Recently in the Sentencing - General category:
Facts
The defendant, an admitted child molester, pled guilty to distributing child pornography. He faced a guideline range of 235-240 months. In sentencing him to 132 months, the district court relied in part on a psychological report of the defendant that concluded he was not a danger to the community. The report had been prepared for use at a pretrial bail hearing, and premised its dangerousness findings on the fact that any pretrial release would be into the defendant’s parents’ custody. The government appealed.
Holding
The Second Circuit agreed with the government that the district court had committed procedural error when it relied on the report “in so far as it entirely removed [the psychologist’s] opinion from the context in which it was rendered.” In particular, the Court noted that the report at issue “was conditioned on the premise that DeSilva would be released to his parents,’ and therefore was only of “minimal relevance” on the issue of his potential to molest children following his release from his term of imprisonment, when parental monitoring would not be on the cards.
Notably, the Court had this to say about psychological reports in general:
CommentAlthough a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a). If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.
In appropriate cases, psychological reports of the defendant can have a significant mitigating effect at sentencing – humanizing him in a way that the presentence report does not, elucidating his offense behavior in the context of his unique emotional and psychological deficits, and giving the sentencing judge security (and cover) in rejecting the applicable advisory guideline range. DeSilva reaffirms all of the above, with the simple and elementary caveat that if a psychological report is to be used at sentencing, it should not be recycled from another source, but should be tailored directly to the sentencing factors under 18 U.S.C. § 3553.
In Dorvee, the Court reached the rare conclusion that a sentence was substantively unreasonable (a 240-month sentence, to be exact), citing in part the “serious flaws” in the child pornography guideline. Like the crack guideline at issue in Kimbrough, the child pornography guideline yields harsh and iniquitous results, not because of any empirical analysis, but solely as a result of Congressional directives. In words that apply far beyond the guideline at issue here, the Court reminds us that Sentencing Commission is just a fallible government agency, and whether its pronouncements are entitled to respect should be determined on a case-by-case basis:
This deference [sentencing judges must pay] to the Guidelines is not absolute or even controlling; rather, like our review of many agency determinations, “[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” On a case-by-case basis, courts are to consider the “specialized experience and broader investigations and information available to the agency” as it compares to their own technical or other expertise at sentencing and, on that basis, determine the weight owed to the Commission’s Guidelines. (citations omitted)
Comment
In its conclusion, the Court would appear to limit this decision to the peculiar flaws in the child pornography guideline – “an eccentric Guideline of highly unusual provenance” – but as the Federal Defenders establish in their Deconstructing the Guidelines project, every guideline has the potential to be viewed as an “eccentric” one “of highly unusual provenance” if you just take the trouble to peel the layers of amendments away, and put its origin under a microscope. Dorvee is also further proof, as my colleague Harlan Protass has argued at the Second Circuit Sentencing Blog, of the blurring between procedural and substantive review of sentences.
Lawyers: Paul J. Angioletti, Esq. (defendant); AUSAs Paul D. Silver, Thomas Spina, Jr., Paul Ryan Conan, and Brenda K. Sannes
Making a formal pact with federal prosecutors has many advantages, as demonstrated in United States v. Menendez, 2010 WL 1172076 (2d Cir. March 29, 2010). The appellant (Sierra) had pled guilty without a plea agreement to an indictment charging him with heroin distribution and money laundering. He challenged his sentence of 135 months in part on the grounds that the district court created an unwarranted disparity in sentencing by imposing upon him a longer term of imprisonment than on each of his several co-defendants, who, he argued, played the same or a larger role in the criminal scheme. (This argument was not raised at the district court level, and so was reviewed on a plain error analysis.) Rejecting the claim, the Court explained:
Although it is true that a district court may compare co-defendants' sentences to avoid unwarranted sentencing disparities, the sentencing disparities between Sierra and his co-defendants were not unwarranted in this case. Unlike Sierra, his co-defendants either (1) pleaded guilty pursuant to a plea agreement, (2) pleaded guilty to conspiracy to distribute heroin or narcotics but not to conspiracy to launder money, (3) pleaded guilty to conspiracy to launder money but not to conspiracy to distribute, or (4) were exceptionally honest in admitting to the crimes, and brought to the court's attention unique facts, such as HIV-positive status and a resulting reduced risk of recidivism. On plain error review, we therefore reject Sierra's unwarranted-disparity argument as without merit.
In the same case, the Court ruled as a matter of first impression that the base offense level for Sierra's conviction for conspiracy to launder narcotics proceeds could be calculated using the greater amount of drugs involved in the underlying offense of conspiracy to distribute heroin.
Lawyers: Randa Maher, Esq. (defendant); AUSAs Sarah Lai and Guy Petrillo.
At sentencing, a defendant's most personal and intimate experiences may be discussed and analyzed. The public has a presumptive right of access to these proceedings, and where, as in United States v. Doe, 2009 WL 4823001 (2d Cir. December 14, 2009), the defendant "seeks to seal the record of the criminal proceedings totally and permanently, the burden [to overcome that presumption] is heavy indeed."
In fact in Doe, both the defendant and the government sought the permanent sealing order based on the existence of an undisclosed "compelling interest subject to a substantial risk of prejudice." The Court accordingly appointed amicus curiae to defend the district court's order denying the application.
