Second Circuit Reverses Aberrational Sentencing of Home Confinement and Probation Because of Government Shutdown (7/12/14)

I write today about a truly aberrational case out of the Second Circuit.  I say that it is aberrational, but obviously that is loaded with my value judgment characterization.

The case is United States v. Park, ___ F.3d ___, 2014 U.S. App. LEXIS 13039 (2d Cir. 2014), here.  Rather than attempt my own summary, I use the Second Circuit's Summary:

The government appeals from the sentence imposed on defendant Young C. Park, pursuant to an October 24, 2013 judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge), following Park's guilty plea to one count of filing a false corporate tax return in violation of 26 U.S.C. § 7206. 

We consider on appeal whether the District Court erred in sentencing Park to a probationary sentence rather than a term of imprisonment based solely on its belief that the government could not afford the cost of incarceration during a so-called "government shut-down." We hold that the District Court failed to conduct a meaningful review of the sentencing factors enumerated in 18 U.S.C. § 3553(a), and that the cost of incarceration, much less a political phenomenon styled a "government shut-down," is not a permissible factor to consider in determining whether to impose a term of imprisonment. In light of the need for deterrence and just punishment and the District Court's own remarks suggesting that a term of imprisonment was warranted, we also hold that the probationary sentence imposed here was substantively unreasonable. Accordingly, we VACATE the sentence imposed by the District Court and REMAND for plenary resentencing in accordance with this opinion.

In the body of the opinion, the Court offers a good discussion of the requirements for effective appellate review of sentencing via the concepts of procedural error and substantive error.  This particular sentenced flunked both tests (footnotes are omitted except in two instances).

   We review sentences on appeal only for "reasonableness." This type of scrutiny includes two components: "procedural" review and "substantive" review—although in sentencing, as in many areas of the law, the precise line between procedure and substance is often elusive. n7 Whether a sentence satisfies the objectives enumerated in the 18 U.S.C. § 3553(a)—a substantive inquiry—depends upon the explanation given by the District Court pursuant to 18 U.S.C. § 3553(c)—a procedural requirement. Where, as here, a district court relies on an improper factor to justify the sentence imposed, it can be difficult, if not impossible, for a reviewing court to evaluate separately the "procedural" and "substantive" reasonableness of a sentence.
   n7 Indeed, as Justice Holmes famously remarked in a different context, a word like "substance" or "procedure" "is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 62 L. Ed. 372, T.D. 2634, 15 Ohio L. Rep. 562 (1918). Justice Brennan, writing for the Supreme Court in 1958, similarly noted that "[t]he words 'substantive' and 'procedural' are mere conceptual labels and in no sense talismanic." Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 549, 78 S. Ct. 893, 2 L. Ed. 2d 953 (1958); see also Laurence H. Tribe, American Constitutional Law 712 (2d ed. 1988) (noting that substance and procedure cannot be "neatly separated"). For this reason, whether an issue "is more appropriately characterized as substantive or procedural is not a matter of overriding significance." Albright v. Oliver, 510 U.S. 266, 302, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994).

A. "Procedural" Unreasonableness 

The procedural review focuses on whether the sentencing court followed all the necessary steps in deciding upon a sentence. A district court normally begins all sentencing proceedings by calculating the applicable Guidelines range, and will then consider the factors listed in 18 U.S.C. § 3553(a), as required by statute, before imposing a final sentence. Although "[a] judge need not utter 'robotic incantations' repeating each factor that motivates a sentence[,] . . . the judge must explain enough about the sentence for a reviewing court both to understand it and to assure itself that the judge considered the principles enunciated in federal statutes and the Guidelines."Further, when a district court imposes a sentence outside the recommended range, as the Court did here, it "must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance." 

