Sentencing Class @ OSU Moritz College of Law

With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums

As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff.  (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence.   Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact?  Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)

We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence.  Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case:  should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)?  How about her status as a newlywed?  Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?   

But rather than continue to obsess over the killer bride  (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms.  Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:

• Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this informative speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.”  It provides great background on the past and present of federal drug sentencing.

• US District Judge James Browning  provides a defense of the federal sentencing status quo in a lengthy opinion in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.

• An on-going legislative sentencing reform debate developing around heroin in Louisiana, which is well covered in this notable news article headlined, "In heroin debate, a detour from sentencing reform." 

Some background and sentencing readings related to Ninth Circuit CJ Alex Kozinski

As I have mentioned, on Wednesday April 2, we will have the honor and pleasure of having Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, visit our class. For basic background on this renown jurist, check out his Wikipedia entry and/or this (dated) Unofficial Judge Alex Kozinski Site and/or this 2005 Legal Affairs profile.  That profile has this headline and subheading: "THE BIG KOZINSKI; If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster."

Because he has written opinions and commentaries on every subject under the legal sun, it would be almost impossible to read even a small sample of all his views.  Fortunately, though, he has written a few especially high-profile (though now somewhat dated) pieces about death penalty jurisprudence and federal sentencing jurisprudence.  Here are links to a few highlights from this part of CJ Kozinski's corpus:

Concerning the death penalty, check out this lengthy co-authored 1995 op-ed in the New York Times given the headline "For an Honest Death Penalty." It starts this way:

It is a staple of American politics that there is very strong support for the death penalty; in opinion polls, roughly 70 percent consistently favor it. Yet the popular will on this issue has been thwarted.

To be sure, we have many capital trials, convictions and death sentences; we have endless and massively costly appeals; and a few people do get put to death every year. But compared to the number of death sentences, the number of executions is minuscule, and the gap is widening fast.

Note that, back in the early 1990s when this op-ed was authored, thoughtout the US there were often 300 death sentences imposed and only about 30 executions each year. Lately, in contrast, we have had in the US only about 75 death sentences and 40 executions each year.

On the topic of federal sentencing, I succeeded way back in 1999 to get CJ Kozinski to author this article for the Federal Sentencing Reporter a full five years before Booker made the Guidelines advisory.  It starts this way:

Once or twice a year I sit as a trial judge, usually in a criminal case. I've been doing it for many years and never cease to learn something new. I started before the Sentencing Guidelines, so I have sentenced defendants both with and without the Commission's guidance. I've had my doubts about the Guidelines; I even wrote an opinion saying they were unconstitutional. Doubts sometimes resurface when I sit as an appellate judge, but I have no doubts when I sit as a trial judge: I like the Guidelines and hope they're here to stay.

I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison. Some judges may have the wisdom of Solomon in figuring out where in that range to select just the right sentence, but I certainly don't. Would too heavy a sentence destroy a young life and snuff out any chance of rehabilitation? Would too light a sentence embolden the defendant, endangering the lives of innocents? What deterrent effect will the sentence I impose have on others?

Deciding whether someone spent the next twenty years in prison or got straight probation was a burden almost too heavy to bear. Somehow I felt it was wrong for one human being to have that much power over another. Imposing sentence was, for me, almost an act of sacrilege.

Nor did it help that there was no appeal from the sentence. On the contrary, the very finality of the decision made it all the more difficult. If the sentence had been subject to appeal, someone else could have told me if I was way off the mark. But with no sentencing appeals, the burden lay entirely on my shoulders, and I didn't like it a bit.

Enter the Sentencing Guidelines and all this changed for the better. Gone are the wide open spaces for sentencing discretion. Sentencing ranges are narrow and presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition--they're all engineered into the machine; all I have to do is wind the key. The Probation Officers in the Central District of California, where I mostly sit, do an excellent job and there are seldom disputes over the accuracy of the PSR. When there are, I do what I am competent to do--make factual findings.

Once I have figured out the range, I always sentence at the very bottom; I never depart up or down, unless it's a guided departure like substantial assistance or acceptance of responsibility. This is true whether a defendant has pleaded guilty or proceeded to trial; generally, I have found that the bottom end of a given Guideline range sufficiently captures a defendant's criminal culpability, and I very seldom run across a case so unusual as to warrant departure. If the sentence seems too harsh or too light, I no longer feel responsible.

