The Sixth Circuit's recent, and short, opinion in United States v. Oaks illustrates the point. It asks the question we've never needed answering before - is running out of a courtroom a violent act?

It turns out that it isn't.

Background on the Armed Career Criminal Act

If you are caught with a gun and you have a prior felony conviction, the most amount of time you can be sentenced to spend in prison is 10 years and, odds are, your sentencing guidelines range would be much lower.

If, however, you have been previously convicted of a felony crime of violence or a drug distribution offense three times in your past, then your mandatory minimum sentence is 15 years. And your statutory maximum sentence is life.

Mr. Oaks

Mr. Oaks pled guilty to possessing a firearm after a felony conviction. [FN1] He had two prior convictions for either drug distribution offenses or crimes of violence. He also had a prior conviction for felony escape.

Mr. Oaks felony escape conviction arose out of his escape from a courtroom where he was awaiting a hearing on robbery and burglary charges.

The district court determined that this escape conviction was a crime of violence.

Mr. Oaks appealed.

The Sixth Circuit affirmed.

Mr. Oaks filed a petition for certiorari to the Supreme Court.

The Supreme Court and Mr. Oaks

The Supreme Court GVR'd - it granted cert, vacated the Sixth Circuit's judgment, and remanded to the Sixth Circuit in light of Chambers v. United States. (see SCOTUSBlog coverage here)

Chambers dealt with whether escape which arises out of a failure to report is a violent felony.

It's a little astounding that this is even a question - the actual thing that a defendant does can be as passive as sitting on his couch watching TV and eating potato chips while he's supposed to be elsewhere. Aside from the violence to his own cholesterol level, this does not seem to be a violent act.

Happily, a unanimous Supreme Court held that failure to report is not a crime of violence for Armed Career Criminal Act purposes. In reaching that conclusion, the Court looked at a United States Sentencing Commission report on failure to report crimes, and noted that in 160 cases, not once did a failure to report lead to a fight with law enforcement.

And they say watching TV is bad for you.

After The Supreme Court's Remand

In light of the Supreme Court's remand in Mr. Oaks's case, the Sixth Circuit remanded to the district court for more fact-finding about what the details of the felony escape were to determine if it was really a crime of violence.

The district court found that,

first, it appears from the uncontroverted facts that at the time of the felony escape, Oaks was being held in law enforcement custody in the county jail on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary, but had been taken to a courtroom for a court appearance at the time he ran from the courtroom; secondly, while the county jail was a secure facility, the courtroom from which Oaks ran was not.

Based on this, the Sixth Circuit determined that escape from a courthouse is not a crime of violence.

Looking at the same Sentencing Commission report, the Sixth Circuit noted that in 171 cases of escape from "nonsecure custody" only 1.7% resulted in some kind of injury. That percentage, the Sixth Circuit found, is simply too low to call this a violent offense.

Interestingly, there's a dissent, which questions whether a courtroom is really an escape from nonsecure custody, or, rather, is an escape from the custody of law enforcement personnel. If so, the percentages are a little violenter.[FN2] I would suspect that the United States Marshals Service would also question the majority's determination that escape from a courtroom is not escape from law enforcement custody.

That said, it's a happy result for Mr. Oaks.

[FN1] - Actually, what the opinion says, quoting a prior Sixth Circuit opinion in this case, is that he "pleaded" guilty. Gentle readers, I find that word awkward. In my legal writing, I am too often called upon to use the past tense of plead in connection with a determination of a person's guilt. I prefer to use "pled" rather than "pleaded." The Sixth Circuit disagrees. Am I wrong? Has Bryan Garner opined on this?

[FN2] Please don't tell Bryan Garner I made up the word "violenter."

As the Associated Press reported (hat tip to Sentencing Law and Policy):

Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

"Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee. The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

For what it's worth, I go half way with Justice Scalia on this. There are too many federal drug prosecutions, but, from my perspective, the quality of the federal district court bench is still excellent - especially the judges I appear in front of (and who may be (but probably aren't) reading this).

One danger of having too many cases is that it gets hard to look at each case with fresh eyes.

Sentence too many folks on drug crimes, and every person convicted of drug dealing starts to look the same. It's a rare, and good, judge who can treat the 500th drug defendant as an individual in the same way that she did with the first.

Once a judge does, say, 100 sentencing hearings, she can be forgiven, perhaps, for not focusing on the details of each one.

This kind of volume leads to the regrettable sloppiness in the Seventh Circuit's opinion in United States v. Hassebrock.

Mr. Hassebrock earned substantial income from an oil business in 2004. Among other income, he received a taxable settlement of $2.5 million. He neglected, however, to file income tax returns. He was indicted, and, at trial, convicted, of tax evasion and willfully failing to file a tax return.

Tax evasion and failure to file a tax return are odd offenses. While most federal crimes appear in Title 18 of the United States Code, tax offenses are codified in Title 26. Tax evasion is a violation of 26 U.S.C. § 7201 and willful failure to file a tax return is a violation of section 7203.

The difference in which title is the source of the crime changes things in small and subtle ways at sentencing.

In Mr. Hassebrock's case, it changed whether the sentencing court had the power to order Mr. Hassebrock to pay restitution.

To back up, a court can order, as a part of a sentence, a person to pay funds to make his victims whole as restitution. If a person defrauded money, he can be ordered to pay the amount defrauded. If he shot someone, he can be ordered to pay the costs of medical bills, lost wages, and therapy to recover from the injury.

The general restitution statutes, 18 U.S.C. §§ 3663 and 3663A, apply to violations of crimes that appear in Title 18 and drug crimes in Title 21. They do not apply to offenses in Title 26 - that is, they don't apply to tax evasion.

Judges imposing sentence really want to impose restitution. As a practical matter, it makes collecting the taxes that were evaded monumentally easier for the government.

Yet restitution in tax cases is only available in two ways. First, if the person charged with a tax offense pleads guilty, as a condition of a plea agreement he can agree (or be forced to agree) to pay restitution as a part of his sentence. This is authorized by 18 U.S.C. § 3663(a)(3).

Second, if the district court orders that the person be on supervised release, the court can make restitution a condition of that supervised release.

Importantly, a district court cannot make restitution a part of a sentence in federal court.

Given that this blog only addresses cases and issues where the defendant wins, you will not be shocked to learn that the district court in Mr. Hassebrock imposed a restitution order as a part of his sentence.

