*1 into con- adequately taken factor 100 was a deter- guidelines to the 1994 of 2L2.1 Sentencing Commission by the base sideration level. offense base mine Velez’s therefore, depar- and, improper basis is nine. Sec- that section an. level under offense basis, the district By departing in- on ture. a two-level provides further tion 2L2.1 statutory pro- maximum the exceeded documents court of false number if the crease guidelines com- face of the if the on vided the 24; increase a four-level and6 99; plain error. and a mitted six-level 25 and is between number or more.5 is 100 if the number increase Restitution offense base Velez’s increased court district on the objects reference also Velez than more he submitted by six because level reflecting owes restitu- that he docket sheet discussed, As we documents. 100 false imposed the never was tion. Restitution upward two departed then the district that the government admits the judge and large number of because levels additional It is is a mistake. to restitution reference We submitted. Velez documents of false the record. stricken from lan- “100 or more” of hold that pro- face guidelines guage, CONCLUSION in- for crimes penalty maximum vided By departing documents. volving over 100 reasons, judgment of foregoing For the imper- volume, court was district due to remanded reversed and court is the district statutory maximum. exceeding the missibly re-sentencing. Martinez, v. States In United that an Cir.1991), held (9th Ninth Circuit possession departure based
upward impermissi- cocaine quantity large time of at the Quantity table Drug
ble. in- all offenses that provided the sentences kilograms of cocaine
volving more than 36. level of a base offense assigned
were ‘or more phrase “[t]he held that The court America, STATES UNITED that Sentenc- indicates any of above’ Plaintiff-Appellee, the circum- did consider ing Commission of cocaine higher quantities stance same was to be level that the concluded Defendant-Appellant. MUSSARI, A. Allan fifty kilo- more how much regardless of Martinez, involved.” cocaine was grams No. 97-10331. at 102. F.2d Appeals, Court United Martinez, provides 2L2.1 section Like Ninth Circuit. more” documents. “100 or increase for fixed that the Commission language indicates This 22, 1999. Feb. the number in which situations considered indi- It also more than documents above of documents number that the cates clarify plainly serves when ing earlier law was added application note an existing law." change the stating the of- ''[i]f rather than explicitly 2L2.1 section Martinez, Cir. substantially than 100 docu- more involved fense ments, omitted). may also held that departure 1991),(citations be warranted.” We upward Commission, Sentencing Guide- the ratio we infer lenity requires the rule 2L2.1, Manual, comment § con appellants and lines to the most favorable nale guide- the 1994 (n.5)(Nov,1998). At the time accordingly. The most Id. guidelines strue however, language. The lines, was no such there application interpretation is that favorable departure allowing application note fact law, merely to change was added note analysis. change our does not added was later Therefore, considered be it cannot explain it. subsequent amendment ''[a] held that We have impermissible. departure was upward and the weight constru- may to substantial be entitled *2 REINHARDT, NOONAN, Before: allow such grievously a misguided opinion to
THOMPSON, Judges. Circuit remain on the books without comment. panel deny has voted to petition the I rehearing. majority opinion the closes with four judge An requested, active sua sponte, a gratuitous dicta, the last of which warrants a vote whether to rehear the matter en close look: banc. The matter majori- failed to receive a choosing [I]n ty among of the per- the votes thousands of the nonrecused active delinquent sons judges honoring in in favor of their en child banc consideration. support obligations, R.App. Fed. P. government the need not show itself unfeeling monster, an or Appellee’s petition for rehearing DE- is hideous, make law by the selecting as its NIED. target worker, plagued ineffectual KOZINSKI, luck, accidents and bad Circuit Judge, without with assets whom NELSON, any restitution, T.G. Judge, joins Circuit without with children to respect I, whom II, IV, VI, legal to Parts he has any connection, V and with present GRABER, SILVERMAN and family wife Circuit whom he Judges, join important respect I, ties. to Parts IV V, dissenting from the rejecting order United Mussari, suggestion the for rehearing en banc. (9th Cir.1998) [Mussari highly ]. II This inappropriate panel factually A of this actually a unfounded ser two-judge court — legitimate mon has majority1 place no again once an opinion in mounted bully —has pulpit this court. in Second-guessing order to lecture another the exercise of branch of prosecutorial government about discretion job. how to do its reflects fundamen This disregard tal target time the is for the principle separation Executive Branch and powers. the sermon opinion concerns An this court of the is anot platform