§742 Cases Rejecting Variance from Guidelines
1st Circuit affirms guidelines sentence for carjacker who knew rape would occur. (224)(742) Defendant drove her boyfriend to the beach and waited while he carjacked a couple and raped the woman. She pleaded guilty to carjacking and was sentenced to 108 months—the low end of the guidelines range. The First Circuit affirmed, finding the offense was “chilling,” because defendant knew her boyfriend intended to rape before the carjacking happened and she showed no empathy for the carjacking’s victims. U.S. v. Rijos-Rivera, __ F.4th __ (1st Cir. Nov. 21, 2022) No. 21-1721.
8th Circuit upholds drug guidelines sentence despite defendant’s abusive childhood. (240)(742) Defendant was convicted of drug trafficking. The district court sentenced him to 480 months, within the guidelines range. The Eighth Circuit rejected defendant’s claim that he should have received a downward variance because he had an abusive childhood. The district court properly weighed defendant’s mitigating evidence before imposing its sentence. U.S. v. Griggs, __ F.4th __ (8th Cir. Nov. 21, 2022) No. 21-3816.
6th Circuit affirms within-guidelines drug sentence despite lower sentences for codefendants. (240)(742) Defendant was convicted of drug trafficking and was sentenced at the low end of the guideline range—292 months. He argued that his sentence was substantively unreasonable because it was the equivalent of a life sentence and his coconspirators received lesser sentences. The Sixth Circuit found any disparity “well grounded” because the coconspirators were not similarly situated to defendant. U.S. v. Mosley, __ F.4th __ (6th Cir. Nov. 18, 2022) No. 21-1136.
5th Circuit upholds within-guidelines sentence despite co-arrestee’s lower sentence from a different judge. (340)(742) Defendant was found guilty of illegal reentry after deportation and was sentenced to 30 months—at the bottom of the guidelines range. He argued that his sentence was unreasonable because it was greater than his cousin who was arrested with him and sentenced by a different judge. The Fifth Circuit noted that the district court had considered this argument and rejected it, and that is all that is required. U.S. v. Barcenas-Rumualdo, __ F.4th __ (5th Cir. Nov. 18, 2022) No. 21-50795.
7th Circuit upholds guidelines drug sentence despite claim that court failed to consider mitigation. (240) (742) Defendant pleaded guilty to drug trafficking. He was sentenced at the middle of the guidelines range—120 months. Defendant argued that the district court failed to consider his history of abuse and substance abuse. The Seventh Circuit found that the district court had considered defendant’s history and properly noted that defendant had received relatively short sentences in the past. U.S. v. Ramirez, __ F.4th __ (7th Cir. Nov. 8, 2022) No. 21-2587.
6th Circuit reverses within-guidelines sentence for failure to discuss § 3553(a) factors. (215)(742) Defendant was convicted of unlawful imprisonment and domestic assault in Indian country. His guidelines range was 360 to 2,412 months, and the district court sentenced him to 864 months. The Sixth Circuit reversed, finding that the district court did not attempt to justify his sentence in terms of the factors set forth in 18 U.S.C. § 3553(a) and stated only that defendant appeared to lack “moral guardrails.” U.S. v. Johnson, __ F.4th __ (6th Cir. Jan. 31, 2022) No. 19-2488.
5th Circuit affirms guidelines sentence for fraudulently obtaining government benefits. (218)(742) Defendant was sentenced to 51 months—the high end of the guidelines range, for fraudulently obtaining government benefits. Defendant argued that the court failed to adequately consider his background, created disparities, and overstated his culpability. The Fifth Circuit affirmed, finding that the district court properly considered defendant’s arguments and did not err in imposing a within-guidelines sentence. U.S. v. Vargas, __ F.4th __ (5th Cir. Dec. 23, 2021) No. 20-50029.
7th Circuit applies presumption that bribery sentence within guidelines range was reasonable. (230)(742) Defendant was convicted of a scheme to accept bribes, and the court sentenced him to 151 months, the low end of the guidelines range. Defendant argued that the district court failed to consider the disparity that its sentence caused. The Seventh Circuit found that the district court adequately considered any disparity, and ruled that defendant had not overcome the presumption that guidelines sentences are reasonable. U.S. v. Buncich, __ F.4th __ (7th Cir. Dec. 20, 2021) No. 20-2569.
6th Circuit upholds drug guidelines sentence where court considered mitigating factors. (240)(742) Defendant was convicted of drug trafficking. His guidelines range was 360 months to life, and the district court sentenced him to 360 months. Defendant argued that the court failed to consider his lack of a positive role model, his mental health issues, and other mitigating factors. The Sixth Circuit affirmed, noting that the district court explained that it had reviewed the presentence report, which covered those issues, and found that defendant’s criminal history outweighed those factors. U.S. v. Hall, __ F.4th __ (6th Cir. Dec. 16, 2021) No. 20-4128.
8th Circuit affirms within-guidelines sentence, even though sentence was above median. (330)(742) Defendant pleaded guilty to possession of a firearm by a felon, and was sentenced to 96 months—within the guidelines range. He argued that his sentence was substantively unreasonable because the median sentence for his offense was 72 months and any connection between his offense and other criminal conduct was minimal. The Eighth Circuit affirmed, noting that the district court had weighed the 18 U.S.C. § 3553(a) factors. The fact that defendant’s sentence was above the median for similar offenses did not make it unreasonable. U.S. v. McDaniel, __ F.4th __ (8th Cir. Dec. 8, 2021) No. 20-2902.
9th Circuit says downward variance was not too high even though defendant was unaware of drug purity. (240)(742) Defendant pleaded guilty to importing drugs from Mexico, and was sentenced to only 78 months even though her guidelines range was 151 to 188 months. On appeal, defendant argued that she should have been sentenced to 42 months under U.S. v. Mendoza, 121 F.3d 510 (9th Cir. 1997), which held that a court may depart down where the defendant has no control over the purity of the drugs. Reviewing for plain error, the Ninth Circuit held that any error was not so obvious as to require reversal. U.S. v. Reyes, __ F.4th __ (9th Cir. Nov. 26, 2021) No. 20-50016.
4th Circuit says sentence not unreasonable despite possibly lower sentence in state court. (330)(742) Defendant used a firearm to kill a police officer and pleaded guilty to possession of a firearm by a felon. He was sentenced to the statutory maximum of 10 years. On appeal, defendant argued that his sentence was substantively unreasonable because his sentence in state court would have been lower. The Fourth Circuit rejected the argument, ruling that the possibility of a lower sentence for the same conduct under state law does not make a federal sentence unreasonable. U.S. v. Ball, __ F.4th __ (4th Cir. Nov. 18, 2021) No. 20-4340.
5th Circuit upholds within-guidelines meth sentence despite mitigating factors. (240)(742) Defendant pleaded guilty to methamphetamine trafficking. His guidelines range was 240 months because of the statutory maximum, and the district court sentenced him to 240 months. Defendant argued that the court failed to give adequate weight to character letters submitted on defendant’s behalf, his childhood, his renunciation of his gang affiliation, his decision to raise children not biologically related to him, and the district court’s treatment of the methamphetamine as “ice,” because of its purity. The Fifth Circuit found the sentence reasonable because of defendant’s criminal history and the size of the methamphetamine conspiracy. U.S. v. Rebulloza, __ F.4th __ (5th Cir. Nov. 2, 2021) No. 20-11027.
1st Circuit finds downward variance was not too high despite changing views about marijuana. (330)(742) Defendant convicted of bank robbery and sentenced to 144 months—well below the low end of his guidelines range as a career offender. Defendant argued that his sentence was unreasonable in part because one of his prior convictions was for a marijuana offense, and there has been a “sea change” in attitudes toward marijuana in recent years. The First Circuit affirmed, noting that federal marijuana laws have not changed, and the below-guideline sentence was not unreasonable. U.S. v. Crocco, __ F.4th __ (1st Cir. Sept. 27, 2021) No. 19-2140.
6th Circuit affirms within-guidelines kidnapping sentence despite mental health claim. (215)(742) Defendant pleaded guilty to kidnapping and firearms offenses, and was sentenced at the top of the guideline range, 192 months. On appeal, the Sixth Circuit ruled that the district court properly considered defendant’s mental health claims, and defendant failed to carry his burden to show that his guidelines sentence was unreasonable. U.S. v. Kerns, __ F.4th __ (6th Cir. Aug. 12, 2021) No. 20-1563.
8th Circuit affirms within-guidelines firearms sentence despite upbringing and addiction claims. (330) (742) Defendant pleaded guilty to possession of ammunition by a felon, and was sentenced to 105 months, the top of the guidelines range. He argued that his sentence was greater than necessary to achieve its purposes, valued punishment over drug treatment, and gave too little consideration of his upbringing and addiction to drugs. The Eighth Circuit found that the district court had considered and rejected these factors, and upheld the sentence. U.S. v. Merret, __ F.4th __ (8th Cir. Aug. 9, 2021) No. 20-1368.
8th Circuit affirms within-guidelines drug sentence despite mitigating evidence. (240)(742) Defendant pled guilty to drug-trafficking and firearms offenses and was sentenced to 110 months—the middle of the guidelines range. On appeal, he argued that the district court improperly weighed the factors in 18 U.S.C. § 3553(a) and did not consider his mitigating evidence. The Eighth Circuit affirmed, finding that the district court properly weighed the factors, and adequately considered defendant’s difficult childhood, his children, and his future employment prospects. U.S. v. Merret, __ F.4th __ (8th Cir. Aug. 9, 2021) No. 20-1368.
5th Circuit upholds within-guidelines sentence, finding small explanation sufficient. (340)(742) Defendant was convicted of immigration offenses, and the district court sentenced him to 78 months, the low end of the guidelines range. The Fifth Circuit affirmed, finding that the district court satisfied its burden to give a small explanation for the within-guidelines sentence and noting that the codefendants were not similarly situated to defendant. U.S. v. Gaspar-Felipe, __ F.3d __ (5th Cir. July 13, 2021) No. 19-50997.
8th Circuit affirms guidelines sentence despite defendant’s health problems. (224)(742) Defendant robbed a bank and was sentence at the low end of the guidelines range, 210 months. Defendant argued that due to his multiple sclerosis, 210 months exceeded his life expectancy. The Eighth Circuit affirmed, noting that the district court had decided that other factors outweighed defendant’s health. Defendant failed to rebut the presumption that a within-guidelines sentence is reasonable. U.S. v. Sisk, __ F.3d __ (8th Cir. June 3, 2021) No. 20-1478.
7th Circuit holds properly calculated guideline sentence cannot be unreasonably disparate. (218)(716) (742) Defendant was convicted of fraud and sentenced at the low end of the guidelines range, 41 months. He argued that his sentence violated 18 U.S.C. § 3553(a)(6), because it was disparate to other sentences for the same offense. The Seventh Circuit held that a sentence within a properly calculated sentencing range cannot be unreasonable under § 3553(a)(6). U.S. v. Jarigese, __ F.3d __ (7th Cir. June 2, 2021) No. 20-1485.
11th Circuit says court need not consider prison conditions in sentencing child sex offender. (310)(742) Defendant was convicted of attempting to entice a minor to commit unlawful sexual conduct and one count of crossing state lines to engage in sexual activity with a person under 12. His guidelines range was 30 years to life, and the district court sentenced him to 35 years. Defendant argued that his sentence was substantively unreasonable because no child was actually hurt and because a person convicted of child sex crimes faces “a living hell” in prison. The Eleventh Circuit held that the district court properly relied on the 18 U.S.C. § 3553(a) factors and that the treatment defendant would receive in prison is not a § 3553(a) factor. U.S. v. Castaneda, __ F.3d __ (11th Cir. May 19, 2021) No. 19-12623.
5th Circuit applies presumption of reasonableness to within-guidelines drug and gun sentence. (742) Defendant was convicted of firearm and drug offenses. His guidelines range was 168 to 210 months, and the district court sentenced him to 192 months. Defendant argued that his sentence was substantively unreasonable. The Fifth Circuit applied a presumption of reasonableness to within-guidelines sentences and held that the sentence was not unreasonable. U.S. v. McLaren, __ F.3d __ (5th Cir. May 18, 2021) No. 17-30524.
5th Circuit reverses downward variance and remands terrorism resentencing to a different judge. (197)(345) (742) Defendant pleaded guilty to providing material support to a foreign terrorist organization. The district court varied downward and sentenced him to 18 months. The government appealed, and the Fifth Circuit reversed for failure to apply the terrorist enhancement in § 3A1.4. On remand, the district court imposed the same sentence, and on appeal, the Fifth Circuit reversed again, ruling that the district court failed to give significant weight to the seriousness of the offense, which included recruiting for ISIS. The panel ordered the case to be reassigned to a different judge on remand, because the district judge had characterized the government attorneys as “lazy, useless, unintelligent, or arrogant” and “thugs.” U.S. v. Khan, __ F.3d __ (5th Cir. May 6, 2021) No. 20-20030.
10th Circuit upholds guidelines sentence for defendant who used firearm to kill his father. (330)(742) Defendant pleaded guilty to possession of a firearm by a defendant convicted of a domestic violence crime. Defendant used the gun to murder his mentally unstable father, who also had a gun. He was sentenced to 120 months, within the guidelines range. On appeal, defendant argued that his sentence was unreasonable because (1) Oklahoma charged him with voluntary manslaughter, not first-degree murder; (2) he believed his possession of the firearm was lawful; (3) he “felt immediate, deep remorse for the death of his father”; and (4) he “did not intend to kill his father.” The Tenth Circuit rejected these arguments, agreeing with the district court that this was not an ordinary case of illegal possession of a firearm. U.S. v. Craine, __ F.3d __ (10th Cir. Apr. 30, 2021) No. 19-6189.
1st Circuit affirms guidelines sentence where court weighed mitigating evidence. (330)(742) Defendant pleaded guilty to possession of a firearm by a felon, and was sentenced to 46 months—the top of the guidelines range. Defendant argued that the court failed to consider his intellectual disability and the fact that his sentence was disparate under 18 U.S.C. § 3553(a)(6). The First Circuit found no error, noting that the court specifically considered defendant’s intellectual disability and stated that it had considered all of the § 3553(a) factors. U.S. v. Ayala-Lugo, __ F.3d __ (1st Cir. Apr. 29, 2021) No. 18-2107.
6th Circuit upholds guidelines sentence for illegal reentry. (340)(742) Defendant was sentenced to 37 months, the low end of the guidelines range for reentry after deportation. On appeal, he argued that the district court gave too much weight to his prior conviction before deportation and his prior conviction after his illegal reentry. The Eleventh Circuit found that the district court properly considered the factors set forth in 18 U.S.C. § 3553(a). The sentence was substantively reasonable. U.S. v. Osorto, __ F.3d __ (11th Cir. Apr. 20, 2021) No. 19-11408.
5th Circuit affirms child porn sentence despite nationwide statistics on disparity. (310)(742) Defendant was convicted of possessing child pornography, and sentenced within the guidelines. On appeal, he argued that the district court failed to consider the disparity his sentence caused, because the average child pornography sentence was less than half the sentence he received. The Fifth Circuit found that defendant had not rebutted the presumption that sentences within the guidelines are reasonable and defendant’s reliance on nationwide statistics was “irrelevant” without knowing the facts of the other defendant’s offenses. U.S. v. Naidoo, __ F.3d __ (5th Cir. Apr. 19, 2021) No. 20-60730.
8th Circuit affirms drug dealer’s guidelines sentence despite mitigating factors. (240)(742) The district court sentenced defendant to 168 months, at the bottom of his drug guidelines range. It rejected his argument for a downward variance based on mental health, drug addiction, and lack of youthful guidance. The Eighth Circuit affirmed, finding that the district court “thoroughly discussed” the applicable factors, and the sentence was not substantively unreasonable. U.S. v. Ford, __ F.3d __ (8th Cir. Feb. 17, 2021) No. 20-1573.
11th Circuit upholds life sentence for child pornographer who abused his daughters. (310)(742) Defendant took sexually explicit videos of his daughters and distributed them on the internet. He pleaded guilty to enticing a minor to engage in sexual activity and producing a sexually explicit video, and distributing child pornography. The district court sentenced him to life imprisonment—within the guidelines. Defendant argued that the district court gave too much weight to the guidelines and too little weight to his redeeming qualities. The Eleventh Circuit affirmed, noting that defendant had over 100 victims, repeatedly sexually abused his daughters, recorded the incidents, shared them on the internet, and planned to escalate his abuse in the future. He continued his behavior despite an earlier conviction, a pending prosecution, and court supervision, and he encouraged others to abuse their own daughters. He also possessed a cache of disturbing child pornography. U.S. v. Trader, __ F.3d __ (11th Cir. Nov. 25, 2020) No. 17-15611.
11th Circuit affirms guidelines sentence where court did not consider unrelated offenses. (240)(742) At trial, defendant was convicted of several drug trafficking offenses. His guidelines range was 210 to 262 months, and the district court sentenced him to 262 months. Defendant argued that the sentence was substantively unreasonable because the district court had considered unrelated offenses. The Eleventh Circuit disagreed, noting that the district court said it presumed defendant was innocent on one unrelated charge, and that the sentence at the high end of the range was based on the quantity of drugs. U.S. v. Joseph, __ F.3d __ (11th Cir. Oct. 27, 2020) No. 19-11198.
1st Circuit upholds within-guidelines sentence for possession of machinegun. (330)(742) Defendant pleaded guilty to possession of a machinegun. His guidelines range was 37 to 46 months, and the district court sentenced him to 42 months. Defendant argued that his sentence was substantively unreasonable because the district court had considered an enhancement that it should not have. The First Circuit found that the district court properly considered the enhancement and that the district court weighed the appropriate factors in applying a guidelines sentence. U.S. v. Reyes-Torres, __ F.3d __ (1st Cir. Oct. 27, 2020) No. 18-2170.
1st Circuit upholds 2,160-month sentence for child molester. (310)(742) Defendant committed a number of crimes involving sex with minors, including raping his 14-year-old daughter. His guidelines range was life, but the district court sentenced him to 2,160 months—the total of the statutory maximums for all of his offenses. The First Circuit affirmed, holding that the court properly relied on the seriousness of the offense, and that the sentence amounted to a life sentence, which was in accord with the guidelines. U.S. v. Gaccione, __ F.3d __ (1st Cir. Oct. 2, 2020) No. 19-1680.
5th Circuit does not require detailed reasons for sentence within the guidelines. (310)(742) Defendant pleaded guilty to trafficking a 14-year-old girl for sex. His guidelines range was 360 months to life, and the district court sentenced him to 600 months. On appeal, the Fifth Circuit held that the district court was not required to state its reasons at length when imposing a sentence within the guidelines, but noted that the psychological damage done to defendant’s victim warranted a long sentence. U.S. v. Smith, __ F.3d __ (5th Cir. Oct. 8, 2020) No. 19-30711.
5th Circuit declines to re-weigh factors for within-guidelines sentence. (240)(742) Defendant tried to import marijuana into the U.S. At sentencing, the district court imposed a within-guidelines sentence of 27 months. Defendant argued that his sentence was substantively unreasonable because he had a clean record, cooperated with authorities, and maintained employment while on pretrial release. The Fifth Circuit found that the district court had considered the applicable factors, and it was not appropriate for the panel to reweigh the factors on appeal. U.S. v. Hinojosa-Almance, __ F.3d __ (5th Cir. Oct 7, 2020) No. 19-50942.
11th Circuit affirms within-guidelines sentence imposed on doctor. (240)(742) Defendant, a physician, was convicted of distributing controlled substances by over-prescribing drugs. The district court called him “an arrogant monster,” but sentenced him to the low end of the guideline range–235 months. Defendant argued that his sentence was substantively unreasonable because the district court failed to consider mitigating evidence. On appeal, the Eleventh Circuit found no error, ruling that the district court had considered the mitigating evidence. U.S. v. Gayden, __ F.3d __ (11th Cir. Oct. 9, 2020) No. 18-14182.
8th Circuit affirms within-guidelines life sentence for sexual abuse of minor. (215)(742) Defendant was convicted of aggravated sexual abuse of a minor based on his having sex with a 14-year-old girl. His guidelines range was life, and the district court sentenced him to life. Defendant argued that his sentence was substantively unreasonable and that he should have received the 30-year mandatory minimum sentence because he would be in his 80s when released and he would pose little danger of recidivating. The Eighth Circuit found the sentence was not substantively unreasonable, and the district court did not err in declining to grant a downward variance. U.S. v. Free, __ F.3d __ (8th Cir. Oct. 1, 2020) No. 19-3287.
8th Circuit upholds guideline child porn sentence despite mitigating evidence. (310)(742) Defendant was sentenced within the guidelines for producing child pornography. Defendant argued the sentence was substantively unreasonable because the district court did not weigh his mitigating factors, including (1) his lack of significant criminal history, (2) the sexual abuse he suffered as a child, (3) his age in relation to the sentence, (4) his profound remorse, (5) his early acceptance of responsibility, and (6) his amenability to treatment. The Eighth Circuit affirmed the sentence, finding that the district court specifically considered some of these factors and it could be inferred that it considered the other factors as well. U.S. v. Campbell, __ F.3d __ (8th Cir. Sept. 24, 2020) No. 19-3226.
6th Circuit, on second appeal, finds downward variance in child porn case still unreasonable. (197)(310) (742) Defendant pleaded guilty to possession of child pornography. His guidelines range was 97 to 120 months. The district court sentenced him to 12 months. The government appealed, and the Sixth Circuit found the sentence substantively unreasonable. On remand, the district court imposed the same sentence, criticizing the Sixth Circuit for “second-guessing” the sentence and stating that defendant’s conduct was “less exaggerated” than the Sixth Circuit realized. The Sixth Circuit again reversed, ruling that the sentence remained substantively unreasonable. The court ordered the case reassigned to a different judge on remand. U.S. v. Schrank, __ F.3d __ (6th Cir. Sept. 14, 2020) No. 19-5903.
1st Circuit upholds within-guidelines child porn sentence. (310)(742) Defendant pleaded guilty to possession of child pornography. His guidelines range was 97 to 121 months. The district court sentenced him to 97 months, rejecting his argument that he should receive time served and explaining that because the offense victimized young children, a guidelines sentence was appropriate. The First Circuit affirmed, finding that the district court did not accord too much weight to the offense, the child pornography guidelines do not result in sentences that are more severe than necessary, and the images defendant possessed were of very young children. U.S. v. Gomera-Rodríguez, __ F.3d __ (1st Cir. Feb. 28. 2020) No. 18-1605.
8th Circuit finds court adequately considered that defendant was 70 years old. (310)(742) Defendant was a 70-year old who pleaded guilty to receiving child pornography and was sentenced to 120 months, within the guidelines range. In explaining its sentence, the district court considered defendant’s age, but did not articulate how much weight it gave this factor. The Eighth Circuit held that the district court was not required to explain how much weight it gave individual factors. U.S. v. Hoeffener, __ F.3d __ (8th Cir. Feb. 24, 2020) No. 19-1192.
4th Circuit says guideline sentence for sex with minor was not disparate. (310)(742) Defendant pleaded guilty to having sex with a minor in a foreign country, and was sentenced to 278 months, in the middle of the guidelines range. He argued that the district court failed to consider his argument that he should receive a lower sentence because of a disparity with other defendants who have committed the same crime. The Fourth Circuit affirmed, finding that the district court heard extensive argument on the applicable factors and provided an adequate explanation for its sentence. U.S. v. Arbaugh, __ F.3d __ (4th Cir. Feb. 20, 2020) No. 18-4575.
11th Circuit says defendants’ decision to go to trial did not affect denial of downward variance. (742) Defendants were convicted of trying to import 614 kilograms of cocaine. The district court sentenced defendants within the guidelines range. On appeal, defendants argued that the district court should have varied downward because the decision to sentence within the guidelines was a result of their decision to go to trial. The Eleventh Circuit held that although the district court mentioned defendants’ exercise of their right to trial, that factor did not affect their sentences. U.S. v. Cabezas-Montano, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.
11th Circuit affirms within-guidelines drug sentences despite failure to mention individual histories. (240) (742) Defendants were convicted of drug trafficking and received sentences in the guidelines range. Defendants argued that the district court looked only to the seriousness of their offense and the need to deter others and did not consider their individual histories. The Eleventh Circuit held that although the district court did not mention defendants’ individual histories, it did consider them, as shown by the district court’s familiarity with the presentence report, defendants’ allocutions, and defendant’s arguments. U.S v. Cabezas-Montano, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.
8th Circuit says below-guidelines sentence was not too high despite mitigating factors. (240)(742) Defendant was convicted of drug trafficking for running a wide-spread heroin trafficking organization. His guidelines range was 292 to 365 months, and the district court sentenced him to 365 months. Defendant argued that he should have been sentenced to the statutory minimum of 240 months because his parents abused him and were engaged in criminal activity and because his prior convictions were 20 years old. The Eighth Circuit found that the district court reasonably concluded that the aggravating factors outweighed the mitigating factors. U.S. v. Outlaw, __ F.3d __ (8th Cir. Jan. 8, 2020) No. 18-2958.
2d Circuit reverses terrorist’s below-guidelines sentence as substantively unreasonable. (742) Defendant sought to aid a foreign terrorist organization. When federal agents came to search his house, he tried to stab one of them with an 8-inch kitchen knife. Defendant pleaded guilty to providing material support to a foreign terrorist organization under 18 U.S.C. § 2339A, and assaulting a federal officer under 18 U.S.C. § 111. His criminal history score was VI, his guidelines range was life, and the statutory maximum was 1,020 months. The district court sentenced him to 204 months. The government appealed, and the Second Circuit found the sentence substantively unreasonable for three reasons: (1) the court improperly found that the 8-inch knife was not a dangerous weapon; (2) defendant’s 17-year sentence was disproportionate to the 18-year sentence imposed on defendant’s accomplice, and (3) the court gave too much weight to defendant’s youth, his lack of disciplinary infractions during pretrial detention, and the support he received from his family. U.S. v. Mumuni, __ F.3d __ (2d Cir. Dec. 27, 2019) No. 18-1604.
8th Circuit upholds below-guidelines child porn sentence despite claim that guidelines are too harsh. (310)(741) Defendant was convicted after trial of receiving and distributing child pornography. His guidelines range was 168 to 210 months, but the district court varied downward to 108 months because of defendant’s lack of criminal history, diagnosis of obsessive-compulsive disorder, and the fact that child pornography formed a small part of defendant’s pornography collection. Defendant argued that the court should have varied down further based on his lack of criminal history and the harshness of the child pornography guidelines. The Eighth Circuit rejected these arguments, finding that the court adequately considered these factors. U.S. v. Fletcher, __ F.3d __ (8th Cir. Dec, 23, 2019) No. 18-3342.
7th Circuit says within-guidelines RICO sentence was not disparate. (290)(742) Defendant pleaded guilty to RICO conspiracy. His guidelines range was 188 to 235 months. The district court sentenced him to 188 months. Defendant argued that his sentence was substantively unreasonable. Defendant sought to be sentenced similarly to another member of the conspiracy who had not yet been sentenced and to other members of the same gang. The district court declined because the other conspiracy member had not pleaded guilty to acts of violence, defendant had a more extensive criminal history, and the other conspiracy member had agreed to cooperate with the government. The other members of the same gang had admitted only to drug trafficking. The Seventh Circuit held that the district court gave “more consideration than the law requires” to defendant’s disparity claim. U.S. v. Porraz, __ F.3d __ (7th Cir. Nov. 27, 2019) No. 18-3545.
7th Circuit upholds within-guidelines life sentence despite mitigation claims. (210)(215)(742) Defendant kidnapped a woman, raped her, set her on fire, and left her to die. He pleaded guilty to kidnapping, attempted murder, and using fire to commit a felony. While in pretrial detention, he threatened to kill a caseworker and pressed a homemade knife against her throat. At sentencing the district court imposed a guidelines sentence of life in prison. Defendant argued that his sentence was substantively unreasonable because the district court failed to address his acceptance of responsibility as a mitigating factor and instead based its sentence on aggravating factors. The Seventh Circuit found no error, noting that the district court “at least implicitly” considered defendant’s acceptance of responsibility by noting that defendant often minimized his role in his crimes. U.S. v. Clay, __ F.3d __ (7th Cir. Nov. 25, 2019) No. 19-1223.
5th Circuit upholds guidelines sentence despite claim that it was based on inaccurate information. (251) (742) Defendant pleaded guilty to methamphetamine trafficking. His guidelines range was 188 to 235 months, and he was sentenced to 235 months. Defendant argued that his sentence was substantively unreasonable because the district court relied on inaccurate information. The Fifth Circuit found that the district court did not rely on inaccurate information, and that the sentence was not substantively unreasonable. U.S. v. Kearby, __ F.3d __ (5th Cir. Nov. 25, 2019) No. 18-10874.
7th Circuit says court is not required to reject child pornography guideline on policy grounds. (310)(742) Defendant was convicted of child pornography offenses and obstruction of justice. His guidelines range was 108 to 135 months. The district court sentenced him to 120 months. He argued that the child pornography guidelines in § 2G2.2 resulted in an unreasonably long guideline range, and the district court should have rejected them on policy grounds. The Seventh Circuit found no error, ruling that the district court cannot be compelled to reject a guideline on policy grounds. U.S. v. Grisanti, __ F.3d __ (7th Cir. Nov. 22, 2019) No. 19-1576.
2d Circuit finds within-guidelines drug sentence reasonable despite defendant’s difficult upbringing. (240)(742) Defendant pleaded guilty to running a large drug-trafficking organization. The guidelines range was 121 to 151 months, and the court sentenced defendant to 151 months. Defendant argued that the court failed to factor in his difficult upbringing and that his criminal history category of II overstated his criminal history. The Second Circuit found defendant’s upbringing was “searing,” but the sentence was not unreasonable. The district court reasonably concluded that the harm defendant had caused to the community outweighed his criminal history. U.S. v. Albarran, __ F.3d __ (2d Cir. Nov. 15, 2019) No. 17-2018.
4th Circuit upholds within-guidelines sentence imposed on police officers. (742) Defendants were police officers convicted of RICO conspiracy and Hobbs Act robbery. They had a guidelines range of 210 to 262 months. The district court sentenced them to 216 months. Defendants relied on Koon v. U.S., 518 U.S. 81 (1996), to argue the court should have granted a downward variance because as former police officers they would be likely targets for abuse in prison. The Fourth Circuit held that although Koon supported a downward variance, it did not compel one, and upheld defendants’ sentences. U.S. v. Taylor, __ F.3d __ (4th Cir. Nov. 5, 2019) No, 18-4414.
8th Circuit finds disparity within district does not make sentence substantively unreasonable. (240)(742) Defendant pleaded guilty to trafficking in ice methamphetamine in the Northern District of Iowa. The guidelines set a higher offense level for ice than for a mixture containing methamphetamine. Defendant sought a downward variance because the other judges in the Northern District of Iowa have disagreed with the ice guideline, and sentence ice defendants as if they had been convicted of a mixture of methamphetamine. The district court refused to vary downward and sentenced defendant within the guidelines range. The Eighth Circuit found defendant’s contention that he should have received a downward variance “frivolous” and held that the sentence was not substantively unreasonable. U.S. v. Heim, __ F.3d __ (8th Cir. October 18, 2019) No. 18-2987.
11th Circuit finds 437-month sentence for armed bank robberies was reasonable. (224)(330)(742) Defendant was found guilty of two counts of bank robbery, two counts of brandishing a firearm during and in relation to a crime of violence, and one count of possession of a firearm by a felon. He received the mandatory minimum 384 months on the two counts of brandishing a firearm during a crime of violence and 63 months on the other three counts, for a total of 437 months. On appeal, he argued that 384 months was a sufficient sentence and that he should not have received 63 months more because he would be 57 when he finished the 384-month sentence and additional time was not necessary to protect the public. The Eleventh Circuit found that the district court had considered all applicable factors and held that the sentence was not substantively unreasonable. U.S. v. Pearson, __ F.3d __ (11th Cir. Oct 15, 2019) No. 17-14619.
8th Circuit finds no unwarranted disparity in 60-year sentence for child exploitation. (330)(742) Defendant pleaded guilty to two counts of attempted sexual exploitation of a minor. His guidelines range was life imprisonment. The district court imposed two consecutive sentences at the statutory maximum of 30 years on defendant. On appeal, defendant argued that his 60-year sentence was substantively unreasonable because it created a disparity with other sexual exploitation cases. The Eighth Circuit held that the sentence was substantively reasonable and that the district court had considered disparity when imposing the sentence. U.S. v. Williams, __ F.3d __ (8th Cir. Aug. 16, 2019) No. 18-2422.
5th Circuit rejects using national averages to show disparity in child porn sentences. (310)(742) Defendant was convicted of possession of child pornography, and his sentencing range was 262 to 327 months. The district court varied down to 180 months, but defendant appealed, arguing that the district court should have found that his sentence was improperly disparate, based on national averages for child pornography sentences. The Fifth Circuit rejected the argument, finding that national averages are unreliable in showing unwarranted disparity because they do not reflect the details and adjustments for aggravating or mitigating factors that distinguish individual cases. U.S. v. Waguespack, __ F.3d __ (5th Cir. Aug. 15, 2019) No. 18-30813.
8th Circuit relies on defendant’s statements at sentencing to affirm sentence at top of range. (251)(742) Defendant was convicted of two offenses involving methamphetamine. His guidelines range was 168 to 210 months, and the district court sentenced him to 210 months. The district court relied in part on defendant’s statements at sentencing repeating his false testimony at trial and accusing his attorney of conspiring with the government. On appeal, the Eighth Circuit affirmed, observing that the district court had identified “several factors” in sentencing at the top of the guidelines range and that it was proper to rely on defendant’s statements at sentencing. U.S. v. Felicianosoto, __ F.3d __ (8th Cir. Aug. 15, 2019) No. 18-2493.
10th Circuit finds that district court considered mitigating factors. (310)(742) Defendant pleaded guilty to possession of child pornography. Although his guidelines range was 135 to 168 months, the district court varied upward to the statutory maximum 10 years, Defendant argued that this was too long, and the district court failed to give sufficient weight to his difficult childhood, mental health, and military service. The Tenth Circuit found that the district court had mentioned defendant’s mitigating circumstances. The length of a sentence was not a factor rendering it substantively unreasonable. U.S. v. Blair, __ F.3d __ (10th Cir. Aug. 13, 2019) No. 18-1220.
1st Circuit rejects variety of challenges to child porn sentence. (310)(742) Defendant pleaded guilty to possession of child pornography. His guideline range was 78 to 87 months, and the district court sentenced him to 87 months. On appeal, he argued that the court failed properly to consider the applicable factors, the need to avoid unwarranted sentencing disparities, and its ability to disagree with the guidelines. Defendant also argued that the sentence was substantively unreasonable because the court erroneously weighed the impact of his offense on the child pornography market. The First Circuit found that the district court had stated that it considered the applicable factors and that its statement of reasons included sentencing disparity, and that the district court understood its discretion to vary downward from the guidelines sentence and take into account defendant’s impact on the market for child pornography. U.S. v. Hassab-Saleh-Mohamed, __ F.3d __ (1st Cir. July 9, 2019) No. 18-1883.
10th Circuit applies presumption of reasonableness to within-guidelines sentence for robbery (224)(742) Defendant pleaded guilty to bank robbery. His guidelines range was 151 to 188 months, and the court sentenced him to 188 months. On appeal, defendant argued that his sentence was substantively unreasonable because he had been driven to commit the bank robbery by his gambling and substance abuse problems, he did not threaten the teller or use a weapon, and he had a difficult childhood. The Tenth Circuit held that defendant had failed to overcome the presumption that a sentence within the guidelines range was reasonable, noting that he had unsuccessfully presented the same arguments to the district court. U.S. v. Paris, __ F.3d __ (10th Cir. June 25, 2019) No. 18-6216.
8th Circuit upholds within-guidelines sentence despite claim that court failed to consider mitigation. (330) (742) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 70 to 87 months, and the district court sentenced him to 70 months. Defendant argued that his sentence was substantively unreasonable because the district court had not weighed his mitigating personal history. The Eighth Circuit affirmed, noting that the district court found that the mitigating circumstances were outweighed by other aggravating circumstances, including defendant’s participation in a violent gang and lengthy criminal history. U.S. v. Williams, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1273.
11th Circuit affirms 30-year sentence for 60-year-old child molester. (310)(742) Defendant pleaded guilty to sexually molesting his step-granddaughter. He had an offense level of 43, which normally would produce a guidelines range of life, but because the statutory maximum was 30 years, the district court sentenced him to 30 years. Defendant argued that this sentence was substantively unreasonable because he was 60 years old and would not survive a 30-year sentence. The Eleventh Circuit noted that the district court had considered defendant’s age but ultimately concluded that the nature of the offense outweighed any age-related concerns. The panel found no abuse of discretion. U.S. v. Fox, __ F.3d __ (11th Cir. June 13, 2019) No. 18-10723.
6th Circuit applies presumption that sentence below guidelines is almost always reasonable. (215)(742) Defendant was convicted of abusive sexual contact based on conduct with his six-year-old son. His sentencing range was 360 months to life, but the district court varied downward to 288 months. On appeal, he argued that his sentence was excessive in light of the purposes of sentencing. The Sixth Circuit affirmed, finding that defendant failed to explain why his sentence was excessive, and applying a presumption that a sentence below the guidelines is almost always reasonable. U.S. v. Wandahsega, __ F.3d __ (6th Cir May 21, 2019) No. 18-1187.
6th Circuit affirms child porn sentence within range, finding defendant minimized his offense. (310)(742) Defendant pleaded guilty to receiving child pornography. The district court sentenced him to the low end of his guideline range of 135 to 168 months. On appeal, defendant argued that the sentence was substantively unreasonable, because he had not committed more crimes than those to which he had pleaded guilty, and had not sought to minimize his offenses. The Sixth Circuit applied the presumption that sentences within the guidelines are reasonable, noting the “extensive and disturbing” child porn collection that defendant possessed. The court found that defendant had minimized his offense and commended the district court for listening to both sides before imposing sentence U.S. v. Muchow, __ F.3d __ (6th Cir. May 8, 2019) No. 18-3738.
11th Circuit finds adequate support for fraud and identity theft sentence. (218)(742) Defendant was convicted of fraud and identity theft after a trial. Defendant’s guidelines range was 51 to 63 months, plus a consecutive 24-month mandatory minimum on the identity theft conviction. The district court sentenced defendant to 60 months under the guidelines and 24 months for his identity theft conviction for a total of 84 months. On appeal, defendant claimed that his sentence was substantively unreasonable because of the nature and circumstances of his offenses, the need to reflect the seriousness of the offenses, and the need to protect the public. The Eleventh Circuit rejected defendant’s claims, finding that that the district court had adequately considered applicable factors. Applying the presumption that within-guidelines sentences are reasonable, the panel found no abuse of discretion. U.S. v. Delva, __ F.3d __ (11th Cir. Apr. 29, 2019) No. 16-12947.
10th Circuit finds probationary sentence for child porn substantively unreasonable. (310)(742) Defendant pleaded guilty to possessing child pornography. His offense level was 28, and he fell into criminal history category III, for a guidelines range of 97 to 121 months. The district court announced its intention to sentence defendant to 72 months, but after hearing argument, the court imposed a sentence of five years’ probation because of defendant’s recovery from drug addiction, success at a new job, and family support. On the government’s appeal, the Tenth Circuit found the sentence substantively unreasonable because the district court did not discuss the factors set forth in 18 U.S.C. § 3553(a) and provided “limited and inconsistent” reasons for varying downward. U.S. v. Cookson, __ F.3d __ (10th Cir. Apr. 26, 2019) No. 18-3070.
1st Circuit says within-guidelines drug sentence was adequately explained. (240)(742) Defendant pleaded guilty to drug offenses pursuant to a plea agreement that set his offense level at 25, after defendant received enhancements for firearms and leadership. At sentencing, the district court found that defendant had an offense level of 27, and sentenced him to 25 months more than recommended by the plea agreement. This was within the guidelines range, but greater than several codefendants’ sentences. The First Circuit found no error, noting that the district court discussed the factors in 18 U.S.C. § 3553(a), including defendant’s age, dependents, employment, education, health, upbringing, history, and likelihood of recidivism. U.S. v. González-Barbosa, __ F.3d __ (1st Cir. Apr. 8, 2019) No. 17-1688.
8th Circuit finds within-guidelines racketeering sentence is not grossly excessive. (290)(742) A jury convicted defendant of murder in aid of racketeering and use of a firearm during and in relation to a crime of violence. His guidelines range was 360 months to life, and he received a sentence of 380 months. On appeal, defendant argued that his sentence was “grossly excessive” because he would have received a lower sentence in state court and he was not subject to the Armed Career Criminal Act, as originally thought. The Eighth Circuit found the sentence was not substantively unreasonable. U.S. v. Morris, __ F.3d __ (8th Cir. Mar. 20, 2019) No. 17-2979.
1st Circuit upholds 40-year sentence against claim that it did not allow for rehabilitation. (310)(742) Defendant, convicted of three counts of molesting boys, received a within-guidelines sentence of 40 years. On appeal, he challenged this sentence as substantively unreasonable because it was effectively a life sentence that did not give him an opportunity to rehabilitate himself. The First Circuit found that the district court reasonably weighed the applicable factors and defendant had provided no reason why his within guidelines sentence was unreasonable. U.S. v. Santiago-Colon, __ F.3d __ (1st Cir. Mar. 19, 2019) No. 15-2088.
1st Circuit upholds firearms sentence based on history and supervised release status. (330)(742) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 57 to 71 months. At sentencing, the district court stated that it had considered all the factors under 18 U.S.C. § 3553(a) and expressly noted defendant’s personal and criminal history, the nature of the offense, the type of weapon involved, the amount of ammunition that defendant possessed, and his supervised release status at the time of the offense. The court also addressed defendant’s request for a departure based on the possible recurrence of cancer that he faced. The court sentenced defendant to 71 months. The First Circuit found that the district court had not procedurally or substantively erred in sentencing defendant. U.S. v. Ortiz-Mercado, __ F.3d __ (1st Cir. Mar. 29, 2019) No. 17-1383.
8th Circuit upholds sentence within guidelines despite age, poor health and hardship. (742) Defendant argued that her within-guidelines sentence was unreasonable. The Eighth Circuit disagreed. Defendant suggested her sentence was substantively unreasonable, but she could not point to anything in particular to rebut the presumption of reasonableness of a within-guidelines-range sentence. Her age, alleged poor health, hardship caused by incarceration, and conduct giving rise to the convictions were all considerations brought to the district court’s attention. The district court did not err or abuse its discretion in sentencing defendant. U.S. v. Peithman, __ F.3d __ (8th Cir. Feb. 27, 2019) No. 17-2768.
8th Circuit upholds within-guidelines fraud sentence as substantively reasonable. (218)(742) Defendant participated in a scheme in which elderly individuals were falsely told that relatives in the Dominican Republic needed money. At defendant’s sentencing for fraud, the district court calculated defendant’s guidelines range as 120 to 150 months and sentenced him to 120 months. On appeal, defendant argued that the sentence was substantively unreasonable. The Eighth Circuit upheld the sentence, finding that the district court had properly considered all relevant factors and had not considered inappropriate factors. U.S. v. Rodriguez, __ F.3d __ (8th Cir. Feb. 7, 2019) No. 17-3807.
6th Circuit upholds within-guidelines sentence for possession of contraband in prison. (350)(742) Defendant, a federal prisoner, pleaded guilty to misdemeanor possession of contraband (a cellphone) in prison, in violation of 18 U.S.C. § 1791(a)(2). He had a guidelines range of 4 to 10 months, and the district court sentenced him to five months. The Sixth Circuit held this sentence was substantively reasonable, rejecting defendant’s claims that the district court did not consider all the factors under 18 U.S.C. § 3553(a) and that the district court did not consider the need to avoid local sentencing disparities. U.S. v. Parrish, __ F.3d __ (6th Cir. Feb. 12, 2019) No. 18-1178.
8th Circuit upholds within-guidelines sentence for kidnapping. (215)(742) Defendant pleaded guilty to kidnapping his ex-girlfriend, in violation of 18 U.S.C. § 1201(a)(1). Defendant struck her, forced her into the trunk of her car, threatened her life, and strangled her until she became unconscious. His guidelines range was 360 months to life. The district court sentenced him to 360 months. The Eighth Circuit rejected defendant’s argument that the sentence was substantively unreasonable, finding that the district court properly found the circumstances of the kidnapping heinous and that defendant had a long history of abusive behavior toward women. The court rejected defendant’s claim that the district court relied on prior acts that had not resulted in convictions. U.S. v. Bryant, __ F.3d __ (8th Cir. Jan. 22, 2019) No. 17-3523.
8th Circuit affirms within-guidelines sentence against claim that guidelines accounted for factors. (218)(742) Defendant pleaded guilty to using fraudulent access devices in connection with a scheme to obtain identifying information of other individuals and use it to purchase cars and other merchandise. His guidelines range was 33 to 41 months. The district court sentenced him to 41 months because it was defendant’s second similar offense and defendant was the most culpable among three conspirators. The court said it would have varied upward except that defendant previously had been wrongfully convicted of murder and served 15 years that he should not have. The Eighth Circuit found the sentence substantively reasonable, rejecting defendant’s arguments that the district court gave undue weight to factors that already been taken into account by the guidelines. The panel “dismissed” his mitigation evidence as a reason not to vary upward. U.S. v. Mitchell, __ F.3d __ (8th Cir. Jan. 23, 2019) No. 18-1600.
8th Circuit upholds within-guidelines fraud sentence against claim of disparity. (218)(742) Defendant was convicted of fraud offenses based on his representations that he would establish a homeland for his ethnic group. In reality, he spent a portion of the funds raised on personal expenditures. His guidelines range was 70 to 87 months, and the district court sentenced him to 87 months. The district court considered the disparities among similarly situated defendants, but held that defendant should receive a long sentence because he had lied to his followers, preyed on their vulnerabilities, and maintained his innocence at sentencing. Eighth Circuit rejected defendant’s argument that his sentence was substantively unreasonable because the district court gave inadequate weight to the goal of reducing disparity among similarly situated defendants. U.S. v. Xiong, __ F.3d __ (8th Cir. Feb. 1, 2019) No. 17-3283.
8th Circuit upholds within-guidelines firearm sentence despite defendant’s claims. (330)(742) Defendant pleaded guilty to possession of a firearm by a convicted felon. He was sentenced to 34 months, the middle of his guidelines range of 30 to 37 months. At sentencing, defendant claimed he was only taking the gun out of a house where it would be available to children. The district court noted that defendant had previously been convicted of unlawful possession of a firearm and found that regardless of his intentions, he knew he was not supposed to possess it. On appeal, the Eighth Circuit found this sentence substantively reasonable, rejecting the defendant’s argument that the district court should have varied downward because of his good intentions. U.S. v. Williams, __ F.3d __ (8th Cir. Jan. 28, 2019) No. 17-3740.
1st Circuit upholds within-guidelines sentence against claim of cooperation. (742) Defendant pleaded guilty to money laundering. His guidelines range was 46 to 57 months, and the district court sentenced him to 46 months. The First Circuit found defendant’s sentence substantively reasonable, rejecting defendant’s argument that the district court failed to consider defendant’s willingness to cooperate. The court found that the district court’s consideration of the § 3553(a) factors sufficiently included defendant’s willingness to cooperate. U.S. v. Calderón-Lozano, __ F.3d __ (1st Cir. Jan. 10, 2019) No. 17-1977.
8th Circuit affirms within-guidelines sentence against claim that it was disparate. (742) Defendant beat and shook a five-year-old girl until she died. He pleaded guilty to aiding and abetting second-degree murder. At sentencing, the district court calculated defendant’s guidelines range as 365 months to life in prison. The district court discussed other cases that defendant cited and stated that this case was “far from” those examples. The district court sentenced defendant to 480 months. The Eighth Circuit upheld this sentence against claims that the district court failed to consider similar cases and that the sentence was substantively unreasonable. U.S. v. St. Pierre, __ F.3d __ (8th Cir. Jan. 11, 2019) No. 17-3657.
1st Circuit affirms upward variance for death from heroin overdose. (742) Defendant distributed heroin and fentanyl to his girlfriend, who died from using it. He pleaded guilty to distributing heroin and fentanyl, in violation of 21 U.S.C. § 841(a) pursuant to a plea agreement that set his sentence at between 132 and 180 months, even though the guidelines range was only 10 to 16 months. The district court sentenced defendant to 168 months, because he violated bail conditions by being with his girlfriend, because he failed to call 911 when he found her nonresponsive, and because of his history of domestic abuse of his girlfriend. The First Circuit upheld the sentence, rejecting defendant’s arguments that the girlfriend contributed to her own death, that his failure to call 911 did not contribute to her death, that the district court overemphasized his domestic abuse, and that similar cases had resulted in lower sentences. U.S. v. Gilley, __ F.3d __ (1st Cir. Dec. 19, 2018) No. 17-2197.
1st Circuit affirms within-guidelines sentence against claims of procedural error. (742) Defendant was convicted of conspiracy to defraud the U.S. and stealing government property in connection with a scheme to defraud the Social Security Administration of about $100,000. The district court imposed a bottom-of-the-guidelines sentence of 15 months’ imprisonment and a top-of-the-guidelines sentence of three years’ supervised release. The First Circuit affirmed, finding that the district court properly weighed the 18 U.S.C. § 3553(a) factors. The court specifically stated that the district court need not separately explain its rationale for imposing a relatively long supervised release term. U.S. v. Sostre-Cintrón, __ F.3d __ (1st Cir. Dec. 20, 2018) No. 17-1778.
2d Circuit finds 37-month sentence for stalking not “incongruous” with other sentences. (742) Over the course of seven years, defendant sent 10,500 emails to a victim and her family and coworkers. These emails included threats to harm the victim. Defendant was convicted of stalking, in violation of 18 U.S.C. § 2261A and was sentenced to 37 months. Defendant argued that his sentence was “incongruous with the sentences imposed on other similarly situated defendants.” The Second Circuit rejected this claim, finding that as the district court observed, the offense was “horrific” and defendant stole seven years of the victim’s life. U.S. v. Yilmaz, __ F.3d __ (2d Cir. Dec. 13, 2018) No. 17-1827.
4th Circuit rejects disparity claim where codefendants pleaded guilty. (742) After a jury trial on drug-trafficking charges, the district court found defendant responsible for one kilogram of heroin and sentenced him at the bottom of the guidelines range for that amount. On appeal, defendant claimed that the district court erred by imposing a harsher sentence on defendant than his codefendants, who, defendant argued, were more culpable. The Fourth Circuit held that because all of defendant’s codefendants pleaded guilty, they provided an “inapt” comparison to defendant. U.S. v. Obiora, __ F.3d __ (4th Cir. Dec. 11, 2018) No. 17-1569.
2d Circuit affirms sentence at statutory maximum despite claim of mental illness. (680)(742) Defendant pleaded guilty to conspiracy to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1), based on his plan to kill people at a nightclub. His guideline range exceeded the statutory maximum of 240 months, and the district court imposed the statutory maximum. At sentencing, the district court found that defendant’s mental illness “probably” explained “some” of his illegal conduct. On appeal, defendant argued that his sentence was substantively unreasonable because the district court did not sufficiently take into account his mental illness. The Second Circuit held that defendant’s sentence was “within the range of permissible decisions” and therefore was not substantively unreasonable. U.S. v. Lutchman, __ F.3d __ (2d Cir. Dec. 6, 2018) No. 17-291.
8th Circuit finds sentence at top of range for firearms possession substantively reasonable. (742) Defendant was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He had a guidelines range of 41 to 51 months, and the district court sentenced him to 51 months. The Eighth Circuit found that defendant’s 51-month sentence was not substantively unreasonable. The district court “carefully considered the factors set forth in 18 U.S.C. § 3553(a).” U.S. v. Murray, __ F.3d __ (8th Cir. Nov. 29, 2018) No. 17-2568.
8th Circuit reverses probation violation sentence in child porn case. (742)(800) At defendant’s sentencing for possession of child pornography, his guidelines sentencing range was 97 to 120 months. The district court varied downward to five years’ probation. When defendant violated the conditions of his probation, a different district judge imposed a 96-month sentence. The Eighth Circuit reversed because the new judge did not explain his decision to impose such a long sentence, and because of concern that the new judge may not have been sufficiently informed about defendant’s mental health. U.S. v. Michael, __ F.3d __ (8th Cir. Nov. 30, 2018) No. 17-3346.
6th Circuit upholds finding that lack of criminal history is not a ground for a variance. (508) (742) Defendant participated in a fraud and pleaded guilty to fraud and tax offenses. At sentencing, he fell into criminal history category I because he had no prior convictions. He sought a one-level variance from the guideline range because he was a “first offender.” The district court denied this request because defendant had previously been fined and suspended by the National Association of Securities Dealers for another scheme. The Sixth Circuit held that the district court had not abused its discretion in denying defendant’s request for a one-level variance. U.S. v. Dyer, __ F.3d __ (6th Cir. Nov. 13, 2018) No. 17-6174.
7th Circuit upholds life sentences for murder despite defendants’ troubled upbringing. (742) During a robbery of a gun shop, defendants shot and killed the shop’s owner, a 73-year-old grandfather. Defendants were convicted of using a firearm to commit a murder during a robbery, in violation of 18 U.S.C. § 924(j). The guideline range was life imprisonment, and the district court sentenced them to life. The Seventh Circuit held that a life sentence was not substantively unreasonable, in light of the district court’s consideration of all of the factors cited by defendants. It rejected defendants’ arguments that their troubled upbringing warranted a shorter sentence. U.S. v. Taylor, __ F.3d __ (7th Cir. Oct. 31, 2018) No. 17-2986.
7th Circuit affirms 12-month guidelines sentence for drug trafficking. (742) Defendant, convicted of drug trafficking, had a guideline range of 10 to 16 months. The district court imposed a sentence of 12 months. In imposing sentence, the district court cited defendant’s history and characteristics, the seriousness of defendant’s crime, and the need to avoid disparities with defendant’s codefendants. The Seventh Circuit held that the district court had adequately considered the factors under 18 U.S.C. § 3553(a). U.S. v. Pennington, __ F.3d __ (7th Cir. Nov. 5, 2018) No. 18-1375.
5th Circuit finds within-guidelines sentence in tax case was substantively reasonable. (742) Defendant was convicted of tax evasion and filing a false tax return. The district court set the loss amount based on the amount of tax owed and the taxes that would have been due on an uncharged theft. Defendant’s sentencing range was 27 to 33 months, and the district court sentenced defendant to 30 months. On appeal, defendant claimed that her sentence was substantively unreasonable because the loss amount overstated her culpability and because the district court failed to consider the low likelihood that she would re-offend. The Fifth Circuit rejected these claims, finding that the loss amount was correct, and that the court was free to give other factors more weight in imposing sentence. U.S. v. Bolton, __ F.3d __ (5th Cir. Oct. 23, 2018) No. 17-60502.
1st Circuit finds no Dean error in carjacking sentence that included mandatory minimum. (742) Defendant pled guilty to carjacking, 18 U.S.C. § 2119, and to carrying a firearm in a crime of violence, § 924(c)(1)(A)(ii). His guideline range for the § 2119 offense was 70-87 months, while the § 924(c) violation carried a mandatory minimum of 84 months. Defense counsel asked for a downward variance for the § 2119 violation, citing Dean v. U.S., 137 S. Ct. 1170 (2017), which held that a district court can consider the mandatory minimum sentence under § 924(c) in sentencing on the other counts. The district court rejected a variance, sentencing defendant to 84 months, plus 70 months for the § 2119 offense, The First Circuit affirmed, finding nothing to suggest that the court erroneously believed it had to ignore § 924(c) mandatory minimum in its carjacking sentence. U.S. v. Vallellanes-Rosa, __ F.3d __ (1st Cir. Sept. 20, 2018) No. 17-1541.
5th Circuit finds adequate explanation for within guideline range sentence. (742) Defendant was convicted of drug trafficking and firearms charges, and was sentenced to 652 months. He argued for the first time on appeal that the district court failed to adequately explain his sentence or consider the 18 U.S.C. § 3553(a) factors. The Fifth Circuit disagreed. The district court stated that it had reviewed the PSR, the PSR Addendum, and defendant’s sentencing memorandum. It also adopted the PSR and recited the applicable guidelines calculations. Because the district court sentenced defendant within the guidelines range on the drug counts not carrying a mandatory minimum, a lengthy explanation was not required. There was no plain error. U.S. v. Gomez, __ F.3d __ (5th Cir. Sept. 26, 2018) No. 17-10690.
2nd Circuit holds that 360-month child porn sentence not unreasonable in light of defendant’s history. (742) Defendant was convicted of multiple child pornography counts, with in a guideline range of 360-1200 months. The district court sentenced him to 360 months in prison and 15 years of supervised release. The Second Circuit rejected defendant’s argument that this “de facto life sentence” was substantively unreasonable. The record supported the district court’s view that a 360-month sentence was necessary in light of the “nature and circumstances of the offense,” and to “protect the public from further crimes.” 18 U.S.C. § 3553(a). In addition to the production and possession offenses that were the basis for defendant’s convictions, defendant’s record included a 2013 New York conviction for Criminal Sexual Act in the First Degree, he had confessed to previously molesting two other seven-year old boys, and there were allegations from several others that defendant had sexually assaulted them when they were children. The sentence was calibrated so that defendant would not be released until he approximately 80, an age at which the court believed he was unlikely to reoffend. U.S. v. Spoor, __ F.3d __ (2d Cir. Sept. 14, 2018) No. 16-2972-cr.
