Appellate Procedure,  Federal Procedure,  Waiver of Issues

Preserve Your Sentencing Objections

In United States v. Grissom, case no. 06-10688 (9th Cir. Apr. 15, 2008), the Ninth Circuit reviews what it calls “novel circumstances” and looks beyond the form of a sentencing objection to determine whether the government had preserved the issue for appeal. Whether you view the analysis as a more lenient test or simply the application of the old test in new circumstances, it seems likely to lead to more sentencing appeals.

Grissom pled guilty to one drug distribution count involving 49 grams of cocaine base in exchange for dismissal of the remaining two counts, which involved a total of 56 grams of cocaine base. The government contended that the trial court erred by not including the drug quantities from the dismissed counts in the calculation of the base offense level.

The district judge announced his reasoning for imposing an 87-month sentence —  including her decision not to include the drug quantities from the dismissed counts — and asked if there was any legal cause why sentence should not be imposed. Then:

The government responded, “No, your honor. I would simply note the government’s objection on the record.” At that point, the court stated, “I know. You know what you can do with that. Take it to appellate court, if that’s what you want to do. I don’t think it’s worth it myself, but that’s something you have to decide.”

Ordinarily, to preserve a sentencing objection for appeal, it “must have a specific substantive basis” in order to apprise the district court of the specific nature of the objection for its due consideration. Here’s the dilemma faced by the Ninth:

But what happens when the district court indicates that it has understood, and rejected, the substance of a party’s objection? This case presents the issue of forfeiture in novel circumstances. Neither party disputes that the government objected to the sentence imposed on Grissom. Before the government articulated a basis for its objection, however, the district court stated “I know[,]” and the government pursued the matter no further. The government now contends that its own general objection, coupled with the district court’s terse statement, reflects that the district court was fully aware of the government’s legal position regarding relevant conduct.

It turns out to be not such a dilemma after all, as the court looks past the facially deficient objection to find that the government had made its position plain throughout the sentencing process:

Despite the seeming facial inadequacy of the objection, we agree with the government that where the district court indicates that it understands the basis for the objection and that further argument is not desired, and the record reflects this understanding, a general objection may suffice to preserve an issue for appeal. As the government argues, the purpose of a specific objection is to allow for meaningful review by the district court and, if necessary, the appellate panel. Santiago, 466 F.3d at 803. Thus, the court’s reassurance that it “know[s]” the substance of a party’s complaint helps to allay concerns about the ability of the district court to address it. Cf. United States v. Pineiro, 470 F.3d 200, 204-05 (5th Cir. 2006) (concluding that the government preserved its objection to recalculating the defendant’s sentence by making statements throughout the sentencing hearing arguing that the prior calculations were still appropriate); United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (excusing the government’s failure to object at the end of the sentencing colloquy where the government argued vigorously throughout the hearing, such that it “made unmistakably clear its position”).

Reviewing the record, we are satisfied that the district court was indeed fully aware of the government’s position regarding the district court’s calculation of relevant conduct. First, the government consistently advanced its view that quantities of crack cocaine from the dismissed counts of the indictment should count for sentencing purposes. The plea agreement, PSR, and both parties’ sentencing memoranda all calculated Grissom’s offense level based on the total amount, 105 grams, rather than the 49 grams charged in the count of conviction. Neither party challenged this calculation at the sentencing hearing. Second, the district court’s comments indicate an awareness that its decision not to consider the amount from the dismissed counts produced the government’s objection. After commenting that determining the calculation based on 105 grams would not “amount to dismissing the other two [counts] because [the government would] still . . . count them out anyway[,]” the district court changed the base offense level to “reflect[ ] the 49 grams.” In short, the district court knew it was deviating from a calculation based on the total amount. Responding to the government’s objection, the district court challenged the government to “take it to appellate court, if that’s what you want to do.” The district court’s challenge to the government to appeal strongly suggests the district court recognized and disagreed with the claimed error. Therefore, we hold that the government’s objection was sufficient under the circumstances to preserve its objection to the district court’s calculation of Grissom’s sentence.

Bottom line: what matters is not so much the actual presentation of the objection, but whether the record discloses that the district court was well-enough advised of the nature of the objection that it could give it due consideration.