Child Recovery from which Act of judges individual (1994) (amended § U.S.C. 1998) express personal their (CSRA), views about the wis puts which dom of force of legislation federal federal law behind and enforcement efforts of abandoned efforts. mothers to collect Harris, child Cf. (9th from fathers who Cir.1999) will up not live (Kozinski, J., parental responsibilities. their dissenting In what can from the rejecting order sug only be termed a excess, gestion rhetorical banc). for rehearing the ma- en jority government calls- the an “unfeeling It would be much different if govern monster” that has “[made] the law hideous” ment here engaged had prosecutorial mis in prosecuting poor, hapless Mussari. conduct, see, e.g., v. Kojayan, By making a Cir.1993), victim out F.3d 1315 of Allan Antonio but it did not. The Mussari, Department who “never paid voluntarily a dime” Justice attorneys who worked $70,000 the almost on this case conducted honorably. themselves owes, majority spits in eye majority’s complaint they is that did not Riley, the give discarded wife pass Mussari a raised Mus- for violating federal law. sari’s children while he was earning off But whom prosecute good and whom to leave money and carousing with alone is friends. It the heart prosecutorial and soul of also harms the thousands discretion, of other mothers a decision committed the Exec who struggle to raise children after utive being Branch and “particularly ill-suited to abandoned irresponsible fathers, judicial and un- review.” Wayte States, v. United dermines the enforcement of an important 598, 607, 105 84 L.Ed.2d 547 federal designed law to help them. To add justice The criminal system affords injury insult, is also wrong dead potential defendants several layers protec law, on the ways, in two not one. I against cannot rogue prosecutors. Specific to Thompson disagreed portion with this majority opinion. luck, string of bad but sponsibilities arena, must prosecutors leaving his before Just by the record. belied deciding whether eight factors consider children, slashed two small including CSRA, wife charges under file car, ransacked case, on his wife’s the tires has referred agency a state whether the wall. “slut” on and scrawled apartment after has failed parent whether *3 scraped on and ex-wife children his the children While whether contempt, being held in continuously welfare, worked almost Mussari circum- particular whether minors and are cook and bartend- driver, painter, feder- a immediate as truck for the need dictate stances By hour. Justice, an and er, earning $12 $5 Dep’t See U.S. al intervention. always admission, find work” “can he Resource own Attorneys’ Criminal his employer’s de- a former and, according After identi- to §§ Manual trial, an effectual defendant, quite will the FBI he is scription prospective a fying “quick employee” Attorney will send and “valuable the worker —a investigate U.S. advising being in 1995 for fired two letters Even after delinquent parent learner.” explana- find work adequate job, able to he was drinking provide on pay or him And, S. Kornr- the district See Ronald as nonpayment. again as a trucker. for to his Constitutionality Punish- in addition found, income Note, “had eich, Mussari The his Support report tax The Child he did pay” Parents: Deadbeat ing —income self-indul- spend chose Recovery Act returns After (1995) friends for his buying drinks as gences, L.Rev. 64 Fordham such Lopez, subsidized guidelines also Attorney Mussari General’s basis.2 (detailing regular aon he housing, did Assistant but never stepchildren’s Several prosecutions). his CSRA any decision small fortune approve voluntarily pay one cent of Attorneys review has he this, Attor- Never the U.S. all own children. After his he owes prosecute. jury to indict. is no “ineffectual Mussari grand a them. to convince even visited ney has luck,” and bad 6(f). by accidents plagued Fed.R.Crim.P. worker See it. is man have He majority would as voice proper has no judicial branch words, “would Thompson’s who, agen- enforcement The federal process. jail contribute gone] to rather [have to the kind readily susceptible is “not da Mus- children.” of his toward to under- competent analysis courts are J., (Thompson, at 1159 sari 470 U.S. Wayte, take.” concurring). prosecutorial decisions Reexamining delaying costs,” as such systemic “entails why Mus- arguments as majority’s enforcement, “un- chilling law justice, range escaped prosecution sari should effectiveness prosecutorial derminting] That the irrelevant. perverse pol- enforcement revealing the Government’s “legal connection” any longer has no Mussari pro- into injecting themselves icy.” By Id. him, not against surely counts to his children role legitimate no judges have in which cess severed rights were parental His him. compromised the majority has play, the neglected he precisely by Arizona into the us taken neutrality of the court strangers. like them and treated his children politics. waters treacherous logic, the peculiar majority’s According to children, less neglects his father more a II Nor should