... and Justice for All

Sixth Circuit Judge Thapar has a book on Supreme Court Justice Clarence Thomas

Sixth Circuit Judge Amul Thapar has written a book extolling the judicial philosophy of Supreme Court Justice Clarence Thomas, as the New York Times reports: Federal Judge Defends Clarence Thomas in New Book. 

Robert L. Abell
www.RobertAbellLaw.com

Compassionate Release and the First Step Act; The Sixth Circuit and Appellate Review - "Just Give Us Something to work with"

Although the number of cases in which the Sixth Circuit reverses a district court's denial of compassionate release under the First Step Act will be very, very few -- it will take decades before the number has two digits -- you do have to give the court some credit for elevating form over substance as shown in its recent decision, United States v. Hampton.

Hampton in 2009 pleaded guilty on a cocaine charge, was sentenced to 204 months, which was later reduced to 180 months following amendments to the sentencing guidelines. He moved pursuant to the First Step Act for a further sentence reduction; the grounds for his motion are not clear, since the Sixth Circuit did not discuss those reasons at all. In any event, the district court, Hon. Patricia Gaughan of the Northern District of Ohio, turned down the motion "'for the reasons stated' in the government's brief, without further explanation." 

This wasn't enough for the Sixth Circuit to be able to conclude without question that the motion had been denied for a sound reason, since "the order here fails to identify which specific aspect(s) of the government's brief the district court found compelling [and could possibly have] impermissibly denied relief based solely" on irrelevant factors. Usually, the court added a "barebones form order" would be sufficient for "meaningful" appellate review but not in this instance and so the case was remanded "for further consideration in light of our recently announced precedent." 

Judge Chad Readler authored the opinion and was joined by Circuit Judges Raymond Kethledge and Amul Thapar. Principia uber Alles.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Compassionate Release Test Clarified by Sixth Circuit; Sentencing Guideline section 1B1.13 Does Not Apply to Motions filed by Defendants

The Sixth Circuit issued Friday a significant decision regarding the process and applicable factors for consideration of motions for compassionate release filed by defendants pursuant to the First Step Act in United States v. Jones.

The most important point resolved in this case is "that U.S. Sentencing Guidelines § 1B1.13 is not an 'applicable' policy statement in cases where incarcerated persons file their own motions in district court for compassionate release." Section 1B1.13 has not been updated "to reflect the First Step Act," and "district courts have full discretion in the interim to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion." 

First, "[t]he first sentence of § 1B1.13 predicates the entire policy statement on the Director of the BOP's filing a motion for compassionate release." Furthermore, the "commentary's fourth application note" grants to the BOP Director sole authority to determine the existence of extraordinary and compelling circumstances, a catch-all provision that "does not reflect the First Step Act's procedural reforms to compassionate release[.]"

Second, Congressional intent was to expand the granting of compassionate release, as "the First Step Act's main co-sponsors were displeased that a mere trickle of compassionate releases occurred under the BOP's supervision." Accordingly, "[i]t would make little sense for the courts to operate as if the BOP remains the sole gatekeeper of compassionate release, which would reflect a bygone era that Congress intentionally amended in the First Step Act." 

Third, in 2016, the Sentencing Commission broadened the criteria for eligibility for compassionate release. "Thus, enforcing the as-written catch-all provision both contravenes Congress's motivation for reforming compassionate release in the First Step Act and ignores the Sentencing Commission's grounds for augmenting § 1B1.13's application notes in 2016." 

And so the new rule is as follows:

In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define "extraordinary and compelling" without consulting the policy statement of § 1B1.13.

Robert L. Abell
www.RobertAbellLaw.com

Is a "different location" a different place? Yes, it can be, says the Sixth Circuit

"Context is the key to meaning," says the Sixth Circuit and this drove its decision in United States v. Hill, where it decided that a district court erred in applying a sentencing enhancement requiring that robbery victims be taken to a different place than the robbery when all that happened was they were moved from the front of a store to its back store room.

