Unlike the majority, he thinks that the district court's legal error at sentencing was harmless. And, as a practical matter, at least, I think he's right. On remand, I have extraordinarily little doubt -- indeed, pretty much none -- that the district judge will impose the exact same sentence that he did initially.
It's a case where the defendant attempted to smuggle over 25 pounds of methamphetamine over the border in San Diego in the trunk of his car. That's a lot of meth. Not only is that a serious crime, but after he was caught and out on bond, the defendant made two phone calls to witnesses before his grand jury that might well be deemed to constitute witness tampering. That, plus the prior domestic violence restraining order that one of those witnesses had obtained against him for prior abuse, all adds up to a very elevated risk of exposure at sentencing.
The presentence report recommended a two-level upward adjustment for obstruction of justice, and the district court agreed. As a result, the guidelines sentencing range was 135 to 168 months -- over ten years. But even the government thought that was too much. It recommended 96 months; the defense asked for 30. Judge Sabraw ultimately imposed a sentence roughly in the middle: 60 months, with five years of supervised release thereafter.
Defendant appeals, claiming that he shouldn't have received the two-level upward adjustment. But by the time the case gets decided by the Ninth Circuit -- the indictment was in 2021, and the appeal in 2023 -- it's 2026, and the defendant has already served his full sentence in prison. So there's no getting that time back.
Nevertheless, the case isn't technically moot. Because he's still got the five years of supervised release, which can be changed on remand if appropriate. And, on the merits, all of the judges on the panel agree that the district judge applied the wrong legal standard in deciding whether the two-level adjustment for obstruction was appropriate. The majority says that requires a remand, whereas the dissent says the error is harmless.
Here's where I think Judge Bennett's dissent has a point. There is no way Judge Sabraw is going to reduce the defendant's five years of supervised release on remand. No. Way. Defendant has already received a huge break by getting a WAY below-guidelines sentence: five years as opposed to the dozen or so years the guidelines suggest even without the two-level enhancement. Moreover, on remand, when applying the right legal standard, Judge Sabraw might well still properly conclude that the two-level enhancement was indeed appropriate.
Regardless, the guy's out of prison. We're not talking about his actual custody time any more. We're only talking about whether Judge Sabraw is going to reduce the five years of supervised release at this point.
That ain't gonna happen. Of that I'm virtually certain.
For that reason, in my view, Judge Bennett's dissent has a point. Why remand the case for legal error when we all know full well that the result's going to be no different? What a needless exercise of appellate power, right?
Yes. In a way.
But here's why the majority's contrary position nonetheless seems right to me.
We've got a legal standard here. The relevant law. In the present case, that standard is abuse of discretion. Yes, we know -- or at least I do -- that Judge Sabraw will virtually certainly come out the same way on remand. So why go through the exercise?
To me, it's because we allow him to make the call, not us. The appellate judges aren't there. They don't see the defendant. They're just reading a cold paper record. Yes, I'm fairly confident that Judge Sabraw will continue to find that five years of supervised release remains entirely appropriate, even without a two-level enhancement, particularly given the massive break that the defendant has already received. It behooves everyone to keep an eye on the guy for the next five years to make sure he stays straight. I'm confident that Judge Sabraw will continue to see it that way.
But maybe -- just maybe -- he won't. Maybe he'll come to a contrary conclusion.
Again: He's the one most intimately familiar with the defendant, not the judges on the Court of Appeals. He's seen him. He's heard him speak. We can all read a paper record, but sentencing is not mechanical -- or at least shouldn't be. That's the whole reason why the guidelines are now discretionary, after all. We don't -- and shouldn't -- have artificial intelligence sentence people. We have humans do it. Humans who have actually seen the defendant and who can take his humanity into account.
So even if we, reviewing a paper record, and with full regard to how we know human emotions (and/or the characteristics of a particular judge) generally play out, are convinced that the sentence will remain the same, we still remand. For a sentence imposed consistent with the actual, correct law.
