*1 n circumstances, it gener- press In such reactions or even media. di- fraud ally underlying expose the facts and rectors. To hold otherwise would a resignation compensable companies that causes in- po- their shareholders to case, present expansive vestor’s loss. In the as not- tentially liabilities for events la- ed, year frauds, facts known a before were ter alleged to be the facts of which resignation, resignation did and the not were at investing public known public knowledge add new ma- time did price, not affect share terial fact about the Seneca transaction. damage thus did no time to inves- of the claim is that Callan- essence liability tors. A rule of leading such resignation der’s concerned Seneca losses the very would undermine investor negative transaction and that the resultant confidence that the securities laws were publicity suggesting possible accounting support. intended to recovery malfeasance lead to for a CONCLUSION
temporary drop price. in share Appellant has failed to raise a ma sure, To be the record shows that Cal- terial issue of fact that would general lander concerned over ac- causation, and, result, finding of loss aas counting practices governance prob- the district court properly granted defen regard, lems. In that he was concerned transaction, summary dants’ judgment about the motion.6 For Seneca but he had reasons, foregoing we mistakenly affirm. also been informed that approved Board had never it. On the record,
present has at appellant best resignation
shown that Callander’s and re-
sulting negative press stirred investors’ problems
concerns other unknown Indeed, lurking past. were Omnicom’s America, UNITED STATES of no allegation there is that investors were Appellee-Cross-Appellant, ever that improper accounting told had in regard fact occurred with to the Seneca Lynne STEWART, Yousry, Mohammed transaction, either June stories Sattar, Ahmed Abdel Defendants- or later. Appellants-Cross-Appellees. generalized investor reaction (L), (con), Nos. 06-5015-cr 06-5031-cr causing temporary concern share (con), (con), 06-5093-cr 06-5131-cr price decline in June is far too tenu (con). (con), 06-5135-cr 06-5143-cr indeed, ously by metaphoric connected— United States of Appeals, thread —to the sup Seneca transaction to Circuit. Second port liability. require The securities laws adequate disclosure that is to allow inves Feb. 2010. judgments company’s tors to make about a value. required by intrinsic Firms are not
the securities speculate laws to about dis
tant, ambiguous, perhaps idiosyncratic 20(a) rely Plaintiffs also appellant Section 108. Because fails to establish a Exchange violation, Securities Act of 15 U.S.C. primary properly However, order 78t. to establish control granted summary judgment defendants' mo- person liability, appellant must first establish 20(a) tion on the Section claims. ATSI, primary violation. F.3d at *2 (the by the
procedural error one identified panel majority, by Judge the ones detailed Walker, hypothesized by ones Calabresi). Judge two-step This is not sequence all announced as an inflexible cases, good, proce- which is because dural error substantive error instance, concepts. But in this permeable postponing I think the consideration in an concurs Judge Chief JACOBS substantive reasonableness was a mistake Judges joined by WESLEY and opinion opportunity. and a missed HALL; in a Judge POOLER concurs procedural by The identified single error Judge CABRANES separate opinion; majority is the failure of the joined by Judge opinion an dissents district court to decide whether Stewart RAGGI. perjury or otherwise committed obstructed JACOBS, joined Judge, Chief DENNIS time, justice. nothing At the same and PETER by RICHARD C. WESLEY opinion amended —does —as HALL, concurring in Judges, Circuit W. or court from preclude the district rehearing in banc. the denial of com- rethinking Stewart’s sentence its the Court to ponent I concur in the decision of from scratch. The considerations rehearing in this case. But deny majority in banc that. encourage seems to notwithstanding my I agree- so do because do So I. dissent, I an with the owe
ment explanation. II Judge Walker’s dissent identifies several
I errors, procedural I salient additional sentence, respect With agree that these errors should additional amended identifies by be the district court on re- addressed single procedural error and remands so mand. improve I cannot Walk- opportu- an that the court can have district case, and no anatomy purpose er’s error, and much nity to consider else by repetition would be served here or panel majority acknowledges besides. The limit point-by-point will endorsement. gap the unaccountable between offense myself to three observations. imposed committed and the sentence —the terrorism is the “strikingly [A] to be low”—but The enhancement sentence is said consideration in this believes that review for substantive rea- dominant case. district court erred discount- should