A Bureaucratic Achievement

His name is Ezell Gilbert.  And he just got royally fucked.

Actually, he got fucked 14 years ago, on March 25, 1997.  What happened on Thursday is that it became official.

Here's the opening sentence in the 11th Circuit's majority opinion in Gilbert v. United States.  It's pretty much all there.

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.

The very short version.  On that day in March, Gilbert was sentenced to 292 months in prison by a United States District Judge in the Middle District of Florida.  The judge didn't want to give him that much time, but the government convinced him that he had no choice under the sentencing guidelines.*  Gilbert argued then that he was improperly determined to be a career criminal subject to a mandatory enhancement under the guidelines.  The courts rejected that argument.

The thing is that 11 years after he was sentenced, the Supreme Court addressed that very argument (not in his case) and said it was right.  Do all the math again, and it seems that instead of a sentencing range of 292-365 months, Gilbert should have faced a range of 151-188 months.  Oh, and along the way the guidelines stopped being mandatory and became advisory.

Ooops.

So Gilbert went back to court.  The government argued that his original sentence, although wrongly calculated and some 8 1/2 years longer than it should have been, should stand.  Finality and all that.  You just can't fix everything.  Sorry guy.  The district judge agreed.  A panel of the 11th Circuit disagreed, but the government asked the whole court to review the panel's decision which it did.  It said the district court got it right.  Sorry about those 8 1/2 years, but you know, shit happens.

Actually, this particular sort of shit, with variations, happens a lot.

Some poor bastard is arrested illegally or convicted illegally or sentenced illegally or whatever illegally and he ends up having to live with the consequences.  The thing is, it's not usually so brazen.  The other thing is that there's not usually so clear and direct a dissent as this from the Honorable James Clinkscales Hill, Senior Judge (footnotes omitted).

Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22" approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the
savings clause of § 2255 – which appears to permit resort to the Great Writ itself in circumstances such as these – provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error resulting in an additional eight and one-half years of prison time for Gilbert is a mere technicality, a misapplication of the Guidelines that has no remedy because it is not all that important. Gilbert’s erroneous enhancement as a career offender – demanded by the government at the time – is argued to be mere harmless error now that he has been proven right.
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

Two weeks ago, I quoted Judge Rawlinson from the 9th Circuit who observed that if the dissenters in Doody v. Ryan had there way,

we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

Now it's Judge Hill in the 11th Circuit.

Who'll be next to remind us that the emperor has no clothes?

Of course, Presidents have the power to remedy this sort of thing.  Obama could commute Ezell Gilbert's sentence tomorrow.  Don't hold your breath.  P.S. Ruckman, Jr. has the numbers at the Pardon Power blog.  (The boldface is Ruckman's.)

The last 12 presidents have, on average, waited 338 days (.9 years) before granting the first commutation of sentence. President Obama, who has yet to grant a single commutation of sentence, has waited 834 days (or 2.3 years). No president has been slower to grant a commutation of sentence save George W. Bush!

Hey, what's another 8 1/2 years among friends?

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*The sentencing guidelines, if you don't know, are essentially just a grid.  Cross the offense level with the criminal history category and you get a range of months from which the judge was to pick the sentence.