A Defining Opinion On Federal Criminal Sentencing

Doug Berman has pointed out a truly engaging sentencing opinion out of the Northern District of Iowa. The case, U.S. v. Saenz, involved a downward departure from the federal sentencing guidelines for a defendant who provided “substantial assistance” to the government. After Kim Saenz entered a plea of guilty to a drug crime, and in light of her genuinely substantial assistance to prosecutors, Judge Mark Bennett gave the defendant a 68% reduction in sentence. Thus, Ms. Saenz received a term of 20 months for her role in the distribution of marijuana. The Eighth Circuit slapped down Bennett’s ruling, holding that this downward departure from the (no longer binding) federal sentencing guidelines was “unreasonable and excessive.” In particular, the Circuit indicated that a downward departure of 50% for substantial assistance was inherently “extraordinary.” It appears that several of the Judge’s recent sentencing decisions have been remanded on the grounds of excessive leniency.

Judge Bennett’s decision was all about redefinition. He redefined language, people, and even his own role in the production of law. In doing so, he created an opinion worth a few reading.

First, he sought to redefine the word “extraordinary.” Courts routinely define terms and in the case of the Eighth Circuit, they have defined an “extraordinary” departure as one that cuts the guideline sentence in half. This is a legal definition, of course. While this particular definition of extraordinariness may carry the force of law, it does not necessarily have the force of reality. Judge Bennett attacked attempted to undermine this legal holding by showing that a 50% reduction was not extraordinary, in the dictionary sense of the word. Like a good 21st century law prof, Judge Bennett used quantitative empirical data produced by the U.S. Sentencing Commission to show that such a reduction is actually quite ordinary. Thus, he attempted to undermine the Eighth Circuit’s legal claim by subtly shifting the term “extraordinary” out of its special legal use, and into common parlance. Very nice.

Judge Bennett also sought to redefine people. Most importantly, he wanted to reclaim the ability to define himself. He acknowledged that some people might see him as a sentencing softy. “Contrary to the perception that this string of reversals may have engendered, I am not a habitually lenient sentencer.” How to prove his sentencing cojones? First, he used capital punishment as a proxy for toughness. “The two most recent ‘kingpins’ to appear in my court received the death penalty”, he boasted. Then, more on point, he confirmed his willingness to bang a defendant, even when the government thought it unnecessary. “I have not hesitated to depart or vary upward, even sua sponte.” He concluded: “the issue is not, or should not be, whether or not I am an excessively lenient sentencer. I am not. What I am is a very experienced sentencer.”

But Judge Bennett wanted to redefine another player here: the defendant. It appears that Ms. Saenz recently divorced Mr. Saenz and has reverted to her maiden name of Kimberly Edwards. Perhaps worried that the Eighth Circuit mistakenly believes Ms. Saenz is Latina, on page 33 of the opinion Judge Bennett announced “I will refer to the defendant as Kimberly Edwards for the remainder of this ruling.” He fortunately changed her name just in time to use “Edwards” repeatedly in the portion of the decision dedicated to biographical information about the defendant.

The final redefinitional act was less obvious, but also intriguing. He implicitly redefined his role from that of a district court judge on remand, tasked with fixing the mistakes identified by his bosses in St. Louis, to either an unbiased outside critic (a law prof) or a court sitting review of the circuit itself. In text that read more like law review article than opinion, he systematically took apart the Eighth Circuit’s finding that a 50% downward departure was extraordinary. That was the law prof move. Then, in order to explain why he had to bypass the appellate court’s decision, he ruefully noted that the Court had relied on the “now discredited 50 percent benchmark for extraordinariness.” Who had discredited this benchmark? The Supreme Court? The Eight Circuit en banc? Far from it: it had been discredited only pages earlier by this very District Court judge!

Judge Bennett makes some very strong policy and factual points (which will no doubt be shredded on appeal.) Forget the practicals, however. This decision has much to offer those who love reading a good text. What would Professor Solum say? Download it while it’s hot!

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5 Responses

  1. Orin Kerr says:


    Does a district court judge’s job include “redefining” circuit law? I don’t understand what is so strong about the opinion, given that he seems to be thumbing his nose at the judges above him. Presumably Judge Bennett would not be pleased if litigants in his cases decided to “redefine” his rulings; I’m not sure why it is laudable that Judge Bennett feels it is proper to do the same to the Eighth Circuit.

    What am I missing?

  2. Dan Filler says:

    Orin, I agree with you on the meta-issue: his approach to judicial hierarchy is problematic. But I do think that a 50% departure may not be extraordinary. And I also share his concerns about over-empowerment of prosecutors. The reason I blogged about the case, though, was that the opinion begged for at least a bit of rhetorical analysis. I could probably spend two or three good classes talking about what Judge Bennett did here, how he did it, and whether it was a good idea – either legally or rhetorically.

  3. Orin Kerr says:

    I suppose every legal decision that intentionally reaches a result in violation of binding law has engaged in “redefinition” of the law using a “problematic approach to judicial hierarchy.” I guess I don’t see what was so sophisticated about the opinion, though.

  4. Orin Kerr says:

    Another interesting tidbit — Judge Bennett recently gave an address slamming judicial conservative “activists.” Bennett, himself a Cliinton appointee, said:

    “I’ll debate anybody, anywhere, anytime on that issue about who the judicial activists are in the federal judiciary. They’re not the Clinton appointees or the so-called liberal justices, I’ll guarantee you that.”

    I wonder if Judge Bennett would classify his own opinion as activist?

  5. MJ says:

    Let me get this straight: A district court judge downwardly departs on a sentence, that downward departure is reversed on appeal by the 8th Cir. and remanded for re-sentencing not inconsistent with the 8th Cir.’s opinion, on remand the district court judge explains to the 8th Cir. why they are mistaken and gives the same sentence. I don’t find anything in his opinion to be “engaging.” It reads like a law review article because it doesn’t even attempt to be a judicial opinion. I’m sure that Judge Bennett would not stand for such a usurpation of his authority by a party for one second, yet he flouts the 8th Cir.’s remand. Why doesn’t Judge Bennett just come out and say “I am the law.”

    It is simply Orwelian for anyone to say that Judge Bennett’s actions are not judicial activism.