The government tried to let the sentencing court know it couldn't do it, but the judge, ignoring the government's statement that the court could only impose restitution as a condition of Mr. Hassebrock's post-prison supervised release, imposed restitution as a part of the sentence.

The court directed Mr. Hassebrock to start paying the restitution immediately - while he was serving his 36 month sentence. However, the court doesn't have the power to order him to pay restitution until his prison sentence is over and he is being supervised by the United States Probation Office.

Mr. Hassebrock, to his credit, has apparently starting paying his restitution from prison.

His case was remanded for a new restitution order that starts once he is out of prison.

Perhaps dozens of times a day we make evaluations about other people based on how they look at us and what they say to us. We make determinations about other people based on race and class and whether we think another person is "one of us" - in all the ways that a person can be one of us. Maybe pheromones play a role in how we evaluate each other. But these small judgments we make in our interactions with others shape how we treat each other in ways large and small.

None of this goes away when a judge puts on a robe and imposes a sentence on a person who has been convicted of a crime.

A federal district judge will know generally about the crime - the judge either sat through a trial and heard the testimony, or read a statement of offense in a plea agreement - and will know from the presentence report about the person being sentenced.

But these background facts don't give the judge the same human knowledge about the person that a face-to-face interaction does. Which is why whether the person speaks at his sentencing - and how he acts if he does speak - can be very important.

Rule 32 of the Federal Rules of Criminal Procedure give a person being sentenced a right to talk to the judge about what sentence the court should impose.

The right to talk to the judge before the sentence is imposed was given a very muscular reading by the Eleventh Circuit in United States v. Perez.

Mr. Perez, along with a number of others, was convicted of conspiring to rob a check cashing store, as well as a drug stash house that did not, in fact, exist. The federal government, in an apparent effort to bring counter-terrorism tactics to the street, has started finding people who may be interested in committing a crime, then arranging with a confidential informant to have them find some fake entity to conspire to rob. It's easier to catch fake crime than real crime, I suppose. (For more on these kinds of cases, please see this post at the Ninth Circuit blog).

At sentencing, the sentencing court said to Mr. Perez's counsel "will the defendant be allocating?" Mr. Perez's lawyer conferred with his client then told the court, "No, Your Honor. He doesn't wish to address the Court." Mr. Perez did not, then, address the court.

The Eleventh Circuit found that this violated Mr. Perez's right to present information to the court. The court of appeals noted that:

On a number of occasions, "[w]e have explicitly held that the requirement of Rule 32[(i)(4)(A)(ii)] is not satisfied when the court does not address the defendant personally concerning the defendant's desire to allocute but instead addresses defendant's counsel only."

In light of that, the court held that it was not convinced that Mr. Perez knew that he had a right to speak to the sentencing judge.

Because the right to allocute is fundamental, the Eleventh Circuit reversed, even though no one objected at the time.

Waxing poetic about the importance of allocution, the court of appeals said

The right of allocution provides a defendant "an opportunity to plead personally to the court for leniency in his sentence by stating mitigating factors and to have that plea considered by the court in determining the appropriate sentence." United States v.Tamayo, 80 F.3d 1514, 1518 (11th Cir. 1996). "As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal." Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 655, 5 L. Ed. 2d 670 (1961) (Frankfurter, J., plurality opinion). Although criminal procedures have progressed significantly since the seventeenth century, "[n]one of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation." Id. Allocution continues to "ensure that sentencing reflects individualized circumstances," United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994) (citing United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991), while maximizing the "perceived equity of the process." Id. (quoting Barnes, 948 F.2d at 328). Consequently, a defendant's right of allocution, which is codified in Federal Rule of Criminal Procedure 32, remains firmly entrenched in our criminal jurisprudence.

And so, back for resentencing Mr. Perez will go.

An aside to illustrate the point

The government's use of mandatory minimums reminds me of the plea colloquy of a particularly honest client of mine.

The judge asked my client "Has anyone threatened you to get you to plead guilty?"

My client said yes.

The judge, clearly taken aback, and, frankly, looking at me, said "Who threatened you? How?"

My client pointed at the prosecutor and said "They said I'll get mandatory life if I don't take a plea."

The judge, relieved, said "Oh, ok, but no one threatened you with any violence or anything, right?"

My client said right, and the hearing moved on.

I think my client's honesty may have faded at the end of the exchange. What the government was saying, in essence, is that he was being threatened with living in a cage until he dies. If he tries to escape, people will force him back into that cage.

What threat of violence to him could be more severe than that, shy of a threat of death? Yet the judge determined that the plea wasn't coerced.

How to Avoid A Mandatory Minimum

There are, generally, two ways to avoid a mandatory minimum sentence. The first is by helping the government put someone in prison. The other is called the "safety valve."

The "safety valve" is set out in 18 U.S.C. § 3553(f). It says, in essence, that if a person has little prior involvement with the criminal justice system, didn't lead the criminal enterprise that he's being sentenced for, didn't use a gun, and no one got hurt, that person can be sentenced as though the mandatory minimum didn't exist. With one additional catch.

The person has to truthfully tell the government everything that he did in connection with the crime he's being sentenced for.

If a person tries to help the government, the government will require that he gives up his right to a trial. Safety valve works a little differently.

Safety Valve and Trial

By its terms, the safety valve provision can kick in to help someone who was convicted at trial, rather than pleading guilty.

The Eighth Circuit's case of United States v. Honea shows exactly when and why safety valve should be used after a trial.

Never Let Your Kids Use Your Water

Mr. Honea had some land in Arkansas. It was next to some land that was untended, but owned by Deltic Timber.

Mr. Honea's daughter, Paula, was using Mr. Honea's land to get access to the untended Deltic Timber land. On that land, she was running a marijuana growth operation. Two guys slept on the land in tents, tending the plants. Paula ran water hoses from Mr. Honea's house to the marijuana operation, using massive amounts of water. Paula's husband, Mr. Honea's son-in-law, also helped with the operation.

Everyone except for Mr. Honea flipped and testified against him. He was charged with conspiracy to grow more than 1,000 marijuana plants, aiding and abetting in the possession with intent to distribute between 100 and 1,000 marijuana plants, and aiding and abetting the manufacture of more than 1,000 marijuana plants.

These charges carry a mandatory minimum sentence of ten years.

