will only harm the defendant and will do nothing to protect society.  The defendant requires treatment and supervision outside of prison.

. . . .

The case constitutes a tragedy resulting from a mandatory minimum and the decision of the U.S. Attorney to charge the defendant for receipt of child pornography, rather than under a more apt statute that would permit treatment outside of prison, the development of a useful life for the defendant, and huge cost savings for taxpayers.  In light of the statutory minimum, there is nothing this court can do to ease the injustice of the sentence imposed.

This decision reminds me of Judge Gleeson's decision in United States v. Vasquez, in which he criticized not only the mandatory minimum sentencing scheme but also the U.S. Attorney's charging decision.

Offense Level 7 (0 to 6 Months) Results In 6 Month Sentence

United States v. Diaz, No. 10-CR-170 (JBW), 2010 WL 2540552 (E.D.N.Y. June 2, 2010)

Diaz pled guilty to one count of wire fraud, for which he faced an advisory Guidelines range of imprisonment of between 0 and 6 months.  Surprisingly, he was sentenced to 6 months in prison.  Why?  

Defendant's offenses was a serious betrayal of public trust. Tests of the kind administered by defendant must be accurate to ensure the soundness of construction and the safety of the public. An incarceratory sentence is warranted. The court has the power to go above the guidelines range in sentencing this type of offense, but a sentence within the guidelines is sufficient in light of defendant's good work history, his intelligence, his efforts to advance himself through education, the work he has done to support his family, and his close relationships with his daughters and granddaughters.

United States v. Diaz, No. 10-CR-170 (JBW), 2010 WL 2540552 (E.D.N.Y. June 2, 2010)

Diaz pled guilty to one count of wire fraud, for which he faced an advisory Guidelines range of imprisonment of between 0 and 6 months.  Surprisingly, he was sentenced to 6 months in prison.  Why?  

Defendant's offenses was a serious betrayal of public trust. Tests of the kind administered by defendant must be accurate to ensure the soundness of construction and the safety of the public. An incarceratory sentence is warranted. The court has the power to go above the guidelines range in sentencing this type of offense, but a sentence within the guidelines is sufficient in light of defendant's good work history, his intelligence, his efforts to advance himself through education, the work he has done to support his family, and his close relationships with his daughters and granddaughters.

Aberrational Conduct

United States v. Ortega, No. 09-CR-742-01 (JBW), 2010 WL 2541364 (E.D.N.Y. June 17, 2010)

Ortega pled guilty to having imported cocaine into the United States, for which he faced an advisory Guidelines range of imprisonment of between 30 and 37 months.  He was sentenced to a year-and-a-year in prison.   Why?  

This is a very serious offense involving the importation of drugs. Drugs are responsible for the destruction of many lives, especially those of young people. An incarceratory sentence is warranted. The defendant seems to be an individual of good character, in light of his supportive family and work history. The defendant's conduct seems to be aberrational, because at the time of the offense, he was under significant financial stress.

The Remarkable Impact Of A Full Sentencing Presentation

United States v. Gayle, No. 09-CR-35S (JBW), 2010 WL 2540488 (E.D.N.Y. June 17, 2010)

Gayle pled guilty to having conspired to commit wire fraud, for which she faced an advisory Guidelines range of imprisonment of between 37 and 46 months.  She was sentenced to five years probation.   Why?  

The offense of mortgage fraud is a serious one.  Defendant has a remarkable history of community service.  She has worked a number of jobs simultaneously.  Her family relationships are strong, and she has been a model to many people.  Had she had a proper start in her career, she probably would have been an excellent attorney who could have helped many people.  She is the primary source of support, both financial and psychological, for her young child.

This seems to me to be a case in which a defense attorney did an excellent job of rounding up all of the 3553-type facts for a sentencing hearing, and presenting same to the Court.  And the sum of all those facts resulted in good result -- no jail time.

United States v. Gayle, No. 09-CR-35S (JBW), 2010 WL 2540488 (E.D.N.Y. June 17, 2010)

Gayle pled guilty to having conspired to commit wire fraud, for which she faced an advisory Guidelines range of imprisonment of between 37 and 46 months.  She was sentenced to five years probation.   Why?  

The offense of mortgage fraud is a serious one.  Defendant has a remarkable history of community service.  She has worked a number of jobs simultaneously.  Her family relationships are strong, and she has been a model to many people.  Had she had a proper start in her career, she probably would have been an excellent attorney who could have helped many people.  She is the primary source of support, both financial and psychological, for her young child.

This seems to me to be a case in which a defense attorney did an excellent job of rounding up all of the 3553-type facts for a sentencing hearing, and presenting same to the Court.  And the sum of all those facts resulted in good result -- no jail time.