Monday, June 22, 2015

When reviewing sentences, Chief Judge Carnes and Judge Wilson agree on standards, but not always on results

After being convicted for illegally reentering the United States, Jesus Rosales-Bruno appealed against his top-of-the-guidelines-range sentence of 87 months’ imprisonment, urging that his sentence had been based on an improper enhancement. The Eleventh Circuit agreed, vacated the sentence, and remanded for a do-over. “We express no opinion,” the court cautioned, “what sentence would now be appropriate.” Despite that disclaimer, Rosales-Bruno had reason to be optimistic about receiving a lower sentence; without the improper enhancement, a top-of-the-guidelines-range sentence was (only) 27 months’ imprisonment. The resentencing, however, did not go as Rosales-Bruno would’ve hoped. Citing Rosales-Bruno’s criminal history, the district court imposed a major upward variance and sentenced Rosales-Bruno to 87 months’ imprisonment. In short, Rosales-Bruno’s sentence remained the same, even though the way that the district court arrived at that sentence the second time about was different.

These unique facts led to a fascinating set of sharply worded opinions issued Friday by the Eleventh Circuit on how the court goes about reviewing sentences for reasonableness. Chief Judge Carnes, in a 51-page majority opinion, said the sentence wasn’t substantively unreasonable; Judge Wilson, in a 32-page dissent, said it was substantively unreasonable. These opinions touch on or tussle over many important topics—from the weight the guidelines should be given in sentencing, to how deferential appellate courts ought to be in reviewing an out-of-the-guidelines-range sentence for reasonableness, to whether judges who dissent from unpublished decisions can publish their dissents, to which of the judges best uses Mark Twain to support his position. But most notable about United States v. Rosales-Bruno is that both Chief Judge Carnes and Judge Wilson go beyond just the particulars of the case. Each writes at length about the Eleventh Circuit’s sentencing law in general, and the impressions that certain of its current and former judges, and others, have of that law.

Relying heavily on data from the U.S. Sentencing Commission and set forth in three appendixes to his opinion, Chief Judge Carnes begins part V this way:
Part II of the dissenting opinion criticizes this Court as a whole for the message the dissenting judge believes we have sent to district courts about how we review sentences for reasonableness. The dissent’s criticism is not about the legal standards that we have announced or the holdings of our decisions. We made clear in our en banc decision in Irey that the principles we announced in that decision applied equally to sentences above and below the guidelines range. 
The dissent acknowledges that our decisions, particularly Irey, have correctly stated the law. So, we have gotten the law right. 
The dissent’s criticism of this Court is that even though we have gotten the law right, it believes that the results of our substantive reasonableness decisions have sent a message to district courts that we will not vacate unreasonably long sentences, only unreasonable short ones. We are not told whether the accusation is that the Court has done this deliberately or just negligently. In any event, if we have been sending a message that contrary to the neutral principles we have announced we will favor upward variances more than downward ones, either we are not good at sending messages or the district courts of this circuit are not good at receiving them. The irrefutable fact is that district courts in our circuit impose far more downward variance sentences than upward variance ones. And the disparity in the rate at which downward and upward variance sentences are being imposed is increasingly favoring downward variances.
Majority Op. 39–40 (citations omitted).

Part II of Judge Wilson’s opinion takes this view:
We have never vacated a sentence because it was too high, imposing a sentencing ceiling on remand. By contrast, on numerous occasions, we have vacated sentences because they were too low and imposed a sentencing floor. This forces me to believe that we are grading harshness and lenience on different scales. By failing to adhere to Irey and Pugh in this upward variance case, the Majority opinion reinforces this unstated double standard. It is true that we say all sentences are meaningfully reviewed for reasonableness, but in practice, it seems that only lenient sentences are subject to vacatur on purely substantive grounds. The message that we are sending to the district courts by this precedent is that they enjoy virtually unfettered sentencing discretion, so long as they sentence harshly. In other words, while we say otherwise, we are in reality reading a “severity principle” into sentencing that should not be there.”
Dissenting Op. 74–75 (citations omitted).

The third judge of the panel was District Judge Corrigan, who sat by designation. Judge Corrigan stated—wisely—that it was “unwise for [him], as a visitor, to join in the important debate between Chief Judge Carnes and Judge Wilson regarding Eleventh Circuit sentencing precedent.” He concurred only “in the result.”

And for Rosales-Bruno, it is only the result that matters.


Anonymous said...

Please no more lectures from judges how lawyers need to be civil to one another. The majority is not only "sharply worded" but discourteous, rude, and condescending.

The 11th is the worst court in the country for criminal defendants.

Anonymous said...

Why is it that every time you hear about a Defendant getting screwed over at the district court level, it is always the same judge imposing the unfair result?

Anonymous said...

When is the "emergency" going to end so we can finally have 3 Circuit Court Judges deciding a case? Too many important cases are being decided by a visiting judge or district judge "swing vote." And with en banc hard to get and cert. even harder, these decisions become the law of the Circuit. We deserve to have these cases heard by three Circuit Judges who were appointed from and for our Circuit.

Anonymous said...

@6:51 the "emergency" has been over for some time now. The emergency permitted TWO visitors. Now only one is permitted. That won't go away anytime soon. As long as the 11th is a "borrower" court (because its per judge workload is higher than average) it will receive visitors, and its judges cannot visit elsewhere.