Split Ninth Circuit reverses (yet again) the prison sentence in unique Paul case

Those who follow post-Booker reasonableness review (too) closely may recall that the Ninth Circuit’s unpublished decision in US v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (available here, bogged here), is the only within-guideline sentence reversed as substantively unreasonable.  The Paul case, after resentencing, led to another notable ruling by the Ninth Circuit today in US v. Paul, No. 08-30125 (9th Cir. April 2, 2009) (available here).  Here is how the per curiam majority opinion starts:

 In United States v. Paul, 239 Fed. App’x 353 (9th Cir. 2007) (Paul I), we held that a 16-month sentence imposed on Patricia Betterman Paul for theft from a local government receiving federal funding, a violation of 18 U.S.C. § 666(a)(1)(A), was unreasonable.  Id. at 354. We viewed her case as one that did not fall within the “heartland” of cases to which the Federal Sentencing Guidelines are most applicable, as contemplated by Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2465 (2007) (a court may decide “that the Guidelines sentence should not apply, perhaps because . . . the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply”); cf. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (“any post Booker decision” as to whether a case falls within the heartland “is subject to a unitary review for reasonableness”), and allowed by Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 595 (2007) (rejecting “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside theGuidelines range”).  We vacated the sentence and remanded for resentencing, pointing to four specific mitigating factors that demonstrated the 16-month sentence was unreasonably high.  Paul now appeals the subsequent sentence of 15 months that the district court imposed upon remand. This case presents the question whether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence.  We once more vacate Paul’s sentence, and remand to a different judge for resentencing.

Here is how a lengthy dissent by Judge Hall gets started:

Under the guise of the rule of mandate, the majority seeks to insulate this court’s previous unpublished disposition from intervening Supreme Court and Ninth Circuit precedent. In so doing, the majority demonstrates a complete disregard for the appropriate roles of the sentencing judge and the appellate court.