On June 19, 2018, in a split decision in United States v. Sawyer, No. 15-2276 (Jacobs, Pooler, Crawford) the Circuit issued a firm rebuke of a District Court judge who – per the Circuit’s mandate – reduced the defendant’s sentence on remand, but did so without curing certain deficiencies the Circuit had identified as making the sentence substantively unreasonable.  The majority opinion makes clear that when the Circuit issues a mandate on remand, the district court is not at liberty to ignore it – even if the district court can achieve the same outcome (here, a reduced sentence) through different means.  As the dissent (Jacobs, J.) observes, however, the holding yields the anomalous result whereby the District Court may have remedied the substantive unreasonableness of the initial sentence on remand, but because it did so for the wrong reasons – i.e., by expressly declining to link the reduction to the two variables identified in the mandate – the sentence could not stand. 

This appeal is the second time that the Circuit has reviewed the sentence imposed on defendant Jesse Sawyer after he pleaded guilty to two counts of sexual exploitation of children in violation of 18 U.S.C. § 2251(a) and one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2)(A) and 2256(8)(A).  As part of his guilty plea, Sawyer admitted that (a) he had taken approximately 30 graphic cellphone pictures of two very young girls with whom he had “close relationships” and (b) had downloaded other child pornography images from the Internet.  For those crimes, Sawyer faced a Sentencing Guidelines range of 80 years, the combined statutory maximum—a 15-year minimum/30-year maximum sentence for each count of sexual exploitation, and a 5-year minimum/20-year maximum sentence for the receipt of child pornography count.  Absent the 80-year statutory maximum, the Guidelines range would have been life imprisonment.

The District Court initially imposed a total effective sentence of 30 years (i.e., 50 years less than the maximum potential sentence).  In arriving at that sentence, the court acknowledged the Presentencing Report’s findings that, as a child, the defendant had been subjected to repeated sexual abuse and exposed to drug use and prostitution in his home.  But the Court also concluded the defendant’s risk of recidivism was high, and told the defendant that his background “can’t excuse that darkness in your heart and soul that made you prey upon two innocent children.” 

In the initial appeal, the Circuit, by summary order, vacated the sentence as substantively unreasonable and remanded for resentencing.  United States v. Sawyer, 672 F. App’x 63 (2d Cir. 2016).  The Circuit explained that a 30-year sentence was reserved for “extreme and heinous criminal behavior,” and the conduct of the defendant– who had not sexually assaulted his victims – did not rise to that level.  The panel instructed the District Court, upon resentencing, to reevaluate the defendant’s perceived danger to the community, and give additional weight to “the deplorable conditions of [the defendant’s] childhood,” which warranted “not just a departure from the Guidelines, but a significant one indeed.”  Id. at 67.  The case was remanded with instructions that the new sentence must “comport[] with this opinion.”  Id.

Upon resentencing, the District Court did grant a significant reduction from the sentence originally imposed, and sentenced the defendant to 25 years’ total imprisonment.  The District Court, however, attributed the 5-year reduction solely to the defendant’s good conduct in prison, and expressly declined to follow the Circuit’s mandate.  Despite recognizing the Circuit’s mandate required that additional weight be afforded to the defendant’s upbringing, the District Court stated it could not “say in good conscience” that its initial sentence was “substantively unreasonable,” because it had already departed by 50 years from the 80-year maximum sentence.  To further reduce the sentence, the District Court opined, “would be surrendering the conviction of what I did.”  The District Court seemed understandably troubled by the defendant’s touching of the inner thighs of the two children—aged only 6 and 4—while taking the photographs that gave rise to the conviction.  The District Court then reiterated its belief that the prior 30-year sentence was appropriate because the defendant “continue[s] to be a clear and present threat to society and specifically to children.”  It recommended that, if a further remand was ordered, the case should be sent to a different judge in the interest of judicial economy.

