While some talk about sentencing as if it’s a science, notwithstanding efforts to make it more science by the Federal Sentencing Guidelines Commission, there’s nothing scientific about it.  It’s what one person in a robe decides it should be, with only history and experience for guidance. Hardly much of a basis to decide how many years to lock a guy up.

But it’s part of the job, and there comes a time when a decision gets made. Rule and roll.

When David Hall first stood before the court for sentence, he sought a downward departure despite the government’s agreement to hold to the mandatory minimums.  The argument was that if the defendant wanted out of his deal down, then the government wanted out of its deal up. 

The district court held a sentencing hearing on February 5, 2010. Based in part on the district court’s view “that the policy on the crack-to-powder ratio should be one-to-one,” Hall’s counsel sought a below-Guidelines sentence on Count 2 of 117 to 131 months of imprisonment. In response, counsel for the Government disclosed that prior counsel for the Government had told Hall’s attorney that the government had no problem with a total sentence of 15 years, which would have been the mandatory minimums on both counts. Government counsel explained, however, that this conversation occurred before the guideline calculations, and that, if the court were inclined to depart from the Guidelines on Count 2, the Government now recommended a sentence towards the top end of a range of 130 to 162 months. At the end of the hearing, the district court orally sentenced Hall to 156 months of imprisonment on Count 2, well above the mandatory minimum of 120 months, and 60 months on Count 4, to run consecutively for a total sentence of 216 months. The court did not enter judgment at that time.

For anyone who isn’t in the mood to do the math, the judge screwed Hall bad. Had he said nothing, he would have gotten 15 years in total, which was the mandatory minimum on both counts consecutive.  But the payback for seeking a downward departure was 216 months, a three year smack, not for the crime but for arguing for a lower sentence.

But David Hall’s judge, Michael Barrett in the Southern District of Ohio, did something judges aren’t supposed to do.  He thought about it some more. And he changed his mind. On his own.

Four days later, on February 9, the district court noticed a hearing for February 23 for the purpose of resentencing Hall. At the hearing, the court announced it would like to resentence Hall on Count 2 of the indictment, referencing the conversations at the time of the last sentencing hearing that presumably referred to the Government’s previous indication that it had no problem with a mandatory-minimum sentence on both counts. In light of the parties’ acknowledgment of the Government’s prior position, the court stated its revised view that the appropriate sentence would be 120 months on Count 2, the mandatory-minimum sentence for that count. The court announced that the 60-month sentence on Count 4 would remain unchanged and that the sentences would be consecutive as previously pronounced.

So it took Judge Barrett four days to realize that making the defendant pay three years of his life for having argued at sentence was, oh, insane wrong.  His fit of pique past, he was ready to undo his damage and clean up the mess he made of another person’s life.  Who knows, maybe he was in a bad mood, or just had enough of defendants (or their lawyers) always pushing, pushing, pushing.  Whatever, he acted like a baby and was man enough to admit his mistake and fix it.

Not so fast.  Federal judges are as close as humans come to omnipotent, declaring day to be night and innocent conversations to be conspiracies.  But apparently, they cannot turn 18 days into 14.  The 6th Circuit reversed. Via Doug Berman :

Eighteen days after originally sentencing Defendant-Appellee David Hall to eighteen years of imprisonment, the district court sua sponte resentenced him to three fewer years.   After fourteen days following the original imposition of sentence the district court lacked jurisdiction to resentence Hall; therefore, we must VACATE the district court’s revised sentence and REMAND for reimposition of the original sentence….

It is laudable that the district court seriously considered the sentence, returning again to the issues and prior statements of counsel to be certain that only the “appropriate” sentence would be imposed. That brings to mind Portia’s description of mercy:

The quality of mercy is not strain’d,

It droppeth as the gentle rain from heaven

Upon the place beneath. It is twice blest:

It blesseth him that gives and him that takes.

The Merchant Of Venice Act 4, scene 1, 180-87.  However, the Government seeks enforcement under Rule 35.   Thus, it appears that the “gentle rain” of mercy had to drop from heaven within fourteen days.  It took eighteen.

Because the district court lacked jurisdiction to resentence Hall more than fourteen days after originally imposing sentence, we are required to vacate the district court’s March 1, 2010 judgment and remand for reimposition of the original sentence announced on February 5, 2010.

The lesson here is twofold.  First, don’t impose a sentence out of pettiness that you will later regret.  Second, don’t delay more than 14 days to fix your screw up.

Notably, the circuit was completely untroubled by the fact that Hall would pay three years extra for nothing.  After all, if you’re down for 15, what’s another three?  It’s not like anybody other than the defendant and his family care anyway.  And it’s not like it’s science.

As pointed out by a commenter, “FPD” (federal public defender?), Hall didn’t appeal the original sentence, though it would make no sense for him to do so since he learned, four days after sentence, that he was going to be resentenced to the lesser time.  Because of this highly unusual process, the question remains whether the resentence to 18 years will be appealable, or whether it’s been waived.

The 6th Circuit’s opinion, poetic though it may be, misses the point when it applauds Judge Barrett’s “gentle rain” of mercy.  This wasn’t mercy. This was error, pettiness and wrong.  He wasn’t being a nice guy by resentencing Hall, but trying to clean up his flagrant mistake.  And even that he screwed up.