11th Circuit Wrestles With Sentencing

Alyson M. Palmer

Daily Report

To many, the justices from the U.S. Supreme Court last month sent a simple message to appeals courts around the country: When reviewing the sentencing decisions of trial judges, back off.

But last week a judge on the 11th U.S. Circuit Court of Appeals signaled that he's not rolling over.

Judge Joel F. Dubina's response to the high court came in a case in which federal prosecutors in Florida had challenged as too lenient a seven-year sentence for a distributor of child pornography. The sentence was more than five years under the sentencing range outlined in the federal sentencing guidelines, but over Dubina's dissent, two other judges affirmed the seven-year term.

That decision appears to follow the deferential approach adopted by the high court in a pair of major sentencing decisions issued Dec. 10, Gall v. United States, 128 S.Ct. 586, and Kimbrough v. United States, 128 S.Ct. 558.

Dubina complained the seven-year sentence was "substantively unreasonable" under Gall.

Lawyer Sam H. Heldman, who's not involved in the case but regularly handles 11th Circuit appeals out of Alabama, said the dueling opinions in the child pornography case show it's not yet clear how the 11th Circuit will apply the pair of Supreme Court cases. He said he was "a little surprised that Judge Dubina thought it so easy to push Gall and Kimbrough aside in staking out that position."

"It's too early to say whether the 11th Circuit will be any more deferential to the district courts than it was before Gall and Kimbrough," said Heldman.

While it didn't cite Gall specifically, another dissent issued this week, in the long-running bribery case of two men convicted over a Fulton County, Ga., bond deal, also demonstrated that the 11th Circuit is wrestling with sentences. In that case, Judge Edward Carnes was on the losing end of a 2-1 vote that affirmed the sentences of Michael deVegter and Richard P. Poirier Jr., which prosecutors argued were too short.

CHILD PORNOGRAPHY CASE

In the case decided Dec. 28, United States v. McBride, No. 06-16544, Robert McBride pleaded guilty to one count of child pornography distribution in August 2006. According to the unsigned majority opinion issued by the 11th Circuit panel, federal investigators turned up more than 900 images of child pornography in McBride's residence.

In the late 1990s, he had spent time in a residential treatment program for adolescents, according to the panel opinion, after pleading guilty at age 16 to two counts of lewd acts on a child, one incident involving a 3-year-old girl and the other a 4-year-old girl.

When McBride came up for sentencing on the federal child pornography charges, U.S. District Judge Gregory A. Presnell agreed with the probation officer's conclusion that the range provided for by the sentencing guidelines was 151 to 188 months imprisonment.

But Presnell found that other factors warranted a lesser punishment, saying the seven-year sentence requested by McBride would be enough time for him to get into and complete a particular prison treatment program. In particular, Presnell found that McBride's childhood was "perhaps one of the worst histories that I have seen since being on the bench, [McBride] being essentially abandoned by his family and then consistently abused."

Federal prosecutors appealed, but two months after the McBride case was argued last fall, the U.S. Supreme Court decided a key pair of sentencing cases. The decisions further fleshed out a prior decision, United States v. Booker, 543 U.S. 220 (2005), that said the federal sentencing guidelines must be considered merely advisory in keeping with defendants' constitutional right to trial by jury.

In Gall, the court split 7-2 to uphold a probation sentence in a drug case in which the guidelines range was 30 to 37 months. The majority said that while appeals courts should review a district court's guidelines calculation and whether the sentence imposed was substantively reasonable, it must defer to the trial judge in close cases, undoing the sentence only if it finds the trial judge committed an abuse of discretion.

In Kimbrough, the Supreme Court, also by a 7-2 majority, upheld as reasonable a below-guidelines sentence premised on disagreement with the guidelines' disparity between crack and powder cocaine offenses.

The McBride decision was issued just 18 days after the justices released Gall and Kimbrough. Chief Judge J.L. Edmondson and U.S. District Judge Richard W. Story, who was sitting by designation, didn't cite Gall but other precedent the judges said underscored that appellate courts shouldn't substitute its judgment for that of sentencing judges.

"Whatever sentence we might have imposed," they said, "we do not believe an 84-months' sentence lies outside the range of reasonableness in this case."

Even though Gall commands deference for trial judges, Dubina cited it, indicating he thought the panel majority hadn't carried out properly the Supreme Court's dictate to determine whether a sentence was reasonable under the relevant statutory factors. He wrote that Presnell "unjustly fixated" on what he acknowledged was a "horrific childhood."

"Though the district court gave lip-service to other § 3553(a) factors," wrote Dubina, "the district court's downward departure was based largely, if not solely, on the defendant's childhood, which it deemed to be one of the worst it had ever seen. Some reduction might have been appropriate based on the defendant's childhood, but a downward departure of almost 50% from the bottom of the Guidelines range was unreasonable when the other § 3553(a) factors, such as reflecting the seriousness of the offense, the need for deterrence and the need to protect the public, all support a more lengthy term of incarceration than the one given."