The defendant and another man robbed a Universal Wireless store of cash and cellphones. To facilitate the robbery the two led the store employees at gun-point from the sales floor to store room in back of the store's building, where they bound their wrists and ankles with zip ties and duct-taped their mouths. Hill pleaded guilty. Over Hill's objection, the district court, Hon. Gordon J. Quist of the Western District of Michigan at Grand Rapids, applied a four-level enhancement under U.S.S.G. § 2B3.1(b)(4)(A) on the notion that the "victims were 'abducted to facilitate commission of the offense or to facilitate escape.'" Hill argued that only the two-level enhancement under § 2B3.1(b)(4)(B) should be applied, since it requires only that victims be "physically restrained to facilitate commission of the offense or to facilitate escape." 

The key to the argument was the guidelines' commentary definition of "abducted" as meaning "that a victim was forced to accompany an offender to a different location." So, is a different location the back room of the store being robbed or some different place all together? 

"Different location," the Sixth Circuit concluded, refers to a place other than the store being robbed, not to a separate area or spot within that store and drew that conclusion from the following five rationales. First, in the context of the sentencing enhancement, the "common sense meaning of 'different location' ... is anywhere in the world that is not the place being robbed." Second, "different location" must be interpreted to comport with the rest of the guidelines' "abducted" definition and give the phrase independent meaning, which could only be done by interpreting it to mean movement from one place to another. Third, interpreting "different location" to mean a different place is consistent with the guidelines' commentary. Fourth, "abducted" most usually means that "a victim has been taken away," which would most naturally indicate to a different place. Fifth, the guidelines' structure also supports the conclusion that "different location" means "different place." Accordingly, the sentence was vacated, and the case remanded for resentencing for application of a two-level but not a four-level enhancement. 

Senior Circuit Judge Eugene Siler dissented from the majority opinion by Judge Eric Murphy that was joined by Chief Judge Guy Cole. 

The opinion is a well-reasoned and well-written work, but one might question why so much effort to decide an issue that is merely advisory? The guidelines are not binding, and the district judge would be almost completely free to impose the exact same sentence by reciting that it was justified by the factors listed in 18 U.S.C. § 3553(a). So what's been accomplished? Good question. On other hand, sentencing guidelines appeals -- the judicial calibration of two or four or some other level enhancement or reduction -- are the lifeblood of the federal appellate courts. That's a lot of talent put to not much use.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

"If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China's Cultural Revolution than like what we should expect in the United States of America."

Thus begins the Sixth Circuit's decision in Bray v. Planned Parenthood, 746 F.3d 229 (6th Cir. 2014), a case that illustrates how the doctrine of qualified immunity has been bent by the Sixth Circuit and other courts to sanction the abuse of some while insulating outrageous abuses of power from redress or accountability. The individuals whose conduct was thus described won their case, because, according to the Sixth Circuit, the constitutional rights alleged to have been violated had not been clearly established previously. In other words, the Sixth Circuit in the 21st century ruled that reasonable police officers would not have been aware that Americans had any rights and that they were free to act with same impunity as Chairman Mao's Red Guards. 

Circuit Judge John Rogers authored the Sixth Circuit's opinion sanctioning the staggering abuse of power by the defendants.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

District Court Made Clear Mistake In Refusing to Reduce Sentence Under First Step Act, Sixth Circuit Rules

Marty Smith was convicted in 2006 of participating in a crack cocaine conspiracy involving more than 50 grams. He had a prior felony drug conviction and so, based on the amount of crack cocaine involved, was 20 years. The United States Sentencing Guidelines, at the time, prescribed a sentencing range of 168-210 months, which, of course, was trumped by the statutory mandatory minimum.  Smith received a 20 year sentence.

The Fair Sentencing Act came in 2010 and increased the volume threshold of the crime from 50 to 280 grams, a change that, if it had been retroactive, would have reduced the statutory mandatory minimum applicable to Smith from 20 to 10 years. But it wasn't retroactive and so it goes.

