Sunday, November 01, 2015

Case o' The Week: No Laughing Matter . . . Ochoa and Finality of Sentences Under Section 3852(c)

Hon. Chief District Judge Gloria Navarro

“The majority’s ruling upholds the draconian decision of the sentencing court to suddenly double the term of incarceration initially pronounced and impose the statutory maximum sentence based solely on a perception that the defendant was laughing at the court. Affirming this injudicious decree of the sentencing court defies the unambiguous language of Rule 35 of the Federal Criminal Rules of Procedure and the express limitation of 18 U.S.C. § 3582(c).”

United States v. Ochoa, 2015 WL 6217319 (9th Cir. Oct. 22, 2015), at *5 (Navarro, Chief District Judge, dissenting), decision available here.

Players: Decision by Judge Rawlinson, joined by Judge Murguia. Compelling dissent by Chief District Judge Navarro, District of Nevada. Hard fought appeal by (former) CD Cal AFPD Carl Gunn.

Facts: While on supervised release, Ochoa failed to participate in a residential reentry program, and was allegedly “argumentative and disrespectful” to the program’s staff and P.O. Id. His Grade C guidelines were 7 to 13 months – Probation recommended a year and a day. Id. 

At sentencing, Ochoa explained he did not mean to be disrespectful and apologized for his behavior. Id. The court accused Ochoa of being disrespectful, predicted he was going to be back in the system because of his attitude, and told him he was when he thought he was “on the same level and same par with people who are responsible to get you on the right track.” Id. at *1-*2. The district court then imposed the recommended year and a day sentence. Id. at *2. 

The judge then observed Ochoa laughing – Ochoa explained it was because he was “just surprised.” Id. The court “expressed the view that Ochoa ‘won’t learn without giving the maximum,” and imposed the two years of custody. Id.

Issue(s): “Ochoa specifically contends that the district court erred in increasing his sentence to the two-year statutory maximum based on Ochoa’s apparently disrespectful conduct after the district court imposed a sentence of twelve months and a day. Ochoa maintains that the district court lacked jurisdiction to increase an already imposed sentence.” Id. at *1. “Relying on 18 U.S.C. §3582(c), Ochoa contends that the district court lacked jurisdiction to increase his sentence once the district court pronounced a lower sentence.” Id. at *2.

Held: “We do not agree.” Id. at *1. “We are persuaded by the reasoning of our sister circuits [the First, Fifth and Tenth], and conclude that Rule 35 was not intended to deprive the district court of jurisdiction to alter a sentence during the court of the same hearing.” Id. at *4. “[N]either 18 U.S.C. § 3582(c) nor Rule 35 deprived the district court of jurisdiction to alter Ochoa’s sentence due to Ochoa’s apparently disrespectful conduct during the ongoing sentencing hearing.” Id. at *5.  

Of Note: “It is hard to imagine a more draconian rule than the one adopted by the majority today.” Id. at *7 (Navarro, Chief District Judge, dissenting). So muses dissenting Chief District Judge Navarro, who wonders how the majority avoids recognizing the district court’s first sentence as an “oral announcement” that could not be then doubled. Id. at *6.

Judge Navarro questions the majority’s analysis of the Section 3582 and Rule 35 limitations, and grounds her discussion within the context of a very troubling reaction to a defendant. Id. at *7 (“These provisions [Section 3582(c) and Rule 35] embody the notion that a judge’s decision as to how long a defendant should be involuntarily imprisoned must be careful, measured, and deliberate – not subject to impulsive change or emotional whims.”)

This dissent is quite a read, and is a compelling attack on a decision of first impression in the Ninth Circuit.

How to Use: Sauce for the goose . . . . In defending its decision, the majority explains that this new rule may work in the defendant’s favor – a witness may arrive late, or a new piece of mitigating evidence might be discovered. Id. at *4.

Take the Ninth up on its invitation (which seriously undermines the “finality” of a pronounced sentence). 

A sentence is no longer “final” after oral pronouncement, and it seems the sentencing window now remains wide open for reconsideration. Use Ochoa to keep slugging away after the sentence is pronounced with new defense evidence or witnesses, to move a term down. After Ochoa, there are fewer Section 3582 or Rule 35 bars to these second bites at the sentencing apple.
For Further Reading: What’s the latest on the Johnson struggle? For an accessible article with useful links, see Caroline Gruelskin, “13 Words that Could Mean Freedom for Many,” available here.  

Image of the Hon. Chief Judge Gloria Navarro from

Image of Second Bite at the Apple from 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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