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ought to be in reviewing an out-of-the-guidelines-range sentence for reasonableness, to whether judges who dissent from unpublished decisions can publish their dissents, to which of the judges best uses Mark Twain to support his position.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.

Good Graphics?

In recent months, the White House and DoJ have been using graphics and slides on social media and at press conferences to make their points.  The White House has been doing a very good job with this, making clear easy to read graphics.  DoJ, not so much.  Here is a good example of an awful slide that DoJ used yesterday with the big medicare fraud takedown :

Ooof.  This may be one of the worst slides I have ever seen.  Just for starters, it's got way too much information, graphics that don't mean anything, shorthand that is unintelligible, facts that aren't important, and on and on.

Here's how to do a slide, by the White House:

Ahhhh, much better.

These slides were taken from the Twitter pages for the White House and DoJ.

Bueller? Bueller?

Should be an interesting few days in mag court... About 80 people were arrested for Medicare fraud over the last few days, and the PDs and CJA lawyers are having their annual conference in Naples. The PD's office always leaves behind an emergency lawyer, who is going to be very very busy. I wonder who drew the short straw this time. 

"Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net."

That was Judge Rosenbaum today for a unanimous 11th Circuit in United States v. Wingo.  The rest of the intro is also really well done:

Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net.
Our criminal-justice system depends on the exercise of, or knowing and intelligent waivers of, constitutional rights. But to engage in these activities, a defendant must first and necessarily have the abilities to understand the proceedings and to assist counsel. Because competence is the base upon which other constitutional rights balance, due process and Section 4241(a) of Title 18 of the United States Code demand that a hearing on a defendant’s competence be held whenever reasonable cause exists to believe that a defendant may not be competent to proceed to trial or to enter a guilty plea.
Here, no hearing occurred, despite evidence creating reasonable cause to believe that Appellant Andrew Wingo might not have been competent to proceed. We therefore hold that the district court did not satisfy its duty under 18 U.S.C. § 4241(a). We remand this case to the district court so that it can determine whether Wingo’s competency at the time of his guilty plea can be evaluated nunc pro tunc, and if so, for an assessment of his competency at the time of his guilty plea and sentencing. If Wingo is determined to have been incompetent, or if a nunc pro tunc evaluation cannot be made, Wingo’s conviction and sentence must be vacated, subject to the government’s right to try him should he become competent. On the other hand, if Wingo is determined to have been competent, his conviction and sentence must be affirmed.

Meantime, Justice Scalia referred to Justice Ginsburg as Justice Goldberg.  WHOOPS.

While delivering the decision in the immigration case Kerry v. Din on Monday, Scalia listed the justices who dissented from the opinion and, instead of saying “Ginsburg,” said “Goldberg.”

Chief Justice John Roberts leaned over and whispered in his ear, to presumably notify him of the error.

“What did I say?” he asked Roberts, drawing laughter from spectators and members of the press in the courtroom.

After his colleagues told him what he said, Scalia shook his head and apologized to Ginsburg.

“Sorry about that Ruth,” he said.

Scalia was of course quick to joke when Joe Klock famously messed up a bunch of names before the Supreme Court:

Arguing a case before the Supreme Court is a dream for many lawyers, a chance to shine before the nation’s highest court. But it seems attorney Joseph Klock could use a little more polish.

Klock, representing Florida Secretary of State Katherine Harris, stumbled responding to questions during the Bush vs. Gore case Monday morning, twice referring to justices by the wrong name.

First, Klock surprised everyone in the courtroom by referring to Justice John Paul Stevens as “Justice Brennan,” apparently referring to Justice William Brennan, who retired from the Supreme Court in 1990 and died in 1997.

“I was so tired that I was happy I didn’t call one of them Justice Gore,” Klock told Good Morning America today. “And I’m not really very good with names.”

And after his first mix-up Monday, Klock referred to David Souter as “Justice Breyer,” referring to another of the court’s justices, Stephen Breyer.

“I’m Justice Souter,” came the reply from the bench. “You’d better give that up.”

