U.S. v. Ray

Decision Date23 July 2004
Docket NumberNo. 03-30339.,03-30339.
Citation375 F.3d 980
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Victoria L. RAY, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Steven L. Lane, United States Department of Justice, Washington, DC, for the plaintiff-appellant.

Anthony R. Gallagher, Federal Defender of Montana, Great Falls, MT, for the defendant-appellee.

Robert S. Bennett, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for the amicus curiae.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CR-02-00055-DWM.

Before GRABER and CLIFTON, Circuit Judges, and BREWSTER,* District Judge.

GRABER, Circuit Judge.

In this case, the functions of our three branches of government intersect at a novel point. The United States District Court for the District of Montana issued Standing Order No. DWM-28 ("Standing Order"). The Standing Order directed the United States Attorney, within 20 days after sentencing occurs in each criminal case, to assemble and file with the court clerk a report of sentence. The court clerk was to send these reports to the United States Sentencing Commission, in order to satisfy a reporting requirement that Congress has imposed on the courts. We are asked to decide whether the district court exceeded its statutory or inherent authority, or the limits of the Constitution, by issuing the Standing Order.

Before reaching the merits of that question, however, we must consider our jurisdiction to answer it. The United States argues that we have jurisdiction to consider its direct appeal from the district court's order denying its motion to set aside the Standing Order in this criminal case, which was one of the first cases in which the Standing Order's requirements were triggered, even though neither party has appealed with respect to the underlying judgment of conviction. In the alternative if appellate jurisdiction is lacking, the United States petitions for a writ of mandamus.

These questions have divided our panel. Judge Clifton joins in Sections I, II, and III of Judge Graber's opinion. Judge Brewster joins in Sections I, III, and IV of Judge Graber's opinion. Thus, we are unanimous as to Sections I and III, while two judges agree on Sections II and IV. As a result, a majority of our panel concludes that the district court acted within the scope of its statutory and inherent authority when issuing the Standing Order and that the Standing Order did not violate the constitutional doctrine of separation of powers. The Standing Order thus remains in effect.

A. Reporting Requirements Under Federal Sentencing Law

In the Sentencing Reform Act of 1984, Congress created the federal Sentencing Commission as an independent body within the judicial branch. See Pub.L. No. 98-473, 98 Stat. 1837, tit. II, ch. II, § 217 (effective 1987). The Act also created a reporting requirement, which provided that"[t]he appropriate judge or officer shall submit to the Commission in connection with each sentence imposed ... a written report of the sentence." Id. (first codified at 28 U.S.C. § 994(v), later redesignated as 28 U.S.C. § 994(w)).

A 1997 Memorandum of Understanding between the Administrative Office of the United States Courts and the Sentencing Commission, apparently intended to improve compliance with § 994(w)'s reporting requirement, provides insight into how the requirement generally was satisfied:

Most districts ask the probation office to submit the sentencing documents, and this is, as noted, generally being done faithfully. However, particularly where the probation office is not involved in the proceeding, the Chief Judge may want to meet with the United States Attorney's office and others to decide on the most efficient way to submit [post-conviction] changes to the judgment.... These may be sent directly by other entities, or channeled through probation, as the court wishes.

The Memorandum of Understanding set forth the complete list of documents to be submitted as part of the sentencing report and "request[ed] that each Chief Judge designate a procedure by which the ... documents are sent to the Commission."

On April 30, 2003, Congress amended § 994(w)'s reporting requirement. Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (sometimes called the "PROTECT Act"), Pub.L. No. 108-12, 117 Stat. 651, tit. IV, § 401(h) ("Improved Data Collection").1 The text of the basic reporting requirement was amended to read, in part:

The Chief Judge of each district court shall ensure that, within 30 days following entry of judgment in every criminal case, the sentencing court submits to the Commission a written report of the sentence.... 28 U.S.C. § 994(w)(1). The Act also codified the specific list of documents to be submitted in each report. Id. § 994(w)(1)(A)-(F).2