prosecuted. likely is to be assets “without Mussari Allan fact majority’s choice is the Worse years, help him. Over any restitution” “prudent” boy for the poster as the capable adjudged Mussari courts majority’s the state the CSRA. awards entered children his supporting romancer high school a sweet image ability to his needs their balanced re- parental have satisfied eagerly would could spent you on alcohol money Q. The go drink- guys would out Q. [Y]ou [Prosecutor] support, alcohol, pay for the child spent to been paying for you’d turns ing take right? correct? A. Yes. Yes. [Mussari] A. pay.3 arrearages $70,- are That now close to The story of Riley and her children 000 is doing Mussari’s own is, direct unfortunately, conse- all too common. —a quence of his refusal to slightest make the there were about single-mother ten million effort to obligations meet his when he had families —over three million of which lived in money. Why poverty. should United H.R.Rep. 102-771, At- No. at 4-5. torneys give pass 140,000 a free irresponsible Approximately par- those families dissipate ents who would have risen assets the poverty rather than above line if the helping to absentee father dependents? just paid raise their had sup- the child Congress port obligation quite had contrary state court mind had him when it found capable of passed paying. See Finally, the CSRA.4 Reinventing what difference Child does it Testimony make that Mussari “important Enforcement: Before *4 Subcomm. on Human present ties” with “his Resources family”? wife and If Comm, House Ways Means, and his financial 103d changed, situation has he can Cong., (1994) (state- 1994WL petition the state courts to reduce or elimi- ment of (Casey) Hoffman, Richard President, support nate the payments. child why But * Child Support CSE). Enforcement All does Mussari deserve Get Out of Jail Free told, over $5 billion in support child obli- card has taken new familial gations unpaid went year. obligations ignoring while his existing ones? H.R.Rep. 102-771, No. that, at 5. Of $1.6 Riley, Susan and taxpayers, thewe have billion was attributable to out-of-state fa- long paid for Mussari’s obstinate refusal thers. See U.S. Office, General Accounting feed the brought children he into the world. Fact Sheet for Congressional Requesters: Mussari’s shameful irresponsibility Ri- forced Interstate Child Support-Mothers Report ley rolls, onto the yet welfare she managed Receiving Less From Out-Of-State something make by (1992). of herself finishing Fathers 16 Only col- 43% mothers lege becoming and registered nurse, support against all the awards such fathers-in while caring for her children. contrast to 60% of Mussari’s con- mothers with in-state loud, viction sent a actually clear message collected money that his on a awards — conduct deplorable, regular and basis. vindicated See id. at Susan Riley’s struggles responsible and her choices. complex These figures simple tell story. Then, in sentence, one tortured majority parents Abandoned with small children —al- takes it away by all making it sound if as always most in position mothers —are no Mussari justified somehow his obdura- pursue their partners former to enforce child cy. Riley Susan and her children —and the support obligations. They cannot afford the hundreds of thousands of other abandoned investigators, lawyers and collections agents mothers and children across country— needed to find delinquent fathers and make deserve better. them they what owe. problem complicated when uncooperative father, Mussari, like state, moves
Ill
out of
where dis-
tance and a
legal
different
system make en-
In addition to compromising the legitimacy forcement of a local
support
child
decree
of this court
belittling
struggles
even more difficult.
many years,
For
scoun-
single mothers, the majority’s ill-founded re-
drels like
got
Mussari
away with it while
jeopardizes
buke
the effective enforcement of mothers
Susan Riley
like
suffered and could
an extremely important federal statute.
do nothing about it.
3. The state
originally
courts
$752 per
awarded
CSRA,
enacting
When
Congress stated:
month, but later
required
reduced the
support to
“[A]child
expect
should be able to
the most basic
per
$256
month to reflect Mussari's reduced
support from those
bring
[who] chose to
earning capacity.
$752;
paid
child into the world....
[T]he burden
caring
$256; not a red
only money
cent. The
for these
placed
children will be
on the shoulders
Riley
ever saw was the few dollars she
parents-where
of the
rightfully
belongs.”
obtained
garnishing
wages
102-771,
H.R.Rep.
No.
at 6
tax refunds.
made
of Justice
Still,
Department
problem
recognized
Congress
“to use
not intend
it does
it clear
through the
cut
the CSRA
passed
child
to collect
mechanism
mere
as a
CSRA
snarls of
laws
of extradition
“labyrinth
S9379-02, S9426
Rec.
Cong.
support.”
enforce-
interstate
hobbled
had
redtape” that
(letter
F.
21,1994)
from Sheila
July
(daily ed.
Cong.
decrees.
ment
to Sen.
Attorney General
Anthony, Assistant
Aug.
(daily ed.
H7324-01, H7325
Rec.
setting enforcement
Shelby). While
Richard
Schumer). No
Rep.