10th Circuit affirms 460-month sentence for sex offenses. (742) Defendant was convicted on multiple counts of traveling in foreign commerce and engaging in illicit sexual conduct with a minor. His PSR recommended a sentence of 1440 months, which represented the statutory maximum of 30 years for each count, running consecutively. The district court sentenced him to 480 months in prison, which it characterized as a downward variance. The Tenth Circuit affirmed the sentence, holding that defendant failed to overcome the presumption that his guideline sentence was substantively reasonable in light of the § 3553(a) factors. Defendant pointed to an online publication by the Sentencing Commission that “a life sentence is the equivalent of 470 months.” This argument implicated procedural reasonableness rather than substantive reasonableness, and defendant waived this argument by failing to raise it below. As for defendant’s claim of unwarranted disparities, the court below stated that the cases cited by defendant were not “particularly helpful” because “circumstances differed from one case to another.” U.S. v. Durham, __ F.3d __ (10th Cir. Aug. 29, 2018) No. 16-6075.
(742) U.S. v. Hoffman, __ F.3d __ (5th Cir. Aug. 9, 2018) No. 16-30104, withdrawn and replaced by U.S. v. Hoffman, __ F.3d __ (5th Cir. Aug. 24, 2018) No. 16-30104.
10th Circuit reverses probation that was imposed so that high-income defendant could repay his victims. (742) Defendant, a licensed investment advisor and registered broker, pled guilty to fraud counts based on his theft of funds from investors. His guideline range was 78-97 months, but the district court imposed a sentence of five years’ probation, citing defendant’s earning capacity and ability to pay the victims back. The Tenth Circuit agreed with the government that the sentence was substantively unreasonable. Courts should not rely on a defendant’s wealth in fashioning a sentence. The district court based its sentencing decision in large measure on defendant’s ability to repay his victims. The need to provide restitution to victims is one of the factors to consider in fashioning a sentence. See 18 U.S.C. § 3553(a)(7). The district court’s reliance on defendant’s salary as overriding all other sentencing considerations exceeded the bounds of permissible choice. Our system of justice has no sentencing discount for wealth. U.S. v. Sample, __ F.3d __ (10th Cir. Aug. 27, 2018) No. 17-2086.
1st Circuit affirms career offender status despite claim that defendant only “technically” qualified. (520)(742) The court found that defendant qualified as a career offender, with a guideline range of 151-188 months, but sentenced him to 78 months. Defendant argued that his sentence was unreasonable, contending that although he “technically qualified” as a career offender, he had “unique circumstances.” The First Circuit rejected this argument, noting the district court’s thoughtful consideration of his personal history and its downward variance from the career offender range. The judge gave defense counsel multiple opportunities to convince the court that defendant deserved leniency. Before announcing defendant’s sentence, the judge said he had considered the letters submitted by defendant’s family, the PSR (which described in depth defendant’s difficult childhood), defense counsel’s arguments (which highlighted defendant’s upbringing and the circumstances of his predicate offenses), and defendant’s “history, record and personal characteristics.” The below-guidelines sentence was not unreasonable. U.S. v. Reid, __ F.3d __ (1st Cir. Aug. 10, 2018) No. 17-2021.
1st Circuit affirms statutory maximum child porn sentence as not substantively unreasonable. (310)(742) Defendant pled guilty to possession of child pornography. His criminal history included a juvenile adjudication and adult criminal conviction for abuse of, or misconduct with, boys as young as eight years old. His guideline range was 135-168 months, and the district court imposed 120 months, the statutory maximum. The First Circuit rejected defendant’s argument that the sentence was substantively unreasonable. The judge considered the information in the PSR, the statutory factors, the guideline range, defendant’s history and characteristics, the nature of his offense, the need to protect the public, and the need to provide restitution to defendant’s victims. The sentence was not unreasonable. U.S. v. Harrison, __ F.3d __ (1st Cir. Aug. 10, 2018) No. 17-2088.
1st Circuit affirms upward criminal history departure and rejects variance request. (510)(742) Defendant was convicted of possessing a firearm while subject to a qualifying court order, resulting in a guideline range of 15-21 months. The government urged an upward departure from criminal history level III to V, and an upward variance to a 60-month sentence. The district court departed upward to he criminal history level V, but refused to vary upward, and rejected defendant’s request for a downward variance. The court sentenced defendant to 33 months, at the top of his revised guideline range. The First Circuit held that the sentence was procedurally and substantively reasonable. The court took seriously defendant’s family and medical history, but concluded that while some of these factors explained defendant’s past conduct, a “risk of future conduct” also had to be given weight. U.S. v. Tosi, __ F.3d __ (1st Cir. July 24, 2018) No. 17-1340.
1st Circuit rejects request for sentence reduction based on medical condition. (680)(742) Defendant pled guilty to cocaine conspiracy charges. He sought a downward departure under § 5H1.4 based on his physical condition, claiming that his life was in danger and would be shortened by a guideline sentence, since prison facilities would be unable to fully address his medical needs. Nonetheless, the court imposed a 180-month sentence, which fell within his 168-210 month guideline range. On appeal, defendant sought a mandatory minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(A). He relied on his doctor, who reported that defendant had “a reduced survival and shorten[ed] life expectancy ( [five] years or less) in the absence of liver transplantation.” The First Circuit rejected the “flawed reasoning” underlying defendant’s abuse of discretion argument. “A ten-year sentence did nothing to respond to the supposed peril [defendant] faced, namely death within five years without a transplant.” Defendant’s doctor prescribed routine testing on a permanent basis and defendant did not sufficiently demonstrate that the major federal prison medical facilities would be incapable of providing such treatment. Further, if defendant’s condition worsened and the government denied or unduly delayed a transplant, the remedy would be injunctive relief under the Eighth Amendment. U.S. v. Madera-Rivera, __ F.3d __ (1st Cir. Aug. 2, 2018) No. 17-1319.
6th Circuit finds justifiable reasons for five-year difference in co-defendant’s sentence. (716)(742) Defendant was part of a trafficking ring that ran opiate pills from Detroit to Tennessee. He argued that his 17-year guideline sentence was substantively unreasonable, even though it was less than half of his recommended guideline range. He noted that a co-defendant Buchanan received a 12-year sentence. The Sixth Circuit found no error, finding defendant’s comparison overstated Buchanan’s role and understated defendant’s role. Defendant played an instrumental role in collecting the pills, at least partly through fraudulent use of prescriptions. He owned a stash house. He recruited several people, some in desperate circumstances, to run the house and get the drugs to Buchanan. Buchanan was isolated from these more abusive and blameworthy links in the supply chain – and simply bought from his supplier and sold to redistributors, who in turn sold to end users. The five-year difference in their sentences turned on differences in their conduct. U.S. v. Bradley, __ F.3d __ (6th Cir. Aug. 1, 2018) No. 17-5725.
1st Circuit says non-prescription drug fraud sentence is not affected by FTC penalties. (218)(742) Defendant was convicted of wire fraud for operating an online non-prescription drug business. His guideline range was 134-168 months, and the district sentenced him to only 72 months. Nonetheless, he argued that the sentence was substantively unreasonable because the trial judge “failed to take adequate account” the six-month maximum sentence he would have faced under the Federal Trade Commission Act (FTCA). The First Circuit rejected this argument. The district court obviously was not restricted to the FTCA range of penalties, and it had been made well aware of that range. In imposing the 72-month sentence, the court noted that defendant’s colloquy at sentencing failed to demonstrate “complete and utter total remorse.” Nevertheless, the trial judge still imposed a sentence well below the recommended guidelines range of 134-168 months. U.S. v. Arif, __ F.3d __ (1st Cir. July 18, 2018) No. 17-1597.
8th Circuit affirms court’s rejection of policy argument about meth guidelines. (251)(742) Defendant argued that the court erred by not varying downward based on a policy disagreement with the guidelines range imposed in cases involving methamphetamine. He noted that in U.S. v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009) the court stated that “the Supreme Court held it was not an abuse of discretion for a district court to vary from the Guidelines based on its policy disagreement concerning the disparity between crack and powder cocaine sentences.” The Eighth Circuit found no error. Battiest further stated that the Supreme Court “did not mandate that district courts consider the crack/powder sentencing disparity and [sentencing courts] do not act [] unreasonably, abuse[] [their] discretion, or otherwise commit[] error if they do not.” Here, the district court expressly considered defendant’s policy argument and rejected it. This was within its discretion. U.S. v. Sharkey, __ F.3d __ (8th Cir. July 18, 2018) No. 17-1480.
D.C. Circuit upholds refusal to vary downward in child porn case. (310)(716)(742) Defendant pled guilty to distributing child pornography. The district court sentenced him to 151 months, at the bottom of his 151-188 guideline range. Defendant argued for a downward variance based on the sentencing practices of other district court judges. He noted that in 2015 only 30.7% of those convicted of federal child-pornography offenses nationwide received a sentence within the guidelines range, and 67.5% were sentenced below the range. The D.C. Circuit found no procedural error in the district court’s refusal to vary downward. The judge explained how defendant’s offense, which included images of toddler and infant abuse, warranted his sentence. Also, defendant had sought to meet and sexually abuse a minor. The sentence was not based on political beliefs, even though the judge discounted recent precedents as the product of “judges who were appointed by President Obama in the last three or four years, and who have very limited experience in sentencing in these cases.” U.S. v. Mattea, __ F.3d __ (D.C. Cir. July 17, 2018) No. 16-3126.
8th Circuit upholds 600-month sentence for sexual exploitation of child and possession of child porn. (310)(742) Defendant pleaded guilty to sexual exploitation of a child and possession of child porn. His initial guidelines range was life imprisonment, but the statutory maximum sentence was only 600 months. The district court sentenced him to 600 months. Defendant argued that in refusing to vary downward, the district court erred in dismissing his history of victimization. He cited the district court’s statement that “[i]n terms of his own reported abuse as a child, I want to make sure that it’s understood that there is no cause and effect relationship between being a victim of child abuse and victimizing children as an adult, and there’s nothing in this record that makes that assertion.” Defendant failed to object to this statement. The Eighth Circuit found no procedural or substantive error. Given the context, the panel did not read the district court’s use of the phrase “reported abuse” to mean that the court questioned whether defendant was a sexual abuse victim. U.S. v. Bordman, __ F.3d __ (8th Cir. July 17, 2018) No. 17-2395.
1st Circuit rejects claim that court improperly focused on negative factors at sentencing. (330)(742) After pleading guilty in two separate cases, defendant was sentenced first for possessing ammunition as a convicted felon (upward variance from 21-27 month guideline range to 48 months) and then for possessing a machine gun (27 months, at the top of his 21-27-month guideline range). He challenged both sentencing courts’ uses of the § 3553(a) factors, but the First Circuit found no error. Both courts were explicit about having arrived at their sentencing decisions after considering the § 3553(a) factors. Although both sentencing courts emphasized factors that favored a harsher sentence, they also considered potential mitigating factors, such as defendant having completed a GED, having a dependent, and having a history of substance abuse. U.S. v. Caballero-Vázquez, __ F.3d __ (1st Cir. July 18, 2018) No. 17-1144.
8th Circuit affirms career offender status as beginning point for downward variance. (520)(742) Defendant argued that the sentencing court “erred by considering a twenty-level career offender enhancement under U.S.S.G. § 4B1.1(b)(3) as the beginning point for fashioning [his] sentence.” Thus, his argument was that the court committed procedural error by applying the enhancement, even though he did not dispute that he qualified for the enhancement. The Eighth Circuit found this argument “meritless.” A sentencing court must calculate the guideline range and apply applicable enhancements. Defendant’s 120-month sentence was not substantively unreasonable. The sentencing court agreed with defendant that a career-offender enhancement overstated the seriousness of his behavior. The court therefore varied downward from defendant’s guideline range of 151-188 months and imposed a sentence of 120 months. U.S. v. Gaines, __ F.3d __ (8th Cir. July 16, 2018) No. 17-1274.
1st Circuit upholds 228-month drug sentence at bottom of guideline range. (742) Defendant pleaded guilty to leading a large drug distribution conspiracy in Puerto Rico housing projects, and to using and carrying of a firearm in connection with that drug offense. He argued that his 228-month sentence was substantively unreasonable in light of the further 13 years he would likely spend in prison on state charges. The First Circuit disagreed. The court found the 228-month sentence justified by “the serious nature of the offense, [defendant’s] role as principal leader of the drug trafficking organization, personal characteristics and prior criminal record.” It considered mitigating factors like defendant’s limited education and the fact that he had a young child. Defendant was in fact sentenced at the bottom of his guidelines range. The court considered and rejected defense counsel’s request for reconsideration in light of defendant’s likely 13-year state sentence. U.S. v. Morales-DeJesus, __ F.3d __ (1st Cir. July 18, 2018) No. 17-1549.
8th Circuit says court did not err in expressing its view on nature of defendant’s prior convictions. (742) Defendant was sentenced to 154 months, which fell within his 151-188 month guideline range. He argued that the district court erred by “significantly overvalu[ing] the nature of the burglary offenses” in his criminal history. In discussing defendant’s criminal history, the court noted in part that burglary was an “unbelievably violent and personal offense.” Citing Mathis v. U.S., __ U.S. __, 136 S.Ct. 2243 (2016), defendant argued this discussion of his prior burglaries was in error because the Supreme Court held that Iowa burglary is not a “crime of violence.” The Eighth Circuit found Mathis inapplicable. Mathis held that the definition of “burglary” under Iowa law was broader than that of the generic offense. Thus, a conviction for Iowa burglary could not serve as a predicate felony for the purposes of the Armed Career Criminal Act (ACCA). Defendant was not sentenced under the ACCA. Moreover, in arriving at a particular sentence, the district court is required to consider a defendant’s criminal history. See § 3553(a)(1). U.S. v. Sharkey, __ F.3d __ (8th Cir. July 18, 2018) No. 17-1480.
8th Circuit affims refusal to vary downward based on defendant’s health issues and drug addiction. (742) Defendant argued that the court erred by not varying downward because of his health issues and drug addiction. Specifically, he asserted that he had a history of heart and dental problems, and he claimed that his criminal activity was directly tied to his longstanding use of methamphetamine. The district court expressly stated that “[t]here are definitely mitigating factors here” and that it was “certainly taking those into consideration.” It further noted that defendant presented a strong argument for mitigation with reference to, among other things, his “mental health history” and the “huge problem he has had with methamphetamine.” Ultimately, however, the court determined that defendant was not entitled to a downward variance due to a number of aggravating factors, such as his extensive criminal history and his recent action in exposing the identities of confidential cooperating witnesses. Given that the court was free to assign some factors more weight than others, the Eighth Circuit found no abuse of discretion. U.S. v. Sharkey, __ F.3d __ (8th Cir. July 18, 2018) No. 17-1480.
8th Circuit upholds sentence at bottom of range even though court considered informant and police officer as drug customers. (742) Defendant pled guilty to conspiracy to distribute methamphetamine. He argued that his 140-month sentence, which fell at the bottom of his 140-175 month guideline range, was substantively unreasonable. Sentences within the guideline range are presumptively reasonable on appeal. Defendant attempted to rebut this presumption by arguing that the district court considered an improper factor because it mentioned that defendant introduced other “customers” to co-conspirator Bent. This was error, defendant asserted, because the only two “customers” he introduced to Bent were a confidential informant and an undercover police officer. The Eighth Circuit found no error. The panel was not aware of any authority stating that a district court cannot consider an informant and undercover officer as customers for the purposes of discussing a defendant’s role in a criminal enterprise. Defendant undoubtedly believed these individuals were genuine customers at the time of the introductions. U.S. v. Sharkey, __ F.3d __ (8th Cir. July 18, 2018) No. 17-1480.
8th Circuit upholds top of range sentence for bank robber, despite sympathetic background. (742) Defendant was convicted in the attempted bank robbery of one bank and bank robbery of another bank. His guidelines range was 120-150 months in prison. He requested a sentence at the bottom of that range, and the government sought an upward variance, arguing that defendant was accountable for all the robberies, including those on which he was acquitted or the jury could not reach a unanimous verdict. The court rejected both arguments and sentenced defendant to 150 months stating it was “very sympathetic” to defendant’s experiences in a refugee camp as a child, and noting his positive post-arrest conduct and family support. The Eighth Circuit rejected defendant’s claim that his sentence was substantively unreasonable. Nothing in the record suggested that the district court failed to consider a factor that should have received significant weight, gave significant weight to an improper factor or irrelevant factor, or committed a clear error in judgment when weighing the relevant factors. U.S. v. Moua, __ F.3d __ (8th Cir. July 11, 2018) No. 17-2046.
7th Circuit rejects challenge to loss enhancements and upholds below-guidelines fraud sentence. (219)(742) Defendant pled guilty to wire fraud. His guideline range was 41-51 months, and the district court sentenced him to 24 months. On appeal, defendant argued that the guidelines give unreasonable weight to the amount of loss and were “not based on empirical data or on national experience.” The Seventh Circuit rejected this argument. First, defendant focused on only the deterrent effects of these enhancements, and overlooked the retributive purposes of sentencing. Even if probation was as effective a deterrent as prison time for people contemplating crimes like his, defendant provided no reason to require more lenient sentences for high-dollar, white-collar crimes. Second, the Sentencing Commission’s loss enhancements were in fact founded on empirical data and national experience related to the goals of fair sentencing and retribution. U.S. v. Moose, 893 F.3d 951 (7th Cir. June 27, 2018) No. 16-3536.
1st Circuit rejects challenge to use of child porn guidelines. (310)(742) Defendant pled guilty to producing and possessing child pornography and was sentenced to 264 months. He argued that his sentence was substantively unreasonable because the district court did not categorically reject reliance on the sentencing guidelines for child pornography. He noted that these particular guidelines did not rest on the type of empirical analysis; but rather, from a congressional fiat that, he argued, invariably leads to substantively unreasonable sentences. See U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010). The First Circuit held that the guideline sentence was reasonable. District courts may, in their discretion, depart or vary downward from a guidelines sentence on the basis of a policy disagreement with the relevant guideline. Nonetheless, under U.S. v. Rivera-Hernández, __ F.3d __ (1st Cir. June 8, 2018) No. 16-2144, a district court does not abuse its discretion per se when it does not reject the child pornography guidelines. U.S. v. Aquino-Florenciani, 894 F.3d 4 (1st Cir. 2018).
8th Circuit upholds 324 months for mother who groomed nine-year old daughter to have sex. (310) (742) Defendant pled guilty to charges based on her grooming of her nine-year-old daughter to engage in illegal sex acts with a convicted sex offender. The district court calculated defendant’s guideline range at 324-405 months, and sentenced her to 324 months. The Eighth Circuit affirmed, noting that the district court reviewed defendant’s personal history, the 3553(a) factors, the statutory penalties, the guidelines, and defendant’s exhibits. The court tied the sentence to the facts and took affirmative steps to guard against possible improprieties. Because the sentence was at the bottom of the guideline range of 324-405 months, the panel presumed it was substantively reasonable. Defendant’s list of unrelated sexual abuse cases with shorter imprisonment terms was immaterial. She did not rebut the presumption of reasonableness. U.S. v. Mitteness, 893 F.3d 1091 (8th Cir. 2018).
10th Circuit upholds increase for large capacity magazines despite criticism of enhancement. (330) (742) Defendant was convicted of unlawfully possessing a gun. On appeal, he challenged his 50-month sentence on the ground that it was substantively unreasonable criticizing § 2K2.1(a)(4)(B)’s enhancement for large capacity magazines. The Tenth Circuit rejected the argument, noting that the Sentencing Commission had authority to make its own policy judgments, so the guideline enhancement for possession of large-capacity magazines was not undermined by the expiration of a Congressional ban on possession of semiautomatic assault weapons. U.S. v. Ibanez, 893 F.3d 1218 (10th Cir. 2018).
11th Circuit upholds substantive reasonableness of life sentence for terrorist. (345)(742) Defendant, who declared allegiance to ISIS, attempted to recruit others to join him in destroying the United States, and amassed weapons and a bomb in order to carry out an attack on a crowded Key West beach. He argued on appeal that his life sentence was substantively unreasonable because the district court gave too much weight to what might have happened; did not properly weigh the fact that he was a young, immature first-time offender; and did not appropriately consider the fact that nobody was injured and that there was no real risk of anyone getting injured. The Eleventh Circuit held that the life sentence was not substantively unreasonable. The district court applied the guideline-recommended sentence and considered the § 3553(a) factors at sentencing. U.S. v. Suarez, 893 F.3d 1330 (11th Cir. 2018).
6th Circuit holds that within-guidelines range fraud sentence was not unreasonable. (742) Defendant pled guilty to conspiring to commit bank fraud. His guideline range was 97-121 months, and the district court sentenced him to 109 months. The Sixth Circuit rejected defendant’s argument that his sentence was not substantively reasonable. The district court sentenced defendant to the middle of his guidelines range after explicitly mentioning and reviewing a number of § 3553(a) factors, and after considering and rejecting defendant’s arguments. “The manner in which a district court chooses to balance the applicable sentencing factors is beyond the scope of the Court’s review.” Because the district court justified its sentence with reference to the purposes of § 3553(a), and because a within-guidelines sentence is presumed reasonable, defendant’s sentence was not unreasonable. U.S. v. Sexton, __ F.3d __ (6th Cir. July 5, 2018) No. 17-5743.
8th Circuit holds that marijuana sentence at top of guideline range was substantively reasonable. (742) Defendant was convicted of possessing with intent to distribute marijuana within 1000 feet of a school. His guideline range was 21-27 months, and the district court sentenced him to 27 months. He argued that the district court erred by not varying downward because (1) the impact of the protected location enhancement; (2) the small quantity of marijuana at issue; and (3) the legalization of marijuana by several states. The Eighth Circuit held that the sentence was substantively reasonable. Defendant offered no evidence to rebut the presumption that the within-guideline range sentence was reasonable. The district court merely balanced and weighed the § 3553(a) factors in a manner different than defendant would have liked. U.S. v. Washington, 893 F.3d 1076 (8th Cir. 2018).
6th Circuit reverses upward variance based on news article that was not disclosed before sentencing. (742) (761) Defendant pled guilty to drug charges, resulting in a recommended guideline sentence of 60 months. The district court sentenced him to 120 months, based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl. Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing. Nor was defendant notified before the hearing that the district court planned to consider the article or the issues it addressed. Because this procedure denied defendant a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the Sixth Circuit held that the resulting sentence was procedurally unreasonable. U.S. v. Fleming, __ F.3d __ (6th Cir. June 29, 2018) No. 17-3954.
8th Circuit uholds defendant’s 120-month sentence despite co-defendants’ six- and seven-month sentences. (716)(742) Defendant was convicted of firearms charges and sentenced to 120 months, at the bottom of his 120-150 month guideline range. He argued that his sentence was unreasonable in light of the six- and seven-month sentences imposed on co-defendants Marshall and Wingler. The Eighth Circuit disagreed. First, the statutory direction to avoid unwarranted sentencing disparities among defendants does not refer to differences among co-conspirators. Second, even if it did, any disparity here was warranted. The co-defendants pleaded guilty, accepted responsibility, and cooperated with the government, all of which would have warranted favorable consideration in their sentencing. U.S. v. Hemsher, __ F.3d __ (8th Cir. June 25, 2018) No. 17-50392.
2nd Circuit reverses child porn resentencing for failure to depart down. (197)(310)(742) Defendant pled guilty to sexual exploitation of children and receipt of child pornography, and was sentenced to 30 years. On his first appeal, the Second Circuit, in an unpublished decision, concluded that the 30-year sentence was substantively unreasonable. The court found that defendant’s extraordinary history of childhood abuse and expert testimony that it contributed to the offense justified a “significant” departure from the guidelines. At resentencing, the district court reduced defendant’s sentence from 30 to 25 years, citing defendant’s good conduct in prison. The Second Circuit held that the district court failed to comply with its mandate. The precise magnitude of the downward departures were left to be determined by the district court. But the mandate required some downward departure on the basis of defendant’s history, and some downward departure based on a reassessment of the danger posed by defendant. The district court ordered no departure on either of these grounds. The reduction from 30 years to 25 years for a reason not available at the time of the original sentencing did not satisfy the mandate. U.S. v. Sawyer, __ F.3d __ (2d Cir. June 19, 2018) No. 17-1490.
D.C. Circuit reverses upward variance for inadequate explanation. (742) Defendant’s guideline range for drug and firearms charges was 78-97 months. Although the probation office determined that nothing in defendant’s conduct or background warranted an upward variance, the district court sentenced him to 108 months. The D.C. Circuit held that the district court failed to adequately explain its variance. The district court concluded that the guidelines range of 78-97 months was too low because defendant was involved in “drug dealing,” “some related acts of violence,” and he “had a lot of weapons.” However, the guidelines range was specifically increased for those same factors. The district court did not explain why that nearly 50% increase in defendant’s sentencing range was not enough punishment for that same conduct. The court’s remaining reasons amounted to little more than a recitation of the § 3553(a) factors without any individualized “application to the defendant being sentenced.” U.S. v. Brown, __ F.3d __ (D.C. Cir. June 15, 2018) No. 15-3066.
8th Circuit upholds refusal to vary downward. (742) Defendant pled guilty to multiple charges based on a scheme to export firearms to Lebanon. The Eighth Circuit upheld the district court’s refusal to vary downward. The district court recited a number of § 3553(a) factors that militated against a downward variance, including that defendant had a serious role in the offense, that she was a well-educated, internationally traveled person who acted on her own volition and without coercion, and that she at all times knew that her conduct was illegal. U.S. v. Zeaiter, __ F.3d __ (8th Cir. June 11, 2018) No. 16-4066.
8th Circuit upholds 240-month guideline sentence for meth conspiracy. (275)(742) Defendant was convicted of methamphetamine conspiracy charges. He argued that his 240-month sentence was substantively unreasonable because the court attributed improper amounts of meth to him, denied his motion for downward departure, and failed to properly consider his history and character. The Eighth Circuit disagreed. At sentencing, the court stated that it considered every factor under 18 U.S.C. § 3553(a). Based on the evidence at trial, the court calculated that defendant was accountable for 2,265.9 grams of ice methamphetamine, resulting in a score of 36. The court then found obstruction of justice because defendant tried to influence the testimony of a witness and used a false name and birth certificate in an attempt to confuse law enforcement. His guideline range was 235-293 months, and the court sentenced him to the statutory maximum of 240 months, which was not substantively unreasonable. U.S. v. Perez-Trevino, __ F.3d __ (8th Cir. May 29, 2018) No. 17-1289.
1st Circuit upholds longer sentence for defendant with “main role” in scheme who held higher rank. (716)(742) Defendant and Meléndez, both U.S. Army National Guard recruiters, carried out a scheme to fraudulently procure recruitment bonuses. They were convicted of wire fraud, embezzlement and conspiracy. Defendant was sentenced to one year in prison, three years of supervised release, a $5,000 fine, and $3,000 in restitution. Meléndez was sentenced to time served (approximately two months), two years of supervised release, and $20,000 in restitution. Defendant argued that his sentence was substantively unreasonable because Meléndez, who was convicted on many more counts, received a lesser sentence. The First Circuit disagreed. It saw “no reason to second-guess the district court’s conclusion that [defendant] had the ‘main role’ in the scheme because he was ‘a higher ranking officer and the one with access to the personal and identifying information for all of the recruited … persons for which the payments were processed.'” U.S. v. Meléndez–González, __ F.3d __ (1st Cir. June 4, 2018) No. 17-1084.
6th Circuit allows consideration of continued drug use to vary upward. (742) Defendant pled guilty to possession with intent to distribute fentanyl. The district court sentenced him to 118 months, which was an upward variance of 40 months. Defendant argued that it was improper for the district court to consider his continued drug use and repeated community-control violations, given the nature of addiction and the allegedly inadequate treatment opportunities afforded him by the state of Ohio. The Sixth Circuit rejected the argument, noting that the district court detailed defendant’s 19-year criminal history that began when he was 18, referencing past convictions for aggravated robbery, cocaine possession and trafficking, assault, weapons possession, driving under the influence, misusing credit cards, domestic violence, and violating a temporary protection order. It was not unreasonable for the district court to treat defendant’s continued drug use as a factor that could explain, but not outweigh, his extensive criminal history and chronic recidivism. U.S. v. Robinson, __ F.3d __ (6th Cir. June 7, 2018) No. 17-4018.
6th Circuit finds no error in considering effect of opioid epidemic in Ohio. (742) Defendant pled guilty to possession with intent to distribute fentanyl. The district court sentenced him to 118 months, varying upwards by 40 months. Defendant argued that the district court abused its discretion by considering the harm caused by the opioid epidemic in Ohio without acknowledging that defendant’s own addiction compelled his illegal conduct. The Sixth Circuit rejected this argument. The district court did not vary upwards solely because the local community had suffered an increase in opioid use and related overdose deaths. In its assessment of the § 3553(a) factors, the district court recognized that defendant was an addict, and admonished him for contributing to the problem. Moreover, the court noted that defendant had placed a young child and two women at similar risk by keeping fentanyl in his apartment and in their immediate presence. The district court concluded that, because defendant’s past recidivism showed an unwillingness to stop dealing fentanyl and methamphetamine, “a long sentence [was] necessary” to deter him and others, and protect the community. The district court did not abuse its discretion in considering the effect of the opioid epidemic in Ohio in reaching this conclusion. U.S. v. Robinson, __ F.3d __ (6th Cir. June 7, 2018) No. 17-4018.
8th Circuit says court did not rely on clearly erroneous facts in varying upward. (742) After impermissibly leaving California while on probation, defendant requested and received a Social Security card in the name of Jones, a real person who lived in California. He pled guilty to making a false statement to a government agency and identity theft. His guideline range for the false statement charge was 6-12 months, and the identity theft count carried a consecutive 24-month sentence. Defendant requested a downward variance, but the district court granted the government’s motion for an upward variance, and sentenced him to 24 months on the false statement charge, followed by the mandatory consecutive 24-month identity theft sentence. The Eighth Circuit rejected defendant’s claim that the sentence was procedurally unreasonable. The district court did not rely on clearly erroneous facts. Although the government argued that defendant left California and assumed a new name to avoid justice in California, the district court did not expressly find that this was his motivation. The court was not obligated to credit defendant’s claim that fear of the mob precipitated his departure from California. U.S. v. Marshall, __ F.3d __ (8th Cir. June 4, 2018) No. 16-4499.
8th Circuit finds below guidelines meth sentence was not too high. (275)(742) Defendant was convicted of methamphetamine conspiracy. The Eighth Circuit rejected defendant’s argument that the district court attributed too much meth to her. At sentencing the district court heard evidence that she had delivered five pounds of meth on one occasion. The record supported holding defendant accountable for over 4.5 kilograms of methamphetamine (ice), specifically 4,819.5 grams, putting her base offense level at 38. The court imposed the statutory maximum sentence of 240 months, which was well below the guideline range of 292-365 months. The sentence was not unreasonable. U.S. v. Martin, __ F.3d __ (6th Cir. May 14, 2018) No. 16-3864.
1st Circuit says sentencing court adequately considered defendant’s drug addiction. (680)(742) Defendant pled guilty to robbery of a controlled substance from a pharmacy by use of a dangerous weapon. His guideline range was 108-135 months, and the district court sentenced him to 120 months. He argued on appeal that the district court erred by failing to consider adequately the effect of his drug addiction on his conduct, as required by 18 U.S.C. §3553(a)(1). The First Circuit disagreed. The district court considered and rejected defendant’s requests for downward departures on the basis of his drug addiction, and he did not challenge those decisions. The district court also allowed defendant to present extensive evidence of his addiction and history. The court acknowledged the nearly 30-year gap since defendant’s last criminal conduct, his pain management issues, and his recent relapse. It then weighed those facts against the nature and circumstances of the crime, which appeared to be preplanned and involved threatening the victims with a firearm and tying them up with zip ties. No more was required. U.S. v. Stile, 845 F.3d 425 (1st Cir. 2017).
8th Circuit says sentnce was not improperly based on ethnicity of defendant or her victims. (742) Defendant pled guilty to filing a false income tax return. At sentencing, several of her friends and acquaintances testified they gave defendant hundreds of thousands of dollars to invest. Instead, she spent some of the money and shuffled the rest around, making enough repayments to keep her investors mollified. Her guideline range was 10-16 months, and the court sentenced her to 14 months. She argued that the length of her prison sentence was influenced by race or national origin, the fact that she immigrated to the United States, and her anticipated inability to afford to pay restitution. The Eighth Circuit disagreed. Defendant was the one who first introduced and emphasized her Laotian heritage and culture as a basis for sentencing leniency because informal loans allegedly were common within the Laotian culture. The court did comment about defendant coming to the United States, but as part of its belief that it did not excuse the crime she committed long after settling in the United States. Finally, the court’s comments about the likelihood of defendant’s investors not receiving their money back was part of a general background description of what defendant did and the harm she caused. U.S. v. Kouangvan, 844 F.3d 996 (8th Cir. 2017).
10th Circuit reverses sentence of 33 days in pretrial detention for bank robbery. (742) Defendant, a serial bank robber, pled guilty to two counts of bank robbery. Defendant attributed his criminal history to an addiction to drugs and alcohol, and asked the court for an opportunity to attend in-patient treatment before he was sentenced. The district court agreed and the treatment program appeared to be successful. Defendant’s success led the district court to impose a sentence of time served, giving credit for the 33 days spent in pretrial detention. The Tenth Circuit reversed, finding the sentence unreasonably short in light of the statutory sentencing factors. Of the seven statutory sentencing factors, three factors weighed against a time-served sentence, one pointed both ways, and three were inapplicable. The district court bore the delicate task of balancing these factors, but focused “almost exclusively” on defendant’s “newfound sobriety.” While this factor was important, in declining to impose any prison time, the court “effectively failed to give any weight to the congressional values of punishment, general deterrence, incapacitation, respect for the law, and avoidance of unwarranted sentencing disparities.” U.S. v. Walker, 845 F.3d 1253 (10th Cir. 2017).
2nd Circuit says 720-month sentence for child porn was substantively reasonable. (310)(742) Defendant pled guilty to three counts of producing child porno-graphy and two counts of possessing child pornography. He argued that his guideline sentence of 720 months was unreasonable because it resulted in a de facto life sentence. The Second Circuit disagreed. The court will “set aside a district court’s substantive deter¬mination only in exceptional cases where the trial court’s decision ‘can¬not be located within the range of permis¬sible deci¬sions.’“ Defendant did not show that the district court’s decision was exceptional. Given the seriousness of the crimes, a 60 year sentence was within the range that courts have upheld as reasonable for production of child pornography. This case was not like U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010), where the court rejected a 240-month sentence for distributing child porn as unreason¬able. Here, defendant had actual, repeated sexual contact with multiple young victims, and also engaged in the production of child pornography during the course of this abuse. Judge Pooler dissented. U.S. v. Brown, 843 F.3d 74 (2d Cir. 2016).
7th Circuit says criminal history containing mostly driving offenses was not overstated. (514)(742) Defen¬dant pled guilty to cocaine base and firearms charges. He fell within Criminal History III, with a 140-175 month guideline range. Defense counsel argued that Criminal History II would be more appropriate, with a guidelines range of 97-121 months, noting that defendant had a single felony when he was 18 years old, and all of his other criminal history points were because of driving offenses such as driving on a suspended license, as well as possession of marijuana and unlawful use of a weapon misdemeanors. The district court sentenced him to 132 months, stating in part that defendant got stopped “for a reason” and “all they could get you on was driving on a suspended license.” Defendant argued that there was no reason to assume that he had engaged in other criminal activity. The Seventh Circuit found no error, agreeing that the status of a person’s license is not apparent prior to the stop, so the district court could properly conclude that the initial stop was based on a different criminal concern.. In any event, the district court did impose a below-guidelines sentence based in part on defendant’s argument. U.S. v. Freeman, 843 F.3d 315 (7th Cir. 2016).
1st Circuit holds that oxycodone sentence at bottom of guideline range was reasonable. (252)(742) Defendant pled guilty to conspiring to distribute oxycodone. The district court calculated a guideline range of 57-71 months, and imposed a 57-month sentence, rejecting defendant’s request for a downward variance. The First Circuit upheld the sentence as reasonable, finding the district court articulated a plausible rationale for the sentence. The court noted that it had adjusted defendant’s base offense level downward, and stated that “[t]he [oxycodone] quantities involved in this case are simply too great to justify [both] the total offense level adjustment made by the Court and a substantial variance.” The sentence was at the bottom of defendant’s guideline range. Although a co-defendant received a sentence six months shorter than defendant, she received a one-level departure under § 5H1.6 based on her family ties and responsibilities, a departure that defendant did not seek and for which he was not eligible. U.S. v. Demers, 842 F.3d 8 (1st Cir. 2016).
8th Circuit holds that court properly considered guideline factors and adequately explained below-guidelines child porn sentence. (742) Defendant was convicted of producing child pornography. The district court found that the applicable guideline range was 360 months to life, but varied downward and imposed a sentence of 240 months. Defendant argued that the court failed to adequately consider the sentencing factors outlined in 18 U.S.C. § 3553(a) or to explain the reasons for the sentence imposed. The Eighth Circuit disagreed, concluding that the district court committed no procedural error. At sentencing the district court heard argument from both attorneys, as well as statements by defendant and the minor victim’s father. The district court made clear that the sentence imposed was “appropriate and reasonable in light of the considerations set forth in 18 United States Code, Section 3553(a).” The court specifically noted that it had taken into consideration defendant’s history and characteristics and the offense conduct at issue, concluding the “sentence imposed is sufficient, but not greater than necessary, to afford adequate deterrence to future criminal conduct.” The below-guideline sentence was substantively reasonable. U.S. v. Merrell, 842 F.3d 577 (8th Cir. 2016).
9th Circuit holds that within-guidelines 210-month sentence is not unreasonable. (742) At defendant’s sentencing for three counts of bank robbery and two counts of using or carrying a firearm during a crime of violence, the district court imposed the 32-year mandatory sentence for the firearm offenses and a low-end, within-guidelines 210-month sentence for the bank robberies. The Ninth Circuit held that the resulting 49-year sentence was not substantively unreasonable. U.S. v. Thomas, __ F.3d __ (9th Cir. Dec. 20, 2016) No. 14-10427.
7th Circuit finds sentencing court did not lengthen sentence to promote rehabilitation. (719)(742) Defendant pled guilty to drug charges. For reasons unrelated to her current appeal, the 7th Circuit vacated her sentence and remanded for resentencing. On remand, after discussing the §3553(a) factors, the court addressed defendant’s drug problem, stating that it was not satisfied that defendant had “undergone sufficient treatment for her drug problem.” The court found it “prudent” that defendant “receive further treatment and/or counseling so that she can continue with her life unencumbered by a drug addiction.” Her guideline range was 57-71 months, and the court imposed a 33-month sentence. The Seventh Circuit rejected defendant’s claim, raised for the first time on appeal, that the district court improperly lengthened her prison term to promote rehabilitation. The judge’s comment was in response to defendant’s earlier request that she “be housed at a grade-five facility which … is more consistent with her illness.” Immediately before the comment at issue, the court had referenced “the needs of the public and potential users of illicit drugs,” and the “need to keep heroin out of the hands of individuals who might … prolong their addiction.” The district court then logically moved to considering the defendant’s own addiction and the opportunity for treatment while incarcerated. U.S. v. Holman, 840 F.3d 347 (7th Cir. 2016).
2nd Circuit says post-conviction interviews with jurors did not warrant shorter sentence. (370) (742) Defendant, a CPA and tax attorney, was convicted of conspiracy to defraud the IRS, client tax evasion, IRS obstruction, and mail fraud. He argued on appeal that, at sentencing, the district court should have considered the interviews his attorneys had conducted with two jurors after the trial, in which the jurors said that they believed defendant was guilty only of backdating transactions, not of the entirety of the fraud. The Second Circuit rejected the argument, noting that the district judge did not ignore this information. He acknowledged the interviews but found that they did not justify a shorter sentence. Be¬cause the district court’s conclusion was reasonable, defendant’s procedural challenge failed. U.S. v. Daugerdas, __ F.3d __ (2d Cir. Sept. 21, 2016) No. 14-2437-cr.
2nd Circuit affirms reliance on acquitted conduct at sentencing. (718)(742) Defendant, a CPA and tax attorney, was convicted of conspiracy to defraud the IRS, client tax evasion, IRS obstruction, and mail fraud. He argued on appeal that his 180-month sentence was substantively unreasonable because it was based on conduct for which he was acquitted, ie., his participation in a massive tax fraud. The Second Circuit rejected the argument. It is well established that a district judge can take into account acquitted conduct in determining a sentence U.S. v. Daugerdas, __ F.3d __ (2d Cir. Sept. 21, 2016) No. 14-2437-cr.
8th Circuit finds legitimate reasons for longer bank robbery sentence. (716)(742) Defendant was convicted of conspiracy to commit bank robbery and three counts of aiding and abetting the robbery of those banks. He argued that his 210-month sentence was unreasonably long in relation to his co-defendants. His two co-defendants were each sentenced to a term of 30 months. The Eighth Circuit disagreed, noting that there were legitimate distinctions to support his longer sentence. The district court noted that defendant, who was 30 years old, not only persuaded his two co-defendants, ages 18 and 19, to commit the three bank robberies, but he furnished them with a gun, gave them instructions, sent them into banks, told them what to do and then they provided defendant with the money. The court felt that this was “actually worse than if he’d gone in by himself, where he had the gun and was in control.” Moreover, the teens pled guilty and testified at defendant’s trial. Finally, defendant’s sentence was at the low end of his applicable guideline range. The sentence was not unreasonable. U.S. v. Arnold, 835 F.3d 833 (8th Cir. 2016).
1st Circuit upholds below-guidelines child porn sentence as not too high. (310)(742) Defendant, the chief drug-enforcement prosecutor for the state of Maine, was convicted of seven child pornography counts and sentenced to 165 months. The First Circuit held that the sentence was procedurally and substantively reasonable. The district court properly used the sentencing guide¬lines, not the “national average of sentences for similar charges,” as a starting point for defendant’s sentence. The district court also properly applied 18 U.S.C. §3553(a). It recognized that defendant had eventually accepted responsibility for his actions, but it also weighed his flight prior to resentencing and questioned whether defendant’s new-found acceptance was a “form of conviction conversion.” Similarly, the court examined defendant’s prior employment as a prosecutor “as a factor in assessing his history and characteristics.” Defendant was not penalized for going to trial, he merely did not receive reductions that might have applied for cooperating and pleading guilty. The below-guidelines sentence, given the court’s attention to all of the §3553(a) factors, as well as the relative leniency of the sentence in light of the five-year guideline minimum, was reasonable. U.S. v. Cameron, 835 F.3d 46 (1st Cir. 2016).
8th Circuit upholds maximum child porn sentence for mother who assisted husband in abusing children. (310)(742) Defendant was charged with multiple counts of production and possession of child pornography, and eventually pled guilty to one count of receiving child pornography. The victims of the offenses were defendant’s minor daughters and infant granddaughter, who were abused by defendant’s husband, often in her presence and with her assistance. The guidelines provided for life imprisonment; however, the statutory maximum for a violation of 18 U.S.C. §2252(a)(2) was 20 years. The district court discussed the pertinent 18 U.S.C. §3553(a) factors, then imposed the 240-month sentence. The Eighth Circuit affirmed. The district court reviewed some key facts and circumstances of the case, noting in particular that defendant admitted she “scolded” her daughter when she discovered the girl naked in bed with defendant’s husband. Based on the §3553(a) factors, the district court concluded that it could not “find in this situation that a sentence of anything less than the statu¬tory maximum is appropriate.” U.S. v. Jensen, 834 F.3d 895 (8th Cir. 2016).
involved a computer or interactive computer service.” U.S. v. Burns, 834 F.3d 887 (8th Cir. 2016).
8th Circuit upholds top of guidelines child porn sentence. (310)(742) Defendant pled guilty to possession of child pornography, and was sentenced to 97 months, the top of the guideline range. The Eighth Circuit upheld the within-range sentence as substantively reasonable. The district court considered the §3553(a) factors and explained at length why it concluded that defendant’s offense was “profoundly serious,” emphasizing that defendant engaged in “hands on” abuse that damaged his daughter and family. His daughter recounted how his sexual abuse made her “live a life of hell” and caused a decade’s worth of “pain, heartache and suffering.” The court further emphasized that defendant had created his own child pornography by morphing the face of his daughter and others onto sexually explicit material. The court considered mitigating factors, and acknowledged evidence suggesting a low risk of recidivism. Ultimately, however, the court found that the mitigating evidence did not outweigh the “damage that’s been done and the unique nature of the conduct that’s involved in this case.” U.S. v. Burns, 834 F.3d 887 (8th Cir. 2016).
5th Circuit upholds life sentences for gun and drug smuggling charges. (742) Defendants were convicted of multiple gun and drug smuggling offenses, and were sentenced to life imprisonment. They argued for the first time on appeal that their life sentences were greater than necessary to comply with the statutory purposes of sentencing under 18 U.S.C. §3553, especially in light of their minimal criminal history. The Fifth Circuit upheld the life sentences as reasonable. At sentencing, the district court considered the §3553(a) sentencing factors, the factual information in the PSR, and all other information privy to the court. The sentencing guidelines took defendants’ lack of, or limited, criminal histories into account and nevertheless deemed life sentences appropriate. A sentence within the guideline range is presumed reasonable, and defendants failed to rebut that presumption. The district court noted the impact of the gun and drug trade on the numerous co-conspirators and their families, and also addressed the acute violence that defendant Lugo imposed on those who decided that they did not want to work for him. There was no error. U.S. v. Lugo-Lopez, 833 F.3d 453 (5th Cir. 2016).
8th Circuit upholds 768-month carjacking, drug and firearms sentence as not cruel and unusual. (140)(330) (742) Defendant was convicted of carjacking, distribution of heroin, and three counts of using or possessing a firearm in furtherance of a crime of violence or drug trafficking crime. The court sentenced him to 84 months on the non-firearms counts. Additionally, 18 U.S.C. §924(c) required consecutive sentences of 7 years, 25 years, and 25 years on the three firearms counts. The Eighth Circuit held that the 768-month sentence was not cruel and unusual punishment under the Eighth Amendment. Defendant committed two armed carjackings and placed three individuals in fear of their lives. The sentence was not substantively unreasonable. The district court sentenced defendant to 84 months on the non-gun offenses, at the bottom of the guidelines range. This sentence was presumed reasonable, and the sentence mandated by 18 U.S.C. §924(c) was statutorily required and was not subject to reasonableness analysis. U.S. v. Scott, __ F.3d __ (8th Cir. Aug. 5, 2016) No. 15-3461.
8th Circuit affirms consecutive life sentences for second-degree murder of parents. (210)(742) A jury convicted defendant of the second-degree murder of his parents in Indian country. His advisory guideline range was 360 months to life, but the district court imposed two consecutive life sentences. The Eighth Circuit rejected defendant’s argument that the sentences were substantively unreasonable. The district court articulated many reasons for the life sentences. First, a life sentence was within the guidelines range had defendant murdered only one parent. Second, defendant “brutally murdered” his fleeing parents in view of his young daughter. Third, defendant’s criminal history (26 convictions by age 26) was evidence of his disrespect for authority. Fourth, defendant posed “a substantial risk to public safety,” given his anger and past violence. The court explicitly considered mitigating factors, such as defendant’s mental health, substance abuse, employment, and family life, as well as the need to avoid unwarranted sentencing disparity. The court’s finding of premeditation was not erroneous, despite the jury’s acquittal of first-degree murder charges. U.S. v. Lasley, __ F.3d __ (8th Cir. Aug. 12, 2016) No. 15-1738.
1st Circuit upholds explanation for carjacking sentence. (224)(742) Defendant pled guilty to carjacking and possessing a firearm during a crime of violence. The court adopted the PSR’s 70-87 month sentencing range for the carjacking count, the mandatory minimum of 84 months for the firearm count, and sentenced defendant to consecutive sentences of 70 months and 84 months. The First Circuit rejected defendant’s argument, raised for the first time on appeal, that the judge inadequately explained its reasons for the sentence. The judge discussed defendant’s youth, fatherhood status, battles with drug addiction and depression, and intellectual deficiencies. The judge also noted that one of defendant’s carjacking collaborators had sexually attacked a female victim in defendant’s presence. The judge emphasized that any sentence had to advance respect for the law, just punishment, deterrence, and protection of the public. The sentence was procedurally reasonable. U.S. v. Garay-Sierra, __ F.3d __ (1st Cir. Aug. 5, 2016) No. 14-1418.
1st Circuit says high guidelines range for common child porn features did not make sentence unreasonable. (310)(742) Defendant, a school aide for special-needs students, pled guilty to sexually exploiting three minors, as well as transporting, receiving and possessing child pornography. The judge found that the applicable guideline range was life imprisonment, and imposed a below-guide¬lines sentence 65 years. Defendant challenged for the first time on appeal a number of enhancements that he claimed did not “make sense” or punished him for “inherent” and “standard” features of child pornography, which were already factored into his base offense level. The First Circuit found no plain error. Defendant’s arguments “boil[ed] down to an assertion that the child pornography guidelines are just bad policy.” However, a sentencing judge is free to agree with the guidelines, even if a defendant finds them to be bad policy. The judge simply declined to accept defendant’s argument that the guidelines were too harsh. U.S. v. Arsenault, __ F.3d __ (1st Cir. Aug. 10, 2016) No. 15-1161.
8th Circuit upholds 480-month sentence for sex offender in light of “repugnant aggravating factors.” (310) (742) Defendant pled guilty to sexual exploitation of child-ren and commission of a felony offense involving a minor while being required to register as a sex offender. Defendant’s offense level was above 43, and the district court sentenced him to 480 months. The Eighth Circuit rejected defendant’s claim that his guideline sentence was unreasonable. The court stated that it “look[ed] very carefully” at the §3553(a) factors, noting defendant’s history of stable employment and lack of alcohol or substance abuse. While it found that the arguments for a downward variance were “wholehearted and supported by the record,” they “just simply pale in comparison to the aggravating factors in this case.” The district court noted the presence of minor victims, the use of fake identities to trick the minors, and defendant’s history as a sex offender preying on female children. The panel concluded that “the repugnant aggravating factors of this case were properly considered.” U.S. v. Jauron, __ F.3d __ (8th Cir. Aug. 10, 2016) No. 15-2378.
8th Circuit upholds life sentence for aggravated sexual abuse of children. (310)(742) A jury convicted defendant of three counts of aggravated sexual abuse, in violation of 18 U.S.C. §§1153 and 2241(c), as well as three counts of abusive sexual contact, in violation of 18 U.S.C. §§1153 and 2244(a)(5). The guideline sentence was life imprisonment, but defendant argued that because he was 66 years old, the 30-year statutory minimum would effectively be a life sentence. The Eighth Circuit held that the life sentence was reasonable. A sentence within the guidelines range is accorded a presumption of substantive reasonableness on appeal. The district court found that defendant demonstrated a high risk to re-offend, noting that the sexual assaults occurred over a period of a decade. Defendant abused the close relationship that he had with his grandchildren, showed no remorse, and attempted to cover up his crimes. U.S. v. St. Claire, __ F.3d __ (8th Cir. Aug. 5, 2016) No. 15-3665.
8th Circuit holds 360-month sentence for child porn offenses was substantively reasonable. (310)(742) Defendant pled guilty to production of child pornography, and the district court sentenced him to 360 months. The Eighth Circuit found the sentence was substantively reasonable. Defendant was sentenced within the guidelines range of 360 months to life. Defendant created sexually explicit photos and videos of two young girls. The fact that he had a record of steady employment and no criminal history did not render his sentence unreasonable. Further, a medical evaluation performed in advance of sentencing characterized defendant’s alleged mental difficulties as malingering. As such, it was reasonable for the district court to assign little weight to this mitigating factor. The district court did not commit clear error in weighing these factors. U.S. v. Clark, __ F.3d __ (8th Cir. Aug. 5, 2016) No. 15-3730.
7th Circuit reverses gun sentence that was double the guideline range. (742) In 2005, defendant was sentenced to 300 months in prison for illegally possessing a shotgun. The sentence was later determined to be invalid, and in 2015, he was resentenced to 176 months. Defendant was credited with having served 160 months of imprisonment, so the new sentence was effectively a sentence of 16 months. However, the 176-month sentence was more than double the high-end of his recalculated guideline range of 70-87 months. The district court cited the gravity of the defendant’s criminal history prior to 2005, and the fact that he had filed complaints critical of judicial behavior by various judges and alleged conspiracies linking judges and other officials to grievances defendant had suffered decades ago. The Seventh Circuit reversed, finding the cited grounds were “flimsy.” Most of defendant’s criminal history before the shotgun offense consisted of driving offenses, and he could not drive any longer because of a vision problem. As for pestering federal judges with groundless complaints, defendant had a constitutional right to petition the government for redress of grievances. He had not threatened anybody with violence or criminal harm, and the judge offered no adequate reason for inferring a risk of recidivism from the contents of his complaints. U.S. v. Taylor, __ F.3d __ (7th Cir. Aug. 15, 2016) No. 16-1019.
3rd Circuit affirms refusal to vary or depart downward. (716)(742) Defendant, part of a heroin distribution ring, was convicted of various federal drug and weapons charges. He argued on appeal that the district court erred by (1) treating the guidelines as mandatory; (2) failing to consider the sentence disparities between him and his co-defendants; and (3) failing to consider the §3553(a) sentencing factors. The Third Circuit rejected these arguments. First, the court’s statement that it must “abide” by the guidelines’ career offender classification did not mean that it felt bound by the guidelines. Second, the disparity with the co-defendants’ sentences was understandable given the co-defendants’ lower criminal history categories and acceptance of responsibility. As to the §3553(a) factors, the court gave careful consideration to defendant’s “difficult childhood” and reasonably concluded that a within-Guidelines sentence was warranted in light of his life of crime. U.S. v. Stevenson, __ F.3d __ (3d Cir. Aug. 9, 2016) No. 15-1942.
8th Circuit upholds sentencing disparity for abuse of trust while acting as co-defendant’s attorney. (716) (742) Defendant laundered drug proceeds he received from Lusk through his law firm, and then lied to an IRS agent about the financial arrangements. He received a below-guidelines sentence of 60 months. However, defendant argued he should have received an even shorter sentence, because other conspirators received the same or lower sentences than his. The Eighth Circuit found no abuse of discretion. The district court found defendant especially culpable for abusing the trust Lusk placed in him when he was acting as Lusk’s attorney. Early on in the investigation, the government entered into a proffer agreement with Lusk under which his statements to authorities would not be used directly against him – on condition that he told them the complete truth. Defendant advised Lusk not to say anything during his proffer session about their financial arrangement, warning Lusk that “it could ruin me.” Lusk followed this advice and thus lost the benefit of the proffer agreement. The district court properly found that defendant’s decision to put his own interests ahead of his client was “a very serious matter” and “very aggravating.” U.S. v. Boedigheimer, __ F.3d __ (8th Cir. Aug. 2, 2016) No. 15-1613.
8th Circuit says defendant did not rebut presumption that low end of fraud range was reasonable. (218) (742) A jury convicted defendant of multiple offenses relating to immigration fraud and government-benefits fraud. The district court sentenced her to 87 months, which fell at the bottom of her advisory guideline range of 87-92 months. The Eighth Circuit rejected defendant’s claim that her sentence was substantively unreasonable. The district court explained that it considered the PSR, the mitigating factors presented by defendant, and the statutory factors in 18 U.S.C. §3553. But the court weighed heavily the “very serious” nature of defendant’s offenses, which involved fraud committed in “a very large number of means and ways” that occurred “repeatedly over a long period of time.” The court also expressed a desire to protect the public from defendant, noting that she engaged in additional criminal activity even while on release following her conviction. Defendant failed to rebut the presumption of reasonableness that applied to her bottom of guideline range sentence. U.S. v. Nguyen, __ F.3d __ (8th Cir. July 18, 2016) No. 15-2687.
1st Circuit says court properly rejected request for below-guidelines child porn sentence. (310)(742)(760) Defendant pled guilty to one count of possessing child pornography. He argued that his 135-month sentence was substantively unreasonable, and that he should have been sentenced below the guidelines to the 70-87 months recommended by the parties in the plea agreement. The First Circuit found no abuse of discretion. The district court discussed some of the mitigating factors defendant identified, but found that a below-guidelines sentence would not reflect the seriousness of the offense, promote respect for the law, or protect the public. The court further explained that although defendant did not “touch[ ] or abuse[ ]” children himself, his possession of child pornography fueled the market for child pornography, and thus indirectly harmed children. U.S. v. Gall, __ F.3d __ (1st Cir. July 15, 2016) No. 14-1948.
8th Circuit rejects argument that below-guidelines sentence was too high. (340)(742)(855) Defendant pled guilty to illegally reentering the U.S. after deportation. His guideline range was 70-87 months, and the court sentenced him to 48 months. On appeal, defendant argued that his sentence was procedurally unreasonable be¬cause the court failed to adequately explain why his requested sentence of time served was not sufficient. The Eighth Circuit found no error. The sentencing judge listened to each of defendant’s arguments, considered the supporting evidence, responded appropriately, and gave a reasoned basis for its below-guidelines sentence. The court acknowledged the financial and human costs of prison and defendant’s valid desire to get back to his family, but explained that defendant’s history of felony domestic assault made deportation without incarceration inappropriate. The court said defendant’s crime required “a sentence of more than time served to reflect the severity of the offense,” to account for his prior 18 months in prison, and to deter him from illegally returning to the United States again. No further explanation was required. U.S. v. Torres-Ojeda, __ F.3d __ (8th Cir. July 22, 2016) No. 15-3441.
