Monday, March 19, 2007

Possible Error in NY State Certificate of Disposition Triggers Remand for Resentencing

United States v. Green, Docket No. 05-3830-cr (2d. Cir. March 13, 2007) (Kearse, Sotomayor, Parker). Here, the circuit accepted a defendant's claim that the government might not have properly proven a recidivism enhancement - the six-level bump for having a prior drug trafficking conviction under U.S.S.G. § 2K2.1(a)(4)(A) .

In 1996, Michael Green was convicted of attempted criminal possession of a controlled substance in the third degree under N.Y. Penal Law §§ 110.00 & 220.16 (McKinney 1987). Section 220.16, the drug statute (§ 110.00 is the attempt statute), has multiple subsections; pertinent here are Subsection 1, which makes it a crime to possess a "narcotic drug with intent to sell it" and Subsection 12, which makes it a crime to possess more than one-half ounce of a narcotic drug. Subsection 1 triggers the enhancement under 2K2.1(a)(4)(A), because it involves the intent to distribute, but Subsection 12 does not. Green had pled guilty under an indictment that described conduct that would trigger Subsection 1, but there was no contemporaneous record describing which subsection he actually pled to. The committment order simply described the offense as "ATT CPCS 3." A Certificate of Disposition generated in 2004 specified Subsection 1 but Green argued both that the certificate might not be accurate and that, under Shepard v. United States, 433 U.S. 13 (2005), the district court could not consider it at all. The district court rejected both arguments and imposed the enhancement.

The court of appeals disagreed with Green's second argument. It noted that Shepard permits inquiries into the nature of a prior conviction by reference to charging document, plea agreement or colloquy, or "some comparable judicial record of this information." A New York State Certificate of Disposition satisfies this last clause.

However, the court found merit in Green's complaint as to the possible inaccuracy of the certificate. It noted that while such certificates are presumptive evidence of the facts they contain, the presumption is rebuttable. Significantly, the court described litigation in a state case, People v. Jamal Green (the opinion does not indicate whether Jamal Green and Michael Green are related), that revealed that if no subsection was entered into the computer at the time the defendant pled guilty, the state's computers were automatically programmed to to indicate Subsection 1 when a subsequent certificate of disposition was produced.

Thus, here, the reference to Subsection 1 in Michael Green's Certificate of Disposition could have been the result of this "default mode" during the "recording, inputting, or accessing" stages of the state's record-keeping. If this occurred, "then the reference to [Subsection 1] ... could not properly be taken at face value." As a result, the court remanded the case to the district court for further proceedings, placing squarely on the government the burden of proving that the reference to Subsection 1 in the certificate was accurate, and not merely included by default.

This opinion is extremely important; far more than it might seem at first blush. There are many guideline recidivism enhancements that require proof that a prior conviction was of a particular type, and some of these enhancements are enormous, such as the "career offender" provision and the 16-level bump in § 2L1.2(b)(1)(A). The Green decisions (both this one and the state litigation alluded to by the court) show that indications on a rap sheet or other criminal history record of a conviction under any Subsection 1 might well be a default entry that is not provably accurate. Thus, in any case where this makes a difference, defense counsel should always demand that the government prove that the reference is accurate, and not a default. If the government cannot, then the defendant will avoid a major sentencing enhancement.

Thursday, March 15, 2007

At Long Last, Circuit Finds Above-Guideline Sentence Unreasonable

United States v. Siindima, Docket No. 06-2245-cr (2d Cir. March 5, 2007)(Sack, Katzmann, Parker). It has long seemed as if reasonableness review in the Second Circuit was a one-way street permantently running in the wrong direction. Bucking the trend, at last, is Sindima. Here, the Court found that a 36-month probation violation sentence was substantively unreasonable, where the guideline sentencing range was 4 to 10 months.

Sindima's saga began in 2003, when he was sentenced to three years' probation on what appears to have been a $9,000 mail fraud. Although both the district court and the appellate court referred to this sentence as a "break," it in fact was a guideline sentence, not a variance, since the guideline sentencing range was 0 to 6 months' imprisonment.

About two years into his term of probation, Sindima engaged in an elaborate check-kiting scheme, for which he was arrested by local authorities, but never prosecuted. Despite the dismissal of those charges, the government filed a violaton petition and, after an evidentiary hearing, the court found him guilty. At an initial sentencing conference, the court indicated that it was considering an upward variance to the statutory maximum of 60 months' imprisonment, although the recommended guideline range was 4 to 10 months' imprisonment. This conference was not transcribed, so there is no record of the court's stated reasons, if any, for a variance.