follow after The sonableness ing it an opportunity has to address to zero.1 That error both had panel majority opinion It is states: “Wheth- 360 months. also clear the district dissipated applied later the terrorism enhance- er or the district court terror- (i) primarily harm enhancement to Stewart in its Guidelines ment based lack of ism (ii) subject disagreement.” resulting offense and calculation be from Stewart's However, atypicality. district court there- it is clear that the district court notion of (whether procedurally, substantively, applied terrorism enhancement its ini- erred calculation; both), effectively when it eliminated tial Guidelines it determined history enhancement based on consider- total offense level a criminal terrorism VI, rea- category highly seem dubious for the and a Guidelines sentence of ations that nature, procedural high- post-conviction that her client and substantive lighting two-step that the se- one reason to counsel. That trust reposed access procedural quencing Court, of review and sub- as an her officer of the notwith- stantive so little error makes sense standing security dangers the horrible *3 case. betrayal. result from Her offense to judicial tends erode confidence that law-
Any discount based on the fortuitous yers can be with entrusted national se- resulting lack of harm from of- Stewart’s (as case) with crets —or this the means (whether procedural, fense is error sub- trigger promote slaughter to a mass of both). stantive, or For the reasons set innocents. Stewart’s misuse of her special dissent, in Judge agree forth I Walker’s and her skills abuse of trust thus tran- injury aggra- that can serve and death as single the effect in scend case. The vating factors in for the crime of defense certain criminal sensitive cases terrorism, of to support material but that prosecution certain of sensitive injury the absence of and death cannot tort cases constitutional are impaired serve as mitigating factors. upon unless counsel can draw fund The [B] district did not decide trust, confidence and and Stewart’s offense position whether Stewart abused her currency. has debased See Arar v. trust, special lawyer. or her skills as a Ashcroft, (2d 585 F.3d 578 & n. 11 panel majority The recognizes this omis- Cir.2009) (in banc) (citing Stewart’s of- and, sion classifying proce- without it as to fense demonstrate that “the undertak- error, dural directs “[t]he remand ings of “necessarily counsel” cannot district court should also consider whether ]” “risk” of “inadvertent abate[ or de- lawyer Stewart’s as a triggers conduct liberate disclosure of information harmful special-skill/abuse-of-trust enhancement states”). to own our and other Guidelines, 3B1.3, § under the see U.S.S.G. and reconsider the extent to which Stew- [C] observes that the art’s lawyer appro- status as a affects the court, in its consideration of the 18 priate Walker, Judge sentence.” Like I 3553(a) factors, U.S.C. “found that Stew- do not believe that this far goes direction opportunity art’s repeat ‘the crimes [for] enough. which she had been convicted will be nil’ she ‘will because lose her license
Judge prac- Walker observed that Stewart’s tice law’ and ‘will forever Special separated violation of Administrative be from contact Measures with Omar jeopardizes right Sheikh Abdel accused’s ” counsel, Rahman.’ rights. other among I offer a does not concern, in on weigh related which But finding. Judge underscores Walk- both the applicability special-skill/abuse- wrong. er does: “This is One does not of-trust enhancement in law this case and the need a license in order to materially seriousness of Stewart’s crime. The trust terrorism or to defraud the U.S. betrayed Stewart upon government.” agree conferred with Judge Walk- her as a lawyer for the purpose assuring can er.2 One in many assist terrorism forcefully sons insufficiently stated Walker's dis- cognizant district court was Ressam, life). years range sent. the Guidelines United States v. F.3d of 65 Cf. Cir.2010) (9th (in case, a terrorism r-e- finding Based on the district court's
manding procedurally 22-year as defective a recidivism, regarding Judge Walker identifies alia, ground, sentence on the inter that the procedural error in the district court's over- of our tile issuance mandate. Stewart require a license ways, few of which her the abuse of know family law. While her are entitled to her practice what enhancing is license a basis ultimately within half- will be sentence, for a is not basis reduc- its loss following her decade conviction. tion, respect the likelihood least un- “effectively our remand [C]When below, as forth And set of recidivism. ” that does the entire ‘knot of calculation’ expressed having reported “ sentence, original spirit fixed ‘the view that she would do what she did requires sentencing.” the mandate’ de novo a little handle it differ- again, “might Rigas, United States her, ently” to detection. So evade *4 (2d Cir.2009). remand, Following