8th Circuit upholds sentence at bottom of range for Lacey Act trafficking. (355)(742) Defendant, a taxidermist, pled guilty to Lacey Act trafficking, based on his involvement in the purchase and sale of a pair of rhinoceros horns. The district court sentenced him to 27 months, at the bottom of his 27-33 month guideline range. The Eighth Circuit rejected defendant’s claim that the sentence was unreasonable. The district court considered defendant’s criminal history and the effect the sentence would have on his relationship with his son, and disagreed with defendant’s claim that he was not a “repeat offender.” The district court “carefully consider¬ed” the §3553(a) factors. Responding to defendant’s argument that other individuals received more lenient sentences, the district court explained it could not “speculate why judges in different judicial districts across the country decided on a particular disposition for a particular defendant.” Defendant did not overcome the presumption that his sentence at the bottom of the range was reasonable. U.S. v. Hess, __ F.3d __ (8th Cir. July 18, 2016) No. 15-3551.
7th Circuit says money paid to settle civil suit was not extraordinary acceptance of responsibility. (480)(742) Defendant was convicted of fraud and money laundering, and sentenced to 46 months, the top of his guideline range. The Seventh Circuit rejected defendant’s argument that the district court failed to consider his arguments in mitigation. The judge was not required to specifically address defendant’s undeveloped contention that he had pleaded guilty in spite of his likely deportation. Moreover, the $400,000 defendant paid to the victim before pleading guilty was not “an extraordinary acceptance of responsibility.” Defendant’s payment was not even voluntary, as he settled the civil suit only days before he pleaded guilty, three years after he had been ordered to pay over $1 million. The judge did take this payment into consideration by ordering defendant to pay restitution of only $178,500, the sum left over after $400,000 was subtracted from the total loss amount. U.S. v. Eberts, __ F.3d __ (7th Cir. July 22, 2016) No. 15-2596.
7th Circuit says court need not specifically address 18 U.S.C. §3553(a) sentencing factors. (742) Defendant was convicted of fraud and money laundering, and sentenced to 46 months, the top of his guideline range. The Seventh Circuit rejected his argument that the district court erred by failing to specifically address the §3553(a) factors, thus forcing the parties to “ascribe some connection implicitly.” A district court need not explicitly mention each or any of the §3553(a) factors, as long as the judge’s reasoning is consistent with the applicable sentencing factors. The court’s reasoning here easily satisfied that standard. The judge considered the nature and circumstances of the offense (highlighting that defendant took advantage of his victim by selling him a “con job” to maintain his “glamorous” and “fast’ lifestyle), defendant’s history and characteristics (stressing that he continued his fraudulent behavior while out on bond), the need to protect the community (finding a “substantial likelihood” that defendant would reoffend), and the need to promote respect for the law and provide just punishment (noting that the sentence should convey to defendant and anyone thinking of committing similar crimes that they “can’t take advantage of vulnerable people like that”). U.S. v. Eberts, __ F.3d __ (7th Cir. July 22, 2016) No. 15-2596.
7th Circuit finds court considered §3553(a) factors in sentence for sexually exploiting children. (310)(742) Defendant, who filmed at least five minor girls undressing and showering in his home, was convicted of 22 counts of sexual exploitation of children. The guideline range was 324-405 months, but court varied downward to a sentence of 216 months. The Seventh Circuit rejected defendant’s claim that his below-guidelines sentence was procedurally unsound or substantively unreasonable. Although the district court did not explicitly list each §3553(a) factor, it gave meaningful consideration to the relevant factors. It considered that defendant had made a sincere apology, was remorseful, and had a limited criminal history. It contrasted that, however, with the seriousness of his offense, in particular the detrimental effect on the victims. It also considered the circumstances of the offense, which required extensive preparation, explaining that defendant’s conduct was far worse than just a “lapse in judgment.” Defendant did not rebut the presumption that his below-guidelines sentence was substantively reasonable. U.S. v. Miller, __ F.3d __ (7th Cir. July 14, 2016) No. 15-2239.
1st Circuit finds sufficient reasons why defendant received harsher sentence than co-conspirators. (716)(742) Defendant was convicted of drug conspiracy charges, and sentenced to 170 months, within his guide¬line range of 151-188 months. He argued that there was an unreasonable disparity between his sentence and that of his co-conspirators, who received below-guide¬lines sentences of 48, 104, 120 and 120 months, respectively. The First Circuit disagreed. The most obvious explanation for the difference in sentences was that the co-conspirators all pleaded guilty and three testified against defendant, who was a principal cocaine supplier for the conspiracy. U.S. v. Ortiz-Islas, __ F.3d __ (1st Cir. July 11, 2016) No. 14-1864.
7th Circuit says court adequately explained guideline sentence. (742) Defendant was convicted of committing or attempting to commit four separate robberies over a 12-month period between 2007 and 2008. All four incidents involved the use of a gun, and two were particularly violent. The district court calculated a guideline range of 360 months to life, and sentenced defendant to 432 months. The Seventh Circuit found the court adequately explained the sentence. The district court emphasized that defendant had engaged in “extremely costly, menacing, dangerous activity,” and discussed the violent way defendant wielded his weapon, and the emotional and financial trauma that his victims suffered. The court also referenced defendant’s personal history and characteristics, in particular, his refusal to accept full responsibility for his crimes, his artistic talents, and his troubled upbringing. The district court’s analysis reflected “an individualized assessment” that allowed for “meaningful appellate review and … promote[d] the perception of fair sentencing.” U.S. v. Banks, __ F.3d __ (7th Cir. July 8, 2016) No. 14-3461.
7th Circuit finds court adequately addressed mitigation arguments. (742) Defendant committed or attempt¬ed to commit four separate robberies over a 12-month period. The district court calculated a guideline range of 360 months to life, and sentenced him to 432 months. Defendant argued that during sentencing, the district court failed to address three of his principal mitigation arguments. The Seventh Circuit disagreed, finding that while the court’s response to these arguments was “in¬direct and brief,” it was “not so deficient as to constitute procedural error.” The court addressed defendant’s harsh confinement conditions after an escape, acknowledging that prison officials “overreacted” to defendant’s escape. The court also addressed defendant’s argument that his criminal-history category overstated his earlier unlawful actions. The court found defendant’s description of himself as “anti-gun” untenable, since he had used a gun, often violently, in all four of his robberies. In addition, the district court indirectly addressed defendant’s argument regarding his poor self-representation, insofar as she criticized him for “reject[ing] the services of lawyers … who prepared amply for his defense.” The judge also noted that these attorneys “begged” her at closing argu¬ment to “allow them to make a closing for [defendant], because they saw an opportunity for a defense.” U.S. v. Banks, __ F.3d __ (7th Cir. July 8, 2016) No. 14-3461.
8th Circuit says court did not improperly apply presumption of reasonableness to guideline sentence. (742) Defendant pled guilty to making a false statement in the purchase of a firearm and being a felon in possession of a firearms. He challenged his 84-month guideline sentence, arguing that the court improperly applied a presumption of reasonableness, did not conduct an “individualized assessment,” and selected “a sentence that just happened to fall in the middle of the Guideline range.” The Eighth Circuit found no error, finding the record demonstrated that the court adequately analyzed the sentencing factors in 18 U.S.C. §3553(a). The district court “considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal decision-making authority.” U.S. v. Ewert, __ F.3d __ (8th Cir. July 7, 2016) No. 15-3043.
2nd Circuit affirms below-guideline sentence for fraud defendant as not too high. (218)(742) Defendant was convicted of wire fraud based on his involvement in a Ponzi scheme and a related fraudulent real estate scheme. The Second Circuit ruled that defendant’s 144-month sentence, which was substantially below his 324-405 month guidelines range, was substantively reason¬able. The district court observed that the loss amount, over $20 million, overstated the seriousness of the offense, as defendant was not a predatory fraudster, had engaged in significant investment activity, and had himself been defrauded. Additionally, the court noted that, although defendant misled clients about the risk, he did not steal from them outright, had not led a lavish lifestyle, and was a first-time offender. The district court nonetheless determined that a substantial sentence was necessary because of the severity of defendant’s conduct and the resulting devastation he caused. U.S. v. Rivernider, __ F.3d __ (2d Cir. July 7, 2016) No. 14-4865.
8th Circuit upholds robbery sentence in middle of guideline range. (224)(742) Defendant pled guilty to bank robbery and firearms charges. His advisory sentencing range, after two mandatory minimum firearms sentences were included, was 264-294 months. The district court sentenced him to 279 months, noting that the factors weighing in favor of a longer sentence included defendant’s criminal history and the “aggravating circumstances of the offense,” but that it “cut it back to the middle of the guidelines [because of your] difficult upbringing.” Defendant argued for the first time on appeal that the district court’s brief reference to his difficult childhood was insufficient to demonstrate that it had considered the “history and characteristics of the defendant” as required by §3553(a)(1). The Eighth Circuit found no plain error. A district court need not “categorically rehearse” each of the §3553(a) factors, as long as it is clear that they were considered. The court did not err by placing greater weight on some relevant factors and less weight on others. U.S. v. Clayton, __ F.3d __ (8th Cir. July 6, 2016) No. 15-1479.
8th Circuit upholds three-month prison sentences for corporate officers convicted of misdemeanor. (348)(742) Defendants, corporate officers for an egg production company, pled guilty to the misdemeanor offense of introducing eggs adulterated with salmonella into interstate commerce. The Eighth Circuit held that their three-month prison sentences were procedurally and substantively reasonable. The court found that while defendants cleaned their barns and administered a second salmonella vaccine to their chickens in 2010, they did not test or divert eggs until July 2010, even though they had reason to suspect their contamination. The court did not clearly err in determining that defendants’ actions or inactions were insufficient and blameworthy under these circumstances. The court also did not clearly err in interpreting the evidence to show that defendants had failed to follow all of the expert recommendations they had previously used to eliminate salmonella in their other facility. The sentences were presumptively reasonable because they were within the stipulated guideline range of 0-6 months for each defendant. Defendants had “created a work environment where employees not only felt comfortable disregarding regulations and bribing USDA officials, but may have felt pressure to do so.” U.S. v. DeCoster, __ F.3d __ (8th Cir. July 6, 2016) No. 15-1890.
1st Circuit reverses where court improperly consider¬ed violent lyrics in defendant’s songs. (742) Defendant, convicted of firearms charges., was part of a local musical group that was “fairly known” in the housing project where he was arrested. The majority of songs recorded by his group “promote[d] violence, drugs and the use of weapons.” Defendant’s guideline range was 24-30 months, but the district court imposed a sentence of 96 months. The court found that “the lyrics of this music confirm … this individual’s involvement with firearms, with violence, with murders, in the context of a community like the [housing project].” The lyrics and music videos reflected a need for deterrence, because they comprised “written and visual confirmation” of defendant’s “inclination as to violence.” The First Circuit reversed. Implicit in the court’s rationale was “the assumption that the lyrics and music videos accurately reflect the defendant’s motive, state of mind, personal characteristics ….” However, “artistic expression … has an ambiguous relationship to the performer’s personal views.” U.S. v. Alvarez-Nunez, __ F.3d __ (1st Cir. July 8, 2016) No. 15-21274865.
8th Circuit upholds court’s explanation for guideline sentence in illegal reentry case. (742)(775) Defendant pled to illegal reentry after deportation. The district court calculated a guideline range of 70-87 months, rejected defendant’s request for a downward variance to 36 months, and sentenced him to 84 months, followed by three years of supervised release. Defendant argued for the first time on appeal that the district court failed to provide an adequate explanation for the sentence. The Eighth Circuit held that the district court’s explanation was adequate in the context of the case. The court listened to the parties’ arguments and determined that the circumstances did not warrant a downward variance. Defendant had four convictions for illegal reentry, in addition to other criminal convictions, so there was no need for an elaborate discussion of why the court agreed with the guideline range. The court thought the need for deterrence outweighed the defendant’s pleas for leniency based on personal circumstances. U.S. v. Chavarria-Ortiz, __ F.3d __ (8th Cir. July 7, 2016) No. 15-3031.
8th Circuit upholds 960-month sentence for child porn as not unreasonable. (310)(742) Defendant pled guilty to four counts of production and one count of possession of child pornography. His guideline range was 360-1680 months, and the district court sentenced him to 960 months. Defendant argued on appeal that the sentence was substantively unreasonable, contending that the district court did not give enough weight to the fact that his starting and stopping of the video recording resulted in four separate counts of conviction, rather than one, for production of child porn. With a single conviction for production, defendant would have been subject to a maximum 600-month sentence. The Eighth Circuit affirmed the 960-month sentence, noting that the district court was not required to give the mitigating factors cited by defendant more weight than the aggravating factors. Defendant committed four separate offenses when he decided to create four video recordings. It was not un¬reasonable to hold him accountable for that choice. U.S. v. Sholds, __ F.3d __ (8th Cir. July 1, 2016) No. 14-3720.
7th Circuit says court could not consider mandatory consecutive firearms sentence as basis for lower robbery sentence. (224)(330)(742) Two defendants pled guilty to five counts of Hobbs Act robbery, and one count of brandishing a firearm during a crime of violence. For brandishing a firearm, both men received a consecutive, statutory minimum sentence of seven years. They argued for the first time on appeal that the district court, in determining their robbery sentences, should have been free to take into account the mandatory, consecutive nature of their §924(c)(1) sentences. This argument was previously rejected U.S. v. Roberson, 474 F.3d 432 (7th Cir. 2007), and the Seventh Circuit found no compelling reason to overturn Roberson, and upheld the sentences. U.S. v. Ikegwuonu, __ F.3d __ (7th Cir. June 13, 2015) No. 15-2407.
8th Circuit says refusal to vary downward not an abuse of discretion. (742) Defendant pled guilty to embezzlement by a bank employee. Her guideline range was 21-27 months, and the district court sentenced her to 21 months. The Eighth Circuit upheld the district court’s refusal to vary downward, even though defendant offered persuasive evidence. The character letter from the bank president was certainly favorable to defendant, as he was a distinctive, unorthodox character witness. Defendant also offered evidence that the crime was out of character for her, and that she had made strides since committing the crime to straighten out her life. She had no criminal history and had paid a notable amount of her restitution due ($159,181.47 of the $181,393.63) at the time of sentencing. However, the district court discussed the restitution, and did not abuse its discretion in failing to vary downward on that basis. U.S. v. Kobriger, __ F.3d __ (8th Cir. June 10, 2015) No. 15-2641.
7th Circuit finds court considered child porn defen¬dant’s mitigating arguments. (310)(742) Defendant pled guilty to distributing child pornography, and was sen¬tenced to 120 months, below his guideline range of 151-188 months. Defendant had argued for a 60-month sentence, noting that today most child porn crimes are committed with Internet-connected computers, making it fast and easy to amass or distribute a huge and diverse collection. The Seventh Circuit upheld the sentence, noting that defendant’s argument was not individualized, but was simply a blanket attack on the guideline, which courts need not consider. U.S. v. Schmitz, 717 F.3d 536 (7th Cir. 2013). Nevertheless, the district judge did consider defendant’s argument, finding no evidence that defendant had ever molested a child, and accepting defendant’s argument that it was relevant whether an offender’s collection is or is not carefully categorized (a factor not mentioned by the guidelines). The judge also considered and rejected defendant’s argument that his possession of particular heinous images should not be an aggravating factor. U.S. v. Hancock, __ F.3d __ (7th Cir. June 3, 2016) No. 15-1779.
D.C. Circuit says failure to discuss defendant’s dis¬ability did not mean court did not consider it. (742) Defendant was convicted of the federal offense of being a felon in possession of a firearm, as well the District of Columbia offenses of conspiracy, assault, kidnapping, burglary and obstruction of justice. The district court sentenced him to 25 years. Defendant argued for the first time on appeal that the district court failed to consider his intellectual disability. The D.C. Circuit disagreed. At sentencing, the district court explained the §3553(a) factors to which it was giving particular weight and those that it found less compelling. The court emphasized defendant’s criminal history and the dangerous nature of the crimes. It did not mention defendant’s intellectual disability, but that did not mean it did not consider it. Given the parties’ discussions about defendant’s intellect¬ual abilities, it was impossible to conclude that the district court did not consider it. There is no requirement to discuss every §3553(a) factor at sentencing. U.S. v. Knight, __ F.3d __ (D.C. Cir. June 10, 2016) No. 14-3010.
D.C. Circuit affirms 25-year sentence for felon in possession who committed other local offenses. (742) Defendant was convicted of being a felon in possession of a firearm, as well as related District of Columbia of¬fenses. The district court sentenced him to 25 years. The D.C. Circuit rejected defendant’s claim that his sen¬tence was substantively unreasonable. Defendant was convict¬ed of being a felon in possession of a firearm, conspiracy, assault with a dangerous weapon, kidnapping while armed, burglary while armed, possession of a firearm during a crime of violence, and obstruction of justice. He had an extensive criminal history that included other violent felonies. It was reasonable for the district court to conclude that a 25-year sentence was appropriate. U.S. v. Knight, __ F.3d __ (D.C. Cir. June 10, 2016) No. 14-3010.
5th Circuit finds marijuana sentence at bottom of range was not unreasonably high. (742) Defendant was involved in a large marijuana conspiracy. He argued that his bottom-of-the-guidelines sentence of 360 months was substantively unreasonable, emphasizing that he would not be released until he is almost 70, and that even at age 38 he suffered from serious heart problems. Citing U.S. v. Payton, 754 F.3d 375 (6th Cir. 2014), defendant con¬tended that, in selecting his sentence, the district court erroneously failed to take into account that the risk of recidivism declines after the age 50, in part because older offenders have more health problems than younger of¬fenders. The Fifth Circuit held that defendant did not show that the district court erred in balancing the sen¬tencing factors, or that the guidelines sentence imposed was an abuse of discretion, and did not rebut the pre¬sumption of reasonableness that applied to his bottom-of-the-guidelines sentence. The court noted that defendant’s history of serious health problems had not prevented him from trafficking in large quantities of marijuana. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
5th Circuit finds life sentence for marijuana was reasonable. (742) Defendant was a leader of a marijuana conspiracy. He argued that his sentence of life im-prisonment, which fell within his guideline range, was substantively unreasonable. The Fifth Circuit disagreed. The district court did not, as defendant claimed, fail to consider defendant’s background, lack of criminal hist¬ory, or the disparity between his sentence and that of co-conspirator Pieper. The court expressly considered defen¬dant’s background and lack of criminal history, along with other relevant sentencing factors. Although Pieper’s sentence of 145 months was significantly shorter than defendant’s, Pieper and defendant were not similarly situ¬ated. Pieper pleaded guilty to conspiracy and assisted the prosecution. Defendant failed to overcome the presump¬tion that his within-guidelines sentence was reasonable. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
8th Circuit finds defendant waived argument that court’s explanation of sentence was inadequate. (742) Defendant pled guilty to failure to register as a sex offender, and was sentenced to 21 months, at the bottom of his 21-27 month guideline range. Defendant argued that the court failed to adequately explain why it rejected his request for a downward departure, but the Eighth Circuit found that he explicitly waived this argument. The court gave defendant an opportunity to request “any further elaboration” of its statement of reasons for the sentence. In response, defendant raised a point of clarifi¬cation regarding the date of his arrest, and the district court responded in his favor, finding that defendant should receive credit for time served starting at the earlier date that he mentioned. After this point was re¬solved, defendant said he had “no other questions or concerns.” Thus, the defendant waived any argument that the district court’s explanation of its sentence at the hearing was inadequate. U.S. v. Dieguez, __ F.3d __ (8th Cir. May 27, 2016) No. 15-3371.
8th Circuit affirms §3553(a) factors in imposing bottom of guideline sentence. (742) Defendant pled guilty to failure to register as a sex offender, and was sentenced to 21 months, at the bottom of his 21-27 month guideline range. He argued that the sentence was sub-stantively unreasonable because the court erred in weigh¬ing the §3553(a) sentencing factors. The Eighth Circuit disagreed. The record showed that the district court considered the §3553(a) factors and determined that, particularly in light of the defendant’s previous violations of the registration requirement, the 21-month, within-guidelines sentence appropriately “reflect[ed] the seri¬ousness of the offense” and would “promote respect for the law” and “provide just punishment for the offense.” U.S. v. Dieguez, __ F.3d __ (8th Cir. May 27, 2016) No. 15-3371.
8th Circuit reverses career offender sentence for Johnson error and rejects alternative sentence. (520) (742) Defendant was sentenced to 262 months as a career offender based on the “residual clause” of §4B1.2(a)(2). The court indicated, alternatively, that even if defendant was not a career offender, it would still sentence him to 262 months. The government conceded on appeal that defendant no longer qualified as a career offender after Johnson v. U.S. Pg. __ U.S. __, 135 S. Ct. 2551 (2015), but argued that the error was harmless because the court imposed a reasonable alternative sentence. The Eight Cir¬cuit, assumed without deciding that Johnson applied, and held that the alternative sentence was substan¬tively unreasonable. If defendant was not a career offen¬der, his guideline range would have been only 121-151 months. The court cited two reasons for the severe variance: (1) defendant’s prior convictions for unlawful discharge of a firearm and escape while under arrest; and (2) evidence that defendant had ties to local gangs. How¬ever, the escape offense involved 19-year old defendant throwing an elbow at a police officer without striking the officer and running for a short distance. Defendant had already received criminal history points for this. As for the alleg¬ed gang ties, defendant appeared in music videos and photographs with gang members, but there was no evi-dence that he actively engaged in any egregious violent behavior. U.S. v. Martinez, __ F.3d __ (8th Cir. May 3, 2016) No. 15-1004.
1st Circuit finds reasons for sentencing within range were apparent from transcript. (742)(775) Under 18 U.S.C. §3553(c), the court “at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence” and, if the guideline range spans more than 24 months, shall also state “the reason for imposing a sentence at a particular point within the range.” Defendant argued for the first time on appeal that the sentencing court did not adequately comply with these requirements in sentencing him to a top-of-the-guideline range 168 months. The First Circuit found no plain error, because the district court’s rationale was readily apparent from the sentencing transcript. “The court made no bones about its belief that the defendant’s criminal history score underrepresented his culpability because of his pattern of arrests and the persistent lack of follow-up with respect to the charges that were filed against him. It could well have believed that such items, even absent facts about the underlying conduct, spoke directly to the character of the individual, the risk of recidivism, and the need to protect the public from future crimes.” U.S. v. Cortes-Medina, __ F.3d __ (1st Cir. May 12, 2016) No. 14-1101, superseding 810 F.3d 62 (1st Cir. Jan. 6, 2016).
1st Circuit holds that within-guideline sentence was not substantively unreasonable. (742) Defendant served as an “enforcer” for a drug-trafficking ring, and pled guilty to conspiracy to possess with intent to distribute controlled substances within 1,000 feet of a protected location. His guideline range was 135-168 months, and the district court sentenced him to 168 months. Defendant argued for the first time on appeal that his sentence was substantively unreasonable. The First Circuit found no plain error. The offense of conviction was serious, and defendant’s criminal history was “bleak.” Although his efforts at rehabilitation were “laudable,” the district court was in the best position to balance the sentencing scale in light of such claim. The sentence did not punish him twice for the same criminal conduct. The Puerto Rico drug-trafficking conviction identified by defendant was not assigned any criminal history points. The fact that the parties jointly agreed to recommend a lower (downwardly variant) sentence did not make his guideline sentence unreasonable. U.S. v. Cortes-Medina, __ F.3d __ (1st Cir. May 12, 2016) No. 14-1101, superseding 810 F.3d 62 (1st Cir. Jan. 6, 2016).
6th Circuit holds that within- and below-guidelines sentences were not substantively unreasonable. (742) Sixteen defendants, members of an Amish community, were convicted of crimes stemming from a spate of hair-cutting and beard-shearing attacks against other Amish individuals. The district court adopted a tiered approach at sentencing, sentencing the leader to 180 months, four defendants to 84 months, three to 60 months, two to 24 months, and the remaining six to a year and a day. They argued that their sentences, were too long in relation to the seriousness of the offenses and greater than neces¬sary. 18 U.S.C. §3553(a). The Sixth Circuit held defen¬dants failed to rebut the presumption that their within- and below-guidelines sentences were substan¬tively rea¬sonable. They argued that the sentences created “unwar¬ranted” disparities as compared to the average sentences for defendants convicted nationwide of obstruction or hate crimes. However, because the point of the guidelines is to reduce disparities, general statistics that cover a multitude of other crimes committed in a multitude of other ways do not create an “unwarranted” disparity. The court stated that it reviewed each defendant’s submis-sions. It was not obligated to discuss everything raised by every defendant. U.S. v. Mullet, __ F.3d __ (6th Cir. May 4, 2016) No. 15-3212.
2nd Circuit affirms 47-year sentence for child pornography offenses. (310)(742) Defendant pled guilty to various child pornography counts, and was sentenced to 47 years in prison. He argued that the sentence was procedurally and substantively unreasonable because the district court did not conduct a sufficient analysis of the sentencing factors in 18 U.S.C. §3553(a), or consider the shortcomings that courts have identified in the child pornography guidelines and the various enhancements in U.S.S.G. §2G2.2. The Second Circuit upheld the sentence, distinguishing U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010), on the ground that it involved only distri¬buting child pornography. Here, in contrast, the offenses includ¬ed the repeated sexual abuse of a pre-pubescent child over a period of two years for the purpose of producing child porn. The criminal conduct driving defendant’s sentence was the rape of a child, not simply the pos¬ses-sion of pornographic images. Dorvee’s concern about excessive punish¬ments had little bearing on the sentence in a case of this nature. U.S. v. Pattee, __ F.3d __ (2d Cir. Apr. 21, 2016) No. 14-2163-cr.
1st Circuit says drug defendant who went to trial and furnished plane was not similar to co-conspirator who pled guilty. (716)(742) Defendant was convicted of conspiracy to import five or more kilograms of cocaine into the United States. He challenged his 235-month sentence, arguing for the first time on appeal that it was longer than the 120-month sentence of co-conspirator Nunez, who accompanied defendant on a drug smuggling flight from the Dominican Republic to Puerto Rico. The First Circuit found no error, since defendant and Nunez were not similarly situated. Nunez, unlike defendant, admitted responsibility and chose to plead guilty before trial. A co-conspirator who has elected to plead guilty is not similarly situated to a co-conspirator who has elected to stand trial. Another important difference was that defendant furnished and flew the aircraft that was used in the smuggling flight. U.S. v. Rodriguez-Milian, __ F.3d __ (1st Cir. Apr. 19, 2016) No. 14-1976.
2nd Circuit holds that below-guideline sentence was not disparate to sentences in other bribery cases. (716)(742) Defendant, a member of the New York City Council, was convicted of accepting bribes in exchange for promising access to city funding, and arranging for bribes to Republican Party officials. He argued that his 120-month sentence was unreasonable because the court “declined to consider” the two sentences imposed upon former Virginia Governor McDonnell in an unrelated bribery case. The Second Circuit found no error. Although “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” is a factor sentencing courts must consider, 18 U.S.C. §3553(a)(6), that provision does not require a district court to conform its sentence to any single other sentence adduced by a defendant. Defendant’s sentence, which fell below his guideline range of 151-188 months, was substantively reasonable. The relative length of defendant’s sentence when compared with those in certain other bribery cases was explained by aggravating factors such as defendant’s extensive perjury at trial and the fact that he participated in two separate bribery schemes. U.S. v. Halloran, __ F.3d __ (2d Cir. Apr. 28, 2016) No. 15-996-cr.
1st Circuit holds that court adequately considered defendant’s mental illness and other §3553(a) factors. (742) Defendant was convicted of coercion and entice¬ment of a minor and the sexual exploitation of a child. The First Circuit held that his 20-year sentence was both procedurally and substantively reasonable. First, the court did consider, contrary to defendant’s claim, his mental illness. In imposing the sentence, the court ob¬served that defendant had “some anxiety disorder,” and later stated that defendant needed mental health evalua¬tion and treatment because “there’s something that doesn’t allow him to see what’s happened.” Although the court did not expressly state that mental health was among the §3553(a) factors that it considered, “such excessive precision was not required.” The court adequately ex¬plained the sentence in light of the §3553(a) factors. The sentence was also substantively reasonable. U.S. v. Dunfee, __ F.3d __ (1st Cir. May 2, 2016) No. 15-1031.
1st Circuit affirms guideline sentence for drug conspiracy as reasonable. (742) Defendant pled guilty to cocaine conspiracy and firearms charges, and was sentenced to two concurrent 168-month sentences. Although the sentence fell within his guideline range, defendant argued that it was substantively unreasonable, and that the court should have given more weight to his “disadvantaged background,” and the “his non-violent role in the conspiracy.” The First Circuit found no error. The fact that the court “chose to attach less significance to certain mitigating circumstances than [defendant thought] they deserved [did] not make his sentence substantively unreasonable.” Defendant admitted in the plea agreement to acting as the “manager and owner” of heroin sold by the large-scale drug-distribution conspir¬acy, and that the conspiracy operated for at least 12 years. In this case, therefore, the decision to emphasize those aggravating circumstances was properly a judgment call for the district court to make. U.S. v. Milan-Rodriguez, __ F.3d __ (1st Cir. Apr. 22, 2016) No. 15-1233.
7th Circuit finds defendant failed to overcome pre¬sumption that within-range sentence was reasonable. (742) Defendant challenged her within-guidelines 80-month sentence for a heroin conspiracy as substantively unreasonable. The Seventh Circuit held that defendant did not overcome the presumption that the guidelines sentence was reasonable. The court considered and re¬jected defendant’s various mitigation arguments for a downward variance, including those based on her reduc¬ed life expectancy and health issues, her limited role in the heroin conspiracy, her prior limited criminal history, and her history and characteristics. The court noted that defendant’s 80-month sentence, which could be reduced with good time credit, fell well below her 90-month life expectancy and was not a de facto life sentence. The court also ruled that defendant did not have an “extra¬ordinary physical impairment” under §5H1.4. The court rejected defendant’s claim that she held a limited role in the conspiracy, and found that defendant presented a risk to the public because her criminal conduct had escalated from theft to involvement in a large-scale drug conspir¬acy. Thus, the court was appropriately justified in not finding a basis for a below-guidelines range sentence. U.S. v. Melendez, __ F.3d __ (7th Cir. Apr. 20, 2016) No. 14-3590.
1st Circuit finds no error in court’s comments that defendant was unwise not to have pled guilty. (490) (742) Defendant and three family members ran an illicit, indoor marijuana farm, and were convicted of marijuana conspiracy charges. She argued that her 78-month sen¬tence was unreasonable because the court said, at senten¬cing, that defendant would have received a lower sen¬tence if she had pled guilty. Defendant claimed that she could not have avoided a trial because the government never offered her a plea deal. The First Circuit held that defendant’s sentence was substantively reasonable. She plainly had the option of a straight plea of guilty under Federal Rule of Criminal Procedure 11(a). Had she done so, she might have had a shot at a §3E1.1 reduction for acceptance of responsibility, and she would have had no occasion to “appall the trial judge with testimony that he found to contain repeated lying,” which resulted in an §3C1.1 enhancement for obstruction of justice. The court’s comment that defendant was unwise to not have pled guilty was a fair comment, and not an abuse of discretion. U.S. v. Ford, __ F.3d __ (1st Cir. Apr. 13, 2016) No. 15-1303.
1st Circuit holds that below-guidelines fraud sentence was reasonable. (742) Defendant was convicted of fraud and money laundering based on his involvement in a com¬plex, multi-million dollar investment fraud. The dist¬rict court imposed a below-guidelines 102-month sen¬tence. The First Circuit held that the sentence was reasonable. The court explicitly stated that it considered the §3553(a) factors. It also addressed the particular factors that defendant raised on appeal – his lower degree of culpability and the possible disparity between his sentence and that of his co-conspirators. The court did acknowledge that one co-conspirator, Condo, was “more culpable” than defendant. However, the court also noted that Condo was entitled to a substantial discount for agreeing early to plead guilty and to accept responsibility for his crimes. Moreover, the court stated that its below-guideline sentence was based on the harm defendant caused his victims, the need to deter defendant and others from committing similar crimes, and the fact that defendant did not accept responsibility for his actions. That was sufficient to justify the below-guidelines sentence. U.S. v. Georgiadis, __ F.3d __ (1st Cir. Apr. 8, 2016) No. 14-1993.
8th Circuit affirms below-guideline sentence even though court weighed relevant factors differently. (742) Defendant was convicted of armed bank robbery. Based on his status as a career offender, his guideline range was 262-300 months, but the district court varied downward to 240 months. Nonetheless, defendant argued on appeal that the sentence was substantively unrea¬sonable because the district court did not give sufficient weight to mitigating factors. In particular, defendant pointed to his difficult upbringing – his father was an abusive alcoholic, his mother was a drug addict, and he was eventually placed in the foster-care system. Addi¬tionally, he pointed to his substance abuse history; his mental-health treatment; and his previous attempts to turn his life around. The Eighth Circuit held that the below-guidelines sentence was substantively reasonable. The record made clear that the district court was aware of the relevant facts, and that it considered them in impos¬ing sentence. Although the court placed more weight on some factors and placed less weight on other factors than defendant thought it should have, the court did not abuse its discretion in doing so. U.S. v. Adams, __ F.3d __ (8th Cir. Apr. 11, 2016) No. 14-3339.
11th Circuit says it lacked jurisdiction to review denial of downward departure request. (742)(860) Defendant, a tax protester, was convicted of making false, fictitious or fraudulent claims on his federal in¬come tax returns, and of corruptly interfering with administration of internal revenue laws. His guideline range was 51-63 months. He sought a downward depar¬ture under §§5H1.3 and 5K2.13, arguing that he suffered from anxiety disorder, delusional disorder, and a person¬ality disorder, and was unable to understand the conse¬quences of his behavior. He also sought a downward variance based on his alleged diminished capacity. The district court sentenced him within his guideline range to 56 months. Because the record reflected that the court fully understood its authority to depart, and listened to the parties’ arguments for and against the departure, the Eleventh Circuit held that it lacked jurisdiction to review the court’s denial of defendant’s downward departure request. In addition, defendant did not show that his sen¬tence was procedurally or substantively unreasonable. The district court heard testimony, explained its sen¬tence, and noted that it considered the PSR, filings by counsel, and the §3553(a) factors. The court did not abuse its discretion in declining to grant a downward variance. U.S. v. Croteau, __ F.3d __ (11th Cir. Apr. 11, 2016) No. 15-11720.
1st Circuit holds that court gave adequate reasons for rejecting downward variance for police officer who lied to grand jury. (742) Defendant, a former police officer, pled guilty to making a false declaration to a federal grand jury. The district court sentenced him to 46 months, at the low end of his 46-57 month guideline range. The charges arose out of an investigation into the beating death of an individual at the hands of three Puerto Rico police officers and a subsequent cover-up of the incident. Defendant was not one of the officers involved in the beating, but he did testify falsely about the event before a grand jury. He requested a downward variance to probation based on his age (51) and his long history of public service as a police officer. The First Circuit upheld the district court’s denial of the request, and upheld the 46-month guideline sentence. The court acknowledged the mitigating factors defendant raised. However, it declined to give a downward variance based upon the seriousness of his offense, noting in particular the detrimental effects that defendant’s actions had on the Puerto Rico Police Department. The district court’s well-reasoned and adequately explained decision was not an abuse of discretion. U.S. v. Rodriguez-Caraballo, __ F.3d __ (1st Cir. Mar. 30, 2016) No. 15-1369.
1st Circuit vacates revocation sentence where court failed to explain “sharp upward variance.” (742)(800) Defendant violated the terms of his supervised release, resulting in an advisory sentencing range of 6-12 months. Nevertheless, the district court sentenced defendant to 60 months, the statutory maximum for the supervised release violation under 18 U.S.C. §3583(e)(3). Defendant argued for the first time on appeal that the court did not adequately state its reasons for the dramatic upward variance. The First Circuit agreed that the court’s failure to explain the variance met the plain error test, and remanded. The variance was “unusually steep.” Thus, the need for an explanation of the court’s rationale was “acute.” The sentencing transcript, however, did not contain anything that “remotely resemble[d] an adequate explanation of the sharply variant sentence.” U.S. v. Montero-Montero, __ F.3d __ (1st Cir. Mar. 23, 2016) No. 15-1405.
8th Circuit upholds refusal to vary downward where other family members could care for special needs nephew. (742) Defendant conspired to solicit participation in fake credit-repair or grant programs. Victims were told all they needed to do was pay a fee to repair their credit or receive grant money, but participants never reported higher credit scores or received grant money. Defendant challenged the district court’s refusal to vary downward, emphasizing that she was the caregiver for her nephew with special needs. The Eighth Circuit found no error in the court’s refusal to vary downward. The district court properly explained its reasons for defendant’s sentence under the §3553(a) factors. This was not a case where defendant’s nephew was being “essentially orphaned,” since there were other family members who would be able to take care of him. The district court also considered the large number of victims defendant defrauded, that she continued the scheme after being told to stop, and the need to protect the public. U.S. v. Morris, __ F.3d __ (8th Cir. Apr. 5, 2016) No. 15-2510.
8th Circuit finds ample reason for disparity between brothers’ sentences. (716)(742) Defendant and his brother were both convicted of possession with intent to distribute 50 grams or more of methamphetamine. Defendant argued his 360-month sentence was substantively unreasonable, because it was considerably longer than his brother Juan’s term of 168 months. The Eighth Circuit held that the 360-month sentence was reasonable. Even assuming that sentence disparities among co-conspirators could demonstrate unreasonableness, the district court had ample reason to treat the brothers differently. The advisory guideline sentence for defendant was longer than for Juan, due primarily to an extensive criminal history that qualified him as a career offender and his refusal to accept responsibility for his criminal conduct. Both defendants were sentenced within their advisory guideline ranges, and therefore on appeal the court would presume that the sentences were reasonable. The district court did not abuse its discretion. U.S. v. Avalos, __ F.3d __ (8th Cir. Mar. 24, 2016) No. 15-1695.
8th Circuit holds that child porn sentence at top of guideline range was substantively reasonable. (310)(742) Defendant pled guilty to multiple child pornography counts, and was sentenced to 262 months, which fell at the top of his advisory sentencing range. He challenged the substantive reasonableness of the sentence, arguing that §2G2.2, the guideline for trafficking in child pornography, was the product of arbitrary legislation. The Eighth Circuit held that the sentence was reasonable. The district court properly considered the §3553(a) factors in determining defendant’s sentence. The court found that the nature and circumstances of the offenses were “extensive and devastating.” Defendant possessed over 500,000 images and more than 600 videos of young boys engaged in sexually explicit conduct. The court also considered defendant’s admissions about his sexual attraction to young boys living near him, and his uncharged sexual contact with several other young boys. The court heard defendant’s argument about the “exaggerated” nature of the child pornography guidelines, yet sentenced him at the top of the range. The district court did not abuse its discretion. U.S. v. Sigbury, __ F.3d __ (8th Cir. Apr. 5, 2016) No. 15-2444.
1st Circuit says court adequately explained top of guideline drug sentence. (742) A jury convicted defendant of various crimes stemming from his involvement in a drug distribution network. On appeal, the court trimmed a number of defendant’s convictions, and at resentencing, the district court recalculated his guideline range as 121-151 months, and sentenced him to 151 months. The First Circuit rejected defendant’s argument, raised for the first time on appeal, that the court did not adequately state its reasons for the top of the guideline sentence. The district court succinctly summarized its reasons, relying principally on the seriousness of the offense. It made a conservative drug-quantity estimate, but found that the sale of crack cocaine alongside the sale of marijuana exacerbated the seriousness of defendant’s criminal conduct. The sprawling nature of the enterprise and the large number of participants in the drug ring compounded the gravity of the crimes. The court acknowledged some mitigating factors, but found them counterbalanced by the deleterious impact of the defendant’s criminal conduct on the community, defendant’s victimization of others, and the protracted duration of the illicit activities. U.S. v. Sepulveda-Hernandez, __ F.3d __ (1st Cir. Mar. 16, 2016) No. 15-1293.
8th Circuit up holds 33-month guideline sentence for false income tax offenses. (742) Defendant, an adult performer who was often paid in cash, was convicted of four counts of making and subscribing a false income tax return for tax years 2005 through 2008. She argued that her 33-month within-guidelines sentence, was substantively unreasonable for failing to take into account her personal history and family situation. The Eighth Circuit upheld the sentence. On appeal, a within-guidelines sentence is presumptively reasonable. The district court explicitly considered defendant’s mitigating factors, such as her hard life as a child, and the fact that she had been a great mom who became the guardian for a neighbor’s child. However, it ultimately gave more weight to other §3553(a) factors, such as the nature and circumstances of the offense. It noted that defendant had “been a wreck” “on the financial side of things,” as evidenced by her continued misrepresentations to banks to obtain loans. Defendant also had failed to get “things in order,” and make amends. She failed to file a tax return for the current year or the prior year, and had not paid any federal income tax over a nine-year period. U.S. v. Fairchild, __ F.3d __ (8th Cir. Mar. 17, 2016) No. 14-3517.
8th Circuit holds 600-month guideline sentence for juvenile was not cruel and unusual. (140)(190)(742) In 1998, defendant was convicted of various crimes, including murders, committed when he was 16 and 17. Under the then-mandatory Sentencing Guidelines, the district court sentenced defendant to life in prison. Thereafter, in Miller v. Alabama, 132 S.Ct. 2455 (2012), the Supreme Court held that the Eighth Amendment barred a mandatory term of life in prison without possibility of parole for juvenile offenders. The district court granted defendant’s petition for resentencing under 28 U.S.C. §2255. It then varied downward from the now-advisory guidelines range of life in prison, and imposed a sentence of 600 months. The Eighth Circuit affirmed, rejecting defendant’s argument that the 600-month sentence constituted cruel and unusual punishment. Miller did not hold that the Eighth Amendment categorically prohibited a sentence of life without parole for a juvenile offender. Rather, it only a barred a life sentence pursuant to mandatory penalty schemes because they prevented a judge or jury from taking into account “the distinctive attributes of youth.” U.S. v. Jefferson, __ F.3d __ (8th Cir. Mar. 14, 2016) No. 15-1309.
8th Circuit affirms 600-month sentence for juvenile crimes as not unreasonable. (140)(190)(742) In 1998, defendant was sentenced to life under the then-mandatory Sentencing Guidelines for crimes he committed as a juvenile. In light of Miller v. Alabama, 132 S.Ct. 2455 (2012), the district court granted defendant’s 28 U.S.C. §2255 petition, and resentenced him to 600 months. The Eighth Circuit affirmed, finding that the district court made an individualized sentencing decision that took account of “the distinctive attributes of youth,” explaining its sentence in a thorough, 24-page memo. The court found several factors that mitigated against a life sentence, all relating to defendant’s youth and his subsequent, “extraordinary” rehabilitation in prison. Against those factors, the court weighed the seriousness of defendant’s crimes and his refusal to accept responsibility. The court properly gave significant weight to the extreme severity of defendant’s crimes – causing “the horrific deaths of five young, innocent children” in a fire-bombing, attempting to murder another man, and distributing “vast amounts” of controlled substances. U.S. v. Jefferson, __ F.3d __ (8th Cir. Mar. 14, 2016) No. 15-1309.
8th Circuit says below-guidelines sentence was not too high. (330)(742) Defendant was convicted of firearms and ammunitions charges. His guideline range was 324-405 months, but the district court varied downward to 300 months. The Eighth Circuit rejected defendant’s argument that his below-guideline sentence was substantively unreasonable. Defendant did not contend that the court failed to consider a relevant factor under 18 U.S.C. §3553, but argued that the court should have placed more weight on his age, his personal circumstances, the minor nature of his prior crimes, and his lack of counseling or treatment. The district court, however, considered defendant’s arguments and found that they were outweighed by the gravity of defendant’s extensive criminal history. The court noted that defendant had rejected opportunities for treatment and his pattern of behavior caused a concern “about the safety of the public.” The district court did not commit clear error in weighing the §3553 factors. U.S. v. White, __ F.3d __ (8th Cir. Mar. 8, 2016) No. 15-1904.
6th Circuit upholds refusal to reduce guideline sentence to account for mandatory firearms sentence. (330)(742) Defendants were convicted of charges arising from a carjacking conspiracy. At sentencing, the district court first imposed mandatory sentences for their firearms convictions under §924(c): 55 years for defendant Edmond and 80 years for defendant Philip. It then determined the guidelines-recommended sentences for their other convictions, and did not reduce their ultimate guidelines-related sentences to account for their mandatory sentence. Edmond received a total sentence of 75 years, and Philip a 93-year sentence. They argued that the district court abused its discretion by refusing to consider the length of their mandatory firearms sentences when calculating their guidelines sentences. The Sixth Circuit disagreed, noting that under U.S. v. Franklin, 499 F.3d 578 (6th Cir. 2007,” [t]he sentencing court must determine an appropriate sentence for the underlying crimes without consideration of the §924(c) sentence.” U.S. v. Edmond, __ F.3d __ (6th Cir. Mar. 3, 2016) No. 14-2426.
8th Circuit says 360-month mandatory minimum sentence did not permit downward variance. (210)(742) Defendant was convicted of the second-degree murder of his two-year-old daughter and assault resulting in serious bodily injury. The court sentenced him to the mandatory minimum sentence of 360 months. He argued that he should have received a downward variance because (1) he maintained his innocence; (2) his sentence would not deter future conduct; (3) he had raised six children; (4) he had a nonviolent past; (5) he had minimal contact with the criminal justice system; and (6) there was no need to provide him with additional training, education, or medical care. The Eighth Circuit rejected this argument, because 18 U.S.C. §3559(f)(1) required a mandatory minimum sentence of 30 years, and did not permit a guideline variance. U.S. v. Contreras, __ F.3d __ (8th Cir. Mar. 7, 2016) No. 14-3789.
6th Circuit finds court properly considered §3553(a) factors raised by defendant. (742) Defendant falsely represented in her naturalization application and to an immigration officer that she had never been arrested, convicted, or imprisoned, even though she had been was arrested, convicted, and imprisoned in Israel for her role in the bombing of a supermarket. She was convicted of violating 18 U.S.C. §1425(a), which criminalizes knowingly procuring naturalization contrary to law. The district court calculated her guideline range as 15-21 months, and sentenced her to 18 months. The Sixth Circuit held that the mid-range sentence was procedurally and substantively reasonable. Although defendant argued that the court should have further considered her age (67 at sentencing) and PTSD, the court did not commit procedural error by failing to state explicitly why it would not reduce her sentence based on these factors. The court acknowledged the mitigating factors, noted that she lied under oath to get an immigrant visa, perjured herself on the stand, and refused to follow the court’s instructions about off-limits topics. In sum, the court properly considered defendant’s history, social work, and other relevant characteristics, as well as the remaining §3553(a) factors. U.S. v. Odeh, __ F.3d __ (6th Cir. Feb. 25, 2016) No. 15-1331.
8th Circuit says defendant did not rebut presumption that sentence at low end of range was reasonable. (742) Defendant was convicted of domestic assault in Indian country by a habitual offender, in violation of 18 U.S.C. §117. The court rejected his request for a downward variance, and sentenced him to 41 months, which was the bottom of his advisory guideline range. Defendant argued on appeal that his sentence was substantively unreasonable because the district court did not vary downward based on his “various serious health problems.” The Eighth Circuit disagreed, finding defendant failed to rebut the presumption that his within-guidelines sentence was presumptively reasonable. The court sentenced defendant at the bottom of his guidelines range after considering defendant’s health, his history of criminal assault, the seriousness of domestic violence, his failure to accept responsibility for his actions, and his lack of remorse. There was no indication that the court improperly weighed the sentencing factors. U.S. v. Harlan, __ F.3d __ (8th Cir. Feb. 16, 2016) No. 15-1552.
10th Circuit finds §3553(a) factors were adequately considered in sentence at bottom of range. (742) Defendant was convicted of sexual assault at the home of friends while the victim was sleeping after a party. His guidelines range, which he did not challenge on appeal, was 151-188 months. The district court sentenced him to 151 months. Defendant argued that the sentence was unreasonable because the court did not consider some of the 18 U.S.C. §3553(a) sentencing factors. The Tenth Circuit disagreed. When a court imposes a within-guidelines sentence, it “must provide only a general statement of its reasons, and need not explicitly refer to either the §3553(a) factors or respond to every argument for leniency that it rejects in arriving at a reasonable sentence.” The court stated that it considered supervised release and acknowledged that certain factors, such as defendant’s education, skills, and lack of criminal history, supported a downward variance. But it found that other factors, such as the seriousness of the offense and defendant’s lack of honesty, outweighed them. U.S. v. Harry, __ F.3d __ (10th Cir. Feb. 29, 2016) No. 14-2160.
7th Circuit upholds refusal to vary from career offender sentence. (520)(742) Defendant was convicted of drug charges, and sentenced as a career offender. He contended that the district court should have departed downward based on his argument that one of the predicate felonies, although technically a crime, was relatively minor. The Seventh Circuit found no error. The district court considered defendant’s argument about the facts of his residential burglary conviction as one in mitigation under §3553. The district court decided that the argument “goes toward a low-end guideline sentence,” but the court also found many factors to support a high-end sentence. A within-guidelines sentence is presumptively reasonable, and the district court weighed the §3553(a) factors, including defendant’s family circumstances, his drug abuse, his criminal history, and the need for general and specific deterrence, in addition to the factual circumstances of defendant’s previous conviction. U.S. v. Maxfield, __ F.3d __ (7th Cir. Feb. 11, 2016) No. 15-2339.
8th Circuit does not review firearm increase where court would have varied upward anyway. (330)(742) Defendant pled guilty to being a felon in possession of a firearm after police found a gun during a protective search of a car in which he was seated. The district court applied a four-level increase under §2K2.1(b)(6)(B) for using or possessing a firearm “in connection with another felony offense.” Defendant challenged the enhancement on appeal, but the Eighth Circuit did not decide the issue, ruling that any error was harmless. Citing defendant’s “serious criminal history, his history and characteristics, his violent criminal history” and his “extremely high likelihood to recidivate,” the district court indicated it would vary or depart upward to a sentence of 96 months’ imprisonment even if it incorrectly calculated his guideline range. This alternative upward variance was substantively reasonable based on the 18 U.S.C. §3553(a) factors, and therefore any guideline error would have been harmless. U.S. v. Sanford, __ F.3d __ (8th Cir. Feb. 16, 2016) No. 15-1501.
8th Circuit finds court relied on “unobjected-to” PSR in sentencing at top of range. (330)(742) Defendant pled guilty to being a felon in possession of a firearm after police found a firearm during a protective search of a vehicle in which he was seated. The district court sentenced him to 96 months, the top of his guideline range. The Eighth Circuit held that the sentence was substantively reasonable, rejecting defendant’s claim that the court committed procedural error by relying on two criminal history points to which he objected in the PSIR. The court made clear that it was relying only on the “unobjected-to” portions of his PSR. Even without the two criminal history points to which defendant objected, he had a criminal history score of 20, placing him well into criminal history VI. He had convictions for assault, domestic abuse, theft, burglary, and child endangerment. The unobjected-to portions of the PSR showed that the court’s characterization of defendant’s criminal history as “outrageous” was not an abuse of discretion. U.S. v. Sanford, __ F.3d __ (8th Cir. Feb. 16, 2016) No. 15-1501.
1st Circuit denies downward variance for murder despite youth and lack of criminal history. (742) Defendant was convicted of two offenses in connection with the killing of a security guard at a Navy base in Puerto Rico. The court imposed a top of the guideline range sentence of 322 months. The First Circuit found no plain error, despite defendant’s youth and lack of criminal history or substance abuse. Based on the gravity of the murder, the district court expressed skepticism that this incident was defendant’s “first foray” into criminal activity, and defense counsel agreed. Although the district court did not discuss defendant’s upbringing, this was not fatal where, as here, defendant did not raise the issue at sentencing. The court also took into account the rights of the victim, and the need for just punishment. The court highlighted the seriousness of the offense, pointing out that even though the defendant was being sentenced for second-degree murder, the facts supported a charge of first-degree murder. Finally, the court rejected defendant’s argument that he was less culpable than his associates, even though he did not fire the fatal shots. U.S. v. Rivera-Clemente, __ F.3d __ (1st Cir. Feb. 10, 2016) No. 13-2275.
1st Circuit affirms sentence at top of range for killing security guard. (742) Defendant was convicted of two offenses in connection with the killing of a security guard at a Navy base in Puerto Rico. His guideline range was 270-322 months, and the court sentenced him to 322 months. The First Circuit affirmed the sentence as substantively reasonable. Defendant put forth no “powerful mitigating reasons” to support a finding of substantive unreasonableness. The district court heard from the victim’s mother how the murder devastated her family and, thus, considered the need for punishment. The court also considered defendant’s significant role in the offense and his previous criminal activity. Contrary to defendant’s claims, the district court accounted for the defendant’s purported limited involvement in the offense, his youth, and his lack of a criminal record or substance abuse, but found these considerations carried less weight. U.S. v. Rivera-Clemente, __ F.3d __ (1st Cir. Feb. 10, 2016) No. 13-2275.
5th Circuit remands where court may have misunderstood it was imposing above-guideline sentence. (742) Defendant’s PSR stated that he was subject to a mandatory minimum sentence of seven years, and correctly noted that under §2K2.4(b), the guideline sentence was the minimum term required by statute, or seven years. The PSR also stated that under §2K2.4, Note 2(B), any sentence above the seven-year mandatory minimum would be an upward departure. The district court sentenced him to 10 years. It its written statement of reasons (SOR), the court adopted the PSR without change. However, the SOR incorrectly listed defendant’s guideline range as 84 months (seven years) to life, and indicated that his ten-year term fell within his guideline range. The Fifth Circuit remanded, finding it unclear whether the court understood that the ten-year sentence exceeded the guideline range. The inconsistences between the district court’s statements at sentencing, the PSR, and the SOR made it impossible to determine whether the district court committed a “significant procedural error” by improperly calculating defendant’s guidelines sentence. U.S. v. Juarez, __ F.3d __ (5th Cir. Feb. 3, 2016) No. 15-40191.
7th Circuit says below-guidelines 10-year sentence for criminal contempt not unreasonable. (742) Defendant hawked miracle cures and self-improvement systems of dubious efficacy. He was convicted of criminal contempt after violating a consent decree in which he had promised not to misrepresent the content of his books in TV infomercials. He argued that his ten-year sentence—below his guideline range of 235-293 months—was disproportionate because the judge initially thought a six-month sentence was sufficient. The Seventh Circuit held that the below-guidelines 10-year sentence was substantively reasonable. Although the rationale for the six-month cap on the initial show-cause order was unclear, nothing suggested that the judge made a preliminary calculation of the guidelines range. Defendant’s effort to minimize his culpability by reference to the small losses suffered by each book buyer ($29.95 plus shipping and handling) did not require comment. Based on the size of defendant’s fraud and the “flagrant and repetitive nature” of his conduct, the ten-year sentence was not unreasonable. U.S. v. Trudeau, __ F.3d __ (7th Cir. Feb. 5, 2016) No. 14-1869.
8th Circuit denies downward variance despite claim that criminal record was overstated. (742) Defendant requested a downward variance on the basis that his criminal history category overstated the severity of his criminal record. He had received two points for a prior conviction for possession of heroin, and an additional two points for failing to appear at a hearing on that possession charge. Defendant argued that the two convictions “stem from essentially the same course of conduct,” and that counting them separately in his criminal history score overstated the severity of his record. The district court denied the request for a variance, and imposed a guidelines sentence of 27 months. The Eighth Circuit found no abuse of discretion. The court considered defendant’s request, but ultimately cited his multiple felony convictions and an outstanding warrant for failure to appear on a probation violation in denying the request. There was no “clear error of judgment” that would justify reversal for abuse of discretion. U.S. v. Johnson, __ F.3d __ (8th Cir. Feb. 4, 2016) No. 14-3506.
1st Circuit holds that court did not improperly fail to consider defendant’s cooperation. (711)(742) Defendant argued that the court should have reduced his offense level, or at least imposed an agreed-upon sentence, because of his “complete and candid cooperation” with the government, in accordance with §5K1.1 Although the parties acknowledged defendant’s assistance in the plea agreement, the First Circuit held §5K1.1 inapplicable. The government did not file a substantial assistance motion, nor was there a mention of one in the sentencing transcript or in defendant’s sentencing memo. On appeal, defendant did not challenge the government’s decision not to file such a motion. Defendant’s claim that the court should have considered his assistance to the government was essentially an argument that the court did not properly consider the §3553(a) factors. The panel rejected this argument, noting that court stated that it considered the §3553(a) factors. A court need not verbalize every §3553(a) factor. U.S. v. Reyes-Rivera, __ F.3d __ (1st Cir. Jan. 29, 2016) No. 14-1712.