Sentencing submissions in US v. Graham: YOU BE THE SENTENCING JUDGE (and/or predict what the real judges will do)

As promised, here are links to the sentencing submission in US v. Graham (D. Montana):

• Defense sentencing memorandum for Jordan Linn Graham

• Prosecution sentencing memorandum for Jordan Linn Graham

As I mentioned in class, I am VERY interest in having students review these submissions and then comment/opine about (1) what sentence they would give if the sentencing judges in this case, and/or (2) what sentence they predict the actual federal sentencing judge will give on Thursday at the actual sentencing.

For anyone who makes a judgment/prediction that is spot on, I will reward with a special surprise prize.

UPDATE: Outcome is detailed over at SL&P: Remorseless killer bride gets sentenced to 30+ years in federal prison

Seeking engagement on "offense" for sentencing purposes (with or without emphasis on "acquitted/uncharged conduct")

In this post from my main blog, titled "As a matter of law, policy and practice, what should be the 'offense' a sentencer considers?," I set out some ideas that I referenced in last Wednesday's class and that I am eager to review during our two classes this coming last full week of March. (Remember, class does not meet on 3/26; I suspect I have already conducted a make-up class with the extra minutes I have run class late some days.)

In that post (which I urge students to review), I explain why many challenging and controversial issues of modern sentencing can often relate to the consensus viewpoint that (1) offense(s) of conviction are a necessary and critical part of the "offense" to be considered at sentencing, but also that (2) at least some non-conviction, offense-related factors (such as a defendant's motive and role and the impact on victims) should also be considered sentencing.  The constitutional issues considered by the Supreme Court in Watts and the broader debate over whether sentencing guidelines should focus mostly/exclusively on the "charged" offense or the "real" offense depend to a large extent on whether concern (1) or concern (2) is considered most important at sentencing.

Usefully, an interesting and notable variation on the Watts case was decided by the DC Circuit less than 10 days ago in a multi-defendant case involving one defendant named Antwuan Ball.  I discussed the background and ruling in the Antwuan Ball case in this SL&P post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims."  Here are the factual basics:

Ball put the government to its burden of proof concerning allegations of his involvement running a massive drug conspiracy in Washington DC; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

At sentencing, federal prosecutors urged the district judge to rely heavily on all sorts of alleged wrongdoing by Ball to impose a (statutory maximum) sentence of 40 years on the crack charge/conviction.  Relying on the prosecution's allegations that Ball was the leader of a huge crack conspiracy (claims which the jury concluded were not proven beyond a reasonable doubt), the district calculated Ball's guideline sentencing range to be 292 to 365 months (whereas Ball's guideline range would have been only 51 to 71 months absent consideration of "acquitted conduct").

District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy," and he ultimately decided to give Ball a (below-guideline-range) 225-month prison sentence for his conviction based on the 2001 hand-to-hand drug transaction. In other words, like the defendants in the Watts case that came before the US Supreme Court, Antwuan Ball's calculated guideline range and his actual sentence was significantly impacted by "real offense conduct" considered by the sentencing judge but not the basis for a conviction. But, as was likewise true for at least on of the Watts defendants, Antwuan Ball ultimately was eligible for and received a much lower sentence than he would have gotten had been convicted of all the offenses with which he had been charged. (Ball likely would have been facing a statutory mandatory LWOP if he had been convicted by the jury of being the leader of a big crack conspiracy.)

I have strong (but quite nuanced) views about what is wrong and what is not-so-wrong with how federal sentencing law now deals with defendants like Antwuan Ball, and you can become more informed and insightful than 99% of practitioners if/when you can understand why these issues are so philosophically and doctrinally challenging. And, to aid analysis, my post about the Ball case generated a pair of thoughtful posts at The Volokh Conspiracy:  Professor (and former federal sentencing judge) Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?". And then Professor Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence." 

Among the reasons you might want to invest time/energy thinking through this case is because I likely will be authoring an amicus brief this coming summer in support of a cert petition if/when the lawyers for Antwuan Ball and his co-defendant decide to pursue further appeals.  I would welcome any and all student help and input now or later concerning such a project.

