Thursday, November 29, 2007

Have You Hugged A Sex Offender Lately?

United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)

United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)

The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges.

Juwa pled guilty to possessing child pornography, and faced a 24 to 30 month range. At the time of his federal sentencing he was charged in state court with sexually abusing his nephew on multiple occasions, and had worked out a plea agreement under which he would plead to a single count in exchange for a 5-year sentence that would be concurrent to his federal sentence.

At his federal sentencing, however, the district court went way above the agreed-upon range “based on the information before” it about the state case. The court knew that Juwa had not yet pled guilty in the state case but, taking that case into account, sentenced him to 90 months’ imprisonment. The court described this as an upward departure and also imposed it, in the alternative, as a non-guideline sentence.

At times during the sentencing the district judge seemed to recognize that Juwa had agreed to plead to only one count in the state, but the judge also made statements suggesting a finding that Juwa had acted on multiple occasions. In addition, the written judgment noted that Juwa would be pleading guilty in the state to “molesting his nephew for 3 years.”

The circuit reversed. It concluded, at least on this record, that it would have been “improper” for the district court to base the federal sentence on charged conduct alone, a violation of the due process right to be sentenced based on accurate information. Here, apart from the indictment in the state case, there was nothing to establish that Juwa committed any acts other than the one that he had agreed to plead to. The indictment alone could not establish any other facts, even by a preponderance of the evidence. “[A]t sentencing, an indictment or charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed. Some additional information, whether testimonial or documentary, is needed to provide evidentiary support.”

Here, because there was “uncertainty both from the sentencing transcript and the written order” about whether, and to what extent, the sentencing enhancement was based on the court’s assumption that Juwa had engaged in multiple instances of abuse, it remanded the case for clarification.

In Baker, a summary order, the court, remarkably, vacated a within-guideline sentence as unreasonable, an apparent first in this district.

Baker faced a 108-month guideline minimum for transporting child pornography, and that was the sentence he got. He had argued strenuously for a below-guideline sentence, but the district court made it clear “from the outset that it would only consider a sentence within” the range. It did not say why a 9-year guideline sentence was appropriate, nor did it say why a the 5-year mandatory minimum sentence was not. Moreover, the court did not specifically respond to any of Baker’s arguments for a lower sentence, arguments that the circuit found so compelling that the district court, “at the very least,” should have explained why it was rejecting as them as the basis for a non-guideline sentence. Most significantly, the also court concluded that the district court’s statement that it had considered all of the 3553(a) factors was not enough, because it was obvious that the court really had not done so.

The mystery of Baker is whether the court viewed the sentence as substantively unreasonable, or procedurally unreasonable, or both. The disposition of the case - remanding to the district court to provide reasons for the sentence - suggests that this was a procedural unreasonableness case. But the cases the court cites as the basis for the remand, Sindima, and Rattoballi, are substantive unreasonableness cases. Curious, aint’ it?

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