Before trial, when everyone was cooperating with the government, Mr. Honea's son-in-law wrote to Mr. Honea. He wrote:

Don't go to trial, just take a plea. You're a smart man, I know you'll make the right decision.

Mr. Honea's Trial

At trial, Mr. Honea took the stand. He said he knew nothing about the marijuana operation. He knew his son-in-law was harvesting rocks to resell to construction companies - which made sense to him since his son-in-law was a contractor - but he knew nothing about marijuana on the property.

Mr. Honea was convicted of aiding and abetting in the manufacture of more than 1,000 marijuana plants. He was acquitted of the other two counts.

Mr. Honea faced a mandatory minimum sentence of ten years.

The Judge Gets Concerned

After trial, and before sentencing, the trial judge was worried. He sent a letter to counsel for Mr. Honea and the government. As the court of appeals described it:

the district court sent the parties a letter order "to express [its] concern about the application of the statutory mandatory minimum sentence in this case and to ask whether Mr. Honea might qualify for the 'safety valve.'" The district court noted that Honea was "acquitted . . . on 2 of the 3 counts," including "the most serious charge--conspiracy to manufacture marijuana (Count 1)[,] as well as the charge of aiding and abetting the possession with intent to distribute marijuana (Count 3)." The court surmised that Honea's conviction for "aiding and abetting the manufacture of marijuana (Count 2)" was "based principally on the jury's finding that he permitted the other Defendants to cross his property to access the adjoining land where the grow operation was located and also provided them access to his water supply." According to the court, "no competent evidence" existed that "Honea profited in any way from the manufacture or distribution of the marijuana." The court also cited Honea's lack of a "criminal record.

The government responded that Mr. Honea was not safety valve eligible, because he had not met with them to disclose his involvement with the operation.

That was remedied - Mr. Honea met with the government and said that he didn't ask questions, but should have, and didn't know about any marijuana operation.

This was good enough for the court, but not for the government. The government argued that Mr. Honea's statement was inconsistent with the jury's verdict. As a result, the government thought Mr. Honea should not be eligible for a safety valve reduction.

The district court disagreed, sentencing Mr. Honea to the time he had originally spent in jail - 20 days.

The government appealed.

The Eighth Circuit affirmed, finding that there was no conflict between the jury's verdict and the safety valve proffer.

Sometimes it works out well. Clarence Gideon was acquitted when he was retried, this time with the aid of a defense lawyer. He was also, of course, lovingly portrayed by Henry Fonda in film, and is now perhaps the most often-invoked indigent of the Twentieth Century.

On the other hand, Ernesto Miranda, the man who gave us Miranda warnings, was convicted on retrial after his statement was suppressed. He served 11 years in prison for rape.

Freddie Booker's case turned federal criminal sentencing on its head. Mr. Booker was resentenced after his case rendered the federal sentencing guidelines advisory - he was given exactly the same sentence with the advisory guidelines as with the mandatory ones.

Perhaps that was a harbinger.

Alejandra Tapia won her case in the United States Supreme Court last term. And, happily, yesterday, she found that she'll get some relief from that win.

She was convicted at trial of bringing two undocumented people into the country for financial gain, and of bail jumping - apparently Ms. Tapia did not make it to court for one of the hearings in her case.

She was sentenced to 51 months, the high-end of the applicable guidelines range. The sentencing court said that she had a drug problem and needed treatment while in prison. The sentence he imposed was to help her get that treatment.

Ms. Tapia appealed the sentencing judge's reliance on her need for drug treatment, but the Ninth Circuit affirmed. Ms. Tapia took her case all the way to the Supreme Court. In the Supreme Court, she won.

There, in Tapia v. United States, the Court held that a district judge cannot increase a sentence on a person in order to provide more time in prison to rehabilitate the person.

(Judge Posner has already provided district court judges with a roadmap for how to circumvent Tapia.)

The Supreme Court remanded to the Ninth Circuit to determine whether Ms. Tapia is entitled to relief based on its holding.

On remand from the Supreme Court Ninth Circuit held that Ms. Tapia is entitled to resentencing in United States v Tapia. The district court's consideration of her drug history and need for drug treatment was plain error.

As the Ninth Circuit said, in determining that Ms. Tapia was negatively effected by the sentencing judge's findings:

There is little reason to think that the district judge did not mean what he said in sentencing Tapia. He stated that "the need to provide treatment" was one of the considerations that "affect[ed]" the length of the sentence he imposed. We take him at his word, and hold that Tapia has shown that there is a "reasonable probability that [she] would have received a different sentence" but for the district judge's impermissible consideration of this factor.

So, back to the district court for resentencing for Ms. Tapia. Here's to hoping she avoids Mr. Miranda and Mr. Booker's fates and receives less than her prior 51 months.

The appeal in the First Circuit's recent opinion in United States v. Ortiz shows the importance of playing for a dropped ball.

A Night in May

According to a statement of facts that Mr. Ortiz signed, in May of 2007, he and his friends decided to try to steal a car. The car was occupied. The men in the car got out, and had a fistfight with Mr. Ortiz and his friends. When the fight was over, the men in the car got back in the car and tried to drive away.

One of Mr. Ortiz's friends blocked the way of the car. People yelled. Mr. Ortiz shot into the car, killing the driver.

Mr. Ortiz was charged with four crimes: (1) conspiracy to commit carjacking; (2) car jacking; (3) use of a firearm in connection with a crime of violence; and (4) causing the death of a person through the use of a firearm. [FN1]

Mr. Ortiz Pleads Guilty

Mr. Ortiz worked out a plea to Count Three - use of a firearm in connection with a crime of violence under 18 U.S.C. 924(c). Because a gun was discharged, Count Three carries a mandatory minimum term of ten years.

As a part of the plea agreement, Mr. Ortiz and the government agreed that they would both ask for the ten year sentence be imposed. At the plea hearing, the judge told Mr. Ortiz that Count Three carried a mandatory minimum ten year sentence.

In his plea, Mr. Ortiz also waived his right to appeal.

A charge under 924(c) does not have a maximum penalty established by statute - rather, courts have construed it as having a maximum sentence of life. [FN2] This fact, however, was not mentioned in Mr. Ortiz's plea agreement paperwork. It was also not addressed at his plea hearing - which violates Rule 11 of the Federal Rules of Criminal Procedure.

Mr. Ortiz Has a Presentence Report

Mr. Ortiz, like every other person who is convicted in federal court, was the subject of a presentence report. The presentence report accurately stated that the maximum penalty for his count of conviction was life in prison.

