Friday, June 16th, 2006

Have the Mandatory Guidelines Been Reenacted?

United States v. Rattoballi, Docket No. 05-1562-cr (2d Cir. June 15, 2006) (Walker, Winter, Jacobs): Someone please wake us up: We read this opinion and had a nightmare that we lived either in another Circuit or in an alternate universe in which Booker had never happened. In an extraordinary act of law-making that flouts Booker and contradicts core post-Booker caselaw in the Second Circuit, including Crosby and Fernandez, C.J. Walker, along with former and future C.J.s Winter and Jacobs, writes as if on a clean slate (and as if this were the 7th or 8th Circuits rather than the 2nd) and overturns, for the first time since Booker was decided 17 months ago, a sentence as substantively unreasonable (i.e., just too short). Cynics will not be surprised that this occurred on a Government appeal of a below-the-range sentence, rather than a defendant’s appeal of an above-the-range sentence.

The result is bad enough. But the opinion contains even worse general language that seemingly elevates the Guidelines range to a first-among-equals status in relation to the other 3553(a) factors and suggests that any non-Guidelines sentence will be treated skeptically on appeal. To support these assertions, which are not supported by Second Circuit precedent (and contradict, at least, Fernandez’s holding that the advisory range deserves no presumptive treatment either at sentencing or on appellate review), C.J. Walker’s opinion conspicuously relies almost exclusively on cases decided by the 1st, 7th, and 8th Circuits. Rattoballi has made new law in this Circuit, and new law that contradicts Crosby and Fernandez. We strongly urge defense counsel to seek en banc rehearing.

The essential facts are these. Defendant is the owner of a 12-employee printing company. To obtain and retain business from various advertising agencies, Rattoballi paid kickbacks, in the form of luxury goods and services (as well as cash), to the agencies’ executives, especially one Mosallem of Grey Global. In exchange, the ad execs would steer their respective agency’s printing business to defendant’s company. To further curry favor with the ad execs, Rattoballi participated in a bid-rigging scheme that profitted the execs personally. The relevant events occurred from 1990 to 2001.

Rattoballi was charged with conspiracy to rig bids, in violation of the Sherman Act, and with mail-fraud conspiracy. He pled guilty pursuant to a cooperation agreement. He agreed to give truthful information, in particular, against Mosallem, and to testify against the latter if necessary. Mosallem later pled guilty, and we assume that Rattoballi’s cooperation contributed to this result.

However, while preparing for Mosallem’s trial, the Government discovered that Rattoballi had understated the amount of his kickbacks to Mosallem during proffer sessions. When confronted, Rattoballi admitted that he gave cash to Mosallem, as well as an $87,000 watch. Rattoballi also admitted that he discussed the Government’s investigation with Mosallem, and that Mosallem asked him not to reveal the additional kickbacks to prosecutors.

At sentencing, the applicable range was 27 to 33 months, which included a 2-level reduction for acceptance of responsibility. The Government apparently urged a within-the-range sentence (we assume no 5K1.1 motion was made), and defense counsel sought a below-the range sentence.

Judge Griesa agreed with the defense and imposed a sentence of 1 year’s home confinement, 5 years’ probation, and $155,000 restitution. The court gave the following reasons for its sentence: (1) Rattoballi had pled guilty and “admitted the full range of his misconduct”; (2) the three-year investigation and prosecution had taken a toll on defendant and on his business; (3) his business would be destroyed if he were imprisoned; (4) not imprisoning Rattoballi would assist in the payment of restitution; and (5) Mosallem was the prime mover in the scheme and “exerted an enormous amount of pressure” on defendant to participate.

C.J. Walker examines each of the reasons and finds them deficient. Op. 20-24. But before doing so, he lays out the general contours of “substantive” reasonableness review on appeal — i.e., review of whether a sentence is unreasonably long or short. And in so doing, he acts as if writing on a clean slate and ignores Second Circuit law while citing out-of-Circuit cases inconsistent with Second Circuit law.

After initially citing Crosby for the innocuous proposition that district courts must consider the Guidelines range after Booker, Op. 13, C.J. Walker’s opinion then leaves the Second Circuit entirely. The opinion first claims, citing only to 1st and 7th Circuit opinions, that a judge may “not import [his/her] own philosophy of sentencing if it is inconsistent” with the 3553(a) factors. This is harmless taken at face value, but as the opinion later reveals, what C.J. Walker really means is, “inconsistent with the Guidelines range and policy statements.”

