United States v. Rattoballi, Docket No. 05-1562-cr (amended opinion June 21, 2006) (Walker, Winter, Jacobs): Yesterday, the panel in Rattoballi (click here for our critique of the original opinion) sua sponte issued an amended opinion. However, because the Circuit (1) never informs its readers what portion(s) of the original opinion has been altered in an amended opinion; (2) the original opinion has been replaced on the Circuit’s website with the amended one; and (3) this Blog already consigned its paper copy of the original opinion to the recycling bin of bad decisions, a concern arose that only memory itself could tease out what is new in the amended opinion. Fortunately, Westlaw has yet to replace the original opinion with its amendment, so those with the time and patience can compare and contrast the two.
This Blog’s morning perusal reveals little new in the amended opinion; most of the errors in the original remain in the update. We spot only two alterations. Readers are encouraged to comment on additional changes this Blog failed to notice.
The first is found in the very problematic footnote 4. The original opinion pointed out that the district court may have relied upon factors (such as the defendant’s age, employment record, and vocational skills) that the Sentencing Commission has deemed “‘not ordinarily relevant’ in imposing sentences,” and that if it had done so, this was improper because “it did not point to any extraordinary circumstances particular to Rattoballi.” The original opinion then stated, in complete disregard of Booker, that “While this alone does not render Rattoballi’s sentence unreasonable, it means that the improper factors cannot be weighed in support of reasonableness in our review of a non-Guidelines deviation.”
The amended opinion retreats from this clearly incorrect statement of the law. The same sentence now reads: “While this alone does not render Rattoballi’s sentence unreasonable, it means that the sentence rests upon consideration that contradicts one of the § 3553(a) factors that we must consider in reviewing that sentence for unreasonableness – namely, the Commission’s policy statements.” Op. 23 fn.4. This is a good deal better, though the footnote’s overall emphasis on re-enacting the mandatory Guidelines regime remains problematic.
The second change surrounds the statement, found in both the original and its amendment, 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.” In the original opinion, this bald claim — which this Blog noted contradicted Fernandez‘s holding that the weight to be accorded any particular § 3553(a) factor rests entirely in the discretion of the sentencing court — was followed solely by a “See” citation to the 6th Circuit’s decision in Hampton and a “see also” citation to the 10th Circuit’s decision in Cage. The amended opinion, however, adds a “cf.” citation to, surprise surprise, Fernandez. Op. 26. The added citation states: “cf. Fernandez, 443 F.3d at 34-35 (stating that ‘we will not second guess the weight (or lack thereof) that the judge accorded a given factor . . . [under § 3553(a)], as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.)”) (emphasis in amended opinion).
This is a twisted reading of Fernandez. The unabridged version of the passage quoted by the amended opinion is as follows: “If the ultimate sentence is reasonable and the sentencing judge did not commit procedural error in imposing that sentence, we will not second guess the weight (or lack thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that factor.” 443 F.3d at 34-35. This Blog had read this statement to mean that appellants cannot argue that the district court gave unreasonable weight to any particular factor, and that apart from claims of procedural unreasonableness (i.e., that the court erred in the process of selecting the sentence), the only available argument is one of substantive unreasonabless — i.e., that the sentence is simply too long or too short. On this reading, the amended opinion should have introduced the quoted passage from Fernandez with the “But see” introductory signal rather than the “Cf.” signal. See BlueBook Rule 1.2 (“Cf.” means that the “cited authority supports a proposition different from the main proposition but sufficiently analogous to lend support.”).
In any event, this Blog actually prefers Rattoballi‘s twisted reading of Fernandez and its resurrection of the “excessive weight” argument in this Circuit. Defendants can now argue, consistent with Chief Judge Walker’s amended opinion, that a sentence is unreasonable because the district court erred in relying excessively on § 3553(a)(4), the Guidelines range, in imposing sentence.