I. INTRODUCTION. Every federal criminal defense attorney must be familiar with the applicable standards of review

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1 PROCEDURAL VS. SUBSTANTIVE REASONABLENESS: A CRITIQUE OF SENTENCING STANDARDS OF REVIEW IN THE NINTH CIRCUIT 1 I. INTRODUCTION Every federal criminal defense attorney must be familiar with the applicable standards of review when appealing a sentence. The concept of reasonableness is foremost among them. During fiscal 2 year 2011, there were 12,198 criminal appeals filed before the different federal Circuit courts. Of these filings, over 96 percent 11,717 involved an issue regarding the Federal Sentencing Guidelines. 3 The United States Sentencing Commission determined that during fiscal year 2011, appellate courts 4 reviewed sentences for reasonableness in 41% of the 5,875 appeals examined. Within these challenges to reasonableness, the specific issue of substantive reasonableness was the most common, raised 20% of the time. 5 These statistics reveal that effective sentencing advocacy at the appellate level should inevitably involve a discussion of the reasonableness of the sentence. During fiscal year 2011, appellate courts 6 found sentences to be unreasonable in 7.5% of cases. It is an essential element to consider in any successful challenge to the length of a sentence imposed by the district court. For that reason, this article will attempt to outline the main substantive components of sentencing at the appellate level and 1 Nicolàs Jiménez. 2 Table S-6, Judicial Business of the U.S. Courts, Judiciary of the United States, Id. 4 Id. 5 Id. 6 Id. 1

2 detail how they have been interpreted in Ninth Circuit precedent. This discussion will reveal that the reasonableness of a sentence is reviewed under an abuse-of-discretion standard, which normally requires wide deference towards the district court s decision. However, as applied by the Ninth Circuit, abuse-of-discretion is only consistent with procedural reasonableness review. Review for substantive reasonableness inherently requires a rejection of the deference that should be afforded to the trial court. In that regard, while either standard provides enough latitude for a defense attorney to present compelling arguments for remand, review for procedural reasonableness is more consistent with the overall sentencing scheme favored by the Supreme Court. II. SUBSTANTIVE FOUNDATIONS The substantive foundations of sentencing advocacy were transformed by the Supreme Court s 7 decision in United States v. Booker. Before that decision, 18 U.S.C. 3742(e) established a de novo standard of review at the appellate level for sentences departing from the applicable guideline range. The Court in Booker, which held that the mandatory guideline scheme conflicted with the Sixth 8 Amendment, concluded that de novo review was incompatible with the now-advisory guidelines. The Court therefore decided that sentencing decisions should be subject to review for reasonableness 9 vis-à-vis the sentencing factors listed in 18 U.S.C. 3553(a). That section establishes a general standard the court shall impose a sentence sufficient, but not greater than necessary and lists several factors that should be considered by the sentencing judge while determining the sufficiency of 7 United States v. Booker, 553 U.S. 220, 260 (2005). 8 Id. 9 Id. at

3 10 the sentence. Among these are the nature and circumstances of the offense; the history and characteristics of the defendant; and the need for the sentence to reflect the seriousness of the offense, to afford adequate deterrence to criminal conduct and to protect the public from further crimes of the 11 defendant. After Booker, the district court s appreciation of the role of these factors in the sentence imposed was reviewed for reasonableness. However, one of Booker s dissenting opinions warned that the history of 18 U.S.C showed that Congress intended to avoid appellate interference with judicial discretion at the sentencing 12 level except as specifically provided by the statute. The dissent expressed concern that review for reasonableness would create an unwanted symphony of different standards, varying from court to 13 court and judge to judge. Added the dissent, the worst feature of the scheme is that no one knows and perhaps no one is meant to know how advisory Guidelines and unreasonableness review will function in practice. 14 One element of the unreasonableness review of concern to Justice Scalia was a call for strict 15 abuse-of-discretion deference towards the district court s sentencing decision. A few years after Booker, the Supreme Court explained in Gall v. United States that the familiar abuse-of-discretion 16 standard of review now applies to appellate review of sentencing decisions. However, as the Court U.S.C. 3553(a). 11 Id. 12 Booker, 553 U.S. at 308 (J. Scalia, dissenting). 13 Id. at 312 (J. Scalia, dissenting). 14 Id. at 311 (J. Scalia, dissenting). 15 Id. (J. Scalia, dissenting). 16 Gall v. United States, 552 U.S. 38, 46 (2007). 3