Although it held that total and permanent sealing was unjustified, the Court noted that "it may be possible to protect the 'compelling interest' at issue here by sealing the sentencing transcipt in a way that is less than total and permanent. It therefore remanded the case "to afford the parties an opportunity to apply for a sealing of the sentencing transcript that is partial, non-permanent, or both."
Lawyers: Lee Dunst, Anne Chamption, Daniel Chirlin, Brian Mogck, Aaron Simowitz, Gibson Dunn & Crutcher LLP (amicus curiae); AUSAs Elizabeth Kramer, Peter Norling, Jo Ann Navickas
Yesterday, in United States v. Bari, 2010 WL 1006555 (2d Cir., March 27, 2010), the Second Circuit held that in the context of a supervised release revocation hearing, where relaxed rules of evidence apply, it was not reversible error for a judge to employ an Internet search to confirm a reasonable intuition on a matter of common knowledge. Importantly, the Court did not hold that the opposite is true – that facts gleaned from an Internet search may be treated as common knowledge (because if that’s the case, there’s life on Mars, intelligent design is a valid scientific theory, and Elvis is still alive . . .).
Facts
Bari, a convicted bank robber, was charged with violating the terms of his supervised release by committing another bank robbery. At a hearing on the violation, the district judge noted the strong circumstantial case against Bari – “too many coincidences” that supported his conclusion that Bari had indeed robbed another bank, including the yellow rain hat found in Bari’s landlord’s basement that looked awfully like the hat worn by the bank robber in surveillance video tapes. He pointed out that there are “lots of different yellow rain hats that one can buy,” something he confirmed with a simple Google search.
On appeal, Bari argued that the court violated Fed.R.Evid. 605 – which prohibits a judge from testifying as a witness at a trial – “by conducting its own Internet search and relying on the results of that search in making its decision to revoke Bari’s supervised release.”
Holding
First, the Court held that “the Federal Rules of Evidence do not apply with their normal force in supervised release revocation proceedings . . . so long as [the judges’] findings are based on ‘verifed facts’ and ‘accurate knowledge.’”
Second, the Court held that the availability of many different types of yellow rain hats was a “matter of common knowledge” of which the district court could take judicial notice under Fed.R.Evid. 201 - “[t]he District Court’s independent Internet search served only to confirm this common sense supposition.” The fact that the judge chose to confirm his intuition with an easy Internet search, rather than rely solely on his common sense, was thus incidental. The dispositive issue was that the fact being confirmed was already one of common knowledge.
Comment
The reason why the Google search was useful in this particular case – confirming the district judge’s reasonable intuition, which on its own, passed muster under Fed.R.Evid. 201 – is why courts should be suspicious of them in general. Google is the perfect enabler of confirmation bias – the tendency to notice data that supports our beliefs and ignore the data that doesn’t – and since our intuitions are not always reasonable or accurate, reliance on Google searches as an investigatory tool should generally be met with skepticism.
Lawyers: David Hammer (defendant); AUSA Peter Skinner
In United States v. Seminerio, 2010 WL 749840 (S.D.N.Y. February 22, 2010), the defendant had been designated to the low security facility at Butner to serve his sentence in connection with his conviction for honest services fraud, rather than a minimum security camp. SDNY Judge Buchwald ordered the BOP to "correct its records to reflect that the defendant did not commit a crime of violence" and further apprised the BOP "that the designation of the defendant [to Butner] is not consistent with the Court's intentions." The BOP's website indicates, however, that 74 year-old Mr. Seminerio is currently in Butner.
In United States v. Hatfield, 2010 WL 550392 (E.D.N.Y. February 16, 2010), after an evidentiary hearing conducted before a magistrate, EDNY Judge Seybert ordered the Queens Private Detention Center to provide anti-anxiety medication to a trial defendant, "as directed by prescriptions written by" the defendant's private psychiatrist, and at the defendant's expense. The magistrate's recommendation of court intervention into the defendant's medical care was based on concerns that he might not be able to assist in his own defense if the medication issue is not resolved.
The defendant had challenged his sentence on procedural and substantive grounds. First, he argued that the district court had found “no reason” to give a below-Guidelines sentence, indicating an improper presumption in favor of Guideline sentences. Rejecting the government's motion for summary affirmance, the Second Circuit found that this position “is not inarguable nor totally devoid of support.”
Second, this 57 year-old defendant argued that his sentence was substantively unreasonable, where he was sentenced to 97 months for possession of child pornography, despite the absence of any evidence that he had ever acted inappropriately with a child, or distributed or traded the material. Similarly finding this argument non-frivolous, the Court pointed out that while it may apply a deferential abuse-of-discretion standard in evaluating the reasonableness of sentences, it still had a “duty to examine the substance of the sentence and to ‘patrol the boundaries of the reasonableness.’” The Court added: “Strong deference to a district court’s decision is not an invitation to rush to characterize an appeal from it as frivolous.” The motion for summary affirmance was denied and the regular appeal process will proceed.
Lawyers: James Greenwald and James Egan, Federal Public Defender (Defendant); AUSA Paul Silver
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