Mimesis Law
22 February 2017

Mr. Bumble: The “Law Is A[n] Ass, A[n] Idiot”*

January 4, 2017 (Fault Lines) — Although I don’t see the legal significance, Professor Doug Berman featured United States v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) on his preeminent sentencing blog.  See Third Circuit reverses (short) sentence based in part on “bare arrest record.” Sentencing Law and Policy (December 30, 2016).

As I see it, the Third Circuit merely reiterated that a district judge should not base a sentencing decision on arrest records, where the presentence report gives no background about the nature of the underlying conduct and no conviction resulted therefrom. So far as I can tell, this was already the state of the law. The decision hardly breaks new ground.

But, if Doug thinks the Third Circuit’s published decision is worthy of note for criminal history purposes, I’m okay with that. However, this post is about something more fundamental.

Mateo-Medina and the proceedings in the district court are emblematic of a pig-headed judicial culture that all too frequently overlooks the practical. As a result, the public as well as criminal defendants get screwed.

Mateo-Medina, a citizen of the Dominican Republic, was initially deported from the United States in December, 2012 after being convicted of unlawfully obtaining a U.S. passport and serving a five-month sentence for that felony. Shortly after he was deported, his common-law wife, Milagros Rasuk, a U.S. citizen with whom Mateo-Medina had been residing for fifteen years prior to his deportation, was diagnosed with terminal colon cancer.

Rasuk had two adult children from a prior marriage, both of whom had become drug addicts. One son, Miguel, resided with Mateo-Medina and Rasuk.

Rasuk’s oldest son, Risdael, who suffers from mental health issues, had his own child, Angel. Perhaps because of Risdael’s drug addiction, he abandoned Angel, who was raised by Mateo-Medina and Rasuk.

When Mateo-Medina received word that Rasuk had been diagnosed with terminal cancer, he unlawfully returned to the United States to care for her during her final months of life. She died in February, 2014. Angel was no older than eleven when his grandmother, Rasuk, died. Mateo-Medina continued to care for Angel and became his sole caretaker following Rasuk’s death.

Proving for the trillionth time that no good deed goes unpunished, one of Rasuk’s drug addicted adult children (Miguel) became angry when Mateo-Medina threw him out of house, so the bastard turned Mateo-Medina in as an illegal alien. Since Mateo-Medina had been convicted of the felony offense of illegally obtaining a passport under the provisions of 18 U.S.C. § 1542 prior to his first deportation, he was prosecuted for illegal reentry under 8 U.S.C. § 1326(a) and (b) (1) and thus subject to a maximum term of ten years in prison.

The federal prosecutors did not act like jerks. The government and the defense agreed on a sentence that was a product of a variance. While the trial judge granted the variance, he varied less than the amount the prosecutor and defense counsel had recommended. Among other things, the judge noted that with two convictions and seven (actually six) arrests, he was not entirely sure that Mateo-Medina’s activities in the United States were properly viewed merely as a good man seeking a better life for himself and his family. So a prison sentence was imposed, plus two years of supervised release.

Well, that pissed off the defense, so an appeal was taken. The matter was submitted on April 18, 2016, and the published opinion was issued on December 30, 2016. The opinion is 13 pages long and contains 42 footnotes.

As indicated above, I don’t believe the opinion breaks any new ground, but it does treat us, among other things, to an earnest discussion (by a law clerk?) of the Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System (August 2013) and how criminal histories can be inflated due to supposed racial bias. Ultimately, the Third Circuit reversed, and remanded for resentencing.

It is then, and then only, in the forty-second footnote, that we learn that this case is the functional equivalent of a judicial circle jerk. The district judge had imposed a sentence of year and a day. That meant Mateo-Medina would serve roughly 10 months. The defense and the prosecution thought a time served sentence was appropriate since he had already served six months. So, the fight was over 4 months.

Sheepishly, the Third Circuit concluded it’s irrelevant (as we shall see) and redundant magnum opus on ‘bare arrest records’ this way:

While Mateo-Medina has finished his term of incarceration, he remains subject to the remainder of his two-year term of supervised release, with all of the restrictions that supervised release entails. We are confident that resentencing that accurately reflects Mateo-Medina’s minor criminal history will afford him some relief from those restrictions.

Mateo-Medina, slip op. at p. 13 n. 42.