At his sentencing hearing, though, the district judge neglected to ask whether Mr. Ortiz had read the presentence report.

Mr. Ortiz is sentenced

Expecting to receive a sentence of ten years in prison, Mr. Ortiz was surprised when the court imposed a sentence of 30 years.

He was further surprised when one of his friends from the night of the shooting, beat two counts at trial and received a sentence of only 15 years.

Mr. Ortiz tried to withdraw his plea after he was sentenced because his sentence was three times the amount of he expected to receive. The district court denied the motion. Mr. Ortiz appealed.

The Appeal

The government argued that Mr. Ortiz could not bring an appeal, because he waived that right in his plea agreement. The government also argued that the original plea should stand.

The court of appeals, though, thought differently. It remanded, since Mr. Ortiz was not aware that by pleading guilty he could be sentenced to life in prison.

The court remanded, with instructions to vacate the conviction.

As an interesting postscript, the court noted that Mr. Ortiz, if re-convicted, could, of course, receive up to life in prison. Mr. Ortiz's counsel presented, during the course of the appeal, a statement that Mr. Ortiz was aware of that risk, and wanted to proceed with the appeal anyway.

Here's to hoping Mr. Ortiz doesn't do worse on remand.

[FN1] The opinion describes these each as aiding and abetting charges to the substantive counts, then, bizarrely, in footnote one, takes the government to task for charging these as, e.g., a violation of "18 U.S.C. § 2119(3) and 2." (emphasis in original). The footnote then continues "Because it is unclear what statutory provision "and 2" refers to in each instance, we have omitted that language here."

I hate to, in essence, say "duh" to a court of appeals, but, I think it's pretty obvious that "and 2" refers to 18 U.S.C. § 2, the statutory provision that sets out aiding and abetting liability.

I'm no fan of defending the government, but this is an odd attack based on a blindingly obvious misunderstanding by the opinion's author.

[FN2] This quirk leads to a delightfully paradoxical turn of phrase - the statutory maximum for a violation of 18 U.S.C. § 924(c) is not set by statute.

When I meet people at a cocktail party, or talk to kids of elementary-school age, and they learn I'm a federal criminal defense lawyer, I'm often asked something like, "How much time do you get for bank robbery?" or, "What's the punishment for mortgage fraud?"

The assumption is that there is a menu of punishments for crimes - if you do X, you get Y.

There is a version of this that is a bit more fine grained. It isn't a question of whether you commit mortgage fraud, but of how much money you take from the fraud. If you do X, with Y harm, you get Z.

Some bank robberies are worse than others. "What's the punishment for committing one of the bad ones?" the guy at the cocktail party may ask.

Looking at the federal sentencing guidelines, you can see the fullest expression of this more refined view. The guidelines are a loving catalog of how bad each crime is, considering each feature and sub-feature of the criminal conduct. And there's a chart at the end of the book that will tell you how much time you get for each.

This is, I think, the wrong way to think about punishment.

The Right Way To Think About Punishment

Happily, the Third Circuit recently explained the right way to think about punishment (the quotations are from the Supreme Court's recent opinion in Pepper) in United States v. Salinas-Cortez:

Appropriate sentences can only be imposed when sentencing courts "consider the widest possible breadth of information about a defendant." Id. at 1240. It is only then that we can "ensure[] that the punishment will suit not merely the offense but the individual defendant." Id. As we have previously explained, the now advisory Guideline range is but one of many factors that must be considered if a court is to properly impose a sentence that is tailored to the offender rather than one that focuses only on the offense.

It is remarkably difficult to get a federal prosecutor to ask for a sentence below the federal sentencing guidelines. Some offices have a blanket policy against such requests. Others simply don't do them. The effect is that when a person is punished, his crime overshadows who he is as a person.

(For a nice discussion of the role prosecutors play in this, see this piece at Main Justice from Mary Price at Families Against Mandatory Minimums.)

The Third Circuit explained,

It is only by ensuring that the individual circumstances of the defendant are not obliterated by the offense that an individual's potential to successfully rejoin society is maximized and the interest of public safety advanced. Thus, "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Koon v. United States, 518 U.S. 81, 113 (1996). This bedrock principle predates enactment of the Guidelines.

It's a beautiful sentiment in Koon, that every criminal case is a reflection of our shared humanity and the ways in which humans can falter morally.

It's also a view rejected by the sentencing guidelines. Chapter 5H. Chapter 5H starts with a discussion of how much of what matters to a person is either a prohibited characteristic or not ordinarily relevant to sentencing.

Admittedly, Congress has required that the sentencing guidelines take this view (see 28 U.S.C. 994(d) and (d)). Still, it's wholly inconsistent with the view the Supreme Court expressed in Koon and reaffirmed in Pepper, that sentencing should rely, fundamentally, on a consideration of who the person is who committed the offense.

Mr. Salinas-Cortez

Mr. Salinas-Cortez was sentenced to 156 months in a federal prison after he was convicted of playing a role in a cocaine distribution conspiracy. He appealed, arguing that the district court did not adequately consider his argument that he was a minor player in the conspiracy.

The Third Circuit remanded the case for the district court to more fully consider Mr. Salinas-Cortez's argument that he was a minor player, and should receive a lower sentencing guidelines range under U.S.S.G. § 3B1.2.

The district court, on remand, considered Mr. Salinas-Cortez's argument, then rejected it. Mr. Salinas-Cortez argued that he had made strides toward rehabilitating himself. The district court did not believe that it had the authority to consider Mr. Salinas-Cortez's work to make himself a better person. The court imposed, again, a sentence of 156 months.

A week later, the Supreme Court decided Pepper, which holds that a district court can and should consider rehabilitation when imposing a sentence after remand.

The Third Circuit, therefore, remanded for the district court to resentence Mr. Salinas-Cortez in light of his rehabilitation after his offense.

Surely, in any well-functioning society - let alone any well-functioning democracy - there are a number of good reasons for prosecuting crime. There are also some that are not as obviously good.

Prosecuting crime prevents the people who commit crimes from being in a position to commit further crimes. Specific deterrence - deterring the specific person - makes sense as a function of sentencing.

Prosecuting people lets other people who are considering committing a crime know that if they are caught they will go to prison. If people fear prison, they may act in a way to avoid it, which means there may be less crime.

