Molina-Martinez v. United States – New Sentencing Guidelines Decision Focuses on Remedy for Errors in Sentencing Calculation

We have written before about federal sentencing issues.  A recent US Supreme Court decision again focuses our attention on this important topic and, specifically, the central role that the advisory guidelines play in the federal sentencing process, and how sentencing mistakes can – and should – be corrected.

By way of background, sentencing in federal cases is governed largely by the the advisory sentencing guidelines promulgated by the United States Sentencing Commission.  The concept underlying the advisory guidelines is relatively simple.  They are designed to promote uniformity in sentencing.  Thus, if two defendants with roughly similar backgrounds are convicted of the same offense and appear for sentencing before two different judges in two different jurisdictions, the advisory guidelines help ensure that the defendants will receive roughly the same sentence.  In this respect, the guidelines restrict the discretion of the sentencing judge.

The central role of the advisory guidelines in federal sentencing cannot be overstated.  As a general matter, current law does not require  judges to impose the sentence that the guidelines contemplate for a particular offense, which is why defense attorneys (and some of the more intellectually honest US Attorneys) refer to them as “advisory”.  There is a list of factors in the federal sentencing statute that district court judges are supposed to consider when fashioning a sentence in a particular case, and the guidelines is one of the items on that list.  However, unless there is a good reason to “depart” or “vary” from a guidelines sentence, most judges will typically sentence a defendant within the guidelines range for the offense at issue.  This is because a “within range” sentence is presumed reasonable, so the likelihood of reversal for a sentencing error is reduced.  (In the simplest sense, “departures” and “variances” are reasons to sentence a defendant to something less that what the guidelines call for.  They are not easily obtained, and are not available in every case.)

An advisory guidelines sentence is a function of two numbers.  First, and at the risk of oversimplifying, each offense in the federal criminal code has an assigned point value.  Different facts and circumstances surrounding that offense in a given case will, if present, add points to that number.  Thus, the sentencing calculation starts with ascertaining the point value assigned to the offense of conviction, determining whether there are facts and circumstances warranting an increase in that number, and then adding these numbers together to determine the “offense level”.  The other number is the criminal history category, which is a function of a defendant’s prior criminal record.  Offense levels currently range from 1 to 43, whereas criminal history categories currently range from 1 to 6.  The criminal history category will increase with the number of prior convictions while, broadly speaking, the offense level will increase with the severity of the offense.  The sentencing range to be adopted in a particular case is determined by where these two numbers intersect on the “Sentencing Table”, which is a grid that is reproduced in every printed edition of the advisory guidelines.

The advisory guidelines sentencing range used in a given case is calculated by the United States Probation office in the district where the defendant is being sentenced.  The guidelines range, as well as the underlying calculation, are included in a presentence report that US Probation prepares for the sentencing judge.  The presentence report also contains a significant amount of information concerning the defendant’s background including, without limitation, the extent of their education, economic status, and the facts underlying the offense of conviction.  Theoretically, it is supposed to provide the judge with all of the information needed to fashion an appropriate sentence for the defendant.  This is a confidential document that is seen only by the judge, the attorneys and US Probation.  Defense counsel, as well as the Assistant US Attorney representing the Government, receive drafts of the report in advance of sentencing, and are afforded the opportunity to raise objections and request changes.  These comments, as well as the response of US Probation, are included in the final report.

The foregoing cursory description of federal sentencing creates the impression of a process that appears mathematically certain and, to a large extent, mistake-proof.  However, as Molina-Martinez v. United States demonstrates, the federal sentencing process is still susceptible to error, notwithstanding its many rules and procedures.

In that case, Defendant pleaded guilty to being unlawfully present in the United States after being deported for an aggravated felony conviction.  The advisory guidelines range in his presentence report was 77 to 96 months.  Defendant asked the District Court to sentence him to a custodial term at the lowest end of the range, or 77 months.  Similarly, US Probation recommended a jail term of 77 months.  The Government sought a sentence of 96 months.  The District Court sentenced Molina-Martinez to 77 months.