Relying principally on the 1st Circuit (as well as the 4th, 7th, and 8th), C.J. Walker next asserts that “The guidelines cannot be called just another factor in the statutory list, 18 U.S.C. 3553(a), because they are the only integration of the multiple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges.” Op. 14. In addition to being new law, and new law that contradicts the language and spirit of Booker and Crosby (as well as Canova, Fleming, and Fernandez), this statement is flat wrong on all three subsidiary points: (1) the plain language of 3553(a) gives no priority to the Guidelines range or policy statements; nor does Booker; (2) far from “integrat[ing]” many of the 3553(a) factors, the Guidelines ignore or contradict the other factors (e.g., it ignores most relevant offender characteristics (age, health, prior good works) and considers only defendant’s past bad acts. Moreover, even the Commission itself has admitted that the Guidelines’ treatment of crack vs powder cocaine, as well as the Career Offender guidelines, cause unwarranted disparities); and (3) as Judge Cabranes and Professor Stith point out in “Fear of Judging,” the myth of the Sentencing Commission’s empiricism and rationalism is just that — pure myth.

If the opinion ended there, it would have been bad enough. But C.J. Walker goes further, establishing for the first time that “we will view as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant, but instead reflect attributes common to all defendants.” Op. 16. Nowhere in Booker or 3553(a) can such a principle be found. The opinion’s sole explanation for this claim, rather, is that “[d]isparate sentences prompted the passage of the Sentencing Reform Act and remain its principal concern.” Id.

And it gets worse. The opinion goes on to say that “several other circuits have endorsed the rule that requires district courts to offer a more compelling accounting the farther a sentence deviates from the advisory Guidelines range.” Op. 18. Here, at last, the panel begrudgingly (if only implicitly) recognizes that it is not writing on a clean slate and that the Second Circuit has already rejected this position, as both Crosby and Fernandez held that the Guidelines hold no presumptively correct status, either at sentencing or on appellate review.

The opinion thus does not go so far as to adopt the rule in this case. But it then disingenuosly states that “we have yet to adopt such a rule in this circuit,” id., and denigrates sentences deviating signficantly from the advisory range as “marginal sentences” that may require “a compelling statement of reasons that reflect consideration of 3553(a) and set forth why it was desirable to deviate from the Guidelines.” Op. 19. This is an extraordinary departure from Second Circuit law (no pun intended). Nowhere is Fernandez mentioned, of course.

Query: What’s the difference between a rule that requires “a compelling statement of reasons” to justify “deviat[ion] from the Guidelines” and a rule that requires the showing of exceptional circumstances to justify “departure from the Guidelines”? If the latter rule violates the Sixth Amendment, as the Supreme Court held in Booker, surely the former does as well.

The opinion’s specific discussion of the factors relied upon by Judge Griesa is no better. First, it reasserts the claim that the district court erred by relying upon factors “common to all defendants.” Op. 20. It then asserts that the court ignored a Guidelines policy statement suggesting that alternatives to confinement are inappropriate for antitrust offenders. Op. 21 (citing U.S.S.G. 2R1.1, cmt. n.5. Of course, the opinion makes no mention of 3553(a)(3), a statute explicitly requiring the sentencing court to consider the “kinds of sentences” available in imposing sentence.

Even worse, the opinion adds dicta in a footnote that would fully reenact the mandatory Guidelines regime invalidated by Booker. The opinion states that it is unclear from the record whether Judge Griesa relied on offender factors, such as vocational skill or employment record, in deviating from the Guidelines. Op. 22 n.4. It describes such factors as having been deemed “not ordinarily relevant” to the sentencing determination by the Commission and by Congress. It then gratuitously says that “to the extent that the district court relied upon these factors, however, it did not point to any circumstances extraordinary to Rattoballi . . . .” Id. (emphasis added). These “improper factors” therefore cannot be looked to in determining the reasonableness vel non of the sentence. Id. If there is any difference between the Guidelines-dominated world envisoned by this dicta and the Guidelines-dominated world struck down in Booker, we would love to know.

Finally, the opinion concludes that Judge Griesa relied too heavily on Rattoballi’s history and characteristics under 3553(a)(1), asserting that “those considerations are neither sufficiently compelling nor present to the degree necessary to support the sentence imposed.” Op. 25. It cites as support a 6th Circuit opinion holding that the district judge gave “too much weight” to the defendant’s history and characteristics,” and states that “a sentence must reflect consideration of the balance of the 3553(a) factors; unjustified reliance upon any one factor is a symptom of an unreasonable sentence.” Id. (Except, apparently, when that factor is the Guidelines range or policy statements). That this statement contradicts Fernandez’s holding that the weight to be accorded any particular 3553(a) factors rests entirely within the district judge’s discretion is nowhere mentioned.

As stated at the outset, en banc rehearing of this decision is appropriate in light of its inconsistency with cases such as Crosby and Fernandez. The decision’s seeming resurrection of the mandatory Guidelines regime also, of course, contradicts Justice Stevens’s merits majority opinion in Booker.

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