An Unusual Decision Not to Publish - by Guest Blogger Brian Toth

An Unusual Decision Not to Publish - by Brian Toth

 

Earlier this year, Justice Thomas, joined by Justice Scalia, dissented from the court’s decision not to review a ruling by the Fourth Circuit reviving a habeas petitioner’s claim that he was sentenced too harshly by a vindictive judge. The dissent in Plumley v. Austin was notable mostly for its sharp criticism of the Fourth Circuit’s choice to label its decision “unpublished”—that is, without precedential effect. The Fourth Circuit’s decision was 40 pages long, rendered after oral argument, contained a dissent, and, in Justice Thomas’s view, satisfied three criteria for publishing decisions. “It is hard to imagine,” Justice Thomas wrote, “a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.”

Yesterday, the Eleventh Circuit issued a decision in United States v. Rivero affirming a 30-year sentence for a 56-year-old defendant who pleaded guilty to possession with an intent to distribute cocaine and marijuana. Because Mr. Rivero qualified as a career offender, his advisory-guidelines range was 188 to 235 months. The government recommended that Mr. Rivero be sentenced toward to bottom of that range, but the district court, citing his lengthy criminal history, sentenced him to 360 months in prison—the statutory maximum. The Eleventh Circuit’s decision was rendered after oral argument and over a forceful dissent by the panel’s only active judge, Judge Martin, who addressed not just Mr. Rivero’s case but also the court’s precedents on sentencing. The Eleventh Circuit’s decision in Rivero, like the Fourth Circuit’s in Austin, was unpublished. Why?

In certain respects, the panel’s choice not to publish Rivero seems sound, and might even, to some, be preferable. Mr. Rivero’s first argument on appeal—was he a career offender?—was foreclosed by precedent, and applying precedent to new cases rarely justifies publication alone. And the majority disposed of Mr. Rivero’s challenge to the reasonableness of his sentence by carefully hewing to the court’s precedents and to its highly deferential standard of review. Plus, the decision doesn’t create binding precedent for imposing on other defendants, in Judge Martin’s words, “an extraordinary sentence for what seems to be an ordinary crime.” The court metes out tough justice for Mr. Rivero, but only for Mr. Rivero. 

But for those who closely follow the Eleventh Circuit, that yesterday’s decision is unpublished may seem unusual. The Eleventh Circuit takes special interest in sentencing, and nearly always seems to publish decisions involving large variances (only death-penalty cases get similar automatic-publication treatment). Further, because we want similarly situated defendants to be sentenced similarly—and because, presumably, we want the process in which they are sentenced to be similar, too—publishing decisions involving sentencing is important. The court, moreover, publishes many decisions where, as in Rivero, there has been oral argument. And although it’s common for the Eleventh Circuit to dispose of an appeal in an unpublished decision after oral argument where the result is clear, it’s not common to do so where there has been a strong dissent by the only active judge on the panel. And the facts of this case are compelling: Mr. Rivero, a 56-year-old man, indeed has a long criminal history, but he was given a tough sentence for, according to the majority, an “unremarkable” current offense. And the government recommended a bottom-of-the-guidelines sentence as well. In short, this is not your run-of-the-mill sentencing case. 

Courts don’t say why they publish their decisions; per the Eleventh Circuit’s internal operating procedures, the choice is up to the majority of the panel. Thus, why Rivero is unpublished is anybody’s guess. But I suspect that a principal reason was, as Justice Thomas observed in Austin, “to avoid creating binding law for the Circuit.” If so, then the question still remains, Why?

I don’t know and, to be clear, I’m not criticizing the majority’s choice not to publish Rivero. But one by-product of its decision seems clear: the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts. In dissent, Judge Martin observed that she was “aware of no published opinion in which we have held that an above-Guidelines sentence was substantively unreasonable.” If Rivero had been published, her observation would remain true. But it would also be true that the likelihood of en banc review—and therefore the likelihood of a published opinion in which an above-guidelines sentence was held to be substantively unreasonable—would have been greater.