Sunday, February 22, 2009

Dont Speak!

United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ)

Before Gutierrez was sentenced, his counsel filed a lengthy sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government’s written response sought a guideline sentence. At sentencing, the court did not address the attorneys at all. It gave Gutierrez an opportunity to speak, indicated that it had considered the § 3553(a) factors, then imposed a sentence at the bottom of the guideline range.

Defense counsel objected, pointing out that the court had not considered the issues raised in his sentencing memorandum, and that the court had imposed a sentence without giving counsel a chance to speak. At counsel’s request, the court vacated the sentence. Counsel then argued the issues in the sentencing memorandum, and the government briefly responded, again asserting that a guideline sentence would be appropriate. Counsel responded by pointing out that neither the government nor the Probation Department had much credibility on that point, since they argued that a guideline sentence is the correct one in every case, which counsel argued was untrue. In response, the court told defense counsel, in essence, to shut up. It complained that he did not “respect the people who are working here” and ordered him to be “quiet” from then on. The court then reinstated the prior sentence, still without addressing any of counsel’s arguments.

The circuit affirmed. It agreed that under Rule 32 the sentencing court is required to give defense counsel an opportunity to speak. But here, the court followed the correct procedure. It vacated the prior sentence, and permitted defense counsel to make an argument. The court also rejected the claim that the district court did not give counsel a “meaningful” opportunity to be heard.


This case is maddening. Defense counsel made several specific arguments about why a below-guideline sentence should be imposed. And, even though the district court sentenced the defendant twice, it never addressed any of them, and the circuit was not bothered by this at all. It simply cannot be right that, as long as the sentencing court mentions 3553(a), it does not have to rule on the arguments raised by the defense.

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