The First Step Act of 2018 did make the beneficial change in the federal drug law applicable to Smith. He moved for a reduction of his sentence. The district court found he was eligible for a reduction but, after concluding that the guideline range applicable to Smith was only 77 - 96 months, denied it, finding that the 20 years imposed originally remained appropriate.

The Sixth Circuit, in a per curiam clerk's order, ruled that the district court abused its discretion in refusing to reduce Smith's sentence. First, the Sixth Circuit observed that the larger is the variance of a sentence from the guidelines range, the more compelling basis is the necessary basis. Second, the variance upward was a "major one," since it was double the mandatory minimum set by Congress and 2 1/2 times the upper end of the guidelines calculation sans the statutory minimum.  Third, that Congress rather than the Sentencing Commission reduced the mandatory minimum applicable to Smith made the standard for justifying a major upward variance even more demanding. Fourth, the Sixth Circuit firmly rejected the district court's reference to the societal harm caused by the criminal activities and statistical evidence indicating possibility of recidivism as grounds sufficient to justify the upward variance, noting that these factors were already included in the guideline calculation. The Sixth Circuit expressed confidence that the district court could fashion an appropriate sentence of less than 20 years on remand.

United States v. Smith.

Robert L. Abell
www.RobertAbellLaw.com 

Preclusion; the Judicially-Fabricated and Limber Doctrine

The Sixth Circuit's recent decision in Torres v. Vitale, which was discussed in a prior post, RICO Claims Can Arise from Wage Theft Scheme, Sixth Circuit Rules, implicated the doctrine of preclusion, a judicially-fabricated doctrine unmoored from and contradictory to the text of the laws involved, the Fair Labor Standards Act (FLSA) and RICO. Preclusion is an example of courts veering out of their lanes to decide policy questions beyond their purview; predictably, the doctrine is invoked to limit the relief available to the plaintiffs, ordinary working people.

Torres arises from unpaid overtime and wage theft. According to the opinion, the restaurant employees were required to maintain two timecards each workweek, one went up to 40 hours and another recorded their overtime hours. For the former they were paid by payroll checks subject to standard withholdings; for the latter they were paid at the straight hourly rate (not the time and a half overtime rate) in cash with no withholding. The plaintiff based a civil RICO claim on the wage theft represented by the failure to pay overtime. The district court, Judge Paul Maloney of the Western District of Michigan, dismissed the claim, and the Sixth Circuit affirmed basing its ruling on the judicially-fabricated doctrine of preclusion.

Preclusion, in this context, raises the question of whether a precisely drawn, detailed statute precludes more general remedies. The Sixth Circuit, in an opinion authored by Judge John K. Bush, discussed two Supreme Court cases to illustrate the preclusion doctrine. In the first, Hinck v. United States, a taxpayer challenged the imposition of interest by the IRS based on a tax payment dispute. The Supreme Court ruled that the only avenue for such a challenge was in tax court, noting that Congress had in a single statutory sentence provided "a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial relief." While acknowledging "Congress's failure explicitly to define the Tax Court's jurisdiction as exclusive," the Court concluded it was "quite plain" that the statute provided the sole avenue of relief. The second case, Block v. North Dakota, was another odd-ball case involving the Quiet Title Act (QTA) of 1972, a law that permits suits against the United States to resolve land title issues; the particular issue was whether the QTA's limitations period applied to suits by states. The Court ruled that the QTA precluded any other avenue of relief, mainly because prior to its enactment there were no other avenues of relief given the sovereign immunity of the federal government.  

Both Hinck and Block make sense since the disputes involve the federal government, and the statutes involved were enacted to create and clarify avenues of judicial adjudication that previously did not exist. Neither involves, however, a generally applicable statute enacted after an admittedly more specific and certainly more limited one. The Sixth Circuit's discussion in Torres illustrates how limber and flexible and prone to policy preference of the panel judges the preclusion doctrine can be.