Presented with this modified sentence on appeal, the Circuit, by a 2-1 margin, again vacated the sentence, and ordered that the matter be remanded to a new judge for resentencing.  The majority did not squarely address whether the new sentence was substantively unreasonable, but it took the District Court to task for failing to abide by the mandate of its prior ruling.  Although the Court reduced the sentence to 25 years, it “ordered no downward departure on either of the grounds specifically identified in [the prior] summary order as grounds for significant downward departures,” and thus the “sentence, imposed in violation of the mandate rule, cannot stand.”   After recapitulating the reasons why it believed the prior sentence was infirm, the majority reasserted the primacy of the Circuit’s mandates, even in sentencing decisions that afford the district court substantial latitude.  Although the majority did “not question the good faith of the district judge in responding to a serious offense in a manner which she believed would best protect the victims and the community,” she was required on remand to correct the deficiencies the Circuit identified that rendered the sentence substantively  unreasonable, even if she disagreed with them.  In the same vein, in light of the District Court’s “continuing disagreement” with the Circuit and previously expressed views, the majority found it appropriate to reassign the matter to a new judge (which the district court suggested).  

Judge Jacobs dissented, opining that the District Court’s reduction of the sentence – even though unrelated to the reasons cited in the summary order – was consistent with the Circuit’s prior mandate.  He observed that the mandate required “a substantial sentence reduction,” which the District Court delivered, and noted the majority was “unwilling to find [the new sentence] substantively unreasonable.”  The majority’s decision to remand, according to Judge Jacobs, was “provoked by the judge’s candor and transparency rather than by her ruling itself,” and had she “spoken other words to justify the reduction,” it “would have been deemed compliant with our mandate.”  And, criticizing majority’s “bland understatement” when describing the details of the defendant’s offenses, he concluded that the 25-year sentence was “not a shocking departure from sentences routinely imposed in federal courts for comparable offenses.”   Finally, despite agreeing with the majority “that sentencing in this case would benefit from further review and consideration,” the question on appeal was whether the mandate was executed.  He found that it was: “It was doubted, but it was done.”

The Circuit’s determination to publish this opinion suggests it intended to send a clear message to district courts that its mandates must be scrupulously followed.  Given the openness with which the District Court departed from the mandate, it is understandable why the Circuit came out strongly against the District Court’s approach on remand.  It is interesting that the Circuit picked this case as the vehicle for this message:  the crime was serious; the reduction of the initial sentence was broadly consistent with the mandate; and the Circuit was “unwilling to find” the resulting sentence substantively unreasonable.  Despite (or perhaps because of) the unique context, one would expect district courts to take this decision to heart when fashioning modified sentences on remands accompanied by mandates.

One other aspect of this decision and its procedural history bears mention:  the district court judge, perhaps recognizing that she could not fully reconcile the Circuit’s earlier ruling with its own view of her obligations as a district judge at sentencing, even suggested that the case be reassigned should there be a second successful appeal by Sawyer.  But she would not “surrender[] the conviction of what [she] did” at the initial sentencing.  The question of what a judge should do when her conscience and view of the law cannot be reconciled with the ruling of a superior court is one that has long been the subject of debate.  The question is not, however, a purely academic one.  In the memorable case involving the execution of Robert Alton Harris, Judge Pregerson and other judges on the Ninth Circuit Court of Appeals repeatedly ordered stays of execution.  Finally, after having vacated each of the prior stays of execution, the Supreme Court’s last order provided that “[n]o further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this Court,” essentially depriving the Ninth Circuit of jurisdiction, and Harris was executed.  See Evan Caminker & Erwin Chemerinsky, “The Lawless Execution of Robert Alton Harris,” 102 Yale L.J. 225, 230 (1992).  Despite Judge Pregerson’s awareness that his stay orders would likely be reversed by the Supreme Court, he continued to block an execution that he viewed as unjust, consistent with his testimony at his confirmation hearing, when he stated that if a law required him to violate his conscience, he “would follow [his] conscience.”  See Emily Langer, “Harry Pregerson, federal judge who placed conscience before law, dies at 94,” Washington Post (Nov. 30, 2017).[1]  The Sawyer case is a useful reminder of the dilemma that judges will face in certain rare cases.  Even when they are reversed on appeal, society on the whole still benefits from having judges who will not “surrender[] the[ir] conviction” when unusual circumstances require it.