2nd Circuit affirms even though court did not expressly discuss arguments for departure or variance. (742) (860) Defendant pled guilty to firearms charges, and was sentenced to 15 years of imprisonment. The Second Circuit found no error in the district court’s decision not to expressly discuss and reject defendant’s arguments for a downward departure and a variance. Nothing in the record suggested that the judge misunderstood his authority to depart downward, and in imposing the sentence he plainly considered the relevant factors under 18 U.S.C. §3553(a). A district court’s decision not to depart downward is “within the court’s broad discretion and rarely reviewed on appeal.” Nor need a sentencing judge recite every §3553(a) argument raised by a defendant. Here, defendant did not identify anything in the record suggesting that the judge failed to consider the §3553(a) factors or his arguments in support of a variance. U.S. v. Young, __ F.3d __ (2d Cir. Jan. 29, 2016) No. 14-2383-CR.
7th Circuit reverses downward departure for police officer who beat victims. (742) Defendant, a police officer, was convicted of depriving two persons, under color of state law, of their constitutional right not to be subjected to intentional use of unreasonable and excessive force. His guideline range was 33-41 months, but the judge sentenced him to 14 months, less than half of the bottom of the range. The Seventh Circuit ruled that the district court failed to provide sufficient reasons for its downward departure. The court noted that defendant apparently had “some unaddressed anger control issues” and noted his criminal history included a misdemeanor conviction for battering a child. However, the bulk of its discussion was limited to recounting cases in which defendants had been sentenced for crimes comparable to defendant’s. The judge’s review of these cases did not provide any basis for the 14-month sentence. In all of the cases, the defendants received sentences far in excess of the sentence imposed here. Apart from the judge’s reference to anger management and comments on defendant’s minor good works in the community, no reason for the light sentence could be found in the transcript of the sentencing hearing. U.S. v. Smith, __ F.3d __ (7th Cir. Jan. 28, 2016) No. 14-3721.
1st Circuit reverses where court failed to explain reasons for variant sentence. (742) Defendant pled guilty to drug and firearms charges. The parties agreed to recommend a prison sentence of 60 months, the statutory minimum, for the §924(c) firearm conviction, but the district court imposed a sentence of 360 months. The court explained that it was using the 18 U.S.C. § 3553(a) factors to select a sentence within the range of statutorily permissible sentences, which spanned from 60 months to life in prison. The First Circuit ruled that the district court failed to provide an adequate explanation for the variant sentence. Defendant was convicted of charges in Puerto Rico around the same time, and the court stated that if the federal and a Puerto Rico sentences were to run consecutively, “it would be totally unfair.” Yet the court issued a sentence that did not foreclose the possibility that it might be followed by a consecutive Puerto Rico sentence. The court offered no explanation for the 360 month sentence. There was no question that defendant’s criminal conduct was significant. But the unexplained variance was very large, and was imposed after the court appeared to question the fairness of just such a sentence. U.S. v. Rivera-Gonzalez, __ F.3d __ (1st Cir. Jan. 8, 2016) No. 14-1402.
1st Circuit affirms sentence at top of range despite parties’ recommendation of below-guideline sentence. (742) Defendant, an enforcer for a drug-trafficking ring, was convicted of drug conspiracy charges and sentenced to 168 months. For the first time on appeal he challenged the substantive reasonableness of the sentence, which fell at the top of his 135-168 month guideline range. He argued that he deserved a more lenient sentence because of his rehabilitation. He also complained that he had already served a sentence in a Puerto Rico prison for a 2004 drug crime that was incident to the charged conspiracy. The First Circuit found the claim of substantive unreasonableness “futile.” The offense of conviction was serious: defendant served as an enforcer for a thriving conspiracy that sold drugs in a protected area. Defendant’s criminal history was bleak. Although his efforts at rehabilitation were laudable, the district court was in the best position to weigh the credibility of this claim, and to balance the sentencing scales in light of such a claim. As for the Puerto Rican conviction, it was not assigned any criminal history points, and did not increase his offense level. Therefore § 5K2.23 was not applicable. The fact that the parties jointly agreed to recommend a below-guideline sentence did not make the sentence unreasonable. U.S. v. Cortes-Medina, __ F.3d __ (1st Cir. Jan. 6, 2016) No. 14-1191.
4th Circuit finds court did not punish defendant for his political views. (742) Defendant was convicted of sending threatening emails to his ex-wife, and was sentenced to 92 months, which fell at the bottom of his 92-115 month guideline range. He argued that the sentence was “greater than necessary” because it was improperly based on his unpopular political views. The Fourth Circuit disagreed, ruling that the sentence was substantively reasonable. The district court immediately rebuked the government when the prosecutor attempted to argue that some of defendant’s politically controversial writings showed a lack of respect for the law. The court explained that defendant had “a constitutional right to believe what he believes,” and reminded the government that it could not “punish him for that.” The most that could be inferred from the sentencing transcript was that the district court was concerned by the potential that defendant had been singled out for prosecution and so selected a sentence at the bottom of the guidelines range. But the district court also acknowledged that defendant’s words nevertheless constituted serious threats that negatively impacted his ex-wife, making departure below the guidelines range inappropriate. U.S. v. White, __ F.3d __ (4th Cir. Jan. 7, 2016) No. 14-4375.
8th Circuit approves sentence at top of range for defendant with mental issues and weapons fixation. (742) A jury convicted defendant of being a felon in possession of ammunition and possessing an unregistered firearm. The Eighth Circuit found no abuse its discretion in the 96-month sentence, which fell at the top of defendant’s 77-96 month guideline range. The district court acknowledged defendant’s mental health concerns and considered the nature and circumstances of the offenses of conviction. But the court also weighed the seriousness of defendant’s offense conduct in 2002 (illegal possession of numerous dangerous weapons, some of which were homemade), his fixation with dangerous weapons, the safety concerns that defendant presented during trial (he hid a knife in bushes outside the courthouse before he entered, and after the jury’s verdict was read in open court tried to swallow a pill containing THC), and defendant’s unwillingness to get mental health treatment. Taking the § 3553(a) factors as a whole, the court determined that a sentence at the top of the guideline range was warranted. The court’s decision to weigh the factors in this manner was not an abuse of discretion. U.S. v. Tumea, __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-3650.
8th Circuit says statutory maximum child porn sentence was substantively reasonable. (742) Defendant pled guilty to child pornography charges, and was sentenced to 120 months. Although defendant received the statutory maximum, the Eighth Circuit held that the sentence was not substantively unreasonable. Contrary to defendant’s assertions, the sentencing judge applied the 18 U.S.C. § 3553(a) factors and set forth a reasoned basis for the 120-month term. Moreover, the sentence was still well below the advisory guideline range of 235-293 months. U.S. v. Burch, __ F.3d __ (8th Cir. Jan. 12, 2016) No. 14-3649.
7th Circuit finds no error in failing to discuss frivolous ground for variance. (742) Defendant was convicted of multiple counts of health care fraud. While free on bail pending sentencing, he started working for a company called American Leaders. His supervisor wrote a letter submitted at sentencing praising defendant as an exemplary employee. At sentencing, defendant requested a lighter sentence based on his rehabilitation. The district court rejected this argument without explanation. Defendant argued on appeal that he should be resentenced because the judge did not address his argument for a lighter sentence based on his rehabilitation. The Seventh Circuit found no error since defendant’s argument bordered on frivolous. It was “too pat for a person convicted of a substantial business fraud to ask for leniency on the ground that after the fraud ended he went to work for a business that (we can assume) does not engage in fraud.” The fact that a defendant convicted of fraud is able to secure a lawful job while on bail was not a persuasive reason for giving him a below-guidelines sentence. U.S. v. Woods, __ F.3d __ (7th Cir. Dec. 23, 2015) No. 15-1495.
11th Circuit finds disparity justified by co-defendants’ confession and acceptance of responsibility. (716)(742) Defendant, a former confidential informant, was convicted of conspiring to distribute five kilograms or more of cocaine. Under 21 U.S.C. § 960(b)(1)(B)(ii), defendant’s minimum term of imprisonment was ten years and the maximum was life. His advisory guideline range was 292-365 months, and the district court sentenced him to 360 months’ imprisonment. The Eleventh Circuit ruled that defendant failed to show that his sentence was substantively unreasonable in light of the record and the § 3553(a) factors. Although defendant argued that his sentence greatly exceeded that of his co-defendants, the co-defendants confessed their guilt and accepted responsibility. One of the co-defendants also cooperated with the government. Thus, defendant was not similarly situated to his co-defendants. U.S. v. Alvarado, __ F.3d __ (11th Cir. Dec. 11, 2015) No. 13-14843.
D.C. Circuit reverses for inadequate explanation of above-guidelines sentence. (310)(742) Defendant pled guilty to one count of distribution of child pornography based on the internet transmission of three photos. His guideline range was 97-121 months. The government and defense counsel argued for a sentence of 97 months, but the court sentenced defendant to 144 months, to be followed by 240 years of supervised release. The D.C. Circuit agreed with defendant that the district court’s explanation of the above-guidelines sentence was insufficient as a procedural matter under § 3553(c)(2). The panel was “unable to discern from the trial judge’s unparticularized in-court and written explanations why he found the defendant’s conduct more harmful or egregious than that typically falling within the properly calculated guidelines range of 97-121 months.” Mere recitation of § 3553(a) factors without application to the defendant did not “demonstrate reasoned decision-making or provide an adequate basis for appellate review.” The judge’s reference to “actual abuse of children” and “predatory conduct” was inadequate. U.S. v. Brown, __ F.3d __ (D.C. Cir. Dec. 15, 2015) No. 13-3062.
5th Circuit affirms even though unclear that court understood discretion to vary from marijuana ratio. (252)(742) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. The district court ruled that THC was the “most closely related controlled substance” to AM–2201, resulting in the use of a 1:167 ratio to convert THC into marijuana. Defendants argued on appeal that the court did not recognize its discretion under Kimbrough v. U.S. to vary from the 1:167 ratio. The Fifth Circuit agreed that the record was unclear on this issue, but found any error harmless. There was nothing in the record to indicate that the district court was inclined to vary from the 1:167 ratio or pronounce a lesser sentence. The court did not suggest that it was “hamstrung” by its lack of discretion, or say that it was “troubled” by defendants’ sentences. To the contrary, the district court repeatedly commented on the “seriousness of the offense” and declined to accept the extent of the government’s recommended § 5K1.1 departures. The district court also explicitly endorsed the 1:167 ratio on at least two occasions, commenting both times that it was designed to capture the “relative harm” of THC as compared to marijuana. U.S. v. Malone, __ F.3d __ (5th Cir. Dec. 11, 2015) No. 14-31426.
D.C. Circuit rules court adequately considered defendant’s age and health. (742) Defendant argued on appeal that the district court failed to consider at sentencing his “age and somewhat problematic health.” See U.S.S.G. §§ 5H1.1 and 5H1.3. The D.C. Circuit disagreed, finding the failure-to-consider argument factually incorrect. The district court expressly considered both defendant’s age and his health. However, in light of its consideration of other relevant sentencing factors, the court simply disagreed with defendant’s view that his age and health justified a departure. This was not error. A sentencing judge need only “set forth enough [reasons] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.” U.S. v. Law, 806 F.3d 1103 (D.C. Cir. Dec. 1, 2015).
2nd Circuit upholds rejection of government’s non-binding sentencing recommendation. (742)(760) Defendant pled guilty to racketeering conspiracy charges, resulting in an effective guideline range of 240 months. He argued that his below-guidelines 18-year sentence was unreasonable in light of the prosecution’s recommendation of a 10-year prison term. The Second Circuit held that the district court did not err in rejecting the government’s Rule 11(c)(1)(B) recommendation, which was not binding on the judge. The court independently assessed the sentence required by the §3553(a) factors. The 18-year sentence, which was two years below the guidelines range, was substantively reasonable. Defendant’s racketeering offense resulted in the loss of one human life and the effective destruction of another. His racketeering also spanned a lengthy period of time, with loansharking and gun trafficking continuing to within a few years of his prosecution. His criminal activities were conducted, moreover, under the auspices of the violent Bonanno crime family. The district court acted well within its sentencing discretion in rejecting the government’s 10-year sentencing recommendation. Its choice of a below-guidelines sentence of 18 years was substantively reasonable. U.S. v. Messina, __ F.3d __ (2d Cir. Nov. 12, 2015) No. 14-1219-cr.
11th Circuit finds no “unwarranted” sentencing disparity where defendant convicted of more counts. (716)(742) Defendant, a doctor, was convicted of charges based on his involvement in a pill-mill scheme. He argued that his sentence was substantively unreasonable because the district court failed to consider the need to avoid unwarranted sentencing disparities with his co-conspirators. The Eleventh Circuit found no “unwarranted” sentencing disparity since defendant was not similarly situated to his co-conspirators. Defendant wrote the prescriptions, did the dispensing, and faced a significantly higher statutory maximum sentence. Each of his five co-defendants pled guilty to conspiracy to unlawfully dispense controlled substances, and, in exchange, the government dismissed the remaining counts against them. The statutory maximum penalty for the conspiracy charge was 5 years, whereas the statutory maximum for dispensing a Schedule II controlled substance was 20 years. In addition, defendant was convicted of more crimes than his codefendants. Also, his co-defendants accepted responsibility for their crimes, pled guilty to offenses that carried lower penalties, and cooperated with the prosecution. U.S. v. Azmat, 805 F.3d 1018 (11th Cir. 2015).
7th Circuit says sentence below guidelines range did not create unwarranted disparity. (716)(742) Defendant was caught in a government operation called Operation Blue Night, which targeted individuals involved in drug trafficking on the West Side of Chicago. He was convicted of distributing heroin and crack cocaine on five separate occasions. He argued that his 200-month sentence was unreasonable under 18 U.S.C. § 3553(a)(6) due to the disparities between the perceived strictness of his sentence compared to other criminals convicted under Operation Blue Knight. The Seventh Circuit upheld defendant’s sentence as reasonable, finding no unwarranted sentencing disparities. A sentencing disparity among similar defendants by itself is insufficient to render a particular criminal sentence unreasonable. Here, defendant’s guideline range was 360 months to life, the government recommended a range of 262-327 months, and the court sentenced him below both ranges to 200 months. Under U.S. v. Gonzalez, 765 F.3d 732, 740 (7th Cir. 2014), a sentence below the guidelines range is not an unwarranted disparity. U.S. v. Chapman, 804 F.3d 895 (7th Cir. 2015).
7th Circuit remands below-guideline sentence for failure to explain consecutive sentences. (219)(650)(742) Defendant abused her position as a member of a Chicago public-school board by accepting kickbacks of more than $500,000 from bus companies to which she steered transportation contracts worth $21 million. She received a 20-level increase for honest services fraud because “the value of the benefit” received by the fraudsters was between $7 and $20 million. U.S.S.G. §§ 2C1.1(b)(2), 2B1.1(b). Her guideline range was 276 months, and the court imposed a below-guidelines sentence of 120 months. Defendant argued that her guideline sentence, which had provided the starting point for the judge’s determination, overstated the seriousness of her offense because the value of the benefit of her crime was near the low end of the $7-20 million range. The Seventh Circuit held that the length of the sentence was reasonable, but nonetheless remanded. The sentence was well below the guideline range. However, the court did not explain why it ordered defendant’s sentence to run consecutive to defendant’s unrelated Louisiana sentence. Some reason needed to be given. U.S. v. Harper, __ F.3d __ (7th Cir. Nov. 6, 2015) No. 14-2701.
D.C. Circuit upholds government’s partial invocation of appeal waiver. (742)(850) Defendant pled guilty to firearms and other charges pursuant to a plea agreement that contained a waiver of appeal. Nonetheless, he appealed his 25-year sentence. Although the government waived enforcement of the appeal waiver as to a condition of supervised release, it sought enforcement of the appeal waiver as to the procedural and substantive reasonableness of defendant’s term of imprisonment. The D.C. Circuit agreed that a partial invocation of the appeal waiver was permissible. Further, it found that defendant validly waived his challenge to the length of a sentence within the guideline range. The district judge conducted a plea colloquy in accordance with Federal Rule of Criminal Procedure 11. There was no reason to doubt that defendant’s waiver of his right to appeal his sentence was knowing, intelligent, and voluntary. U.S. v. Ortega-Hernandez, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
1st Circuit approves top of guideline range sentence for massive fraud that led to victims’ financial ruin. (742) Defendant pled guilty to multiple counts of wire fraud and tax evasion. He was originally sentenced to 96 months, but the court later granted his § 2255 petition due to defense counsel’s failure to properly advise defendant of his appellate rights. At resentencing, the court explained that had considered afresh all the old and new information, stated its reasons for rejecting a variance, and reimposed the 96-month sentence. The First Circuit held that the sentence, which fell within defendant’s guideline range, was substantively reasonable. The district court’s rationale was apparent: defendant committed a massive and deplorable fraud, orchestrating what the court aptly called an “incredible human tragedy.” Defendant duped people of modest means into investments that were likely to lead to their financial ruin. The court properly believed that such unbridled greed warranted a high-end guideline sentence. U.S. v. Perretta, __ F.3d __ (1st Cir. Oct. 9, 2015) No. 14-1901.
2nd Circuit approves below-guidelines sentence for massive insurance fraud. (742) Defendant, an insurance broker, was convicted of charges based on his involvement in an insurance fraud scheme. He contended that his 108-month sentence was excessive because, in part, it exceeded what was necessary to deter similar fraud among other brokers. The Second Circuit disagreed. Defendant took part in a sophisticated, multi-million dollar fraud scheme. And when the FBI began investigating the scheme, he directed co-conspirators to obstruct justice by destroying incriminating documents. Notably, his 108-month sentence fell below his 155-188 month guideline range. Given defendant’s culpability, and the district court’s reasonable determination that the sentence should serve as a deterrent to other brokers, the sentence did not shock the conscience. U.S. v. Binday, __ F.3d __ (2d Cir. Oct. 26, 2015) No. 14-2809.
1st Circuit upholds 192-month sentence despite co-defendant’s 130-month sentence. (716)(742) Defendant was convicted of conspiring to import cocaine and heroin, and related charges. His guideline range was 235-297 months, but he argued that a within guidelines sentence would be unreasonable when compared to the 130-month sentence received by co-defendant Vicente-Arias. The district court found not basis to grant defendant the minor role reduction that Vicente-Arias received, but nonetheless varied downward to a 192-month sentence. The First Circuit found no unreasonable disparity with Vicente-Arias’s 130-month sentence. The guidelines are primarily concerned with minimizing disparities among defendants nationally. Moreover, defendant was not similarly situated with Vicente-Arias, who received a minor role reduction. U.S. v. Pena-Santo, __ F.3d __ (1st Cir. Oct. 14, 2015) No. 13-2155.
1st Circuit upholds failure to make sentence fully concurrent to state sentence. (650)(742) Defendant pled guilty to federal drug charges. While sentencing was pending, defendant was charged with and pled guilty in state court to murder and weapons violations. He was sentenced to 204 months in the commonwealth court. At his federal sentencing, government requested a sentence at near the bottom of the 108-120 month range specified in the plea agreement. The district court, however, calculated defendant’s guideline range as 135-168 months and varied upward to 280 months, to be served concurrently with defendant’s 204-month state sentence. Defendant challenged the district court’s decision not to impose a 108-month sentence that was fully concurrent to his state sentence, but the First Circuit found no error. Because the district court accurately held that defendant’s state sentence for second-degree murder did not involve relevant conduct, and therefore that § 5G1.3(b) did not apply, the court was under no obligation to impose a concurrent sentence. U.S. v. Velez-Soto, __ F.3d __ (1st Cir. Oct. 14, 2015) No. 13-2885.
11th Circuit approves bottom of guidelines sentence for child porn defendant. (310)(742) Defendant pled guilty to one count of possession of child pornography. He requested a downward variance, but the district court sentenced him to 97 months, at the bottom of his guideline range. The Eleventh Circuit held that the sentence was procedurally reasonable. The district court’s explanation of its sentence was “beyond sufficient. Indeed, it spanned over seven pages of transcript.” The court provided a thorough account of how it applied the § 3553(a) factors. Defendant possessed at least one video depicting the rape of female toddlers, one of whom was tied at the ankles and neck, and that he possessed 4800 images, or eight times the 500 images needed to qualify for a five-level increase under § 2G2.2(b)(7). The court also acknowledged in mitigation that defendant had been physically abused and had a drug problem. The court gave an adequate explanation for why it rejected defendant’s request for a downward variance. U.S. v. Carpenter, __ F.3d __ (11th Cir. Oct. 7, 2015) No. 14-13177.
11th Circuit holds that 97-month child porn sentence was substantively reasonable. (310)(742) Defendant pled guilty to one count of possession of child pornography. He requested a downward variance, but the district court sentenced him to 97 months, which fell at the bottom of his guideline range. The Eleventh Circuit held that the sentence was substantively reasonable. Defendant’s sentence was less than half of the statutory maximum of 240 months. He possessed 4,800 images, contained in 64 videos, depicting minors involved in sexually explicit conduct. Nineteen of the videos ranged from 10 to 44 minutes in duration, or two to nine times the five minutes contemplated by the guidelines, a factor which could well have served as cause for an upward departure. See Note 4(B)(ii) to § 2G2.2. At least three of the videos depicted sadistic and masochistic conduct. U.S. v. Carpenter, __ F.3d __ (11th Cir. Oct. 7, 2015) No. 14-13177.
11th Circuit approves upward variance where defendant resumed armed robberies after previously serving term for robberies. (224)(742) Defendant pled guilty to one count of armed bank robbery. He argued that his 102-month sentence, resulting from a 15-month upward variance from his advisory guidelines range of 70-87 months, was substantively unreasonable. The Eleventh Circuit disagreed. The court reasonably found that the advisory guidelines range of 70-87 months understated the seriousness of defendant’s recent criminal history, which included participation in a string of 8 armed robberies in a 14-month period. In all of these robberies, the victims were held at gunpoint by defendant or one of his confederates and feared for their lives. And in the current bank robbery, defendant used a gun to implicitly threaten the tellers while demanding money and then explicitly threatened to kill them after they included dye packs with the money. Defendant participated in multiple robberies within a couple years of his release from federal prison on a 71-month sentence. This sentence apparently was insufficient to deter future criminal conduct. Thus, it was reasonable for the district court to impose a sentence beyond defendant’s 70-87 month advisory guidelines range. U.S. v. Johnson, __ F.3d __ (11th Cir. Oct. 5, 2015) No. 14-13874.
1st Circuit affirms despite court’s comment about lenient local criminal justice system. (740)(742) Defendant pled guilty to drug charges, and was sentenced to 240 months, an upward variance from his guideline range of 168-210 months. He argued that the district court’s statements at sentencing suggested that it erroneously inflated appellant’s sentence to “counteract or adjust what [the court] thought was a laxity” in the Puerto Rico judicial system. The First Circuit found no error. The fact that the court noted its perception that the local criminal justice system was too lenient did not, in and of itself, render its sentence procedurally unreasonable. The question was whether the court properly focused on the defendant’s particular circumstances. Here, although the court viewed the history of sentences that defendant received in that system as emblematic of an overall laxity in the system, the upward variance it imposed was in response to defendant’s particular sentencing history and not the court’s perception of the local system’s laxity generally. U.S. v. Villanueva Lorenzo, __ F.3d __ (1st Cir. Sept. 23, 2015) No. 14-1260.
11th Circuit reverses downward departure that contradicted jury verdict. (742) Defendant was convicted of 33 crimes stemming from his receipt of federal worker’s compensation from July 2011 through March 2013. The district court calculated his advisory guidelines range as 18-24 months imprisonment, but did not sentence him to any incarceration time. The court stated that defendant did not deserve to go to prison because he had “already lost the worker’s comp benefit to which he arguably would still have been entitled if he had been perfectly honest with his doctors and investigators.” The Eleventh Circuit reversed. That statement contradicted the jury’s guilty verdict on Count 33, theft of government property. In finding defendant guilty on that count, the jury necessarily found that he was not entitled to the worker’s compensation benefits he received. As a result, the district court’s statement that defendant “arguably” could have been entitled to any of those benefits violated the non-contradiction principle and was clearly erroneous. U.S. v. Slaton, __ F.3d __ (11th Cir. Sept. 14, 2015) No. 14-12366.
5th Circuit approves upward variance where defendant failed to raise factual mistakes at sentencing. (742) Defendant pled guilty to marijuana charges. His guideline range was 33-41 months, and the district court varied upward to 60 months in light of defendant’s extensive history of illegal entry into the United States. Border Patrol agents had apprehended him seven times for illegally entering the country, and he was present illegally at the time of the offense. However, in describing that history, the court misstated two facts – it mistakenly characterized one of his prior convictions, and noted that he had been forcibly removed from the U.S. a number of times, when on six of the occasions, defendant was granted voluntary departure. Defendant argued for the first time on appeal that the court’s factual mistakes rendered his sentence substantively unreasonable. The Fifth Circuit disagreed. Those errors could have been corrected during sentencing, but defendant raised no objection. Further, the court considered the §3553(a) factors, and the sentence did not exceed the statutory maximum. U.S. v. Preciado-Delacruz, __ F.3d __ (5th Cir. Sept. 15, 2015) No. 14-11023.
7th Circuit says court adequately considered mitigating factors raised by defendant. (742) Defendant was convicted of charges based on his attempt to hire two undercover agents to kill the people he held responsible for his divorce and the loss of custody of his son. The Seventh Circuit upheld defendant’s 211-month sentence, finding the sentencing transcript showed that the district court gave adequate consideration to defendant’s mitigating arguments. After noting several mitigating factors, including the fact that defendant had no criminal history and had received letters of support from many people, the court acknowledged his history of alcoholism and personality disorder. However, the court found that defendant was very serious about the murders he solicited the undercover agents to commit. Furthermore, defendant committed the offense at age 51, an age where individuals have more control over their emotions and are mature enough to think about the long-term consequences of their actions. Thus, the court found that defendant’s particular characteristics cut against his argument that his behavior would never manifest itself again. U.S. v. Grzegorczyk, __ F.3d __ (7th Cir. Sept. 1, 2015) No. 14-3460.
6th Circuit says 384-month sentence for forced labor case was substantively reasonable. (315)(742) Defendant was convicted of conspiracy, forced labor, and acquisition of a controlled substance by deception based on the inhumane treatment of S.E., a developmentally disabled young woman, and her minor child, who lived in defendant’s apartment. Defendant’s guideline sentence for the forced labor charge was life imprisonment, and the district court varied downward and sentenced her to 384 months. The 6th Circuit rejected defendant’s claim that her below-guidelines sentence was unreasonable. The court appropriately considered aggravating factors, including that defendant provided untruthful testimony at trial on several material issues; that S.E. permanently lost custody of her daughter because of defendant’s conduct; that defendant used her children to harm S.E. and S.E. daughter; and that defendant inflicted physical abuse upon the victims. The court also took into account the mitigating factors, including that defendant had a tough upbringing, a history of substance abuse, was under-educated, and had also lost custody of her children. Defendant pointed to nothing that indicated that the district court erred. U.S. v. Callahan, __ F.3d __ (6th Cir. Sept. 8, 2015) No. 14-3771.
2nd Circuit upholds refusal to depart downward for allegedly substandard conditions in prison. (715)(742) (860) Defendant argued that the district court erred in failing to depart downward because of his confinement in the allegedly decrepit and unsafe conditions at the Nassau County Correctional Center (NCCC). The Second Circuit ruled that defendant failed to provide sufficient reason to overturn the district court ‘s failure to depart. First, a district court’s decision not to depart from the guidelines is generally unreviewable, unless it misunderstood its authority to do so. There was nothing in the record suggesting that the district court misunderstood its ability to depart from the Guidelines. After implying that a departure would be possible, albeit a “special consideration,” the court listened to arguments on the merits of a downward departure. Second, the district court adequately explained its reasoning, noting its past experience with other NCCC inmates. The court further suggested that the evidence provided by appellant ‘s counsel was insufficient to justify a departure. U.S. v. Robinson, __ F.3d __ (2d Cir. Aug. 26, 2015) No. 14-809-cr.
6th Circuit says defendant failed to sufficiently raise age-recidivism argument at sentencing (742) Defendant was sentenced to 262 months under the Armed Career Criminal Act. He argued that his sentence was procedurally unreasonable because the court did not explicitly discuss on the record his argument that his advanced age upon his release would be sufficient to protect the public from any further crimes, thus weighing in favor of a downward departure. Although the judge did not make even a cursory mention of defendant ‘s age-recidivism argument, the Sixth Circuit found that the sentencing was not procedurally unreasonable. Defendant did not raise the objection with a sufficient degree of specificity to apprise the court of the true basis for his objection. Defendant raised his age-recidivism argument in a fleeting manner, buried within a series of interrelated objections concerning his personal characteristics, including his age, disabilities, and request for placement in a medical facility. The policy and legal arguments in defendant ‘s appellate briefs concerning the correlation between increased age and lower recidivism rates, were never presented to the district court. U.S. v. Taylor, __ F.3d __ (6th Cir. Aug. 25, 2015) No. 14-6048.
6th Circuit finds drug sentence at bottom of guideline range was reasonable. (742) Defendant was convicted of drug charges. The district court sentenced him to 360 months, at the bottom of his guidelines range of 360 months to life. Defendant argued that his sentence was substantively unreasonable because a shorter sentence would have adequately met the statutory purposes of sentencing. The Sixth Circuit disagreed. The record indicated that the district court based its sentencing decision on a thorough analysis of the factors set forth by Congress in §3553(a). Defendant failed to demonstrate that his low-end sentence was substantively unreasonable. U.S. v. Collins, __ F.3d __ (6th Cir. Aug. 24, 2015) No. 13-6617.
7th Circuit says court did not ignore defendant ‘s mitigating arguments. (742) Defendant was convicted of failing to register as a sex offender. The district court found “no reasonable basis to depart” from the guidelines recommended range of 18 to 24 months, and sentenced him to 18 months. Defendant argued that the court ignored his arguments in mitigation, but the Seventh Circuit disagreed. Although some of the court ‘s comments, taken in isolation, looked “fairly rote,” the panel found that the record as a whole showed that the court meaningfully considered the mitigation arguments that defendant raised. The court questioned defendant directly about his work history, and expressly acknowledged defendant ‘s claim that he was “a changed person” who presented no risk. The court asked about defendant ‘s past registration as a sex offender, and found his failure to register more important than his previous instances of compliance. The court considered defendant ‘s arguments about the length of time since his sex offenses, often interrupting with questions. In short, the court considered defendant ‘s arguments, but found them unpersuasive. Although the court did not directly explain why it found them unpersuasive, there was no procedural error. U.S. v. Jones, __ F.3d __ (7th Cir. Aug. 19, 2015) No. 14-2787.
8th Circuit finds court adequately considered sentencing factors in terrorism case. (742) Defendant was convicted of providing and conspiring to provide material support to al Shabaab, a foreign terrorist organization. She challenged on appeal her 240-month sentence, arguing that the court procedurally erred by failing to consider the factors in 18 U.S.C. §3553(a) and to explain the reasons for her sentence. The Eighth Circuit disagreed, noting that the court conducted a lengthy sentencing hearing during which it asked many questions that related to the §3553(a) factors. The court asked defendant questions about her background, her contact with members of al Shabaab, her understanding of al Shabaab ‘s goals and activities, and the circumstances under which she had sent money to al Shabaab. Furthermore, in sentencing defendant, the court specifically stated that it had followed the §3553(a) factors and had considered the PSR, counsels ‘ arguments, and “all the pertinent terrorism cases.” The district court ‘s questions and its statement in imposing defendant ‘s sentence showed that the court “considered the parties ‘ arguments and ha[d] a reasoned basis for exercising [its] own legal decision-making authority.” U.S. v. Ali, __ F.3d __ (8th Cir. Aug. 25, 2015) No. 13-2208.
8th Circuit affirms below-guideline sentence in terrorism case as substantively reasonable. (742) Defendant was convicted of providing and conspiring to provide material support to al Shabaab, a foreign terrorist organization. She argued that her 240-month sentence was substantively unreasonable, even though it fell below her guideline range of 360 months to life. The Eighth Circuit disagreed. When a district court varies downward from the advisory sentencing guidelines range, as the court did here, “it is nearly inconceivable that the court abused its discretion in not varying downward still further.” The court did not improperly weigh her religion and her refusal to disavow it. The portion of the transcript that defendant cited for this contention did not support her argument. Rather, the district court merely explored defendant ‘s understanding of al Shabaab ‘s goals and actions, a permissible factor to consider in sentencing. See 18 U.S.C. §3553(a)(1)-(2). District courts have “substantial latitude in weighing the §3553(a) factors.” U.S. v. Ali, __ F.3d __ (8th Cir. Aug. 25, 2015) No. 13-2208.
8th Circuit finds court adequately considered mitigating sentencing factors. (742) Defendant was convicted of providing and conspiring to provide material support to al Shabaab, a foreign terrorist organization. She challenged her 120-month sentence, claiming that the district court procedurally erred by failing to consider the §3553(a) factors and by failing to explain its sentencing rationale so as to permit meaningful appellate review. In particular, defendant argued that the court failed to consider her mitigating evidence—specifically, her diagnosis of post-traumatic stress disorder and her life experiences. The Eighth Circuit found no procedural error. Defense counsel made these specific mitigation arguments during the sentencing hearing, and the panel “presume[d] the district court consider[ed] such matters as are presented to it.” Before sentencing defendant, the court stated that it had considered the §3553(a) factors, the “pertinent terrorism cases,” the PSR, counsel ‘s arguments, the evidence from trial, and the court ‘s discussion with defendant at sentencing. U.S. v. Ali, __ F.3d __ (8th Cir. Aug. 25, 2015) No. 13-2208.
8th Circuit says court did not improperly consider defendant ‘s religion at sentencing. (742) Defendant was convicted of providing and conspiring to provide material support to al Shabaab, a foreign terrorist organization. She argued that her 120-month sentence was substantively unreasonable, even though it fell below her guideline range of 360 to 372 months. The Eighth Circuit held that the sentence was substantively reasonable. Defendant ‘s primary contention was that the court improperly weighed her religion and her refusal to disavow it. Some of the court ‘s questions during the sentencing hearing, such as querying defendant about whether the Qu ‘ran permits suicide bombings, when she started wearing a hijab, and whether she knew about “the philosophy or religious viewpoint of al Shabaab,” touched on the topic of religion. However, “religion was a pervasive theme underlying the entire trial.” It was “not surprising that religion might have been mentioned at sentencing.” After reviewing the entire sentencing transcript, the panel found no suggestion that the court based defendant ‘s sentence, which was 20 years below the bottom of her advisory guidelines range, on defendant ‘s religion or her refusal to disavow it. U.S. v. Ali, __ F.3d __ (8th Cir. Aug. 25, 2015) No. 13-2208.
8th Circuit affirms sentence at bottom of guideline range as reasonable. (742) Defendant embezzled money from his employer and lied on his taxes. The district court determined defendant ‘s advisory guidelines range was 108-135 months, and sentenced him to 108 months. The Eighth Circuit held that the guideline sentence was reasonable. The panel rejected defendant ‘s argument that the district court did not give enough weight to supposed mitigating factors and relied on an improper factor, defendant ‘s false testimony. The court considered both written and oral arguments presented by defendant. It noted that defendant received a flood of supportive letters and that it had considered those letters. It mentioned many mitigating factors. There was no indication the district court “punished” defendant for testifying on his own behalf. The district court noted that defendant perjured himself at trial, and failed to show any remorse. U.S. v. Waters, __ F.3d __ (8th Cir. Aug. 21, 2015) No. 14-3045.
8th Circuit says 720-month sentence for multiple child porn offenses was reasonable. (310)(742) Defendant pled guilty to multiple child pornography offenses, and was sentenced to 720 months. The Eighth Circuit found the sentence was procedurally and substantively reasonable. The court considered the § 3553(a) factors, describing described defendant’s actions as being “so vile and horrendous that the dismay, the disdain, the distastefulness of them is so bad that it’s the same as witnessing it yourself firsthand.” This showed consideration of the seriousness of defendant’s offense. See 18 U.S.C. § 3553(a)(2). The court’s follow-up statement that “[i]t’s very difficult, very, very difficult, …. to find anything that excuses such conduct like this” was an indication that the court considered but gave little weight to defendant’s history and characteristics. See § 3553(a)(1). As for substantive reasonableness, the sentences of 360 months imposed on two of the counts were both within the guideline range of 292-365 months. The imposition of consecutive, as opposed concurrent sentences for these two counts did not amount to an abuse of discretion given the nature of the offenses. U.S. v. Smith, __ F.3d __ (8th Cir. Aug. 3, 2015) No. 14-2912.
9th Circuit affirms denying joint request for fast-track departure. (340)(742) At defendant’s sentencing for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, the district court declined the parties’ joint request for a fast-track departure under § 5K3.1, finding the recommended sentence too short. Instead, the district court sentenced defendant to 27 months, a sentence within the defendant’s guidelines range without the departure. The Ninth Circuit found that the district court had discretion to reject the fast-track departure. The court of appeals found that after Booker all departures are discretionary and found no indication that Congress intended fast-track departures to be mandatory. U.S. v. Rosales-Gonzales, __ F.3d __ (9th Cir. Sept. 15, 2015) No. 14-50286.
9th Circuit rejects “parsimony” argument in illegal reentry case. (340)(742) Defendant pleaded guilty to illegal reentry after removal, in violation of 8 U.S.C. § 1326. At sentencing, the district court rejected the parties’ joint recommendation of a 15-month sentence and instead imposed a 27-month sentence. On appeal, defendant argued that this sentence violated the “parsimony principle” in 18 U.S.C. § 3553(a) that a sentence should be sufficient but not greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). The court of appeals found that a challenge based on the “parsimony principle” is “simply another way of stating that the sentence is unreasonable” and found that the district court had not acted unreasonably in imposing a 27-month sentence. U.S. v. Rosales-Gonzales, __ F.3d __ (9th Cir. Sept. 15, 2015) No. 14-50286.
D.C. Circuit holds below-guidelines drug sentence was not unreasonably high. (716)(742) Defendant was a member of the Gulf Cartel, one of the largest and most infamous drug cartels in Mexico. He was convicted of conspiring to manufacture and distribute cocaine and marijuana for importation into the United States. The guidelines recommended a sentence of life imprisonment. At sentencing, the court emphasized the enormity of the threat posed by cartels and the drug trade between Mexico and the United States, as well as § 3553(a)(2)(B)’s directive to adequately deter such conduct. Nonetheless, the court imposed a below-guidelines 35-year sentence in light of the need to avoid “unwarranted sentencing disparities between [defendant] and defendants found guilty of similar crimes.” The D.C. Circuit held that the sentence was reasonable, rejecting defendant’s argument that his sentence was too severe when compared to co-conspirators who pled guilty. The judge clearly took into account the need to avoid unwarranted disparities, and offered that as the primary reason to give defendant a below-guidelines sentence. Moreover, “[b]ecause it is well established that sentences that fall within the Guidelines range are entitled to a presumption of reasonableness, it is hard to imagine how we could find [a] below-Guidelines sentence[ ] to be unreasonably high.” U.S. v. Cano-Flores, __ F.3d __ (D.C. Cir. Aug. 7 2015) No. 13-3051.
4th Circuit upholds 25-year sentence for 68-year-old minister who molested young girls. (715)(742) Defendant, an ordained minister who oversaw a ministry in Haiti, was a sex addict who molested young girls. The guidelines recommended a 60-year sentence, but the district court sentenced him to 25 years. Defendant had requested a five-year term. The Fourth Circuit held that the sentence was procedurally and substantively reasonable. The court considered the mitigating factors defendant raised, including the fact that he had self-reported. Although defendant argued that the court improperly considered the victims’ ages, the record showed the court relied on non-age-related factors such as the abuse of trust involved and the fact that the girls were “some of the most vulnerable, most poor, most needy, most in need of protection from those in authority.” Despite defendant’s age (68), the 25-year sentence was a 60 percent downward variance. Defendant cited no authority for the proposition that a defendant’s advanced age renders unreasonable a sentence that would otherwise be reasonable. U.S. v. Bollinger, __ F.3d __ (4th Cir. Aug. 19, 2015) No. 14-4086.
5th Circuit allows court to consider lack of remorse or acceptance of responsibility. (742) Defendant participated in a conspiracy that defrauded telecommunications companies. He was originally sentenced to 480 months, but one of the convictions was reversed on appeal. At resentencing, the district court again imposed a 480-month sentence. The court noted that since the first sentencing hearing, defendant had still not accepted responsibility or expressed remorse for his criminal activity. Although defendant sent a letter to the court expressing some remorse, the court found that it was “almost the bare minimum” because defendant did not accept criminal responsibility. Defendant asserted that the district court gave undue weight to his lack of remorse and failure to accept responsibility because these factors were already taken into account by the guidelines. The Fifth Circuit held that the sentence was reasonable. A defendant’s lack of remorse and acceptance of responsibility are acceptable sentencing considerations, and the court was free to give more or less weight to factors already accounted for in the advisory range. U.S. v. Simpson, __ F.3d __ (5th Cir. Aug. 12, 2015) No. 14-10932.
7th Circuit says defendant waived argument that guideline sentence was unreasonable. (742)(855) The entirety of defendant’s challenge to the sentence imposed was a single sentence in his issues presented: “Did the District Court err by sentencing [defendant] near the top of the applicable Guideline range?” That question was unsupported by argument, bereft of citations, and completely undeveloped in defendant’s brief. As such, it was an “afterthought without citation to authority” insufficient to raise an issue on appeal. The Seventh Circuit found the issue was waived. U.S. v. Collins, __ F.3d __ (7th Cir. Aug. 11, 2015) No. 14-3427.
7th Circuit says below-guidelines crack sentence was not too high. (742) Defendant pled guilty to conspiring to distribute 280 grams or more of crack cocaine, and was originally sentenced to 360 months. The case was remanded after the appellate court found that the district court improperly considered certain transactions as rele-vant conduct. On remand, the district court recalculated a guideline range of 360 months to life. Concerned about the sentencing disparity between crack and powder cocaine, the court varied downward to a sentence of 324 months. The Seventh Circuit rejected defendant’s argument that this below-range sentence was unreasonably high. The court did not misapply the § 3553(a) factors. It noted various aggravating factors, such as defendant’s threats against witnesses, and his long history of drug offenses, which showed a “habit of disregarding the law.” The court also noted that defendant performed well in prison, attending the Challenge Program, some GED course work, and a parenting class, and had held positions in food service and had no disciplinary infractions. The district court’s “thoughtful and thorough explanation of its sentence [was] tailored to [defendant] and [was] wholly consistent with the § 3553(a) factors.” U.S. v. Purham, __ F.3d __ (7th Cir. Aug. 5, 2015) No. 14-3424.
1st Circuit finds court’s comments clarified that it was aware life sentence was not mandatory. (742) Defendant was convicted of a variety of drug charges. He argued that the district court erroneously ignored the § 3553(a) factors and considered the life sentence recommended by the guidelines to be mandatory. He based this on the court’s statement that it was “imposing the mandatory life sentence.” However, immediately following this statement, the court clarified that the sentence was “[m]andatory in the sense that that’s what the guidelines call for.” The court went on to say that there was “nothing before me that would tell me that I should do anything different by departure or by variance, and I will not.” The First Circuit concluded that although the district court did use the term “mandatory,” it was clear from its clarification and decision not to impose a variance that this was simply a misstatement, and that the court was well aware that the life sentence was not mandatory. Moreover, the court’s comment that there was “nothing before me that would tell me that I should do anything different” was most likely a reference to, and rejection of, the § 3553(a) sentencing factor arguments contained in defendant’s sentencing memorandum. U.S. v. Laureano-Perez, __ F.3d __ (1st Cir. July 30, 2015) No. 13-2224.
1st Circuit holds that guideline sentence was reasonable. (742) Defendant pled guilty to being a prohibited person in possession of a firearm. His plea agreement specified a guideline range of 92-115 months, and the government agreed to recommend a sentence of 92 months. The district court, however, imposed a sentence of 115 months. The First Circuit held that the guideline sentence was procedurally and substantively reasonable. The district court did not improperly calculate the guidelines range, fail to consider the §3553(a) factors, or commit any other procedural error. The sentence was also substantively reasonable. Defendant had prior convictions, including one for murder. In the current case, while on probation, he was in a stolen vehicle, in a mask, in possession of a machine gun. In an attempt to evade the police, he ran across a highway, creating danger not only to the police but to those on the road. The district court explicitly stated that it reviewed the guideline calculations and considered defendant’s education level, lack of substance abuse, and the absence of a history of mental or emotional health problems. There was no error. U.S. v. Hernandez-Maldonado, __ F.3d __ (1st Cir. July 17, 2015) No. 14-1444.
7th Circuit approves guideline tax fraud sentence despite “tragic circumstances “of defendant’s family. (742) Defendant, an IRS agent, organized a tax fraud scheme. The district court sentenced her to 228 months, which fell within her guideline range. She argued that the district court committed procedural error by placing undue weight on the guidelines and on deterrence interests, while minimizing the offender-specific considerations in this case, including that she was a first-time offender and the sole caregiver of four children, one of whom received a terminal medical diagnosis during the course of the prosecution. The Seventh Circuit held that the sentence was reasonable. The district court gave adequate consideration to all of these factors, but found that they were not “sufficiently extraordinary “to warrant a variance. Defendant’s argument ultimately amounted to a claim of substantive unreasonableness. Notwithstanding the tragic circumstances facing defendant’s family, she could not meet her heavy burden of showing that a sentence within the applicable guidelines range was substantively unreasonable, in light of the sophisticated nature of her crimes, her lack of remorse, her abuse of her position with the IRS, and the need to deter other public employees from taking advantage of sensitive information. U.S. v. Fountain, __ F.3d __ (7th Cir. July 9, 2015) No. 14-3103.
7th Circuit says defendant did not rebut presumption that guideline sentence was reasonable. (742) Defendant pled guilty to multiple counts of bank fraud and one count of identity theft. His guideline range was 151-188 months, and the court sentenced him to 160 months, followed by a mandatory two-year sentence for the aggravated identity theft conviction. The Seventh Circuit held that defendant did not rebut the presumption that a guideline sentence is reasonable. Contrary to defendant’s claim, the district court considered the relevant §3553(a) factors on the record, including mitigating factors. The court specifically acknowledged defendant’s community work and considered letters attesting to defendant’s good character. The court also considered the nature of the offenses, the impact on the victims, as well as defendant’s criminal history, which included his arrest for similar misconduct while out on bail for the instant offenses. The district court was not required to make factual findings as to each §3553(a) factor, but the record on appeal should reveal, as it did here, that the district court considered the factors. U.S. v. Jones, __ F.3d __ (7th Cir. July 9, 2015) No. 14-3103.
1st Circuit says court did not plainly err in imposing 50-year child porn sentence. (310)(742) Defendant pled guilty to multiple counts of unlawful production of child pornography. The First Circuit rejected defendant’s claim, raised for the first time on appeal, that the district court failed to adequately explain his 50-year sentence. Defendant’s PSR gave “a comprehensive view of the tawdry facts” of the case. He engaged in sexually explicit conduct with girls from nine to 16 years of age. One of those victims suffered from a mental disability. The encounters involved bathing, touching, oral sex, and vaginal penetration, and the defendant surreptitiously video-recorded all of them. These offenses resulted in mental health issues for some victims, and one victim contracted a sexually transmitted disease. Moreover, defendant complained during his allocution that the victims “pushed [him] to it” and “put it on a silver platter to [him].” Given the “abhorrent nature” of defendant’s conduct and “his palpable lack of contrition,” it was easy to infer the district court’s sentencing rationale. U.S. v. Ruiz-Huertas, __ F.3d __ (1st Cir. July 7, 2015) No. 14-1038. XE “U.S. v. Ruiz-Huertas, __ F.3d __ (1st Cir. July 7, 2015) No. 14-1038.”
1st Circuit upholds 50-year sentence for child porn offenses. (310)(742) Defendant pled guilty to multiple counts of unlawful production of child pornography. He argued that his 50-year sentence was substantively unreasonable because it was greater than necessary to comply with the purposes of sentencing in 18 U.S.C. § 3553(a)(2). The First Circuit disagreed, and upheld the sentence as substantively reasonable. The aggregate sentence imposed was consistent with the guideline sentence of life imprisonment. The sentencing court was careful to structure the overall sentence to fit within the statutory maximum of 30 years per count. “Giving due regard to the especially heinous nature of the offenses of conviction, the victims’ tender ages, and the defendant’s begrudging expression of remorse, it [was] evident that the aggregate sentence imposed here [fell] within the wide universe of reasonable sentencing outcomes.” U.S. v. Ruiz-Huertas, __ F.3d __ (1st Cir. July 7, 2015) No. 14-1038. XE “U.S. v. Ruiz-Huertas, __ F.3d __ (1st Cir. July 7, 2015) No. 14-1038.”
4th Circuit affirms term of supervised release for deportable alien. (580)(742) Defendant pled guilty to illegal reentry after deportation. The district court imposed a sentence that included three years of supervised release. The Fourth Circuit rejected defendant’s claim that the term of supervised release was procedurally unreasonable. Although supervised release is “ordinarily” discouraged by § 5D1.1(c) for a removable alien, the term “ordinarily” is not mandatory. Where a sentencing court (1) is aware of § 5D1.1(c); (2) considers a defendant’s specific circumstances and the § 3553(a) factors; and (3) determines that additional deterrence is needed, a term of supervised release may be imposed. Here, the district court made repeated references to its desire to deter defendant from illegally entering the country for a fourth time and continuing his pattern of committing criminal acts. The court informed defendant that it would impose a term of supervised release because it thought that he would try to get back into the country again. Under these circumstances, the imposition of supervised release was appropriate. U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244. XE “U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244.”
4th Circuit allows term of supervised release to be based on ease of revocation if violated. (580)(742) Defendant pled guilty to illegal reentry after deportation. The district court imposed a sentence that included three years of supervised release. The court remarked that if defendant violated the conditions of supervised release, the authorities could “get him in jail much faster than if we went through a separate prosecution.” Defendant contended that the court’s premise was flawed, and, as such, constituted substantive error. The Fourth Circuit disagreed. Cf. Morrissey v. Brewer, 408 U.S. 471, 479 (1972) (explaining that a revocation of parole “is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State”). Furthermore, the court’s sentencing rationale was not based on an impermissible factor. The admonition that defendant would be “in jail much faster” was an indication of the court’s intention to provide deterrence and protection for the community. U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244. XE “U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244.”
1st Circuit finds cases cited by defendant were not similar to his case. (716)(742) Defendant was convicted of Hobbs Act robbery, using a firearm during a crime of violence, and felony murder, and was sentenced to 23 years. He argued that the district court refused to consider his arguments that the sentences in similar reported cases should guide the court’s sentence in his case. The First Circuit rejected the argument, finding that the judge considered defendant’s arguments regarding § 3553(a)(6). The judge rejected defendant’s argument that his involvement was minimal: “when you decide to go in a car and attack a person that most probably is with a weapon, to take $63,000, you have to know for sure that there may be somebody killed.” The district court said enough to indicate that defendant was “not in the same camp” as defendants with minimal participation. Defendant’s sentence was not procedurally unreasonable. U.S. v. Garcia-Ortiz, __ F.3d __ (1st Cir. July 6, 2015) No. 13-1632. XE “U.S. v. Garcia-Ortiz, __ F.3d __ (1st Cir. July 6, 2015) No. 13-1632.”
7th Circuit finds no sentencing disparity where co-defendants cooperated and were not ringleaders. (716)(742) Defendant was involved in a conspiracy to commit account takeover fraud, in which he and seven co-conspirators fraudulently added themselves as authorized users on existing credit card accounts without the account holders’ knowledge or permission. The court imposed a below-guidelines sentence of 132 months, and then added the mandatory two-year consecutive sentence for the aggravated identity theft count. Defendant challenged his below-guidelines sentence as unreasonable, given the disparities between his sentence and those of his co-defendants who received no jail time. The Seventh Circuit found no unwarranted sentencing disparity. His co-defendants all cooperated with the government, offering testimony about the scheme at trial and against defendant. Such cooperation is typically rewarded with lesser sentences, and results in a warranted disparity in sentencing. Moreover, defendant was the ringleader in the scheme and initiated the illegal activity; by comparison, his co-defendants merely followed his direction. U.S. v. Harris, __ F.3d __ (7th Cir. July 1, 2015) No. 14-1846. XE “U.S. v. Harris, __ F.3d __ (7th Cir. July 1, 2015) No. 14-1846.”
1st Circuit finds no error in relying on information from co-defendant’s sentencing hearing. (742)(770) Defendant argued that the appellate court should remand for resentencing before a different judge because the district court relied on extra-record material that led it to acquire a “preformed bias” against him as a “very dangerous individual.” At a sentencing hearing held two months earlier for Mojica, a co-defendant, the district court twice referred to “the person who was with Mojica as a “very dangerous individual.” Defendant was the “person” to whom the district court was referring. The First Circuit found no basis for deeming the information the district court relied upon to be unreliable. The district court explained at defendant’s sentencing hearing the precise basis for its view that defendant was a “very dangerous individual.” The court cited specifically that defendant was a federal fugitive when he and Mojica were arrested and mentioned defendant’s extensive criminal record. Those facts were corroborated by the unobjected-to information in defendant’s own PSR. Defendant could not have been surprised by the information on which the court based its judgment that he was “very dangerous.” U.S. v. Quinones-Melendez, __ F.3d __ (1st Cir. July 1, 2015) No. 14-1369. XE “U.S. v. Quinones-Melendez, __ F.3d __ (1st Cir. July 1, 2015) No. 14-1369.”
8th Circuit holds that court’s explanation for below-guideline sentence was adequate. (742) Defendant was convicted securities fraud and related charges. He argued for the first time on appeal that the court erred by failing to adequately explain his 210-sentence. The Eighth Circuit held that the court’s explanation was not plainly inadequate. The court cited the statutory factors of § 3553(a) and highlighted particular factors: defendant lied to the Securities and Exchange Commission, withheld information from his investors, and withheld information about the criminal record of a confederate, thereby extending the scheme and causing more losses. Under a plain-error standard, the record showed that the court considered the arguments and exercised reasoned judgment. The court computed an advisory guideline sentence of 1440 months, but varied downward to only 210 months. Where the sentence is below the advisory range, it is unlikely that the court abused its discretion in not varying downward still further. U.S. v. Fry, __ F.3d __ (8th Cir. July 1, 2015) No. 13-3502. XE “U.S. v. Fry, __ F.3d __ (8th Cir. July 1, 2015) No. 13-3502.”
7th Circuit reverses where court failed to adequately explain its upward variance. (742) Defendant was convicted of being a felon in possession of a destructive device, a pipe bomb. The district court calculated a guideline range of 33-41 months, but sentenced him to 120 months, the statutory maximum. The Seventh Circuit held that the district court failed to adequately explain the reasons for such a significant variance. The court’s explanation only totaled one full page of the sentencing transcript, made no explicit reference to 18 U.S.C. §3553, failed to explain how it balanced those factors, and made no reference to the advisory guideline range at all. The court observed that defendant had “an extensive criminal record” and mentioned “an occasion where [he] discharged firearms at people.” However, the facts of his criminal history were already taken into account by his criminal history level. The court also referenced its need to “incapacitate” defendant to “protect society.” These brief remarks did not explain why defendant was different from the vast majority of defendants. Finally, the court made no mention of mitigation at sentencing until defendant’s attorney asked after the fact whether the court had considered his arguments in mitigation. U.S. v. Lockwood, __ F.3d __ (7th Cir. June 16, 2015) No. 14-1809.
8th Circuit upholds sentence at bottom of guideline range for felon in possession. (742) Defendant pled guilty to being a felon in possession of a firearm. The district court denied defendant’s request for a downward variance, observing that defendant fled from police and that the gun he possessed was fully loaded. The court then sentenced him to 37 months, at the bottom of his advisory guideline range. Defendant argued that his sentence was substantively unreasonable, and that the court placed undue weight on the circumstances of his offense and ignored mitigating factors. The Eighth Circuit affirmed the sentence. It was within the advisory guideline range, so the panel presumed that it was substantively reasonable. Moreover, defendant advanced his mitigating factors at the sentencing hearing and in a sentencing memorandum, and therefore the panel presumed that the district court considered them. U.S. v. Williams, __ F.3d __ (8th Cir. June 25, 2015) No. 14-2600.
10th Circuit affirms sentence despite claims of coercion and aberrant conduct. (742) Defendant was convicted of wire fraud and money laundering. The district court denied his motion for a variance, concluding that most of the factors he asserted had already been accounted for in the guidelines, that his conduct was planned rather than aberrational, and that while others had recruited him into the fraudulent scheme, they had not done so through coercion or duress. On appeal, defendant contended that the district court abused its discretion by essentially presuming the reasonableness of the advisory guidelines sentence and failing to adequately consider his reasons for seeking a lower sentence. The Tenth Circuit disagreed, finding that the district court did all it was required to do before imposing a within-Guidelines sentence. Here, the district court noted the advisory sentencing range of 63-78 months, discussed several §3553(a) factors, considered defendant’s arguments for a variance, and stated its reasons for rejecting those arguments before imposing the low-end prison sentence of 63 months. There was no abuse of discretion under these circumstances. U.S. v. Zar, __ F.3d __ (10th Cir. June 23, 2015) No. 13-1111.