The Sixth Circuit began by asserting that it "must decide whether the FLSA provides the sole remedy for Torres' claims," noting it "is not immediately intuitive that the FLSA could preclude a private cause of action under RICO, a seemingly unrelated statute that was meant to regulate a broad range of conduct not limited to labor and employment." Then the court turned "as always, with the text" of the FLSA, reciting its minimum wage and overtime pay requirements, as well as its civil enforcement mechanisms. The court retreated to the FLSA's savings clause, a provision establishing a floor for overtime and minimum wage laws, stating that the FLSA does not "excuse compliance with any Federal or State law ... establishing a minimum wage higher than ... or a maximum workweek lower than" those of the FLSA. From this floor the court infers also a ceiling asserting that "this text shows that the FLSA is meant to provide the exclusive remedy for federal minimum wage and overtime violations," that the savings clause "shows that Congress knew how to exempt certain laws from the FLSA's reach and allow other laws to operate concurrently with the FLSA." Here is where the argument fails.

First, whatever Congress may know how to do, if we start with "the text" of the FLSA, we see that the statutory text does not state that laws permitting better or greater remedies for employees subjected to wage theft are precluded from use. Instead, the FLSA's savings clause encourages raising of the floor of remedies it establishes. Second, the FLSA's savings clause aims to avoid preemption not preclusion of state and local wage and hour laws by the FLSA. The Sixth Circuit noted in Torres the difference between preemption and preclusion, the former being "a conflict between state and federal law" and the latter "a conflict between two federal statutes." The failing is that there is no conflict between the FLSA and RICO. While RICO would add some additional proof elements, there is no conflict between it and RICO.

Torres illustrates the limberness of the judicially-fabricated preclusion doctrine, as it departs from the FLSA text and invents a conflict between the FLSA and RICO to erect a bar to greater remedies for employees victimized by wage theft.

Robert L. Abell
www.RobertAbellLaw.com

 

A Brady Violation and the Ordeal of Dr. Richard Paulus

As discussed in the prior post, Healthcare Fraud and the Ordeal of Dr. Richard Paulus; Part I, the Sixth Circuit reinstated the healthcare fraud convictions of Dr. Richard Paulus, the court concluding that the statistical evidence presented by the government's experts indicated a disproportionate tendency amounting to a "lengthy pattern" by Dr. Paulus to overstate the arterial blockage indicated by an angiogram. So central was this statistical evidence that the opinion's author, Judge David McKeague, began it by quoting Mark Twain's adage that “there are three kinds of falsehood; lies, damnable lies and statistics.” More statistical evidence, previously withheld by the government, came to light back in the district court following remand.

Before the government indicted Dr. Paulus, it conducted a lengthy investigation and provoked the hospital, Kings Daughter Medical Center (KDMC) in Ashland, Kentucky, where Dr. Paulus practiced to do its own self-audit. According to the Sixth Circuit, "KDMC's consultants reviewed 1,049 of Paulus's cases and flagged 75 of his procedures as unnecessary." The 7% rate of unnecessary procedures was far, far lower than the 25% - 100% (this last number itself being incredible) rate asserted by the government's experts at trial. This lower percentage, as the Sixth Circuit observed, "was less consistent with systemic and purposeful fraud and more consistent with occasional mistakes or diagnostic difference of opinion between cardiologists." Put another way, this lower percentage was more like quibbling around the edges, especially given that cardiologists acting in good faith reach widely varying conclusions about the degree of arterial blockage indicated by an angiogram.

