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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. Judge Gerald B. Tjoflat of the 11th U.S. Circuit Court of Appeals wrote in a concurring opinion last week that his court’s tough standard for finding “plain error” in sentencing decisions made under federal 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?” Tjoflat’s broadside came in a concurring opinion he wrote in U.S. v. Elizabeth Thompson and Joseph Stratton. The two defendants had appealed sentences for drug dealing that were imposed under the mandatory guidelines in force prior to the U.S. Supreme Court’s January rulings in U.S. v. Booker and U.S. v. Fanfan. In those twin 5-4 rulings, the high court struck down the mandatory use of the controversial guidelines and ordered that they be used only in an advisery fashion. Last week, the 11th Circuit panel unanimously remanded both Thompson’s and Stratton’s cases for re-sentencing because the trial judge, John E. Steele of the U.S. District Court for the Middle District of Florida, 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. That’s a choice Congress and the government has taken away from the court.” Steele’s statement was not unlike statements made by many federal judges, both conservative and liberal, around the country who complained for years that the sentencing guidelines forced them to hand down excessively long sentences. The guidelines required that sentences be enhanced based on aggravating factors found in probation reports but not found by juries or judges. The Supreme Court struck down the guidelines in January because sentencing people based on findings not proven in court violated defendants’ Sixth Amendment right to trial by jury. Federal appeals courts are allowed to review sentences under what is known as the “plain error” standard, in which they review a case to determine whether a defendant’s rights were violated during sentencing. But unlike other circuits, the 11th Circuit has said that it will not consider cases where defendants filed appeals before Booker but did not raise Sixth Amendment challenges in their initial brief. While he concurred with his colleagues William H. Pryor Jr. and Arthur L. Alarcon of the 9th Circuit, sitting by designation, in last week’s decision, Judge 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 advisery 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.” “The court’s opinion illustrates one of many problems with the Rodriguez standard or, as I coin it, the ‘magic words’ approach to plain error review,” Tjoflat wrote in his Thompson concurrence. “Under Rodriguez, we do not generally reverse a sentence unless the district court has stated on the record that the guideline sentence is too high — and by implication, unfair and unjust.” 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’s critique generally was applauded by criminal defense attorneys. “This requirement of magic words is disturbing,” said Stephen J. Bronis of Zuckerman Spaeder in Miami. “I never found it much of a relief to the folks I represented when the judge says, ‘I regret having to do it, and it’s unfair but, I’m going to have to impose some Draconian guideline sentence.’” Fort Lauderdale lawyer and sentencing expert Benson B. Weintraub complained that “the 11th Circuit is completely out of sync with the rest of the country’s courts of appeal. The Thompson decision underscores the rigidness of this court in extolling form over substance in the most critical of criminal cases.” Ohio State University law Professor Douglas A. Berman of Ohio State University, who studies sentencing and maintains an Internet site devoted to sentencing issues, confirms the observation that the 11th Circuit is an outlier. Four of the nation’s 12 circuit courts, Berman has found, almost automatically grant defendants who were sentenced under mandatory sentencing guidelines prior to the Booker ruling a remand for resentencing, while two others more seek guidance from the sentencing judge. The members of the 11th Circuit, Berman said in an interview, “seem to be trying their darnedest to make sure the Rodriguezes of the world do not get the benefit of the Booker decision.” The 11th Circuit’s tough stance toward Booker appeals also was deplored last week in a separate case by Senior 11th Circuit Judge James C. Hill. In Adel Bordon v. United States, Hill wrote in a special concurrence that the court is upholding “erroneous” sentences post- Booker by relying too heavily on precedent: “The Bordons should have claimed relief under Booker — before Booker was decided! For this precedent, I am sorry. “I should like to think that a court would want to correct an erroneous sentencing,” Hill wrote. “We must feel that we cannot. Yet other circuits in this country seem to be doing so — and surviving!” Defense lawyers also criticize the 11th Circuit’s position that defendants’ original appellate briefs must have included claims of unfair sentencing even though the Supreme Court had not yet issued its Booker decision. This is called the briefing issue. “Although the plain error and briefing issues are two distinct principles of law, it’s amazing that the court’s policies on the two are so similar and that the 11th Circuit is taking by far the most Draconian approach of all the circuits,” said Jacksonville appellate lawyer John S. Mills. None of the attorneys interviewed for this article foresee any softening of the 11th Circuit’s position in spite of the strong criticisms by Tjoflat and Hill and the support of 11th Circuit Judge Rosemary Barkett for Tjoflat’s earlier opinions against the Rodriguez rule. But some were optimistic that the 11th Circuit’s position eventually will be overruled. Mills said that with two new justices coming onto the Supreme Court soon, it’s possible the new court could throw out the sentencing guidelines entirely. Tjoflat sounded a similar note in his concurring opinion last week. He 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 advisery 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 and extraverdict enhancements based on prior convictions 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. “The logical implication of [11th Circuit decisions] is that such statements are at least harmless — if not desirable — because we reward the defendant based on their presence in the record,” Tjoflat wrote.

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