The Sixth Circuit issued a bizarre decision in a child pornography case last week (USA v. Bistline). A rehearing en banc is being sought and the Sixth Circuit Defenders filed an amicus brief.
A summary of the case is as follows:
The district court judge varied (to one day in the lock-up) based on (1) a policy disagreement with 2G2.2, citing the fact that it was not developed by the United States Sentencing Commission (Commission) based on empirical data or national experience, and contrasting the punishment it recommended with the punishment recommended by guidelines applicable to more serious crimes; and (2) the defendant’s age (67), health (two strokes), and family circumstances (“putative” need to care for his wife).
The panel held that (1) all policy disagreements are subject to “closer review,” (2) disagreements with guidelines “bristling with” congressional directives are subject to the very closest review (and, as we will see, appear to be mandatory), and (3) policy statements disapproving of individualized circumstances for purposes of “departure” must be considered when the defendant moves for a variance and apparently render a variance based on disfavored factors unreasonable. (Two of the factors Bistline assumed were disapproved by the Commission, age and health, are now deemed “may be relevant,” rather than “not ordinarily relevant.”)
The reason guidelines driven by congressional directives are subject to the very closest review is that it best comports with Separation of Powers for Congress to treat the Commission like a judge would his law clerk or a Senator would his staff. When the Commission issues guidelines without congressional directives, it has to act on the basis of empirical data and national experience, but Congress is free to use the Commission as a conduit, and when it does, judges face a “formidable task.”
The panel held, under “closer review,” that the reasons the judge gave demonstrating that the Commission did not act in its characteristic institutional role (the Commission acted pursuant to congressional directives rather than its capacity to base its determinations on empirical evidence and national experience), were unreasonable as a matter of law. Note: These reasons, rejected under “closer review,” are the very reasons the Supreme Court said preclude closer review in Kimbrough (without reaching whether closer review would ever be constitutional).
The panel (a) held that in order to disagree with a guideline driven by congressional directives (which includes about 80 guidelines), the judge must refute Congress’s reasons for the directives; (b) “found” that Congress’s reasons for these directives were retribution and deterrence (based on a directive in the PROTECT Act to “ensure that the guidelines are adequate to deter and punish”); (c) and found (as a matter of law? as a matter of fact?) that child pornography possession is a serious crime, and that high sentences are needed to promote individual and general deterrence.
Although there are a few obligatory statements that the guidelines are not mandatory, by this logic, 2G2.2 is mandatory.
The following are issues to take from this case:
(1) Policy Disagreements
The decision inadvertently highlights a practice tip regarding policy disagreements. Don’t stop after saying the Commission did not rely on empirical evidence and national experience. That is merely the reason closer review cannot apply (even if closer review were constitutional).
The substantive analysis requires showing that the guideline range is greater than necessary to serve 3553(a)’s purposes “even in a mine-run case,” that is, aside from case-specific facts. See Kimbrough. For example, you can show, based on empirical evidence and research, that the career offender guideline is unsound, see Fifteen Year Review at 133-34; the ecstasy guideline is unsound, see USA v. McCarthy, slip op., 2011 WL 1991146 (SDNY 2011); the relevant conduct guideline is unsound, and the fraud guideline is unsound.
(2) Mitigating Factors
The right way to analyze mitigating factors is laid out in Pepper at 1242-43, and Gall at 53-60. The question is whether the individualized facts are relevant to the purposes of sentencing. It is not (as the Bistline panel seems to think) whether a policy statement allows, discourages, or prohibits “departure” on the basis of such facts. That was the analysis under 3553(b), which has been excised.
So, if the client is 67 years old, show why it matters to one or more purposes of sentencing, for example, the client’s age of 67 is highly relevant to the need to protect the public from further crimes by him because his risk of recidivism is statistically low.
Empirical evidence and caselaw for offender characteristics is included in Part IV of No More Math Without Subtraction.
And, the Commission just issued a good compilation of cases and studies on issues around military service here.
Note that in Gall, the Court upheld a variance based on a number of factors the Commission’s policy statements deem to be never or not ordinarily relevant, but the Court made no mention of those policy statements, and imposed no requirement that policy statements be considered at all when a defendant moves for a variance (as opposed to a “departure”). Only Justice Alito holds the view that policy statements can and should be given “some significant weight.” Gall, 552 U.S. at 68 (Alito, J., dissenting). The majority has rejected that view. If a court insists that these policy statements must be considered even when you are moving for a variance, you can show that they are contrary to empirical evidence, see Math Without Subtraction, Part IV, and you can also show (turning Bistline on its head) that they were adopted by the Commission contrary to congressional directives. See Math Without Subtraction, Part II.
(3) Separation of Powers/Violation of Article I, Section 7
In a short nutshell (this will be briefed in the near future), one problem with Bistline’s novel Separation of Powers analysis is that, while Congress did enact the directives that shaped 2G2.2 in compliance with the bicameralism and presentment requirements, it did not enact the resulting guideline in compliance with the bicameralism and presentment requirements. By treating the Commission like a judge treats his law clerk or like a Senator treats her staff (which Bistline says is as it should be), Congress circumvented the bicameralism and presentment requirements. “The situation is no different in principle from what would exist if Congress gave the same power of writing sentencing laws to a congressional agency such as the General Accounting Office, or to members of its staff.” Mistretta, 488 U.S. at 421 (Scalia, dissenting); Bowsher v. v. Synar, 478 U.S. 714, 737 (1986) (Stevens, J., concurring) (“Congress may not exercise its fundamental power to formulate national policy by delegating that power to one of its two Houses, to a legislative committee, or to an individual agent of Congress.”). Another problem is that, by using an agency “located” in the Judicial Branch as a conduit, Congress improperly “borrowed” the Judicial Branch’s “reputation for impartiality and nonpartisanship” “to cloak [its] work in the neutral colors of judicial action.” Mistretta, 488 U.S. at 407.