SCOTUS Rules on Reasonableness of Federal Sentencing Guidelines

Last month, the Supreme Court ruled in Rita v. United States, No. 06-5754, that sentences falling within the guidelines may be presumed “reasonable” by federal appeal courts reviewing the sentences. ^[1] Justice Breyer wrote for the majority, stating that the ruling “simply recognizes the real world circumstance that when the judge’s discretionary decision accords with the Commission’s view…it is probable that the sentence is reasonable.” ^[2]

There has been substantial uncertainty about the federal sentencing guidelines since 2005, when the Court ruled in Booker that the guidelines could be constitutional only if they were regarded as “advisory.” ^[3] Justice Breyer, a former member of the sentencing commission and an original author of the guidelines system, managed in Booker to keep the guidelines alive by deeming them no longer mandatory, but merely “advisory” and that federal appeal courts could still overturn “unreasonable” sentences. ^[4] This was despite the conclusion by some of the other justices that the guidelines were unconstitutional. ^[5]

In a 5-4 vote, the Court overruled the sentence in Booker because it violated the 6th amendment principle that a judge may not increase punishment on the basis of conduct (other than past convictions) not proved to the jury.^[6] Five of the justices--Stevens, Scalia, Souter, Thomas and Ginsburg--support a strong right to a jury trial on all sentencing factors. Their concurrences in Rita reflect the belief that the decision in Booker was entitled to respect as precedent. ^[7]

What does the Rita decision mean for criminal defendants on appeal? Although federal criminal defense lawyers had hoped the court would not endorse the presumption of reasonableness on appeal, Justice Breyer said the presumption was “not binding,” a point emphasized in a concurring opinion by Justices Stevens and Ginsburg. ^[8] In addition, while the Court said appellate courts could apply the presumption if they chose, it is not required. ^[9] The Court also reminded district judges that they remain free under Booker to impose sentences that depart from the guidelines as long as they explain their reasoning. ^[10]

Many federal criminal defense attorneys hoped that Rita would clear up the ambiguity regarding the guidelines. Even though the decision was 8-1, there were serious differences among the concurring justices indicating that guideline issues are still not completely clear.

Justice Souter, dissenting in Rita, said that a presumption of reasonableness for within guidelines sentences creates “gravitational pull” on judges, moving them toward reliance on the guidelines and making it unclear what was accomplished by declaring the guidelines advisory in the first place.^[11] Justices Scalia and Thomas, although concurring, refused to sign the opinion because Rita’s ruling “reintroduced the constitutional defect that Booker purported to eliminate” and that the Court had “broken its promise” to eliminate judicial fact-finding from sentencing. ^[12]

Federal criminal appellate attorneys will continue to argue on appeal that their client's sentences are unreasonable, disproportionate, and excessive or that proper sentencing findings were not made. President Bush, in his commutation of Scooter Libby’s sentence, stated that Mr. Libby "was handed a harsh sentence based in part on allegations never presented to the jury." ^[13] Mr. Libby was sentenced to serve 30 months for perjury and obstruction of justice. His sentence was within the federal guidelines, yet Libby’s sentence was called “excessive” by the President. In addition, several mitigating factors were presented, e.g., Mr. Libby was a first-time offender with years of exceptional public service, and that he had already suffered enough punishment. ^[14] The points the President used to defend the Libby commutation run counter to the points government prosecutors use every day in court in arguing that the sentences handed down to federal criminal defendants are “reasonable.” ^[15]

For its next term, the Court has accepted Gall v. United States, No. 06-7949, on appellate review of sentences that depart substantially from the guidelines range.

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[1] Linda Greenhouse, Justices Support Guidelines for Sentencing, The New York Times, June 22, 2007.
[2] Charles Lane, Sentencing Guidelines ‘Reasonable,’ Justices Rule, Washington Post, June 22, 2007.
[3] See Greenhouse, supra note 1.
[4] Id.
[5] Id.
[6] Editorial, Standing by Sentencing Guidelines, Los Angeles Times, June 22, 2007.
[7] SeeLane, supra note 2.
[8] See Greenhouse, supra note 1.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Cynthia Tucker, Mr. Bush, Other Convicts Now Want You to Give Them the Libby Treatment, The Baltimore Sun, July 9, 2007.
[14] Id.
[15] Id.

