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Wednesday, June 27, 2007

Rita's impact in the 3rd Circuit

In Rita v. U.S., 2007 WL 1772146, the Supreme Court ruled that the circuits "may," for purposes of appellate review only, apply a "presumption of reasonableness" to sentences within the Guidelines range. But the Court placed so many limits on this presumption, and went on at such length to stress the discretion district courts have at sentencing, that ultimately Rita is a very good decision that emphasizes that the guidelines are truly "advisory."

The key points from Rita:

1) The sentencing court has broad discretion in sentencing, and sentences will be reviewed deferentially for "abuse of discretion" as they were under Koon.
Rita, 2007 WL 1772146, *9 ("appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion").
2) The district courts may not apply any presumption of reasonableness to the Sentencing Guidelines range.
Rita, at *9 ("We repeat that the presumption before us is an appellate presumption. . . . In determining the merits of these [sentencing] arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines should apply.")
3) Judges may "disregard" the Guidelines.
Rita, at *10 ("As far as the law is concerned, the judge could disregard the Guidelines . . .").
4) The sentencing court does not as having a subordinate role to the Sentencing Commission, but a co-equal role. Both are charged under the sentencing statute with applying the same § 3553(a) analysis. Given this framework, the sentencing court does not have to defer to the Commission’s judgments, but instead can reach its own judgments.
Rita, at *7 ("The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.").
5) The sentencing court may disagree with and reject policy judgments of the Sentencing Commission and the Guidelines. Nothing the Commission says is sacrosanct.
Rita at *12 (the judge must address arguments that the Guidelines "reflect an unsound judgment, or, for example that they do not generally treat certain defendant characteristics in the proper way").
6) The district courts may consider the factual findings of the Sentencing Commission, which would include their findings regarding unfairness of the crack/powder ratio, and the career offender guidelines.
Rita at *9 (sentencing courts are not "prohibited from taking account of the Sentencing Commission’s factual findings or recommended sentences").
7) There can be no "presumption of unreasonableness" for sentences outside the Guidelines, even at the circuit level.
Rita, at *11 ("The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness.")
8) We do not have any presumption of reasonableness in the 3rd Circuit. Rita leaves undisturbed the 3rd Circuit’s rejection of a presumption of reasonableness. Rita only holds that Courts of Appeals "may" apply such a presumption, not that they must.
Rita, at *8 (citing Cooper (3d Cir) with approval).
9) Even in circuits that, unlike the 3rd Circuit, have adopted the presumption, it is a "nonbinding" presumption" that has no "independent legal effect" and only applies on appeal.
Rita, at *6 ("the presumption is nonbinding" and does not "reflect strong judicial deference that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge"); Rita at *8 (presumption does not have "independent legal effect").
10) Rita reaffirms the overarching role played by the "parsimony provision," making clear that in considering all the § 3553(a) factors, the judge must "impose a sentence sufficient, but no greater than necessary, to comply with" the aims of sentencing.
Rita, at *6.
11) Rita calls into question the 3rd Circuit's ruling in Vampire Nation, 451 F.3d 189 (2006). Vampire Nation held that the requirement in Fed R. Crim P. Rule 32(h) of advance notice before a judge departs from the Guidelines range on a basis not identified by the parties applies only to "departures" (pursuant to the Guidelines) and not "variances" (pursuant to 18 USC sect 3553(a)). Rita states that "the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure." Rita at *9 (citing inter alia Rules 32(h) and Burns, 501 U.S. 129, 136 (recognizing importance of notice)). This concern for adversarial testing applies equally to departures and variances, and thus Rita undercuts the reasoning in Vampire Nation.

Thursday, June 07, 2007

In possession of child pornography case, the Third Circuit rejects certain special conditions of supervised release.

In United States v. Voelker , No. 05-2858, (3d Cir. June 5, 2007), Voelker pled guilty to possessing child pornography in violation of 18 U.S.C. §2252(a)(2). The court imposed a supervised release term of life. On appeal, he challenged three special conditions: (1) The defendant is prohibited from access to any computer equipment or any on-line computer service at any location, including employment or education. This includes, but is not limited to, any internet service provider, bulletin board system or any other public or private computer network; (2) The defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, videos or video games, depicting and/or describing sexually explicit conduct as defined at Title 18 of the United States Code, Section 2256(2); and (3) The defendant shall not associate with children under the age of eighteen except in the presence of a responsible adult who is aware of the nature of the defendant’s background and current offense and who has been approved by the probation officer.

The Court first concluded that "an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. §3583." The court discussed the ubiquitious presence of the internet and the indispensable nature of computers. Literal compliance would have impacted Mr. Voelker’s ability to drive a car as well as to use ATM machines, grocery store scanners, and washing machines. "The condition is the antithesis of a ‘narrowly tailored’ sanction. The lifetime ban on all computer equipment and the internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."

The court also rejected the government’s unsupported claim – made at oral argument and the subject of much discussion - that scare resources prevented a more narrow restriction allowing computer use subject to probation officer monitoring and inspections. Even if true, "we would be reluctant to agree that such dramatic limitations on First Amendment freedoms can readily be justified by the cost of affording fundamental liberties." The difficulty of narrowly tailoring computer restrictions does not "justify the kind of lifetime cybernetic banishment that was imposed here." The court also agreed that the condition imposed here amounted to an occupational restriction in violation of U.S.S.G. § 5F1.5(a).