4 of Appeals for the Ninth Circuit has recognized, that it might be familiar does not mean that it is 17 always clear or simple to apply. In Gall, the Court explained the framework for abuse-of-discretion review: first, the district court must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications. 18 When reviewing that decision, appellate courts may therefore take the degree of variance into account 19 and consider the extent of a deviation from the Guidelines. The Court, however, cautioned that while appellate courts may consider the degree of the variance and the extent of the deviation from the Guidelines as part of the reasonableness of the sentence, they may not apply a heightened 20 standard of review to sentences outside the Guidelines range. Therefore, appellate courts may consider the extent of the deviation, but must give due deference to the district court s decision that 21 the 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court s determination Soon after Gall, the Ninth Circuit decided United States v. Carty. In Carty, the Ninth Circuit emphasized that reviewing the reasonableness of a sentence requires a two-step process. First, the 17 United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012). 18 Gall, 552 U.S. at Id. 20 Id. at Id. at Id. 23 United States v. Carty, 520 F.3d 984 (2008). 4

5 sentence must be evaluated for procedural reasonableness. Procedural unreasonableness occurs if the district court fails to calculate or to calculate incorrectly the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the [18 U.S.C. ] 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range. 24 Second, the sentence must be evaluated for substantive reasonableness. Substantive reasonableness depends on the totality of the circumstances, on whether the sentencing court properly weighed the U.S.C. 3553(a) factors in relation to the facts of the case. The Ninth Circuit emphasized that 26 the court may not reverse just because we think a different sentence is appropriate. One year after Carty, the Ninth Circuit adopted a specific definition of abuse-of-discretion 27 review. In United States v. Hinkson, the Ninth Circuit held that [a] district court abuses its discretion when it makes an error of law, when it rests its decision on clearly erroneous findings of fact, or when we are left with a definite and firm conviction that the district court committed a clear error of judgment. 28 This definition seems to expand, or at least further define, the type of review authorized in Booker and Gall. The cornerstone of reasonableness review, as explained in Booker, was examining the district court s adherence to the sentencing factors listed in 18 U.S.C (a). After performing that analysis, the sentence should only be modified if the appellate court concluded that the district court s examination of the factors was tainted by abuse-of-discretion. In Hinkson, the Ninth Circuit 24 Id. at Id. 26 Id. 27 United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc). 28 Id. 5

6 interprets the test for abuse-of-discretion to include a close analysis of the findings of fact of the district court, as well as identifying possible errors of judgment. III. MODERN ANALYSIS The convergence of the three elements procedural reasonableness, substantive reasonableness, and abuse-of-discretion can be observed in the Ninth Circuit recent decision of 29 United States v. Ressam. That case involved the sentencing of Ahmed Ressam, an Algerian national 30 known as the Millenium Bomber. Ressam was convicted by a jury on nine counts of criminal activity in connection with his plot to carry out an attack against the United States by detonating 31 explosives at the Los Angeles International Airport. His plan was for the attack to occur on the eve 32 of the new millennium, December 31, Under the advisory Sentencing Guidelines, the imprisonment range for Ressam s convictions was calculated by the district court to be 65 years to 33 life. The district court, after carefully considering the extensive procedural history of the case, (including Ressam s cooperation with federal authorities in providing information about terrorist activities, methods, tactics and individuals, along with discussing the applicability of each of the 18 U.S.C (a) factors), sentenced Ressam to a term of imprisonment of 22 years, plus five years 34 of supervised release. The Ninth Circuit disagreed, holding that the sentence was not extensive 29 Ressam, 679 F.3d at Id. 31 Id. 32 Id. 33 Id. 34 Id. 6