The problem was that the sentencing judge considered only a Section 3553(a) non-authorized factor -- government shutdown -- and did not consider the authorized factors.  Not only did the judge not consider the authorized factors, he refused to do so.  That was procedural error.  In the discussion the court says:

Park argues alternatively that, although the statute may not require sentencing courts to consider the cost of imprisonment, nothing prohibits them from doing so. We are reluctant, however, to expand relevant sentencing considerations beyond those enumerated in § 3553(a), insofar as the purpose of the "statutory mandate of § 3553" was to "necessarily channel[ ] district court[s'] sentencing discretion." Permitting considerations of costs as an additional factor would be particularly inappropriate in view of "the express inclusion of cost of imprisonment as a consideration [with respect to fines] in § 3572(a)," which "demonstrates that when Congress intended to include cost as a consideration, it did so very clearly." Moreover, as the Eighth Circuit has noted, "[t]he decision whether tax dollars should be used to pay for lengthy sentences is a congressional determination, not one to be made by federal courts." We conclude, therefore, that the cost of imprisonment is not a sentencing factor enumerated in § 3553(a), nor is it an additional factor upon which district courts may rely in deciding whether to impose a term of incarceration under 18 U.S.C. § 3582(a). 

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B. "Substantive" Unreasonableness 

Turning to the question of substantive reasonableness, an appellate court "will . . . set aside a district court's substantive determination only in exceptional cases." Appellate review of whether a sentence is truly exceptional within the scheme of federal sentencing law is no more based on an algorithm or calculus than is the decision of a district judge to impose that particular sentence in the first place. In both instances, the judicial function involves an exercise of judgment channeled by prescribed norms. We have thus stated that "'reasonableness' is inherently a concept of flexible meaning, generally lacking precise boundaries," and that "it involves some degree of subjectivity that often cannot be precisely explained." 

In light of this leeway, our substantive review of a sentence is akin to review under an "abuse-of-discretion" standard, a form of review with which appellate courts are long familiar. We have noted on many occasions that "abuse of discretion" is a distinctive term of art that is not meant as a derogatory statement about the district judge whose decision is found wanting. It is more properly understood as referring to occasions where, after examining trial court records, an appellate court reaches the informed judgment that a ruling is based on "an erroneous view of the law or on a clearly erroneous assessment of the evidence, or . . . a decision that cannot be located within the range of permissible decisions." In the context of sentencing, a trial's court's evaluation of the evidence is clearly erroneous when we are "left with the definite and firm conviction that a mistake has been committed." n32 The length of a sentence is outside the range of permissible decisions when "affirming it would damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law." In determining whether a sentence shocks the judicial conscience or is otherwise unsupportable, we use as our "lodestar the parsimony clause of 18 U.S.C. § 3553(a),  which directs sentencing courts to 'impose a sentence sufficient, but not greater than necessary[,] to comply with' the factors set out in 18 U.S.C. § 3553(a)(2)"—namely, retribution, deterrence, and incapacitation.
   n32 Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). Although this test is typically applied when reviewing factual findings for clear error, it also extends to decisions by district courts, like certain sentencing decisions, that are "essentially factual application of fact to law." United States v. Hinkson, 585 F.3d 1247, 1262 n.19 (9th Cir. 2009) (internal quotation marks omitted). Accordingly, several of our sister circuits have understandably looked to this test for analyzing substantive reasonableness. See, e.g., United States v. Daniels, 685 F.3d 1237, 1252 (11th Cir. 2012); United States v. Maier, 646 F.3d 1148, 1155-56 (9th Cir. 2011). 

A reviewing court should not avoid its duty to apply these general standards of review simply because of its respect for an experienced and capable trial judge, which is why we "have cautioned against converting review for substantive reasonableness into a 'rubber stamp.'" In thus exercising its judgment, a reviewing court is not disparaging the person of a trial judge, but simply concluding, after careful review, (1) that a sentence lacks a proper basis in the record, (2) that a trial judge's assessment of the evidence leaves the reviewing court with a definite and firm conviction that a mistake has been committed, or (3) that the reviewing court has reached the informed judgment that a sentence is otherwise unsupportable as a matter of law. In this instance, the probationary sentence imposed by the District Court is all of these (any one of which would be sufficient to vacate the sentence). We are therefore bound to conclude that it is substantively unreasonable as well as procedurally unreasonable.

Readers should refer to the opinion for the more detailed discussion.

