Sunday, February 11, 2007

Circuit Once Again Shoots Down Lenient Non-Guideline Sentence

United States v. Wills, Docket No. 06-0115-crt (2d Cir. Feb. 5, 2007) (Feinberg, Cabranes, Sack): It's an all-too-familiar occurrence these days, and has happened again. This opinion finds (surprise!) a below-guideline sentence to be unreasonable. Remarkably, though, the court did not take on the government's claim that the sentence, which was ten years below the advisory minimum, was substantively unreasonable. Rather, the court focused on the district court's consideration of two statutory factors, and found that the sentence was procedurally unreasonable.

First on the court's radar screen was the district court's conclusion that, since the defendant would be deported immediately after serving his sentence, he presented a low risk of recidivism, under 18 U.S.C. § 3553(a)(2)(C). The circuit has, in a series of post-Booker opinions, taken a dim view of categorical deviations from the guidelines. So it is hardly surprising that it rejected the distirct court's reasoning. The appellate court noted first that it was not necessarily true that the defendant's deportation would stop him from recidivating. He could commit crimes against Americans abroad, ship drugs here from home, or illegally reenter. The court also noted that since something like 37% of federal defendants are not U.S. citizens, the district court "flout[ed] the [statutory] goal of individualized justice."

Remarkably, however, the court did not compeltely shut this door. It held that a district court "can consider deportation [as a ground for a lower sentence] when [it] identifies, with some particularity, why a specific defendant is certain to be deported and why deportation, in light of that defendant's individual circumstances, will serve to protect the public." Huh? Isn't that essentially what the district court did here? Why would the circuit support a lower sentence in some future case based on precisely the kind of speculation that it rejected in this one? It seems that it's all about individualization. Apparently, as long as the sentencing court ties its decision to something specific about the particular defendant, and not to some general feature that would apply to a large number of defendants, the sentence will be reasonable. Well, at least procedurally reasonable.

The second issue here had to do with sentencing disparities among co-defendants. Those of Wills' co-defendants who were successfully prosecuted all pled guilty and cooperated with the government, and the most severe sentence among them was 96 months' imprisonment. Wills alone went to trial, was ultimately found to be an organizer or leader, and faced a guideline minimum of 292 months, despite the fact that he had no prior convictions. The district court held that the huge disparity between this sentence and those of the co-defendants was "not appropriate." This was its second reason for imposing a non-guideline sentence.

The circuit has previously held that the statute does not prohibit considering differences among co-defendants when imposing a sentence, and it reaffirmed that position here. The problem in this case was that the sentencing court did not make the right kind of record. The appellate court complained that the district judge "provided no assessment of how Wills was similarly situated to his co-defendants and why that would matter in light of the differences." It also pointed out that the court must also at least pay lip service to national disparities when addressing intra-case disparities.

The curiously worded remand seems intended to implement the court's concern with individualized sentencing, and does not rule out the re-imposition of the same sentence on the second round. It instructs the district court to sentence Wills without regard to his future deportation "unless the court finds, with some particularly, that WIlls is certain to be deported and that deportation ... will serve to protect the public." As for disparities, the instruction is to consider "why any putatitve similarites between Wills and his co-defendants ... warrant a narrow gap in sentences," and to be "mindful" of of the goal of avoiding national disparities.

So what's the lesson of Wills? It is this: What the district court says is more important than what it does. When preparing for a sentencing with these sorts of issues, defense counsel needs to give the district court the ammunition it needs to say the right thing. Point out that the defendant's plan for readjusting to life in his home country will minimize the risk of his reentering or engaging in crimes against Americans from there. WIth respect to co-defendants who received lenient treatment, make sure to make their conduct look as bad as, or worse than, the client's.

These days, a record that includes individualized findings about your particular defendant will be key in defending a lenient non-guideline sentence on appeal.

Wednesday, February 07, 2007

No Error in Indictment's Failure to Allege Materiality in Bank Fraud Prosecution

United States v. Dayan, Docket Nos. 05-3443-cr (L), 05-4199-cr (CON) (2d Cir. Feb. 5, 2007) (Kearse, Winter, Walker): This short opinion rejects Dayan's claim that his indictment, charging him with conspiracy to commit bank fraud and several substantive counts of bank fraud, was defective because it failed to state that his frauds were "material," an element of the offense. In Neder v. United States, 527 U.S. 1, 25 (1999), the Supreme Court ruled that although the bank fraud statute, 18 U.S.C. § 1344, does not contain the word "material," materiality was nonetheless an element of the offense "because the word fraud incorporated fraud's 'well-settled meaning at common law' -- a 'misrepresentation or concealment of material fact.'" Op. 5 (quoting Neder) (emphasis in original). Using the same reasoning, the Circuit rejects Dayan's claim: "If materiality can be inferred to be an element of criminal fraud because of the well-understood meaning of 'fraud' as a legal term, an allegation of materiality can be inferred from the use of the word 'fraud' in the indictment." Op. 5-6. And since it is "commonly understood among both lawyers and laypersons" that "materiality of the misleading conduct or speech [at issue] is [] at the heart of the word 'fraud,'" there is no error in the indictment's failure to allege materiality. Op. 6.

District Court's Task Is Not to Impose a "Reasonable" Sentence

United States v. Williams, Docket Nos. 05-4928-cr (L) & 05-4956-cr (2d Cir. Jan. 30, 2007) (Winter, Cabranes, Korman): The only item worth noting in this opinion, in which both defendants appeal the district court's refusal to resentence them following a Crosby remand, is the Circuit's reminder to district judges that their task at sentencing is not to impose a "reasonable" sentence, but rather a sentence that (1) takes into account all the § 3553(a) factors, and (2) is no greater than necessary to promote the ends of sentencing. Op. 12. As the Court states in a quotable line, "district courts are to impose sentences pursuant to the requirements of § 3553(a) -- including the requirements of § 3553(a)'s parsimony clause -- while appellate courts are to review the sentences actually imposed by district courts for reasonableness." Id. Reminding district courts of this distinction may not make a difference in most cases, but it can't hurt.

Here, the district court refused to resentence the defendants after concluding that it would impose the same sentences under the advisory Guidelines regime established in Booker. However, the court then mistakenly described its sentencing duty as "impos[ing] a reasonable sentence after considering all the factors listed in § 3553(a)." Op. 6. The Circuit says tsk-tsk to this imprecise oration -- quoting with approval a 6th Circuit case explaining that "a district court's job is not to impose a 'reasonable' sentence . . . but . . . a 'sentence sufficient but not greater than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task." Op. 12 (emphasis in original) (quoting United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006)).

The Court nonetheless affirms the defendants' sentences, concluding that it was clear from the record that the district court had in fact considered all the § 3553(a) factors, including the parsimony command, and had stated unequivocally that it would impose the same sentence under the advisory Guidelines regime. Op. 12-13. Because "there is no indication in the record that the District Court's reference to its duty to impose a sentence that was 'reasonable' affected in any way its assessment of whether resentencing [] was warranted," the Court concludes, "a second remand pursuant to Crosby . . . would not achieve any different result." Op. 13.