Judge’s Role In Plea Overturns Sentence-Washington, D.C.

Although a district court judge may reject a plea agreement and express its reasons for doing so, Federal Rule of Criminal Procedure 11(e)(1) prohibits "all forms of judicial participation in or interference with the plea negotiation process." ^[1] The reasons for this bright line rule are clear. "First, it diminishes the possibility of judicial coercion of a guilty plea, regardless whether the coercion would actually result in an involuntary guilty plea. Second, the judge's involvement in the negotiations is apt to diminish the judge's impartiality. By encouraging a particular agreement, the judge may feel personally involved, and thus, resent the defendant's rejection of his advice. Third, the judge's participation creates a misleading impression of his role in the proceedings. The judge's role seems more like an advocate for the agreement than a neutral arbiter if he joins the negotiations." ^[2]

In a ruling last week by the U.S. Court of Appeals for the D.C. Circuit, a federal appeals court overturned a prison sentence of more than four years for money-laundering given to a local investment consultant, Kenneth C. Baker, and granted Mr. Baker a new trial.^[3] The appellate court's ruling stated that despite "good intentions," U.S. District Court Judge Emmett G. Sullivan committed an error in Baker's case that "reflects badly on the fundamental fairness of the judicial process." ^[4]

Judge Sullivan requested an update on plea talks and prosecutors told the judge that they were offering 21 to 27 months if Baker pleaded guilty to bilking his client of her $96,000 life savings.^[5] Judge Sullivan commented that he accepted a guilty plea months earlier from a man who embezzled about $100,000 from an employee pension plan and sentenced the man to one year and one day in prison and noted that "judges do try to be consistent." ^[6] "I would probably be just as consistent here," said Judge Sullivan. "I'm not going to do one thing in one case where the facts are similar and do something completely different here. I'm just not going to do it. I'm going to be consistent to the extent I can."^[7]

The next day, Baker pleaded guilty and four months later, at his sentencing in July, Baker explained his motivation to the judge. ^[8] "When I came in here on March 2 and fell on my sword, I was pretty much thinking in relation to a case that you had referenced prior to my making my guilty plea of an individual who, I think you said, he took a hundred and some odd thousand dollars and you gave him like a year and a day," Baker said. ^[9] However, Judge Sullivan sentenced Baker to 41 months in prison for federal charges followed by another 10 months on D.C.-related charges.^[10] The 51-month sentence was nearly twice the maximum sentence the government was offering for a guilty plea andBaker appealed the sentence, arguing that Judge Sullivan violated his rights by improperly taking part in plea talks. ^[11]

The appeals court concluded that Judge Sullivan "unilaterally initiated and engaged in a lengthy plea discussion with Baker. Baker had already forgone the government's offer, because he perceived the court had tacitly made him a better one." ^[12]

The appeals court ruling remanded the case back to U.S. District Court to a different judge. ^[13]

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[1] Fed. R. Crim. P. 11(e)(4) (2007).
[2] United States v. Daigle, 63 F.3d 346 (5th Cir. 1995).
[3] Judge’s Role in Plea Overturns Sentence, Jim McElhatton, The Washington Times, June 11, 2007.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.

Breach of Plea Agreement-New Mexico

Criminal defendants may choose to work out a plea agreement with the federal government rather than going to trial. In exchange for a guilty plea, the defendant may receive a shorter sentence than if he or she were to go to trial. Although the sentencing judge is not bound by the plea agreement, the judge will generally follow the government’s recommendations that the prosecutor presents at sentencing. Prosecutors do not need to present promised recommendations to the court with any particular degree of enthusiasm, but it is improper for the prosecutor to inject material reservations about the agreement to which the government has committed itself.