The government did not disclose to Paulus the report generated by KDMC's consultants, having been ordered not to ("inexplicably" the Sixth Circuit described it) by the district judge, the conscientious and hard-working Hon. David L. Bunning. Prior to trial an ex parte hearing had been conducted involving only the prosecutors and counsel for KDMC that resulted in a ruling that the government was not to disclose the KDMC report and that it was inadmissible. The government, it should be noted in fairness, argued that the report was Brady material and should be disclosed. Nevertheless, the district court erred and ruled that it was not to be disclosed to Paulus prior to trial. When the report came to light when the case was remanded for sentencing, Paulus moved for a new trial based on the Brady violation, a motion the district court denied and Paulus was sentenced to five years imprisonment and surrendered to federal custody in June 2019.

The Sixth Circuit again reversed. Having conceded that the report was Brady material, the government fell back on the argument that Paulus should have been able to find out about it before trial with even minimal investigation. This argument was rejected, the court observing that "[w]e would have to completely ignore the record to accept the government's argument here."

The prejudice to Paulus by withholding the report was manifest: "Because the KDMC Review found misdiagnoses in a much smaller percentage of cases than the government experts found (around 7% compared to nearly 50%), the study tends to refute the government's evidence that Paulus systematically misdiagnosed the amount of blockage in his patients' arteries." That would seem all too plain.

Paulus II had the same panel as Paulus I, Judges Alice Batchelder, Richard Griffin and David McKeague, who again wrote the court's opinion, which includes excellent analysis of the trial evidentiary utility of the KDMC report had it been disclosed as required by Brady.

A status conference has been scheduled for April 13, 2020, to discuss further proceedings, i.e., whether the government wishes to re-try Dr. Paulus.

Robert L. Abell
www.RobertAbellLaw.com

Healthcare Fraud and the Ordeal of Dr. Richard Paulus; Part I

Angiograms are medical tests that measure the extent of a patient's arterial stenosis (put plainly: the degree of blockage of the heart arteries). For instance, a cardiologist reviewing an angiogram could conclude the patient had 60% blockage. But angiograms, as a matter of course, are subject to widely varying interpretations: one cardiologist may conclude a blockage of 60%, while another reviewing the same angiogram may conclude the blockage is only 30%. A variance of 20% is considered within the standard range and research studies have shown that much, much greater variances are quite common.

As a general rule, when an angiogram is read to indicate a blockage of 70% or more, the surgical insertion of heart stent is the accepted standard of care. To sum up the dilemma: one cardiologist acting in good faith could conclude from an angiogram that a patient’s blockage was greater than 70% and a stent warranted, while another cardiologist also acting in good faith could conclude that the blockage was only 30% and no stent necessary. It is in this context that the government prosecuted Dr. Richard Paulus, who has been described to me as a very talented, caring and hard-working cardiologist practicing at King's Daughter Medical Center (KDMC) in Ashland, Kentucky. Dr. Paulus’ case has twice gone to the Sixth Circuit, which both times reversed the district court, once to his detriment and the latest to give him either another day in court or some hope of peace with a government whose resources are limitless. This post will deal with part 1 of Dr. Paulus’ ordeal or, as the Sixth Circuit put it, Paulus I, United States v. Paulus, 894 F.3d 267 (6^th Cir. 2018).

Although the Sixth Circuit later described Dr. Paulus’ as having performed an “incredible” number of angiograms, the government’s charges against him were modest: one count of health care fraud and twenty-six counts of false statements, all alleged to have arisen from a practice of inflating the degree of stenosis indicated by angiograms to provide a pretext to insert a heart stent. The government’s proof failed utterly as to eleven of the false statement charges, and it moved to dismiss those at trial. The jury struggled with the remaining charges, the trial judge, Hon. David Bunning, giving an Allen charge, but eventually found Dr. Paulus guilty of eleven charges and not guilty of the remaining five.