As an additional condition of supervised release, the court imposed - without explanation - a condition prohibiting the possession of any materials, including pictures, videos, video games, and textual descriptions of "sexually explicit conduct." Sexually explicit conduct is defined as "actual or simulated - (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2). The broad ban had no basis in the record. There was no evidence that viewing "sexually explicit material" that is non-obscene and does not involve minors, was related in any way to Mr. Voelker's crime of receiving child pornography or that viewing or reading such material would cause him to reoffend. Further the condition is so broad it sweeps within its reach some legal adult pornography as well as illegal child pornography in violation of the First Amendment.

Finally, Mr. Voelker argued that the supervised release condition prohibiting him from associating with minors without prior approval of the probation officer and under supervision as applied to his own minor children interferes with his constitutional right of procreation, as well as his fundamental liberty and his freedom of association under the First Amendment. The court reviewed this challenge under a plain error standard and vacated the condition. The court agreed the record supports restricting his association with minors as there was evidence Mr. Voelker admitted showing his daughter's buttocks on his webcam. It was the court’s delegation of absolute authority to the Probation Officer to allow such contact while providing no guidance for the exercise of that discretion that the Court rejected. "Thus, Voelker’s Probation Officer becomes the sole authority for deciding if Voelker will ever have unsupervised contact with any minor, including his own children, for the rest of his life." The Court observed that in Loy II it had struck down this very kind of unbridled delegation of authority as an abdication of "‘juridical responsibility’ for setting the conditions of release."

The Court directs the district court on remand to clarify whether he intended the ban to extend to Voelker’s own children and to provide guidance to the probation officer if a ban is reimposed. The Court declined to "express any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s own children." As such, this remains an open question in the Third Circuit. The Court cautioned "that any lifetime ban on association with minors should be supported by sufficient evidence to resolve the dispute over whether Voelker was simply role-playing."

It is interesting to note that the Court warned against merely adopting the findings of the presentence report in this regard - particularly where the record does not set forth the expertise of the person who prepared that report in addressing this sensitive and difficult area. Defense counsel may wish to cite the Third Circuit’s recognition of the limits of a probation officer’s expertise when challenging the contents of presentence reports and the findings and conclusions offered by Probation Officers in those reports. The Third Circuit suggested expert testimony may be necessary. In this regard, the Court also noted that the district court would have access to the records of the professionals currently treating Mr. Voelker in determining whether he poses a sufficient threat to children.

The Court was particularly troubled that the conditions imposed here are almost identical to those vacated in its Loy opinions (United States v. Loy, 199 F.3d 360 (3d Cir. 1999) and United States v. Loy, 237 F.3d 251 (3d Cir. 2001)) and that the same judge was involved in all three cases. "It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice."

Written by Renee Pietropaolo

Tuesday, June 05, 2007

Habeas Corpus: Plain Error Review When Party Fails to Object to Magistrate’s R & R

In Nara v. Frank, No. 05-4779 (3d Cir. May 8, 2007), the Third Circuit held that “where a party fails to file timely objections to a magistrate judge’s R & R in a habeas proceeding, and the district court adopts the R & R, we will only review the R & R for plain error.”

Nara pleaded guilty to two counts of murder in the first degree and was sentenced to two concurrent life sentences. Over the next eleven years Nara filed three petitions for post-conviction relief with the Pennsylvania state courts, claiming his due process rights were violated because his guilty pleas were accepted while he was mentally incompetent and his counsel was ineffective for failing to have his competency evaluated. With respect to Nara’s second petition, the Court of Common Pleas issued an order allowing him to withdraw his guilty pleas, having been persuaded by “quite convincing” and “unrebutted testimony” from a forensic psychiatrist that Nara was in fact incompetent when he pleaded guilty. The Superior Court reversed, vacating the order and reinstating Nara’s guilty pleas.

After his third unsuccessful petition for post-conviction relief at the state level, Nara initiated a federal habeas proceeding, and was subsequently denied relief by the district court for failing to file within AEDPA’s one-year statute of limitations. The Third Circuit remanded to the district court for a hearing on whether Nara’s “ongoing periods of mental incompetence” and allegations that he was abandoned by his lawyer following his last appeal to the Pennsylvania Supreme Court justified equitably tolling the statute of limitations. A magistrate judge then issued a Report and Recommendation (“R & R”) wherein he concluded that Nara had exhausted his incompetency claim at the state level, that claim was not procedurally defaulted, the determination that Nara was incompetent was entitled to a presumption of correctness under 28 U.S.C. §2254(e)(1) and Nara’s federal due process rights were violated when he entered his guilty plea because he was mentally incompetent. Neither party objected to the R & R, and so noting the district court adopted the R & R and issued the recommended order. The Commonwealth filed a motion weeks later with the district court requesting vacatur pursuant to FRCP 60(b). The district court dismissed the untimely motion as moot, having been filed after the ten-day window allowed by the R & R for objections. The Commonwealth appealed.

With respect to the Commonwealth’s untimely motion, the Third Circuit found that their “overall negligence in handling the matter” precluded a finding of “excusable neglect.” The Third Circuit found plain error review to be appropriate under the circumstances because “it recognizes the difference between failing to timely assert a right, and voluntarily waiving a right. Failing to timely assert a right results in forfeiture, which permits plain error review,” while “[w]aiver, on the other hand, extinguishes any error.” Using this standard of review, the Court affirmed the district court’s order.