Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990’s. Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme. Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience. Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness. United States v. Robertson (No. 11-1651).
The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005). These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a below-guidelines sentence. As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously. For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.
Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.
First, the court strongly embraced self-motivated rehabilitation as a sentencing factor. Here’s some of the language:
The Supreme Court recently reiterated “the principle that ‘the punishment should fit the offender and not merely the crime.’” Pepper v. United States, 131 S. Ct. 1229, 1240 (2011), quoting Williams v. New York, 337 U.S. 241, 247 (1949). “Highly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Pepper, 131 S. Ct. at 1235, quoting Williams, 337 U.S. at 247. This aim is codified in 18 U.S.C. § 3553(a), which requires that any sentence imposed be “sufficient, but not greater than necessary” to serve the sentencing goals of punishment, deterrence, protection of the public, and rehabilitation, and which requires the court to consider “the history and characteristics of the defendant.” Adequate consideration of a defendant’s evidence of rehabilitation fits squarely within these parameters. Demonstrated self-motivated rehabilitation is direct and relevant evidence of “the need for the sentence imposed . . . to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; [and to] provide the defendant with needed educational or vocational training . . . or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(B)-(D).
The power of evidence of self-rehabilitation was evident in Gall, where the Supreme Court noted that it was reasonable for the district court to attach “great weight” to a defendant’s decision to change his life and withdraw from a drug distribution conspiracy: “Compared to a case where the offender’s rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant’s] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case.” 552 U.S. at 57. Such self-motivated rehabilitation “lends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts.” Id. at 59. (12-13)
It’s interesting to see such reliance on the Supreme Court’s recent decision in Pepper. As I discussed here, Pepper strikes me as a potentially significant break from the Court’s recent federal sentencing jurisprudence. If lower courts were to read Pepper for all it’s worth, we might start to see a real shift in federal sentencing practices.
Also notable in Robertson is the fact that the defendants’ arguments were not entirely “passed over in silence,” as they were in Cunningham. Whereas some Cunningham-type cases involve district judges who literally say nothing to indicate that they have even heard a defendant’s argument, the judge in Robertson expressly indicated some awareness of the facts emphasized by Mr. and Mrs. Robertson:
Concerning the Robertsons’ criminal histories, the court acknowledged that Henry had not committed any crimes since 2002 and that Elizabeth lacked any criminal history. But other than noting, without further detail or explanation, that Elizabeth had provided “excellent service . . . as a professional in the medical field,” it is not apparent that the sentencing court considered the Robertson’s unusually strong evidence of self-motivated rehabilitation over the past ten years. Because the court’s silence makes it impossible to discern that it appropriately balanced the Robertsons’ rehabilitated lives and characters against the seriousness of their offense for purposes of 18 U.S.C. § 3553(a), we find this minimal treatment to be insufficient.
. . . The probation office and the government agreed that it would be appropriate to treat Henry’s criminal history as overstated due to the passage of time, yet the district court’s only acknowledgement of this argument was its comment that Henry was not “youthful or immature” when he committed the reckless driving offense in 2002. (15-16)
I think it unfortunate that the Cunningham rule is sometimes treated as satisfied when there is mere acknowledgement of a defendant’s argument, as opposed to substantive responsiveness. I’m glad to see Robertson suggesting a more rigorous approach to Cunningham.
In this regard, I thought it interesting that the Seventh Circuit made nothing of the fact that “the district judge agreed to modify Elizabeth’s date to report to prison to allow her to continue to work as a nurse long enough to become eligible for retirement benefits.” (15 n.3) This contrasts with the Sixth Circuit’s opinion in United States v. Liou, 491 F.3d 334 (6th Cir. 2007), in which the district judge’s decision to give the defendant a more favorable report date was held to constitute an adequate response to the defendant’s argument for a below-guidelines sentence.
An interesting question about Robertson is why the Seventh Circuit formally treated the district judge’s error as merely procedural, remanding for a resentencing at which the original sentence could be reimposed. It is seems clear enough that the panel felt the district judge erred substantively, not just procedurally, in imposing multiyear prison sentences on two defendants who led exemplary lives for a decade after their crimes were committed. For instance, it’s hard not to read this view between the lines of the final words of the Seventh Circuit’s opinion: “the court should carefully weigh and explain its consideration of the Robertsons’ evidence of self-motivated rehabilitation.” (17) Why not end the possibility of misunderstanding or mischief at the district court level and forthrightly hold that a guidelines sentence would be substantively unreasonable in this case?
Appellate courts have been loathe to hold guidelines sentences substantively unreasonable. (As a side note, it is actually a debatable question whether the Robertsons’ sentences can be fairly characterized as guidelines sentences, since their guidelines ranges were calculated using a newer and harsher version of the guidelines than existed at the time they committed their crimes.) This reluctance doubtlessly owes much to the presumption of reasonableness that may be accorded guidelines sentences under Rita v. United States, 127 S. Ct. 2456 (2007), and to the underlying premise of Rita that the guidelines embody the research and expertise of the Sentencing Commission. Appellate courts should recognize, however, that is does no violence to the logic of Rita to hold guidelines sentences substantively unreasonable in highly unusual cases that plainly lay beyond the Commission’s contemplation in crafting the guidelines. To start holding more guidelines sentences substantively unreasonable — where there are sound, principled grounds for doing so — would in effect start to build the common law of sentencing for which many scholars have been advocating for a very long time. Such a common law holds out the hope for greater transparency, consistency, and proportionality in federal sentencing.
But are there persuasive grounds for holding the Robertsons’ sentences substantively unreasonable? But my lights, this is a complex and uncertain question. The underlying principle would be that defendants who have led productive, crime-free lives for many years before being charged present almost no recidivism risk, rendering multiyear prison terms a needless burden on the both the defendants and our overcrowded federal prison system.
However, as someone who believes that punishment should be based more on the severity of the crime than the risk of the criminal, this principle leaves me a little cold.
On the other hand, as I’ve been exploring in some of my recent writing, I also think that retributive approaches to punishment may be compatible with crediting defendants for acts that have a penitential character. I don’t know, though, whether anything the Robinsons did could fairly be characterized as penitential.
Aside from the questions relating to self-motivated rehabilitation, Robinson also raised a couple of other interesting questions. First, the Seventh Circuit adhered to its precedent in holding that the Ex Post Facto Clause is not violated when defendants are sentenced under a harsher version of the guidelines adopted after their crimes were completed. Several other circuits take a contrary view, which may make the question ripe for Supreme Court consideration.
Second, the Seventh Circuit noted, but felt it did not have to resolve, continuing uncertainty over whether the aggravating role enhancement of U.S.S.G. § 3B1.1 requires that the defendant have exerted control over other participants in a criminal activity.