1st Circuit says court properly rejected mitigating factors raised by fraud defendant. (742) Defendant was convicted of various offenses arising from a fraud scheme that swindled scores of unsuspecting victims. His guideline range was 188-235 months, and the district court sentenced him to 235 months. Defendant argued that the district court failed to consider crucial mitigating factors, such as his age, his “efforts to bring the coin scheme into compliance with federal law,” and the fact he himself was purportedly “deceived” by “charlatans.” The First Circuit held that the top-of-the-guideline range sentence was reasonable. The district court rejected the premise of the latter two purported mitigating factors. It found that defendant, far from being a victim, was a “leader and organizer” of the fraudulent scheme. The district court also explicitly considered defendant’s age. However, in choosing the 235-month sentence, the court also considered other relevant factors, such as defendant’s history of fraudulent conduct, his targeting of vulnerable individuals, his repeated attempts to manipulate the proceedings and his total lack of remorse. U.S. v. Pacheco-Martinez, __ F.3d __ (1st Cir. June 15, 2015) No. 13-2154.
1st Circuit reverses inadequate explanation of upward variance for discharging firearm. (742) Defendant pled guilty to drug charges. His PSR calculated a recommended sentencing range of 10-16 months; but the district court sentenced him to 48 months, explaining that even though defendant did not plead guilty to a weapons offense, it could not “disregard the fact that he participated in an offense that involved firearms and that those firearms were fired during the offense.” The court referenced the conduct of co-defendants who had fired guns into the air from a different vehicle while defendant was driving nearby. The First Circuit held that the district court failed to adequately explain its reasons for the sentencing variance. The sentence was three times greater than the top of the guideline range, so the court was obliged to explain it reasons for such a significant variance. The use of firearms was accounted for in a two-level enhancement for firearms so the court’s mere reference to the use of the firearms could not justify such a significant variance. U.S. v. Ortiz-Rodriguez, __ F.3d __ (1st Cir. June 10, 2015) No. 13-2551.
7th Circuit remands 440-month sentence because defendant would be elderly on release. (742) Defendant was convicted of drug and firearms charges, and sentenced him to 440 months (36.67 years) in prison. He argued that the length of incarceration “far exceeded a sentence under 18 U.S.C. §3553(a) that was sufficient, but no greater than necessary to achieve the sentencing goals set forth therein.” The Seventh Circuit found that this “perfunctory argument fail[ed] to establish a basis for resentencing.” Nonetheless, the panel found it had “an independent responsibility” to examine the sentence. The judge failed to consider the appropriateness of incarcerating defendant for so long that he would be elderly when released. Sentencing judges need to consider the phenomenon of aging out of risky occupations. Violent crime, which can include trafficking in heroin, is generally a young man’s game. The panel upheld the sentence, because it was within the guidelines range and defendant made only the most perfunctory argument for reducing it. However, while the judge did not commit reversible error, the panel ordered a limited remand to enable the judge to consider whether to resentence the defendant in light of the concerns expressed in the appellate opinion. U.S. v. Presley, __ F.3d __ (7th Cir. June 11, 2015) No. 14-2704.
8th Circuit reverses upward variance that was based on contested facts in PSR. (742)(765) Defendant pled guilty to possessing an unregistered sawed-off rifle. The district court departed or varied upward from the advisory guidelines range of 70-87 months to the statutory maximum of 120 months. Defendant argued that the district court based its sentence on the clearly erroneous facts of a pending domestic assault charge. The Eighth Circuit agreed, holding that the district court improperly relied on objected-to facts in the PSR. Paragraph 28 of his PSR stated the allegations of charge, and defendant clearly and specifically objected to these allegations. The district court based its sentence on the objected-to facts, stating that the current offense was “an aggravated circumstance between he … and [the girlfriend]. He had abused her before.” This was error. A PSR is not evidence, and not a legally sufficient basis for findings on contested issues of material fact. The error was plain. Defendant’s substantial rights were affected. He was a 21-year-old high-school graduate with a limited criminal record. There was a reasonable probability that but for the unproved allegations, defendant would have received a shorter sentence. U.S. v. Webster, __ F.3d __ (8th Cir. June 12, 2015) No. 14-2822.
1st Circuit approves upward variance for “serious” interstate stalking case. (680)(741)(742) Defendant was convicted of two counts of interstate stalking with intent to harm or kill his estranged wife and her boyfriend. He argued that the district court erred by denying him a downward departure (or variance) for his mental and physical condition, as permitted by §§5H1.3 and 5H1.4. Aware of the seriousness of defendant’s health and mental problems, the district court recommended a special assignment to the Bureau of Prisons, but it did not reduce defendant’s sentence. The First Circuit ruled that this choice was not an abuse of discretion. The 100-month sentence, which represented a 37-month upward variance, was substantively reasonable. Citing defendant’s letter to his son, in which defendant threatened his own death, items found in defendant’s car (weapons, duct tape, handcuffs, plastic bags and sheeting, rope, rubber gloves, and maps identifying his wife’s home), and defendant’s knowledge of the layout of his wife’s house, the district court concluded that “[t]his was a serious interstate stalking case” that “created exceeding danger.” While recognizing defendant’s medical issues, the district court also noted that defendant still did not recognize the seriousness of his conduct. U.S. v. Lee, __ F.3d __ (1st Cir. June 12, 2015) No. 14-1042.
5th Circuit says sentence not unreasonable despite lighter sentence given to more co-conspirator. (716)(742) Defendants worked for an investment company operated by Stanford, who used the company to run a multi-billion dollar Ponzi scheme. Defendants actively helped Stanford hide his fraud for over a decade. The district court calculated an advisory sentence of life imprisonment, but imposed 240-month sentences. They contended that their 240-mnth sentences were substantively unreasonable, particularly in contrast to the 60-month sentence that co-conspirator Davis received. The Fifth Circuit held that the below-guidelines sentence was reasonable. Davis was not similarly situated to defendants. Defendants made much of the fact that they did not personally profit from Stanford’s scheme, while Davis, who made millions of dollars throughout the course of the scheme, received a much shorter sentence. However, Davis received a lesser sentence in exchange for pleading guilty, accepting responsibility, and testifying at multiple trials, include Stanford’s trial. The panel refused to second-guess the district court on these facts. U.S. v. Kuhrt, __ F.3d __ (5th Cir. June 5, 2015) No. 13-20115.
7th Circuit holds that defendant waived argument that court failed to consider his mitigating arguments. (742)(855) Defendant pled guilty to drug charges, and was sentenced within the guideline range to 160 months. He argued that the sentencing court committed procedural error when it failed to consider his mitigating arguments about the nature and circumstances of his offense, his cooperation with the police, and his family background. The Seventh Circuit held that defendant waived these complaints when, at the end of the sentencing hearing, the judge asked if he had addressed all of the arguments, and defendant’s lawyer answered yes. Moreover, the court in fact addressed defendant’s argument that he cooperated with the government, but found it only slightly mitigating because defendant stopped short of testifying against his uncle. U.S. v. Cruz, __ F.3d __ (7th Cir. June 1, 2015) No. 14-1992.
7th Circuit upholds that refusal to grant downward departure. (742) Defendant pled guilty to drug charges, and was sentenced within the guideline range to 160 months. He argued that his sentence was substantively unreasonable because the court failed to grant him a downward departure for his cooperation, his family’s business of drug sales and his absent father, and the nature and circumstances of his offense. The Seventh Circuit found no error. Downward departures were obsolete after United States v. Booker, 543 U.S. 220 (2005). Courts now use the factors in 18 U.S.C. §3553(a) to determine the appropriate sentence. A within-guidelines sentence is presumptively reasonable. Defendant did not show that the judge’s reasoning was inconsistent with §3553(a) or otherwise rebut that presumption. The court weighed the potentially mitigating family circumstances (his children and ill grandmother), and his partial cooperation against his criminal history, and ultimately decided that a within-guidelines sentence was warranted given defendant’s many prior opportunities to learn from his mistakes. U.S. v. Cruz, __ F.3d __ (7th Cir. June 1, 2015) No. 14-1992.
5th Circuit holds that within-guidelines 240-month statutory maximum for child porn offense was substantively reasonable. (310)(742) Defendant pled guilty to receiving child pornography. The district court sentenced him to 240 months, the statutory maximum, rejecting defendant’s request for a downward variance from the guideline range of 210-240 months. Defendant argued that the sentence was substantively unreasonable, claiming that his military service, the absence of a criminal history, his history of abuse and depression, and his possible loss of his United States citizenship warranted a lesser sentence. The Fifth Circuit held that the sentence was substantively reasonable. The district court considered defendant’s mitigating evidence, but determined that the nature and circumstances of the offense, the history and characteristics of the defendant, the need to reflect the seriousness of the offense, and the need to deter future criminal conduct justified the sentence imposed. Defendant failed to rebut the presumptive reasonableness of his within-guidelines sentence. U.S. v. Duke, __ F.3d __ (5th Cir. June 5, 2015) No. 14-30559.
7th Circuit upholds refusal to vary from career offender guideline range. (520)(742) A jury convicted defendant of possession with intent to distribute cocaine. Defendant qualified as a career offender, and the district court sentenced him to 262 months, which fell at the bottom of his guideline range. Defendant had requested the court disregard the career offender enhancement and sentence him in the range of 92-115 months. The Seventh Circuit held that defendant’s guideline sentence was reasonable. The district court meticulously reviewed defendant’s criminal history and even particularly noted that it was “aware of the draconian effect of career offender status.” The court then went on, however, to note defendant’s “disturbing criminal history,” and concluded that he had spent the better part of his time since the age of 18 committing crimes of violence and dealing drugs. The court noted that it had considered the §3553 factors, that it had prioritized the need to protect the community from drugs and violence and considered the possibility of rehabilitation. The district court exercised discretion reasonably and thoughtfully in refusing to ignore the career offender enhancement. U.S. v. Lawrence, __ F.3d __ (7th Cir. June 2, 2015) No. 13-3205.
1st Circuit reverses extreme downward variance in child porn case for inadequate explanation. (310)(742) Defendant pled guilty to transferring obscene material to a minor and possessing child pornography. His guideline range was 70-87 months, but the district court sentenced him to time served, which amounted to 13 days, and 15 years of supervised release. The First Circuit found that the district court failed to provide an adequate explanation for this “extraordinary variance,” and vacated the sentence. When explaining its decision, the district court focused exclusively on defendant’s potential for rehabilitation and low risk of recidivism. The court did not explain how it had weighed the other §3553(a) factors, or why this particular sentence was appropriate in light of these factors. Given the extent of the variance, the panel was unwilling to infer that the court adequately considered the other §3553(a) sentencing factors. The district court’s consideration of the neglected factors was not self-evident from the record. U.S. v. Crespo-Rios, __ F.3d __ (1st Cir. May 22, 2015) No. 13-2216.
6th Circuit approves statutory maximum sentence for child porn offense. (310)(742) Defendant pled guilty to child pornography charges, and was sentenced to the statutory maximum of 240 months. This fell below his guideline range of 262-327 months. Sentences within a defendant’s guidelines range are presumptively reasonable, a presumption that extends to sentences below the guideline range. Nonetheless, defendant argued on appeal that his sentence was substantively unreasonable. The Sixth Circuit ruled that defendant failed to overcome this presumption of reasonableness. The record indicated that the district court sufficiently discussed the various 18 U.S.C. §3553(a) factors, including the nature and circumstances of his conduct, defendant’s history and characteristics, the need for the sentence, sentencing disparities, and the need for restitution. The court did not abuse its discretion in imposing the statutory maximum sentence. Defendant’s remaining arguments, regarding the harshness of the guidelines with respect to child pornography offenders, were likewise unavailing. U.S. v. Pirosko, __ F.3d __ (6th Cir. May 21, 2015) No. 14-3402.
1st Circuit affirms court’s statement that it considered all the §3553(a) factors. (740)(742) Defendant argued that the district court did not adequately consider all of the statutory sentencing factors under 18 U.S.C. §3553(a). The First Circuit disagreed, noting that it has “held with a regularity bordering on the monotonous that even though ‘a sentencing court must consider all relevant section 3553(a) factors, it need not do so mechanically.’” Here, the sentencing court stated that it had considered the §3553(a) factors, and this was “entitled to some weight.” Moreover, court referred to the defendant’s personal history and characteristics, 18 U.S.C. §3553(a)(1), noting that he had two daughters and had worked to obtain a high-school equivalency diploma while in prison. The court also discussed the nature and seriousness of the offense, §§3553(a)(1), (a)(2)(A), commenting specifically on the large quantity of drugs and ammunition in defendant’s custody, together with his possession of a high-firepower weapon. This sufficiently showed that the court considered the §3553(a) factors. U.S. v. Fernandez-Garay, __ F.3d __ (1st Cir. May 20, 2015) No. 14-1367.
8th Circuit says failure to robotically recite every argument raised by defendant was not error. (740) (742)(750) Defendant was convicted of illegal reentry into the U.S., and was sentenced to 70 months, which fell at the bottom of his 70-87 month guideline range. On appeal, he contended that the district court improperly failed to address the sentencing factors in 18 U.S.C. §3553(a). He also asserted that the court failed to address “the numerous positive aspects of [defendant’s] life,” the difficulty of “start[ing] his life anew in [Mexico],” and his lack of access to the “Fast-Track” program. The Eighth Circuit found no error. The court expressly advised him that it considered all of the §3553(a) factors, including the “nature and circumstances of this offense, the history and characteristics of this defendant, the need for the sentence … to reflect the seriousness of the offense, to promote respect for the law, to afford adequate deterrence of criminal conduct, and to protect the public from further crimes of this defendant.” The court’s choice not to robotically recite every factor in §3553(a) was not reversible error. U.S. v. Ruiz-Salazar, __ F.3d __ (8th Cir. May 18, 2015) No. 14-2666.
7th Circuit finds court adequately considered defendant’s mitigating arguments. (742) Defendant argued that the district court erred by failing to give meaningful consideration to his request for a sentence of time served with community-based drug treatment. In light of the court’s explicit treatment of the points defendant raised, the Seventh Circuit found no procedural error. It was true that the court could have said more and offered a personalized evaluation of defendant’s addiction, or reviewed on the record the evidence defendant provided which provided “strong support for the position that the national strategy of incarcerating drug addicts has been ineffective.” The court’s failure to address this well-supported argument was “troubling.” Nonetheless, the judge told defendant that it had considered the “significant focus” of the hearing to be defendant’s drug use as well as the supplemental briefing, and that this information had affected the final sentence. While more would have been helpful, the court said enough on the record to conclude that it had considered defendant’s argument and that defendant’s submission had contributed to the below-guidelines sentence. U.S. v. Boatman, __ F.3d __ (7th Cir. May 15, 2015) No. 14-2081.
1st Circuit affirms below-guidelines drug sentence as not too high. (742) Defendant was convicted of drug conspiracy charges, and sentenced to 128 months, which was eight months above the ten-year mandatory minimum, but 23 months below the bottom of the 151-188-month recommended guideline range. She contended that the judge did not consider every sentencing factor listed in 18 U.S.C. §3553(a). The first Circuit disagreed, noting that the judge said he considered “all the factors.” Moreover, the judge touched on the seriousness of her crimes, talked about her difficult family circumstances, highlighted her lack of criminal record, alluded to societal-protective concerns, and stressed the need to avoid unwarranted disparities between her sentence and a co-conspirator. Although defendant argued that the judge put too much weight on one factor, and too little weight on others, judges are not required to give each factor equal billing. U.S. v. Correa-Osorio, __ F.3d __ (1st Cir. Apr. 22, 2015) No. 12-1300.
1st Circuit affirms despite error in finding that felon-in-possession offense was a crime of violence. (330) (742) Defendant was convicted of being a felon in possession of a firearm. The district court applied a base offense level of 24 under §2K2.1(a)(2) based on its finding that defendant had two prior felony convictions for a crime of violence. On appeal, the parties agreed the district court erred when it determined that defendant’s prior felon-in-possession offense was a crime of violence. The First Circuit accepted the government’s concession, but found that the procedural error was harmless. Incorrect application of the guidelines is harmless error where the district court specifies that a particular issue did not affect the sentence imposed. Here, the district court emphasized defendant’s substantial criminal history, and the fact that every previous probation, parole, or supervised release he served had been revoked, showing a lack of respect for the law and the need for a longer sentence. The court “clearly identified the contested crime-of-violence issue … and adequately explained its overall sentence applying 18 U.S.C. §3553(a).” U.S. v. Thibeaux, __ F.3d __ (1st Cir. May 4, 2015) No. 14-1961.
1st Circuit upholds sentence at bottom of advisory guideline range. (716)(742) Defendant was convicted of drug trafficking and money laundering conspiracy charges. He argued that his 168-month sentence, at the bottom of his advisory guideline range, was substantively unreasonable because it was longer than some of his more involved co-conspirators. The First Circuit held that defendant failed to carry the “heavy burden” of establishing that his within-guideline range sentence was unreasonable. The district court made clear that it had reviewed the advisory guidelines calculations, as well as all the sentencing factors in 18 U.S.C. §3553(a). After taking into consideration all the sentencing factors, the court concluded that a sentence at the lower end of the advisory guideline range was adequate. Defendant’s different view about the significance of his role in the offense, or his own weighing of the other sentencing factors, did not mean that the sentencing court’s view was unreasonable. Defendant was not entitled to a lighter sentence merely because some of his co-defendants received lighter sentences because he failed to show that they were “identically situated” to him. U.S. v. Torres-Landrua, __ F.3d __ (1st Cir. Apr. 10, 2015) No. 13-1674.
7th Circuit says court adequately addressed defendant’s arguments in mitigation. (742)(855) Defendant argued that the district court never addressed all the arguments in mitigation he put forth in eight motions and exhibits. The Seventh Circuit found no error. The district court directly addressed many of defendant’s arguments in mitigation, including the U.S. Sentencing Commission’s report to Congress about child pornography offenses under U.S.S.G. §2G2.2, defendant’s risk of recidivism, defendant’s cooperation with law enforcement, the circumstances and nature of the offense, and offender characteristics, including defendant’s own victimization. Although the district court did not specifically address his arguments regarding the continued risk of being assaulted in prison and the sentencing disparity among circuits in child pornography cases, defendant waived these claims. After imposing the sentence, the district court explicitly asked defendant’s counsel whether he wished to raise any arguments. Defendant did not raise the arguments he made on appeal, and thus, waived them. U.S. v. Modjewski, __ F.3d __ (7th Cir. Apr. 13, 2015) No. 14-3012.
8th Circuit upholds court’s refusal to vary further down from guidelines. (742) Defendant was convicted of several drug and firearms charges, resulting in a guideline range of 420 months to life. The government recommended a 360-month sentence, but the district court imposed a 400-month sentence. Defendant argued that his sentence was substantively unreasonable because the district court failed to take into account the government’s recommended sentence and the substantial assistance he had provided. The Eighth Circuit disagreed, since the transcript made clear that the district court considered those factors when it decided to sentence defendant below the guidelines range. In evaluating the totality of the circumstances, the judge court decided that the 360-month sentence recommended by the government was too lenient. Defendant’s 400-month sentence was not substantively unreasonable. U.S. v. Jackson, __ F.3d __ (8th Cir. Apr. 10, 2015) No. 14-1084.
1st Circuit finds mid-range sentence for child porn defendant not unreasonable. (310)(742)(800) Defendant was convicted of possession of child pornography and violating his supervised release, and was sentenced to consecutive 150-month and 24-month prison terms. He argued on appeal that the district court abused its discretion by not varying downward in light of the extensive abuse he suffered as a child, his distinguished military service, his mental health issues, his post-offense rehabilitation, and the harshness of the child pornography guidelines. The First Circuit upheld the sentence, which fell in the middle of defendant’s advisory guideline range. The district court explicitly weighed defendant’s mitigating and aggravating circumstances. The court was aware of defendant’s military service and the horrible abuse he suffered as a child. The court similarly considered the unlikelihood of defendant reforming his behavior. Familiar with defendant from his prior run-ins, the district court had little faith in defendant’s ability to reform, given previous supervised release violations. The midrange sentence fell within the range of reasonable sentences for defendant. U.S. v. Majeroni, __ F.3d __ (1st Cir. Apr. 27, 2015) No. 14-1105.
11th Circuit says firearm sentence at bottom of guideline range was substantively reasonable. (330)(742) Defendant, who could not lawfully possess a firearm, paid a co-defendant to buy weapons for him. Defendant then smuggled the guns to his brother in Jamaica. The district court found that defendant’s advisory guideline range was 46-57 months, and sentenced him to 46 months. The Eleventh Circuit held that defendant did not meet his burden of showing that the guideline sentence was substantively unreasonable. The district court considered and discussed the §3553(a) factors and rejected defendant’s request for a below-guidelines sentence. The court noted that defendant’s offense, particularly in exporting firearms outside the United States, was very serious; a significant sentence was necessary to deter others from sending illegal firearms to poor countries; defendant’s prior criminal history, though nonviolent, “was not very good”; even though defendant apologized; he did not really appear remorseful; and the fact that defendant had a wife and two young daughters did not warrant a below-guideline sentence. U.S. v. Asante, __ F.3d __ (11th Cir. Apr. 6, 2015) No. 13-15651.
8th Circuit rules that court was not required to apply pending amendment. (742)(750) Defendant was convicted of drug conspiracy charges. The district court calculated his guideline range to be 135-168 months and sentenced him to 147 months. Before the sentencing hearing, both parties asked the court to vary downward by two levels in anticipation of Amendment 782. At sentencing, the district court recognized it had the authority to vary downward, but declined to do so, explaining the then-proposed amendment was not guaranteed to take effect. The Eighth Circuit found no error. Consideration of the pending amendment was “merely permissible, not required.” The district court considered and rejected prospectively applying Amendment 782. It did not err in doing so. Nor did the court err in denying defendant’s request to continue the sentencing hearing until after November 1, 2014. He argued that this deprived him of the benefit of Amendment 782, but he failed to articulate how the court abused its discretion in denying the continuance. Judge Bright dissented. U.S. v. Lawin, __ F.3d __ (8th Cir. Mar. 5, 2015) No. 14-2577.
8th Circuit upholds court’s refusal to prospectively apply proposed amendment. (742) Defendant was convicted of methamphetamine conspiracy charges, resulting in a guideline range of 292-365 months, and was sentenced to 214 months. At sentencing, both parties argued for a downward variance of two levels in anticipation of Amendment 782 to the guidelines. The district court recognized its authority to vary downward, but declined to do so, explaining that the proposed amendment was not guaranteed to take effect. The Eighth Circuit found no error. Consideration of a pending amendment is merely permissible, not required. The district court considered the motion and fully explained its reasons for not prospectively applying Amendment 782. It committed no error. Defendant was not deprived of the opportunity to pursue the benefit of Amendment 782. He could seek a sentence reduction under 18 U.S.C. §3582(c)(2). Judge Bright dissented. U.S. v. Riehl, __ F.3d __ (8th Cir. Mar. 5, 2015) No. 14-2135.
8th Circuit approves within-guideline sentence. (742) Defendant argued for the first time on appeal that his sentence was unreasonable because the district court (1) failed to correct the government’s alleged misstatement that he “had been involved in a sophisticated drug operation for twenty years”; (2) referred to his “uncounted ancient criminal history”; (3) decided defendant’s financial hardships did not justify the harm his activities caused the United States; (4) considered the 240-month mandatory sentence defendant would have faced if the government had filed notice under 21 U.S.C. §851; and (5) said the court would “look forward to reducing” defendant’s sentence if he cooperated with the government and gave a truthful proffer. The Eighth Circuit found defendant’s arguments were “without merit and his confused accusation of prejudice utterly unfounded.” Most of his misguided complaints related to the court’s consideration of the 18 U.S.C. §3553(a) factors. In essence, defendant argued that it was unreasonable for the district court to consider the § 3553(a) sentencing factors and explain his sentence as required by law. The district court did not plainly err in calculating defendant’s sentence, and he “abjectly fail[ed] to overcome” the presumption of reasonableness given his within-guideline sentence. U.S. v. Corrales-Portillo, __ F.3d __ (8th Cir. Mar. 9, 2015) No. 14-1769.
8th Circuit finds no unwarranted sentence disparities. (716)(742) Defendant’s advisory guideline range was 360 months to life, but the district court granted him a downward variance, and sentenced him to 300 months. Defendant argued that his sentence was substantively unreasonable because he received a higher sentence than his co-conspirators, resulting in “unwarranted sentence disparities” under 18 U.S.C. §3553(a)(6). However, he named only one co-conspirator whose sentence was allegedly disparate, Sharps. However, Sharps cooperated in the prosecution and had a smaller role in the conspiracy than defendant. The only co-defendants with the same Category VI criminal history as defendant were Royals and Burks. However, Royals cooperated extensively with the government and received an acceptance of responsibility reduction and downward departure. Burks received a somewhat lower 252-month sentence, but defendant had a higher offense level because he recruited his minor son to join the conspiracy. Thus, the record did not establish any unwarranted sentence disparities. U.S. v. Maxwell, __ F.3d __ (8th Cir. Feb. 20, 2015) No. 13-2670.
11th Circuit upholds refusal to depart or grant downward variance in fraud case. (742)(860) Defendant was convicted of multiple charges related to his participation in a complex Medicare fraud scheme. He received a guideline sentence of 100 months, but argued on appeal that the court erred in failing to grant him a downward departure, or in the alternative, a downward variance. The Eleventh Circuit held that it lacked jurisdiction to review the district court’s discretionary refusal to grant defendant’s request for a downward departure, as the district court did not express a belief that it lacked authority to depart. The district court considered the 18 U.S.C. §3553(a) factors, and noted that, based on defendant’s actions in this case and his perjury at trial, the starting point for a reasonable sentence was above the advisory guidelines range. Nevertheless, the district court recognized defendant’s significant contributions to his community and gave him credit for receiving only roughly $80,000 in salary and no other financial remuneration. Defendant’s attempt to compare himself to co-conspirator Hamer was unpersuasive, as they were not similarly situated. U.S. v. Moran, __ F.3d __ (11th Cir. Feb. 17, 2015) No. 12-16056.
6th Circuit remands to new judge after original judge re-imposed one day sentence in child porn case. (310) (742) Defendant pled guilty to knowingly possessing over 7100 images of child pornography on his computer. The district court sentenced him to one day in custody and five years of supervised release. On appeal the Sixth Circuit found defendant’s sentence was substantively unreasonable. On remand, the district court again sentenced defendant to one day of incarceration, with credit for time served, but lengthened the term of supervised release and imposed additional conditions of release. The Sixth Circuit again held that the sentence was substantively unreasonable, and ordered the case reassigned to a different judge on remand. The court’s second sentencing decision failed to adequately address the three factors that the panel had previously held were given insufficient weight: (1) the need for the sentence to reflect the seriousness of the crimes; (2) the need for general deterrence; and (3) the need to avoid sentence disparities among defendants with similar records who have been found guilty of similar conduct. Although the court was presented with new evidence regarding defendant’s mental health, and his alleged post-sentence rehabilitation, this mitigating evidence could not overcome the fundamental deficiencies in the district court’s reasoning. U.S. v. Robinson, __ F.3d __ (6th Cir. Feb. 18, 2015) No. 13-2308.
2nd Circuit affirms where court considered § 3553(a) factors and explained top of guideline sentence. (742) On four separate occasions, defendant dispersed liquid mercury at a medical center in an effort to disrupt the facility’s services. The court found that defendant’s guideline range was 135-168 months, and sentenced him to 168 months, with a concurrent 120-month sentence. The Second Circuit held that the sentence was procedurally reasonable, rejecting defendant’s argument that the sentencing court failed to adequately consider the § 3553(a) factors and failed to adequately explain its sentence. The sentencing court stated that it had considered the § 3553(a) factors, “specifically, the defendant’s personal history and characteristic[s] as fully set forth in the pre-sentence report.” This statement was sufficient, particularly when combined with the court’s demonstrated familiarity with defendant’s characteristics and the circumstances of the offenses. The court adequately explained its sentence, noting that on four occasions defendant had “substantially endangered public health and safety.” U.S. v. Kimber, __ F.3d __ (2d Cir. Jan. 30, 2015) No. 13-3661-CR.
11th Circuit says sentence at bottom of guideline range was reasonable. (742) Defendant argued that his 151-month drug sentence was substantively unreasonable because he had a minor role in the drug conspiracy, had not been in trouble with the law in nearly a decade, was trying to start his own business, and was less culpable than his co-defendants, who received downward variances. The Eleventh Circuit ruled that the 151-month sentence was reasonable. The sentence was at the bottom of defendant’s advisory guidelines range, and well below the statutory maximum penalty of life imprisonment. Moreover, defendant’s contention that his sentence was disproportionate to that of his co-defendants was unavailing because defendant was not similarly situated to them. Neither co-defendant had any criminal history points, while defendant stipulated to a criminal history score of III, and had multiple prior convictions. Defendant’s arguments regarding his minor role in the conspiracy, the age of his criminal history, and his attempt to make a legitimate living essentially asked the panel to reweigh the § 3553(a) factors, which it refused to do. U.S. v. Holt, __ F.3d __ (11th Cir. Jan. 30, 2015) No. 13-10453.
11th Circuit says sentence at bottom of guideline range was reasonable. (742) Defendant argued that his 151-month drug sentence was substantively unreasonable because he had a minor role in the drug conspiracy, had not been in trouble with the law in nearly a decade, was trying to start his own business, and was less culpable than his co-defendants, who received downward variances. The Eleventh Circuit ruled that the 151-month sentence was reasonable. The sentence was at the bottom of defendant’s advisory guidelines range, and well below the statutory maximum penalty of life imprisonment. Moreover, defendant’s contention that his sentence was disproportionate to that of his co-defendants was unavailing because defendant was not similarly situated to them. Neither co-defendant had any criminal history points, while defendant stipulated to a criminal history score of III, and had multiple prior convictions. Defendant’s arguments regarding his minor role in the conspiracy, the age of his criminal history, and his attempt to make a legitimate living essentially asked the panel to reweigh the § 3553(a) factors, which it refused to do. U.S. v. Holt, __ F.3d __ (11th Cir. Jan. 30, 2015) No. 13-10453.
6th Circuit finds court knew it could depart or vary based on age of predicate convictions. (520)(742) Defendant argued that even if he was properly sentenced as a career offender, the district court erred by failing to recognize its authority to depart and/or vary from the guidelines range based on the age of his predicate convictions. The Sixth Circuit disagreed. Courts are not required to explicitly state that they are aware of their discretion to make a departure or variance. Appellate courts will presume that the district court understood its discretion, absent clear evidence to the contrary. Here, a straightforward reading of defendant’s sentencing hearing indicated that the district court did recognize its authority to depart and/or vary and that it simply declined to do so. The district court addressed and squarely rejected defendant’s request for a departure or variance based on the age of his prior convictions. The court noted that the prior convictions were old, but were part of the same kind of conduct as the current offense, and that there was a “continuum” that it was “very concerned with stopping.” The court acknowledged its “leeway,” but after discussing defendant’s criminal history in detail, declined to depart or vary. U.S. v. Ruiz, __ F.3d __ (6th Cir. Jan. 26, 2015) No. 14-1389.
1st Circuit holds that court adequately considered mitigating factors. (742) Defendant was convicted of drug and firearms charges. He challenged the 84-month consecutive sentence imposed for the firearms offense, contending that the court did not take into account mitigating factors, such as his relatively crime-free past, his age (33), and the duration of his sentence on the underlying drug counts. The First Circuit disagreed. The court below properly focused on defendant’s personal history and characteristics. It specifically acknowledged not only that the defendant’s criminal record was minimal but also that he was a “good father” and a good family man. Defendant’s real complaint was that it weighed those factors less heavily than he would have liked. But that type of balancing was, within wide limits, a matter for the sentencing court. Finally, the record did not support defendant’s claim that the court did not take into account the sentences imposed on the underlying drug charges. The court did not give undue weight to community-based considerations. The court’s reference to the high incidence of violent crime in Puerto Rico and to the local courts tendencies toward leniency was made in connection with the need for deterrence, a legitimate sentencing goal. U.S. v. Rivera-Gonzalez, __ F.3d __ (1st Cir. Jan. 20, 2015) No. 13-1620.
6th Circuit reverses for failure to provide opportunity to respond to information used to vary upward. (742) (770) Defendant pled guilty to conspiracy to commit mortgage fraud, resulting in a guideline range of 78-97 months. Both parties sought a sentence within this range. However, the district court relied on confidential, undisclosed information from the PSRs of straw buyers involved in the scheme to vary upward to a 120 months. Defendant argued that his sentence was unreasonable because he was denied notice and an opportunity respond to the information. The Sixth Circuit agreed. While Rule 32 does not require prior notice of the court’s intent to vary based on information not contained in the PSR, the rule clearly requires the sentencing court to use a procedure that affords the defendant a reasonable opportunity to respond. Here, the court’s explicit consideration of the offense’s impact on the co-conspirator straw buyers was novel, and not signaled in the PSR or reasonably foreseeable. The confidential information plainly affected the sentence imposed, and the nondisclosure of the information deprived defendant of a meaningful opportunity to respond. Because defendant showed both surprise and prejudice, the process used to impose the variance was procedurally unreasonable. U.S. v. Coppenger, __ F.3d __ (6th Cir. Jan. 7, 2015) No. 13-3863.
8th Circuit affirms guideline sentence where seriousness of offense outweighed defendant’s difficult circumstances. (742) Defendant hit another man in the head with a piece of wood, fracturing his skull. Defendant pled guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C. §113(a)(6). His guideline range was 33-41 months, but defendant requested a downward variance based on his difficult personal circumstances. The district court sentenced him to 41 months, finding a downward variance unwarranted because of the seriousness of the offense and defendant’s poor behavior while on release pending sentencing. The Eighth Circuit held that defendant’s guideline sentence was substantively reasonable. Although defendant argued that the sentencing court should have given more weight to mitigating factors, the district court could properly conclude that defendant’s difficult personal circumstances did not outweigh the seriousness of the offense and his pretrial release violations. U.S. v. Ravensborg, __ F.3d __ (8th Cir. Jan. 14, 2015) No. 14-2060.
D.C. Circuit holds that 10-year sentence for murder-for-hire scheme was reasonable. (742) Defendant attempted to hire a man to kill a woman he blamed for the breakup of a relationship. He was convicted of soliciting a murder for hire, in violation of 18 U.S.C. §1958. His advisory sentencing range was 262-328 months, and the district court sentenced him to 10 years, the statutory maximum for a murder-for-hire offense. The D.C. Circuit held that the 10-year sentence was not procedurally unreasonable. The court adequately explained its rationale for the sentence. It noted the evidence against defendant was overwhelming and that he failed to show any remorse. The court also announced that the sentence was necessary to protect the public; the sentence would serve to deter defendant from repeating this conduct; and the sentence would deter others from seeking to hire third parties to commit murder. The court did not place undue weight on the guidelines, sentencing him well below its calculated range, albeit to the statutory maximum. U.S. v. Taplet, __ F.3d __ (D.C. Cir. Jan. 20, 2015) No. 11-3074.
7th Circuit refuses to order below-guidelines sentence based on family circumstances. (742) Defendant was convicted of drug charges. He requested a downward departure from his 24-30 month range based in part on his family circumstances. Defendant had a son with a health issue, who lived with defendant’s mother. The Seventh Circuit upheld the district court’s decision not to depart downward. The district judge discussed the son’s condition and the challenges faced by defendant’s family in caring for him. The judge nonetheless declined to impose a lower sentence on that basis because, given defendant’s past absence from his son’s life, the judge did not believe that defendant would be present to care for his son even if he was not incarcerated. Plainly, the district court considered defendant’s family ties and circumstances, and the court’s disagreement with this argument in mitigation did not make the resulting sentence unreasonable. U.S. v. Hayden, __ F.3d __ (7th Cir. Dec. 30, 2014) No. 14-1812.
7th Circuit affirms rejection of family circumstances as grounds for below-guidelines sentence. (742) Defendant was convicted of bank fraud based on her involvement in a check-kiting scheme. She was sentenced to 57 months, at the bottom of her 57-71 month guideline range. She challenged the district court’s failure to impose a below-guidelines sentence based on her family circumstances. Defendant was the single mother of two young children, and “there would be no family members to take care of her kids if she [was] sent to jail for a long period.” The Seventh Circuit ruled that the district court adequately considered defendant’s family circumstances and gave sound reasons for concluding that they did not warrant a below-guidelines sentence. The court considered the fact that defendant was a sole caregiver for her children, but found that this did not offer sufficient justification for the limited sentence proposed by defendant. “Those that commit crimes are not excused simply because they have children. The defendant committed the instant crime knowing that it could mean the separation – future separation from her children and at the time she was pregnant.” U.S. v. Sykes, __ F.3d __ (7th Cir. Dec. 29, 2014) No. 14-1510.
6th Circuit affirms despite defendant’s claim that below-guidelines sentence was disproportionate. (716) (742) Defendant was arrested shortly after the failure of a massive drug sale to an undercover officer. He challenged the reasonableness of his 325-month sentence, claiming that it was disproportionate to those of his co-conspirators, all of whom agreed to plea bargains and cooperated with the government. The Sixth Circuit held that defendant did establish that his sentence was unreasonable. The district court imposed a below-guide-lines sentence, and such sentences are presumptively reasonable. Under 18 U.S.C. § 3533(a)(6), the district court may consider the defendant’s sentence in comparison with that of co-defendants at sentencing, but need not do so. Moreover, at defendant’s request, the district court did take into account potential disparities between co-defendants. The court found that the differences in sentences were caused primarily by the application of the sentencing guidelines, and that each sentence was justified under the statutory factors, and there was thus “fair comparability” among the sentences. Acceptance of responsibility and cooperation with the government were legitimate considerations for courts to consider when sentencing. U.S. v. Sierra-Villegas, __ F.3d __ (6th Cir. Dec. 23, 2014) No. 13-2513.
8th Circuit says below-guideline ACCA sentence was not unreasonably high. (540)(742) Defendant was convicted of being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which subjected him to a 15-year mandatory minimum sentence. The Eighth Circuit rejected defendant’s claim that his 204-month sentence was substantively unreasonable. The district court discussed the § 3553(a) factors and acknowledged that defendant had a difficult upbringing, but also emphasized his violent criminal history and the seriousness of his crime. The court also considered the need to protect the public, see § 3553(a)(2)(C); to avoid unwarranted sentencing disparities, see § 3553(a)(6); and to promote respect for the law, see § 3553(a)(2)(A), before imposing a sentence of 204 months – 58 months below the bottom of the guidelines range of 262-327 months. U.S. v. Daniels, __ F.3d __ (8th Cir. Dec. 30, 2014) No. 13-3481.
7th Circuit upholds refusal to vary based on future guideline amendment. (192)(240)(742) Defendant was convicted of drug charges. He sought a downward departure from his 24-30 month guideline range based in part on Amendment 782, which had not yet taken effect but which would lower by two levels the base offense level for many drug crimes. Defendant was sentenced on April 10, 2013, the same day the Sentencing Commission approved Amendment 782 and sent it to Congress for review. The amendment had an effective date of November 1, 2014. The district court refused to apply the amendment, and on appeal, defendant argued that this created an unwarranted sentencing disparity. The Seventh Circuit found no error. The district court considered whether its decision to not take the amendment into account created a sentencing disparity, and concluded that it did not. Defendant could not possibly quibble with that conclusion because he did not identify even one concrete example of a similarly situated defendant who received a lower sentence based on the not-yet-effective amendment. U.S. v. Hayden, __ F.3d __ (7th Cir. Dec. 30, 2014) No. 14-1812.
11th Circuit affirms 84-month sentence for identity theft scheme as not unreasonable. (742) Defendant participated in a scheme involving the unauthorized use of personal identifying information to claim fraudulent tax refunds, which were deposited onto debit cards opened in the names of identity theft victims. The Eleventh Circuit rejected defendant’s argument that his 84-month sentence was unreasonable. The district court properly considered that the offense was particularly serious, given that over 1,000 individuals’ identities, including the identities of disabled people and high school students, were compromised, and approximately $1,803,826 in fraudulent tax returns were requested over the course of the conspiracy. Further, given the harm caused to the community and to the government by the conspiracy, the need to promote respect for the law and the need to provide deterrence was high. The district court, however, also considered defendant’s PSR, which included information relative to defendant’s personal history and characteristics, as well as letters submitted by defendant’s family, and concluded that a downward variance from the proper guideline range was appropriate. Defendant’s sentence was well below the statutory maximum of 10 years’ imprisonment. U.S. v. Baldwin, __ F.3d __ (11th Cir. Dec. 17, 2014) No. 13-12973.
1st Circuit says below-guideline sentence was not unreasonably high. (742) Defendant was convicted of drug conspiracy charges and sentenced to 180 months, almost seven years below the low end of his 262-327 month guideline range. He argued that the sentence was substantively unreasonable since he was sentenced to a term longer than many of his more involved co-conspirators, including the leader of the conspiracy. The First Circuit disagreed. Defendant was not similarly situated to his co-conspirators since he did not plead guilty and accept responsibility for his crimes, nor did he cooperate with the government. Taking into account defendant’s age, level of education, physical ailments, family situation, criminal history, his increasing role in the conspiracy and involvement with a firearm, his threats to murder a testifying co-conspirator, and his “utter lack of remorse,” the district court imposed a sentence seven years below his guideline range. “Such an articulated consideration of all relevant factors, coupled with a downward variance from the advisory guidelines sentencing range, clearly indicate[d] that the sentencing term [was] sufficient but no greater than necessary to achieve the purposes of the law.” U.S. v. Trinidad-Acosta, __ F.3d __ (1st Cir. Dec. 5, 2014) No. 13-1830.
1st Circuit rules below-guidelines sentence was not unreasonable. (742) Defendant’s guideline range was 295-353 months, but the district court sentenced him to 240 months. Nonetheless, he argued that the sentence was unreasonable since he was a “youthful, low-level drug peddler with a minor record,” who spoke “very little English.” The First Circuit held that defendant did not meet the heavy burden of proving that his below-guidelines sentence was unreasonable. The district court carefully considered all relevant factors and explained in detail the basis for its conclusion that defendant was not a “soldier” or a “low-level peddler,” as he claimed to be. The district court emphasized that defendant had three major roles in the conspiracy, consisting of: (1) watching the drugs coming in and out; (2) actual drug dealing; and (3) depositing the drug proceeds in a co-conspirator’s bank account. It noted that the last role was “pretty significant” that put him on a different level than simply an “outside soldier.” Defendant also carried a gun in furtherance of the conspiracy, unlike other lower-level conspirators. The district court also explained in detail the sentencing factors, concluding that the advisory guideline range was too harsh, and imposed a sentence almost five years below the bottom of the advisory range. This was a defensible result. U.S. v. Trinidad-Acosta, __ F.3d __ (1st Cir. Dec. 5, 2014) No. 13-1830.
1st Circuit rejects claim that guideline sentence was unreasonable. (742) Defendant pleaded guilty to travel with intent to engage in sexual activity with a minor, in violation of 18 U.S.C. § 2423(b). He challeng¬ed for the first time on appeal the reasonableness of his 78-month sentence, which fell at the bottom of his guide¬line range. In light of defendant’s own history of sexual abuse and the progress he had made in therapy by the time of sentencing, he argued that the district court im¬properly declined to impose a sentence below the guide¬lines range. The First Circuit found no plain error. The district court noted that it had considered each of the factors set forth in § 3553(a). It properly weighed evi-dence of defendant’s background, including evidence of his “horrible, traumatic youth,” against the circumstances of the offense, and ultimately chose a sentence at the lowest end of the guidelines range. Defendant did not provide “fairly powerful mitigating reasons” to persuade the panel the guideline sentence court was unreasonable. U.S. v. Gaffney-Kassel, __ F.3d __ (1st Cir. Nov. 18, 2014) No. 13-2023.
1st Circuit approves upward variance for defendant who harassed ex for four years. (742) Defendant pled guilty to one count of cyberstalking based on his four-year harassment of Jane Doe, an ex-girlfriend. He requested a downward departure from his 37-46-month guideline range under § 5K2.23 based on a state sentence for conduct related to the current offense. However, the court chose to depart upward to 60 months instead. The First Circuit affirmed. Even if defendant was eligible for a § 5K2.23 downward departure, the court’s refusal to depart downward was discretionary, regardless of defendant’s eligibility. The court’s reasons for imposing a variant sentence also explained its refusal to depart downward. The court gave multiple reasons for the variance, including: (1) the extra danger and fear that defendant caused by using “anonymous third parties” to harass Jane Doe; (2) the permanent nature of the intimate details that defendant posted about Jane Doe online; (3) the fact that defendant’s many involvements with law enforcement did not deter him; and (4) defendant’s “ongoing obsession” with Jane Doe, as evidenced by his cellmate’s letter and testimony to defendant’s continued plans to harass Jane Doe. The court also noted that an above-guidelines sentence was needed to keep Jane Doe and the public safe from defendant, as well as to give defendant enough time to receive treatment so that he did not repeat his behavior. U.S. v. Sayer, 748 F.3d 425 (1st Cir. 2014).
1st Circuit upholds life sentence despite shorter sentences for those who pled guilty. (742) Defendant and his brother were convicted of multiple charges related to their involvement in a wide-ranging drug trafficking organization based out of two housing projects in Puerto Rico. Both received a life sentence. Defendant argued that he was less culpable than his brother, and therefore, should not have received the same life sentence. He also contended that his sentence was disproportionate to the shorter sentences imposed on co-defendants who entered into plea agreements with the government. The First Circuit upheld the life sentence. The judge stated that he considered all of the factors enumerated in 18 U.S.C. § 3553(a) in crafting defendant’s sentence. Accordingly, the panel presumed the trial judge applied § 3553(a)(6) and considered whether defendant’s life sentence was disparate as compared to other individuals with similar records and who had been convicted of similar crimes. The trial judge categorically rejected defendant’s assertion that he was “similar” to others who entered guilty pleas and, therefore, that his sentence should be commensurate with theirs. The judge did not err in reaching this conclusion. U.S. v. Ayala-Vazquez, 751 F.3d 1 (1st Cir. 2014).
1st Circuit reverses where court imposed sentence without identifying guideline range. (742) At defendant’s sentencing hearing, the district court announced that it was “going to impose the high end of the guidelines on the robbery, which is 30 months.” This statement was the court’s only reference to the applicable guideline range. The district court never identified the low end of the guideline range for Count One, the robbery count, nor did it identify defendant’s criminal history category or offense level. Worse yet, the court made no reference whatsoever to the guidelines range for Count Two before imposing a sentence of 84 months on that count—a full two years higher than the guidelines sentence of 60 months. Defendant argued that his sentence was unreasonable because the district court failed to calculate his applicable guideline range. The First Circuit agreed, and remanded for resentencing. Even if, as the government contended, the court knew that it was imposing a variant sentence, the sentencing transcript gave no indication that the court chose to do so after determining the correct guideline range. Even where a district court concludes that a variant sentence is appropriate, it is still essential that the court begin by calculating the correct guideline range. U.S. v. Millan-Isaac, 749 F.3d 57 (1st Cir. 2014).
1st Circuit says court adequately explained refusal to vary downward. (742) Defendant challenged the district court’s refusal to depart or vary downward, arguing that it did not make an individualized assessment of the case. He contended that such an assessment would have prompted the court to vary or depart downward based on his ill health (including a diagnosis of Burkitt’s lymphoma and past surgeries). The First Circuit held that the court adequately explained its refusal to vary or depart. While health is a relevant factor in determining whether either a variance or a departure is indicated, the court below did not overlook this factor. The court specifically acknowledged defendant’s medical condition and the seriousness of that condition. The court determined, however, that there was no evidence that the federal prison system could not appropriately deal with his medical problems. Defendant’s claim that he was entitled to a variance was simply a complaint that the sentencing court attached too little weight to factors such as his medical condition. Deciding how much weight should be given to a particular factor is a core function of the sentencing court. U.S. v. Maguire, 752 F.3d 1 (1st Cir. 2014).
1st Circuit upholds refusal to grant criminal history departure. (742) Defendant did not challenge the district court’s criminal history calculation, but argued that a downward departure was appropriate because his score significantly over-represented his criminal history. The district court considered this argument at sentencing and came to the opposite conclusion: “I find that the criminal history here does not overrepresent in light of the defendant’s history of recurrent criminal law violations, despite sentences that have been imposed which involve custody of either small amounts or large amounts.” The First Circuit affirmed. The district court did not commit an error of any sort; it simply disagreed with defendant about the seriousness of his criminal history. This did not approach an abuse of discretion, and was not grounds for reversal. U.S. v. Almeida, 710 F.3d 437 (1st Cir. 2014).
1st Circuit upholds gambling sentences as not cruel and unusual or unreasonable. (742) Defendants were convicted of racketeering offenses based on their involvement in a gambling business based in Antigua. The first defendant was sentenced to 36 months, and the second defendant to 48 months. The First Circuit rejected their claim that their sentences constituted cruel and unusual punishment or were unreasonable. A sentence violates the Eighth Amendment if it is “grossly disproportionate to the underlying offense.” That was not the case here. Defendants were key players in multi-million-dollar gambling operation that lasted for more than a decade. Their sentences, which fell within their properly calculated guideline ranges, were reasonable, even though they exceeded those of other conspirators who were not charged or did not spend time in jail. Defendants’ roles were more central to the gambling business than the roles of others who were not charged. Moreover, many of the other conspirators cooperated with the government’s investigation and therefore were not directly comparable to defendants for sentencing purposes. U.S. v. Lyons, 740 F.3d 702 (1st Cir. 2014).
1st Circuit says explanation was sufficient to support below-guideline child porn sentence. (742) Defendant surreptitiously recorded videos of his minor stepdaughter masturbating in her bathroom. He pled guilty to possessing a computer that held child pornography, and was sentenced to 72 months. He argued that, due mainly to the combined effect of enhancements for use of a computer, § 2G2.2(b)(6), and for the number of images, § 2G2.2(b)(7)(B), his sentence was substantively unreasonable. The First Circuit disagreed. The district court below did not view the guidelines as conclusive; instead, it appropriately treated them as a starting point. The court gave a “cogent statement” of why a “harsh and severe” sentence was warranted.” The court explained that the offense was “especially reprehensible,” based on the tender age of the victim, the gross invasion of privacy associated with a surreptitious recording made in the victim’s bathroom, defendant’s deviant self-gratification, and the “betrayal of trust” stemming from the defendant’s relationship with the victim. The court’s “lucid explanation” fully justified the sentence. Moreover, the sentence imposed was below the bottom of defendant’s guideline range. U.S. v. King, 741 F.3d 305 (1st Cir. 2014).
1st Circuit finds court properly considered mitigating factors in imposing guideline sentence. (742) Defendant pled guilty to conspiracy to possess 15 or more counterfeit access devices. He argued that the district court erred in imposing a mid-guideline sentence of 18 months because it failed to give proper weight to the medical care needed to treat his polymyositis, among other personal factors. The First Circuit upheld the guideline sentence. Defendant’s 18-month sentence fell squarely within his 15-21 month guideline range. The court sufficiently considered defendant’s medical needs and life circumstances, as well as the PSR, the history of the defendant, and letters of support. The court then explained that the 18-month sentence did provide leniency for defendant’s personal characteristics. It believed that the seriousness of the offense and defendant’s criminal history warranted an above-guidelines sentence. However, because of the letters of support and the recommendation of the government, the court ordered a “very lenient” sentence. The mid-guidelines-range sentence was an not abuse of discretion. U.S. v. Campbell, 741 F.3d 251 (1st Cir. 2013).
1st Circuit upholds 340-month sentence for child porn offense. (742) Defendant was convicted of producing, possessing and distributing child pornography, and was sentenced to 340 months in custody and 15 years of supervised release. The First Circuit upheld the sentence as reasonable. First, the court properly set defendant’s guidelines range at 60 years, or 720 months. The panel rejected defendant’s argument, based on an appendix to the Commission’s 2011 Sourcebook of Federal Sentencing Statistics, that the Sentencing Commission had “capped” a life sentence at 470 months. Although 470 months might be an accurate statistical representation of the actual length of many life sentences, there is no “cap” within the guidelines that limits life sentences to 470 months. The district court did not abuse its discretion by imposing a sentence of 340 months. This term was less than half the length of the guidelines sentence that defendant opposed, and was 20 months below the maximum sentence for count one of defendant’s convictions. U.S. v. Breton, 740 F.3d 1 (1st Cir. 2014).
1st Circuit upholds refusal to grant variance based on imperfect entrapment. (742) Defendant, a state corrections officer, was convicted of drug and weapons charges after he provided security for a 2009 drug transaction staged by the FBI as part of a sting operation. His guideline range was 123-138 months, and the court sentenced defendant to 123 months. Defendant claimed that the court’s refusal to consider the issue of “imperfect entrapment” rendered his sentence procedurally unreasonable. The First Circuit disagreed. The sentencing transcript showed that the district court considered this theory and found it inapplicable. This was not a case in which the defendant had a sympathetic but unsuccessful entrapment defense that might warrant mitigation. There was no abuse of discretion. U.S. v. Diaz-Maldonado, 727 F.3d 130 (1st Cir. 2013).
1st Circuit upholds 365-month sentence for doctor who pursued sexual relationship with minor. (742) Defendant, a 29-year old doctor, was convicted of multiple charges related to his pursuant of a sexual relationship with a 15-year old girl. He was sentenced to 365 months, which fell at the top of his advisory guideline range of 292-365 months. The First Circuit held that the sentence was both procedurally and substantively reasonable. The court considered all of the § 3553(a) factors, and concluded that it had “not seen a more determined course of criminal conduct in 28 years on the bench” and that defendant’s conduct “was pure exploitation of the ugliest sort.” The court’s explanation adequately took into account the relevant § 3553(a) factors, and demonstrated that a lengthy sentence was necessary for the proper reasons. The 365-month sentence was substantively reasonable. The record painted defendant as “a relentless and highly dangerous child molester.” Importantly, defendant’s destructive and relentless pursuit of a minor was not deterred by repeated warnings, court orders, and the virtual certainty of capture and imprisonment. The district court did not err in finding that the long prison term was required. U.S. v. Batchu, 724 F.3d 1 (1st Cir. 2013).
1st Circuit approves life sentence reimposed on remand after defendant given opportunity to allocute. (742) Defendant was convicted of multiple counts growing out of a conspiracy to commit armed robbery and the killing of a guard during the robbery. On his first appeal, he successfully argued, among other things, that the court had not afforded him an opportunity to allocute on count eight. At resentencing, the court heard defendant’s allocution on count eight, and reinstated the life sentence previously imposed. The First Circuit reviewed for plain error and found none. A reversal under plain error review requires a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence. Defendant did not make such a showing. The life sentence for count eight was within his advisory guideline range. The sentencing court heard defendant’s full allocution, had presided over the trial, and was familiar with the nuances of the case. Defendant did not identify any factors that made it likely that he would receive a different sentence on remand. The life sentence, which fell within his guideline range, was not substantively unreasonable. U.S. v. Medina-Villegas, 700 F.3d 580 (1st Cir. 2012).
1st Circuit says fraud sentence at bottom of guideline range was reasonable. (742) Defendant was convicted of multiple counts of making false statements on a Farm Service Agency (FSA) loan application following Hurricane Georges. His guideline range was 37-47 months, and the court sentenced to him to 37 months on each count, concurrently. The First Circuit rejected defendant’s claim that the sentence was substantively unreasonable. The district court adequately, if succinctly, explained the rationale behind its sentencing decision. The court observed that defendant had engaged in a “serious scheme to defraud” the FSA, and that his crimes contributed to an unprecedented shortfall in the FSA’s emergency loan funding, jeopardizing the agency’s ability to provide aid. The district court also considered the sentencing factors in 18 U.S.C. § 3553(a), including defendant’s lack of criminal history and familial responsibilities. The court’s decision to attach less significance to certain mitigating circumstances did not make his sentence substantively unreasonable. U.S. v. Colon-Rodriguez, 696 F.3d 102 (1st Cir. 2012).
1st Circuit approves within-range 30-month sentence even if defendant might die in prison. (742) Defendant was originally convicted of wire fraud based on his involvement in a Nigerian money scam. After serving a term of imprisonment and being placed on supervised release, he immediately began scamming numerous people out of thousands of dollars. He was once again convicted of multiple wire-fraud counts, and the judge also revoked his supervised release. The court imposed a within-guidelines sentence of 30 months for the new wire-fraud convictions, and an above-guidelines sentence of 15 months for the supervised-release violations. The First Circuit affirmed. Defendant’s health was clearly an issue at sentencing. He suffered from an incurable degenerative neurological disorder, and the defense argued that he had already outlived his life expectancy. The court listened to defendant’s statements, ran through the § 3553(a) factors, and found that a 30-month guideline sentence was appropriate, even though it might result in his spending the rest of his life in prison. As for the supervised release revocation sentence, the judge labeled “egregious” defendant’s blowing his supervised release by doing the exact same things that had landed him on supervised release originally. U.S. v. Denson, 689 F.3d 21 (1st Cir. 2012).
1st Circuit finds government’s opposition to downward variance was vindictive. (742) Defendant, a former member of the Boston City Council, was convicted of various offenses for making false statements to FBI agents, and accepting $1,000 in exchange for assisting a local businessman in obtaining a liquor license. He argued that the government improperly opposed a downward variance, and that by doing so it “poisoned” the sentencing proceedings. The First Circuit found no evidence of vindictiveness or improper motives for the government’s actions. The government had recommended a sentence within the 33-41 month guideline range. Its sentencing memo encouraged the court the consider that defendant’s public conduct after being accused of corruption “affirmatively promoted disrespect for the law.” The memo further characterized defendant’s public comments as “an incendiary campaign of misinformation, obfuscation and blame” that had been “divisive in its intent and in its effect.” The government brought up defendant’s public statements only for the purpose of rebutting an argument it expected defendant to make that he was entitled to a lower sentence because of his acceptance of responsibility. U.S. v. Turner, 684 F.3d 244 (1st Cir. July 11, 2012).
