What Are We Leaving on the Table at Sentencing? Examining the Sentencing Guidelines and the § 3553(a) Factors

1. What Are We Leaving on the Table at Sentencing? Examining the Sentencing Guidelines and the § 3553(a) Factors • Colin Stephens, Smith & Stephens • John Rhodes, Federal Defenders of Montana • Technical Support by Ken Michael, Federal Defenders of Montana

2. Alleyne v.UnitedStates, 133S.Ct. 2151,186L. Ed.2D314(June17,2013). Alleyneisbasicallyasimplesyllogism: Anyfact that, bylaw, increasesthepenaltyfora crime isan“element”that mustbesubmittedtothejuryandfoundbeyonda reasonabledoubt; Mandatoryminimumsentencesincreasethepenaltyforacrime; Ergo,anyfact that increasesthemandatoryminimum isan“element”thatmustbesubmittedtothejury.

3. Interestingly, Alleyne addressed a situation where there already was a mandatory minimum which was then increased by judicial fact finding. Does a fact which triggers a mandatory minimum in the first place also require submission to a jury? Yes. “Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime . . . .” “This reality demonstrates that the core crime and fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.”

4. The oral argument in Alleyne really did not address the factual minutia of the case. Rather, it addressed the grander question of what facts require submission to a jury. One of the phrases that reoccurred in the oral argument was whether the defendant has the right to have issues which would give rise to a more lenient sentence submitted to a jury. This contrasts with Blakely and Apprendi rulings regarding the submission of facts which trigger a more extreme sentence. It’s really the same argument from a different perspective. The Alleyne Court agreed.

5. It’s essentiallyadefendant’srighttohavethejurydecide this: versusthis:

6. Alleyneisnot(orhighlyunlikelytobe)retroactive.All courtshavedeniedapplyingretroactively. Basically, ifApprendiwasn’t retroactive, nowaywill Alleynebe. For aninterestingarticle ontheproblem withretroactiveapplicationofcertain SCOTUScases,checkoutthearticle “Gideon’sShadow”ontheSocialSciencesResearchNetwork.Availableat http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2248366

7. The fall-out from Alleynecouldbesignificantastherearea numberofbogusexceptionsandcarve-outstoa full applicationofApprendi. TheissueinAlleynewasonlyonesuchexception. Fineswasanotherissuethat theCourtdetermined requiredsubmissiontothejury duringthe last terminSouthernUnion. • The largest oftheseexceptionsistheprior convictionexception, i.e.,acasewherethemandatoryminimumsentenceistriggeredorincreasedduetothe presence ofapriorconviction,e.g.,851increases.

8. SCOTUS,especiallyJusticeThomas, seemstobe shiftingmoreandmore towarddeterminingthat anyissuewhichaffectsthe sentencein asignificantwaymustbesubmittedtothejury. • DecisionslikeSouthernUnionandAlleyneputdecisionslikeAlmendarez- Torreson theendangeredspecieslist. InAlmendarez-Torres, SCOTUSconcluded that theConstitutiondoesnot requiresubmissionofadefendant’sprior convictions toajury,inthat caseit wasthefact that thedefendant hadbeenpreviously deported. JusticeScalia disagreedandwroteanexcellentdissentinwhichhe refusedtodrawdistinctionsbetweenelementsofthecrimeand“sentencingfactors.”Almendarez-Torreswasa5-4split.Notably,JusticeThomaswasinthemajorityinAlmendarez-Torres.Later,JusticeThomaswouldthengoontojoin themajorityinApprendi. Inaconcurring opinion,JusticeThomasstatedthat he hadincorrectlyjoinedthemajorityinAlmendarez-Torres.(Iinterpret thistomean that JusticeScalia hadforgottentoturnhisblinker onpriortotheconferenceonAlmendarez-Torrez).

9. “Theexceptiontotrial byjuryforestablishing‘the fact ofapriorconviction’findsitsbasisnotintheConstitution,butinprecedentofthisCourt.Moreover, it haslongbeenclearthat amajorityofthisCourt now rejectsthat exception.”(Rangel-Reyesv.UnitedStates, 547U.S. 1200(2006)(Thomas., J. dissentingondenial ofcert.)).

10. SouthernUnionCo., 132S.Ct. 2344(2012).Criminal finesincreaseadefendant’smaximumpossiblesentence.Therefore, theSixthAmendmentreserves determinationsregardinganincreaseinfinetoajury. • SouthernUnionwaschargedandconvictedbyjuryofmultiplecountstheResourceConservationandRecoveryAct. • RCRAprovidesthat afineofnotmorethan$50,000perdayforeachviolation. Theissuecomesdowntoafactual findingofhowmanydaysandhowmany violations.Thosemustbedecidedbyajury.