Make sure you work on (and are ready to discuss) FSG sentencing of Rob Anon

Monday's first post-break class will involve lots of catching up on events since our last gathering and lots of gearing up for our final six week of classes. It will help if everyone has already gone through the Rob Anon guideline sentencing experience, and having done so will be essential to getting the most out of our classes the rest of this month. If you have already done this exercise, do it again and/or review your work. If you have note done it yet, please do ASAP. And everyone is encouraged to discuss the experiences in the comments here.

Basketball, baseball, brews and professional bonding in the weeks ahead....

Now that March Madness and baseball's spring training are finally in full swing (and golf season and The Masters are on the horizon), I am likely to be grumpy any and every Thursday and Friday afternoons for the next month if/whenever I am in my Moritz office working rather than over at Eddie's watching sports of some sort.  But I always feel guilty (and lame/lonely) if I go over to EG's alone, and thus I mean through this post to encourage/bribe students to rescue me so I can rationalize a trip out of my office as a form of work/professional bonding with whomever comes and gets me.

As some of you know, I always buy the first round for any/everyone who pulls me out of my Moritz office at a convenient/appropriate time on a Thursday or Friday.  Today, for example, in addition to being Pi Day (3.14), I am especially eager to watch the Big Ten tournament (at least when the Buckeyes are playing; tip at 2:30pm).  

In subsequent weeks, there will be the NCAA Tourney, the official start of baseball season, and then The Masters to distract me from other (more productive?) endeavors.  If (when?) I start feeling guilty about too much afternoon time watching sports, I may have to take back this open invitation for professional bonding; until that time; PLEASE feel free to take advantage of my open-door EGs migration policies.  

If you want to spend a cold day in a warm appellate courtroom...

I will be driving down to Cincy this Thursday morning in order to participate in oral arguments before the Sixth Circuit in US v. Young.  Details about the case is available here at my main blog, and the arguments are slated third for session (as set forth on this calendar) scheduled to begin at 9am.  The panel hearing the case is composed of Judges Griffin, White, and Stranch in Room 403 of 540 Potter Stewart US Courthouse Building.

I will be driving down to Cincy in my Prius, which can hold up to 3 passengers. I already have one student scheduled for a ride, whom I plan to pick up in the Moritz parking lot at 7:20am on Thursday morning. Anyone ease eager to come along should let me know ASAP so I look for you at that time.

Hints and help for federal guidelines sentencing of Rob Anon

With apologies for the delay, I will through this post provide some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines.  I will begin with a few links to the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

• Entire 2013 Federal Sentencing Guidelines linked via USSC

• USSG § 1B1.1:  Application Instructions
• USSG § 2B3.1:  Robbery
• USSG § 3B1.1:  Aggravating Role
• USSG § 4A1.1:  Criminal History Category

• USSG Chapter 5, Part A:  Sentencing Table

I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (and then use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want/need some more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

• Worksheet for sentencing individuals under USSG

If (when?) you still want/need still more help, a bit of effective google sluething should help you track down a free U.S. Federal Sentencing Guidelines calculator that was developed by a lawyer eager to help lawyers do quick and dirty guideline calculations for their clients. Unfortunately, that calculator does not appear to be updated after 2011, so I cannot vouch for its accuracy circa 2014.

As you work through this assignment (especially as it carries into the Spring Break), please feel free and encourage to express your perspective on what it feels like to sentence in the federal system now that a whole lot of law has been brought into the process.

REMINDER: for high learning and low stress this week...

everyone should be doing the first part (i.e., the first page) of the sentencing exercises ASAP:  after reading (or even while reading) the Frankel excerpt and the notes that follow at the start of Chapter 3, everyone should imagine herself as a federal judge at the time of Judge Frankel and come up individually with an exact pre-guideline sentence for Rob Anon (the federal back robber described at the start of Chapter 4).

Students are welcome to also try to figure out (both procedurally and substantively) how Rob Anon would be sentenced now in the modern structured sentencing era, but that will not be essential for our conversations during the first few classes this week.  After class on Tuesday, I will post some materials here on the blog that should make it somewhat easier to do the guidelines part of the exercise before Wednesday's class.