Should judges disregard joint sentencing recommendations?

I've raised the question before on the blog and have given my opinion that judges should not disregard joint recommendations except in the very extreme case.

If a plaintiff and a defendant agree to a civil settlement, judges generally do not interfere. Why, then, should they in criminal cases (especially if judges are supposed to be umpires as Chief Justice Roberts has commented)?

The Herald covers the latest example in a medicare fraud case where the defendants were sentenced to 5 years more than the parties jointly had asked for:

U.S. District Judge Cecilia Altonaga gave the Guilarte sisters — who fled to Latin America in 2007 when they learned they were under federal investigation — five more years than prosecutors and defense attorneys had agreed on in their plea agreements, which charged a pair of healthcare-fraud and money-laundering conspiracies.

The judge said her initial intentions were to sentence the sisters to maximum prison terms — 30 years — but she was “tempered” by the disparity with lower sentences already imposed on other defendants in the Caridads’ case and related Detroit investigations.

The Guilarte sisters, who were indicted in Detroit in 2009, asked to have their case transferred to their hometown in Miami after they fled to Venezuela and were arrested in Colombia earlier this year. Miami is widely recognized as the nation’s Medicare fraud capital, where sentences keep getting stiffer and stiffer.

“We are tired of seeing the brazen, callous manner with which countless people defraud our Medicare system,” Altonaga declared. “We must stop the epidemic. ... Both of you took what you learned in South Florida and exported it to Michigan.”

Altonaga reminded Caridad, 54, and Clara, 57, that the United States welcomed both with “open arms” from Communist Cuba and that they returned the privilege by stealing millions from the U.S. government’s healthcare program for the elderly and disabled.

The Justice Department said the sisters — Caridad is a legal permanent resident, Clara a naturalized U.S. citizen — personally pocketed $3.8 million from their HIV-therapy scam in Detroit but none of that money has been recovered. Both sisters apologized to the judge and U.S. government, saying they “must pay” for their theft.

But the judge didn’t buy it, saying at one point to Clara: “Even though you say you must pay, I have every conviction you will not pay.”

I have never seen a judge go lower than a joint recommendation of the parties; only higher. But maybe I'm missing something. Any thoughts?

Ft. Pierce Courthouse opens

It's new and it's big and it's cool:

11th Circuit affirms Liberty City 7

Here's the per curiam opinion (the panel was Judge Tjoflat, Judge Martin and a visiting judge) (the original post mistakenly said that Tjoflat wrote the opinion). From the intro:

Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild
Augustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of
(1) conspiracy to provide material support to a Foreign Terrorist Organization (Al
Qaeda) by agreeing to provide personnel (including themselves) to work under Al
Qaeda’s direction and control, knowing that Al Qaeda has engaged or engages in
terrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to provide
material support by agreeing to provide personnel (including themselves),
knowing and intending that they were to be used in preparation for and in carrying
out a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise the
nature, location, source, and ownership of such material support, all in violation of
18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to
maliciously damage and destroy by means of an explosive a building leased to an
agency of the United States (the FBI) and a building used in interstate and foreign
commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n).1 Additionally,
Batiste was convicted of conspiracy to levy war against the Government of the
United States and to oppose by force the authority thereof in violation of 18
U.S.C. § 2384.

Appellants now appeal their convictions, raising six issues. First, Batiste
and Augustine challenge the district court’s order granting in part the
government’s motion to strike portions of the indictment as surplusage. Second,
Augustin, Phanor, and Augustine each challenge the sufficiency of the evidence
supporting their convictions. Third, Augustin argues that the government’s
involvement in the criminal scheme was outrageous and therefore violated the Due
Process Clause of the Fifth Amendment. Fourth, Batiste and Abraham challenge
several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. Fifth, Batiste argues that limitations on his cross examination of witnesses resulted in cumulative error requiring a new trial. Sixth, all of the appellants challenge the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, we
affirm.

