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O DAY AND NIGHT, BUT THIS IS WONDROUS STRANGE

Like many drug defendants, Bob Miller got hammered with a 200-month plus sentence. Also like many defendants, he belatedly tried to help himself by providing information to the government. That netted him a 20% discount to about 168 months.

When Amendment 782 came along a few years later, Bob applied for a reduction to 134 months, the bottom of his new Guidelines. The Government, no longer his friend, argued against it, pointing out that witnesses said Bob had carried a gun during his drug dealing days, and that he had committed five disciplinary infractions while locked up, two for some hooch, one for possessing something that could have been used as a weapon, and one for destroying BOP property.

Bob pointed out that the Government knew all of that when it moved for his 20% reduction in sentence, but obviously didn’t think it was a problem then. But the judge was convinced to deny Bob’s Sec. 3582(c)(2) motion for sentence reduction, even while saying he was ignoring any evidence that Bob had carried a gun while dealing.

The judge was influenced to deny the reduction by Bob’s BOP disciplinary reports, which the judge called “relatively recent” and serious. The judge said Bob “remains a significant danger to the community.”

So far, this case is not strange at all. Sec. 3582 motions are filed all the time, more than a few are denied, and everyone knows the judge had nearly unfettered discretion. What’s more, everyone knows that when a judge says a defendant is eligible but should not get the sentence cut, that decision is virtually unreviewable by a court of appeals.

But suddenly, as Horatio would have said, something “wondrous strange” happened. Last week, the 7th Circuit reversed the district court’s denial, and sent Bob’s sentence reduction motion it back for more consideration. The appellate court criticized the trial court’s conclusion that Bob was a danger to the community. The issue, the Court of Appeals said, is not whether Bob is presently a danger, but rather “the real question is whether he is likely to remain a significant danger to the community when he is released, which won’t be for another five years or so even if he receives the further reduction that he’s asking for.” What’s more, the 7th said, the district court “did not explain why the two alcohol offenses were now to be counted against the grant of a sentence reduction when they had not been previously.”

Bob also complained that the district court did not consider his achievements in prison, including the courses he completed and his reduction in security and custody. The trial court didn’t consider Bob’s accomplishments, because Bob’s lawyer never told the judge about it. Bob dumped his lawyer on appeal, and filed the certificates as exhibits to his brief. Of course, the Court of Appeals said, litigants generally are not allowed to bypass the district court and present evidence for the first time to the court of appeals.” But curiously enough, the Court said it would make an exception here, because “apart from the fact that the government does not question the certificates’ authenticity and could not have objected to their admission in the district court had they been introduced there, the failure to submit them in that court was the fault not of the defendant but of his lawyer… We can’t begin to understand why… the lawyer didn’t use the documents to help support his client’s motion to reduce sentence. Had the lawyer followed his client’s instructions the district judge would have seen the certificates and the defendant’s case would have been strengthened. And before deciding that reducing the defendant’s sentence would pose a danger to society, the judge could have asked the government for a statement by the prison warden concerning the defendant’s current behavior in prison, an inquiry that would probably have yielded information about the defendant’s efforts to obtain a GED.”

This decision is indeed “wondrous strange.” First, appellate courts usually refuse to review denials of Sec. 3582 motions where the district refuses to exercise its discretion. Second, appellate courts hardly ever permit parties to add to the record on appeal. Third, appellate courts almost always say the actions of a lawyer bind the client.

Hamlet replied to Horatio, “And therefore as a stranger give it welcome. There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy.” The Miller decision is a genuine outlier in 3582 decisions. Some appellate courts will not even entertain an appeal like this one. The 7th Circuit not only heard the case, but essentially built its own record and substituted its own judgment for the district court. To be sure, it just send the case back for the district judge to do as he wishes, but anyone can read the tea leaves. Bob is to get a sentence cut.

It concluded that because it figured the district judge “might decide to grant the sentence reduction once he’s assured that the defendant has taken courses toward the GED, since the judge erred in describing the defendant’s disciplinary infractions as recent, and since he seems not to have considered whether the defendant is likely to remain a danger to the community when he is released from prison, years from now,” it would vacate the denial and send the case back to the trial court.

United States v. Miller, Case No. 15-3584 (7th Cir.   Aug. 10, 2016)