Then Justice Antonin Scalia got into the act, drawing a roar of laughter from the gallery by beginning his next question, “Mr. Klock, I’m Scalia.”

Enjoy:

Judge Huck's Federal Court Observer Program

It's become a big hit -- a capacity crowd on Friday for interns, law clerks, and young associates.  Here's a picture from the panel of judges (Huck, Jordan,Scola & Valle):

You should get on over to SCOTUSBlog for new opinions this morning.  The Term is just about over....

After that, you should grab a drink at lunch today.  That's what Justice Stevens (age 95) says to do!  From the Chicago Sun-Times:

Over the next 35 years, Stevens rendered more than 1,400 opinions in a career that defies summation, at least here.  He was liberal and, as such, his beliefs could actually mature and change. Williams highlighted the evolution of Stevens’ thought regarding death penalty, from finding it constitutional in Gregg V. Georgia in 1976, to  deeming it “cruel and unusual” — and thus banned by the Constitution — for people with mental handicaps in Atkins v. Virginia in 2002, to finding it morally wrong altogether in Baze v. Rees in 2008.

“The penalty really does not fit in our society anymore,’ Stevens said.

His advice to young lawyers ranged from the value of studying poetry — which he found “extremely valuable” on the bench because “it helped me in my work as a judge” — to the best way to counteract a bad day: “drink at lunch” (advice he couldn’t have taken too often, or he wouldn’t have made it to 95).

I'll certainly need one after that Game of Thrones last night.  

So you wanna be a judge?

Well, there are three openings -- two in the Middle District and one in the Northern District.  This notice went up today on the court's website, seeking applications for judge (due August 3). 

There is also a new slate of JNC members (see here).

And new JNC rules.

Melgen still being held

Apparently he can't get a letter from the Dominican Republic that they will extradite him to the U.S.  This all seems over the top to me.  A judge in New Jersey let him bond out without such a letter.  He knew about the investigation for many years and traveled back and for to the DR and always came back. What are we doing here?

In other news, a few judges had a smooth hearing with the judiciary committee yesterday.  It's very slow going... Hopefully Mary Barzee Flores will be up soon.

Still waiting on the Supreme Court to finish up the Term.  Linda Greenhouse talks about it.

American Pharoah’s stretch run in the Belmont Stakes was a beauty to behold. The Supreme Court’s stretch run in the closing weeks of its term? Not so much.

I can’t remember a second week in June during which the justices delivered only one opinion. This was Monday’s decision upholding the president’s prerogative in the Jerusalem passport case, Zivotofsky v. Kerry, issued more than seven months after the argument. At that pace, it would be Thanksgiving before the court issued its decision in the same-sex marriage cases that it heard at the end of April. But that won’t happen; one way or another, with 20 cases left to decide, the court will wrap up its term before the Fourth of July.

The justices’ silence doesn’t mean indolence, of course; a great deal is happening below the surface and behind closed doors. For example, it’s obvious that there is a struggle going on over whether the court should revisit Fisher v. University of Texas, which affirmative-action opponents have dragged back onto the court’s docket for another try at using this thoroughly moot case as a battering ram against considering race as a factor in college admissions. On Thursday the case goes to the justices’ closed-door conference for a fourth week. If the justices eventually deny the appeal, or even if they decide to hear it, we may never know what arguments were on the table during those weeks.

So we can thank Justice Clarence Thomas for pulling back the curtain a bit this week when he issued a public dissent from the court’s refusal to hear a challenge to a San Francisco gun control ordinance. This case, Jackson v. City and County of San Francisco, went to conference six times before the court issued an order on Monday denying review. Even without Justice Thomas’s dissenting opinion, which only Justice Antonin Scalia joined, it would have been obvious that something was afoot, but we wouldn’t have known exactly what.

And the 11th Circuit just granted a state habeas for a potential Miranda violation.  Enjoy the read.