The district court sustained Paulus' motion for judgment of acquittal. Paulus Opinion Vacating Jury Verdict. In essence, the district court ruled that fraudulent intent could not be proven because reasonable cardiologists acting in good faith could and too often did reach widely varying conclusions about the degree of stenosis indicated by a angiogram. The district court rejected the government’s arguments that the verdict should stand because “the jury viewed the angiograms themselves and could determine whether a significant lesion existed or not,” and there was “circumstantial evidence” including the amount of money Dr. Paulus made from working so hard and well, “the fact that [Dr. Paulus] performed more cardiac procedures than his peers,” testimony from other KDMC who “believed Dr. Paulus was performing unnecessary procedures,” and that the number of procedures went down after the government began investigating, a display of remarkable ignorance of the monumental disruptions that dealing with a federal government investigation inflicts on any individual or institution.

The Sixth Circuit reversed the district court and reinstated the convictions. The ultimate basis for this decision is the paramount role of the jury to assess and credit (or not) the reliability and believability of expert testimony once that testimony has been properly admitted. 894 F.3d at 277. As support for the jury’s verdict, the court recited the government’s expert witness testimony to the effect that Dr. Paulus so often overstated the degree of stenosis to establish that he “routinely exaggerated what he saw on his patients’ angiograms[.]” Id. This evidence plus that regarding Dr. Paulus’ earnings, “injured patients’ testimony, and other evidence about KDMC’s behavior supported an inference that something was amiss,” all of which showed a “lengthy pattern of fraudulent over-diagnosing by Paulus.” Id. at 278.

The Sixth Circuit began its opinion by quoting Mark Twain’s observation that “there are three kinds of falsehood; lies, damnable lies and statistics.” The government premised its case on statistical evidence drawn from its experts’ testimony to the effect that Dr. Paulus so often over-read the degree of blockage indicated by an angiogram that it proved fraudulent intent, especially when it was considered how many angiograms he performed and how much they and the stent procedures that followed contributed to his income.  

Paulus II regards the statistical evidence that the government withheld from Paulus in violation of the Brady rule.

Robert L. Abell
www.RobertAbellLaw.com

Title IX Liability Requires Proof of Actual Knowledge of Actionable Sexual Harassment followed by Deliberate Indifference Resulting in Further Actionable Sexual Harassment, Sixth Circuit Rules

The Sixth Circuit has ruled that Title IX liability requires "proof that a school had actual knowledge of actionable sexual harassment, and that the school's deliberate indifference to it resulted in further actionable sexual harassment against" the complaining student in Kollaritsch v. Michigan State Board of Trustees. This resulted in the dismissal of four students' claims.

The Court took pains to analyze the proof components. First, it distinguished mere "harassment" which it "conservatively" described as "some type of aggressive and antagonistic behavior" that is uninvited, unwanted and non-consensual." "Actionable" sexual harassment, on the other hand, must be "(a) severe, (b) pervasive, and (c) objectively offensive." "Severe" means "something more than just juvenile behavior" even if it is "antagonistic, non-consensual, and crass." The court reiterated the Supreme Court's admonishment that "simple acts of teasing and name-calling ... even where these comments target differences in gender" are not enough. To further emphasize the standard for "actionable sexual harassment" the court pointed to a prior decision, Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, (6th Cir. 2012), where it held that harassment consisting of a shove, an "obscene sexual gesture," and a "request for oral sex" was not actionable sexual harassment.

The "pervasive" element requires "multiple incidents of harassment; one incident of harassment is not enough." "Pervasive," the court emphasized, "means 'systemic' or 'widespread.'"

Whether behavior is "objectively offensive" is not determined by the complainant's "perceptions"; the "behavior [must] be offensive to a reasonable person under the circumstances, not merely offensive to the victim, personally or subjectively."

The only ground the court broke in the decision was a holding that a student's perception of vulnerability to further sexual harassment was not enough to trigger Title IX liability.

As Judge Thapar remarked in his concurring opinion, if universities are going to get into the Title IX claim investigation and adjudication business, "we should expect them to do better."

Robert L. Abell
www.RobertAbellLaw.com

 

 

 

 

What Happens When the Government Breaches a Plea Agreement?