11. CaseslikeSouthernUnionandAlleynedemonstrate theimportanceofnot forgetting abouttheConstitutionduringsentencing.It canbean importanttoolforeffective sentencingadvocacy.

12. Theyalsodemonstrate that weshouldkeeppushing, evenwhentheissuehasbeen decided.Ontheissueoftheprior-convictionexceptiontoApprendi, that issue seemstoberipeforchallenge. • Thecaveatis, however, thatwemaynotwantpriorstobeadmitted.Thus,we shouldalsonotforget aboutOldChief v.UnitedStates, 519U.S172(1997).

13. Arguingconstitutional rights, withtheexceptionoftheEighthAmendment, hasbeen largelyignoredinthemodernera.Indaysofyore, aconvictionfora specific crimecarriedaspecificoffense.RachelE.Barkow,RechargingtheJury: TheCriminalJury’sConstitutionalRoleinanEraofMandatorySentencing, 152U. Pa.L.Rev.33(2003). • Suchaschemedeprivedcourts fromevenconsideringmostconstitutional issues.

14. Constitutional rights whichhavebeen recognizedat sentencingare: • Righttoeffectiveassistanceofcounsel atsentencing(Gloverv.United States, 531U.S.198(2001)). • Interestingly, this issue is raisedmostoftenincapital cases,i.e., counsel wasineffectiveinpresentingmitigationevidence.However, • there isnothingwhichsuggests that efficacyduring sentencingis • limitedtocapitalcases. • Limitedprivilegeagainstself-incrimination(Mitchell). • InBurnsv. UnitedStates, 501U.S.129(1991), theCourtnotedthat counsel failuretogivedefendantadvancenotice offactsthatwouldresult inahigher sentencemight raiseseriousdueprocessconcerns. • Certainsubstantivedueprocessrightshavebeenrecognized: • Courtcan’tbaseasentenceon“materiallyuntrue”assumptionsabout thedefendant’scriminal record; • Courtcan’tpunishadefendantforasuccessfulappeal; • Courtcan’tconsiderrace, national origin, orgenderinsentencing; • Religiousbeliefs may still be upinthe air, butgenerallynotunlessthe religiousbelief somehowgaverisetothecrime(polygamy; Rastafarianism, etc.).

15. “The basic function of constitutional rights is to limit the government’s ability to interfere with civil liberties. Sentencing is the process by which the government determines precisely how much liberty it will take from a defendant. Sentencing courts therefore should not impose sentence based on matters protected by the Constitution.” Clarissa B. Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, California Law Rev. (2011).

16. Justdon’t forget abouttheConstitutionduringsentencing.Somequestions needtobeexploredeveninthe faceofcontrarycaselaw. • Doesconsiderationofacquittedconduct inimposingasentenceviolate DoubleJeopardy? • Doesconsiderationofacquittedconduct at sentencingviolate a defendant’sSixthAmendmentrighttoajurytrial? • Evenifthejudgebelievesthedefendantcommittedthecrime • despitetheacquittal,isit still appropriate forthejudgetopunish theacquitteddefendantthrougha differentmeans? • Howconsciousareweofthe“trial tax?”Defendantswhogototrial routinelyreceivelongersentencesthat thosewhodonot.Isthisade factopunishmentfor adefendantexercisinghisconstitutional rights? • Isadenialofleniencybecausethedefendantchosetogototrial thesameasanincreaseinpunishment?

17. Doesaharshersentencebecauseofthedefendant’sfailuretoexpress remorseduringsentencingviolate hisFifthAmendmentright? • Mitchell is limitedinitsholdingto“factualdeterminations respectingthecircumstancesanddetailsofthecrime.” (Mitchell, 526U.S. at 328). • Doesenhancingasentencefornotshowingremorseviolate theFirst Amendment’sprotectiontofreespeech? • It seemslikeacontent-basedpunishmenttome. • West VirginiaStateBoardofEducationv. Barnette,319U.S. 624 (1943)(TheGovernmentcannot,asageneralmatter, punishanindividual forrefusingtospeak). • TheNinthshotthisargument downinU.S. v.Smith, 424F.3d992 (9thCir. 2005) (ruling,apparently,that sentencingfactors (recidivism,amenabilitytorehabilitation,etc.),trumpedtheFirst Amendment.REALLY!?

18. Obviously, you don’t have to do any of these. However, they are worth thinking about on the off chance that will also make the judge think.