Now, Judge Bennett says in his dissent that a remand isn't required because, on these facts, it would be an "abuse of discretion" to find that the defendant wasn't actually trying to obstruct justice when he contacted the relevant witnesses, even when applying the correct legal standard. And, again, he has a point. Viewing the paper record, I too believe that the defendant was almost certainly trying to in fact threaten the witnesses, which counts (under the correct legal standard) as obstructing justice. He wasn't, in my view, merely trying to "find out" what they said to the grand jury to prepare a legal defense or something like that. His subjective intent -- his mens rea -- was indeed to obstruct justice. And Judge Sabraw, I strongly predict, will so find.
So harmless error, right?
Nope.
Because maybe -- indeed, most likely -- Judge Sabraw will agree with my view of the facts on remand. But maybe he won't. Again: He has the boots on the ground. He's seen the defendant. Sure, looking at the transcript, I think that the words that the defendant used in the two relevant sentences of the phone calls -- that he was “going to go
over there” and that “[i]f [I] have a problem, [you]
have a problem" -- were subjectively intended at threats. That's my strong take too, particularly given the prior domestic violence of the defendant.
But Judge Sabraw might potentially disagree. I don't think he will, mind you. But he might.
And if he did, that wouldn't necessarily be an abuse of discretion. Yes, I'm confident that I'm right in how I interpret those words. But if someone much more familiar with this particular defendant thought otherwise, I cannot say that he would necessarily and obviously be wrong.
Because what people mean, or intend, is often idiosyncratic. Some people are weird. Some people are unusual. Some people mean certain things in context that aren't readily apparent on a paper record. And if Judge Sabraw were to say: "Look, I know how it sounds, but trust me, I've seen the guy, and know a lot more about this case (and this defendant) than you do, and I don't think that's actually what the guy meant," I would not call Judge Sabraw crazy. He might perhaps be wrong, and I might even think him wrong. But it wouldn't be such an absurd view of the facts that, sitting here reading a paper record, I would call that a total abuse of discretion.
Sometimes what you think is right from the outside is not, in fact, what's right. Imagine, for example, that a defendant goes up to a bank teller, hands her a note that says "Put all the money in the bag or someone will get hurt," leaves with $5,000 in cash in the bag, and subsequently gets convicted of bank robbery. Now, in my mind, on those facts, the guy's pretty much obviously guilty. And that's true even if he gets up on the stand and says: "Oh, no, I was just trying to get my own money that I had in my bank account out of there as rapidly as possible. I wasn't trying to rob anyone. And I know I only had $50 in my account there, so really didn't need a bag, or to threaten to hurt anyone, but I really needed my $50 for crack. Sorry about the words I used, but it's not robbery, just a threat (or assault)." It would very much be my take that, nope, shut up, the guy's guilty.
Imagine that a trial judge (or jury) were nonetheless to find: "You know what? I actually think the guy's right. He wasn't, in fact, trying to rob the bank. He's just an idiot." But even on THESE super clear facts, that would not, in my view, be a total abuse of discretion. Because, yes, on a paper record, I disagree, and think that the words he said -- and the context in which he said them -- are fairly clear.
But I wasn't there. The trial judge was. That means a ton. It wouldn't be an abuse of discretion.
So too here.
And, yes, I know that, in the present case, parts of the transcript are apparently under seal. But I can't imagine anything in the paper record that would change my basic take. This is an area where we rightly defer to the trial judge. And even though, as here, we're darn confident that the trial judge will reach the same conclusion -- the same one that we've come to on a paper record -- we still remand. Because we want to apply the correct law, we want to make sure we got it right, and we want to make sure that the person with boots on the ground will in fact come to the same conclusion that we strongly suspect is the right one on the facts presented.
Which is why, in the end, even though I think Justice Bennett has a good point, Judge Berzon's majority opinion does the right thing.