Tuesday notes

1. Big decision from the 11th Circuit yesterday in the sports agent case -- United States v. Gus Dominguez. Judge Cox wrote the decision invalidating some of the convictions and Judge Tjoflat dissented because he would have invalidated all counts. Nice win for Ben Kuehne. The blog's prior coverage of this Judge Moore case is here.

2. Brian Tannebaum has a new gig at Above the Law. Very exciting.

3. I hate mosquitoes too, but should we really be genetically engineering them? Doesn't this ultimately lead to the apocalypse?

4. Justice Stevens seems to be everywhere.

Happy Wet Soggy Halloween

It's always fun driving on US1 after a rainstorm. Sheesh.

Anyway, eat some candy today, and let's hope it dries up for tonight.

Here are a couple stories to get your Monday going:

1. Leonard Pitts thinks the Fourth Amendment should still have some teeth:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . — Fourth Amendment to the Constitution of the United States

Just in case you forgot.

There has been, after all, an appalling amount of forgetting where that amendment is concerned. And New York City has become the epicenter of the amnesia. Yes, the “stop and frisk” policy of questioning and searching people a cop finds suspicious is used elsewhere as well. But it is in the big, bruised apple that the issue now comes to a head.

Federal agents recently arrested a New York City cop on charges of violating the civil rights of an African-American man. Officer Michael Daragjati allegedly stopped the man in April and threw him against a parked van to search him. No drugs or weapons were found, but Daragjati reportedly became angry the man questioned his rough treatment and requested the officer’s name and badge number. So Daragjati ran him in on a charge of resisting arrest. Later, talking on the phone to a friend, he bragged that he had “fried another nigger” and that it was “no big deal.” This was overheard by the feds, who had him under surveillance in a separate investigation.

Let no one fix his or her mouth to pronounce themselves “surprised.” Blacks and Hispanics have complained for years about the selective attention they get from police. Giving cops the power to randomly stop and search pedestrians they find suspicious could not help but exacerbate the problem.

Last year, about 600,000 people were stopped and frisked in New York. Though blacks and Hispanics account for just over half the city’s population, they represent about 85 percent of those stopped. The Center for Constitutional Justice, a civil rights group, says drugs or weapons are turned up in less than two percent of those stops.

It bears repeating: less than two percent.

2. Can lawyers be ineffective during the plea process? Seems like the answer is obviously yes, but the Supreme Court will hear oral argument on the question today:

Anthony Cooper shot a woman in Detroit in 2003 and then received laughably bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.

At least Mr. Cooper heard about his plea offer. Galin E. Frye’s lawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When Mr. Frye did plead guilty after the offer expired, he was sentenced to three years.

On Monday, the Supreme Court will hear arguments in the two cases, which ask how principles concerning bad legal work at trial should apply to plea bargains. The question is of surpassing importance, since a large majority of criminal cases are settled at the plea stage.

3. The U.S. jails way too many people:

As a means of controlling crime, America’s prisons are notoriously inefficient and only minimally effective, often creating hardened criminals out of first-time offenders. The United States has 5 percent of the world’s population, yet 25 percent of the world’s prisoners. In the past generation, the imprisonment rate per capita in this country has multiplied by five. There are 2.3 million Americans in prisons and jails. Spending on prisons has reached $77 billion a year.

Congrats to Judge Kathy Williams

Her investiture was just spectacular. The speakers were really good -- Her friend Cathy Dee, Michael Mullaney, Reuben Cahn, Michael Caruso, Judge Seitz, Judge Moreno, and others. And Judge Williams' remarks showed why she was a great trial lawyer and leader. Here are some pictures from the event:

At Kathy Williams' investiture

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Judge Gold's speech for Judge Hoeveler receiving the Ned Davis award

As I mentioned before, Judge Gold's speech at the Federal Bar dinner last week was fantastic, and I got a copy of it, which I reproduce below:

William M HoevelerSpeech