19. If you ever get in a pinch, repeating the following lines will alleviate most problems, especially in Judge Molloy’s Court: “Your honor, that information was passed along to me by Mr. Rhodes and Mr. Stephens. They were (and always are) in error. I apologize for listening to them.”

20. WHY IS THIS CLIENT DIFFERENT THAN ALL THE OTHER HUNDREDS THAT COME BEFORE THE JUDGE?

21. 18 § 3553(a)1-7INDIVIDUAL CHARACTERISTICS Individual Characteristics

24. MITIGATION FROM THE STARTALL ABOUT HUMANIZING YOUR CLIENT • Working with pretrial services officer for release • Relaying that same information to the AUSA • Get to know your client • releases • Get to know your pretrial services officer • Get to know available services

29. The Supreme Court instructs • United States v. Tucker, 404 U.S. 443, 446 (1972) • Sentencing “inquiry [is] broad in scope, largely unlimited either as to the kind of information [judges] may consider, or the source from which it may come”

30. Williams v. Tucker, 337 U.S. 241, 246 (1949) • “both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law”

31. Williams v. Tucker • “Highly relevant – if not essential – to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.”

32. And Congress agrees18 U.S.C. § 3661 • “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense, which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”

33. Pretrial Services Interview • Right to answer questions • Right not to answer questions • Answers must be truthful • Do not discuss offense conduct • Do not discuss other criminal conduct • Do not discuss criminal history

34. Appeal Waivers

35. Scope of Change of Plea Waiver • Mitchell v. United States, 526 U.S. 314, 317 (1999): • “Two questions relating to criminal defendant’s Fifth Amendment privilege against self-incrimination are presented to us.”

36. Mitchell, 526 U.S. at 317 • “The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered.” • “We hold the plea is not a waiver of the privilege at sentencing.”

37. Mitchell, 526 U.S. at 317 • “The second question is whether, in determining facts about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant’s silence.” • “We hold a sentencing court may not draw the adverse inference.”

38. PSR Process • Do not permit uncounseled contact between the USPO and your client • Attend all meetings • Screen all paperwork

39. PSR Interview • Right to answer questions • Right not to answer questions • Answers must be truthful • Do not discuss offense conduct • Acceptance of Responsibility Statement • Do not discuss other criminal conduct • Do not discuss criminal history

40. Acceptance of Responsibility • U.S.S.G. § 3E1.1(a) • “If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.”

41. Acceptance of Responsibility Statement • Get it in writing

42. United States Sentencing Guidelines • 800 pound gorilla

43. Make the Guidelines Work for your Client

44. “Significant Procedural Error” • Reversible procedural error is: • Fail to calculate the Guidelines correctly • Treat the guidelines as mandatory • Fail to consider § 3553(a) factors • Fail to address parties’ arguments • Fail to adequately explain sentence • Comes before review for substantive reasonableness

45. United States v. Flores, 2013 U.S. Dist. App. LEXIS 15960 (9th Cir. August 2, 2013) • 360 months-to-life district court range • 180 months sentence imposed • 292-to-365 months correct range, per 9th Circuit • “we cannot say whether the district court would impose the same sentence if it kept the correct Guidelines in mind throughout the process”

46. Guidelines One Dimensional • Guidelines = math without subtraction • Acceptance of Responsibility reduction • Safety Valve and minor role reductions • Up, up and away

47. “Evolved” in a One-Way Upward Ratchet Amended in a “one-way upward ratchet increasingly divorced from considerations of sound public policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules.” Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1319-20 (2005). 47

48. Guidelines Flawed in Both Directions • Guidelines range results almost exclusively from aggravating factors • Mitigating factors, § 3553(a)(1), NOT Included in the calculation • Andpolicy statements generally prohibit or discourage mitigating factors as departure • Minimal attempt to reflect “Need” for Deterrence, Incapacitation, Rehabilitation in the most effective manner, § 3553(a)(2), based on the defendant’s individual characteristics • “Kinds” of sentences permitted by statute other than prison, § 3553(a)(3), rarely recommended

49. Underserve probation • 1984: 38% of defendants received straight probation • 18 U.S.C. § 3582(a): “The court, in determining whether to impose a term of imprisonment, and if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set for in section § 3553(a) to the extent they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

50. 28 U.S.C. § 994(a)(1) • “The Commission . . . shall promulgate . . . guidelines . . . for use of a sentencing court in determining the sentence . . . including – (A) a determination whether to impose a sentence to probation, a fine, or a term of imprisonment [and] (B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment. “