7 enough, and therefore substantively unreasonable. 35 The Ninth Circuit s decision was based largely on the fact that it disagreed with the district court s evaluation of the 18 U.S.C (a) factors. For instance, the Court believed that the district judge significantly overvalued the cooperation provided by Ressam during the time that he provided 36 assistance. The Court also found unreasonable and clearly erroneous the district court s finding that Mr. Ressam s life history and personal characteristics support favorable sentencing 37 consideration. The Court added that even if, in the end, it might be determined that Ressam should be given some credit for his cooperation and personal characteristics, that credit is not nearly strong enough to justify the substantial downward departure [authorized by the district court]. 38 Ressam s dissent singled out multiple inconsistencies in the majority s reasoning. It explained that the district court had carefully weighed each of the 18 U.S.C. 3553(a) factors and thoroughly considered each during sentencing. According to the dissent, the district court had lived with the case for nine years and its explanation reflects its familiarity with the history of the case and with the 39 defendant. The majority s decision to remand the case for resentencing was at odds with the strict abuse-of-discretion review mandated by the Supreme Court. The dissent emphasized that in avoiding unwarranted disparities, as in evaluating other key sentencing factors, district comis have enormous 40 discretion. It added that the Supreme Court has consistently instructed us, and we have reminded 35 Id. at Ressam, 679 F.3d. at Id. at Id. at Id. at 1100 (Reinhardt, J., dissenting). 40 Id. at 108 (Reinhardt, J., dissenting). 7

8 41 ourselves, that the appellate courts cannot substitute their judgment for that of the district judge. In that regard, the dissent concluded: The majority s criticisms of the district court, and this dissent, amount to no more than disagreement with the 22-year sentence imposed. That is not enough to warrant reversal. The district court carefully explained its reasons for imposing that sentence, as we have required in order to facilitate meaningful appellate review. But the burden is not on the district court to establish that its sentence is reasonable. Rather, the appellate court must affirm unless the district court committed procedural error or imposed a substantively unreasonable sentence. The majority has not satisfied its burden of showing the district court s sentence was unreasonable. 42 The Ninth Circuit s decision in Ressam closely follows the one of its prior decisions, United 43 States v. Amezcua-Vazquez. In that case, the Court found substantively unreasonable the district court s decision to apply a 16-level enhancement under the Guidelines because the defendant had been previously convicted of a crime of violence, had been deported, and had subsequently returned to the United States illegally. The Ninth Circuit concluded the crime of violence was too remote to justify the 16-level enhancement, which dramatically increased the defendant s sentence. The reasoning was that the district court applied the Guidelines sentence without considering the defendant specific facts that made the resulting sentence unreasonable under 3553(a) i.e., the staleness of the predicate prior conviction and its diminished import on the severity of the illegal reentry decades after the original conviction. 44 In essence, the Ninth Circuit believed the district court s focus on a remote conviction was too significant in its evaluation of the 3553 (a) factors. The Court did not specifically discuss how the district court s decision, even though it was technically and procedurally sound, could be interpreted 41 Id. (Reinhardt, J., dissenting). 42 Ressam, 679 F.3d at 1108 (Reinhardt, J., dissenting) (citations omitted). 43 United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009). 44 Id. at

