Saturday, October 6th, 2007


United States v. Villafuerte, Docket No. 06-1292-cr (2d Cir. September 21, 2007) (Walker, Cabranes, CJJ, Goldberg, DJ)

United States v. Hirlman, Docket No. 05-3677 -cr (2d Cir. September 27, 2007) (Winter, Walker, Sack, CJJ)

These two cases, although not related, together provide new insights into an extremely important area – the need to preserve sentencing issues for appeal.

Villafuerte is a very disturbing case. For nearly two decades, the conventional wisdom in the Second Circuit has been that appellate claims relating to the procedural aspects of sentencing – e.g., whether the court understood its departure authority, made adequate legal findings in support of an enhancement, or gave the defendant an opportunity to allocute – would be reviewed on appeal, even where there was no specific objection pointing out the procedural failing.

Villafuerte changes all that. In this case, the Circuit holds that the most common post-Booker claims about procedural unreasonableness – that the district court did not make adequate findings under § 3553(a), and that it did not provide a sufficient statement of reasons under § 3553(c), which are neither “novel” nor “complex” – must be objected to at the time of sentencing. If not, they are reviewed only for plain error, under the stringent standards of Fed.R.Crim.P. 52(b) and United States v. Olano, 507 U.S. 725 (1993). Here, the court had no trouble concluding that such claims, raised for the first time on appeal, were not plain error. It affirmed.

Hirlman, on the other hand, decided six days later, gives a nice lesson in how to do what Villafuerte requires.

In this case, a government appeal of the sentences of two brothers, the government argued that Judge Elfvin did not give adequate notice of its decision to depart from the Guidelines and did not make adequate findings in support of the departures. The government also registered objections in the district court that were specific enough to preserve those claims.

At the first brother’s resentencing, the judge did not say why he had selected the particular sentence. The prosecutor asked for findings, and the court said that it would provide them later, in writing, but never did so. At the second brother’s resentencing, the government did even more, objecting specifically to the court’s failure to give adequate notice of its intention to depart downward, and “press[ing] the court to explain” the departure, which it did not do. The Circuit reviewed the government’s claims and vacated the sentences. It probably would have done so anyway, but it certainly did not help that the government objected with specificity.

Comment: It now appears that prudent lawyers must do something akin to what the AUSA did in Hirlman. Here’s something to try if words fail: “Respectfully, your honor, the defense does not believe that the court has made adequate findings in support of the sentence, because …” or something like that.

One can easily foresee the ugly kettle of fish that the court has opened for itself in Villafuerte. Given the many procedural requirements of the sentencing statutes (and let us not forget Rule 32, as well), post-Booker sentences are open to a large number of procedural challenges on appeal. Thus, the court is going to have to resolve preservation/plain-error questions in a large number of cases that previously would have been more quickly and easily disposed of by simply ruling on the particular claim that has been raised. The Circuit could well end up having to develop an entirely new body of preservation jurisprudence for sentencing appeals – something that is entirely unnecessary, since the previous system worked just fine.

Villafuerte is also clearly in tension with the court’s recent decisions bouncing Anders briefs that did not address what were surely unpreserved claims of procedural unreasonableness. How this tension will play itself out remains to be seen.

An additional word about Hirlman: The Circuit remanded the case to a different judge, using unusually critical language about Judge Elfvin and his record on appeal. At least one assistant federal defender in the Western District feels that this portion of the opinion was both unnecessary and gratuitous; Judge Elvfin is no longer hearing criminal cases, thus a remand to different judge would have happened as a matter of course.

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