1st Circuit upholds 60-year sentence for child porn offenses. (742) Over a several-year period, defendant arranged for and took still pictures and videos of three minor girls engaged in explicit sexual activities or poses, and then distributed the material. He pled guilty to four counts of sexual exploitation of children, 18 U.S.C. § 2251(a), and was sentenced to 60 years. The First Circuit held that the sentence was substantively reasonable, rejecting defendant’s argument that the court improperly assessed his risk of recidivism. The risk of recidivism was just one of many reasons given by the court for imposing the 60-year sentence. Although defendant presented mitigating factors, such as a difficult upbringing, and his career as an enlisted man in the Navy, the court also had to weigh these against the aggravated factors present in the case. The court presented a detailed, thoughtful explanation of its sentence and chose to weigh the aggravating factors heavily. U.S. v. Goergen, 683 F.3d 1 (1st Cir. 2012).
1st Circuit refuses to remand where court was aware of later amendment eliminating “recency” points. (742) On April 7, 2010, the Sentencing Commission voted to eliminate the “recency” points assessed by U.S.S.G. § 4A1.1(e). That proposed amendment, Amendment 742, became effective on November 1, 2010. It is not listed as a retroactive amendment in § 1B1.10(c). Defendant pled guilty to being a felon in possession of a firearm, and was sentenced one week after the Amendment was proposed, and before it became effective. Had Amendment 742 been in effect at defendant’s sentencing, his criminal history category would have been V rather than VI, and his sentencing range would have been 100-120 months, rather than 110 -120 months. The First Circuit held that the district court did not abuse its discretion in refusing to eliminate the “recency” points from defendant’s criminal history. The court was made aware at sentencing of the prospective amendment, but refused to vary downward. In rejecting defendant’s request for a downward variance to 84 months, the court found that defendant’s criminal history was not overstated, citing defendant’s demonstrated recidivism. U.S. v. Adams, 640 F.3d 41 (1st Cir. 2011).
1st Circuit says court did not treat guidelines range as “set of shackles.” (742) Defendant pled guilty to transferring obscene materials to a minor, resulting in an advisory guideline range of 15-21 months. The court found that a sentence at the higher end of the applicable guideline sentencing range was appropriate, and sentenced defendant to 21 months. The First Circuit upheld the guideline sentence, rejecting defendant’s claim that the argument that the district court treated the applicable guideline sentencing range as “more of a finish line than as a starting point.” There was nothing in the record to suggest that the court treated the guidelines as a “set of shackles” or felt itself constrained to sentence within that range regardless of what the record revealed. The court’s explanation for its sentence was adequate, noting that defendant’s offense was “a very serious and a dangerous one” that “occurred repeatedly against the same person believed by [defendant] to be a minor.” The court stated that it considered the § 3553(a) factors, specifically noting many of defendant’s virtues. Defendant’s real complaint seemed not to be that the court failed to mull the complex set of factors, but that it weighed those factors in a manner that disfavored defendant. U.S. v. Madera-Ortiz, 637 F.3d 26 (1st Cir. 2011).
1st Circuit says 300-month sentence for drugs and firearms was reasonable. (742) A jury convicted defendant of numerous drug and gun charges. The district court sentenced him to 300 months in prison. He argued that the mandatory minimum of 240 months would have been more than enough to serve the purposes of 18 U.S.C. § 3553(a). The First Circuit held that the 300-month sentence was reasonable. The court stated that this was “one of the more serious drug-gun offenses” it had encountered, and that defendant’s gun and drug trafficking was a “volatile mixture” that raised serious public safety concerns. The court also noted that defendant’s suborning of perjury, which occurred while he was incarcerated, undermined his statement during allocution that a lesser sentence would be equally rehabilitative. Nonetheless, the court twice recognized defendant’s young age and stated that 360 months was “perhaps, extremely high” in light of his prior sentences, and so imposed a sentence that was 60 months below the guideline range. The sentence imposed was reasonable. U.S. v. Williams, 630 F.3d 44 (1st Cir. 2010).
1st Circuit says differences in co-defendants justified different sentences. (742) Defendant pled guilty to conspiring to distribute cocaine in a housing project, and was sentenced to 121 months, at the bottom of his 121-151 month sentencing range. He argued that the sentence was unreasonable because at least 11 of his co-defendants, including the leaders of the drug conspiracy, were sentenced to lighter sentences than he was, ranging from 46 to 108 months. In particular, the organization’s leader was sentenced to only 70 months. The First Circuit held that defendant’s sentence was reasonable. He and his co-defendants were not identically situated. Some of his co-defendants were first-time offenders, while others were convicted of possessing a smaller quantity of drugs. Still others received point reductions for the minor role they played in the offense. U.S. v. Rivera-Gonzalez, 626 F.3d 639 (1st Cir. 2010).
1st Circuit finds failure to vary from recommended crack sentence was not plain error. (742) Defendant was convicted on four counts of distributing crack cocaine, and was sentenced to 64 months imprisonment, followed by four years of supervised release and substance abuse treatment counseling. He argued that his 64-month guideline sentence was unreasonable, because the court should have considered the disparity caused by the 100-to-1 ratio of crack to powder cocaine in the guidelines. The First Circuit found no plain error. Kimbrough does not require sentencing courts to consider the disparity between powder and crack cocaine, but merely gives them discretion to do so. Moreover, defendant failed to ask the sentencing court for a variance based on the disparity between powder and crack cocaine. He could not overcome this omission by attempting to transfer responsibility to the district court. U.S. v. Gentles, 619 F.3d 75 (1st Cir. 2010).
1st Circuit says court need not depart downward to account for crack/powder sentencing disparity. (742) Defendant was convicted of crack charges. He requested a below-guideline sentence to mitigate the powder cocaine/crack cocaine sentencing disparity under the Guidelines. In refusing this request, the sentencing judge stated that crack is “more devious,” “more addictive,” and “more devastating to society than powder cocaine,” and that therefore crack distribution offenses are at “a higher culpability level.” Defendant claimed that in Kimbrough v. U.S., 552 U.S. 85 (2007), the Supreme Court recognized these facts as disproved, and that the Justice Department supports legislation to eliminate the disparity between crack and powder cocaine. The First Circuit found no error in the court’s failure to depart downward. Neither Kimbrough nor the Sentencing Commission has declared that no sentencing disparity can be justified, and Congress and the Commission continue to believe some disparity is justified by differences in the two drugs’ addictiveness, propensity to involve weapons, and association with higher levels of crime. U.S. v. Laurent, 607 F.3d 895 (1st Cir. 2010).
1st Circuit upholds life sentence for arson that resulted in two deaths. (742) At 3:00 a.m. in the morning, defendant intentionally set fire to an apartment building that contained five units and housed 15 people. During the fire, a mother and her infant daughter died. Defendant was convicted of arson of a building used in interstate commerce, in violation of 18 U.S.C. § 844(i). At sentencing, the district court found that defendant was a career offender. The district court imposed a life sentence. The First Circuit held that defendant’s sentence was not substantively unreasonable. U.S. v. Guzman, 603 F.3d 99 (1st Cir. 2010).
1st Circuit finds district court did not apply presumption of reasonableness to guideline range. (742) Defendant pled guilty to money laundering charges, and was sentenced to 78 months of imprisonment, which fell within the middle of his 70-87 month advisory guideline range. The First Circuit affirmed. The court’s statement that it was “going to deny any other sentence than the advisory guideline proposed” and its summary rejection of defendant’s request for a downward departure did not demonstrate that the court applied a presumption of reasonableness to the guidelines. The sentencing transcript demonstrated that the court was aware that the guideline range was merely an initial benchmark, but that it found that the circumstances of the case made that benchmark appropriate. The court was not required to address each argument, and the appellate court could infer from the protracted arguments below that the court considered all of the arguments. U.S. v. Davila-Gonzalez, 595 F.3d 42 (1st Cir. 2010).
1st Circuit holds that co-defendants who pled guilty were not similarly situated to defendant convicted after trial. (742) Defendant argued that his 210-month sentence was unreasonable under 18 U.S.C. §3553(a)(6) in light of certain sentencing disparities between himself and what he claimed were similarly situated co-defendants. The First Circuit found that the co-defendants were not similarly situated. The key difference between defendant and the co-defendants he cited was that all of them pled guilty. A defendant who chooses to enter into a plea bargain is not similarly situated to a defendant who contests the charges against him. It was not unreasonable that defendant was sentenced to significantly more time than other members of the conspiracy who chose to plead guilty. Defendant’s sentence was at the lowest end of a guideline range that was arrived at using an extremely conservative estimate of drug quantity. U.S. v. Flores-de-Jesus, 569 F.3d 8 (1st Cir. 2009).
1st Circuit finds court did not fail to consider mitigating evidence. (742) Defendant, a Boston police officer, pled guilty to drug and firearms charges due to his involvement in two large cocaine deals. Defendant requested a variance based on a neuropsychological evaluation which concluded, among other things, that his conduct was largely due to his heavy steroid use. He also argued that the drug weight was not indicative of his culpability, since he was neither a buyer nor a seller. The district court imposed a 312-month sentence (26 years), which fell within his guideline range of 295-353 months. The First Circuit upheld the sentence, rejecting defendant’s argument that the court erred by failing to consider his mitigating evidence. The court acknowledged the abuse of steroids evidence, but it did not find this evidence persuasive. Nor did the court find persuasive defendant’s argument that drug weight was not indicative of his guilt. The court chose to emphasize (1) the egregious nature of defendant’s criminal conduct, (2) the fact that he committed those crimes while a Boston police officer, and (3) the danger his crimes posed to society. There was no procedural error. U.S. v. Pulido, 566 F.3d 52 (1st Cir. 2009).
1st Circuit says court recognized authority to vary from Guidelines. (742) Defendant argued that the district court erred in failing to recognize its discretionary power to depart from the Guidelines. The First Circuit disagreed—the district court clearly recognized both that the Guidelines are advisory and that 18 U.S.C. §3553 factors allowed it to enter a non-Guidelines sentence. The court’s statement that it could not act on an “individual sense of justice” and that it had to apply rules it “would rather not apply if [it] were free to decide otherwise” did not show it failed to appreciate its discretionary power to impose an individualized sentence. The court correctly treated the Guidelines as the “starting point” and then consider whether the circumstances warranted a non-Guidelines sentence. The court considered defendant’s age and the fact that he was not a U.S. citizen. The court also heard from defendant at allocution, and knew of the lengthy sentences imposed on some of his co-conspirators. It concluded that there was no reason to vary from the Guidelines. U.S. v. Olivero, 552 F.3d 34 (1st Cir. 2009).
1st Circuit upholds life sentence even though defendant was not the one who killed the guard. (742) Defendant was convicted of charges relating to an armored car robbery in which a security guard was killed. He argued that his life sentence was substantively unreasonable because he was not the conspirator who shot the guard. The First Circuit rejected the claim. While defendant was not the actual shooter, the jury found that he had aided and abetted two separate armed robberies. In the first, defendant was one of two assailants who threatened to shoot the security officer. In the second, the evidence linked him to the robbery that resulted in the guard’s death. The PSR stated that defendant provided “cover” for the other assailants while they shot the guard. While the appellate court might have imposed a lesser sentence, that was not a basis for reversal. U.S. v. Morales-Machuca, 546 F.3d 13 (1st Cir. 2008).
1st Circuit finds guideline sentence for evading income taxes was reasonable. (742) Defendant was convicted of four counts of evading federal income taxes. The First Circuit rejected defendant’s claim that his 33-month sentence, which fell within his guideline range, was unreasonable. In considering and rejecting defendant’s request for a non-Guidelines sentence, the district court read from the Introductory Commentary to the relevant Guidelines section. This commentary emphasizes general deterrence and the importance of cultivating respect for our tax system. The district court also went through the sentencing factors enumerated in 18 U.S.C. §3553(a) and supportably explained the sentence in this case. No more was needed. U.S. v. Anthony, 545 F.3d 60 (1st Cir. 2008).
1st Circuit holds that court’s description did not support extent of variance. (742) Defendant was involved in a gang that owned and operated several drug points from which members sold large quantities of cocaine, crack, heroin and marijuana. The district court sentenced defendant to 40 years, the statutory maximum, which was an upward variance of more than two and one-half times the guidelines maximum. The court cited the fact that defendant was a “triggerman” for the gang who possessed a “powerful weapon” to facilitate the offense, and he was involved in violence at the drug points. The First Circuit ruled that while these factors may have justified a substantial upward variance, they did not support the imposition of a statutory maximum sentence of forty years. Defendant’s firearm possession was accounted for by a two-level enhancement under § 2D1.1(b)(1). As for defendant’s violence, the court expressly stated that it would not consider defendant’s alleged involvement in the murder of Santito, and the PSR did not refer to any specific acts of violence committed by defendant. Absent the murder, generic references to “violence” did not justify the imposition of the most severe sentence allowable by law. U.S. v. Ofray-Campos, 534 F.3d 1 (1st Cir. 2008).
1st Circuit holds that sentence of time served for drug trafficker was unreasonably lenient. (742) Defendant headed a large-scale marijuana distribution operation for four years that involved 1000 or more kilograms of marijuana. The government moved for a substantial assistance reduction under 18 U.S.C. §3553(e) and U.S.S.G. § 5K1.1. The court, after discussing without elaboration defendant’s “extraordinary” cooperation, his contrition, and the force of numerous letters submitted on his behalf, found that the 18 days he had already spent in detention and the prospect of a very large forfeiture would be sufficient punishment. The First Circuit held that the sentence of time served imposed by the court was unreasonably lenient. It was not improper for the court to afford “some minor weight” to the amount of the forfeiture order or to consider defendant’s charitable activities. The two main grounds for the sentence were defendant’s contrition and his cooperation. While these are proper grounds for variances, the weight given them can be reviewed for reasonableness. Sentences with no (or trivial) prison time have been scrutinized severely on appellate review. Moreover, the facts were not helpful to defendant – he did not commit a single criminal act on impulse, but engaged in a large number of drug transactions over a substantial period of time. As for defendant’s assistance, the court said nothing of substance that would explain why a near-zero sentence was warranted. U.S. v. Milo, 506 F.3d 71 (1st Cir. 2007).
1st Circuit rejects 36-month probationary sentence for insider trading based on cooperating co-defendant’s lower sentence. (742) Defendant pled guilty to insider trading. Although the low end of the applicable guideline range was 37 months, the district court sentenced him to 36 months’ probation. The court cited three reasons, but its main reason was sentencing disparity – a cooperating co-defendant, Wang, who received a § 5K1.1 departure, was sentenced by a different judge to 12 months’ probation. The court thought that defendant was less culpable than Wang, and thus a guideline sentence was unjust. The First Circuit reversed. The downward deviation from the guidelines’ recommended range could not be justified based on the cooperating co-defendant’s sentence. Concern with disparity among defendants is primarily a national concern, and not a concern about defendants in a particular case or court. Further, the two defendants were not similarly situated. The record did not support the court’s assessment that defendant was less culpable than Wang. Defendant was Wang’s senior and her mentor, and he exploited his mentor relationship to milk maximum profit from the scheme. The court also did not give adequate weight to the fact that Wang cooperated and defendant did not. The other factors considered by the court also did not justify the variance. The fact that the SEC might order monetary penalties did not warrant a lesser sentence. The third rationale, family problems, could not, on its own justify a departure. Some term of imprisonment is required for the sentence to be reasonable on the factors of this case. Defendant’s six months of community confinement was not the equivalent of a prison sentence. U.S. v. Tom, 504 F.3d 89 (6th Cir. 2007).
2nd Circuit approves 120-month below-guidelines sentence for insider trading. (742) Defendant, who worked as a proprietary trader, conducted a high-volume insider trading network that led the participants to acquire over $10 million in profits. He was convicted of multiple securities fraud accounts, resulting in a guideline range of 121-151 months. The district court sentenced him to 120 months. The Second Circuit affirmed, holding that the sentence was substantively reasonable. Although defendant had played a positive role in the lives of his family and friends, he also orchestrated and ran a large-scale cash-for-tips scheme to fuel an insider trading conspiracy. Defendant took steps to disguise his wrongdoings by distributing disposable cell phones, using fake research to cover his illegal trades, and refusing to speak about sensitive topics on the telephone. Defendant’s corrosive influence on the integrity of the financial markets and on the expectation of trust and confidence between attorney and client required a significant punishment. His below-guidelines sentence of 120 month was not unreasonable or disproportionate to the severity of his crimes. U.S. v. Goffer, 721 F.3d 113 (2d Cir. 2013).
2nd Circuit upholds 66-month sentence for insider trading offenses. (742) Defendant was one of several defendants that participated in a high-volume insider trading network. He was convicted of five counts of securities fraud, each carrying a maximum of 20 years. He argued that his 66-month sentence was substantively unreasonable in light of his community service and his commitment to his family. The district court took note of defendant’s positive activities, but also noted that defendant, who “earned” about $11,497,888 from trading on insider information, did not have the same compelling social disadvantages that frequently lead to and help explain criminal behavior. The Second Circuit upheld the reasonableness of the 66-month sentence. In light of the magnitude of defendant’s insider trading, which had major deleterious effects on the market, defendant “was no small-time criminal.” The district court’s well-reasoned sentencing took account the totality of the circumstances, including defendant’s motivations, his positive role in his family and the community, his knowledge that what he was doing was wrong, and the severity of his crimes. U.S. v. Goffer, 721 F.3d 113 (2d Cir. 2013).
2nd Circuit finds below-guidelines drug sentence was substantively reasonable. (742) Defendant pleaded guilty to two counts of possession with intent to distribute and distribution of cocaine within 1,000 feet of public housing property. 21 U.S.C. §§ 841(a)(1) and 860(a). With the career offender enhancement, his guideline range was 188-235 months, and the district court sentenced him to 144 months. The Second Circuit held that the below-guidelines sentence was substantively reasonable. Although this circuit has not adopted a per se rule, in the overwhelming majority of cases, a guidelines sentence “will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” Although defendant argued that the career offender enhancement overstated the seriousness of his crimes, the district court considered these arguments and generally rejected them, finding aggravating circumstances to outweigh mitigating ones. Nevertheless, it was in recognition of some mitigating circumstances that the district court exercised its discretion to grant a downward variance. U.S. v. Ingram, 721 F.3d 35 (2d Cir. 2013).
2nd Circuit holds that life sentences for terror conspiracy were substantively reasonable. (742) Defendants were found guilty of conspiracy to carry out acts of terrorism against John F. Kennedy International Airport, and were sentenced to life in prison. They both argued that their life sentences were substantively unreasonable. The Second Circuit disagreed. Neither defendant offered a persuasive argument that their sentences were substantively unreasonable. The district court stated explicitly at both sentencing hearings that it was mindful of the principle that each defendant’s sentence “must not be greater than necessary to achieve the goals of sentencing.” Defendants were convicted of conspiring to explode pipelines and jet-fuel tanks at JFK Airport in order to kill countless Americans and other travelers, disrupt air travel, and harm the American economy. The gravity of the crimes for which they were convicted easily justified the life sentences that were imposed. U.S. v. Kadir, 718 F.3d 115 (2d Cir. 2013).
2nd Circuit upholds finding that defendant forced victim to engage in prostitution. (742) Defendant was convicted on two counts of sex trafficking of a minor, in violation of 18 U.S.C. § 1591. He argued that his sentence of 180 months was procedurally unreasonable, pointing out that in its remarks at sentencing, the court referred to “forcing [the victim] to become a prostitute.” He contended that this demonstrated significant procedural error, because there was no evidence that he forced the victim “to become a prostitute” in the first instance. The Second Circuit disagreed. The clear import of the court’s remarks, taken as a whole, was not that defendant had corrupted an otherwise innocent victim, but that he had taken control of the victim and forced her to engage in prostitution. For example, the tapes contained numerous conversations in which defendant coerced the girl to prostitute herself when she was reluctant or unwilling to do so. There was no error, procedural or otherwise, in the district court’s commentary on the nature of the relationship between defendant and his victim. U.S. v. Robinson, 702 F.3d 22 (2d Cir. 2012).
2nd Circuit approves 30-year sentence for field hockey coach convicted of child porn. (742) Defendant was convicted of possession of child pornography and attempted production of child pornography. He argued that his 30-year sentence was substantively unreasonable, and that the only reasonable sentence was the statutory minimum prison term of 15 years. The Second Circuit rejected this argument. Defendant’s position would deny the judge who tried the case and interacted directly with defendant and his victims the discretion to assign any weight to possibly aggravating factors. The 30-year sentence was not an abuse of discretion in light of at least four aggravating factors. First, defendant’s crimes involved the abuse of a position of trust. He was the victims’ field hockey coach, trusted by parents and the community to train and mentor adolescent girls. Second, defendant abused the trust repeatedly. Over a number of years, he induced and encouraged teen athletes to take pornographic pictures of themselves, and to send them to him. Third, the crime of conviction was part of a larger pattern of sexual abuse. Finally, the court found that defendant showed “a disturbing lack of remorse for, or even appreciation of, the seriousness of the totality of his conduct.” Judge Jacobs dissented. U.S. v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
2nd Circuit approves sentence at top of range for transporting minor. (742) Defendant pled guilty to transporting a minor in interstate commerce with intent to engage in criminal sexual activity. The victim was a 15-year old girl that he met through a music website. The Second Circuit held that defendant’s 233-month sentence, which fell at the top of his advisory guideline range, was substantively reasonable. Although defendant claimed he deserved a more lenient sentence because of his acceptance of responsibility, he already received a three-level reduction under § 3E1.1. Moreover, he aggravated the damage from his offense by sending antagonistic letters to the girl and her family members after his arrest. Although defendant did not use violence or force against the minor, that fact was already reflected in his offense level. Finally, while defendant claimed the sentence was unreasonable because he had no intention of harming the girl, defendant “fail[ed] to grasp the gravity of [his] conduct and the future effect it [might] have on the victim.” Nothing in the record indicated the guideline sentence was outside “the range of permissible decisions.” U.S. v. Watkins, 667 F.3d 254 (2d Cir. 2012).
2nd Circuit says 42-month sentence for illegal reentry was reasonable. (742) Defendant pled guilty to illegally reentering the U.S. after deportation, resulting in a guideline range of 46-57 months. The PSR recommended a sentence at the bottom of the guideline range, but defendant asked for a below-guideline sentence. The court then considered the § 3553(a) factors, including that defendant reentered soon after being deported, and that he promptly engaged in the same drug activity that led to his previous manslaughter conviction. The district court stated that it was prepared to give defendant a 46-month sentence, but awarded defendant “credit” for his four months in federal custody, and imposed a 42-month sentence. Defendant challenged the sentence as unreasonable, but the Second Circuit disagreed. “[I]n the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentencings that would be reasonable in the particular circumstances.” It was therefore difficult to find that a below-guideline sentence was unreasonable. Given defendant’s assessment of the nature and circumstances of the offense, and the history and characteristics of the defendant, the § 3553(a) factors supported the decision not to sentence defendant any further below the bottom of the guidelines range. U.S. v. Perez-Frias, 636 F.3d 39 (2d Cir. 2011).
2nd Circuit finds court did consider sentencing disparity in imposing below-guidelines sentence. (742) Defendant was convicted of conspiring to operate and actually operating an unlicensed money transmitting business. The initial guidelines range was 121-151 months, but because of the maximum term was five years on each count, the guideline sentence became 120 months. Based on its evaluation of the § 3553(a) factors, the district court found that a considerably lower sentence was warranted, and sentenced defendant to 42 months. The Second Circuit rejected defendant’s argument that the court failed to consider the need to avoid unwarranted sentence disparities among defendants. The district court here said it had considered § 3553(a)(6) and in fact imposed a sentence significantly below the guidelines range. Since defendant’s claimed unwarranted disparity was based on a comparison to the sentence in a completely unrelated case, and to a hypothetical situation in which he would not have committed any federal crime at all, there was no procedural error. U.S. v. Mazza-Alaluf, 621 F.3d 205 (2d Cir. 2010).
2nd Circuit criticizes child porn guideline in finding sentence unreasonable. (742) Defendant pled guilty to distributing child pornography. His initial guideline range was 262-327 month, but the statutory maximum for the offense was 240 months. The Second Circuit ruled that defendant’s 233-month sentence was substantively unreasonable. First, the court was troubled by the district court’s apparent assumption that defendant was likely to actually sexually assault a child, a view unsupported by the record. 18 U.S.C. § 3553(a) (2). The court also offered no clear reason why the maximum available sentence, as opposed to some lower sentence, was required to deter an offender like defendant. The panel noted that § 2G2.2 is fundamentally different from most Guidelines, and can lead to unreasonable sentences that are inconsistent with § 3553. Section 2G2.2 makes virtually no distinction between sentences for defendants like defendant, and the sentences for the most dangerous offenders. By concentrating all offenders at or near the statutory maximum, § 2G2.2 eviscerates the fundamental statutory requirement in § 3553(a) that district court consider the nature and circumstances of the offense and the history and characteristics of the defendant. U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010).
2nd Circuit rejects 28-month sentence for lawyer who helped imprisoned terrorist communicate with outside world. (742) Defendant, an attorney, represented Rahman, who was serving a life sentence for terrorism-related crimes. Defendant was convicted of charges stemming from her repeated violation of Special Administrative Measures,” which restricted Rahman’s ability to communicate with persons outside of his prison. Although defendant’s guideline range was 360 months (the statutory maximum), the district court imposed a sentence of 28 months. The Second Circuit had “serious doubt” that the sentence given was reasonable, and remanded for resentencing. The panel was impressed by the factors that figured into the modest sentence, particularly defendant’s history of providing free legal services. Moreover, it acknowledged that the §3A1.4 terrorism enhancement can overstate a particular defendant’s culpability. However, defendant’s sentence was “strikingly low” in light of her “extraordinarily severe criminal conduct.” On remand, the court must determine whether, as supported by the government’s substantial evidence, defendant committed perjury at trial. The court should also determine whether defendant’s conduct as a lawyer triggered the special skill/abuse of trust enhancement under §3B1.3 U.S. v. Stewart, 590 F.3d 93 (2d Cir. 2009).
2nd Circuit says court need not compare defendant’s sentence to Commission’s statistics. (742) Defendant was convicted of traveling outside the U.S. for the purpose of engaging in sexual acts with minors, and child pornography charges. He challenged his 262-month sentence, arguing that the court erred in failing to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of the similar conduct.” 18 U.S.C. § 3553(a)(6). He argued that the district court was required to consider “statistics kept by the Sentencing Commission regarding sentences imposed locally and nationally on similarly situated offenders.” The Second Circuit upheld the guideline sentence, finding the district court was not required to consult the statistics provided by defendant. These statistics did not distinguish between defendants who committed crimes of sexual abuse against children and those who committed such crimes against adults. More importantly, concern about unwarranted disparities “is at a minimum when a sentence is within the Guidelines range.” U.S. v. Irving, 554 F.3d 64 (2d Cir. 2009).
2nd Circuit affirms court’s refusal to sentence below guidelines based on age and unfortunate childhood. (742) Defendant was convicted of drug conspiracy charges carrying a mandatory minimum sentence of 10 years. His advisory guideline range was 188-235 months. Defendant, age 50, urged the court to sentence him to less than 188 months, based on his unfortunate childhood and the fact that even with a 10-year sentence he would be in prison until he was past 60 years old. The court sentenced him to 198 months, noting that he was not a child now, but a 50-year-old man who deliberately chose to carry out drug trafficking as a profession. The Second Circuit found no error. The court’s comments did not suggest that it believed that defendant’s upbringing must be causally related to the crime, but that it considered defendant’s age and childhood and found that they did not constitute mitigating circumstances. U.S. v. Chavez, 549 F.3d 119 (2d Cir. 2008).
2nd Circuit says sentence disparity from fast-track programs did not make sentence unreasonable. (742) Defendant was convicted of entering the U.S. after being deported following a conviction for an aggravated felony. At sentencing, he requested a below-guideline sentence based on the unwarranted sentencing disparities caused by the existence of fast-track programs in some districts but not others. In U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006), the Second Circuit held that sentencing disparities created by the fact that some, but not all, districts use fast-track programs did not render the sentences in non-fast-track districts necessarily unreasonable. Here, the Second Circuit confirmed that he absence of a fast-track program did not require the court to adjust the sentence. The judge said that he did not find the fast-track arguments “to be persuasive”—he did not say that they were foreclosed by Mejia. As a result, the sentencing decision was an unreviewable exercise of the judge’s discretion not to depart from the guidelines. There was no error. U.S. v. Hendry, 522 F.3d 239 (2d Cir. 2008).
2nd Circuit rejects variance based on sentence defendant might have received in state court. (742) Defendant pled guilty to conspiracy to possess with intent to distribute 50 grams or more of crack. Although his guideline range was 70-87 months, the district judge sentenced him to 36 months, finding this was the likely sentence defendant would have received under a plea bargain in the local court. The judge made clear that she believed that the Sentencing Guidelines were excessive because “the nature and circumstances of the offense are not peculiarly federal,” and there was “no logical reason” why this case was in federal court rather than state court. The Second Circuit reversed, without examining whether the sentence imposed was substantively reasonable. The displacement of the Sentencing Guidelines at the threshold, because of a “personal policy” to conform the sentence to one that would have been imposed in a proceeding in the City of Yonkers, could not be reconciled with 18 U.S.C. § 3553(a)’s directive to consider the Sentencing Guidelines. Moreover, relying on the plea bargaining policy of one of 62 independently elected district attorneys, rather than the uniform sentencing scheme prescribed by the state of New York, runs the risk of increasing sentencing disparities within the four federal judicial districts in New York State. The panel also rejected the 40-month sentence imposed on a co-defendant, which was designed solely to avoid an undue disparity with the sentence imposed on defendant. U.S. v. Williams, 524 F.3d 209 (2d Cir. 2008).
2nd Circuit says court did not adequately explain reasons for large substantial assistance departure. (742) Defendant pled guilty to drug charges that subjected her to a 20-year mandatory minimum sentence. The district court sentenced her to 454 days, which was a departure of about 93% from the statutory minimum. The district court said the government’s substantial assistance motion enabled it to impose a sentence it deemed “fair and reasonable under the circumstances.” The Second Circuit remanded because it could not determine whether the sentence was procedurally reasonable. The district court merely stated that it was taking into account “all the pertinent information including but not limited to the presentence investigation report, submissions by counsel, the factors outlined in 18 U.S.C. section 3553 and the sentencing guidelines.” When government counsel inquired as the court’s method of “calculation,” the court responded: “Based on all the circumstances in the case and the motion by the government, this is the [c]ourt’s sentence.” U.S. v. Richardson, 516 F.3d 145 (2d Cir. 2008).
2nd Circuit says reliance on unsubstantiated charged conduct made sentence unreasonable. (742) Defendant pled guilty to one count of possession of child pornography. His recommended guideline range was 24-30 months’ imprisonment, and both parties agreed that this would be reasonable. However, the district court imposed a sentence of 90 months based, in part, on pending state charges against defendant for sexual abuse of a minor. The court cited the fact that defendant had engaged in sexual conduct with a minor child “on repeated occasions.” However, defendant agreed to admit only to a single incident of felony sexual abuse in the state case. Because it was unclear to what extent the district court impermissibly based the increased sentence on unsubstantiated charged conduct, the Second Circuit held that the sentence was procedurally unreasonable. The district court was not presented, as far as could be told, with reliable substantiation for the remaining charges in the state indictment. Under such circumstances, a sentence enhancement based solely on unproven charges in an indictment would be improper. U.S. v. Juwa, 508 F.3d 694 (2d Cir. 2007).
2nd Circuit holds that reliance on population density to impose above-guidelines sentence was legal error. (742) Defendant was convicted of conspiring to deal in and transport firearms. Although his guideline range was 12-18 months, the district court decided to impose a non-guideline sentence of 24 month. The court reasoned that gun trafficking in an urban environment like New York City inflicts greater harm and requires stiffer penalties to achieve deterrence than the same offense committed in less densely populated parts of the country. The Second Circuit held that under the circumstances of this case, the court’s reliance on the simple fact of population density to impose a non-guidelines sentence was legal error. A demographics-based approach threatens to undermine a primary purpose of the guidelines, to bring nationwide uniformity to federal criminal sentences. The court based defendant’s sentence on its own public policy determination, and, while post-Booker courts have more discretion in sentencing, a district “cannot import its own philosophy of sentencing if it is inconsistent with the § 3553(a) factors.” Moreover, the court’s support for its assessment of the harmfulness of defendant’s crime was speculative. Although injury to innocent bystanders is more probable in crowded environments, the City of New York has five boroughs with varying population densities. New York City is too large and varied a community to draw meaningful conclusions as the potential impact of stray bullets that may someday originate from a trafficked firearm. U.S. v. Cavera, 505 F.3d 216 (2d Cir. 2007).
2nd Circuit holds that court not required to take into account shorter sentence defendant would have received if prosecuted in state court for same offense. (742) Defendant was convicted of being a felon in possession of a firearm, and received a 120-month sentence. Had he been prosecuted for the same offense in New York state court, his potential sentence could not have exceeded 84 months. He argued that the district court erred by failing to take into account, when considering his motion for a downward departure or variance, the difference between federal and state penalties for his offense of conviction. The Second Circuit disagreed. Although § 3553(a)(6) directs a court to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, the primary of § 3553(a)(6) is to reduce disparities nationwide. Requiring district court to reduce a defendant’s sentence whenever he might have been subject to a lesser state sentence would make federal sentences dependent on the law of the state in which the sentencing court was located, resulting in federal sentencing that would vary from state to state. U.S. v. Johnson, 505 F.3d 120 (2d Cir. 2007).
2nd Circuit reviews for plain error claim that court failed to adequately consider § 3553(a) factors. (742) Defendant argued for the first time on appeal that the district court erred by finding that the sentence recommended by the advisory Sentencing Guidelines accounted for the factors under § 3553(a), and failed to adequately state its reasons for imposing the chosen sentence. The Second Circuit did not decide if there was any error; because defendant failed to object below, the challenges were subject to plain error analysis, and neither alleged error was plain. To be plain, an error must be clear or obvious. Even if the district court erred in concluding that the guidelines accounted for the § 3553(a) factors, the error was not plain. The guidelines may serve as a sentencing court’s “benchmark or a point of reference or departure.” It was not obvious that the court used the guideline range as anything other than a benchmark here. Moreover, even if the district court failed to comply with § 3553(c), any such error was certainly not plain. The court imposed a sentence at the bottom of the guideline range, and such sentences often will not require lengthy explanations. The court was not mute at sentencing; it offered reasons for rejecting defendant’s arguments for a non-guidelines sentence. U.S. v. Villafuerte, 502 F.3d 204 (2d Cir. 2007).
2nd Circuit holds that decision to “stack” sentences under guidelines did not result in unreasonable sentence. (742) Defendant argued that the court acted unreasonably when it imposed consecutive sentences in accordance with the “stacking” provision required under the guidelines. See § 5G1.2(d) (the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to provide a combined sentence equal to the total punishment.) Defendant argued that the court should have exercised its discretion under Booker to impose a lower sentence because the individual sentences were for similar conduct and thus should not have run consecutively. The court considered the § 3553(a) factors, finding that defendant had “repeatedly shown his willingness to murder other human beings as part of his membership in an ongoing and widespread criminal enterprise, and his criminal history unmistakably demonstrated that he [was] unlikely to lead a law-abiding life if released from custody. Only the maximum penalty that the law permits is sufficient in this case.” The Second Circuit held that the district court did not act unreasonably in imposing a sentence within the guideline range. U.S. v. Matera, 489 F.3d 115 (2d Cir. 2007).
2nd Circuit affirms court’s refusal to impose below-guideline sentence based on age, health and undischarged sentence. (742) Defendant argued that his sentence was unreasonable because the district court should have weighed more heavily his age, health, and undischarged sentence from a prior conviction for shipping industry extortion. The district court imposed a sentence within the guideline range after noting that the “facts relevant under Section 3553(a) strongly support a lengthy sentence.” The court considered defendant’s age and health, noting that his claim that he was “no longer a threat to society because of his age and medical conditions [was] belied by the trial testimony establishing that he, like other members of the Gambino crime family, only needed to direct subordinates to commit the criminal acts from which he profited.” As for the undischarged sentence, the court ruled that § 3553(a), especially the goals of punishment and deterrence, favored a “lengthy sentence.” The Second Circuit found no error. U.S. v. Matera, 489 F.3d 115 (2d Cir. 2007).
2nd Circuit rejects variance based on likely deportation and disparity with co-defendants who were not similarly situated to defendant. (742) Defendant and seven co-defendants were convicted of cocaine and crack distribution and conspiracy charges. In sentencing defendant below the advisory guideline range of 292-365 months, the court noted that defendant would be deported immediately after his prison sentence was served, and that the longest sentence imposed on his co-defendants was 96 months. The Second Circuit reversed, holding that the court did not properly apply the statutory factors listed in 18 U.S.C. § 3553(a). Defendant’s likely deportation following his imprisonment was not relevant under § 3553(a)(2)(C), which requires a court to consider the need for the sentence imposed to protect the public from further crimes of the defendant. The panel also reaffirmed U.S. v. Restrepo, 999 F.2d 640 (2d Cir. 1993), which held that deportation is not an “additional punishment” imposed on a defendant. It is unclear whether § 3553(a)(6) permits the consideration of co-defendant disparity rather than disparity among defendants nationwide. Even if the provision permits the consideration of defendant’s sentence in relation to those of his co-defendants, the court still erred because he provided no assessment of how defendant was similarly situated to his co-defendants and why that would matter in light of their differences. Defendant was convicted of being a leader of the conspiracy; his co-defendants were not. Defendant did not cooperate with the prosecution; his co-defendants did. U.S. v. Wills, 476 F.3d 103 (2d Cir. 2007).
2nd Circuit finds court gave proper consideration to guidelines and other factors. (742) The district court originally sentenced defendant to 51 months for his involvement in a conspiracy to rob a federal credit union. On remand for resentencing in light of U.S. v. Booker, 543 U.S. 220 (2005), the district court conducted a second sentencing hearing, and ultimately imposed the same 51-month sentence. The court stated that the guidelines should be given “significant deference,” that the guidelines’ “advice has a very distinct resonance about it,” and that district courts “are instructed to give significant and substantial deference to the guidelines.” The Second Circuit rejected defendant’s claim that the court improperly gave complete deference to the guidelines while not giving the other § 3553(a) factors the appropriate weight. The court’s comments did not constitute procedural error. The recommended guideline range should serve as a benchmark or a point of reference or departure for a sentencing court. While a court must consider each § 3553(a) factor in imposing a sentence, the weight given to any single factor “is a matter firmly committed to the discretion of the sentencing judge and is beyond our review.” The sentence was procedurally reasonable. U.S. v. Capanelli, 479 F.3d 163 (2d Cir. 2007).
3rd Circuit infers that court exercised discretion to deny downward departure. (742) Defendant pled guilty to possession of child pornography, and was sentenced to 96 months. He argued that the district court erred by failing to explicitly address his request for a downward departure based on mental health issues. Under U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), district courts are required to “formally rul[e] on the motions of both parties, and stat[e] on the record whether they are granting a departure.” Here, although the district court did not explicitly deny defendant’s request for a downward departure, the Third Circuit was able to infer that the district court used its discretion because it was fully informed on the issues prompting the request, and the government requested that “the Court exercise its discretion to deny the downward departure….” This demonstrated that the government acknowledged that the district court had discretion to grant a possible departure. As a result, the panel ruled that the district court did use its discretion to deny the request for a downward departure, choosing instead to grant a slight variance. Because the district court used its discretion, the appellate court lacked jurisdiction to review the discretionary decision not to depart downward. U.S. v. Handerhan, 739 F.3d 114 (3d Cir. 2014).
3rd Circuit finds court properly considered § 3553(a) factors in denying departure request. (742) Defendant pled guilty to possession of child pornography, and was sentenced to 96 months. He argued that a downward departure under § 5H1.3 was appropriate because he suffered from obsessive compulsive disorder coupled with an “internet addiction,” manifesting itself in an uncontrollable urge to download and catalogue pornographic images. According to his psychiatric evaluations, defendant did not exhibit any sexual attraction to children, nor did he seek out the images to gratify his sexual urges. The Third Circuit rejected defendant’s claim that the district court failed to consider the § 3553(a) factors in denying his request for a downward departure. The district court took into account that defendant had been a productive member of society having served as a police officer, as well as the fact that he made “a serious and sincere effort to overcome” his mental illnesses by seeking therapy. It also focused on the need to “reflect the seriousness of the offense”, § 3553(a)(2)(A), and to “deter other generally from engaging in this crime.” The court’s consideration of the § 3553(a) factors was fairly comprehensive. U.S. v. Handerhan, 739 F.3d 114 (3d Cir. 2014).
3rd Circuit upholds 12-year sentence for insider trading. (742) Defendant was a participant in a three-man insider-trading conspiracy that ran for 17 years. The district court sentenced him to 144 months. Although the sentence was the longest insider-trading sentence in history, it fell within the middle of his 135-168 month sentencing range. The Third Circuit held that the sentence was procedurally and substantively reasonable. Although there was an obvious disparity between defendant’s sentence and the nine-year sentence received by a co-conspirator who netted gains many times larger, there was a good reason for the disparity. Defendant served as the source of the information that permitted the scheme to function. Further, defendant was an attorney who took an oath to uphold the law. Moreover, it was “really quite remarkable” that defendant “could not even wait to graduate from law school” before starting his illegal activities. Although defendant received a severe sentence, the district court set forth adequate reasons to show that it considered the parties’ arguments. Defendant failed to overcome the presumption of reasonableness applicable to within-guidelines sentences. U.S. v. Kluger, 722 F.3d 549 (3d Cir. 2013).
3rd Circuit remands where unclear whether reduction was departure or variance. (742) The government argued that the district court committed a procedural error when, after granting defendant a departure based upon his extraordinary public works, it did not calculate a new final guidelines range. Defendant’s guideline range was 121 to 151 months, but the district court sentenced him to 55 months based upon his public service. However, it was unclear whether the sentence was the result of a departure or a variance. The Third Circuit noted that if the sentencing reduction was a departure rather than a variance under § 3553(a), then the district court erred by failing to calculate a final guideline offense level and guidelines sentencing range. However, there was “substantial uncertainty” regarding whether the reduction was a departure or variance, and because the distinction could have practical effects on defendant’s ultimate sentence, the panel remanded. U.S. v. Fumo, 655 F.3d 288 (3d Cir. 2011).
3rd Circuit denies custody credit where it was not clear that alien was to be criminally prosecuted. (742) Defendant argued that the district court erred in denying his request for a variance to account for the time he spent in ICE custody awaiting indictment for illegal reentry. Under 18 U.S.C. § 3585(b), “a defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences.” The definition of “official detention” does not include time spent in the custody of the INS pending a final determination of deportability, or pending the civil deportation process. The district court declined to formally grant the variance, finding that the Record of Sworn Statement did not make certain that defendant would be prosecuted for illegal reentry. The Third Circuit affirmed, ruling that the district court’s finding that defendant was not in “official detention” during this time was not clearly erroneous. There was no record from the government to indicate that a definitive decision regarding criminal prosecution was made. Moreover, the district court did give some consideration to defendant’s argument because it sentenced him at the bottom of the guidelines range. U.S. v. Lopez, 650 F.3d 952 (3d Cir. 2011).
3rd Circuit remands where district court did not adequately explain downward variance. (742) Defendant participated in a fraud scheme, resulting in a guideline range of 70-87 months. He requested a downward variance, presenting evidence of a dependent personality disorder, which led him to bond with the conspiracy’s leader. The district court sentenced defendant to five years’ probation, with the first nine months in home detention. The Third Circuit held that the court committed procedural error in not adequately explaining defendant’s sentence. The district court did not acknowledge that the sentence it chose deviated significantly from the Guidelines. While the court properly identified the recommended range of 70-87 months, and thoroughly discussed some of the § 3553(a) factors, at no point did it describe how those factors justified a deviation from the recommended range down to probation and in-home confinement. In a case involving such a substantial variance, it is not enough to note mitigating factors and then impose sentence. U.S. v. Negroni, 638 F.3d 434 (3d Cir. 2011).
3rd Circuit finds valid reasons for harsher sentence for ringleader of money laundering operation. (742) Defendant and his wife and daughter, who ran a check-cashing business, were convicted of money laundering charges. Defendant was sentenced to 60 months imprisonment while both his wife and daughter were sentenced to five-year terms of probation. He argued that the district court failed to explain why he was sentenced to prison while his wife and daughter were not, and that this was required by 18 U.S.C. § 3553(a)(6). The Third Circuit found no error. The record made clear that the district court saw defendant as the ringleader of the criminal activity. He was the president of the company, and was in charge of its compliance with the applicable regulations with respect to money laundering. He received a two-level enhancement for being a leader, manager or supervisor of the criminal activity. The 60-month sentence, which fell below his guideline range of 78-97 months, was not substantively excessive. U.S. v. Quiles, 618 F.3d 383 (3d Cir. 2010).
3rd Circuit reverses for failure to adequately explain policy disagreement with career offender guideline. (742) Defendant pled guilty to a drug possession charge. Although he qualified as a career offender, resulting in a guideline range of 188-235 months, the district court sentenced him to five years’ imprisonment, well below the recommended range. Absent the career offender provision, his guideline range would have been 110-137 months. The court noted a number of mitigating factors, including the fact that defendant’s offenses involved a relatively small amount of drugs at the street level. In addition the court stated “I kind of reserve career offender status for violent, significant drug deals . . . even if the guidelines may advise that it’s appropriate.” The Third Circuit reversed. The court failed to adequately explain its policy disagreement with the career offender provision of the guidelines or how the downward variance it granted would not contribute to unwarranted sentencing disparities. U.S. v. Merced, 603 F.3d 203 (3d Cir. 2010).
3rd Circuit finds 360-month sentence reasonable for abuse of young minor. (742) Defendant pleaded guilty to interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c), based on his sexual abuse of a two-year-old girl who was in his care. After enhancements, defendant’s sentencing range was 37, and the district court departed upward by five levels based in part on defendant’s pattern of sexually abusing minors, including his own daughter. Defendant’s resulting sentencing range was 360 months to life, and the district court imposed a 360-month sentence. On appeal, defendant argued that the sentence was unreasonable because his conduct was less severe than that of the victim’s mother, who allowed others to sexually abuse the girl, with the result that the child contracted a sexually transmitted disease. The Third Circuit rejected this argument and held that the district court properly distinguished others involved in the sexual abuse of the girl. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit finds no procedural error in 360-month sentence for sexual abuse of minor. (742) At defendant’s sentencing for interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c), he argued that he had mental health problems and that the district court should consider the abuse he suffered as a child. The district court agreed that defendant had mental health issues, but imposed a sentence of 360 months. On appeal, defendant argued that the district court committed procedural error by failing to consider that he came from a “broken home” and had suffered sexual abuse as a child. The Third Circuit held that in light of defense counsel’s abbreviated discussion of defendant’s childhood, the district court did not commit procedural error by failing to address that issue in imposing sentence. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit finds no procedural error in 360-month sentence for sexual abuse of minor. (742) At defendant’s sentencing for interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c), he argued that he had mental health problems and that the district court should consider the abuse he suffered as a child. The district court agreed that defendant had mental health issues, but imposed a sentence of 360 months. On appeal, defendant argued that the district court committed procedural error by failing to consider that he came from a “broken home” and had suffered sexual abuse as a child. The Third Circuit held that in light of defense counsel’s abbreviated discussion of defendant’s childhood, the district court did not commit procedural error by failing to address that issue in imposing sentence. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit rejects as unreasonable five years’ probation and fine for child pornography offense. (742) Defendant pled guilty to possessing child pornography. The applicable guideline range was 30-37 months, but the district court sentenced defendant to five years’ probation and a $10,000 fine. The court found that imprisonment would be “counterproductive.” The Third Circuit reversed, holding that the court failed to properly consider the § 3553 factors and failed to offer a sufficient justification for a sentence so substantially below the applicable guideline range. The district court did not consider the need to avoid potential sentencing disparities among similarly situated individuals, despite the fact that the government specifically invoked this factor. The court also found that imprisonment would neither deter criminal conduct nor protect the public from further crimes. Such a policy disagreement with the Guidelines is a permissible basis for a variance if the court provides “sufficiently compelling” reasons to justify it. However, the district court did not offer a reasoned explanation for its disagreement with the policy judgments of Congress. A conclusory statement of personal belief is not sufficient. U.S. v. Lychock, 578 F.3d 214 (3d Cir. 2009).
3rd Circuit upholds 22-year sentence for member of violent street gang as reasonable. (742) Based on his involvement with a local sect of a violent nationwide street gang, defendant was convicted of various racketeering, drug, firearms and violence crime offenses. He argued that his 22-year sentence was procedurally unreasonable because the district court never formally ruled on his motion for a downward departure based on an overstatement of his criminal history. The Third Circuit found no error. Although the court did not explicitly deny defendant’s motion, it was fully informed on the issue and did not grant his requested departure. There was nothing in the record to indicate that the court was acting under the mistaken belief that it lacked the discretion to reduce his criminal history category under the evidence before it. The court gave “meaningful consideration” to the disparity between the sentences of defendant and his co-defendant Wright, noting that Wright and defendant were not similarly situated in all respects. The 22-year sentence was substantively reasonable. The court extensively discussed the reasons underlying his sentence, finding it was connected to the seriousness of the crime and the “awful society impact” of the gang on the community. U.S. v. Jones, 566 F.3d 353 (3d Cir. 2009).
3rd Circuit upholds refusal to vary based on family circumstances. (742) Defendant pled guilty to 10 counts of fraud. She requested a mitigated sentence of 12 months and one day because she was the sole provider for her mother and mentally challenged granddaughters. The district court calculated defendant’s guideline range at 18-24 months, and sentenced her to 18 months. Defendant argued that the district court was unfaithful to Gall, where the Supreme Court rejected a rule that would have required “extraordinary circumstances” to justify a sentence outside of the Guidelines range. The Third Circuit upheld the guideline sentence. Contrary to defendant’s argument, the district court did not believe that extraordinary circumstances were required to warrant a variance. The court noted that defendant’s family circumstances were unfortunate, but the hardship she claimed was similar to that experienced by many if not most families of convicted felons. U.S. v. Kennedy, 554 F.3d 415 (3d Cir. 2009).
3rd Circuit rejects court’s explanation for downward variance for fraud defendant. (742) Over a two- year period, defendant falsely reported his business’s financial status and operational performance to the business’s parent company, used over $177,000 of the company’s revenues for his own benefit, and failed to report his use of those funds on his income tax return. He was convicted of wire fraud and failing a false income tax return. The district court granted him a variance from the advisory guideline range of 24-30 months and sentenced him to two concurrent 24-month terms of probation. The Third Circuit reversed, holding that the district court clearly erred in finding that defendant had inflicted no financial harm on the public. Defendant admitted filing a false tax return, and the district court found that the tax loss associated with that count exceeded $44,000. The court also gave an inadequate explanation for the variance. There was no explanation of how this defendant or his crimes warranted the special leniency shown. The court appeared to have rested its decision on a policy disagreement with the Guidelines, which it did not articulate or explain. U.S. v. Levinson, 543 F.3d 190 (3d Cir. 2008).
3rd Circuit says court correctly considered crack-to-powder ratio along with other sentencing factors. (742) In U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2008), the Third Circuit outlined a three-step process for sentencing: (1) calculate a defendant’s Guideline sentence; (2) formally rule on all motions and state whether the court is granting a departure; and (3) consider the § 3553(a) factors in setting the sentence, regardless of whether it varies from the guideline sentence. During step 3, Gunter allows a court to consider the crack-to-powder ratio along with the § 3553(a) factors. However, Gunter prohibits categorical rejection of the 100:1 ratio. Defendant argued that the district court erred at step 3 by failing to understand its discretion to consider defendant’s arguments relating to the disparities created by the crack-to-powder cocaine sentencing ratio. The Third Circuit ruled that the district court correctly considered the crack-to-powder ratio along with the other sentencing factors. The court’s statement that “I don’t think that I’m permitted to dissect and disagree with what I’ve already calculated to be an appropriate pre-Booker calculation,” was referring only to the court’s inability to categorically disagree with the 100:1 ratio on policy grounds by establishing its own ratio. U.S. v. Gunter, 527 F.3d 282 (3d Cir. 2008).
3rd Circuit rejects amended judgment as afterthought, not alternative basis for sentence. (742) Defendant robbed a bank, telling the bank teller that he had a knife. He also gave the teller a note which read, “Give me all the money now or I will stab you.” But defendant’s knife remained in his pocket. At sentencing, the court increased the sentence under subsection (E) of § 2B3.1(b)(2), by four levels for “brandishing” the knife, and sentenced defendant to 71 months, at the upper end of the guideline range. Fourteen days after sentencing—outside the time limit set by Rule 35(a)—the court filed an amended judgment, stating that even if it had applied a three-level increase under subsection (D) for “otherwise using” the knife, it still would have sentenced defendant to 71 months. On appeal, the government conceded that the increase should have been only three levels. The Third Circuit agreed, and ruled that the amended judgment did not make the error harmless. The alternative sentence was devoid of any justification for deviating eight months above the upper end of the guideline range. Such a bare statement was at best an afterthought, not an amplification of the court’s sentencing rationale. U.S. v. Smalley, 517 F.3d 208 (3d Cir. 2008).
3rd Circuit finds court treated Guidelines as advisory and considered crack/powder cocaine disparity. (742) Defendant argued that the district court treated the Guideline range for his crack cocaine offense as mandatory. In Kimbrough v. United States, 128 S. Ct. 558 (2007), the Supreme Court held that the Guidelines for crack cocaine offenses, like all other Guidelines, are advisory only, and a sentencing court has discretion to conclude for a given defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve § 3553(a) purposes. Although defendant was sentenced after Kimbrough was decided, the Third Circuit held that the district court properly treated the guidelines as advisory and considered the crack/powder cocaine disparity. In responding to defendant’s argument. The district court stated, “I do consider the powder/crack disparity. . . . I think the guideline range is much higher, much, much higher than it would be had the defendant been dealing powder cocaine, so I consider that in my calculations.” Thus, while the circumstances of defendant’s offense would make a sentence “at the very top” of the Guidelines range appropriate, the disparity in the treatment of crack cocaine and powder cocaine offenses warranted a lower sentence. The court then imposed a sentence in the middle of his guideline range. The court’s remarks showed that it understood that it could sentence defendant outside the Guideline range based on the crack/powder cocaine disparity, but chose not to. U.S. v. Wise, 515 F.3d 207 (3d Cir. 2008).
3rd Circuit says below-guideline sentence in similar case did not make guideline sentence unreasonable. (742) Defendant was involved in a mortgage and bank fraud conspiracy. Relying on the one-year sentence received by the defendant in a similar but unrelated case, defendant argued that the court improperly considered the § 3553(a) factors in sentencing him to 40 months, which fell within the middle of the applicable guideline range of 37-46 months. The Third Circuit found that the guideline sentence was reasonable. The existence of another case where a defendant was charged with a somewhat similar crime and faced the same advisory guideline range, but who received a below-guideline sentence, did not make defendant’s within-guideline sentence unreasonable. If that were the law, any sentence outside of the Guideline range would set precedent for all future similarly-convicted defendants. Although a similar sentence might have been reasonable here, that did not make defendant’s sentence unreasonable. U.S. v. Jimenez, 513 F.3d 62 (3d Cir. 2008).
3rd Circuit holds that four-month sentence for child porn defendant was unreasonably lenient. (742) Defendant was convicted of possessing hundreds of electronic images of child pornography on his computer. Although the PSR recommended a guideline range of 37-46 months, the district court imposed a four-month sentence. As support, it noted that it had considered the guidelines (but made no mention of the range that was applicable to defendant), considered a letter from a doctor that stated that defendant “had never acted out in any sexual way with children,” and noted the number of letters of support from friends and family. The court relied heavily on the fact that defendant had no criminal history and had lived an “exemplary” life for 54 years. The Third Circuit reversed, finding the four-month sentence both procedurally and substantively unreasonable. First, the district court did not follow the three-step process laid out in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006) for imposing sentences after Booker. The court’s decision failed to reflect the required analysis of the § 3553(a) factors and gave short shrift to the guidelines, one of the listed factors. The four-month sentence was unreasonably lenient. The court viewed this as a victimless crime, and ignored the real injuries suffered by the children depicted in the pornography. The fact that defendant never “acted out in any sexual way with children” was irrelevant – defendant was not charged with molestation. U.S. v. Goff, 501 F.3d 250 (3d Cir. 2007).
3rd Circuit holds that court failed to provide necessary explanation for significant variance. (742) For three years, defendant sold counterfeit software over the Internet. His advisory guideline range was 18-24 months. Throughout the sentencing hearing, the district court focused on the repayment of restitution and implied that if defendant could arrive at a satisfactory plan of restitution, he would be able to avoid imprisonment. The district court eventually sentenced defendant to five years of probation with restitution of $48,000 a year. The Third Circuit reversed, finding that the district court failed to provide a sufficient explanation for the significant variance. The government objected strenuously to the variance, and the district court was obliged to explain why such a significant variance was warranted in light of the concerns raised by the government. The court focused its explanation exclusively on the need for defendant to remain productive and employable and the need for defendant to maintain the financial ability to pay restitution to Microsoft. However, the appellate court failed to see “the trade-off between incarceration and restitution” which seemed to motivate the district court. Given defendant’s financial information, the money to pay the restitution was clearly coming from defendant’s in-laws. While it was conceivable that in some circumstances the need for restitution would be great enough to subordinate certain penal interests, the court did not identify any such circumstances. In light of the course of defendant’s restitution payments, there was no reason to favor the restitution aspect of punishment over the incarceration aspect. U.S. v. Kononchuk, 485 F.3d 199 (3d Cir. 2007).