A few months later, the court sentenced Sindima to 36 months' imprisonment, rejecting both sides' request for a sentence within the guideline range. The court's reason for the sentence was that the defendant had engaged in "egregious conduct" while on probation - a "calculated pattern of fraudulent activity on a repeated basis" that required a lengthy sentence to "deter the defendant from future acts of fraud." The court also accepted mitigating information about Sindima, however - his continued education and good works while on probation - and noted that these were the reasons why it was not imposing the 60-month maximum sentence it had previously contemplated.

On appeal, the circuit reaffirmed its basic approach to reasonableness review, which focuses on the totality of the record. Rather than requiring the reason for the sentence to be more compelling the farther the sentence deviates from the advisory range (citing Ratoballi), the focus is on whether the district court's stated reasons can justify the sentence it imposed, particularly when the sentence is "marginal." Here, the 36-month sentence was clearly "marginal"; 260 percent greater than the 10-month guideline maximum. The court of appeals accordingly found fault with both aspects of the lower court's reasoning.

First, the court found that the stated reasons could not support the sentence. Because this was a sentence on a probation violation, the sentence was supposed to punish the defendant primarily for the breach of trust inherent in that violation; the guidelines instruct that the seriousness of the conduct itself is to be considered only to a limited extent. Here, both of those factors were included in the sentencing commission's recommendation of a 4 to10 month sentence, thus the court's exclusive reliance on the defendant's criminal conduct, a factor "for which the guidelines range was designed to account," could not support a sentence nearly three times greater that the guideline maximum.

The court of appeals was also concerned about the way the district court considered Sindima's personal characteristics. The lower court identified them as reasons not to follow its initial inclination to impose the statutory maximum. But, as the appellate court observed, the "proper starting point" for that analysis should have been the guideline range, and not the statutory maximum.

In the end, the court held that the "present record" did not present sufficiently compelling reasons to support the sentence imposed. It remanded the case for resentencing, and urged the court to provide an adequate statement of reasons, both orally and in the written judgment (which it completely failed to do the first time) to support whatever sentence it selects. The court also, unusually, urged the district court to act within sixty days, presumably because Sindima has been in custody for a long time already.

In the end, while this decision is heartwarming, it is also, almost certainly anomalous. Its reasoning is so specifically tied to the particular issues surrounding violation sentences that it is unlikely to be of much help in cases involving appeals from the original sentence.

Monday, March 12, 2007

Sentence Based on District Court's Desire to Deter Others from Defendant's Ethnic Community Vacated

United States v. Kaba, Docket No. 05-3813-cr (2d Cir. Mar. 8, 2007) (Walker, Sack, Wesley): In this case, the government urged, in support of the proposed sentence, that the defendant came from a tightly-knit West African community, and that a stiff sentence would deter her countrymen here and elsewhere in the world from engaging in drug crimes. The district court essentially adopted this rationale for its sentence. It noted initially, and sensibly, that general deterrence was rarely a big factor in setting a sentence, but went on to adopt the government’s notion that in this case, because of the defendant’s origins, its sentence would serve to deter those of her nationality. The defendant appealed, arguing that it was impermissible to base her sentence on her national origin, and the Circuit agreed.

The Circuit found the case indistinguishable from United States v. Leung, 40 F.3d 577 (2d Cir. 1994), in which the sentencing court had also stated that its intent was to deter members of the defendant’s Asian community. The Court adhered to the rule it had stated in Leung, that while it was permissible for a court to mention the defendant’s race or nationality, it was erroneous to base the sentence on that factor. Here it found that the district court had done the latter. It was permissible for the court to consider the defendant’s life of deprivation and abuse in her homeland in mitigation, as the defense suggested, but not to base the sentence on her "identification with the West African community."

In addition, also following Leung, the court found the error reversible despite the absence of a defense objection and found that it was necessary to remand for resentencing before a different judge. The Circuit did this, although it found that there was no evidence of actual bias on the district court’s part. It followed Leung’s holding that the possible appearance of injustice required that a new judge be assigned. "If the same judge were to give the same or a higher sentence on remand," the Circuit wrote, "it would be difficult to avoid the impression that he or she was continuing to base the defendant's sentence on the defendant's national origin, at least to some extent." The Circuit treated Leung as having established "a prophylactic rule meant to assure [that] groups distinguished by their religion, race, national origin or the like ... need not fear that one of their number is being treated adversely because of his or her membership in that group," and thus that it was the "better practice" to remand to a different judge.