Defendant was almost certainly pleased with this result – at least until he subsequently learned that the correct advisory guidelines range for his offense was 70 to 87 months, not 77 to 96 months.  As just noted, he sought the absolute lowest end of the applicable range at sentencing, US Probation concurred, and the District Court viewed the lowest end of the applicable range as the correct result in his case.  Indeed, he probably would have been sentenced to 70 months, instead of 77 months, had the District Court and the parties been aware of the correct sentencing range prior to the sentencing hearing.  Defendant did not timely object to the error in the advisory guidelines calculation because he learned of it after sentencing.

Federal Rule of Criminal Procedure 52(b) allows such an error to be corrected on appeal if the defendant can show: (a) the error was not intentionally relinquished or abandoned; (b) the error is clear or obvious; and (c) the error affected the defendant’s substantial rights – in other words, the defendant must show that the outcome would almost certainly have been different but for the error.  Once these criteria have been satisfied, the Court of Appeals should correct the forfeited error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings.

Molina-Martinez appealed to the US Court of Appeals for the Fifth Circuit.  The Fifth Circuit acknowledged that the District Court used the incorrect range, but found that Molina-Martinez failed to show that the sentence imposed affected his substantial rights since it still fell within the correct range, e.g., it was still between 70 and 87 months.  The Court required defendants such as Molina-Martinez to identify “additional evidence” showing that the application of the incorrect advisory guidelines range somehow affected their sentence.  Put somewhat differently, the Fifth Circuit did not believe that defendant was prejudiced by the error at issue since the sentence ultimately imposed fell within the correct (or lower) range.

The US Supreme Court reversed.  First, the Court noted that most Courts of Appeals that have addressed this issue have not imposed such a burden on defendants.  More significantly, however, the Court noted that the reality of federal sentencing is that the advisory guidelines are, for all practical purposes, much more than just advisory.  They do not just inform the sentencing judge’s decision, but rather impact on it to the point where they largely dictate the result.  The fact is that most defendants are going to receive a within-range guidelines sentence unless there is a very good reason to reduce it.  In this case, the District Court rejected the Government’s arguments in favor of the positions of the Molina-Martinez and US Probation, and imposed a sentence at the lowest end of what it then believed to be the applicable range, which was 77 months.  Given the facts and circumstances of this case, there existed a very strong possibility that the District Court would have done precisely the same thing had it been aware of the correct sentencing range, and would therefore have sentenced the defendant to 70 months.  Accordingly, the Fifth Circuit’s decision was reversed, and the case was remanded for further proceedings.

This decision highlights two important related points.  First, anyone who has ever sentenced a defendant in federal court knows that the hearing’s primary focus is the applicable guidelines range.  Sure, according to the statute, the guidelines are just one of many factors that are to be considered in imposing sentence.  In reality, however, they drive the entire proceeding.  Accordingly, and for this reason alone, defense counsel cannot simply accept the guidelines calculation as set forth in the draft presentence report.  A fair reading of the Court’s opinion in Molina-Martinez suggests strongly that this was what had occurred.  Defense counsel learned of the error when his client flagged it for him well after the sentencing hearing, and during the appellate phase of the case.  Defense counsel should always conduct an independent review of the guidelines calculation as set forth in the draft presentence report.  The federal sentencing process is highly complex, and mistakes are always possible notwithstanding the efforts of even the best defense attorney to prevent them from occurring.  But the extra effort devoted toward a review of US Probation’s calculation will certainly help to reduce the likelihood of a guidelines error.

James S. Friedman LLC represents criminal defendants in the federal district courts located in New Jersey and New York City.  The firm also represents defendants seeking to appeal criminal convictions to the United States Court of Appeals for the Third Circuit.  If you have a criminal case in federal district court in New Jersey or New York City, or want to appeal a conviction to the Third Circuit Court of Appeals, contact us immediately.

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