3rd Circuit finds sentence reasonable even if defendant may not live long enough to serve it. (742) Before his sentencing for bank robbery, defendant submitted evidence that he had AIDS and a long history of substance abuse. A psychological evaluation found that defendant was borderline mentally retarded, and noted that his diminished cognitive functioning could have been caused by developmental factors, alcohol and drug abuse, or AIDS. Defendant had an offense level of 29 and fell into criminal history category VI, for a sentencing range of 151 to 188 months. The district court sentenced defendant to 120 months. The Third Circuit rejected defendant’s contention that the sentence was unreasonable because, in light of his condition, it amounted to a death sentence. The court held that the district court properly considered and applied the factors in 18 U.S.C. § 3553(a), and it found that “the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence.” U.S. v. Watson, 482 F.3d 269 (3d Cir. 2007).
4th Circuit reverses upward departure to life sentence as substantively unreasonable. (742) Defendant had an advisory guideline range of 120-121 months, but the district court departed upward to a life sentence. It treated defendant as a “de facto” career offender, which resulted in a sentencing range of 420 months to life. After considering the §3553(a) factors, the court concluded that defendant deserved the maximum sentence of life in prison. The Fourth Circuit reversed, holding that the sentence was substantively unreasonable, that the extent of the upward departure was unwarranted, and that a life sentence on this record was not justified by the §3553(a) factors. Contrary to the district court’s view, this case was not “almost on all four” with U.S. v. Myers, 589 F.3d 117 (4th Cir. 2009). Myers displayed a consistent pattern of recidivism immediately upon release from prison. In contrast, most of defendant’s serial convictions occurred between the ages of 16 and 18. Moreover, despite the “grave criminal records” that Myers and other defendants in similar cases had in common, not one of those defendants was sentenced to life in prison. The district court focused extensively on a single factor, defendant’s early criminal history. By declaring defendant a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when defendant was a juvenile, the district court failed to comply with the aims of sentencing in §3553(a)(2). U.S. v. Howard, __ F.3d __ (4th Cir. Dec. 4, 2014) No. 13-4296.
4th Circuit upholds 120-year sentence for sexual abuse of four-year-old. (742)Defendant was convicted of multiple child pornography charges in connection with his sexual molestation of a four-year-old boy. He argued that his 120-year sentence was disproportionate to his crimes and constituted cruel and unusual punishment under the Eighth Amendment. The Fourth Circuit upheld the sentence, rejecting defendant’s constitutional challenge, and finding that the sentence did not constitute an abuse of discretion. “Given the shocking and vile conduct underlying these criminal convictions,” defendant did not establish “gross disproportionality.” Not only did defendant possess large quantities of child pornography, but he also created depictions of his own sexual exploitation, molestation, and abuse of a four-year-old child. To make matters worse, defendant had a serious communicable disease, and was aware that his sexual contact with the child could have caused the child to contract this disease. The sentence, which fell within his guideline range, was not unreasonable, even given defendant’s grave medical condition and diminished life expectancy. U.S. v. Cobler, 748 F.3d 570 (4th Cir. 2014).
4th Circuit upholds 1,260-month sentence for defrauding Department of Defense. (742) Defendant masterminded a multi-million scheme to defraud the Department of Defense by supplying defective and nonconforming spare parts for military aircraft, vehicles, and weapons systems. Many of the parts were “critical application items” – whose failure could jeopardize the lives of military personnel and the success of military operations. The Fourth Circuit held that defendant’s 1,260-month sentence was substantively reasonable. The trial court closely considered the § 3553(a) sentencing factors, and chose the 1,260-month sentence based on the serious nature of the offense, defendant’s dangerous character, and the need to protect the public. The court observed that defendant’s scheme “was a calculated, sophisticated theft” that exposed the men and women of the armed services to serious risk of injury, or worse. As to defendant’s character, the court emphasized that he possessed “absolutely no conscience.” Also, the court found that if defendant were released that day, “he would think of his next scheme before sunset…. and would start to put it in action tomorrow.” U.S. v. Day, 700 F.3d 713 (4th Cir. 2012).
4th Circuit affirms guideline sentence despite defendant’s claim of rehabilitation. (742) Defendant challenged his 100-month sentence as procedurally and substantively unreasonable, arguing that the district court did not take into consideration his rehabilitation. The Fourth Circuit held that defendant’s sentence was procedurally and substantively reasonable. The district court stated that it had considered the advisory sentencing guidelines range and carefully considered the § 3553(a) factors. It took into consideration the fact that defendant had not manufactured a substantial amount of drugs and that he had less control over the manufacturing because it occurred at another conspirator’s residence. The court also looked at the fact that defendant’s family said he was a good parent and that he had suffered from mental health problems. The court reviewed the psychological evaluation contained in the record. Taking these factors into consideration, the court found that a sentence within the guideline range reflected the statutory factors and was appropriate. U.S. v. Worley, 685 F.3d 404 (4th Cir. 2012).
4th Circuit upholds court’s decision not to grant greater variance to terrorism defendant. (742) Defendant was convicted of providing material support to a foreign terrorist organization. Although his guideline range was 360 months to life, the court varied downward to 180 months, the statutory maximum for a single material support conviction. Defendant nonetheless argued that the court committed procedural error by sentencing him without weighing all of the §3553(a) factors, and without providing him an opportunity to address them. The Fourth Circuit found no procedural error. Although the court did not specifically elicit remarks from defendant’s counsel, it was apparent that the lawyer had multiple opportunities to address the proper sentence, including the §3553(a) factors. And, if the court somehow contravened Rule 32(i)(4)(A)(i), defendant could not show that such an error affected his substantive rights. By the final sentencing hearing, the court was fully aware of the mitigating circumstances and of defendant’s various objections to its factual findings. Likewise, the district court, in fashioning its variance sentence, adequately considered the §3553(a) factors. U.S. v. Chandia, 675 F.3d 329 (4th Cir. 2012).
4th Circuit approves 96-month sentence for possession of loaded firearm on city street. (742) Defendant was convicted of being a felon in possession of a firearm after he was caught with a loaded handgun on a Baltimore street. He argued that his 96-month sentence was substantively unreasonable, due to mitigating factors and the comparatively innocuous nature of his conduct. The Fourth Circuit found that under the facts of the case, the district court’s sentence fell well within the range of reasonable punishment. After illegally obtaining a stolen firearm, defendant carried this loaded weapon on a Baltimore street before handing it to a co-defendant through a car window. Defendant’s previous encounters with the law had had little or no deterrent effect. The supposed mitigating circumstances were neither supported nor verified. U.S. v. Taylor, 659 F.3d 339 (4th Cir. 2011).
4th Circuit affirms within-guideline sentence as reasonable. (742) Defendant was convicted of conspiring to defraud the United States, and aiding and assisting in tax fraud. He argued that his 108-month sentence was substantively unreasonable, presenting evidence that the average prison term for defendants who are convicted in cases involving between $2.5 and $5 million was 46.6 months. He also pointed out that co-conspirator Ross was sentenced to five years’ probation, co-conspirator Johnston was sentenced to 37 months in prison, and co-conspirator Decker was given immunity in exchange for his testimony. The Fourth Circuit held that the within-guidelines sentence was substantively reasonable. The court did not rely on the statistics advanced by defendant, which were drawn from other cases, but instead conducted an individualized assessment of defendant’s circumstances in the case based on factors identified in the guidelines and 18 U.S.C. § 3553(a). After considering all the § 3553(a) factors in depth, the court concluded that a sentence within the guideline range was appropriate. There was no abuse of discretion. U.S. v. Thorson, 633 F.3d 312 (4th Cir. 2011).
4th Circuit rejects sentencing disparity claim where co-conspirator testified against defendant. (742) Defendant was convicted of theft of government property. DuBois, who was higher up the criminal ladder than defendant, and whose share of the profits was about ten times greater than defendant’s, was sentenced to 36 months, while defendant was sentenced by a different judge to 48 months. Moreover, defendant argued that DuBois perjured himself at defendant’s trial by attempting to minimize his culpability in ways that were inconsistent with his plea agreement. Defendant acknowledged that DuBois’s sentence was the result of DuBois’s cooperation at defendant’s trial, but insisted “providing assistance” must necessarily mean truthful assistance. Thus, defendant contended that the disparity between his sentence and Dubois’s sentence was unwarranted. The Fourth Circuit disagreed. Dubois pleaded guilty, assisted the government in the investigation, and testified to the government’s satisfaction in defendant’s trial. Defendant was in no position to complain about the government’s evaluation of DuBois’s assistance. U.S. v. Jeffery, 631 F.3d 669 (4th Cir. 2011).
4th Circuit finds no plain error where court found defendant “should never see the light of day.” (742) Defendant challenged the substantive reasonableness of his sentence on appeal, claiming that the district court considered an improper factor (the exercise of his right to trial, which caused the victim to have to testify). Because this claim was not addressed in any of defendant’s earlier arguments in favor of a below-Guidelines sentence, the Fourth Circuit reviewed the argument for plain error. The panel concluded that defendant did not show that the district court’s error affected his substantial rights. The district court’s sentence was within both the statutory maximum and the advisory guideline range. The court considered and addressed the § 3553(a) factors and It emphasized that it would impose the identical sentence even if defendant had a lower guidelines range because it would have varied upward to life imprisonment due to the nature of defendant’s conduct, The court commented that defendant “should never see the light of day.” Defendant could not show that he would have received a lower sentence had the district court not also mentioned the victim suffered further harm by testifying at trial. U.S. v. Hargrove, 625 F.3d 170 (4th Cir. 2010).
4th Circuit rules that any procedural error in perjury case was harmless. (742) Defendant pled guilty to fraudulently making a declaration under penalty of perjury in a bankruptcy case. The court sentenced her to 15 months, at the low end of her advisory range, rejecting her request for a sentence of probation. Defendant argued that the district court did not offer sufficient reasons to show that it made an individual assessment of the specific circumstances of her case in light of the relevant factors under 18 U.S.C. § 3553(a). The Fourth Circuit ruled that even if the court’s explanation was insufficient, any error was harmless. The record left little doubt that the district court considered defendant’s arguments for a below-guideline sentence in the context of applying the § 3553(a) factors. The court specifically noted on the record that it had read defendant’s letter and that of her cousin. The court listened to the parties’ statements and arguments before seeking assistance from the probation officer. Finally, the court stated that it had arrived at the 15-month sentence by considering all of the § 3553(a) factors and emphasized the need for specific and general deterrence. U.S. v. Boulware, 604 F.3d 832 (4th Cir. 2010).
4th Circuit upholds mid-Guidelines sentence for child porn defendant. (742) Defendant was convicted of transporting and possessing child pornography. At sentencing, he argued for a downward variance from the advisory guideline range of 168-210 months. The government sought an upward variance, urging the court to impose the maximum statutory penalty of 20 years in prison. The district court denied both parties’ request, imposing a 192-month sentence. Despite defendant’s argument on appeal that this sentence was “insane,” the Fourth Circuit affirmed. The sentence fell within the middle of defendant’s advisory guideline range. Defendant made no effort to demonstrate his sentence was unreasonably excessive compared to the sentences of other defendants in the same criminal history category convicted of crimes in the same offense level. . U.S. v. Bynum, 604 F.3d 161 (4th Cir. 2010).
4th Circuit finds adequate explanation for within-Guidelines drug-trafficking sentence. (742) Defendant pleaded guilty to possessing methamphetamine and cocaine with intent to distribute. His guideline range was 262-326 months. At sentencing, defendant did not object to the presentence report and asked for a sentence at the low end of the guideline range. The district court sentenced him to 326 months, explaining that it had considered the Guidelines and the factors set forth in 18 U.S.C. § 3553(a). On appeal, defendant argued that the district court failed adequately to explain its reasons for imposing sentence. The Fourth Circuit found that the district court had not committed plain error, noting that when a court imposes a sentence within the Guidelines range it need not provide an “elaborate or lengthy” explanation. U.S. v. Hernandez, 603 F.3d 267 (4th Cir. 2010).
4th Circuit reverses sentence of probation for child pornography defendant. (742) Defendant pled guilty to one count of possessing child pornography. His advisory guideline range was 41-51 months. Both defense and prosecution urged the district court to impose a 41-month sentence, but the court varied downward to sentence defendant to five years of probation. The Fourth Circuit found the sentence was procedurally unreasonable in this “mine run” case. The court’s reasons for the probationary sentence were fairly common-place. Defendant’s lack of criminal history was taken into account by the Guidelines. The court also listed defendant’s honorable discharge from the military, his effort at rehabilitation, and his enrollment in college as additional sentencing factors. Given these seemingly common circumstances, the court erred by failing to adequately explain why a term of imprisonment was not warranted in light of applicable policy statements. U.S. v. Morace, 594 F.3d 340 (4th Cir. 2010).
4th Circuit reverses substantial upward variance that was not adequately explained. (742) The PSR calculated a guideline range of 168-210 months, but based on the 120-month statutory maximum, recommended a 120-month sentence. At sentencing, the court granted defendant’s unopposed motion to remove the PSR’s armed career criminal designation, which lowered defendant’s offense level and resulted in a guideline range of 51-63 months. The court, however, varied upward to impose a sentence of 101 months, a sentence nearly twice as long as the low end of the advisory Guidelines range. The court did not address any of the arguments raised by defense counsel against this variance. Defendant preserved his objection to the court’s explanation by asking the court to consider a sentence either at the bottom end of the advisory range or perhaps even lower. The Fourth Circuit found that the district court committed significant procedural error in sentencing defendant. The court provided no individualized explanation for its substantial variance from the Guidelines, and did not address defendant’s non-frivolous reasons for imposing a different sentence. U.S. v. Lynn, 592 F.3d 572 (4th Cir. 2010).
4th Circuit says defendant failed to preserve challenge to court’s consideration of § 3553(a) factors. (742) Defendant’s PSR calculated a guideline range of 84-105 months, but in response to an unopposed objection by defendant at sentencing, the court adjusted the range to 57-71 months. When counsel asked defendant if he had any further objections, defendant said no. The court then asked to “hear from” defense counsel, who stated that the PSR fairly set out the circumstances of defendant’s life, and pointed out that defendant’s prior convictions occurred mostly when he was young. The court asked defendant if he wanted to add anything before imposition of sentence. When defendant declined, the court imposed a sentence of 57 months, at the bottom of the guideline range. The Fourth Circuit held that defendant failed to preserve his objection to the court’s consideration of the § 3553(a) factors and explanation of the sentence imposed. Thus, the panel reviewed for plain error, and found none. U.S. v. Lynn, 592 F.3d 572 (4th Cir. 2010).
4th Circuit rejects probation for tax evader based on ability to repay tax liability. (742) Defendant pled guilty to tax evasion. The government sought a sentence within his advisory sentencing range of 24-30 months. However, the district court was concerned with making defendant pay his tax debt, so it sentenced him to four months probation, and 18 months house arrest with work release. The Fourth Circuit reversed, finding the sentence both procedurally and substantively unreasonable. The district court failed to consider the relevant policy statements issued by the Sentencing Commission, which made it clear that the Commission viewed tax evasion as a serious crime and that too many probationary sentences were imposed for tax crimes. The Commission felt that general deterrence should be a primary consideration when sentencing in tax cases. Finally, the sentence was substantively unreasonable because the court improperly focused on defendant’s ability to pay restitution. The district court’s approach meant that rich tax-evaders would avoid prison, but poor tax-evaders would go to jail. Such an approach based on an offender’s economic status, is impermissible. U.S. v. Engle, 592 F.3d 495 (4th Cir. 2010).
4th Circuit reverses where court failed to give particularized basis for sentence. (742) Defendant pled guilty to being a felon in possession of a firearm. His advisory Guidelines range was 37-46 months, but the court sentenced him to probation. The Fourth Circuit reversed, because the district court did not provide an individualized rationale for the downward variance. The court offered a variety of statements and suggested that it believed that a Guideline sentence would “over punish” defendant, but did not explain why. The court summarized the four purposes in § 3553(a)(2) but did not explain how those purposes applied to defendant. Although defendant pointed to numerous facts that allegedly supported a below-Guideline sentence, the panel refused to presume that the district court adopted his arguments. Regardless of whether a court imposes an above, below, or within-Guidelines sentence, it must place on the record an individual assessment based on the particular facts of the case before it. U.S. v. Carter, 564 F.3d 325 (4th Cir. 2009).
4th Circuit says downward variance for al-Qaeda member was abuse of discretion. (742) Defendant was an American convicted of nine charges relating to his affiliation with an al-Qaeda terrorist cell in Saudi Arabia, and its plans to carry out a number of terrorist attacks in this country, including a plan to assassinate the President. The advisory guidelines called for a sentence of life imprisonment, but the district court imposed a sentence of 360-months’ imprisonment and 360 months of supervised release. The Fourth Circuit reversed, holding that the court abused its discretion when it compared defendant’s case to those of John Walker Lindh, Timothy McVeigh and Terry Nichols. Lindh received a 20-year sentence for fighting for the Taliban in Afghanistan. As a front-line soldier, the magnitude of the threat posed by Lindh was limited to those soldiers within his line of sight, while defendant sought to inflict massive civilian casualties and to assassinate the President. Lindh also cooperated with prosecutors. Defendant refused to cooperate, did not express remorse, and stood convicted of crimes carrying a mandatory minimum of 20 years. The court also erred in comparing defendant to Oklahoma City bombers Timothy McVeigh and Terry Nichols. The fact that defendant never injured any people should not trivialize the severity of his offenses. The lack of completion was due to his arrest, and not to any change of heart. Finally, while the Oklahoma City bombing was heinous, to require a similar infliction of harm before imposing a similar sentence would raise the bar too high. U.S. v. Abu Ali, 528 F.3d 210 (4th Cir. 2008).
4th Circuit finds court properly understood authority to impose non-guideline sentence. (742) Defendant was convicted of methamphetamine charges, and received a 188-month sentence, a sentence at the bottom of his advisory guideline range. The Fourth Circuit held that the sentence was reasonable, and the district court properly understood its authority to impose a sentence outside of the advisory guideline range. Defendant selectively quoted from the sentencing record comments by the court that favored his argument, but omitted the portion of the sentencing record that clearly cut against his claim. The court noted that after determining the guideline range, it had to make “a judgment about whether there are particular circumstances concerning your case that a sentence less than 188 months would be sufficient and not greater than necessary … to impose proper punishment.” The court decided it was important to impose a sentence that was “consistent with that imposed in other courts for people who are involved with dealing in methamphetamine,” and therefore gave defendant a sentence at the lowest end of the guideline range. U.S. v. Go, 517 F.3d 216 (4th Cir. 2008).
5th Circuit upholds 481-month sentence as substantively reasonable. (742) Defendant was convicted of drug and firearms charges, and sentenced to 481 months. His guideline range was 121-151months, but he was also subject to a 30-year minimum sentence: not less than five years for possession of a firearm in furtherance of a drug-trafficking crime and not less than twenty-five years for a second conviction on that charge. The Fifth Circuit held that the 481-month sentence was substantively reasonable. First, his sentence was within his 121-151 month guideline range. He was sentenced to 121 months, to be served consecutively with the mandatory 30-year sentence. Thus, his sentence had a presumption of reasonableness, and defendant failed to rebut this presumption. The district court considered the § 3553(a) factors, and noted that defendant was “a person that should not be returned to the streets any time soon because [he is] … a menace to [him] self and to society.” There was no evidence that the district court gave undue weight to any factors, failed to consider factors that it should have, or made a clear error in balancing sentencing factors. U.S. v. Harris, 740 F.3d 956 (5th Cir. 2014).
5th Circuit says failure to explain within-guideline sentence was error but not plain error. (742) Defendant pled guilty to child pornography charges. His PSR recommended a sentencing guideline range of 30-37 months. Defendant did not object to the PSR, but filed a 169-page sentencing memorandum with the court, contending that a probationary sentence was appropriate given his educational and professional achievements, religious faith, familial ties, and history of back pain and surgeries. The court sentenced defendant to 30 months, but did not explain its sentence. Defendant did not object after he was sentenced, but argued on appeal that the court erred in failing to respond to his request for a non-guidelines sentence. The Fifth Circuit agreed with defendant that the court’s failure to provide any explanation of reasons supporting defendant’s sentence amounted to clear error. However, the error did not constitute reversible plain error because defendant was sentenced to a within-guidelines sentence of 30 months, and defendant failed to demonstrate how a fuller explanation would have altered his sentence. U.S. v. Rouland, 726 F.3d 728 (5th Cir. 2013).
5th Circuit upholds sentence at bottom of range for conspiracy to rob armored car. (742) Defendant was convicted of Hobbs Act charges related to a conspiracy to rob an armored car. The court sentenced him to 84 months on two conspiracy charges, and a consecutive 60 months on a firearms charge, for a total of 144 months, which was the bottom of the guideline range. The Fifth Circuit rejected defendant’s claim that his sentence was unreasonably high. Defendant minimized the severity of his offenses, noting that no actual victim was harmed and arguing that he was led along by his co-conspirators and law enforcement agents. However, the court found that these arguments did not overcome the presumption of reasonableness of a guideline sentence, “given that [defendant] was arrested while proceeding to a location at which he fully expected to participate in a potentially highly-dangerous armed robbery of an armored truck.” U.S. v. Stephens, 717 F.3d 440 (5th Cir. 2013).
5th Circuit holds that child porn sentence was substantively reasonable. (742) Defendant pled guilty to multiple child pornography counts, and was sentenced to 20 years, which fell within his guideline range. He argued that his culpability was mitigated by his personal characteristics and history, specifically his diagnosed behavioral and learning disorders as a child, and his Army service in Iraq. However, defendant presented these facts to the district court. Despite these mitigating factors, the district court noted that defendant “show[ed] a lot of characteristics that really concern[ed]” her. The Fifth Circuit upheld the guideline sentence, finding no reason to conclude that the district court abused her discretion in applying and balancing the sentencing factors. U.S. v. Jenkins, 712 F.3d 209 (5th Cir. 2013).
5th Circuit approves child porn sentence but rejects lifetime sentence of supervised release. (742) Authorities found on defendant’s phone a video of a minor female engaged in a sexually explicit act. The minor was a 15-year old girl who had met defendant on a social networking website, where she posted a profile claiming to be 20. The two talked and texted regularly, and although they had never met in person, the minor considered defendant her boyfriend. Defendant pled guilty to receipt of child pornography and was sentenced to 170 months. The Fifth Circuit upheld the sentence as reasonable. The court allowed the parties to discuss a number of pertinent issues, such as defendant’s assertion that the minor “had done this before.” The sentence was also substantively reasonable. It fell within a properly calculated guideline range, and was entitled to a presumption of reasonableness. However, the court erred by automatically imposing a lifetime sentence of supervised release without engaging in any analysis of the circumstances surrounding the crime. The judge, by her own admission, never considered the possibility of anything less than lifetime supervision. U.S. v. Alvarado, 691 F.3d 592 (5th Cir. 2012).
5th Circuit affirms partially concurrent guideline sentence. (742) Defendant was involved in a conspiracy with Dallas public officials to extort money and favorable contracts from low-income housing developers. The district court sentenced defendant to 57 months, of which 12 months was concurrent with a 125-month sentence defendant had received for an unrelated mortgage fraud conviction. Defendant argued for the first time on appeal that it was unreasonable for the court to impose 45 months of his sentence to run consecutively to a previous sentence for a separate, unrelated crime. The Fifth Circuit held that the guideline sentence was reasonable. Under § 5G1.3, in a case involving an undischarged term of imprisonment, the court may impose a sentence to run concurrently, partially concurrently, or consecutively to the prior undischarged sentence. Defendant had a guideline range of 57-71 months, and a statutory maximum of 20 years. The court’s 57-month sentence was at the bottom of the advisory range. The court recognized defendant’s good behavior in prison by allowing 12 months to run concurrently with his earlier sentence. U.S. v. Rashad, 687 F.3d 637 (5th Cir. 2012).
5th Circuit says court plainly erred in relying on defendant’s rehabilitative needs to increase sentence. (742) Defendant engaged in sexually explicit conversations with minors over the Internet and by text messaging. He pleaded guilty to two counts of using a facility of interstate commerce to attempt to coerce a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b). The mandatory minimum sentence under § 2422(b) is 120 months (10 years), and the maximum is life imprisonment. The district court noted that defendant was “sick in the head,” “needs help badly,” and “is in need of education pertaining to his problems and he needs medical care and treatment.” The court then sentenced him to 240 months per count, to run consecutively, for a total of 480 months. The Fifth Circuit ruled that in light of Tapia v. U.S., 131 S.Ct. 2382 (2011), the district court’s reliance on defendant’s need for treatment in determining the length of his sentence was impermissible. Defendant did not challenge his sentence on this ground below, which was understandable since Tapia was not decided until after he was sentenced. Nonetheless, the panel ruled that the error was plain. U.S. v. Broussard, 669 F.3d 537 (5th Cir. 2012).
5th Circuit affirms guideline sentence for illegal reentry as reasonable. (742) Defendant was convicted of illegal reentry after deportation, and was sentenced to 48 months. The Fifth Circuit rejected defendant’s argument that the court inadequately explained its sentence. The district court had before it at sentencing the PSR and defendant’s objections to the PSR, as well as defendant’s sentencing memorandum that included the exhibits that defendant contended demonstrated his entitlement to a below-guidelines sentence. In rendering its sentence, the district court noted that it had considered defendant’s arguments, and concluded that “a sentence at the mid of the guideline range [was] needed to promote respect for the law and deterrence.” The statement of reasons in this case did not differ significantly from statements that have been upheld in similar cases. The 48-month sentence, which fell within the middle of defendant’s 41-51-month guideline range, was also substantively reasonable. Defendant’s disagreement with the sentence was not sufficient to rebut the presumption of reasonableness that attaches to a within-guidelines sentence. U.S. v. Sanchez, 667 F.3d 555 (5th Cir. 2012).
5th Circuit rejects challenges to drug sentence at top of guideline range. (742) Defendant was convicted of drug charges, and sentenced to 235 months. He challenged an increase under 21 U.S.C. § 841(b)(1)(A), which requires a mandatory minimum 20 years if the defendant has a prior conviction for a felony drug offense. The Fifth Circuit found no error, because the district court did not actually apply § 841(b)(1)(A). Although the government had proven the facts necessary for the enhancement, the district court did not apply it “out of an abundance of caution.” Instead, the court sentenced defendant to 235 months, less than the 20-year minimum under § 841(b)(1)(A). The 235-month sentence was at the top of the guideline range of 188-235 months. Within-guidelines sentences enjoy a presumption of reasonableness. The fact that co-defendant Guerra received a three-year sentence did not make defendant’s sentence unreasonable. Guerra cooperated with DEA agents and accepted responsibility by pleading guilty. U.S. v. Ochoa, 667 F.3d 643 (5th Cir. 2012).
5th Circuit upholds reasonableness of guideline sentence for transportation of child porn. (742) Defendant pled guilty to one count of transportation of child pornography, and was sentenced to 220 months, which was within the advisory guideline range and less than the statutory maximum of 240 months. The Fifth Circuit rejected defendant’s argument that the guideline sentence was not substantively reasonable. The panel disagreed with U.S. v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010), in which the Second Circuit refused to apply a presumption of reasonableness to sentences under the child pornography guidelines. Nonetheless, a court will not blindly approve a within-guidelines sentence, even though it carries a presumption of reasonableness. Here, the district court expressly considered and rejected the argument that those who merely possess or transport child pornography should not receive the same sentences as those who have actual sexual contact with a child. The enhancements that defendant received, for use of the Internet, for the number of images, for material involving a prepubescent minor, and for material that portrayed sadistic or masochistic conduct, all had a rational basis. U.S. v. Miller, 665 F.3d 114 (5th Cir. 2011).
5th Circuit holds that staleness of prior conviction did not destroy presumption of reasonableness for guideline sentence. (742) Defendant pled guilty to illegal reentry after deportation. He argued that his 27-month guideline sentence was substantively unreasonable because it improperly considered a “stale” prior conviction. He contended that the presumption of reasonableness should not apply to his within-guidelines sentence on appellate review because the guideline upon which it was based, § 2L1.2, was flawed and was not the result of empirical evidence or study. The Fifth Circuit held that the staleness of a prior conviction used in the proper calculation of a guideline sentence does not render a sentence substantively unreasonable, and does not destroy the presumption of reasonableness that attaches to such sentences. The district court did not abuse its discretion by imposing a 27-month sentence. U.S. v. Rodriguez, 660 F.3d 231 (5th Cir. 2011).
5th Circuit upholds refusal to depart based on future elimination of “recency” increase. (742) The version of the guidelines in effect when defendant was sentenced called for a two-point “recency” enhancement under § 4A1.1(e), which applied if the offense occurred less than two years after he was released from imprisonment. However, by the time he was sentenced on September 16, 2010, the Sentencing Commission had submitted an amendment to Congress to eliminate the “recency” points. The amendment became effective November 1, 2010, but was not made retroactive. Defendant argued that because the Sentencing Commission determined that the “recency” enhancement “only minimally im proves” the guidelines’ ability to predict the defendant’s risk of recidivism, he should have received a two-point downward variance. The district court rejected this argument, based on defendant’s extensive criminal history. On appeal, the Fifth Circuit found no abuse of discretion. Defendant did not show that his sentence was substantively unreasonable. U.S. v. Scott 654 F.3d 552 (5th Cir. 2011).
5th Circuit says court’s consideration of defendant’s five prior arrests violated due process. (742) Defendant fled from police as they approached him, discarding a loaded semi-automatic pistol as he ran. He pled guilty to being a felon in possession of a firearm. In addition to three prior criminal convictions, defendant’s PSR reported that defendant had been arrested without conviction at least 12 other times since the age of 15. In five of those arrests, defendant was charged with resisting arrest, obstructing an officer, or battery of an officer. At sentencing, the court noted defendant’s record of prior arrests and observed that there were “multiple instances where it is reported that not only did [defendant] not comply [with the arresting officers], but, in fact, [he] resorted to violence against officers who were simply trying to do their job.” The court referenced the arrests yet again when it formally explained the basis for defendant’s sentence, although its principal focus was on the circumstances of the current offense. The Fifth Circuit held that the sentencing court’s consideration of defendant’s five prior arrests violated due process. Since it was unclear whether the district court would have imposed the same sentence absent the arrest, the case was remanded. U.S. v. Johnson, 648 F.3d 273 (5th Cir. 2011).
5th Circuit rejects challenge to reasonableness of sentence at bottom of guideline range. (742) Defendant was convicted of a variety of charges relating to her work as a medical assistant in a private medical practice that fraudulently obtained large amounts of hydrocodone. She received a 21-month sentence that fell at the bottom of her advisory range of 21-27 months. The Fifth Circuit held that the sentence was substantively reasonable. Defendant submitted that she was remorseful for her conduct, was addicted to hydrocodone at the time of the conspiracy and had sought treatment, that she did not have a history of criminal behavior, that she had two minor children who would be harmed by her incarceration, that she accepted responsibility, and desired rehabilitation. However, these arguments did not rebut the presumption of reasonableness that an appellate court must attach to her Guidelines sentence. Defendant did not point to any specific errors of judgment in the district court’s balancing of the § 3553(a) factors. U.S. v. McElwee, 646 F.3d 328 (5th Cir. 2011).
5th Circuit says defendant cannot be made eligible for safety valve by reducing criminal history. (742) The PSR noted that defendant had two criminal history points, and concluded that he was not eligible for safety valve relief from the ten-year mandatory minimum. See 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The district court, however, found that defendant’s criminal history was overrepresented, and reduced his two criminal history points to one. The court later sentenced defendant to 70 months in prison, opining that the minimum sentence was “unjust.” The Fifth Circuit held that defendant’s two criminal history points made him ineligible for safety valve relief, and the district court had no discretion to sentence him below the mandatory minimum. Amendments to § 5C1.2(a) make clear that a defendant cannot have more than one criminal history point “as determined under the sentencing guidelines before application of subsection of 4A1.3″ The district court lacked authority to apply the safety valve based on its finding that his criminal history overstated the seriousness of his past criminal conduct. U.S. v. Jasso, 634 F.3d 305 (5th Cir. 2011).
5th Circuit finds that co-defendants who received shorter sentences were not similarly situated. (742) Defendant argued that his 240-month drug conspiracy sentence was unreasonable because it was substantially greater than the sentences of co-defendants who were more culpable than he was. The Fifth Circuit held that defendant did not show that the district court abused its discretion. Section 3553(a)(6) only requires courts to consider the need to avoid unwarranted disparities between similarly situated defendants nationwide; it does not require the district court to avoid sentencing disparities between co-defendants who are not similarly situated. Defense counsel acknowledged that co-defendants Silva or Hooper likely received a downward departure for substantial assistance. Defendant did not show he was similarly situated to Silva or Hooper. The court’s statement that defendant’s sentence was “in keeping with the horizontal equity among the various defendants” showed that it sought to avoid an unwarranted sentence disparity, and it imposed a sentence that it believed was appropriate based on the co-defendants’ sentences and other § 3553(a) factors. U.S. v. Guillermo-Balleza, 613 F.3d 432 (5th Cir. 2010).
5th Circuit rules court properly refused to depart based on defendant’s caregiver status. (742) Defendant was convicted of fraud charges. She argued that the district court erred in failing to consider whether she was entitled to a downward departure based on her caregiver status. Sentencing took place on August 21, 2008, more than two years after trial. Defendant had recently given birth to a daughter with Turner’s syndrome, and requested a departure for that reason. The court said defendant’s decision to conceive and carry a child to term, despite her imminent incarceration, “was a personal choice …. I cannot change my sentence for that reason. The Fifth Circuit held that the district court did not err in finding defendant was not entitled to a downward departure based on her caregiver status. The court’s statement did not indicate misapprehension of its authority to give defendant the sentence it deemed proper. The court also stated to defendant” “I’m going to give you the sentence that I think is the right sentence regardless of the Guidelines.” The court explicitly acknowledged that the Guidelines were not binding, and that the court had the authority to deviate if it so chose. U.S. v. Valencia, 600 F.3d 389 (5th Cir. 2010).
5th Circuit upholds 135-month within-Guidelines sentence for mortgage fraud scheme. (742) Defendant was convicted of wire fraud, bank fraud, and money laundering based on his execution of a mortgage fraud scheme. Defendant purchased houses, then resold them at fraudulently inflated prices to straw purchasers who could not pay the mortgage. At sentencing, the district court imposed a within-Guidelines sentence of 135 months. On appeal, defendant argued that the sentence was substantively unreasonable because other white collar defendants had received shorter sentences. The Fifth Circuit found that defendant had not overcome the presumption that a within-Guidelines sentence was reasonable and upheld the sentence. U.S. v. Cooks, 589 F.3d 173 (5th Cir. 2009).
5th Circuit says Kimbrough did not remove presumption of reasonableness for non-empirically-grounded Guidelines. (742) Defendant pled guilty to illegal reentry and received a 46-month sentence, at the low-end of his advisory guideline range. He had a previous drug felony, which led to a 16-level enhancement and dramatically increased his guideline range. The Fifth Circuit rejected defendant’s argument that factoring the prior crime into both his criminal history score and his offense level resulted in unjust “double-counting” of the prior crime. The panel also disagreed with defendant’s contention that after the Supreme Court’s decision in Kimbrough v. U.S., 552 U.S. 85 (2007), the appellate presumption of reasonableness for within-guideline range sentences only applies to empirically-grounded provisions of the Guidelines. Although Kimbrough recognized that certain Guidelines do not take account of empirical data and national experience, “absent further instruction from the Supreme Court, we cannot read Kimbrough to mandate wholesale, appellate-level reconception of the role of the Guidelines and review of the methodologies of the Sentencing Commission.” U.S. v. Duarte, 569 F.3d 528 (5th Cir. 2009).
5th Circuit says decision to charge separate firearm offense did not make sentence unreasonable. (742) Defendant was convicted of drug charges and possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). He argued that the Guidelines are “internally inconsistent” because the conduct of possessing a firearm in furtherance of a drug trafficking crime can either be prosecuted as an independent crime under § 924(c) or as a two-level enhancement under the drug guideline, U.S.S.G. § 2D1.1(b)(1). He argued that his applicable guideline range would have been 30-37 months if the firearm had only been considered as an enhancement rather than prosecuted as a separate offense. The 5th Circuit rejected this argument, noting that the government has great discretion in deciding whether, and which offenses to prosecute. The fact that defendant might have been subject to a less severe punishment if the government had made a different prosecutorial decision did not make his sentence infirm. The Guidelines recognize § 924(c)’s mandatory minimum punishment and they specifically account for the possibility that the same conduct could be punished either as a substantive count or as an enhancement. U.S. v. Molina, 530 F.3d 326 (5th Cir. 2008).
5th Circuit says guideline sentence for illegal reentry was reasonable. (742) Defendant pled guilty to illegally reentering the country after deportation, and received a 51-month sentence, which fell within the middle of his advisory guideline range. He requested a below-guideline sentence based on several factors: (1) his motivation for reentry was to see his ailing father before he died, (2) cultural assimilation (he had lived in the United States from the age of three months until he was deported at the age of 51), (3) the 16-level enhancement he received overstated the seriousness of his offense, and (4) the unwarranted sentencing disparity caused by the lack of a fast-track program. The district court considered and rejected these arguments as a basis for a non-guideline sentence. Because defendant was sentenced within a properly calculated guideline range, the Fifth Circuit found the sentence entitled to a presumption of reasonableness and affirmed. U.S. v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008).
5th Circuit holds that 87-month sentence for illegal reentry was not unreasonable. (742) Defendant pled guilty to illegally reentering the country after deportation. He argued that his 87-month sentence, which fell within his properly calculated guideline range, was unreasonable. However, his only argument to rebut the presumption of reasonableness was that the crime of illegal reentry into the U.S. after removal is just simple trespass. The Fifth Circuit rejected the argument. Congress considers illegal reentry into the U.S. after a conviction for an aggravated felony an extremely serious offense punishable by up to 20 years in prison. Given this, his 87-month sentence was not unreasonable. U.S. v. Juarez-Duarte, 513 F.3d 204 (5th Cir. 2008).
5th Circuit finds court plainly erred in basing variance on average sentence imposed on other offenders. (742) Defendant pled guilty to possession of child pornography. Although his guideline range was 97-120 months, defendant argued that a sentence within the advisory range would constitute an “unwarranted disparity” between his sentence and those of other offenders sentence under § 2G2.2. His argument was based on statistics from the Sentencing Commission’s 2006 report that showed an average term of 65 months and a median sentence of 51 months for criminals sentenced under § 2G2.2. The Fifth Circuit held that the average sentence imposed on other offender did not justify a downward variance. Section 3553(a)(6) makes plain that an unwarranted disparity is to be avoided between defendants with “similar records who have been found guilty of similar conduct.” Here, it was apparent that the statistics in the report said nothing about the similarity of defendant’s record or his conduct when compared to those sentenced under § 2G2.2 that collectively compose the national averages. The error was plain, and affected the government’s substantial right to have a proper sentence imposed on defendant. U.S. v. Willingham, 497 F.3d 541 (5th Cir. 2007).
5th Circuit finds court failed to adequately articulate reasons for above-guideline sentence. (742) Defendant constructed a homemade bomb and mailed it to an Air Force personnel manager involved in discharging him from the Air Force. The bomb detonated, and the manager suffered numerous injuries. Defendant was convicted of four counts relating to the bombing, including a count under 18 U.S.C. § 924(c)(1) of use of a destructive device in relation to a crime of violence. The court sentenced defendant to concurrent 262-month terms on the guidelines counts, and a consecutive, non-guidelines term of 720 months for the § 924(c)(1) count. The court found that the guidelines did not take into consideration the seriousness of the offense, since the use of a bomb was an “act of terror.” The Fifth Circuit reversed. The court based the non-guidelines sentence primarily on the fact that this was a bomb-related crime. The court did not point to specific facts from the crime, other than the use of a bomb, to explain why 60 years, as opposed to the guideline recommendation of 30 years, was appropriate. While the court did not abuse its discretion in deciding to depart, the degree of departure here was substantial and “there must be more than mere lip service to the § 3553(a) factors to justify such a departure.” U.S. v. Walters, 490 F.3d 371 (5th Cir. 2007).
6th Circuit approves guideline sentence for operator of pain management clinic. (742) Defendant and her husband were convicted of various crimes associated with the operation of several pain-management clinics in Ohio. The district court imposed a 210-month sentence, which fell within defendant’s recommended guidelines range, and thus had a rebuttable presumption of reasonableness on appeal. Nonetheless, defendant argued that her sentence was unreasonable because the court considered “unrelated criminal enterprise[s]” when choosing her sentence. The Sixth Circuit found no error. At sentencing, a government lawyer noted that defendant’s clinics were, like other pill mills, “well-known” among local addicts. However, nothing in the record suggested that the district court paid this offhand comparison to other clinics any heed. The court instead considered the nature and circumstances of defendant’s offense, including the fact that her clinic “was a primary source for illegal distribution of pain medication in Southern Ohio, [an] area … saddled with high rates of prescription drug abuse and addiction.” U.S. v. Sadler, 750 F.3d 585 (6th Cir. 2014).
6th Circuit upholds below guideline sentences for investment fraud. (742) Defendants were convicted of fraud arising out of a scheme to defraud investors in their speculative resource drilling company. The Sixth Circuit held that defendants’ below-guidelines sentences were reasonable. For the first defendant, the district court concluded that a sentence within the guideline range of 262-327 months was unnecessary, and instead imposed a sentence of 120 months. The court concentrated on the seriousness of the offense and the need to deter future conduct. Hundreds of victims had their trust violated by defendant, which the district court concluded warranted substantial punishment. The court could easily have sentenced defendant within his applicable guidelines range, so the actual 120-month sentence, which was 142 months below the low end of that range, could hardly be said to be substantively unreasonable. The district court also granted the second defendant a downward variance from his guideline range of 135-168 months, and sentenced him to 60 months. The need for a 60-month sentence was explained by detailing the seriousness of the second defendant’s offense, including his abuse of investor trust. U.S. v. Smith, __ F.3d __ (6th Cir. Apr. 15, 2014) No. 10-6136.
6th Circuit says court misunderstood its authority to reject guideline ratio, but error was harmless. (742) Defendant was convicted of conspiracy to manufacture and distribute methylenedioxymethamphetamine (MDMA), or “ecstasy.” He argued that the MDMA-to-marijuana equivalency ratio in the guidelines was based on faulty science, and asked the district court to select a new MDMA-to-marijuana equivalency ratio, or at least vary from the guidelines. The district court refused, finding it lacked authority to reject the equivalency ratio. The Sixth Circuit held that the district court misunderstood its authority to reject and replace a guidelines equivalency ratio based on policy disagreements, but concluded that the error was harmless. The court recognized that in certain situations a court may reject a policy statement, but believed it was not proper to vary from the guidelines ratio based on policy disagreements. The district court was concerned about separation of powers, institutional competence, and sentencing variation among district judges. These constitutional and institutional objections were rejected by the Supreme Court in Kimbrough v. U.S., 552 U.S. 85 (2007). However, the error was harmless because it was clear the district court would have imposed the same sentence even if it had properly understood its authority. U.S. v. Kamper, 748 F.3d 728 (6th Cir. 2014).
6th Circuit affirms below-guidelines child porn sentence. (742) Defendant pled guilty to possession of child pornography, and received a below-guidelines sentence of 51 months in prison. Because the district judge departed downward from the advisory § 2G2.2 guideline range and applied the § 3553(a) factors in a procedurally and substantively reasonable manner, the Sixth Circuit concluded that none of defendant’s arguments justified overturning his sentence. The judge did not punish defendant more harshly for having suffered an abusive childhood. The transcript of sentencing indicated a “careful and conscientious attempt to balance the ‘often compelling conflicting considerations that come into play in child pornography cases.'” Section 3553(a) factors can pull in opposite directions. The district judge chose to strike a balance that gave defendant some credit for his unfortunate past, but also accounted for the harmful character traits produced by that past. The judge did not give an unreasonable amount of weight to punishment and deterrence. The sentencing court engaged in a difficult balancing act between the multiple (and sometimes conflicting) factors mandated by § 3553(a). U.S. v. Elmore, 743 F.3d 1068 (6th Cir. 2014).
6th Circuit affirms life sentence for underwear bomber as not cruel and unusual or unreasonable. (742) Defendant, the so-called “underwear bomber,” was convicted of multiple charges relating to his attempt to detonate a bomb in his underwear while on an international flight to the United Sates. The Sixth Circuit rejected defendant’s claim that his life sentence was cruel and unusual punishment and was substantively unreasonable. The penalty was not “grossly disproportionate” to the crime. Defendant attempted to blow up an airplane with 289 people on board, and he failed to accomplish this objective only because of a technical problem with the bomb. Defendant was “deeply committed’ to his mission, and was a continuing threat to the United States and its citizens. The life sentences were constitutional, as they were fully proportional with the crimes, especially in light of defendant’s desire to engage in future terrorist activity. The life sentences were also substantively reasonable. The court properly weighed the factors in 18 U.S.C. § 3553(a), particularly the fact that defendant committed an act of terrorism and communicated a desire to commit future acts of terrorism if he were released. U.S. v. Abdulmutallab, 739 F.3d 891 (6th Cir. 2014).
6th Circuit says 120-month career offender sentence was not unreasonable. (742) Defendant was sentenced as a career offender to 120 months. He admitted that the court correctly applied the career offender guideline, but argued that the application of the career offender guideline produced an unreasonable sentence. The Sixth Circuit disagreed. Although court may depart downward based on a policy disagreement with the Sentencing Commission, a district court is not required to depart. The career-offender guideline might not be perfect, but district courts are best positioned to sift through the facts of an individual case and determine an appropriate sentence for each defendant. Here, the district court took considerable time to determine the sentence that best fit defendant’s circumstances. The district court addressed defendant’s extensive role in the conspiracy, his long criminal history, his drug use, and his lack of work history. The district court initially imposed a sentence of 188 months, but then resumed the hearing a week later and sentenced him to 120 months, because the court determined upon reflection that 188-months was “more time than is sufficient to accomplish the goals of the sentencing factors.” U.S. v. Cooper, 739 F.3d 873 (6th Cir. 2014).
6th Circuit holds parsimony provision did not permit sentence below mandatory minimum. (742) Defendant pled guilty to receiving child pornography, and was sentenced to five years in prison, the mandatory minimum for the offense. He argued that the mandatory minimum sentence conflicted with the “parsimony provision,” in 18 U.S.C. § 3553(a), which instructs courts to impose sentences “sufficient, but not greater than necessary, to comply with” several enumerated purposes in the statute. Defendant argued that in his situation, a five-year sentence was greater than necessary to accomplish the penological goals of deterrence, retribution, incapacitation, and rehabilitation. The Sixth Circuit rejected this argument. No matter how excessive a minimum sentence appears in a particular case, the parsimony provision does not allow courts to avoid imposing it. The whole point of mandatory minimums is to remove from judges the discretion to impose low sentences on sympathetic defendants. U.S. v. Marshall, 736 F.3d 492 (6th Cir. 2013).
6th Circuit holds that defendant suffering from Human Growth Hormone Deficiency did not qualify as juvenile. (742) Defendant pled guilty to receiving child pornography over a period of five years, from the time he was 15 until he was 20. He suffered from a rare condition called Human Growth Hormone Deficiency, and he argued that he was entitled him to the same Eighth Amendment protection as a juvenile. The district court found that other than chronological age, defendant was a juvenile, and varied downward from the guideline range. He was sentenced to five years in prison, the mandatory minimum for the offense. The Sixth Circuit rejected defendant’s claim that the mandatory minimum sentence was cruel and unusual punishment. Defendant’s argument was premised on his assertion that he was a juvenile when he committed the crime, but this was wrong. Defendant was an adult when he committed the crime. Even if he was mentally and physically a juvenile, this was not relevant for Eighth Amendment purposes. Chronological age is the touchstone for determining whether an individual is a juvenile or an adult. U.S. v. Marshall, 736 F.3d 492 (6th Cir. 2013).
6th Circuit reverses one day in jail plus ten years of supervised release for child porn offense. (742) Defendant pled guilty to possessing 305 images and 56 videos of child pornography on his computer. His recommended guideline range was 63-78 months, but the district court sentenced him to a single night’s confinement, plus ten years of supervised release. On the government’s first appeal, the 6th Circuit reversed the sentence as substantively unreasonable. On remand, the district court imposed the same sentence, and the government appealed again. The Sixth Circuit again reversed the sentence as substantively unreasonable. The district court criticized the computer enhancement, but even without it, defendant’s guideline range would have been about three years. The district court also diminished the seriousness of defendant’s offense, gave little weight to the need to deter others, and gave too much weight to defendant’s age and poor health, neither of which were extraordinary. The case was remanded for resentencing by a different judge. U.S. v. Bistline, 720 F.3d 631 (6th Cir. 2013).
6th Circuit says court’s consideration of information from competency exam did not violate Fifth Amendment. (742) During a pretrial competency examination, a psychiatrist found defendant competent to stand trial, but diagnosed him with pedophilia. Defendant pled guilty to sexual exploitation of a child. The PSR included the pedophilia diagnosis and the fact that defendant fantasized about having sex with children. The Sixth Circuit held that the court’s consideration of the information from defendant’s competency exam did not violate his Fifth Amendment right against self-incrimination or make his sentence procedurally unreasonable. It was defendant, not the district court, who requested the examination. Defendant consulted with counsel just before discussing the details of his offense, and after being warned that the court would have access to the results of the examination. Everything in the record suggests he voluntarily submitted to the examination and spoke voluntarily during it. Estelle v. Smith, 451 U.S. 454 (1981), which held that a state court violated a capital defendant’s right against self-incrimination by relying on the results of an involuntary examination, was inapplicable here. U.S. v. Graham-Wright, 715 F.3d 598 (6th Cir. 2013).
6th Circuit approves within-guidelines sentence for child porn offense. (742) Defendant pled guilty to one count of possession of child pornography. He was sentenced to 82 months, which fell within his 78-97 month guideline range, to be followed by a lifetime of supervised release. He moved for a downward variance, since he cooperated immediately with law enforcement, and stopped all involvement with child pornography. The Sixth Circuit held that the district court did not abuse its discretion in imposing the within-guidelines sentence. Defendant did not argue that his sentence was arbitrary, that it was based on impermissible factors, or that the district court failed to consider pertinent § 3553(a) factors, which are the hallmarks of a substantively unreasonable sentence. The fact that the defendant in a similar case, U.S. v. McElheney, 630 F.Supp.2d 886 (E.D.Tenn. 2009), received a downward variance did not make defendant’s sentence unreasonable. Section 3553(a)(6), which requires sentencing courts to consider unwarranted sentencing disparities, concerns national disparities, not specific individual cases. Moreover, the main difference between defendant and McElheney was the support system each had. U.S. v. Gamble, 709 F.3d 541 (6th Cir. 2013).
6th Circuit reverses seven-day sentence for securities fraud and money laundering. (742) Defendant, the former president of a publicly traded company, was convicted of securities fraud and money laundering charges. The suggested sentencing range was 97-121 months, but the district court varied downward to a sentence of only seven days. The Sixth Circuit held that the district court abused its discretion by imposing an unreasonably low sentence. First, the court failed to explain how defendant’s seven-day sentence satisfied § 3553(a)’s goals of adequately reflecting the seriousness of defendant’s offense. The existence of additional components to defendant’s sentence (such as forfeiture of personal assets) did not cure this failure. The sentence also did not effectuate § 3553(a)’s goal of general deterrence or avoid national sentencing disparities. Finally, the court gave undue weight to defendant’s personal history and characteristics. Nothing in the record established unique circumstances, other than his chosen profession and status in the community, both of which were inappropriate bases of such a large downward variance. U.S. v. Peppel, 707 F.3d 627 (6th Cir. 2013).
6th Circuit finds defendant failed to rebut presumption that guidelines sentences were reasonable. (742) Police found a gun in defendant’s car after a traffic stop. He was convicted of being a felon in possession of a firearm, and was sentenced to 41 months. The court also revoked his supervised release and ordered an additional 12-month consecutive sentence for the supervised release violation. Defendant argued that the district court’s failure to consider his status as a father and his enrollment in an electrician training program rendered his sentences substantively unreasonable. The Sixth Circuit disagreed. The mitigating factors defendant raised, when weighed in light of the totality of the circumstances, were insufficient to rebut the presumption that his within-guidelines sentences were substantively reasonable. U.S. v. Cochrane, 702 F.3d 334 (6th Cir. 2012).
6th Circuit approves guideline sentence despite lighter sentences received by co-conspirators. (742) Defendant was convicted of conspiracy to produce and traffic in fraudulent identification documents. He argued that his within-guideline sentence of 63 months was substantively unreasonable considering the differing sentences of his co-defendants. The Sixth Circuit affirmed, noting that defendantrecruited three members into the conspiracy, which doubled the conspiracy’s size. He not only sold fraudulent documents himself but also utilized the vast array of digital templates and produced fraudulent documents. Further, he helped move the entire operation from one apartment to another. He did all this in the approximately six-week span that he was involved in the conspiracy. Additionally, although Reyes-Gonzalez was apparently the leader of the operation, unlike defendant, Reyes-Gonzalez accepted responsibility for his actions, and pled guilty. Moreover, defendant had twice entered the U.S. illegally after being deported. The court found that he was at a high risk of re-offending and that there was a great need to protect the public from further crimes. U.S. v. Castilla-Lugo, 699 F.3d 454 (6th Cir. 2012).
6th Circuit affirms refusal to grant variance based on claim of imperfect entrapment. (742) Defendant pled guilty to food stamp fraud, drug distribution, and firearms charges. He sought a below-guidelines sentence based on “imperfect entrapment,” arguing that he only sold the handgun to the confidential informant after the informant repeatedly played on his sympathy by stating that he needed a gun for protection from someone who recently raped his niece and was starting to harass him. After rebuffing the informant for months, defendant finally gave in and sold him a gun. The district court denied the motion. On appeal, defendant claimed that the district court’s failure to address his entrapment argument meant that the court did not consider it. The Sixth Circuit found no abuse of discretion. It would have been better for the judge to expressly mention why the government’s obvious encouragement on the firearm charge did not warrant a below-guidelines sentence. However, because the court’s reasons for not granting a variance were clear, the failure to address the argument “head-on” did not require reversal. Defendant willfully violated the terms of his supervised release by leaving his town to work at his co-defendant’s store, and was unable to explain why he continued to work there after learning of the criminal activity. U.S. v. Taylor, 696 F.3d 1257 (6th Cir. 2012).
6th Circuit affirms 293-month felon-in-possession sentence as reasonable. (742) Defendant was convicted of being a felon in possession of a firearm, and was sentenced as an armed career criminal to 293 months. The Sixth Circuit held that defendant failed to rebut the presumption that his guideline sentence was substantively reasonable. Although defendant claimed he only possessed the firearm out of necessity, the jury rejected this defense at trial. Given this, and defendant’s lengthy criminal history, it was not unreasonable for the court to sentence defendant to the top of his guideline range. The court considered multiple § 3553(a) factors, including the nature of the offense, defendant’s extensive criminal history, the fact that he committed the offense shortly after his release from prison, and the need to protect the public. U.S. v. Anderson, 695 F.3d 390 (6th Cir. 2012).
6th Circuit says court adequately explained refusal to vary based on wife’s medical condition. (742) Defendant argued that the district court committed procedural error by failing to explain adequately its reasons for denying his request for a downward variance based on his wife’s medical condition. At sentencing, defendant had asked the district court either to depart or apply a downward variance because his wife was very ill, and he did not have the financial resources necessary to pay for the costly course of treatment required by her illness. The district court determined that a variance was not appropriate “for the same reason” that it did not believe a departure was warranted. Defendant’s conduct, in the court’s view, merited a substantial prison sentence, and there was nothing in the record to suggest that imposing a shorter sentence would allow defendant to provide the financial support that his wife needed. Thus, the Sixth Circuit was satisfied that the district court responded to defendant’s argument for a downward variance and explained adequately why it did not believe that such a variance was justified. U.S. v. Mitchell, 681 F.3d 867 (6th Cir. 2012).
6th Circuit finds no sentencing disparity where co-defendant accepted responsibility and cooperated. (742) Defendant argued that his 97-month sentence was substantively unreasonable compared to the sentences of co-conspirator Zaccagnini (60 months) and co-conspirator Armstrong (42 months). The court determined that Armstrong’s culpability was similar to defendant’s, but noted that Armstrong accepted responsibility for his conduct and provided very complete cooperation from early on in the investigation. The district court attempted to account for this difference by choosing defendant’s sentence from the advisory range that Armstrong would have confronted had he not cooperated. Furthermore, the district court already had given defendant a four-level reduction for being a minimal participant, rather than the two-level minor participant reduction recommended by the PSR, to guard against a disparity claim. A disparity that results from a co-conspirator’s cooperation is not unwarranted, and the Sixth Circuit rejected defendant’s argument. U.S. v. Mitchell, 681 F.3d 867 (6th Cir. 2012).
