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A federal appellate judge in Atlanta has blasted district court judges and his own colleagues for “fostering disrespect for the rule of law” in their rulings and statements about criminal sentencing guidelines. In a concurring opinion, Judge Gerald B. Tjoflat of the 11th U.S. Circuit Court of Appeals wrote that his court’s tough standard for finding “plain error” in sentencing decisions made under the U.S. Sentencing Guidelines essentially requires trial judges to criticize their own sentencing decisions as unjust. But that, he said, has pernicious consequences. “When a judge tells a defendant that his sentence is unjust and unfair, the defendant is inclined to believe him [and may] persist in attacking his sentence on direct appeal,” Tjoflat said. “Finally, by openly disparaging the defendant’s sentence, the judge fosters disrespect for the rule of law . . . . If the judge does not respect the law that he applies, then why should society at large?” United States v. Thompson, No. 04-12218. Two defendants, Elizabeth Thompson and Joseph Stratton, had appealed sentences for drug dealing that were imposed under the guidelines. The guidelines were in force until the U.S. Supreme Court’s 2004-2005 term rulings in U.S. v. Booker and U.S. v. Fanfan struck down their mandatory application and said they are purely advisory. The justices said that sentences based on findings that are not proven in court violated defendants’ Sixth Amendment right to trial by jury. An 11th Circuit panel remanded both Thompson’s and Stratton’s cases for resentencing because the Florida federal trial judge, John E. Steele, stated in open court while passing sentence: “The sentence I am going to impose is not a fair sentence in my view . . . . I think Ms. Thompson deserves to be in prison. I don’t think she deserves to be imprisoned for 360 months.” Unlike other circuits, the 11th Circuit has said that it will not consider cases in which defendants filed appeals before Booker but did not raise Sixth Amendment challenges in their initial brief. Tjoflat decried the fact that only Steele’s openly stated disapproval met the tough test established by the 11th Circuit for proving that a sentence was unfair, resulting in a finding of plain error. Last February, the 11th Circuit set out its standard in U.S. v. Vladimir Rodriguez. It held that a defendant must present clear evidence that the sentence would have been shorter if the judge had treated the guidelines as advisory rather than mandatory. In the absence of an actual statement by the judge that he would have given a lesser sentence, the panel said, “We just don’t know.” Tjoflat objected to “the ‘magic words’ approach to plain error review.” The Rodriguez standard, he noted, virtually compels a district judge who is dissatisfied with a sentence “to tell the defendant all about the injustice being done to him so that the defendant can receive the benefit of any subsequent appellate decisions.” Tjoflat warned of dilemmas ahead for trial judges because while they no longer are required to enhance sentences based on factors not found by juries, they still are bound to follow the sentencing guidelines on an advisory basis. In addition, judges are aware that Republican congressional leaders have promised to enact tougher mandatory minimum sentences if the judges don’t stick closely to the guidelines. “Post- Booker . . . if the judge thinks a guideline sentence is unfair, then he or she presumably will exercise the prerogative to not impose it,” Tjoflat wrote. “But Supreme Court precedents upholding mandatory minimums based on extraverdict judicial findings . . . are now thought by some to be in doubt.” For all these reasons, Tjoflat suggested, judges are likely to continue to hand down guidelines-based sentences-and make critical comments about the sentences while doing so.

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