such a terrorism re- supporting promoting required the court to resen- (law [i]s “district li- everything else acceptable; mains not) light defendant] tence in the circum- [a technique. cense they at the stances as time of st[and] [ ] Ill States, resentencing.” Werber v. United (2d Cir.1998). Notwithstanding foregoing the discus- F.3d Since sion, against I banc changed have voted review pro- circumstances have the juncture following the at this reasons. longed following imposition interval sentence, original the district court should majority opinion makes [A] de- opportunity to consider It disagree. with I identifies no law which velopments the first instance. error, agree which I is an procedural one error; encourages it district court to (which require reports skeptical Media by Judge the errors identified consider reflect that has vetting) promoted Stewart Walker, do; it to reach as I declines sub- her criminal a matter princi- conduct as without, however, purport- error stantive aspirational norm ple and as an of ethical ing panels other to do same. bind practice. law After her conviction and view, my panel majority opinion is a In sentencing, participated in a law give and fails to opportunity, missed conference, “Legal Lawyer- school Ethics: guidance. court sufficient But it district Clients, Diffi- ing Edge, Unpopular at the cases; it does not make law for other Cases, cult It at- Zealous Advocates.” scarcely law of makes the case. “a of 150 standing-room tracted crowd under appeal This was consider- [B] people, of them most law students”: years; ation for two full addi- to having [Stewart] admitted been lengthy delay tional would be an institu- way in the she cer- “cavalier” followed tional disservice. district docket regulations governing tain communica- process resentencing reflects that client, argued tions with her but put in motion that it can has been so take lawyer human bond between a and client place speed following with conscientious concurrence, personal el valuation Calabresi observes of Stewart’s characteristics 3553(a) analysis: weight particular "the can amount of a factor context of section sum, identify "normally though rarely proce- [a] "In we will bear” is considered substantive weight judgment!].” express view judge I no as to wheth- dural error a factors, by Judge assigns er error Walker re- this is one those identified relevant garding the loss of Stewart's license is rare where the record of defendant's cases is; procedural But it personal simply cannot or substantive. error characteristics bear my point that weight necessary and this factor illustrates earlier chal- permeable. lenged pan- two of the two kinds error sentence.” footnote lawyer’s legal http://www.democracynow.org/2009/ll/18/ is critical to the role exclusive_civil_rights_attorney_lyime_ adviser. stewart. client, “I representing was it in
would it but I do again, do would position findings I am not in a to make me,” way that better insulate she would points, my on these view the regret having been said. Her main these cir- consider additional government unaware that was se- resentencing.4 cumstances at Stewart’s cretly with Mr. taping her conversations Indeed, 3553(a) requires section dis- Rahman, she said. sentence, “impose trict court to sufficient greater Vitello, necessary, comply but not than Lawyer Paul Polite as Hofstra Ethics, including purposes” Guilty [enumerated] in Terror Case Talks on (cor- need for the 17, 2007, imposed “the ... Times, N.Y. at B3 October (“N.Y. article”). promote respect for the law.” 18 U.S.C. appended) rection Times 3553(a)(2)(A). Stewart’s comments— accurately reported, If these comments offense, readily repeat she her into finding call doubt the district court’s only care taking to evade detection —also that Stewart’s offense is an aberration *5 illuminate “the nature circumstances an otherwise career. In addi- admirable history of offense” the and “the and char- tion, corrupt these comments seek to the acteristics of the defendant.” Id. by enlisting in young law the students 3553(a)(1). remand, On the district project degrading of legal practice.3 may explore court wish to and consider Moreover, day on the before was she post-conviction post-sentenc- Stewart’s prison, remanded to Stewart a radio gave ing comments as part the section interview in she which was asked: 3553(a) analysis. “[Wjould you anything differently do to- day, do you anything differently Finally, the [D] issue substantive rea- then, you you back if knew what may kn[o]w sonableness be or mitigated obviated today?” responded, Stewart in “I part: following the district court’s correction of again. might would do it it handle the procedural error identified pan- the differently, again.” little I would majority, do it el the district court’s consider- Goodman, Host, by Amy Interview Democ- procedural ation of the and substantive Now!, racy Lynne Stewart, (and in with New by Judge errors identified Walker (Nov. York, 18, 2009), N.Y. opinion available underscored in in this put law school out that Stewart was rorism enhancement should be abated of- for “unique invited to the conference as a case September fenses committed before study” expert rather than as “an ethics.” enormity may when terrorism not have Law, http://law.hofstra.edu/NewsAnd Hofstra fully appreciated. Since been ma- Events/Conferences/EthicsConference/2007/ jority invites the district court to consider this (last 11, 2010). index.html visited Jan. That possibility, it is worth a footnote to show that evidently distinction was lost on In fair- her. epiphany. herself has not had an In- students, reception ness to the her said to deed, identify anyone it is hard to in this cool, Samuel, be and Nathan then a second- country who would have discounted terrorism student, year midway through walked out barracks, Towers, after Beirut Khobar address, returning only pose to an embassy bombings, World Trade aggressive question. See N.Y. Times article. attack, City, Center Oklahoma the U.S.S. Cole, and conspiracy up to blow the New repeatedly 4. Stewart has thus affirmed Building Federal York into tunnels again. she would do it So much for Manhattan. Calabresi's inventive idea that the district might court on the ter- consider remand that request from Yet the unsuccessful for an en opinion dissenting accompanying banc), an rehearing rehearing and the banc becomes occasion the denial disagrees subsequent any judge active who with the findings as to court’s district event, express mat- a view on the case even these developments. upon By it. analysis. though And called decide will affect the ters calling re- tactic of opportunity employing simple after may have an Court provide active poll, judges not decided an en banc mand to reach issues opine with opportunity themselves an panel majority. This a case that was never before them. to an in free rath- POOLER, speech amounts exercise Judge, concurring Circuit any judicial an function. er than exercise of rehearing en banc:1 the denial Here, join ability judges of active to seek I cannot Chief Respectfully, opine as I banc review and then on a case on this case en Judge Jacobs’ concurrence they particular did not sit works mistakenly it asks the district which believe issues, mischief. Once the mandate dissenting opinion, apply panel’s resentencing, will remand for majority opinion. panel than panel’s rather actively encourages the sponte poll, predicated opinion banc The nostra en dissent, due pay regard forth in the the rationale set me inappropri- dissent. It strikes majority did not succeed. ate for other members of to add pointed As out therefore stands. should, their views as to what the district court opinion, the district court course, do on This re- account of the dis- remand. case take *6 appeal. to this on a panel subsequent is the turn Court But the decision the sent. who rule on a in the Judges this on remand case of the Circuit for case cases, express on unless until it is future should not their views for future and appeal future the by this the outcome of a before Supreme Court or overruled considers the issues on district even en banc. Court remand. from of re- dissenting denial Opinions panel’s majority opinion, as com- en are not uncommon
hearing banc2 dissent, provides on panel oddi- mented They this Circuit. nonetheless filed, ample guidance there district court with opinion is ties. When such Court, rendering further adviso- resolving the from this panel an extant decision is unnecessary. judges ry opinions to re- from others The active declined appeal. States, v. panel banc. The Both Gall United 552 U.S. visit that decision en (2007), and L.Ed.2d 445 the Court’s decision. 128 S.Ct. decision therefore States, Kimbrough mat- judges may have views on the United 552 U.S. Other (2007), them, L.Ed.2d ter, not 128 S.Ct. but the case is before proposition that the they squarely it has as much stand for the may say about what in the publish- position law if views were court is best force of those district sentencing. We fol- in a letter editor of their favorite make decisions about ed to the when teachings of those cases best newspaper. low local is, Sack, Judge "concurring” opinion Judges D. 2. Chief Jacobs Guido Calabresi Robert substance, panel majority, are now portion both members of from dissent such, judges. neither voted senior As panel majority. on the of the views merits expected respond poll en banc nor can be by non-panel judges. expressed views to the ample Judge dis- trict after we defer to the district court’s Court remand. Jacobs against rehearing Having cretion. remanded to the also votes en banc be- court, opportunity “panel majority opinion we afford it an to cause the should makes muddy- disagree^].” undertake its task without further no law which Id. at [he] ing problem of the 517. But the is not waters. the issues decide; panel majority that the does it is CABRANES, Judge, A.