Prosecuting crime provides a sense to victims of a crime that what happened to them is recognized as wrong. There's likely some value to society to having moral evaluations have force.

At the same time, each prosecution and conviction also creates a stat for the law enforcement agents, law enforcement agencies, and prosecutors involved. They can collect these stats and show them to their bosses, or to Congress. The IRS's criminal agents had X number of convictions per agent against the FBI's Y per agent - perhaps the IRS is a more effective law enforcement agency.

Stat based evaluations do, however, make it awfully hard to walk away from a case once labor has been invested in it.

Convictions also let prosecutors put out press releases, telling our good citizens that work is being done (and who is doing the work). Especially if the press release doesn't reveal any reasons not to bring a case - like that it fails to serve many of the other ends of prosecution - the community will celebrate the prosecutor('s efforts).

I invite you to think about these reasons for prosecuting crime when you think about the Seventh Circuit's recent case of United States v. Robertson.

Meet The Robertsons

Henry and Elizabeth Robertson were like many other couples. She worked as a pediatric nurse. He worked as a cable installer.

Many couples have hobbies that they enjoy for a time, then stop. I recall my wife and I went through a period where we played Mancala relentlessly. It lasted perhaps two years. Then we set the game aside.

The Robertsons didn't have Mancala - instead, for a period of time in the 1990's, they had a real estate company in Chicago. Using that company, the Robertsons defrauded a number of lenders out of $700,000. Eventually, the company collapsed, the Robertsons went bankrupt, and life moved on.

The weren't charged with a crime at that point. Elizabeth continued working as a pediatric nurse. Henry kept installing cable television. The coached their kids soccer teams. Henry was elected block president to help keep their neighborhood crime free. Two of their kids went to college. One went into the military.

The Skies Darken

One day before the ten-year statute of limitations on bank fraud ran, the Robertsons were charged with bank and wire fraud for the real estate fraud.

They pled guilty.

The Sentencing Hearing

The Robertsons argued that the district court should consider and give more weight to the Robertsons conduct after the mortgage scam ended. They had disavowed their prior way of life. They gave back to others and to their community. They were, in many meaningful ways, very different people than when they had originally been sentenced.

The government even generously acknowledged that,

"over a 'relatively significant amount of time,' the Robertsons had 'demonstrate[d] to the Court, to society, that they can stay out of trouble.'

The sentencing judge didn't find this conversation interesting, apparently. He talked about the Robertsons' lack of criminal history, then he sentenced Henry Robertson to 63 months in prison - just over 5 years. He sentenced Elizabeth Robertson to 41 months - or three and a half years.

The Seventh Circuit Reverses

The Seventh Circuit did not approve of how the district court approached the Robertsons' rehabilitation.

First, the court of appeals noted that how a person lives his life after a crime is committed is incredibly important to what kind of sentence he should receive, particularly under Gall and Pepper, recent Supreme Court decisions:

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.

The court of appeals faulted the district court for not meaningfully discussing these rehabilitative efforts. As the court held,

Substantial and reliable evidence of genuine rehabilitation presents a non-frivolous argument for imposing a sentence below the Guideline range. See Pepper, 131 S. Ct. at 1235; Gall, 552 U.S. at 57. Such arguments must be properly addressed and weighed by the sentencing court. A sentencing court's consideration of a defendant's non-frivolous arguments in favor of mitigation certainly may be brief, but it must also be meaningful. As we explained in Cunningham: "Whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise." 429 F.3d at 679. Here, we cannot determine whether the sentencing judge abused his discretion by, for example, overemphasizing the seriousness of the Robertsons' offense or Henry's criminal history or underemphasizing their rehabilitation in balancing the § 3553(a) factors, because it is not apparent from the sentencing transcript that such a balancing took place. Accordingly, we vacate and remand for resentencing.

It's good that this case is going back for resentencing. I wonder, though, why the case was brought in the first place.

On one hand, the jurors instinctively want to hear what the person has to say. They're instructed not to hold it against him if he doesn't testify, but, as a matter of human psychology, people want the guy who just sat and listened to others say bad things about him to say something back.

And, of course, the person on trial may have something useful to say in his own defense.

On the other hand, if the person has a criminal record, by testifying the government can often introduce that criminal history to the jury - if it wasn't already presented.

Worse, in federal court, a person who testifies and is convicted runs the risk of being assessed a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.

Doesn't that violate a person's right to testify in their own defense? you may wonder. As it happens, the Supreme Court heard an argument to that effect - and rejected it - in United States v. Dunnigan.

The Court acknowledged that in prior precedents

we indicated that the ordinary task of trial courts is to sift true from false testimony, so the problem caused by simple perjury was not so much an obstruction of justice as an expected part of its administration

Nonetheless, because section 3C1.1 does not apply to every defendant who testifies and is convicted, the Supreme Court held that section 3C1.1 passes constitutional muster and does not unduly infringe on a person's right to testify in his defense.

The obstruction enhancement was at issue in the Fourth Circuit's opinion in United States v. Perez.

In Perez, the person on trial testified in his own defense. He was convicted. At sentencing, the district court determined that the two-level bump under 3C1.1 applied because:

[T]he fact remains that the jury decided this matter unfavorably toward Mr. Perez. . . . the Court agrees that the government witnesses were more credible, from the Court's perspective, than was Mr. Perez . . . The Court believes that the jury reasonably accepted testimony of the government witnesses, rejected that of Mr. Perez and the Court believes that Mr. Perez's testimony at trial was not credible and constituted obstruction of justice.

The Fourth Circuit used Perez as an opportunity to discuss what a sentencing court has to find in order to impose an adjustment under 3C1.1. Mindful that the Supreme Court requires that the enhancement not apply in every case where a person testified and was convicted, the Fourth Circuit clarified that 3C1.1 only applies when the person on trial:

"(1) gave false testimony; (2) concerning a material matter; (3) with willful intent to deceive"

The Fourth Circuit, though, seemed troubled by how easy it can be for a sentencing court to impose this enhancement. For that reason, the Fourth Circuit now requires that a district court

must provide a finding that clearly establishes each of the three elements. With respect to willfulness, for example, it would, in the usual case, be enough for the court to say, "The defendant knew that his testimony was false when he gave it," but it could not simply assert, "The third element is satisfied." While some may suggest this is little more than an empty formality, we believe it serves a vital purpose.

Because the district court in Perez did not do this factfinding, the court of appeals reversed and remanded for a new sentencing hearing.