B. The District Court's Standing Order and This Litigation

On May 9, 2003, "[i]n view of the new reporting requirements in the PROTECT Act of 2003," the Chief Judge for the District of Montana issued the Standing Order at issue here. It contains four directives:

1. After sentencing in each case, the United States Attorney shall assemble a "Report of Sentence" that includes the following documents:

(a) a cover page setting forth the sentence, the offense or offenses for which it was imposed, the age, race, and sex of the offender, and all adjustments and departures actually applied in fashioning the sentence;

(b) a copy of the judgment and commitment order;

(c) a copy of the Court's statement of reasons for the sentence imposed;

(d) a copy of any plea agreement;

(e) a copy of each ... charging document filed in the case ...; and

(f) a copy of the presentence report.

2. Within twenty days after sentencing in each case, the United States Attorney shall present to the Clerk of Court, Missoula Division, two copies of the cover page along with the remainder of the Report of Sentence.

3. The Clerk of Court shall mail the Report of Sentence to the Sentencing Commission.

4. In the event a Report of Sentence is not presented within twenty days after sentencing, the Clerk of Court shall report the deficiency to the attention of the Chief Judge.

Also on May 9, 2003, a judgment of conviction was entered in the criminal case of United States v. Victoria L. Ray, No. CR-02-0005-DWM, in the District of Montana. Rather than assemble and file a report of the sentence imposed in that case, pursuant to the Standing Order, the United States Attorney filed a Motion to Set Aside the Standing Order (or, in the alternative, to stay enforcement of the Standing Order pending appellate review).3

After a hearing before the District of Montana's three active judges, the district court denied the motion to set aside the Standing Order.4 In its order dated July 29, 2003 ("July 29 order"), the court explained that, because the District of Montana consists of five dispersed divisions and has no "central hub," the Standing Order was the most efficient way to comply with the statutory reporting requirement. The court held that the Standing Order did not conflict with the PROTECT Act, did not exceed the court's authority, and did not violate the Constitution. On August 1, 2003, the United States appealed from the July 29 order and, alternatively, petitioned for a writ of mandamus.5


Although the United States and the district court agree that we have jurisdiction under 28 U.S.C. § 1291 to consider this appeal, Ray contends that we lack jurisdiction because the underlying criminal matter has been fully adjudicated and thus no case or controversy remains as between the government and Ray.6 This court has an independent obligation to determine its jurisdiction. United States v. Ceja-Prado, 333 F.3d 1046, 1049-50 (9th Cir.2003).

We have "jurisdiction of appeals from all final decisions of the district courts of the United States" in both civil and criminal matters. 28 U.S.C. § 1291. Thus, under § 1291 we must decide whether the district court's July 29 order was a "final decision." We also address Ray's argument that the resolution of the underlying criminal matter makes this appeal moot.

A. The July 29 order was a "final decision."

The Supreme Court has emphasized that the finality requirement is to be given "a `practical rather than a technical construction.'" Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). Under modern doctrine, a "`final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.... The foundation of this policy is not in merely technical conceptions of `finality.' It is one against piecemeal litigation." United States v. One 1986 Ford Pickup, 56 F.3d 1181, 1184 (9th Cir.1995) (per curiam) (quoting Catlin v. United States, 324 U.S. 229, 233-34, 65 S.Ct. 631, 89 L.Ed. 911 (1945)).

An order can be a "final decision" for purposes of § 1291 even if it is not the order terminating the primary litigation. Under the collateral order doctrine announced in Cohen, 337 U.S. at 546, 69 S.Ct. 1221, an order is "final" if it (1) fully disposes of an issue before the court, (2) resolves an issue collateral to the underlying subject of the litigation, and (3) involves an important right otherwise irreparably lost if review had to await final judgment. See United States v. Poland (In re Derickson), 640 F.2d 946, 948 (9th Cir.1981) (per curiam); see also United States v. Friedman, 366 F.3d 975, 979 (9th Cir.2004) (listing Cohen factors). Furthermore, "when post-judgment orders are involved[,][t]he policy against and the probability of piecemeal review is not as decisive a consideration after...

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