JOSÉ Circuit that the panel the issues does not dissenting, Judge with whom REENA that require rehearing decide en banc. In RAGGI concurs: off a putting speculative decision for appeal,” “second the en banc
I dissent from the order respectfully perform duty failed to their Court to the denying rehearing en banc on matter and Bar important Bench to decide the imposed defendant presented thereby issues to them and clar- view, Lynne my en Stewart.1 banc ify law of our Circuit. rehearing necessary job finish decide, panel majority started —to not stands, it banc poll As the en was de- simply over, identify pass legal feated, and the case will return to the issues so vividly presented in the sentenc- re-sentencing. District Court for In the ing of Stewart.2 event that return case does to this I appeal, point Court for second wish to
I do necessarily disagree with the important out some of the critically issues Judge Chief Jacobs that the majority failed to decide. banc, rehearing denial of en at least provide any do not detailed discussion of insofar usefully as he identifies some what outcome the have should issues that the avoided has issues; rather, reached these I merely or not I respectfully decided. But dissent highlight the matters that ne- from the denial enof banc review because glected, the en banc should I think that the en banc Court should have decided, and, therefore, that remain decided the overlooked issues at time. open possible decision the future. Jacobs believes we de- *7 lay a ground on the rehearing that “this Majority’s I. The Panel Means of may an opportunity have after re- Sentencing Avoidance of Issues mand to reach issues that are not decided Squarely Presented by Jacobs, the panel majority.” Op. at J. not, however, Stewart, 519. We such an a legal have profes- member of opportunity, sion, do not as we know whether was convicted of numerous charges, party either deem it appropriate including will to providing material support to appeal terrorists,3 imposed by sentence the Dis- specifically by facilitating eom- Jr., poll, Senior Circuit John by M. Walker for a much less a vote the en banc Court, panel's minority judgment author of the on the insofar as it affirmed concurring dissenting part, and in while not the conviction of Stewart or her co-defen- participate poll, authorized to in the en banc dants. expressed opin- has endorsed the views in this 3.Stewart was of one convicted count of con- ion. spiring to defraud the United States in viola- clear, 371; judges 2. To be § active of this Court re- pro- tion of 18 U.S.C. one count of quested poll whether viding concealing support to rehear en banc and material to judgment only conspiracy persons of as it for a insofar terrorists to murder imposed foreign addressed the country on Stewart in a in violation of 18 U.S.C. 2; request § the District Court. There was no 2339A 18 U.S.C. one count of
521
viding
him with the material
most
notorious incarcerated
munieation
his
Abdel Rahman to
Sheik Omar
to
important
ability
pur-
terrorist
to his
continue to
under
followers. To
of worldwide
legion
objectives namely,
terrorist
a means
sue
—
crime, it
of Stewart’s
stand
seriousness
objectives to his fol-
to communicate those
that Rahman
important
to understand
Guidelines,
Sentencing
which
lowers.
of
in
District
convicted
the Southern
was
identify
generally
to
the sentences
strive
extraordinary ter
leading
of
New York
imposed by judges
country
around
for
murdering
conspiracy intent
rorist
falling
of a
crimes
within
heartland
Hosni
Mubarak
Egyptian President
offense,
generally
see
Kim-
particular
in
bombing
buildings
tunnels and
New
States,
552
brough v. United
U.S.
128
City,
bombing
of
including
York
1993
(2007),
481
yielded
S.Ct.
L.Ed.2d
the World Trade Center.
See United
for
of
a recommended sentence
Stewart
(2d
Rahman,
Cir.
v.
ta, course, in view of stated panel’s of the emphasize I that this not a hasten is reluctance to decide the issue presented). in which a court a few situation has skirted Two, Step panel majority In the decides to reaching single, minor issues avoided remand to the district court for “clarifica- that question squarely pre- difficult is not of tion” its view on the at issue in matters decision. Despite sented for a record light panel’s legal of the tour the hori- pages twenty- thousands and more than Three, In Step zon. the directs that appeal, one months deliberations on any appeals later referred to case be 17, original panel. original opinion November (a panel majority only identified one error “clarification,”5 By remanding for failure to consider Stewart’s perjury) majority only delays not its decision ignored altogether either or skimmed over sentencing questions clearly pre- on the para- at least five issues of questions sented but also casts those United States importance. mount review, thereby unripe appellate effec- Stewart, 06-5015-cr(L), No. 2009 WL tively insulating panel majority’s opin- (2d 7525, Slip Op. Nov. Cir. by from review ion the en banc Court or 2009) (“Stewart ”). On December Supreme retaining Court. And over an subsequent appeal, control filed amended that, opinion briefly if the ques- ensures some of identified are ever Court, tions answered in this but still these issues left them undecided.6 appellate suggestions 5. Of course it is common for to the District how it Court as to might ques- remand court approach open issues to the district these and other appellate further consideration before tions on remand. The case, however, that, speaks despite to the panel’s rejection issue. This *9 answering ques- important comparison avoid numerous no between Stewart’s conduct law, sentencing II, remanding tions of and to the and Clark. See that of Stewart 590 F.3d at J., (Walker, District Court for concurring "further consideration” of 163-68 in questions many clearly already dissenting part). those ad- in simply I note that the — point dressed in the District inquiry Court's conclusions at for further invitation on this majori- regard panel separation member of the comes without for the of —one ty written a opinion powers prosecutorial authority has that offers that confers