9 as an abuse of discretion that is, why it was categorized as a clear error of judgment. III. PROBLEMS IN THE NINTH CIRCUIT Amezcua-Vazquez and Ressam reveal the inconsistency between review for substantive reasonableness and an adherence to an abuse-of-discretion standard. Certainly, the Supreme Court s mandate for abuse-of-discretion review has not been interpreted rigidly and inflexibly by the Ninth Circuit. Even though Gall warned appellate courts to avoid substituting the district court s judgment for their own, the Ninth Circuit has clearly stated and demonstrated that it would not rubber stamp the trial court s findings. In both Amezcua-Vazquez and Ressam, the Court remanded sentences imposed after proper consideration and explanation of the 3553 factors by the district court. In essence, the Ninth Circuit rejected otherwise reasonable sentences because it disagreed with the trial court s evaluation of the facts. This more flexible approach to sentencing allows the attorney to emphasize certain facts of the case that might have been overlooked by the trial court and would otherwise lack relevance under a stricter standard of review. Moreover, it could certainly be argued that the Ninth Circuit s approach distances itself from the purpose of abuse-of-discretion review. For that standard to be faithfully employed, appellate review of a sentence should conclude at examining its procedural reasonableness. Once an appellate court decides to evaluate the district court s appreciation of the facts underneath a sentence imposed according to proper procedure that is, after considering each of the 3553 factors then it is abandoning its due deference to the trial court. In other words, substantive reasonableness and abuse-of-discretion cannot coexist in the strict sense of each term. The sentencing court s exercise of discretion necessarily must allow it to operate without disturbance within certain boundaries. Those boundaries are set by the process required by the Supreme Court: The sentencing judge should set 9

10 forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis for exercising his own legal decision-making authority. 45 If the district court adheres to this process, considers the 3553 factors as well as the parties arguments with regards to each, and explains its reasons for imposing a particular sentence, then its judgment should be respected under the abuse-of-discretion standard. The emphasis on the court s discretion must allow it to operate within certain parameters without interference. In that regard, the Ninth Circuit s decisions in Amezcua-Vazquez, and particularly Ressam, are nothing more than replacing one court s exercise of discretion with another, which seems contrary to the Supreme Court s intentions in Booker and Gall. In any case, the emphasis on substantive reasonableness review in Booker and Gall seems misplaced. Revising the standard to require only procedural reasonableness review would in essence serve the same purpose and eliminate much of the confusion surrounding sentencing review. An appellate court, while analyzing the procedural reasonableness of a sentence, could first examine the district court s decision in light of clearly defined parameters, the minimum and maximum range recommended by the Guidelines. Within that range, the district court must consider the 18 U.S.C factors while arriving at a sentence that is sufficient but not greater than necessary to achieve the purposes of the statute. In that analysis, the court must reach its conclusion after properly explaining, as required by Rita, its basis for exercising its discretion one way or another. That entire process should be encompassed in procedural reasonableness review. A further step of empowering appellate courts to weight findings of fact or certain exercises of judgment naturally results in the higher court interfering with the sentence when it disagrees with the conclusion. The procedural review 45 Rita v. United States, 551 U.S. 338, 356 (2007). 10

11 provides sufficient safeguards to preserve the meaningful appellate intervention mandated by Booker and Gall as part of the advisory Guidelines scheme. IV. CONCLUSION In the end it is unclear who benefits from the current standard of review. In Amezcua- Vazquez, the Court s analysis produced a greatly reduced sentence for the defendant. The remand in Ressam, however, will probably result in a much more extensive term of imprisonment. What is clear is that defendants would undoubtedly benefit from a more consistent and reasoned approach to sentencing review. As it stands, a defendant that believes the district court s sentence was unreasonable can deploy the current standard in his or her favor, asking the appellate court to review findings of fact or errors of judgment that would, and should, otherwise be off-limits. Certainly, this benefit can also work in the government s favor. All parties would benefit by the existence of a defined set of legal principles to encompass appellate sentencing review, beyond the current paradigm of reasonableness in its procedural and substantive variations. The principles are best embodied by a rejection of the current concept of substantive reasonableness and a greater focus on the procedural foundations of a particular sentence. That approach would provide for lesser confusion from the courts, fewer contradictory decisions such as Ressam, and greater certainty for defendants with legitimate challenges to their sentences. 11