United States v.

Gementera 08/30/2009

Court: US Court of Appeals for the Ninth Circuit

• Procedural Posture: Defendant convicted and sentenced at circuit

court level. Appealed to appellate court.

Year: 2004

Disposition: Affirmed.

Issue: Whether wearing a sandwich board stating, “I stole mail. This is my

punishment.” is reasonably related to the objective of rehabilitation ,

protection of the public, and deterrence, under the Sentencing Reform Act.

Facts: Gementera was spotted stealing mail in San Francisco in 2001. He

was immediately detained by the police. He pled guilty to mail theft in the

circuit court. He was sentenced to two months of incarceration and three

months of supervised release, to which the court affixed several stipulations.

The first was writing apologies to the identified victims of his crime; second,

he was to lecture at high schools; and third, and the facet over which

Gementera appealed, was that he must spend one 8-hour day outside a post

office wearing the aforementioned sandwich board.

Holding: The court held that the circuit court’s sentencing was, in fact,

within reasonable relation to rehabilitation and in accordance with the

Sentencing Reform Act and upheld the sentence.

Reasoning: The court investigating both of Gementera’s claims against the

sentence. The first of these was that it violated the SRA. The court found that

the Act requires the sentence to adhere to three purposes: deterrence,

protection of the public, and rehabilitation. Similarly, it must be reasonably

related and not further deprivation of liberty. They found that though

Gementera claimed the court only wished to humiliate him, the record shows

to the contrary. Furthermore, the court suggests that humiliation is inherent

in any sentence or guilty verdict. Gementera also contended that “shaming”

is not reasonably related to rehabilitation. The court found he was unable to

persuade that them the condition was unreasonable (and suggesting it was

not enough to overrule). The found that his particular sentence would do

Gementera more good than a longer sentence in prison.

Law: This decision provides little precedent other than to demonstrate how

to test sentences against the SRA. It does, however, demonstrate a quasi-

acceptance of “shaming” of sorts, which could be useful in other appellate

cases where a defendant feels his or her sentence is meant only for

humiliation (in that sense, though, the precedent would be detrimental and

the client would have to prove that the facts of his/ her case were

distinguishable from the facts of this one).

 08/30/2009

The appellate court is looking at the trial court.

• What becomes so important is the wording of the trial judge.

○ Did he call it humiliation?