(By David Lewis)

Sunday, March 04, 2007

Statute Prohibiting Forgery of Judicial Signature or Seal Does Not Require Proof of Intent to Defraud

United States v. Reich, Docket No. 06-1445-cr (2d Cir. Mar. 2, 2007) (Kearse, Sotomayor, Koeltl): This opinion principally holds that 18 U.S.C. § 505, which makes it a crime to "forge[] the signature of any judge ... of any court of the United States ... or forge[] or counterfeit[] the seal of any such court . . . " does not require proof of an intent to defraud. This holding aligns the Second Circuit with the Tenth, see United States v. Cowan, 116 F.3d 1360 (10th Cir. 1997), and against the Sixth, see Levinson v. United States, 47 F.2d 470 (6th Cir. 1931). The Circuit's lengthy exegesis of why this is so, see Op. 13-18, is interesting for those who care about this issue.

The opinion also unsurprisingly holds, though technically as a matter of first impression in this Circuit, that the particular version of the obstruction law embodied in 18 U.S.C. § 1512(c)(2) -- punishing anyone who "corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so" -- includes a "nexus" requirement. That is, the defendant's allegedly obstructive act must "have a relationship in time, causation, or logic with the judicial proceedings; in other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice." Op. 10-11 (quoting United States v. Aguilar, 515 U.S. 593, 599 (1995)).

Saturday, March 03, 2007

Standard Appellate Waiver Does Not Bar Appeal of District Court's Decision re Concurrency

United States v. Stearns, Docket No. 05-2550-cr (2d Cir. Mar. 2, 2007) (Calabresi, Parker, Hall) (per curiam): This short opinion principally confirms, as a general matter, that appellate waivers must be narrowly construed (and in the defendant's favor) and, more specifically, that a standard appellate waiver (wherein the defendant "waives the right to appeal ... any sentence imposed by the Court which is the same as or less than" a specific number of months or years) does not bar an appellate challenge to the district court's decision to run the federal sentence only partially concurrent to an undischarged state sentence. Op. 4-5. The Circuit had previously held the same in United States v. Williams, 260 F.3d 160, 164-65 (2d Cir. 2001), and United States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000).

Moreover, for purposes of determining the scope of the appellate waiver, it did not matter that the district court told the defendant during the Rule 11 colloquy that it had the authority to impose a concurrent, partially concurrent, or consecutive sentence. As the Circuit explains,"construing the agreement narrowly and in Stearns' favor, [as we must], we believe that merely acknowledging the existence of that authority is not sufficient to constitute a waiver of the right to appeal the manner in which it has been exercised." Op. 5.

Of course, this is only a pyrrhic victory for Mr. Stearns. The Circuit -- no surprise -- concludes that the district court did not abuse its discretion to impose a partially concurrent sentence. Op. 4-5.

Thursday, March 01, 2007

Yet Another Time-Warp Opinion

United States v. Capanelli, Docket No. 05-3056-cr (2d Cir. Mar. 1, 2007) (Jacobs, Sack, Oberdorfer) (per curiam): This opinion follows the Rattoballi line of cases, which emphasize the continuing centrality of the Guidelines in sentencing despite Booker. The panel rejects Capanelli's claim that his sentence must be vacated as procedurally unreasonable because the district court "gave complete deference to the guidelines" at sentencing. Op. 4. Among other things, the district judge, while repeating the "of course the Guidelines are now advisory" mantra, stated that the Guidelines should be "given significant and substantial deference" at sentencing.

No problem!, this panel says, because the Guidelines range "'should serve as a 'benchmark or a point of reference or departure' for a sentencing court," (emphasis in original) and because

"A sentencing judge's decision to place special weight on the recommended guideline range will often be appropriate, because the Sentencing Guidelines reflect the considered judgment of the Sentencing Commission, are the only integration of the multiple [§ 3553(a)] factors and, with important exceptions, . . . were based upon the actual sentences of many judges."

Op. 5 (citations omitted). Let us hope, once more, that the Big Court in DC rescues us from such nonsense in Rita / Claiborne.

The opinion goes on to affirm a 5-level brandishing enhancement under § 2B3.1(b)(2)(C) of the Guidelines, describing in detail the standard for conspiratorial liability under the Guidelines. Essentially, the court must find that the "intended action [here, the brandishing of a firearm during a planned robbery] must be part of the conspiratorial plan [that the defendant generally agreed to join] for the enhancement to be imposed." Op. 11. This requires a greater showing than that required under Pinkerton (defendant liable so long as the act is a reasonably foreseeable one in furtherance of the conspiracy, even if not part of the "intended plan" to which the defendant agreed), but a court need not find that the defendant himself had a specific intent regarding the brandishing of the gun to apply the enhancement. Op. 9-11.