Charles Dickens in his Study (1859). The oil on canvas portrait was painted by William Powell Frith (1819–1909). This photo of the original portrait is considered to be in the public domain.

Now, I want to make something clear. I don’t fault the lawyers. Rather, my point is that the sentencing judge and the Third Circuit proved Mr. Bumble’s maxim. Each court acted like an ass and an idiot.

The trial judge should have gone with the flow. Instead of giving deference to the recommendation of the prosecution and the defense, picking what amounted to a 10-month sentence over a six month (time served) sentence was “slicing the bologna too thin.”**

Still further, if the four month difference was worth fighting about (a matter I don’t dispute from the defense perspective***), why in bloody hell didn’t the Third Circuit expedite the review? Then, perhaps without briefs because the error was plain, it could have simply reversed and remanded with a one-page order shortly after the notice of appeal was filed? ****

When will we learn that perfection is not practical? Unfortunately, the answer to that question is probably “never.” We are too damn egotistical to be practical. We need to hear ourselves speak with our stentorian voices and glory in our archly written deep thoughts. After all, we are federal judges.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*Charles Dickens put the phrase into print in Oliver Twist, 1838. When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “the law supposes that your wife acts under your direction,” he is stunned. “If the law supposes that,” Mr. Bumble tells us, squeezing his hat emphatically in both hands, “the law is a[n] ass – a[n] idiot.” Then again, Bumble himself was a pompous petty bureaucrat who ran the poor house and ultimately got what he deserved.

**If you don’t think “slicing the bologna too thin” is proper legal language, you are wrong. See, e.g., Carrie Severino, Today’s Arguments Tilt Against the Individual Mandate, National Review (March 27, 2012) (“Justice Kagan was in favor of not ‘slicing the bologna too thin’ by paying attention to the details of whether and when people enter a market.”)

***This may have really been a fight over whether Mateo-Medina could escape deportation on humanitarian grounds. In other words, perhaps the defense wanted Mateo-Medina to be viewed in the best possible light by ICE if he sought an administrative reprieve from deportation. Given what I know about ICE, my guess is that Mateo-Medina will soon find himself back in Hispaniola. I hope I am wrong.

****The Third Circuit’s suggestion–that the trial judge could fiddle with the terms of supervised release on remand to remedy the wrong–is a joke. Initially, it is legally suspect. There is a whole bunch of law out there that supervised release terms should not be reduced or changed merely because a prison sentence is over-served. Prison sentences and supervised release terms have different statutory goals. Far more importantly, if Mateo-Medina is deported, the terms of supervision are not likely to matter much to the offender (or the boy he cares for).

5 Comments on this post.

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  • JRoss
    4 January 2017 at 3:29 pm - Reply
    • Richard G. Kopf
      4 January 2017 at 4:28 pm - Reply

      JRoss,

      That calls for a rimshot.* All the best.

      RGK

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  • Mario Machado
    5 January 2017 at 4:42 pm - Reply

    Great post, Judge.

    Sad irony here is that even if the Third Circuit hadn’t vacated its opinion and the judge would’ve shaved off some months at his resentencing, Mateo-Medina would’ve still likely done some additional time (approx. 4 months, perhaps?!) at an ICE facility while his removal to the Dominican Republic was processed by the government. I call that a non-sentence because he’s in ICE custody for an indeterminate term until he’s put on a plane.

    As for the supervised release, the Third Circuit’s footnote # 42 shows the Court had good intentions for him, but it’s a moot point because he will be sent back to the DR before he ever gets to start that part of his sentence.

    • Richard G. Kopf
      5 January 2017 at 6:20 pm - Reply

      Mario,

      You make an important and terribly sad point.

      Here following is another scenario. It is predicated upon nothing more than a wild guess but I have seen it happen before.

      Perhaps the Third Circuit just realized that USMS and BOP informed ICE early last spring that the guy had already jammed his time and they were obligated to release him. As a result, ICE grabbed him per a detainer, and he waived deportation thinking that the Dominican Republic has better weather. In other words, he was gone by the time the Third Circuit ruled.

      All the best.

      RGK

  • defendergirl
    9 January 2017 at 2:29 pm - Reply

    The BOP website lists his release date as 12/28/2015. SO he went to ICE a year before the initial panel decision issued.

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