[1] In United States of America v. Thomas S. Cachucha, the prosecutor did just that. [2] Mr. Cachucha pleaded guilty to a charge of involuntary manslaughter under a plea agreement that anticipated a sentence of not more than 16 months' imprisonment.[3] (Mr. Cachucha was charged with a federal crime because the involuntary manslaughter occurred on an Indian Reservation.)At sentencing, however, the prosecutor expressed distress at such a short sentence and the district court sentenced him to 30 months' imprisonment.[4] Mr. Cachucha appealed his sentence to the 10th Circuit arguing that the government breached the plea agreement.

A plea agreement is treated like a contract between the government and the defendant. The court noted, “We apply general principles of contract law when interpreting a plea agreement.[5] We construe ambiguities against the government as the drafter of the document. [6] “It is well settled that we must interpret the agreement according to the defendant's reasonable understanding of its terms.” [7]

A plea agreement may be breached when “[t]he government's attorney ... [i]s not only an unpersuasive advocate for the plea agreement, but, in effect, argue[s] against it.” [8] The government agreed that it “promised to recommend that Cachucha receive a sentence within the advisory guideline range and stipulated to an adjusted-offense level of [12].” [9] In other words, it promised not to seek a higher offense level or an upward variance from the resulting Guidelines range, yet that is what the prosecutor did by complaining about the applicable Guidelines. [10] He stated that there were “problem[s]” with a Guidelines-based sentence, that such a sentence was “way too low” and “incredibly low,” and that the Guidelines did not “make sense to [him] as a professional prosecutor.” [11]

Mr. Cachucha was sentenced under the 2000 Federal Sentencing Guidelines which had a Guideline range of 10-16 months. But the prosecutor argued that if Mr. Cachucha were sentenced under the 2006 guidelines, his offense level would be substantially higher. He also argued that if Mr. Cachucha were sentenced under the New Mexico state statute for a similar offense he would have likely received 6-10 years in prison.

The appeals court found that “While it can be argued that the government stopped short of explicitly repudiating the agreement, Supreme Court precedent prohibits not only explicit repudiation of the government's assurances, but must in the interests of fairness be read to forbid end-runs around them.” [12]

The appeals court vacated the sentence and remanded the case for re-sentencing by a different judge. [13]

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^{[1] United States v. Mitchell, 136 F.3d 1192, 1193-94 (8th Cir.1998).
[2] United States v. Cachucha, WL 1219427 (10th Cir. 2007).
[3] Id.
[4] Id.
[5] See United States v. Brye, 146 F.3d 1207, 1210 (10th Cir.1998).
[6] Id.
[7] United States v. Scott, 469 F.3d 1335, 1338 (10th Cir.2006).
[8] United States v. Grandinetti, 564 F.2d 723, 727 (5th Cir.1977).
[9] Cachucha, WL 1219427.
[10] Id.
[11] Id.
[12] Id.
[13] Id.}

Public Corruption Conviction Overturned-Wisconsin

An appeals court ruled Friday that a state worker did not commit a crime by favoring a company with political ties to Gov. Jim Doyle for a travel contract. ^[1]The 7th Circuit Court of Appeals took the unusual step of ordering Georgia Thompson immediately freed from prison and acquitting her after hearing oral arguments April 5. ^[2] Thompson, 57, served four months of an 18-month sentence in an Illinois prison before she was freed; she will resume her job at the Department of Administration on Monday. ^[3]

“This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look” at the statutes, Chief Judge Easterbrook wrote. ^[4]

But he declined to criticize U.S. Attorney Steven Biskupic for bringing the case, saying the anti-corruption statutes she was charged under were written so broadly that prosecutors can in good faith bring charges when crimes did not occur. ^[5] Public Corruption encompasses a vast number of white collar wrongful acts, the primary goals of which are to receive, offer, or give, preferred treatment or performance in return for monies, gifts or favors. There are several offenses an individual may be charged with which concern bribery, extortion, government fraud, procurement fraud, kickbacks, and misuse of public authority.