523 issues, be if tention to detail—“We would remiss A. Each of these Appendix See below, not, outset, did commend the we at the which I summarize by thoroughness, the en banc Court up taken court its been majority’s reluctance or light of the effectiveness thoughtfulness, and the them. inability to decide unusually lengthy, conduct of these diffi- cult, Much proceedings. and sensitive of of A. Reasonableness Stewart’s it reports what did simply what follows Sentence I, Slip tracks it said.” Stewart what the de- notably, Most II, 7527-28; F.3d at Op. 590 98- Stewart the substantive reason- clined to assess clearly 99. The District Court decided 28-month sentence ableness of Stewart’s attending that the lack of harm Stewart’s of light her crime of the seriousness relating circumstances support various finally did conviction. a mini- supported to her career and health opinion, that “Stew- say, in its amended 113-14, Tr at Sent’g mal sentence. See strikingly light low in art’s sentence circumstances, it passim. these is the correctly described what the district responsibility appellate of an to de- core extraordi- [her] as the ‘irreducible whether, “thorough[ the ]” cide record ” conduct.’ narily criminal Stewart severe I, 7527, presented, Slip Op. the II, (Maj. Op.) (quoting at 143 590 F.3d identified factors could bear extraordi- 118). despite But belated Tr. its Sent’g to nary mitigating weight assigned them it had “serious glancing observation by District Court. See United States the sentence’s reasonable- doubts” about (2d Cir.2008) Cavera, v. F.3d 191 ness, majority even in its second banc). (en (amended) manage say no could opinion this, might one Observing all of be “th[ought] it appropriate more than that it what the drawn to the conclusion that ma- the district court further hear from jority really from the hopes to “hear” Dis- issue.” Id. at 151. In deciding before trict remand is not a Court after further fact, no reason hear further there is imposed, explanation for the sentence from District Court. The record rather, of a pronouncement clear that Stewart’s sentence makes sufficiently original so that higher than fully explained by carefully considered relating to the important mitiga- issues Indeed, both its District Court. can be tion of terrorism crimes avoided. original November appellate identify But an court does opinion, its amended December by significant sentencing error winks and way went well out its nods that the district court will judge hopes Dis- it presiding celebrate the correcting act on when at- understand and trict for his meticulousness and person exclusively cute a who have commit- on the executive branch and nar- second having judiciary mitigate judicial inquiry ted a rowly into the exercise crime limits See, e.g., person authority. the sentence of a whose commission of of that Harlan Assocs. Mineóla, (2d proved beyond a the crime was reasonable Inc. Vill. Cir.2001) prosecution any comparison If should be done in (limiting chal- doubt. selective (and, lenge this case the District Court for that prosecution's reliance on invidious matter, public), hamper general respectfully attempts to of con- sub- factors or exercise compare it right). mit that should be to stitutional still, array criminal troubling suggestion sentence with the defen- fails to More actually charged and convicted of mate- explain public would dants be well served how Appendix prose- rial B. by remedying executive’s to terrorism. failure *10 524 significant “procedural”
less
for both
errors identified as the ba-
and “substantive”
event,
any
in declining
sis for remand.
reasonableness,
See,
appeal.
e.g.,
it,
to decide the issues before
Ressam,
United States v.
525 errors, then the court should panel appellate approach taken Under any presence “procedural” majority, to consider the “substantive” rea- proceed a necessitate in a sentence would errors imposed. sonableness sentence then, and the district court remand that suggesting is no basis for Gall There third, a maybe a even perhaps, if a sentence is second-— states the converse—that “procedur- appeal excise each fourth? — a court should procedurally unreasonable can court appellate before al” error proceed to consider the substantive last) for “substan- (finally, long review See, unreasonableness that sentence. Indeed, reasonableness. tive” (“The Ressam, 593 e.g., F.3d at 1130-31 a second appear suggest would majority errors identified in the district procedural for substantive unreasonableness appeal im- decision rendered the sentence court’s appel- an in the circumstance where even Ressam and posed procedurally both procedural finds error and late unreasonable.”). substantively would not correction of that error where significant event, modifica- in a sentence result v. Cavera United States doubt” tion, “serious has significant pro- “Where we stated: we find reason- the sentence’s substantive about error, one be proper cedural course would ableness. to remand to the district court so that it do, explain trying what it was can either rul- there no definitive happens,
As it
is
its mistake
its dis-
or correct
and exercise
Supreme
or our Circuit
ing
Court
elaborate, wasteful,
anew,
appellate
rather
for the
requires any such
cretion
than
that
v.
time-consuming process.