Dubina wrote that he thought it was an even "bigger problem" that Presnell mandated that McBride be supervised for only 10 years after his eventual release from prison, rather than the lifetime of supervision after release recommended by the guidelines.

"As it stands, the defendant will walk free in society without restrictions at age 45," wrote Dubina. "Allowing someone who will unquestionably continue to remain a danger to society's most vulnerable citizens -- its children -- to live free of any restrictions at any age, let alone such a young age, in my view, is substantially unreasonable."

A spokesman for the Florida office of U.S. Attorney Robert E. O'Neill said in an e-mail that he couldn't comment on the opinion.

McBride's lawyer, Rosemary T. Cakmis of the Federal Public Defender in Orlando, said the 11th Circuit made the right call. "Gall says that you're not supposed to use a mathematical approach to determining variances," she said, "and you don't have to have exceptional circumstances to justify an exceptional variance."

FULTON COUNTY BRIBERY CASE

In the McBride case, the government didn't argue that the trial judge had miscalculated the sentence recommended by the guidelines -- just that he had acted unreasonably in deviating from that sentence.

In contrast, federal prosecutors in Atlanta argued that the sentencing judge in the Fulton County bribery case decided by the 11th Circuit on Wednesday had made a guidelines calculation error, presenting less of a straightforward question of the appellate courts' power to review sentences for reasonableness.

But Carnes' dissent to the panel's decision to uphold the below-guidelines sentences of former county financial adviser deVegter and former Lazard Freres & Co. investment banker Poirier also shows the 11th Circuit isn't going to abdicate its sentencing review power lightly.

A jury nearly seven years ago convicted Poirier and deVegter, an aide to former Gov. Joe Frank Harris who had been hired by the county to help select an underwriter for $163 million of bond refinancing, on allegations that Poirier paid deVegter approximately $40,000 to help Lazard secure the bid.

U.S. District Judge Willis B. Hunt Jr. presided over the trial but then was consumed by the Gold Club racketeering trial, so Senior U.S. District Judge Marvin H. Shoob handled the sentencing, giving both one year on probation and community service. The 11th Circuit tossed the sentences as too lenient in February 2003, and Shoob recused on remand, saying he doubted the men were guilty of any crime.

The government successfully appealed new sentences issued by Hunt, who gave both eight months' imprisonment and two years' supervised release, also requiring deVegter to pay a $5,000 fine.

Hunt took a second stab at the sentences -- 13 months in prison for deVegter and seven months in prison for Poirier, with additional supervised release and home confinement time for each.

Prosecutors appealed again, arguing that the sentences not only were unreasonable variances from the guidelines, but that the guidelines calculation by Hunt -- 33 to 41 months' imprisonment -- was wrong.

The majority of the 11th Circuit panel -- 11th Circuit Judge Rosemary Barkett and U.S. District Judge James I. Cohn, visiting from Florida -- rejected prosecutors' argument that Hunt went against a prior 11th Circuit ruling in the case in calculating the monetary benefit to the Lazard firm, a relevant factor under the guidelines calculation.

And -- with minimal explanation in their unsigned, unpublished opinion in United States v. deVegter, No. 06-15692 -- they said they couldn't call the sentences unreasonably low.

In his dissent, Carnes wrote that Hunt violated the "law of the case doctrine," meaning he hadn't followed prior appellate rulings in the matter, in calculating the net improper benefit to Lazard. He also said Hunt erred in the reasoning by which he decided not to impose the guidelines sentence -- concluding that deVegter had promised nothing in return to Poirier for the bribe and his assessment that the defendants' criminal conduct was an aberration in otherwise honorable service to their clients.

Both deVegter and Poirier have completed the prison portions of their sentences but faced the possibility of having to return to jail if the government won its appeal. The government could seek further review from the full 11th Circuit or the Supreme Court, although such discretionary appeals are seldom allowed.

Patrick Crosby, a Department of Justice spokesman in Atlanta, said Thursday that the government was studying the opinions.

Atlanta lawyer Craig A. Gillen, who argued for Poirier, said he hopes the 11th Circuit ruling will finally put to rest a case which has gone on for about a decade.

Although the decision also was a win for him and his client, deVegter's lawyer David G. Russell said he was hard-pressed to understand why the majority opinion didn't cite Gall. He said he hopes the 11th Circuit will follow the Supreme Court's admonition to defer to district judges on sentencing unless, in his words, "something is just clearly off the reservation." He said those lower court judges are better-positioned to determine sentences.

"What I would hope to see would be these appellate court judges getting more used to letting the district court judge."