Metropolitan News-Enterprise


Thursday, January 29, 2004


Page 1


Ninth Circuit Rules:

New Review Standard Applies to Prior Sentencing Departures


By DAVID WATSON, Staff Writer


Legislation giving federal appellate judges broader powers to review downward sentencing departures applies to sentences imposed before it took effect, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court joined the Fifth, Seventh, Eighth, and 10th Circuits in holding that the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, which went into effect April 30, controls in all subsequent appellate reviews. Applying PROTECT to sentences imposed before that date does not violate the prohibition against ex post facto laws, the Due Process Clause, or the doctrine of separation of powers, Senior Judge Thomas G. Nelson said.

Nelson’s opinion was joined by Senior Judge Melvin Brunetti and Judge Johnnie B. Rawlinson.

Standard Changed

The PROTECT Act changed the standard of review for downward departures under the federal Sentencing Guidelines from abuse of discretion to de novo, making it easier for such departures to be overturned on appeal.

Yesterday’s decision came in the case of David Phillips, a Montana man convicted of violating the Clean Water Act by polluting a creek while developing property for sale. U.S. District Judge Donald W. Molloy of the District of Montana applied a two-level downward departure in sentencing him.

The Ninth Circuit overturned the sentence, ruling that Molloy improperly relied on agency memoranda and legislative history in deciding to depart, in violation of a guidelines provision limiting judges to considering the guidelines themselves and related policy statements and commentary. Molloy also erred in considering the fact that Phillips had been prosecuted in state court, Nelson said.

The consequences of that prosecution were too minimal to justify a departure, the judge said.

Nelson said the departure could not have been sustained even under an abuse of discretion standard.

Citing the provisions of the statute dealing with the changed review standard, the judge wrote:

“Nothing in this section of the PROTECT Act implicitly or explicitly limits its application to cases pending on appeal. We conclude that the new standard of review must be applied in any case decided by this court subsequent to the PROTECT Act’s effective date of April 30, 2003.”

  The change would violate ex post facto restrictions only if penal in nature, Nelson said. As for Phillips’ Due Process Clause argument, he explained:

“Phillips did not rely upon the former standard of review at the time he committed the crime for which he was convicted. He may have expected that a higher level of deference would be shown to the district court’s sentencing determinations, but that fact should have prompted him to present his evidence more carefully at trial in the event that the district court’s decision was adverse to him. Phillips’ potential reliance interest on the former standard of review when making the decision to file an appeal is not substantial enough to warrant protection by the Due Process clause.”

Separation of Powers

The act did not violate separation of powers requirements, since the power to review sentences “remains with the judiciary,” Nelson declared.

“While a slightly higher degree of discretion has been granted to this court, this discretion has in no way been usurped by another branch of government. The PROTECT Act’s new standard of review does not raise separation of powers concerns.”

The case is United States v. Phillips, 02-30035.


Copyright 2004, Metropolitan News Company