How a person's criminal history is calculated when a federal judge decides what sentence the person should get is, of course, incredibly important to what the sentence will be. (See this post, or this one, or this one.)

If a person's prior convictions are for crimes of violence, that's particularly true. In many cases with crimes of violence, the guidelines look twice to a person's criminal history - once when the criminal history score is calculated and once when the offense level is determined.

For career offenders under U.S.S.G. § 4A2.1, having two prior convictions for a crime of violence can dramatically increase the sentencing guidelines. The illegal reentry guidelines also go up if a person has a prior conviction for a violent crime, under § 2L1.2.

And, for people who are caught with a gun after a felony conviction, criminal history can have a dramatic effect on their sentence. If a person is convicted of being a felon in possession of a firearm, normally the statutory maximum is ten years - that's the most the court can give. If the person has three convictions for a crime of violence, the statutory mandatory minimum is 15 years, and the statutory maximum is life.

Even if a person convicted of being a felon in possession of a firearm doesn't have three convictions for a crime of violence, his guidelines are still affected by whether the prior offenses are violent crimes under U.S.S.G. § 2K2.1.

Section 2K2.1 was at issue in Donnell. Mr. Donnell pled guilty to being a felon in possession of a firearm. He had a prior conviction for second degree assault in Maryland. He also had another conviction for a crime of violence.

Under 2K2.1, if he has two convictions for a crime of violence, his offense level starts at a 24. If it's only one, then it starts at a 20.

The question was whether a Maryland second degree assault charge counts as a crime of violence. The Fourth Circuit has already said that it doesn't always - as the court of appeals said in Donnell:

second degree assault under Maryland law "encompasses several distinct crimes, some of which qualify as violent felonies and others of which do not"

When a prior conviction might be violent or might not be, the sentencing court has to look at the records of the case to see what happened.

A court can look at a charging document to see if the prior charge was a crime of violence (the court can also look at other documents too - like a transcript of a plea proceeding). In Donnell, the charging document itself didn't say much, just that Mr. Donnell was charged with second degree assault and a judge's checkmark saying that there was probable cause to think he committed the assault.

There was, however, a separate document - a statement of probable cause - that described facts that would have made Mr. Donnell's conviction a crime of violence. That statement of probable cause, though, was not a part of the document that stated the charges.

The district court thought it was good enough. The court of appeals disagreed.

As the Fourth Circuit said,

The certainty that the defendant necessarily admitted the facts contained in the external document, as distinguished from the charging document itself, the transcript of the plea colloquy, or the written plea agreement, is absent.

And, as a result, the case was reversed and remanded for a new sentencing.

Perhaps my favorite note to end on, is the opinion's last footnote:

Although we express no view as to what sentence the district court might properly impose upon remand, we find wholly unpersuasive, particularly in light of the district court's careful analysis of the § 3553(a) factors, the Government's fall-back argument that we should affirm the judgment on the theory that the district court would have imposed the same sentence without the enhancement that we find was improperly applied.

Seriously, a four-level difference in the guidelines wouldn't have mattered to the district court? That's a muscular view of Booker for a federal prosecutor to take.

As a starting point, Congress thinks (or, more accurately, thought) that it's really bad to commit a crime while on pretrial release for another crime. So it passed 18 U.S.C. § 3147.

Here's what section 3147 says:

A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense, to--

(1) a term of imprisonment of not more than ten years if the offense is a felony; or

(2) a term of imprisonment of not more than one year if the offense is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

As I read that, it isn't clear - to me at least - whether section 3147 is a new crime that someone commits when they commit some other crime while on pretrial release* or whether it just enhances the penalty for the crime that was committed.

Though, admittedly, the title of section is "Penalty for an offense committed while on release" which is kind of a big hint.

How to read section 3147 was at issue in the Third Circuit's recent opinion in United States v. Melvin Lewis.

Mr. Lewis was on pretrial release, when he came to be charged with carjacking, possession of a firearm by a convicted felon, and a violation of section 3147. The indictment listed three counts, and a violation of section 3147 was one of the counts.

Mr. Lewis went to trial. He was acquitted of the carjacking offense, but convicted of the felon-in-possession charge. He was also found guilty by the jury of the charge under section 3147.

His guidelines range put him above the statutory maximum for the felon in possession charge. So, the question was, does Mr. Lewis's statutory maximum increase under section 3147(1), or does Mr. Lewis's felon in possession conviction top out at the statutory maximum of 10 years, then he gets whatever he gets for the violation of 3147.

The Third Circuit held that section 3147 is a sentencing enhancement, not a separate crime. It increases the statutory maximum by the amount set out in the section. So, for Mr. Lewis, it increases his statutory maximum to 20 years, instead of the 10 he should have faced on the felon-in-possession offense.

But, because Mr. Lewis was "convicted" of violation 3147, his case was remanded, so that the district court could remove the $100 special assessment - a way of collecting court costs that is levied on every conviction - for Mr. Lewis's conviction for a section 3147 violation.

* Crimes that depend on other crimes being committed may sound odd, but they exist in federal law. There's 18 U.S.C. § 924(c) that makes it a felony with a five-year mandatory minimum for possessing a gun in connection with drug dealing or a violent crime. There's also 18 U.S.C. § 1028A that creates a charge with a two-year mandatory minimum for having anyone's identity information - like a social security number - in connection with any other federal felony. For both a 924(c) and a 1028A, the mandatory minimum sentence is consecutive to the sentence on the underlying crime. These things are vicious.

The lawyer who represents a person in the trial court normally has to preserve an issue for it to be heard by the court of appeals. If the lawyer doesn't object when something improper happens, the appellate court is not going to be as eager to do something about it.

Yet the trial court lawyer is worrying about so many things that preservation of an appellate issue isn't always the right thing to worry about. It's much better, for example, to have a strong shot at a not guilty verdict than to have an issue that you may be able to win on appeal. And, in trial, there are so many balls to watch, that it may be rational for a lawyer to take his eye off of one of them for a moment. Which can make for a harder appeal.

To make things worse, a trial lawyer doesn't have the same access to the law that a appellate lawyer, or court of appeals judge, has. It's one thing to know the law after hours of research. It's another to have to know it when an issue that you weren't anticipating comes up.

So one can empathize with the lawyer who represented Calvin Brown. His case was recently decided by the Seventh Circuit in United States v. Brown.