Based on Park, I have made some revisions to my Federal Tax Crimes Book.  Here are the principle revisions (indicated in red):

    For present purposes, I ask you to focus on the bold-faced text.  Please note the general statement in § 3553(a) that the sentence should be “sufficient but not greater” than necessary to serve the purposes to be served as specified in § 3553(a)(2).  (This is often referred to as the “parsimony clause” or “parsimony principle” or “parsimony requirement,” n621 although some judges are concerned that it misstates in a defendant oriented way the complete § 3553(a) requirements. n622)
   n621 United States v. Park, ___ F.3d ___, ___, 2014 U.S. App. LEXIS 13039 (2d Cir. 2014) (“clause;” noting “In determining whether a sentence shocks the judicial conscience or is otherwise unsupportable, we use as our ‘lodestar the parsimony clause of 18 U.S.C. § 3553(a)’”); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (“principal” or “requirement”).
   n622 In United States v. Irey, 612 F.3d 1160, 1196-7 (11th Cir. 2010), cert. denied ___ U.S. ___, 131 S. Ct. 1813 (2011), the Court criticized the use of the term as follows (footnotes omitted, except for one):
The problem with the parsimony terminology is that the statutory command has two components of equal standing, and it ignores one of them. The requirement is not merely that a sentencing court when handing down a sentence be stingy enough to avoid one that is too long, but also that it be generous enough to avoid one that is too short. Calling the statutory requirement “the parsimony principle” is as incomplete and inaccurate as it would be to call the requirement “the severity principle.” The reason that defense counsel and those who argue for shorter sentences, either generally or in specific cases, like the term “parsimony principle” is that it tends to slant the discussion toward shorter sentences by emphasizing only that part of the twin requirements. But terminology that is less than completely accurate should not be used to guide judicial decisions. n22 A more accurate term, if one is needed, might be “the Goldilocks principle,” because the goal is to lock in a sentence that is not too short and not too long, but just right to serve the purposes of § 3553(a). In this opinion, however, we will avoid using a catchword and simply apply the provision as Congress wrote it. We turn now to the sentencing factors set out in § 3553(a).
n22 The term “parsimony principle” is an example of what Holmes once referred to as an "inadequate catch word[ ]," which could by its “very felicity, delay further analysis.” Oliver Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 455 (1899).
Judge Tjoflat's separate opinion says that “[a]lthough the court quibbles with the label ‘parsimony principle,’ it does not disagree with the underlying concept." Separate Op. of Tjoflat, J., at 158 n.21. To the contrary, we emphatically disagree with the “parsimony principle” terminology and the concept that underlies it, which is that one of the two § 3553(a) principles is to be given predominance over the other. The term “parsimony principle” is an “inadequate catch word” that stacks the deck and we would prefer to deal with result-neutral terms.

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 Essentially, the drill after the Guidelines calculations is to identify factors – preferably those enumerated in 18 U.S.C. § 3553(a) (keeping in mind that some are pretty broad factors – that may move the sentencing judge to make discretionary sentencing calls to vary from the Guidelines calculations (including any departures under the Guidelines). n891
   n891 Some of these are pretty broad, but they do have their limits suggested by the words. In a case that I think was aberrational (what was the sentencing judge thinking), the sentencing judge improperly considered a Government shutdown as a basis for a Booker variance to only home confinement. The defendant to one count of tax perjury (§ 7206(1)) and an indicated Guidelines range of 15 to 21 months. The sentence was 6 months home confinement and 3 years probation. The judge indicated that the defendant’s prior convictions and Guidelines ranges would have otherwise justified some incarceration, but that, because of the Government shutdown then in effect, he would sentence only to home confinement and incarceration. Government shutdown, of course, is not mentioned in § 3663(a), directly or even indirectly. And, the sentencing judge specifically declined to consider the § 3663(a) factors. So, what was the sentencing judge thinking? Except for his peeve about the shutdown, I don’t know. The Court of Appeals reversed, finding both procedural and substantive error. United States v. Park, ___ F.3d ___, 2014 U.S. App. LEXIS 13039 (2d Cir. 2014). In the case, the defendant’s counsel recognized that the sentencing judge was heading into risky territory and asked the sentencing judge to supplement the record on his reasons for variance; the judge declined. That was a good move on defendant’s counsel’s part because it is not impossible that the sentencing judge could have articulated some proper § 3663(a) factors that, conceivably, might have permitted an affirmance on appeal. I suppose the sentencing judge can still do that on remand, but he may be over his peeve about the shutdown by now.