In Gall
proceed
and
the sentence for
review
States,
Court ex-
Supreme
United
550 F.3d at
substantive reasonableness.”
“must first
appellate
that
plained
omitted).
added;
(emphasis
citation
committed no
that the district court
ensure
not hold
The en banc Court in Cavera did
[and,]
...
procedural
[as-
error
significant
two-step appellate
only
a
review is the
that
sentencing
suming that the district court’s
Thus,
nothing
course.
our exist-
proper
sound,
appel-
procedurally
decision
sentencing
prevented
ing
then
the sub-
late court should
consider
rul-
the en banc Court—from
—or
of the sentence
stantive reasonableness
ing
“procedural”
on both the
and the “sub-
586,
38, 51,
552 U.S.
128 S.Ct.
imposed.”
sen-
stantive” reasonableness of Stewart’s
(2007).
Supreme
L.Ed.2d 445
(first) appeal.
in the course of this
tence
not, however,
paso
a
require
did
two-step appellate
a
review
While
sentencing.
only that
Gall states
doble
id.,
cases,
course,”
proper
some
“procedural”
is free from
be “one
if a sentence
substance
'procedure'
within the uncertain area between
'substance'
matters of
capable
though
procedure”
rationally
as
"are
much talked about
the books
either”). Compare
great
cutting
Rita v.
they
across the
of classification
defined
divide
States,
But,
course, ‘sub-
127 S.Ct.
domain of law.
United
U.S.
whole
J.,
(2007) (Stevens,
key-
procedure’
it the course here. dural” “substantive” was not below, noted, appellate court As in as I have where ness. discussed more detail that with a is presented is lenient declined decide whether the Guide- such an variance from the extreme District Court committed several critical “ involving ‘extraordinarily in case in “procedural” sentencing lines errors the de- ” conduct,’ II, 590 imprisonment. severe criminal Stewart To fendant 28-months’ Sent’g were, Tr. (Maj. Op.) (quoting F.3d at 148 have addressed whether in these 118), appellate fact, “procedural” can and errors have been would part parcel determining decide the sentence “shocks and whether whether II, at 163 conscience.”9 Stewart 28-month the defendant’s sentence was J., (Walker, part in concurring “substantively” and dissent- unreasonable. (“The
ing in part) ‘informed intuition B. The “Nature” “Seriousness” in appellate panel’ place appellate has a of Stewart’s Offense 123)); (quoting 583 Rigas, review.” F.3d at Lynch, Letting see also E. Guide- Gerard Notably, panel majority also failed (and Be Judges lines Be Guidelines to decide whether the District Court erred Ohio L. Judges), St. J.Crim. Amici: Views proeedurally in assessing the “nature” and Field, 2008, (“[A]ppel-
from the Jan. 5 “seriousness” of Stewart’s sup- material late review reasonableness of sentences 3553(a)(1)- port offense 18 under U.S.C. in play part sentencing] can a valuable [the (2) effectively when District Court dis- ”). process.... “shocks con- regarded the element of terrorism after define, science” standard is difficult offense, recognizing the nature of her sen- it apply routinely, just course courts tencing if Stewart as her offense involved they necessary, routinely apply, also where benign In activity. origi- more criminal its discretion,” concepts “ar- “abuse opinion, nal panel majority said noth- bitrary capricious,” and “manifest in- ing whatsoever about Ap- this issue. See 10 justice.” An opportunity clarify these A. In pendix its amended opinion, rather standards was missed here. straightforward question than decide the of whether the District
Finally, even if the line
Court committed
“proce-
between
in
error
this respect,
dural” and “substantive”
can be
errors
precision
cases,
in
hypothetical
drawn with
in some
in this
describes
instances
which
any potential
erred,
case
the District
“procedural”
“might
errors so
Court
have”
as a
sentencing
conjecturing
infected
whole that it
District
con-
if
virtually impossible
separate
in
“proce-
analysis
ducted its
certain enumerated
note,
point,
they
9.
substantively
unreasonable.”
support
defendants
material
of terrorism
We also evaluated whether the district court’s
Booker,
220,
after United States v.