Mr. Brown had pled guilty. He and his lawyer were sitting at counsel table* after having made their arguments about what the sentence should be. The district judge was announcing his sentence. He told Mr. Brown how much time he was going to spend in prison.

Then the judge told Mr. Brown that there was a mandatory minimum fine of $300 in his case for each count. Because he pled guilty to four counts, the sentencing court imposed a fine of $1200.

The problem, though, is that there is no mandatory minimum fine that applied to Mr. Brown's case. The sentencing judge was just flat-out wrong.

Mr. Brown's lawyer didn't object. Because he didn't object, the Seventh Circuit said that it reviewed his appeal on a plain error standard.

As an aside, plain error is a harder standard to meet. If a person in an appeal is complaining about what happened in the trial court, they would like the court of appeals to review the decision de novo. De novo review means the court of appeals thinks about the issue on it's own, without reference to how the district court approached it.

Plain error, on the other hand, means that the person who is appealing has to convince the court of appeals that the district court was clearly wrong - it wasn't a close call. If there's a tie in the law, the tie goes against a person who is bringing the appeal.

As the Seventh Circuit explained it, a district court has plainly erred if,

Under plain error review, we must determine "(1) that error occurred; (2) that the error was plain; and (3) that the error affected the defendant's substantial rights."

Mr. Brown argued that the sentencing court was imposing its ruling - he didn't have an opportunity to object.**

The Seventh Circuit would hear none of it. The court of appeals reviewed under plain error.

Happily, though, the appellate court found that making up a mandatory minimum fine that doesn't exist is plain error.

As a result, Mr. Brown's case will be remanded for reconsideration of the fine that the court imposed in this case. Now all he has to worry about is the 292 month sentence he has to serve.

* Presumably. This detail isn't in the opinion, which is to say that I'm making it up.
** It isn't clear from the opinion whether the fine issue came up in the hearing or only in the judgment that issued later. I think it would be odd to have it only in the judgment, and, likely, that would present other problems (that the judgment that the court signs and the announcement of the sentence shouldn't vary too much), but, in any event, Mr. Brown did not object to either.

The comprehensiveness of the sentencing guidelines can be stunning. Section 2N3.1 sets out how bad odometer law violations are (not all that bad). Section 2T3.1 deals with customs taxes (as opposed to tobacco taxes in 2T2.1). Offenses involving fish, wildlife and plants are discussed, in detail, in section 2Q2.1. Willful violations of the Migrant and Seasonal Agricultural Worker Protection Act have their own section, 2H4.2.

You get the idea.

This makes the Ninth Circuit's opinion in United States v. McEnry kind of an anomaly.

Mr. McEnry flew a plane without a license. This is a federal crime, prohibited by 49 U.S.C. § 46306(b)(7).

There is no guidelines section that deals directly with how bad it is to fly a plane without a license. (As a reflection on society, this is probably a good thing.)

Here are the basic facts, from the opinion:

On January 5, 2009, McEnry landed a Cessna 210F aircraft at the Eastern Sierra Regional Airport in Bishop, California. The circumstances of his landing were unusual: he did not communicate with the airport by radio during his approach and landing, and he touched down significantly farther along the runway than would be the case on a normal landing. When the plane did land, it overran the runway. McEnry's behavior on getting out of the plane was also unusual. He tied the plane down at its two wings, but neglected to tie down the tail, as one would normally do. He did not walk purposefully toward the terminal, but wandered about before approaching it. On arriving at the terminal, he asked where he was and claimed that he had flown through military airspace, during which time military aircraft flew alongside him and fired flares. Someone at the airport called the police, reporting that McEnry might have been under the influence while flying.

The things that were not relevant to this opinion, but were noted any way, are many. For example,

The cause of McEnry's erratic behavior is disputed. The district court ultimately ruled that, regardless of the cause, McEnry was in a condition in which he should not have been flying, and neither party contends that the issue has any bearing on the selection of the guideline under which McEnry should have been sentenced.

Or,

There is some evidence that, subsequent to his arrest in this case, McEnry made false statements in his application for a pilot's license. As with the cause of McEnry's behavior, this evidence has no bearing on the question before the panel.

Or,

At sentencing, the government presented a variety of evidence suggesting that McEnry was involved in drug trafficking. Neither party argues that this evidence was relevant to the determination of the correct guideline. The district court determined that the drug trafficking-related evidence is "not any evidence" which "simply doesn't approach preponderance, doesn't even approach the sufficiency to draw an inference," and concluded that it "d[id]n't find any basis in fact or law to enhance the sentence based on the evidence that's been received." The government does not contest this finding. Accordingly, this evidence is not relevant to McEnry's appeal.

In any event, the district court sentenced Mr. McEnry as though he had interfered with a flight crew in a commercial flight, thinking that this was the closest thing to the harms that Mr. McEnry caused in this case. The district court applied § 2A5.2(a)(2)(A).

Mr. McEnry, on the other hand, argued that this was closer to a fraud offense (something like by flying he was representing that he was licensed to fly when he was not - a performative utterance, or something along those lines), and that § 2B1.1 should be the relevant guideline.

The district court sentenced Mr. McEnry to 21 months in prison based on the interfering with a flight crew guideline.*

The Ninth Circuit reversed. The court of appeals held that in those rare cases where there's no applicable sentencing guideline, a district court should apply the guideline closest to the elements of the offense. That's not what the appellate court concluded the district court did,

In concluding that § 2A5.2 was the appropriate guideline to apply to McEnry's offense, the district court remarked that § 2A5.2 "isn't directly applicable for the offense, which is operating without the airman's certificate." Explaining its choice, it noted that § 2A5.2 "does, if you will, raise or track some of the kinds of risks that are raised." Thus, the district court based its choice not on the elements of the offense or the facts alleged in the indictment, but on the defendant's particular relevant conduct and the risk it created.

The Ninth Circuit determined that Mr. McEnry's offense is really closest to a fraud crime, and his case was sent back for resentencing.

* This makes me think that it isn't entirely credible that the sentencing court ignored all the facts that it was supposed to.

The Fourth Circuit yesterday issued an en banc opinion in United States v. Vann. Here's the description of who wrote what:

A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority. Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined. Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan. Judge Davis wrote a concurring opinion. Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

The question in Mr. Vann's case is a commonly occurring one. If a person is convicted of having a firearm after being convicted of a felony, the person faces a statutory maximum penalty of 10 years. See 18 U.S.C. § 922(g). If however, the person has three separate prior convictions for drug distribution offenses or crimes of violence, then the statutory maximum becomes life in prison, and there is a mandatory minimum of 15 years that applies.

