Tuesday, April 19, 2005

Some Choice Dicta about the Reasonableness Standard

United States v. Susan Godding, Docket No. 04-3643 (2d Cir. April 19, 2005) (Oakes, Kearse, Sack) (per curiam): Many of us are waiting for a definitive say from the Circuit about the meaning of Booker's reasonableness standard of review, beyond the generic statements in Crosby and Fleming that reasonableness is a "flexible" concept and that the Circuit will "exhibit restraint, not micromanagement" in performing this appellate function. This odd little case is, unfortunately, not that definitive statement. Nonetheless, the Circuit -- while ultimately simply remanding for a Crosby determination by the district court -- suggests that the sentence imposed, as well as some remarks made by the district court at the original sentencing, were unreasonable.

The opinion tells us very little about the offense or the defendant. Ms. Godding worked for a bank and, over a 5-year period, managed to embezzle over $366,000 from her employer. Although her Guidelines range was 24 to 30 months, the district court downwardly departed (pre-Booker) to a sentence of one day's imprisonment, followed by 5 years' supervised release (with the special condition that the first six months be spent in home detention). The opinion does not discuss what grounds the district court relied upon in departing.

The Government appealed, initially arguing that nothing in the record justified a departure. After Booker was decided, however, the Government moved for a Crosby remand.

The Circuit granted that motion. In so doing, however, the Court expressed strong disapproval of some remarks made by the district court at the sentencing. Specifically, while stating that it was not relying on this as a basis for departure, the district court criticized the victim bank for having so lax a system of security and internal control as to allow the defendant to commit her crime over a 5 year period. As the Circuit put it, "[w]hile the court noted that it was not considering the bank's failure in this regard as a factor relevant to a departure, and that it did not consider it a factor in sentencing, it expressed its view that the significance of the pilferage could be attributed to the bank's failure to act sooner." Op. at 5.

The Circuit was "most troubled" by this statement. Id. It warned "that consideration of such a factor and the conclusion that it, and not the defendant's volitional acts, rendered the sum embezzled in this case more significant than it otherwise would have been, would lead us to question the reasonableness of a non-guideline sentence." Id.

This critique was odd enough, given that the district court explicitly said that its criticism of the bank was not in any way a factor in its sentencing decision. (And doesn't the Circuit always take such statements by the district court at face value, no matter how ludicrous?) But the Circuit did not stop there, and went on to criticize the sentence simply for its brevity. As it stated, "Furthermore, we are more broadly concerned that the brevity of the term of imprisonment imposed by this sentence does not reflect the magnitude of the theft of nearly $366,000 over a five-year period." Op. at 5.

It is hard to draw a proper lesson from this decision -- other than that district courts should watch what they say. The interesting parts of the opinion are all dicta, and the opinion does not give us enough facts about the defendant or her crime to evaluate whether the sentence was appropriate.

A potentially troubling aspect of the opinion, though, is that the district court actually had a good point: Too often, the Guidelines' tunnel-vision focus on quantity (be it loss amount or drug weight) as the determining factor in sentencing is irrational. The district judge rightly criticized such a sentencing philosophy as too "simplistic," and correctly noted that it was "fallacious" to equate quantity with culpability. Op. at 4. This is the same criticism made by other judges and academics, including Judge Lynch in his very fine opinion in Emmenegger, 329 F. Supp.2d 416 (S.D.N.Y. 2004). As Judge Lynch put it in a case involving perhaps very similar facts as this one, the Guidelines often place

"undue weight on the amount of loss involved in the fraud. . . . To a considerable extent, the amount of loss caused by [a] crime is a kind of accident, depending as much on the diligence of the victim's security procedures as on Emmenegger's cupidity. Had Emmeenegger been caught sooner, he would have stolen less money; had he not been caught until later, he would surely have stolen more. Nothing about the offense indicates that Emmenegger set out to steal $300,000, no more and no less. Rather, he took advantage of his position to steal various amounts from time to time. The rough magnitude of the theft is relevant to sentencing, but the particular amount stolen is not as significant."

329 F. Supp.2d at 427 (emphasis added). And reading between the lines of Godding, it seems that this is exactly what the district judge was trying to say.

Of course, the Circuit did not directly attack such a criticism of the Guidelines; it only, technically, criticized the district court's "blame-the-victim" approach. But it is worrisome nonetheless.


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