Tuesday news and notes

1.  More on House Srebnick and the cert grant, from the DBR:

The U.S. Supreme Court agreed Monday to decide in a Miami case whether federal prosecutors can freeze untainted assets a criminal defendant needs to retain an attorney.
Miami attorneys and brothers Scott and Howard Srebnick filed a petition for writ of certiorari in the case of Sila Luis. Senior U.S. District Judge Paul Huck in Miami froze Luis' assets after she was indicted in a Medicare fraud scheme.
The defense attorneys believe the government violated Luis' Fifth and Sixth Amendment rights to due process and to counsel of her choice.
"Our view is that she's not yet been convicted, she's not yet had a trial, and under our Constitution she has the right to use her own legitimate assets to pay for defense," said Howard Srebnick of Black, Srebnick, Kornspan & Stumpf.

2.    Justice Scalia gives a funny graduation speech on platitudes.  From the Washington Post:

Supreme Court Justice Antonin Scalia delivered an off-the-bench opinion on graduation addresses Thursday, drawing laughter and applause as he criticized cliches that don’t work during a commencement speech at an all-girls Catholic school.
“My problem with these platitudes is not that they are old and hackneyed, but that a lot of them are wrong,” Scalia said, standing before 79 graduates and hundreds of relatives and friends in the main gymnasium at Bethesda’s Stone Ridge School of the Sacred Heart.
***
As they and others listened, Scalia parsed a litany of stock phrases, melding them with his own advice. He first took issue with the oft-expressed sentiment that “we face unprecedented challenges.”
“Class of 2015, you should not leave Stone Ridge High School thinking that you face challenges that are at all, in any important sense, unprecedented,” he said. “Humanity has been around for at least some 5,000 years or so, and I doubt that the basic challenges as confronted are any worse now, or alas even much different, from what they ever were.”
Scalia — dressed in a suit and tie — took on other bits of advice, too, including, “To thine own self be true.”
“Now this can be very good or very bad advice, depending on who you think you are,” he said, as laughter rippled through the crowd.
He also turned some age-old sayings on their head.
“Never compromise your principles,” Scalia said, “unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.”

 3.  When does counsel need to raise suspicions about jurors?  The Second Circuit issued an interesting opinion about juror misconduct but didn't address the question head on.  Here's Alison Frankel:

The 2nd U.S Circuit Court of Appeals undid an injustice Monday when it ordered a new trial for David Parse, a one-time Deutsche Bank broker who was convicted in 2011 for his alleged participation in a tax shelter scheme supposedly masterminded by the now-defunct law firm Jenkens & Gilchrist. In an opinion by Judge Amalya Kearse, the appeals court said Parse’s conviction was tainted by a biased juror who admitted after trial that she had told a series of breathtaking lies during voir dire. Even though Parse’s former lawyers at Brune & Richard had turned up Internet evidence before and during trial that raised suspicions about the juror, the 2nd Circuit said, Parse had not waived his right to an impartial jury.

But the appeals panel refused to define exactly when lawyers are obliged to inform judges that prospective jurors might be lying in order to preserve their clients’ constitutional rights. Parse’s counsel, Alexandra Shapiro of Shapiro Arato, and the New York Council of Defense Lawyers, in an amicus brief, had asked the 2nd Circuit to establish a bright-line rule that defense counsel need not report concerns unless they are sure of jurors have done something wrong. Judge Kearse and the other members of the 2nd Circuit panel, Judges Richard Wesley and Chester Straub, said they doubted “that such a sweeping and absolute rule is appropriate,” and that, in any event, they didn’t need to devise a broad rule to resolve Parse’s appeal.

That’s a missed opportunity to clarify the implications of juror research that has become commonplace in white-collar cases. The Parse opinion seems to imply that judges should not construe defense counsel’s failure to alert the court of their suspicions as a waiver of their client’s Sixth Amendment right to an unbiased jury. I doubt, however, that any lawyers want their clients to go through Parse’s ordeal of four years of post-trial and appellate proceedings before securing a new trial. Defense lawyers in the 2nd Circuit will probably have to err on the side of disclosure if their investigation of prospective jurors turns up anything untoward: Tattling to judges may invade jurors’ privacy and annoy the court, but that’s preferable to risking a defendant’s constitutional rights.