Saturday, May 8th, 2010

American Idle

United States v. Hernandez, No. 09-1421-cr (2d Cir. May 5, 2010) (Jacobs, Kearse, Calabresi, CJJ)

Here, the circuit found that the defendant’s sentence was procedurally unreasonable because it took the district court fifteen years to get around to imposing it.


In 1991, Hernandez was convicted after a jury trial of drug trafficking and associated crimes of violence. Judge Platt sentenced him to 405 months’ imprisonment and a large fine. The sentence included an aggravating role enhancement. On Hernandez’ first appeal, decided in 1993, the court vacated the sentence because the judge had imposed the enhancement over objection but had made “no finding” with respect to Hernandez’ role.

Judge Platt did not act on the remand. In 1997, at the government’s request, he appointed counsel for Hernandez, but still did not resentence him. Finally, in 2008, fifteen years after the remand was ordered, Hernandez’ mother wrote the judge a letter “expressing bewilderment.” This, finally, prompted the him to act. Sort of. He held a conference, attended only by the government, in which he indicated that there was no need for further findings on Hernandez’ role because “[Judge Kearse] did it right there in her own opinion, answered the question she said I didn’t answer.”

In December of 2008, Hernandez filed a sentencing memorandum urging the court to impose a lower sentence, which included substantial evidence of his rehabilitation. Judge Platt finally conducted the resentencing in March of 2009. Sort of. The proceeding consisted of his handing out a written memorandum that addressed the role enhancement, but “did not discuss evidence of Hernandez’s rehabilitation.” After hearing from the parties, he imposed the same sentence, without ever “expressly react[ing] to evidence of Hernandez’ rehabilitation or other proposed mitigating factors.” The Judgment included a Statement of Reasons that indicated that the judge had “considered all the … factors in 18:3553(a),” even though he was “not required to [conduct] a full re-sentence outside of the Court of Appeals Mandate.”

The Court of Appeals’ Decision

The court vacated the sentence, holding that the failure to “consider how intervening developments – in particular Hernandez’s rehabilitation – affected the Section 3553(a) analysis” was error. That evidence, if credited, “could affect the weight given to considerations that were discounted in 1991 by the gravity of Hernandez’ crime” such as his youth and the fact that he was a drug addict when the crime occurred.

What is unusual about this case is that the court second-guessed Judge Platt’s rote incantations that he had considered all of the statutory factors. The court held that this was a case where “record evidence suggest[ed] otherwise.”

First, the judge “misconstrued the scope of re-sentencing.” He thought, at least at first, that he did not need to make factual findings in support of the role enhancement at all. Moreover, his written sentencing order focused only on those findings, apparently based on his belief that he was not required to conduct a full resentencing. This caused him to “perfunctorily den[y] those arguments it deemed outside the limited scope of resentencing.”

This was procedural error “in a resentencing so long delayed.” While there was a presumption that the resentencing would be limited, not de novo, here there were compelling reasons for that presumption to be overcome. During the fifteen year hiatus, the law of sentencing had changed substantially and Hernandez might have undergone a substantial rehabilitation.

Given this, that Judge Platt focused only on the seriousness of the offense was an indication that he “failed to consider the Section 3553(a) factors.” This procedural error required that the sentence again be vacated.

The court also ordered that the resentencing take place before a different judge. Since Judge Platt imposed the same sentence twice without making the required findings, he may “reasonably be expected to have substantial difficulty ignoring his previous views during a third sentencing.” Also, while there was no evidence of actual bias against Hernandez, an objective observer might question the judge’s impartiality. Finally, reassignment will not waste judicial resources, since no judge has yet done what needs to be done in this case.

The Concurrence

Judge Calabresi concurred, writing separately to set out his view that the fifteen-year delay by itself warranted reassignment to a different judge, since “the circumstances surrounding that gap may lead an objective observer to conclude that it was caused in part by the behavior of the sentencing judge.”

Any resentencing outcome in such a situation might reasonably be called into question. If the judge imposes a lower sentence after the delay, an observer might think he did it to compensate for his own dilatory behavior or to punish the government for its neglect. If the judge imposes the same sentence, an observer might think that he was just trying to “sweep the matter under the rug” by suggesting that the delay was immaterial to the outcome. Finally, if the judge imposes a higher sentence, an observer might wonder if the judge improperly blamed the delay on the defendant.


This is the second time in less than one year that the court has confronted a case where Judge Platt let a resentencing languish for an unacceptably long time. In August, the court decided United States v. Ray, in which it held that Judge Platt’s unexplained and prejudicial delay in resentencing the defendant – as here, the delay was fifteen years – amounted to a due process violation. See Delay Gratification, posted August 31, 2009.

The two cases offer an interesting contrast in appellate litigation strategy. Ray pitched the issue as constitutional one, arguing, unsuccessfully, under the Sixth Amendment right to a speedy trial and, successfully, under the due process clause. Although she prevailed, to some degree, she did not win a full resentencing. And she had to show “substantial and demonstrable” prejudice to get even the limited relief she got.

Hernandez, on the other hand, chose to make a 3553(a) argument. He seems to have had an easier time, since he did not have to make such a strong showing of prejudice. In fact, here, it does not seem that the case really turned on prejudice at all. While, at least in theory, any defendant making a § 3553(a) procedural claim should argue that the error was not harmless, the Hernandez opinion never gets to that question. There is nothing in the opinion to indicate that the court thought that there either should or would be a lower sentence on remand.

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