The enhancement is called the Armed Career Criminal Act, and I've written about it here and here and here.

Mr. Vann's case presents a frustrating and common problem with the Armed Career Criminal Act. State laws aren't defined as crimes of violence for federal purposes. The states kind of make their own criminal laws, and tend not to modify them to make later federal sentencings easier. Moreover, when folks are resolving a state case, they tend to resolve it for that case only, so everyone can go on about their business and on to the next case. So, sometimes, the records aren't sparkling clear as to how things were resolved.

Mr. Vann was convicted of being a felon in possession of a firearm. He had three prior convictions under North Carolina's Indecent Liberties Statute. The statute has two prohibitions:

(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire ["subsection (a)(1)"]; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years ["subsection (a)(2)"].

The trouble is that Mr. Vann entered a guilty plea in the state case to an indictment that accused him of both (a)(1) and (a)(2). So, is that a plea to the lesser of the two, or the more serious of the two? Or both?

Judge Niemeyer, in dissent, said that when a person pleads to an indictment that alleges Y and Z, the person pleads to both charges. This is familiar enough to anyone who has taken an intro to logic class in college.

But, natural language is funny, and not always a friend to the logician. To walk down a path not directly related to Mr. Vann, as the University of California, Irvine's logic wiki points out,

It's also worth noting that some English sentences carry some meaning that is not captured in Propositional Logic. For example, the sentence 'Jane Austen died and was buried in Winchester Cathedral in 1817' can be translated as P [and] Q (where P stands for 'Jane Austen died' and Q stands for 'Jane Austen was buried in Winchester Cathedral in 1817'). Now, since P [and] Q and Q [and] P are logically equivalent, they mean the same thing. However, the English sentence 'Jane Austen was buried in Winchester Cathedral in 1817 and died' implies that she was buried alive!

Back to Mr. Vann. The question before the court of appeals was this - When a person pleads guilty to an indictment, are they pleading guilty to all parts of it, or can they be pleading guilty to the bare minimum that satisfies an offense charged in the indictment?

The en banc opinion of the court of appeals determined that they are pleading guilty to the bare minimum.

As the appeals court held,

That Vann's predicate charging documents properly use the conjunctive term 'and,' rather than the disjunctive 'or,' does not mean that Vann 'necessarily' pleaded guilty to subsection (a)(2). Similarly, in trials by jury, it has been established that a defendant convicted under a conjunctively charged indictment cannot be sentenced -- in the absence of a special verdict identifying the factual bases for conviction -- to a term of imprisonment exceeding the statutory maximum for the 'least-punished' of the disjunctive statutory conduct.

Related articles

• Fourth Circuit provides 100 pages of ACCA's application to indecent liberties (sentencing.typepad.com)

Geff Yielding worked as an assistant for a surgeon, Dr. Jordan, in Little Rock Arkansas. His wife, Kelley, started a company called ANI, that was in the medical services business. She became a sales agent for two bone-related medical supply companies. As such, she was paid on commission based on the number of sales she generated to surgeons.

Dr. Jordan used a nurse named Jordan Wall to order his supplies. Mr. Wall was an employee of the hospital where Dr. Jordan practiced.

Between February 2003 and October 2004, Kelley Yielding earned $384,000 in commissions. Her company, over the same period, wrote twenty-two checks to Jordan Wall.

One suspects that those checks may have been, uh, fishy.

A side note about health care kickbacks - in the world of medicine, paying someone for using your medical service or supplies is illegal. It's a violation of the Stark Act. In many businesses, paying for referrals is legal, indeed, de rigueur. In medicine when you're dealing with Medicare or Medicaid, a kickback is a crime. It's codified at 42 U.S.C. § 1320a-7b.

In 2004, Jordan Wall was fired by the hospital because there appeared to be improprieties in the way he ordered the products sold by Kelley Yielding - the hospital thought they didn't need one of the products, yet Mr. Wall ordered it anyway.

Also, creepily enough, more than one hundred pieces of bone were missing from the hospital's bone inventory. It isn't clear how this is related, but the Eighth Circuit's opinion notes it.*

Three days after Mr. Wall was fired, Dr. Jordan forwarded an email he received from the hospital about how the hospital was still investigating suspicious and unnecessary purchases of the products that Kelley Yielding sold.

The hospital was also still investigating the missing bone.

Three days later, Jordan Wall paid ANI, Kelley Yielding's company, $34,000, the exact amount he was paid in 2004. The repayment was labeled "repayment on loan."

The FBI investigated, searched the Yielding's house, and found a document purporting to be a note. The note said it was for a no interest loan to Jordan Wall from ANI, Kelley Yielding's company.

While the investigation was happening, Kelley Yielding died.**

Jordan Wall pled and flipped. He said that Geff Yielding arranged kickbacks for the products his wife sold and created a fake note to cover their tracks after the investigation started.

Mr. Geff Yielding was indicted and convicted for the kickback scheme and creating a false document to obstruct justice. He was sentenced to 78 months in prison, or six and a half years.

It isn't clear if anyone was ever prosecuted for the missing bone.

The Eighth Circuit, in United States v. Yielding, reversed for resentencing because the sentencing court miscalculated the United States Sentencing Guidelines.

Mr. Yielding was convicted of participation in a kickback scheme. So the court should have used sentencing guideline § 2B4.1. Like many white-collar crime guidelines, § 2B4.1 looks to the amount of money at stake to determine how serious the crime is.

Unlike many white-collar crime guidelines, § 2B4.1 does not look at the loss caused by the crime, rather, it looks to the size of the bribe (or kickback) or the profit made from the bribe (or kickback).

The sentencing court looked at the loss to the purchasers who bought the unneeded bone products, rather than the value of the commissions that the Yieldings received, or the amount of the kickback that they offered.

So, the guidelines were miscalculated - bribery has very different rules than fraud.

As a result, Mr. Yielding's case was remanded for resentencing, presumably with a much lower guidelines range at the end.

For additional news coverage, check out the Times Record from Arkansas.

* Did you know hospitals keep bone stockpiled? Me neither.

** It's not explained how she died in the opinion, though I'd like to know if it was related to it. Or caused by stress from it?