Fifth Circuit admonishes parties not to phone in sentencing hearings.

Criminal proceedings are solemn events; a phone call is not an appropriate means to conduct a solemn event. That was the warning issued by the Fifth Circuit in United States v. Ramos-Gonzales, where the Court was again reviewing a special condition of supervised release following a resentencing. The Court explicitly noted that the absence of authority for conducting a resentencing via telephone and advised against this procedure in the future.

The problems with using a telephone procedure were expounded upon in Judge Jones’ concurring opinion. Using a telephonic conferences “reflects poorly on the dignity and integrity of federal court proceedings[,]” as well as complicating matters should the defendant need to ask counsel a question or the AUSA need to present evidence. The possibility of one of the parties multitasking during the phone was also a concern.




Scientific research used to support precluding consideration of bald arrest records at sentencing

The Third Circuit found plain error in a sentencing court relying on a record of past arrests (without a description of the conduct purportedly leading to arrest) in United States v. Mateo-Medina. The prohibition on using bald arrest records had been decided back in 2009. The interesting twist in Mateo-Medina is the Court’s citation to research since their decision that reinforced their earlier ruling. The research cited had found socioeconomic factors and implicit bias likely impacted arrest rates. The research citations included:

  1. The Sentencing Project, Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System (August 2013): finding indicators that police were more likely to arrest people of color due to implicit bias, e.g., unconscious assumptions associating African Americans with violence and crime. (Report available here)
  2. Ojmarrh Mitchell & Michael S. Caudy, Examining Racial Disparities in Drug Arrests, JUSTICE QUARTERLY (Jan. 2013): An empirical study that analyzed 13 years’ worth of data on race, socioeconomic factors, drug use, and drug arrests that found discrepancies between drug arrest rates for African Americans and white individuals could not be explained with a difference in the extent of drug use between the two groups. Residing in an inner city neighborhood actually accounted for more of the disparity in arrests rather than rates of drug use or the manner of drug use. (Article available here)

The concern that arrests reflect implicit bias seems justifiable. The law should not countenance punishing individuals more harshly based on racial stereotypes. The socioeconomic factor of residing in an inner city, however, is a more novel concept. I would be curious to see if this creeps into other criminal procedure areas besides sentencing, such as probable cause determinations. If it is unreasonable for a judge to make assumptions based on arrest records, which may unfairly target inner city residents, might it not also be unreasonable for a police officer to make assumptions about criminal activity in an inner city area? And, does this research shed doubt on the concept of “high crime” areas in inner cities?


Can a Court speak ex parte with a probation officer?

The First Circuit recently ruled there was no plain error in a judge “engaging in brief, off-the-record conversations with a probation officer during the [defendant’s] sentencing.”

The opinion made two conclusions:

  1. A probation officer is an extension of the court and functions as an arm of the court, thus a probation officer fundamentally differs from a third party.
  2. An ex parte conversation may seek advice or analysis from the probation officer, but a judge cannot rely on new facts for sentencing unless and until they are disclosed to the parties and subjected to adversarial testing.

Unfortunately, the Court did not give much guidance on analysis vs. new facts. Instead, finding the contents of the ex parte conversations were unknown as a direct result of the defendant’s failure to object. Nor did the Court find anything in the record to suggest new facts were disclosed during the ex parte conversations.

The Court’s opinion does indicate possible constitutional tension between an ex parte conversation with a probation officer and a defendant’s right to a meaningful opportunity to comment on factual information on which his or her sentence is based. The First Circuit cites a previous instance where a sentence was vacated based on a probation officer revealing information to the judge without disclosing it to the defendant (Opinion here).

The problem with the Court’s analysis/advice versus new facts distinction is that it simultaneously acknowledges potential due process violations while failing to safeguard against them. Hopefully defense attorneys will start lodging objections to the practice of ex parte conversations with probation officers, so that a record will exist for the appellate courts to flesh out more detailed guidance on this practice.

Identical Factual Pattern for All Defendants Rendered Enhancement Application to One Unreasonable

In United States v. Cotto-Negro the First Circuit vacated and remanded for resentencing a procedurally unreasonable sentence in a Hobbs Act robbery.

The Court found the district court clearly erred in applying an enhancement (bodily injury sustained by victim (USSG § 2B3.1(b)(3)(A)) to Mr. Cotto-Negron’s Guidelines, which was not applied to his two co-defendants. At sentencing the court justified the enhancement’s application on the basis Mr. Cotto-Negron’s role in the robbery was factually distinct from his co-defendants’s. The First Circuit, however, found no record evidence to support the district court’s conclusion. The plea agreements for all three defendants and two of the PSRs (the third PSR was not made a part of the appellate record) reported the exact same facts about the robbery and depicted identical roles for each defendant. Thus, the district court clearly erred in ascribing a different level of culpability to Mr. Cotto-Negron based on his role in the offense.

Additionally, the First Circuit rejected the government’s attempts to analogize Mr. Cotto-Negron’s argument with United States v. Kneeland. In Kneeland, the defendant argued it was error for the district court to apply a role enhancement when his equally culpable co-defendant did not receive the enhancement.  In particular, the government highlighted language in Kneeland that even if the court were to assume the roles were commensurate with one another, this, without more, would not justify reversing the sentence. The First Circuit distinguished between an argument that the enhancement is not factually supported and an argument that it was procedurally unreasonable to apply the enhancement.  The court put aside the issue of whether the court could apply the enhancement to Mr.Cotto-Negron despite deciding not to apply the enhancement to the co-defendants, because the district court may not justify the disparate enhancement applications based upon clearly erroneous facts.