1992) (statement of
preroga-
Department’s
certainly the
goals is
to their
left
mothers
abandoned
longer were
an-
statistics
tive,
supra
see
1142—
played
dads
absentee
while
devices
own
are not
efforts
that its
clear
ecdotes
assets.
them
seek with
hide
games
An estimated
satisfying current demand.
law,
crimi-
federal
criminal
federal
lines
still
unpaid child
billion
$34
FBI and
like
agencies
enforcement
nal
parents. See
absentee
selfish
pockets of
office, would
Attorney’s
(daily ed.
H3042-01, H3046
Cong. Rec.
crimi-
other
As with
balance.
help even the
Roukema).
1998) (statement
Rep.
May
weapon
laws,
main
nal
slip
continue
cases
meritorious
And
raising the
vastly
be deterrence
would
Con-
hundreds.
cracks
through the
in the
the state
leave
fathers who
stakes
Walsh,
for-
whose
story of Marcia
sider
obli-
evading their
hope
*5
and refuses to
out of state
lives
husband
mer
gations.
$14,-
earns
obligation. She
pay
sup-
can
she
job so that
night
from her
000
federal
obviously thinks
majority
day.
day to
children
her seven
port
under
CSRA
efforts
helped her
agency
federal
or
no state
Yet
prosecution
amok,
it
views
run
Cong.
144
support. See
child
her
recover
sadly out of
example. This
prime
as a
5,1998)
(daily
June
S5734-02,
ed.
S5734
Rec.
years of
two
first
reality.
In the
touch
DeWine).
(statement
Sen.
of
(the
in which
period
existence
CSRA’s
recognized
Indeed,
recently
govern-
Congress
indicted),
federal
addi-
need
prosecutors
federal
See
FBI and
prosecutions.
five
only
brought
ment
prosecute
investigate and
(daily
S9379-02,
ed.
incentives
tional
S9430
Cong. Rec.
140
it
Hence
support eases.
Kohl). This
child
interstate
(statement of Sen.
21,1994)
July
Punishment
Parents
the Deadbeat
passed
loud-
legislators,
of
the attention
caught
1998,
CSRA
amends
which
Act
Department
Justice
ly chastised
things,
to, among other
felony
it a
“virtually ignoring]”
passing”
“buck
obligation
pay a
willfully
fail
(statement of Sen. Shel-
Id. at S9425
CSRA.
pay such an
years, or to
two
than
for more
his State
used
Clinton
President
by). Even
$10,000.
than
more
is worth
obligation that
prose-
federal
to call on
address
Union
Act of
Punishment
Parents
Deadbeat
See
across
parents]
[deadbeat
“track
cutors
(codi-
105-187,112 Stat. 618
1998,
No.
Pub.L.
Clin-
the Union:
The State
lines.”
state
(West Supp.1998));
§ 228
at 18
fied
U.S.C.A.
Empowerment,
Local
Envisions
Speech
ton
S5734-02, S5734
Rec.
Cong.
144
also
see
300, 1995 WL
Rep.
Wkly.
Q.
Cong.
53
1998) (statement of Sen.
5,
(daily ed. June
message,
(1995). Getting the
7447015,
20at
years with
six
DeWine).
more
After
pur-
began to
finally
Department
Justice
making
are
force, prosecutors
the CSRA
dads.
of deadbeat
increasing number
sue
that overzea-
it is clear
But
inroads.
some
Attorneys had filed
1997, U.S.
By the end
top
be
not
should
prosecutors
lous
secured
CSRA
under the
cases
it comes
when
of concerns
anybody’s list
S12,667-01,
Cong. Rec.
See
convictions.
Quite the con-
support.
area of
1997) (statement
S12,667 (daily ed. Nov.
trary.
June,
Kohl
Kohl).
Senator
past
This
of Sen.
particu-
judiciary been
federal
has the
collections
Nor
interstate
reported
majori-
statute.
to this
hospitable
larly
See
fifty percent.
by almost
increased
ought
government
hint that
ty’s broad
(daily ed.
S5734-02, S5734
Cong. Rec.
in the
as this
cases such
us with
Kohl).
not to bother
(statement of Sen.
5,1998)
June
only
future is
wrinkling
latest
rejected
the We
argument
appeal.
judicial
federal
nose. Federal
judges have
Mussari,
v.
