Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in “open court” its reasons for imposing a particular sentence.
1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking. Day was originally sentenced to fifteen years’ imprisonment, after having been convicted of one offense with a ten-year mandatory minimum and one with a five-year mando. In 2006, the circuit, in a summary order, vacated the sentence because it appeared from the record that Judge Platt erroneously believed that the two minima had to run consecutively.
On remand, Judge Platt, without notice to anyone, and in the absence of Day and his counsel, filed an order resentencing him to the same 180-month sentence. The circuit reversed, naturally, holding that the district court violated Day’s constitutional right to be present at sentencing, and that the error was not harmless. The district court also violated Day’s right to notice of an adverse non-Guideline sentence, and failed to satisfy the “open court” requirement of § 3553(c).
The circuit remanded the case to a different judge for resentencing, being careful to note that there was no evidence of an actual – only a perceived – bias against Day. But having imposed an identical sentence after the first remand, Judge Platt might have difficulty “ignoring his previous views during a third sentencing proceeding.”
2. By contrast, in United States v. Espinoza, No. 05-0711-cr (2d Cir. January 11, 2008) (Cabranes, Sack, Katzmann, CJJ) (per curiam), the court found that a district court’s reliance on the entire record, including the PSR, was sufficient to satisfy the “open court” requirement, even though this reliance was only revealed in the written Judgment.
In this drug case, defense counsel objected at sentencing to the PSR’s recommendation of an aggravating role enhancement, but did not give any specifics. The judge never mentioned the enhancement again, then imposed a 360-month sentence, the bottom of the range that included the enhancement. The written statement of reasons (“SOR”) included with the Judgment, however, indicated that the court had adopted the PSR and its Guideline calculations “without [c]hange.”
First, the circuit decided to review only for “plain error.” Even though Espinoza objected to the enhancement, he apparently did not do so with sufficient vigor for the circuit. Since the PSR and sentencing colloquy put him “on notice” that the court was applying the enhancement, his supposed failure to object “cannot be excused.” The court went on to conclude that the cryptic reference to the PSR in the SOR, while clearly not enough, did not constitute plain error. “[F]ailure to satisfy the open court requirement … does not constitute ‘plain error’ if the district court relies on the PSR, and the factual findings in the PSR are adequate to support the sentence.”
Comment: These cases are both disturbing, although in different ways. Day is disturbing because of the completely bizarre way that the district court dealt with the remand. This was not a so-called Jacobsen remand, in which the circuit asks the district court what it would have done if it had properly understood its authority. It was a full-on plenary remand for resentencing. What was Judge Platt thinking?
Espinoza is disturbing because of the circuit’s highly suspect holding that Espinoza had forfeited his claim. Espinoza objected to the enhancement at sentencing, and that should have been enough to preserve the issue. While the circuit found fault with him for not giving specific evidence that he was not an organizer/leader, in fact, Espinoza had no such obligation — the government had the burden of proof on the enhancement.