For example under 18 U.S.C. § 201(b) it is a crime for a person to be a public official (former, current, or future) and directly or indirectly, "corruptly" demand, seek, receive, accept, or agree to receive or accept anything of value in exchange for being influenced in the performance of any official act. ^[6] The punishment is a fine, imprisonment for not more than fifteen years, or both. ^[7] That person may also be disqualified from holding any office of honor, trust, or profit under the United States.^[8]

Prosecutors contend Thompson steered a contract for state travel to Adelman Travel Group for political reasons to improve her job security and please her bosses. ^[9] Other members on a review panel favored another firm for the contract but Thompson took steps to ensure Adelman won, they say. ^[10]

Easterbrook said Thompson likely used political considerations to help Adelman win because it was the lowest bidder or because it was a Wisconsin company but neither motive amounts to a crime. ^[11]“The idea that it is a federal crime for any official in state or local government to take account of political considerations when deciding how to spend public money is preposterous,” Easterbrook wrote, joined by Judges William Bauer and Diane Wood. ^[12]

Thompson did not misapply funds because picking Adelman saved money and did not defraud the state, and she did not personally gain from helping Adelman, Easterbrook wrote. ^[13] A routine $1,000 raise she received is not enough to qualify as personal gain, he wrote. ^[14]“There is not so much as a whiff of a kickback or any similar impropriety,” the court said. ^[15]Easterbrook said the fraud statutes were too broad, allowing prosecutors to believe and public employees to deny “that a crime has occurred, and for both sides to act in good faith with support in the case law.” ^[16]

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[1] Appeals Court Says WI State Worker Did Not Commit a Crime, Associated Press via Winona Daily News, April 23, 2007.
[2] Id.
[3] Id.
[4] Id.
[5] Id
[6] 18 U.S.C. § 201(b) (2005).
[7] Id.
[8] Id.
[9] See Appeals, supra note 1.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.

Honest Services Conviction Overturned-Houston

A federal judge in Houston dismissed charges against former Enron Corp. energy trader Christopher Calger.^[1] Calger, a former executive in Enron's energy trading division, pleaded guilty in 2005 to inflating earnings through a deal with a partnership run by ex-finance chief Andrew Fastow.^[2]

In August, an appeals court overturned four Merrill Lynch & Co. bankers' Enron-related convictions for depriving Enron of their “honest services.” ^[3]

The appeals court said that the bankers acted in Enron's best interest and didn't personally profit. ^[4] “The appellate court looked at the circumstances and ruled this wasn't a crime,” Calger's lawyer, Philip Hilder, said of the convictions won on the “honest services” theory. ^[5]

Shortly after the U.S. 5th Circuit Court of Appeals threw out the convictions of the four Merrill bankers, Calger asked to withdraw his guilty plea. ^[6] Prosecutors agreed to Calger's request on March 30, and U.S. District Judge Lee Rosenthal dismissed the charges the same day, in an order made public today. ^[7]

U.S. District Judge Lynn Hughes, who accepted Calger's plea, “gave the government a very hard time'' at the hearing, said Hilder, who represented the former trader for the sentencing phase of his case. ^[8] “He said he didn't see how a crime was being committed, and he was barely persuaded by the government to accept the plea, after much debate.” ^[9]

The government pointed to the appellate decision in the Merrill bankers' case as its reason for agreeing to let Calger withdraw his plea. ^[10] In his motion to withdraw Calger's plea in September, Hilder argued that his client “was doing precisely what the executives at Enron wanted him to do.” ^[11]

Calger's conduct shouldn't be seen as a theft of honest services due Enron “because he was conducting himself in a manner that was fully disclosed to and encouraged by management and was for Enron's benefit,” Hilder wrote at the time. ^[12] The difficulty for the government in honest-services cases as here, is proving intent.

18 U.S.C. § 1346 states: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." ^[13]

Honest services fraud is usually prosecuted in conjunction with mail fraud or wire fraud charges and is often used in public corruption cases. The maximum statutory penalty for Theft of Honest Services Mail Fraud in violation of 18 U.S.C. §§ 1341, 1346, is 20 years and a fine of $250,000. ^[14]

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[1] Laura Brubaker Calkins, Former Enron Trader's Guilty Plea Tossed Out by Judge, April 2, 2007.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] 18 U.S.C. § 1341 (2005).
[14] Id.