The panel compounds the damage by V
breaching the plain well-settled error rule. Immediately after his arrest, December 1994 panel Had the asked right question, Mussari challenged his indictment on the would have realized that there was no error ground that the CSRA was here, unconstitutional. plain let alone error that affected Mus-
1147 problem. facto post no ex poses default for convicted beTo rights. substantial sari’s “punishment prohibits Clause Facto Post of Ex time at the CSRA, read as it violating the time at the punishable (1) was act that have for must conviction, parent a Mussari’s Graham, 450 Weaver support committed.” (2) a child pay to willfully failed 960, L.Ed.2d 24, 28, longer unpaid U.S. remained that obligation Missouri, 71 Cummings v. (3) (1981) (quoting $5000 exceeded year or one than 325-26, L.Ed. 356 Wall.) 277, (4 another in resided to respect omitted). marks (internal quotation (1866)) anis § 228. Mussari’s 18 U.S.C. state. be factfinder that require Illinois; his chil- It does in He resides easy case. misconduct. other practically to paid blind He’s Arizona. in live dren plus $41,708 in none con- ruling in judge’s Reading district since accrued that has interest $28,154.07in objec- post facto ex any possible text belies be- And, all times in 1988. his divorce judge that the of evidence piece Each tion. his June his divorce occurred, tween that conduct involved considered four more including the bench 1992: trial — October majority, after its least in October the CSRA’s since years be- employment continuous almost willful. pay was to failure enactment —his pay child 1997; failure his tween insuffi- in December admitting there not claim after panel does even Rather, pay $256 Mussari. convict could afford that he evidence cient income his total deficient month; underreporting conviction his they find willfully between return that tax found each judge the IRS district in obligation in state contempt citations 1995; his child pay his failed month eight 1994; refusal eight year his entire almost furlough program that trial. his divorce a work participate period him salary and saved him paid have stated: Rosenblatt would govern- that the ... room and board. no doubt [TJhere ability to [Mussari’s] proven ment speak merely failed judge district his portions during the time at some A prefers. panel terms precise the obli- dates some employment allowed objection would timely due_ during any time So were gations absence In the findings. clarify his judge he had arrearages course read objection, the anof *7 he did pay, the to finds light most funds findings in court’s district pay not did to those funds resolv- judgment, upholding to favorable them, added) (emphasis an uncon- avoid as to so ambiguities any ing neither problematic a bench deliver Failing finds result. stitutional judge’s verdict does nor the district terms possible indictment clearest verdict and, before times Clause Facto [a] distinction Post “drew Ex violate 25, 1992.” Mus- overwhelming evidence after October given the necessary why was But error. plain certainly at 1158.5 F.3d 152 guilt, sari’s willfully If Mussari distinction? to draw nine-year for pay child failed VI so to do failed that he it follows period, anal- post facto ex ill-conceived panel’s CSRA. by the covered period lesser plain apply failure inexcusable ysis and Mussari’s duration the entire Recognizing - denied, U.S. 1995), cert. December "[f|rom 1991 on or alleged that indictment (1997); 258, 185 L.Ed.2d -, 139 S.Ct. 1988, continuing 1, 118 November about 1233, 1235 F.Supp. unlawfully Kegel, 916 v. willfully ... United (M.D.Fla.1996) present, [Mussari] Sep 10, obligation.’’ May 1984 (between past due pay a failed Sage, after 906 1995); v. 20, before encompassing conduct tember enactment, (from is unremarka- September (D.Conn.1995) this indictment 84, CSRA's 87 F.Supp. tacitly approved similar 1995), 13, aff'd, F.3d courts Other July ble. through See, e.g., charging denied, instruments. Cir.1996), (2d cert. (informa- Cir.) Johnson, 136 L.Ed.2d June pay from failure alleging willful error are wrong rule as a matter of fact and However,
law. it is the majority's egregious misguided dictum about proper en- forcement the CSRA that give
pause judges, prosecutors, advocates and
parents alike. Those who enforce the statute
deserve our praise and encouragement;
deadbeats like Mussari deserve a kick in the
pants, not a bouquet. verbal govern- ment did exactly right thing prosecut-
ing Mussari; Allan it should more of the do same. meantime, I, In the one, want Riley and others like her to know that
there are those in the federal judiciary are mindful of their struggles, every- that not
one who wears a robe is an unfeeling mon-
ster.
Jesus Garcia DELGADO,
Petitioner-Appellee, LEWIS,
Gail Deputy Warden; Attorney
General the State California,
Respondents-Appellants.
No. 97-56162.
United States Court of Appeals,
Ninth Circuit.
Submitted Oct. 1998.1
Decided Feb. finds this case appropriate for sub- eral Appellate Rule of 34(a). Procedure mission without argument oral pursuant to Fed-