A defendant reached a plea agreement with the government in which it promised to argue at sentencing for a sentence within the sentencing guidelines range computed in the plea agreement. But at the sentencing hearing the government double-crossed the defendant and argued for a higher sentence and then, apparently realizing what had been done, attempted to backtrack only to have the district judge say it didn’t matter anyway. What happens in this situation was answered by the Sixth Circuit in United States v. Ligon.

The defendant pleaded guilty to being a straw-man purchaser of a firearm intended for someone else. A plea agreement was reached in which “the parties agreed to ‘recommend that the Court impose a sentence within the range and of the kind specified pursuant to the advisory Sentencing Guidelines in accordance with the computations and stipulations’ in the agreement, and that ‘neither party would recommend or suggest in any way that a departure or variance is appropriate, either regarding the sentencing range or regarding the kind of sentence.’” The terms of the plea agreement calculated a sentencing range of 21 – 27 months. Then the probation office determined that a four-level enhancement pursuant to 2K2.1(b)(6)(B), which applies if the defendant had knowledge or reason to believe that the firearm would be used in a felony offense, should be applied and this made the sentencing range 30-37 months.

At the sentencing hearing, the government forgot all about the promise it made in the plea agreement and argued that the offense was “egregious” and that the enhancement applied and that a sentence in the 30-37 months range was appropriate. The district court went along with the government’s newly-adopted position, found the enhancement applicable and imposed a sentence of 35 months.

After announcing the sentence, the district judge asked for any legal objections. The government apparently then remembered the promise made in the plea agreement. This was a curious exchange:

Govt.:             Well, with respect to the four-level enhancement, it was our position – and, again, in my – and I’m not sure if this would – if it would                         be an objection. But I would just reiterate that what I put in my sentencing memorandum, that was still the government’s position. I                             realize that when I was arguing for a sentence, and a lengthy sentence, which I do believe that this defendant deserves, and it’s already                         been imposed by this court, I said 30 to 37 months. However, I didn’t want to – I don’t want to be inconsistent. It was the position –

Court:            Listen, I’m not sure what you’re trying to say, but maybe I can help you.

Govt.:             Okay.

Court:            The plea agreement that [the defendant] entered doesn’t obligate me to do one thing or the other. And, in fact, had it, at this juncture,                             meaning at this moment, I’d reject it and impose the sentence that I’ve just imposed. I’m not bound by that agreement. I’m not the                                 government. I’m not the defense. So if you intend to make an objection, by George, make it now or take your seat.

Govt.:             Okay. Then I would object to that enhancement. I –

Court:            Overruled for the reasons stated.

The Sixth Circuit held that the government had breached the plea agreement by arguing for a sentence higher than the range stipulated in the plea agreement, vacated the sentence and remanded for resentencing before a different district judge.

The Sixth Circuit relied on the Supreme Court’s decision in Santobello v. New York, 404 U.S. 257 (1971), to state the following rule: “if the government breaches a plea agreement, a defendant is entitled to relief regardless of whether the district court was ultimately influenced by the breach and regardless of whether the breach was inadvertent.”

The Sixth Circuit also concluded in accordance with Santobello that resentencing before a different district judge was necessary, explaining that this was “necessary for defendant to get the benefit of the bargain, and to preserve the appearance of an impartial judiciary – one that is not influenced by the prosecutor’s previous breach.”

Finally, the Sixth Circuit declined the reach the question of whether the district court had erred in applying the enhancement.

This seems likely to prove a Pyrrhic victory for the defendant. The Sixth Circuit did not rule that the district court had erred in deciding that it was not bound by the parties’ agreement about the correct sentencing range or that the district court had erred in ruling the enhancement applicable. It would appear that the newly-assigned district judge could also find the enhancement applicable and impose the same (or even greater) sentence, the government being required only to forgo advocacy for such a departure from the plea agreement. So, the government breaches its contract, and the result therefor for the defendant will likely be the same as if no contract had ever existed.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com