The Sixth Circuit's majority opinion in United States v. Carter is an embarassment and illustrates how far some members of that court will go to assure that the government can never lose a case in the court, no matter what it argues (or fails to argue) in its brief.
Carter is a routine enough sentencing appeal. The defendant was sentenced to 108 months in a meth-trafficking case. He raised two points in support of a variance in the district court: (1) a policy argument that the sentencing guidelines as to methamphetamine overstate a defendant's culpability based on an archaic and incorrect theory that the greater the purity level of the relevant meth, the greater the defendant's culpability and, therefore also, his sentence; and, (2) his difficult personal circumstances. At the sentencing hearing, according to the Sixth Circuit majority, Judges Joan Larsen and John Nalbandian, the defendant "made only passing reference to his policy argument" and "focused primarily on his life experience and characterisistics." Also according to the majority, the district court also "focused on Carter's primary argument, his life experience and characteristics." The district court did state that it read Carter's sentencing memorandum, so it was aware and said it did presumably consider his policy argument. The district court announced the sentence and then asked: "Pursuant to United States v. Bostic, is counsel satisfied that I've addressed on the record all non-frivolous arguments asserted?" Parties for both counsel answered: "Yes, your Honor."
Carter argued on appeal that his sentence was procedurally unreasonable since the district court did not address or sufficiently consider his policy argument about the meth guidelines. The Sixth Circuit panel majority held that Carter had either waived the argument or had invited the district court's error and was foreclosed. Neither hold water; both are contrivances intended to nail shut even tighter the courthouse doors barring relief for criminal defendants in the Sixth Circuit. The contrivance is so extreme that Senior Circuit Judge Ronald Gilman was moved to author a concurring opinion in what otherwise was a flyspeck of a case.
The majority's contrivance is on such shaky ground that it could not decide what it was, whether a waiver or invited error. It relied on the district court's reference to Bostic, although the majority allowed that the "Bostic preface is somewhat out of place because the question that immediately followed was not the Bostic question, though that question came later." Waiver is, as the majority noted, that intentional relinquishment or abandonment of a known right. But it is beyond the pale to find waiver on this record as Judge Gilman noted:
In the present case, the district court expressly stated tha tits quesiton was "[p]ursuant to United States v. Bostic" immediately before asking a question that, as the majority acknowledges, "was not the Bostic question." I fully agree with the majority that the invocation of Bostic was "somewhat out of place," which makes one hard-pressed to characterize counsel's response as an intentional relinquishment or abandonment of Carter's right to object. The doctrine of waiver, therefore, is simply beyond the pale based on the record before us.
This seems simple enough: a party can't be judged to have waived an argument on point A, if it is asked about something other than point A.
But neither did the majority decide that Carter had invited the district court's error. Instead, it dodged that question and asserted that it only considered arguments where a party had invited error below where there would otherwise be a manifest injustice. Apparently, the majority concluded that there would be no manifest injustice because the government could not be sufficiently faulted for not insisting the district court address Carter's policy argument ("the government is not equally at fault for the alleged error").
Notably and as Judge Gilman's concurrence observed, "the government did not argue that Carter either waived his policy-based argument or invited the district court's error." In other words, the majority contrived wholly its squishy we're really not sure why we're deciding defendant loses but he does because the government can't rationale.
Remember the rule in the Sixth Circuit: the government can't waive or forfeit an argument, but a reason can always be contrived that the defendant can and did.
The majority's opinion is an embarassment and an abomination; the best thing about it is that it will be largely if now wholly ignored in the future.
Robert L. Abell
www.RobertAbellLaw.com