543 U.S.
range
be
decision
located within the
"[could]
(2005),
125 S.Ct.
ironic major- opinion, amended its Id. issuing advisory opinions. against tion issue, less of a on the ity takes even stance (Calabresi, J., This concurring). at 152 District the matter instead to the pushing the District Court guidance no affords without instruction again further Court— no reasonably it can accord whether as to A. The analysis. Appendix legal ele- terrorism whatsoever to the weight it majority only “make[s] claims crime, support of Stewart’s material ment now[,] ruling not[ing] ... th[at] no issue whether a 28-month much less given it is a to be simply that serious issue sen- of reasonable range falls within upon consideration as serious for criminal conduct tences reevaluating Stewart’s sentence.” Stewart been, have This issue could Stewart’s. II, (Maj. at 150 Inasmuch Op.). been, by the en banc up taken fact-finding additional is needed or as no Court. appellate this requested, approach even avoid decid- decisionmaking deciding to — Lack of Actual Harm
C. inadequate response to the ing—was question. in The en “serious banc issue” to decide majority declined The stepped in stepped should have Court it was error the District Court whether up. resulting rely the lack of actual harm a basis for actions as from Stewart’s D. Abuse of Trust original opin- variance. In its downward Judge separate *14 have by the panel majority found was the Dis- Yes, indeed, ques- was.” Id. at 148. trict failure to consider Court’s tion does “remain.” And it too could have alleged perjury identify- the stand. been, been, answered, if error, ing single procedural then, by the en banc majority manages to remand this case for Court. resentencing leaving while unresolved each issues, of the serious central to Stewart’s E. “Other Issues” terrorism, material summarized Finally, in addition to the is- numerous above. (but undecided), already flagged sues left panel majority in its opinion Maybe amended District will under- inscrutably conveyed alludes “other issues” raised stand winks and nods separate in the opinions Judges Walker direction some (adding, quixotically, not, Calabresi If maybe these serious errors. majority opinion’s “silence” those government appeal will the District issues decision; so, does not “mean that Court’s and if has adopted Judge maybe Calabresi’s views or will confront these issues Walker’s”). rejected Judge squarely Id. after Stewart has been resen- again, message Once maybe here to the Dis- And en tenced. banc Court will trict Court public and to the is that the have a chance to them revisit thereafter. of the panel majority golden— Maybe. silence
Appendix A changes The majority original opinion from the to the amended demonstrate how the important failed to address several issues:
Appendix B
“In
support
Booker,
material
convictions after
(2005),
United States v.
543 U.S.
district
count,
generally imposed
courts have
years per
sentences of at least ten
suppoH
material
considerably
II,
higher total sentences.”
(Walker,
Notes
notes his ion, a footnote: As Walker stated matter, panel majority “properly opinion, we conclude procedural “As a ‘ex- failing fact that the district court for may rely on the faults a district court act at how and to what extent the sentence plain harm resulted the criminal no from I, of n. of the crimes Op. at 7604 33 reflected seriousness Slip issue.” Stewart expla- light fact that Stewart (Maj. provided It no further conviction Op.). she ... a member of the bar when apply and did not its conclusion nation ” (Walker, J., han- them.’ Id. at 179 case or District Court’s committed Stewart’s however, dissent, dissenting part) part and of the issue. The dling lack of harm— n But as (Maj. Op.)). at 148 forcefully explained why (quoting id. observes, go vigilant this “does consequence when a Walker particularly Rather, enough.” again miti- Id. once bear far law enforcement efforts —cannot is- important identifies an weight assessing the seriousness gating spotting,” parlance in the terrorism crime.11 sue—“issue of a material case,” case, the id. proscribe” In this "categorically we do not stances 11. While general public are enti- considering the full Court and District from Court as to and the tled to a clear decision from our range of facts relevant to a defendant erred— deciding appro- or not the Court on an whether District crime of conviction in sentence, Cavera, substantively procedurally or as- priate F.3d at 191 either see —in facts), heavy weight only signing mitigating to the lack (excepting we will con- invidious sup- weight resulting from material harm whether fact "can bear sider totality port circum- of terrorism. assigned to it under of the settings significance. law school exam fails de- and without existence —but (and it, only tentatively), in stating they may cide these “other issues”-—-whatever footnote, “may clearly District ad- en suggest the need for an be— unflinchingly this issue on remand.” Id. at 151 n. banc review that dress de- added). (Maj. Op.) (emphasis presented by As [sic] cide all issues panel majority recognizes, ques- to the ease as reasonableness of Stewart’s “[t]he whether, ... tion sentence. [Stew- remains because 28-month experienced was an law- art] and dedicated acting yer as such when she broke v ‡
[*] did, punish- in the manner that she her only sentencing error squarely ment should been than it greater