6th Circuit reverses enormous upward variance in child porn case. (742) Defendant was sentenced to the statutory maximum sentence of 720 months after he pleaded guilty to child pornography counts. His guideline range was 235-293 months. The Sixth Circuit reversed and remanded, finding insufficient justification to support the variance. The judge stated that the guidelines could not possibly have envisioned a crime as horrendous as defendant’s. However, defendant’s guideline calculations included several enhancements that specifically addressed the unique characteristics of his offense. Four levels were added because defendant produced child pornography with a minor under the age of twelve. Two levels were added because the offense involved the commission of a sexual act or sexual contact. Two levels were added because defendant was a relative of the minor, and the minor was in his custody, care, or supervisory control. The 720-month sentence also threatened to cause disparities in sentencing, because it provided a top-of-the-range sentence for what was not a top-of-the-range offense. Defendant cooperated with authorities, admitted responsibility for his actions, and only committed one known offense involving brief sexual contact with a minor. U.S. v. Aleo, 681 F.3d 290 (6th Cir. 2012).
6th Circuit affirms refusal to grant variance based on psychological exam. (742) Defendant pled guilty to three child pornography offenses, and was sentenced to concurrent terms of 120 and 121 months. The sentences fell within the suggested guideline range. The Sixth Circuit held that the sentences were substantively reasonable. The sentences were entitled to a rebuttable presumption of reasonableness, and defendant did not rebut that presumption. The court properly disregarded defendant’s psychological evaluation, in which he was diagnosed with a depressive disorder and a dependent personality disorder. Many people struggle with these disorders and do not resort to child pornography. The court’s reliance on conduct by defendant that was not illegal (pictures of fully clothed children that focused on their pubic regions) was not erroneous. Several of the photos were “cropped in such a manner that only the child’s pubic region or buttocks” was shown.” The photos were circumstantial evidence that defendant was building bonds with other pedophiles to obtain more child porn. In addition, the court validly found that a video defendant made of himself using a photo of a child to act out a rape fantasy suggested that he presented a future danger of physical abuse to children. U.S. v. Cunningham, 669 F. 3d 723 (6th Cir. 2012).
6th Circuit upholds consideration of studies of recidivism of child sex offenders. (742) Defendant pled guilty to three child pornography offenses, and was sentenced to 121 months. He argued that the district court erred by considering studies measuring the recidivism rate of child sex offenders, including individuals convicted of “hands-on” sex offenses. Defendant had asked the court to consider data collected by the Sentencing Commission, which suggested that he had a 6.2 percent chance of re-offending. The Sixth Circuit found that the court’s reliance on the recidivism studies was not excessive, “especially … consider[ing] the manner in which the court comprehensively weighed and balanced a multiplicity of sentencing factors.” The court’s judgment was based on factors such as defendant’s explanation for consuming child pornography, the court’s finding that defendant had not acted to remedy his impulse to do so, the pictures defendant took of his ex-girlfriend’s niece, and the video he made of himself acting out a sexual fantasy with the picture of a child. Based on this conduct, the court accorded the Commission’s statistics little weight in assessing defendant’s recidivism risk. This personalized assessment was just the sort of consideration required by § 3553(a). U.S. v. Cunningham, 669 F. 3d 723 (6th Cir. 2012).
6th Circuit reverses one night in courthouse lockup for child porn offense. (742) Defendant pled guilty to possessing child pornography. His guideline range was 63-78 months, but the district court sentenced him to a single night’s confinement in the courthouse lockup. The Sixth Circuit rejected the sentence as unreasonably lenient. The court did not properly consider “the seriousness of the offense,” under 18 U.S.C. § 3553(a)(2)(A). While producers of child porn may be more culpable than those that possess it, that did not mean that knowing possessors are barely culpable at all. The court’s comments suggested that modern technology was partially at fault, and seemed to suggest that the hundreds of images found on defendant’s computer appeared by unwanted pop-ups or viruses. The court also improperly thought that the need to afford adequate deterrence, § 3553(a)(2)(B), was satisfied by the humiliation of defendant’s arrest and prosecution. However, none of those consequences arose from defendant’s sentence, as opposed to his prosecution and conviction. Finally, while the court found defendant needed to care for his ailing wife, it overlooked the fact that he had four adult children who lived not far from his home. U.S. v. Bistline, 665 F.3d 758 (6th Cir. 2012).
6th Circuit affirms guideline sentence for transporting child porn. (742) Defendant pled guilty to one count of transporting child pornography, which carries a statutory minimum sentence of 60 months and a statutory maximum of 240 months. 18 U.S.C. § 2252(a)(1), (b)(1). His guideline range was 87-108 months. Although defendant moved for a downward variance, the court imposed a guideline sentence of 87 months. The Sixth Circuit rejected defendant’s argument that his sentence was not procedurally or substantively reasonable. The parties did not dispute the applicable guideline range, and the district court adequately addressed each of defendant’s arguments for a variance. As for substantive reasonableness, a within-guidelines sentence is presumptively reasonable. The fact that defendant sought counseling on his own after the arrest and was unusually despondent might support a lower sentence, but did not compel one. While the sentence was harsh, in cases where the district court and the Sentencing Commission agree about an appropriate sentencing range, as happened here, it will be difficult to establish that the sentence is unreasonable. U.S. v. Overmyer, 663 F.3d 862 (6th Cir. 2011).
6th Circuit upholds sentence at bottom of guideline range for child porn defendant. (742) Defendant pled guilty to distribution of child pornography, and was sentenced to 151 months, which fell at the bottom of his advisory guideline range. He had requested a down-ward departure and/or variance based on his extraordinary contribution to his country as a soldier, and his lack of criminal history. The Sixth Circuit upheld defendant’s sentence. Although § 5H1.11 identifies military service as a possible ground for a downward departure, Congress has specifically instructed that child crimes and sexual offenses are to be treated differently than other types of crimes. The sole grounds permissible for a downward departure are those “expressly enumerated” in Part 5K. See Note 4(B) to § 5K2.0. Defendant’s argument for a variance was beyond the scope of review. Defendant did not establish that his sentence was substantively unreasonable. Defendant’s offense was severe. He downloaded more than 1000 images and videos containing child porn, exchanged the porn with nearly 50 people, including women with children, tried to get the women to groom the child for sexual activity, and made plans to sexually abuse the child. U.S. v. Reilly, 662 F.3d 754 (6th Cir. 2011).
6th Circuit affirms despite argument that court improperly considered possible future Rule 35 reduction. (742) The district court granted defendant a 24-month downward variance to account for his cooperation with the government, and sentenced him to 71 months. Defendant argued for the first time on appeal that the district court failed to consider several of his mitigating arguments and instead, improperly considered the possibility of future sentence relief under Rule 35. The Sixth Circuit found that the record did not demonstrate any error by the district court. Defendant’s primary argument at sentencing was that, due to his substantial assistance, he deserved a lower sentence. The record clearly reflected that the district court thoroughly addressed this argument, and defendant in fact received a 25% reduction in his sentence. The district court considered “the core thrust of all of the arguments” that defendant actually presented, and thus its explanation of its sentence was adequate. Although it was possible to interpret the district court’s comment in a way that suggested that it based its sentence on the possibility of a future Rule 35(b) motion, the better interpretation was that the court properly sentenced defendant based on its assessment of the cooperation he had provided as of the date of sentencing. U.S. v. Judge, 649 F.3d 453 (6th Cir. 2011).
6th Circuit upholds 120-month within-guideline sentence for child porn offense. (742) Defendant pled guilty to several child pornography offenses, and received concurrent 120-month sentences for each count. The sentence was within the guidelines range of 97-121 months. The Sixth Circuit rejected defendant’s argument that the sentence was substantively unreasonable. The court heard evidence of defendant’s extensive military service, continuous work record and lack of prior criminal offenses, heard strong character references from neighbors and relatives, and listened to defendant’s own statements of remorse. The court discarded a psychiatrist’s opinion that defendant would not become a recidivist, since it conflicted with defendant’s statement that he actively searched and downloaded child porn. The court also discussed its own knowledge of psychiatric reports of sexual offenders and the high likelihood of recidivism of sexual offenders notwithstanding the lack of a prior criminal history. It then concluded that the guideline sentence was “appropriate.” The district court’s sentence was neither arbitrary nor absent consideration of the § 3553(a) factors. U.S. v. Dudeck, 657 F.3d 424 (6th Cir. 2011).
6th Circuit reverses improper reduction that was based on co-conspirator’s lower sentence. (742) The government argued that defendant’s sentence was substantively unreasonable because the district court relied upon an improper factor—the disparity between co-conspirator’s sentences. Pursuant to § 5H1.4, co-conspirator Campbell received a downward departure equivalent to three offense levels because he had lung cancer. Although defendant was not ill, the district court reduced his offense level by the same amount to “avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” The Sixth Circuit held that defendant’s sentence was procedurally unreasonable. When determining whether to vary downward from a properly calculated sentencing range, a district court may consider the sentencing disparity between co-defendants. However, reducing a defendant’s offense level “is a different animal entirely.” It requires an applicable guideline section, and here, while the disparity may have supported a downward variance, it did not support a reduction in defendant’s offense level. U.S. v. Douglas, 634 F.3d 852 (6th Cir. 2011).
6th Circuit holds that court adequately considered defendant’s mental health. (742) Defendant argued that the district court did not give adequate weight to his mental health problems in imposing a 46-month sentence for his conviction for knowingly stealing two cultural heritage objects (two antique books), in violation of 18 U.S.C. § 668(b). The Sixth Circuit found that the court’s discussion demonstrated that it adequately considered and weighed defendant’s mental health in crafting his sentence. The court noted that it needed to be “sensitive to the significant and detailed mental history” of defendant. It then detailed defendant’s mental health issues, and stated that it would request the Bureau of Prisons to take account of these issues and institutionalize him where he could get help in dealing with the issue. The court also was uncertain whether these disorders had any impact on defendant’s ability to recognize the seriousness of his conduct. No more consideration was required. U.S. v. McCarty, 628 F.3d 284 (6th Cir. 2010).
6th Circuit says court adequately considered defendant’s age and alleged ill health. (742) Defendant argued in his sentencing memo that he should receive a sentence below the bottom of the guideline range because of his age (then 62) and supposed ill-health. During defendant’s sentencing hearing, the district court did not address these arguments specifically, but said there was “nothing in the record to warrant going outside the recommended guideline range, nothing in the 3553(a) factors.” The court then imposed a sentence at the very bottom of the guideline range. Defendant argued that the court committed procedural error when it failed to address his arguments specifically. The Sixth Circuit disagreed. Courts are not required to give the reasons for rejecting any and all arguments by the parties for alternative sentences. Defendant’s arguments were directed to the § 3553(a) factors. The district court said that it saw nothing with respect to those factors that support a below-guideline sentence. On this record, that response, “though brief, was legally sufficient.” U.S. v. Locklear, 631 F.3d 364 (6th Cir. 2011).
6th Circuit affirms guideline sentence for sex crimes where judge adequately addressed arguments. (742) Defendant pled guilty to three counts of sex crimes against children. The court ultimately imposed a guideline sentence of 295 months. Defendant argued that the district court did not adequately address his drug problem, depression, sexual addiction, and the abuse that he suffered as a child. The Sixth Circuit disagreed. When defendant claimed he could learn from his offenses and turn his life around, just like he quit cocaine after participating in a drug program, the court noted that defendant did not overcome his drug addiction, but merely shifted from one drug to another. The court also found that defendant’s depression did not justify his criminal conduct. The court did not feel that defendant’s sexual-addiction warranted a shorter sentence – in fact, the court was concerned that defendant would again act upon his impulse to have sex with minors. Moreover, although the court only briefly discussed the sexual abuse defendant suffered as a child, the lack of a detailed discussion did not constitute procedural error. U.S. v. Brooks, 628 F.3d 79 (6th Cir. 2011).
6th Circuit says child porn guideline is not unreasonable despite lack of empirical data. (742) Defendant pled guilty to three counts of sex crimes against children. He argued that his 295-month guideline sentence was unreasonable because § 2G2.2 was involved, noting that several district courts have rejected the guideline range produced by § 2G2.2 in child porn cases. These courts concluded that § 2G2.2 was based solely on legislative enactments designed to increase the length of sentences rather than being based on empirical data. The Sixth Circuit held that the application of §§ 2G2.1 and 2G2.2 did not make defendant’s sentence procedurally or substantively unreasonable. The fact that a defendant court may disagree with a Guideline for policy reasons and may reject the Guidelines range because of that disagreement does not mean that the court must disagree with that Guideline or that it must reject the Guideline range if it disagrees. Moreover, defendant cited no authority to support the proposition that a district court must, on its own initiative, examine the underlying bases for a guideline before imposing a sentence. U.S. v. Brooks, 628 F.3d 79 (6th Cir. 2011).
6th Circuit finds defendant did not rebut presumption that guideline sentence was reasonable. (742) Defendant pled guilty to conspiracy to possess with intent to distribute cocaine. His advisory guideline range based on his status as a career offender was fifteen years and eight months to nineteen years and seven months. The district court imposed a sentence at the bottom of his advisory range, and defendant appealed. The Sixth Circuit ruled that the sentence was reasonable, holding that defendant did not rebut the presumption of reasonableness that applied to his within-guideline range sentence. In reviewing the § 3553(a) factors, the court noted that defendant had a lengthy criminal history, committed a serious crime, and had not shown from his prior convictions that he was likely to be quickly reformed. The court acknowledged that defendant’s upbringing in a broken home with an abusive father was a mitigating factor, but still found that a sentence of fifteen years and eight months was appropriate. The court did not err by refusing to depart downward. U.S. v. Ruvalcaba, 627 F.3d 218 (6th Cir. 2010).
6th Circuit says court properly considered mitigating arguments before imposing above-guideline sentence. (742) Defendant pled guilty to drug-related charges and was sentenced to 96 months in prison, which was above his advisory guideline range of 70-87 months. In explaining its decision, the court focused primarily on defendant’s extensive criminal history and what it saw as his continued failure to respect the law, as evidence by his post-arrest lawlessness that resulted in the revocation of his bond. The Sixth Circuit held that the sentence was procedurally and substantively reasonable. The court responded directly to defendant’s argument about his drug addiction and found it unpersuasive. As for defendant’s other mitigating arguments, there was no requirement that the court respond to mitigating arguments point-by-point. A sentencing court must conduct a meaningful sentencing hearing and truly consider the defendant’s arguments. The panel was satisfied here that the court fulfilled its procedural duties in sentencing defendant. The sentence was not substantively unreasonable. U.S. v. Gunter, 620 F.3d 642 (6th Cir. 2010)
6th Circuit says defendant failed to rebut presumption that guideline sentence was reasonable. (742) Defendant argued that his within-guidelines sentence of 34 months was substantively unreasonable. He noted that there was a disparity between the sentence he received and the sentences given his two co-defendants who both pled guilty and were sentenced before defendant. The Sixth Circuit found no error. Tran, the most culpable, received a 46-month sentence, while Walker, who was the least culpable, received a 12-month sentence. Although defendant argued that his sentence should have been closer to Walker’s this argument did not demonstrate an abuse of discretion. Furthermore, “the need to avoid unwarranted sentence disparities” mentioned in 18 U.S.C. § 3553(a)(6) refers to national disparities among many defendants with similar criminal backgrounds convicted of similar criminal conduct, not to disparities between one individual’s sentence and another individual’s sentence, despite the fact that the two are co-defendants. Defendant failed to rebut the presumption that the court’s decision was substantively unreasonable. U.S. v. Bacon, 617 F.3d 452 (6th Cir. 2010).
6th Circuit finds mandatory minimum sentence was not unreasonable. (742) Defendant was convicted of drug charges. He argued on appeal that, because the district court expressed a desire to sentence him below the mandatory minimum applicable to his offense, his sentence was unreasonable. He suggested that 18 U.S.C. § 3553(a) provided a vehicle for circumventing mandatory minimum sentences. The Sixth Circuit disagreed. A district court’s “ardent desire” to sentence a defendant below a mandatory minimum sentences does not make the sentence unreasonable, and § 3553(a) does not change this. U.S. v. Cecil, 615 F.3d 678 (6th Cir. 2010).
6th Circuit reverses court’s finding that defendant stole 1500 financial instruments. (742) Malone stole 1000 money orders and 500 cashier’s checks from a bank. He gave a small fraction of them to defendant, with instructions to purchase computer equipment. Authorities later arrested defendant after she mailed 35 stolen instruments to Apple Computers as payment for eight separate orders. She pled guilty to a single count of mail fraud. Although defendant’s guideline range was 24-30 months, the district court sentenced her to 48 months, noting that the circumstances of the offense were serious, since defendant stole 1000 money orders and 500 cashier’s checks from a bank. The Sixth Circuit held that the court plainly erred by selecting defendant’s sentence based on the clearly erroneous premise that she had stolen 1500 financial instruments. The error plainly affected defendant’s substantial rights, because the erroneous belief that defendant had stolen hundreds of financial instruments was an important factor in determining her sentence. U.S. v. Wilson, 614 F.3d 219 (6th Cir. 2010).
6th Circuit reverses downward variance based on defendant’s vocational skills and family ties. (742) Defendant pled guilty to two counts of possessing child pornography and was sentenced to 57 months. After a successful appeal, the district court re-sentenced defendant to five days in prison—the time he spent in custody when first arrested—and 15 years of supervised release. The court cited defendant’s severe back pain, his role as the primary caregiver for his elderly, ailing mother, his remorse, his career as a musician and composer, and his compliance with his release conditions while on bail. The Sixth Circuit reversed. Educational and vocational skills, as described in § 5H1.2, are a discouraged departure factor, and so should be relied upon only in exceptional cases. The district court abused its discretion in finding, without explanation, that the fact that defendant wrote and played music, in and of itself, was a mitigating factor. Family circumstances are also a discouraged factor, § 5H1.6. There were feasible alternatives available to care for defendant’s mother, including his siblings or a nursing home. U.S. v. Christman, 607 F.3d 1110 (6th Cir. 2010).
6th Circuit holds that sentence 112 months below recommended Guidelines range was reasonable. (742) Defendant became romantically involved with Humphrey, whom she later discovered was a drug dealer. She assisted him in the enterprise until Humphrey was murdered. Defendant was convicted of a variety of drug charges. The district court sentenced her to 180 months, which represented a 112-month downward variance from the final calculated Guidelines range. Defendant argued that her sentence was unreasonable based upon her criminal history, her changed circumstances, and the quantity of drugs attributed to her at sentencing. The Sixth Circuit found that since the district court properly utilized the correct procedures, took into account all of the mitigating factors, and eventually sentenced defendant to 112 months below her recommended Guidelines range, the district court did not abuse its discretion. The court weighed defendant’s short criminal history and her circumstances of being a mother of three against the huge quantities and intimate details she knew and engaged in the Humphrey organization. Defendant did not present any argument explaining why the 112-month downward variance did not represent an adequate consideration of the reduced deterrence her situation demanded. U.S. v. Benson, 591 F.3d 491 (6th Cir. 2010).
6th Circuit rejects as unreasonable one-day sentence for child porn offense. (742) Defendant pled guilty to possessing child pornography, and was sentenced to the custody of the U.S. Marshal’s Service for the remainder of the day of sentencing. The Sixth Circuit held that the sentence was substantively unreasonable. While the district court thoroughly considered the nature and circumstances of the offense and the history and characteristics of the defendant, and the need for the sentence imposed to provide the defendant with needed medical care, the court failed to consider the need for the sentence to reflect the seriousness of the offense, to afford adequate general deterrence, to protect the public from further crimes by the defendant, and to avoid unwarranted disparities. The fact that defendant did not make or distribute child pornography or molest a child did not justify a lenient sentence – such actions would have resulted in a greater guideline sentence. Similarly, the court’s concern that defendant “would be vulnerable to what happens to people accused of these kinds of criminal matters” was an improper sentencing consideration. Finally, the large discrepancy between the current penalty for the offense, a mandatory minimum sentence of five years, 18 U.S.C. § 2252(b)(1), and the one-day sentence imposed here, raised “serious questions” about the reasonableness of the district court’s sentence. U.S. v. Camiscone, 591 F.3d 823 (6th Cir. 2010).
6th Circuit finds within-Guidelines sentence for crack offense to be reasonable. (742) Defendant was convicted of possessing with intent to distribute about 12 grams of crack cocaine and three counts of being a felon in possession of a firearm. With other adjustments, defendant had an offense level of 25, and he fell into criminal history category VI, for a sentencing range of 110 to 137 months. The district court imposed a 116-month sentence based on defendant’s history of substance abuse, his possession of multiple firearms, and the risk he posed to the public. The Sixth Circuit held that this sentence was substantively reasonable. U.S. v. Simmons, 587 F.3d 348 (6th Cir. 2009).
6th Circuit affirms within-Guidelines sentence against procedural and substantive challenges. (742) Defendant pleaded guilty to trafficking in more than 8,000 MDMA pills. At sentencing, the district court calculated his sentencing range as 70 to 87 months. Defendant argued that the court should impose a sentence below the Guidelines range because he and his family fled from Iraq as refugees, he had dropped out of school in 10th Grade to support his disabled parents, he faced deportation back to Iraq, and he became involved in drugs only because of an “economic opportunity” offered by a co-worker. The district court acknowledged the reasons that, defendant argued, supported a below-Guidelines sentence, but it did not discuss each argument. The court imposed a 70-month sentence based on the seriousness of the offense and defendant’s role in it. The Sixth Circuit held that the district court had adequately considered the factors set forth in 18 U.S.C. § 3553(a), even if it could have “said more” about defendant’s arguments. For that reason, the court found that the sentence was procedurally and substantively reasonable. U.S. v. Petrus, 588 F.3d 347 (6th Cir. 2009).
6th Circuit finds 120-month sentence for harboring aliens was reasonable. (742) Defendant ran a business that employed hundreds of illegal aliens. Defendant paid the aliens in cash and failed to withhold or pay federal income or unemployment taxes, social security, or Medicare. The defendant’s conduct resulted in $16 million in unpaid taxes. While defendant and the government were negotiating a plea agreement, defendant tried to move his assets out of the U.S. and to flee the country. Defendant pleaded guilty to charges of harboring illegal aliens that carried a maximum sentence of 120 month. The district court imposed a 120-month sentence, which was within the guideline range. The Sixth Circuit held that the sentence was reasonable. U.S. v. Rosenbaum, 585 F.3d 259 (6th Cir. 2009).
6th Circuit finds consecutive 360-month sentence for 61-year-old defendant was reasonable. (742) Defendant was convicted of drug and firearms charges. The district court was statutorily required to impose a term of at least 180 months for defendant’s firearm conviction, and § 5G1.3 recommended that the federal sentence run consecutively to any state court sentence imposed for the probation violation. Defendant requested a downward variance based on the fact that he was 61 years old and would be much older upon release from prison. The court acknowledged this argument, but indicated his age cut both ways because defendant was a mature man who continued to commit crime, not an immature young man who could be expected to grow up. The court sentenced defendant to 360 months’ imprisonment, to be served consecutive to his state sentence. The Sixth Circuit held that the court’s explanation was adequate, and the sentence imposed was procedurally reasonable. The court explicitly addressed defendant’s key argument concerning his age, and noted his extensive and violent criminal history. U.S. v. Berry, 565 F.3d 332 (6th Cir. 2009).
6th Circuit affirms making sentence consecutive to state revocation sentence. (742) Defendant was convicted of drug and firearms charges. At the time of his arrest, defendant was on lifetime probation for a prior drug charge. Defendant asked the judge to run his federal sentence concurrent to his state sentence, noting his age, the small quantities of cocaine involved in his prior convictions, and the indeterminate date of his parole from state prison. The Sixth Circuit upheld the district court’s decision to order defendant’s 360-month federal sentence to be served consecutively to his undischarged state sentence. See Note 3(C) to § 5G1.3(c). Here, the court recognized the § 3553(a) factors and discussed defendant’s age and lifetime pattern of crime, and found no reason for a variance or a departure. Although the court did not explicitly reference the § 5G1.3 considerations, the court did recognize the PSR discussion of that Guideline. The court’s statement, although brief, in conjunction with its invocation of § 3553(a), demonstrated that the consecutive sentence was reasonable. U.S. v. Berry, 565 F.3d 332 (6th Cir. 2009).
6th Circuit reverses where defendant had no opportunity to address upward variance. (742) Defendant pled guilty to unlawful re-entry by an alien deported after an aggravated felony conviction. The government asked for a sentence within the guideline range of 30-37 months, while defendant requested a 24-month sentence. Nevertheless, the court sentenced defendant to 96 months, explaining that the significant variance was necessary because defendant had committed a very serious offense, continued to violate the law, and was not supporting his four children. Given the unique circumstances of the case, the Sixth Circuit held that the sentence was procedurally unreasonable because the court failed to provide defendant with a meaningful opportunity to address the court’s upward variance. Defendant entered the sentencing hearing believing that he should be arguing against a 30-37-month sentence. Defendant was not aware that the court was contemplating a significantly higher sentence and thus had no chance to argue against such a variance before the court announced its sentence. U.S. v. Garcia-Robles, 562 F.3d 763 (6th Cir. 2009).
6th Circuit holds that sentencing disparity did not make defendant’s sentence unreasonable. (742) Defendant was one of several police officers convicted of offenses stemming from excessive use of force during an arrest. Defendant challenged his 33-month sentence as substantively unreasonable, contending it resulted in an unwarranted sentencing disparity with his co-defendants. The Sixth Circuit found no disparity, and held the sentence was reasonable. Section 3553(a)(6) is concerned with national disparities between defendants with similar criminal conduct, not disparities between co-defendants. Moreover, there were several factors which warranted the differing sentences. Defendant was found guilty of more offenses than any of his co-defendants, and he was the only defendant found guilty of deprivation of rights under color of law. The disparity between the co-defendants’ sentences was reasonable. Moreover, the district court was well aware of the disparities, and found defendant to be “most culpable.” U.S. v. Carson, 560 F.3d 566 (6th Cir. 2009).
6th Circuit holds that sympathetic defendant did not make Guidelines sentence unreasonable. (742) Defendant was convicted of four counts of possessing child pornography and sentenced to 210 months, which fell at the lower end of his advisory guideline range. The Sixth Circuit rejected defendant’s claim that the sentence was substantively unreasonable. Defendant made at least a plausible argument that he rebutted the presumption that a guideline sentence is reasonable: he contended that he was an old and sick man who had been extraordinary in his attempts to rehabilitate himself, and but for the court’s overemphasis on the impact on the victims, he should have received a lighter sentence. However, the record contained information that belied this characterization of the evidence, and the Sixth Circuit held that the sentence was not unreasonable. The sentence accurately reflected both the reasons to vary downward and the severity of defendant’s offense. Although there were reasons to be sympathetic to defendants, courts routinely uphold sentences of sick and rehabilitated defendants. Appellate courts review for unreasonable sentences, not sympathetic defendants. U.S. v. Paull, 551 F.3d 516 (6th Cir. 2009).
6th Circuit reverses for failure to provide statement of reasons for upward variance. (742) Defendant argued that the district court failed to state any specific reason for imposing a sentence above the guideline range, in violation of 18 U.S.C. §3553(c)(2). The Sixth Circuit agreed, holding that the court erred by failing to comply with §3553(c)(2), and given the clarity of §3553(c)(2), the error was plain. The panel further held that §3553(c)(2) confers a substantial right to meaningful appellate review, and therefore the error affected defendant’s substantial rights. The upward variance was imposed without the court’s acknowledgement of the applicable guideline range and without a statement of reasons for the variance. Compliance with §3553(c)(2) is important not only for the defendant, but for the public to learn why the defendant received a particular sentence. The absence of a statement of reasons thus seriously affects “the fairness, integrity, or public reputation of judicial proceedings.” U.S. v. Blackie, 548 F.3d 395 (6th Cir. 2008).
6th Circuit says defendant did not rebut presumption that guideline life sentence was reasonable. (742) Defendant was convicted of drug and money laundering conspiracy charges, and received concurrent sentences of life imprisonment and 60 months’ imprisonment. The Sixth Circuit held that the sentences were substantively reasonable. Because the Guidelines range was correctly calculated and the district judge sentenced defendant within that range, the sentence was entitled to a rebuttable presumption of reasonableness. Defendant did not successfully rebut this presumption. Defendant never asked the judge to consider his age or the age of the offenses as mitigating factors at sentencing. In addition, although the judge did not explicitly state that he considered the amount of time defendant had already served or the sentences given to other members of the conspiracy, defendant did not explain why such failures constituted an abuse of discretion. The judge reviewed the pertinent §3553(a) factors, explained that a life sentence was appropriate given defendant’s lengthy criminal career. The factors defendant listed did not outweigh the reasoning provided by the court. U.S. v. Walls, 546 F.3d 728 (6th Cir. 2008).
6th Circuit finds court considered need to avoid unwarranted sentencing disparities. (742) Defendant argued that the district court neglected to address the need to avoid unwarranted sentencing disparities among defendants with similar records. He cited three local district court cases in Michigan where the defendants were sentenced to less time than defendant. The Sixth Circuit found no error. Section 3553(a) requires the district court to “consider” seven factors and it is the district court’s task to balance those factors. At sentencing, the court acknowledged its responsibility to understand what “comparable individuals in comparable circumstances have received in the past.” Moreover, the court did act to avoid unwarranted sentence disparities when it reduced the PSR’s recommended enhancements for the number of pornographic images defendant possessed. U.S. v. Blackie, 548 F.3d 395 (6th Cir. 2008).
6th Circuit defers to court’s consideration of defendant’s family circumstances. (742) Defendant was convicted of possessing child pornography. At sentencing, he moved for a downward departure or variance based on the loss of caretaking for his 15-year-old daughter. After hearing defense counsel’s argument, the court responded that it “need not decide that a downward departure is granted or denied on this case. I think the whole matter goes into the sentencing matrix.” The Sixth Circuit affirmed defendant’s above-guideline sentence. The district court considered defendant’s family responsibilities at sentencing. Given the deference to the district court’s consideration of the §3553(a) factors and the pertinent policy statement in §5H1.6, the judge did not abuse his discretion. U.S. v. Blackie, 548 F.3d 395 (6th Cir. 2008).
6th Circuit remands where court failed to explain reasons for below-guideline drug sentence. (742) Defendant was involved in a large-scale drug-trafficking operation that transported cocaine on musical band tour busses from Los Angeles to Detroit and other cities. His guideline range was 324-405 months. The district court sentenced defendant to 180 months, which was 144 months below the bottom of the advisory guideline range. The government challenged the reasonableness of the sentence. The Sixth Circuit remanded, because the district court failed to explain how the §3553(a) factors applied to defendant’s non-Guidelines sentence or articulate why the sentence constituted an adequate punishment. In fact, the court noted that defendant was “running the show,” and that the Guidelines’ reflected a determination by lawmakers that there should be “harsh penalties” for drug dealers in order to deter people “from engaging in the kind of devastation that happens in our communities because of drugs.” Moreover, the court never mentioned the huge quantity of cocaine at issue here, and failed to provide any discussion of the disparity between defendant and similarly situated drug dealers. U.S. v. Henry, 545 F.3d 367 (6th Cir. 2008).
6th Circuit holds that 14-year gap between crimes and sentencing hearing not a proper sentencing factor. (742) In 1991, defendant committed bank fraud. He was indicted in 1999, convicted in 2002, and sentenced in 2003. He successfully appealed his sentence. In 2005, the district court resentenced defendant to one day in prison. On appeal, the Sixth Circuit reversed, but the Supreme Court remanded for reconsideration in light of Gall v. U.S., 128 S.Ct. 586 (2007). On remand, the Sixth Circuit again reversed, holding that the district court improperly relied on the 14-year gap between defendant’s crimes and his second sentencing hearing. Most, if not all, of the delay was caused by legitimate considerations, such as the government not learning of defendant’s fraud until 1996, time needed to obtain financial records to prove fraud, and defendant’s success in getting his first sentence reversed. The delay did not prejudice defendant in any way; the only thing it did was allow defendant to age, from 56 to 70. While defendant’s age and retirement from the career that permitted him to commit the fraud might affect a judge’s decision to grant a variance, it was unclear whether this, by itself, was sufficient to support the one-day sentence. U.S. v. Davis, 537 F.3d 611 (6th Cir. 2008).
6th Circuit reverses variance from career offender guideline in marijuana case. (742) Defendant was convicted of marijuana trafficking charges. The district court originally sentenced him to 262 months, but on remand in light of Booker, the court sentenced him to only 150 months. On appeal, the Sixth Circuit vacated the sentence as unreasonable. The Supreme Court then vacated and remanded for reconsideration in light of Gall, Rita and Kimbrough. On reconsideration, the Sixth Circuit once again rejected the sentence as substantively unreasonable. This was not an atypical case, but a “mine-run” case. The judge felt that the career offender enhancement was excessive because: (1) defendant did not participate in cocaine, heroin, ecstasy, meth or firearms, (2) 150 months provided a “just punishment,” (3) 150 months fit this defendant and his offense, and (4) 150 months provided “an adequate public deterrence and safety.” The first factor was already encompassed in the guideline calculations, and the judge did not explain why marijuana convictions should not be included in the career offender guideline. The other three factors failed to identify any fact unique to this defendant or the crime. Judge Boggs dissented. U.S. v. Funk, 534 F.3d 522 (6th Cir. 2008).
6th Circuit says guideline sentence for possessing child porn was reasonable. (742) Defendant was convicted of receiving and possessing child pornography, and was sentenced to 97 months, at the bottom of his advisory guideline range. The Sixth Circuit rejected defendant’s claim that his sentence was not procedurally reasonable. The district court explicitly addressed the relevant §3553(a) factors and most of defendant’s arguments for a lesser sentence. In response to defendant’s claim that the majority of the images on his computer were child erotica rather than child pornography, the court noted that the images ranged from “masochistic portrayals of deviancy” to “so-called erotica, but even [the latter was] a terrible victimization.” Although defendant’s conduct did not involve touching children, the court noted that offenders like defendant “help drive this market.” Defendant’s claim that he deserved a lesser sentence because he had zero criminal history points was already taken into account by the guidelines. Defendant’s sentence within the Guidelines range was presumptively reasonable. U.S. v. Duane, 533 F.3d 441 (6th Cir. 2008).
6th Circuit finds guideline sentence was not plain error. (742) Defendant argued that his 30-month sentence for being a felon in possession of a firearm was procedurally unreasonable. The Sixth Circuit reviewed for plain error, and found none. In its recent en banc decision in U.S. v. Vonner, 516 F.3d 382 (6th Cir. 2008), the court made clear that plain error review applies to post-Booker procedural reasonableness challenges where defendant replied “No” when court asked the parties whether they had any objections to the sentence. Plain error is a heavy burden, and defendant could not meet this standard. The district court clearly rejected defendant’s self-defense argument, pointing out that defendant made no attempt to avoid confrontation and had worked as a bodyguard, which put other people at risk by bringing them into close contact with him. Although the court did not specifically respond to defendant’s claim concerning the health of his mother, its statement that it “contemplated exceeding the guidelines in this case” and that defendant was “as much an aggressor as a victim” indicated that the court found defendant too dangerous to allow in public after only five months’ imprisonment. The court’s recommendation that defendant serve his sentence in his hometown, near his mother, showed that it considered defendant’s concern for his mother’s health. U.S. v. Phillips, 516 F.3d 479 (6th Cir. 2008).
6th Circuit finds defendant did not rebut presumption of reasonableness for guideline sentence. (742) Defendant argued that his 117-month sentence, which fell within his advisory guideline range, was unreasonably long. The Sixth Circuit, en banc, held that defendant did not rebut the presumption of reasonableness that appellate courts apply when reviewing a within-guidelines sentence. Because defendant committed murder at age 18, committed an assault shortly after release from prison and then turned to drug dealing, “the district court could fairly conclude that the need for public protection and the risk of recidivism were great while the immediate prospects for rehabilitation were not promising.” Defendant’s claim that he had no other means to earn a living after being released from prison did not show the court abused its discretion in imposing a sentence in the bottom half of his guideline range. U.S. v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc).
6th Circuit rejects claim that downward variance was not sufficiently large. (742) Defendant’s guideline range was 360 months to life, and the district court originally sentenced him to 360 months. After a subsequent remand in light of Booker, the district court resentenced him to 300 months. Defendant argued that his sentence was substantively unreasonable because the downward variance was not large enough. The Sixth Circuit affirmed the sentence. The district court was not required to make a specific finding that stated the reasons why it imposed a sentence higher than the statutory minimum. The statutory minimum is not a sentencing factor. The district court did not err by relying on general deterrence considerations when it sentenced defendant. The court also did not err in relying on Congress and the Sentencing Commission as to sentencing factors of deterrence and retribution. The Sentencing Guidelines range is an explicit factor that a defendant court must consider in it sentencing analysis. See 18 U.S.C. § 3553(A)(4). The district court properly considered defendant’s rehabilitation. Moreover, his rehabilitation was not atypical or exceptional such that it warranted a variance larger than the five years already granted. Judge Merritt dissented, finding the district court mechanically relied on the Guidelines, despite finding that the goals of rehabilitation and incapacitation would call for a much lesser sentence. U.S. v. Phinazee, 515 F.3d 511 (6th Cir. 2008).
6th Circuit holds that sentence at bottom of guideline range was not unreasonable. (742) Defendant, a corrections officer, was convicted of conspiracy to violate the rights of detainees and prisoners of the county jail. He argued that his 70-month sentence, which fell at the bottom of his 70-87 month guideline range, was unreasonable. The Sixth Circuit affirmed, finding that the sentence at the bottom of the guideline range was reasonable. The court received and reviewed 135 letters of support that had been submitted on defendant’s behalf prior to sentencing. There was no doubt that the plea for leniency based on defendant’s otherwise good character was presented and fully considered, and the absence of any prior criminal history was cited as the reason for selecting a sentence at the bottom of the advisory guideline range. There was no unwarranted sentencing disparity. Although two co-conspirators received probationary sentences, they cooperated with the government and pleaded guilty to a different offense under a separate indictment. U.S. v. Conatser, 514 F.3d 508 (6th Cir. 2008).
6th Circuit upholds life sentence for supervisor who failed to provide medical care to prisoner. (742) Defendant and several other corrections officers were convicted of conspiracy to violate the rights of detainees and prisoners of the county jail. Defendant, the supervisor of one of the shifts, was also convicted of six substantive charges, and received a life sentence for his role in assaulting one prisoner, and then failing to provide necessary medical care, resulting in the prisoner’s death. Hale, the co-conspirator who actually inflicted the beating that resulted in the prisoner’s death, was sentenced to only 108 months. The Sixth Circuit rejected defendant’s claim that the life sentence, which fell within his guideline range, was substantively unreasonable. The district court gave significant consideration to the difference between Hale’s 108-month sentence and defendant’s life sentence. Although Hale inflicted the injuries that ultimately killed the prisoner, the jury found that defendant’s actions in denying medical care resulted in his death. The disparity was the product of a plea bargain and downward departure that Hale received, which is a legitimate basis for sentencing disparity. The judge also fully considered mitigating facts, such as defendant’s young age, the overcrowded conditions of the jail, his lack of proper training, his support from family and friends, the counseling he received, and his sincere expressions of remorse. The court found the case “difficult,” but nonetheless believed that the “heart-wrenching” circumstances did not warrant a below-guideline sentence. The sentence was harsh, but not unreasonable. U.S. v. Conatser, 514 F.3d 508 (6th Cir. 2008).
6th Circuit finds 294-sentence for drug offender with no criminal history reasonable. (742) Defendant argued that his 294-month drug sentence was unreasonable, because given his complete lack of any criminal history, “how could any court state that a sentence of twenty-four and one-half [] years for someone who has never spent one day in jail, is not unreasonable?” He contended that the court improperly weighed the relevant sentencing factors. The Sixth Circuit found no error. The court properly considered and weighed all of the § 3553(a) factors in light of defendant’s particular circumstances. In particular, the court found that the mitigating factors cited by the defendant (lack of criminal history and potential for rehabilitation) were offset by defendant’s significant contribution to the drug problem over a number of years. Also, while defendant may have had more potential for rehabilitation than many defendants because his family and educational background, those factors also weighed at least partially against defendant because he had more opportunities than many offenders to pursue lawful sources of income. Defendant did not establish that his lengthy sentence was unreasonable. U.S. v. Ward, 506 F.3d 468 (6th Cir. 2007).
6th Circuit finds 70-month sentence for child porn offense substantively unreasonable. (742) Defendant pled guilty to distribution of child pornography. His advisory guideline range was 188-235 months, but the court sentenced him to 70 months. The court noted that defendant himself had been a victim of sexual abuse and found that this was probably a cause of his deviant behavior. The court also said it was reconciling defendant’s sentence with previous sentences imposed on defendants for similar conduct. The Sixth Circuit held that the sentence was substantively unreasonable. Although the court noted defendant’s personal history, and emphasized that he had suffered sexual abuse as a child, the court failed to mention that defendant had previously molested his daughter. Moreover, the court suggested that the distribution of child pornography was less serious than enticing a child and emphasized that it did not appear that defendant intended to engage in sexual conduct with children. However, this consideration is already incorporated into the guidelines. Moreover, the guidelines have changed significantly between the time of the cases referenced by the court and when defendant’s offenses took place. The defendants in the purportedly comparable cases were sentenced in 2001 and 2002, prior to Congress’s enactment of the PROTECT Act. Finally, defendant’s sentence was almost the most extreme variance possible, since it was only 10 months more than the five-year mandatory minimum imposed by 18 U.S.C. § 2252A(b)(1); this left virtually no room to make future distinctions between defendant’s case and the cases of more worthy defendants. U.S. v. Fink, 502 F.3d 585 (6th Cir. 2007).
6th Circuit affirms where record showed court considered defendant’s sentencing argument. (742) Defendant attempted to bribe an IRS agent who was auditing his company’s income tax return. The district court rejected defendant’s request for a downward departure based on aberrant behavior, and his request for a sentence of home confinement. The court concluded that the most important § 3553(a) factors were the need for the sentence to reflect the seriousness of the offense, and to deter others. Thus, the court concluded that the sentence must include a significant term of incarceration, and sentenced defendant to 12 months and one day. The Sixth Circuit ruled that the sentencing court made a sufficient record of its consideration of defendant’s sentencing arguments, and the guideline sentence was not unreasonable. As to procedural reasonableness, the court offered clear reasons for its sentence, articulated the various § 3553(a) factors, and then identified the two factors it found most relevant. The record showed that the judge understood defendant’s family and business obligations, but did not believe they outweighed other § 3553(a) factors that the judge found more pertinent. While a better practice, post-Rita, would be for the sentencing judge to go further and explain why he had rejected each of the defendant’s non-frivolous arguments for a below-guideline sentence, the court did not run afoul of Rita. The 12-month sentence, which fell within the applicable guideline range, was substantively reasonable. U.S. v. Liou, 491 F.3d 334 (6th Cir. 2007).
6th Circuit finds sentence reasonable where court considered and rejected diminished capacity departure. (742) Defendant argued that his 235-month felon-in-possession sentence was unreasonable because the court failed to account for mitigating factors, primarily that defendant suffered from a “substantial mental handicap.” The district court considered defendant’s motion for a downward departure based on his diminished mental capacity under § 5K2.13, but ultimately found that defendant “long history of violence” and “unwillingness to conform his conduct to the law” precluded a departure. The Sixth Circuit found the sentence reasonable, since defendant failed to identify any relevant factor that the court neglected to consider. The mere allegation that the sentence imposed was greater than necessary to achieve the goals of punishment in § 3553(a) is insufficient to rebut the presumption of reasonableness. The court took into account defendant’s mental capacity and the nature of his crime and found that a sentence at the bottom end of the guideline range would provide the optimal balance between defendant’s personal circumstance and the need to protect the public. Nothing in the record indicated the court erred in this assessment. U.S. v. Crowell, 493 F.3d 744 (6th Cir. 2007).
6th Circuit finds facts did not support extreme downward variance in child porn case. (742) The guideline range for defendant’s child pornography offenses was 210-262 months, but the district court imposed a downward variance sentence of 72 months. The Sixth Circuit found that the sentence imposed was substantively unreasonable because the court gave insufficient weight to the guidelines, and the facts relied on by the court to support the variance were not extraordinary. Although the court may have “considered” the guidelines in that it accepted the overall guideline calculation, the court then ignored two of the enhancements (adding nine levels) in determining the appropriate sentence. The court found that the existence of sadistic images on defendant’s computer did not make his crime more serious because “sex between adults and children is inherently sadistic.” The court also chose to disregard the number of images defendant possessed. In addition, the court improperly gave weight to the fact that defendant never engaged in interactive behavior with children, which was of little relevance to the offense of conviction. Finally, the facts relied on by the court to support the variance (defendant’s lack of criminal history, status as a decorated war veteran with stable employment history, and his amenability to treatment) were not sufficiently compelling to justify the extreme variance. U.S. v. Borho, 485 F.3d 904 (6th Cir. 2007).
6th Circuit finds 235 months reasonable for armed career criminal. (742) Defendant, convicted of being a felon in possession of a firearm, had four prior convictions for “violent felonies” under the Armed Career Criminal Act (18 U.S.C. § 924(e)) and a total of 23 criminal history points. Under the ACCA, defendant had a sentencing range of 235-293 months. The district court imposed a sentence of 235 months, noting that neither the presentence report nor defendant had identified any positive information about the defendant. The Sixth Circuit held that in light of defendant’s extensive criminal history, the sentence was not unreasonable. U.S. v. Nance, 481 F.3d 882 (6th Cir. 2007).
7th Circuit approves sentence at bottom of guidelines range. (742) Defendant was convicted of fraud in connection with a scheme to file false tax returns. The district court sentenced her to 51 months, the bottom of her 51-63-month guideline range. Defendant challenged the reasonableness of the sentence, noting that she was sentenced based on the intended losses and not the lower actual loss; that she had no role in selecting the tax refund amounts; that co-conspirator Robtrel received a much larger share of the profits; and that only 19.3% of the fraudulent returns were filed while she was a member of the conspiracy. The Seventh Circuit upheld the within-guidelines sentence as substantively reasonable. The district court expressly addressed defendant’s argument for a lower sentence based on her role compared to Robtrel’s, and in fact gave her a lower sentence. Defendant also claimed the court failed to give proper weight to her role as the primary caregiver to her two teenage sons and her teenage nephew. However, there were no “extraordinary hardships” here. Although defendant cared for her children and nephew, there was nothing to take this case out of the normal realm of hardship all children suffer when a caregiving parent is incarcerated. U.S. v. Williams-Ogletree, 752 F.3d 658 (7th Cir. 2014).
7th Circuit rules defendant’s bipolar disorder was not “principal argument in mitigation.” (742) Defendant argued that the district court made a procedural error by failing to address her diagnosis of a mental illness, bipolar II disorder, which defendant termed her “principal argument” in mitigation. See U.S. v. Cunningham, 429 F.3d 673 (7th Cir. 2005) (sentencing judges must address a defendant’s principal arguments in mitigation when those arguments have recognized legal merit). The Seventh Circuit affirmed defendant’s sentence, finding defendant did not present the fact of her diagnosis as part of a principal argument in mitigation. Her attorney’s assertion at sentencing that defendant’s bipolar II disorder was “not an excuse but an explanation” for her crimes was not a developed “principal argument” that the district court was required to address. Moreover, defendant waived her claim of a Cunningham procedural error by telling the district court at the close of her sentencing hearing that she had no objection to her sentence apart from the fact that the sentence was above the guideline range. U.S. v. Donelli, 747 F.3d 936 (7th Cir. 2014).
7th Circuit rejects minor role for defendant who recruited others but waited in car during robbery. (742) Defendant and three others conspired to rob a bank. Defendant argued that he was entitled to a minor role reduction because he was less culpable than Thompson (who worked at the bank and assisted in the robbery), Schoenhaar (the principal executor of the robbery), and Gregory (Thompson’s boyfriend and the driver of the getaway car). The Seventh Circuit disagreed. Defendant was as culpable as Schoenhaar, and more culpable than the others: he recruited Schoenhaar to execute the robbery and supplied him with the pellet gun that Schoenhaar used in the robbery. Given the defendant’s age (62) and poor health, a sentence of 92 months was admittedly stiff. However, it was so far below the bottom of the guideline range (151-188 months) that it could not be thought excessive. U.S. v. Bey, 748 F.3d 774 (7th Cir. 2014).
7th Circuit says court adequately considered § 3553(a) factors in refusing downward variance. (742) Defendant was convicted of racketeering and related charges. The Seventh Circuit found no procedural error in his 25-year sentence, rejecting defendant’s claim that the court failed to give adequate consideration to the factors listed in 18 U.S.C. § 3553(a). The court did not overlook mitigating evidence of defendant’s good works in his community and his support from family and friends. The court simply chose to give this aspect of his background little weight in light of the fact that he engaged in criminal activity shortly after serving his previous sentences for similar offenses, his evident lack of respect for the law, the danger his crimes posed to the community, and the need to provide deterrence to whoever replaced defendant in his criminal organization. The court did not fail to give adequate attention to defendant’s arguments that he posed a lesser risk of recidivism based on his age and health, his family and community ties, and his remorse for his actions. Defendant exhibited no remorse, and the court rejected defendant’s argument that he no longer posed a risk. U.S. v. Volpendesto, 746 F.3d 273 (7th Cir. 2014).
7th Circuit says de facto life sentence was not unreasonable. (742) Defendant was convicted of racketeering related charges, and was sentenced to 25 years. He argued that the sentence was substantively unreasonable because it amounted to an effective life sentence. Defendant was 54 at sentencing, and although his release was technically within his life expectancy, he contended that his poor health meant that he would likely die in prison. The Seventh Circuit held that the 25-year sentence was substantively reasonable. Courts have previously found de facto life sentences reasonable where the district court determined, as the court did here, that the defendant’s criminal history showed a risk of recidivism and lack of respect for the law. U.S. v. Volpendesto, 746 F.3d 273 (7th Cir. 2014).
7th Circuit holds that 720-month sentence was substantively reasonable. (742) Defendant was convicted of RICO conspiracy and related charges. His guideline range was 360 months to life, and the district court sentenced him to 720 months, or 60 years. Defendant was 44 at the time of sentencing. The Seventh Circuit held that the de facto life sentence was substantively reasonable. The district court explained that it chose a 60-year sentence because to “reflect[ ] the seriousness of [defendant’s] ongoing criminal offense and provide[ ] a punishment that is just for all that he has done.” The judge emphasized how “organized criminal activity performed over a long period of time, deliberate and purposeful, poses a greater threat to the very fiber of our community.” A serious sentence was necessary because “the public needs to be protected both from [defendant] and from the idea that organized criminal activity might well be worth something….” Thus, the court adequately tied its 60-year sentence to the factors listed in 18 U.S.C. § 3553(a). U.S. v. Volpendesto, 746 F.3d 273 (7th Cir. 2014).
7th Circuit approves upward variance in failure to appear case. (742) Defendants pled guilty to two counts of conspiracy, absconded, were apprehended 12 years later, and then pled guilty to failure to appear at sentencing. The district court grouped the three counts together, and imposed above-guideline sentences. Defendants argued for the first time on appeal that the district court failed to properly follow the guidelines procedure for imposing sentences on the failure to appear counts. The Seventh Circuit disagreed. The district court acknowledged that it was to apportion part of the total sentence to the underlying offenses and part to the failure to appear. However, after considering the 18 U.S.C. § 3553 factors, it determined that a variance was warranted. The district court noted that the victims of the defendants’ fraud were neither wealthy nor sophisticated, and many were elderly. The money they lost was their life savings that they intended as a loan to someone they regarded as a friend, not an investment with attendant risk. The main aggravating factor was the fact that the defendants had avoided the consequences of their crimes for 12 years. The defendants stole not only their victims’ money, but also their right to a sense of justice, particularly from those victims who died before defendants were apprehended. U.S. v. Hallahan, 744 F.3d 497 (7th Cir. 2014).
7th Circuit reverses for failure to adequately address defendant’s argument about child porn guidelines. (742) Defendant was convicted of possessing child pornography. He requested a five-year sentence, arguing that a 2010 Sentencing Commission survey demonstrated that 70% of federal judges found the child porn guidelines in a case like this were extreme and unwarranted. When addressing defendant’s argument, the judge stated that defense counsel made “some comment” about “this level of punishment for these images. I, frankly, don’t see the degree of disconnect that [defense counsel] does.” The Seventh Circuit reversed, noting that it had previously held that defendant’s argument about the child porn guidelines was a valid argument that a sentencing judge must address. U.S v. Martin, 718 F.3d 684 (7th Cir. 2013). Nor did the judge “implicitly” consider the argument, because he stated that he did not know the exact context of defendant’s argument, simply referring to it as “some comment.” This “comment” was defendant’s main argument for leniency, and it was unclear whether proper consideration of it would have affected defendant’s prison term. The error was therefore not harmless. U.S. v. Poulin, 745 F.3d 796 (7th Cir. 2014).
7th Circuit says court adequately considered defendant’s mitigating argument. (742) Defendant was convicted of fraud charges, and sentenced to 120 months. He argued that he should have been given home confinement rather than incarceration because the Bureau of Prisons would be unable to care for him due to his morbid obesity (he weighed 440 pounds); severe uncontrolled kidney disease; and a number of other medical conditions. The Seventh Circuit disagreed, finding that the district court considered and rejected defendant’s argument that he should not be incarcerated because no BOP facility could care for him. After hearing and considering testimony on this precise issue from defendant’s brother, a medical doctor, the district court stated: “I recognize [defendant’s] medical issues, and in this case, I will not order his surrender to custody until a reasonable arrangement has been made for his incarceration.” The district court then listed two prisons that had adequate BOP medical facilities, noting that these facilities had specialists available to see inmates, and not just generalists and physician’s assistants. Simply because the district court disagreed with the weight defendant believed his mitigation argument was worth did not prove that the district court failed to consider it. U.S. v. Dachman, 743 F.3d 254 (7th Cir. 2014).
7th Circuit finds 576-month guideline sentence for drug offenses was substantively reasonable. (742) Defendant argued that his 576-month sentence for drug offenses, a de facto life sentence, was unreasonably long. The Seventh Circuit disagreed. Defendant’s sentence was within his guidelines range, and thus was presumptively reasonable. In fact, the court could have imposed a life sentence and still remained within defendant’s guidelines range. The district court recounted the § 3553(a) factors and concluded that, despite the significant cost of incarceration, a within-guidelines sentence was appropriate in light of defendant’s egregious criminal history, including nine prior felony drug convictions, and serious present offenses, including distributing at least 28 grams of crack cocaine and 100 kilograms of marijuana. The record demonstrated that defendant repeatedly refused to give up his life of criminal drug distribution, despite the efforts of the justice system to deter him. U.S. v. Cheek, 740 F.3d 440 (7th Cir. 2014).
7th Circuit upholds reasons for refusing to reduce sentence based on mental illness. (742) Defendant pled guilty to two counts of production of child pornography, and was sentenced to 360 months. The district court rejected his request for a 20-year sentence, expressing doubt that defendant’s conduct was attributable to his medication, his lack of medication or his mental illness. The Seventh Circuit held that the district court adequately explained its reasons for imposing the 360-month sentence. The court thoroughly addressed the issue of defendant’s mental illness and any possible mitigating role it should have played in his sentence. The court actively pursued the matter, interrupting defendant’s allocution and questioning him directly about his mental health history. The court acknowledged that defendant “clearly … has a mental issue,” but was unable to accept that there was a connection between defendant’s mental illness and the crimes to which he pleaded. U.S. v. Starko, 735 F.3d 989 (7th Cir. 2013).
7th Circuit remands where court failed to explain guideline sentence. (742) Defendant was convicted of being a felon in possession of a firearm, and was sentenced as an Armed Career Criminal to 210 months, which was at the bottom of his 210-262 month guideline range. Defendant argued on appeal that the district court erred in failing to adequately explain its sentence, and the Seventh Circuit agreed. Although less explanation is typically needed when a district court sentences within an advisory guideline range, a district court may not simply presume that a particular within-guidelines sentence is reasonable. Here, the record was “too thin to discern the considerations which motivated the district court’s sentencing decision.” U.S. v. Lyons, 733 F.3d 777 (7th Cir. 2013).
7th Circuit affirms upward variance despite failure to discuss aspects of psychiatrist’s testimony. (742) Defendant was convicted of multiple child pornography offenses, and sentenced to 1380 months. During sentencing, defendant offered testimony in mitigation from a psychiatrist. The district court discussed some of the psychiatrist’s findings, but neglected to mention other findings, most notably the doctor’s contentions that defendant’s history of sexual and psychological abuse as a child contributed to his decision to commit his offenses, and that defendant was unlikely to reoffend. The Seventh Circuit ruled that the fact that court did not discuss the psychiatrist’s testimony concerning the effects of defendant’s premature sexualization or his views of defendant’s prospects for rehabilitation did not rise to the level of procedural error. The court gave appropriate consideration to how each of the relevant § 3553(a) sentencing factors applied in defendant’s case, and paid particular attention to the mitigating evidence presented by the psychiatrist. The fact that the judge did not draw the same inference as the psychiatrist—that defendant was unlikely to reoffend—did not amount to procedural error. U.S. v. Hodge, 729 F.3d 717 (7th Cir. 2013).
7th Circuit holds that court adequately discussed § 3553(a) factors in child porn case. (742) Defendant was convicted of possession and distribution of child pornography and tampering with a potential witness. Defendant challenged his 480-month sentence, arguing that the district court should have discussed the § 3553(a) factors specifically with respect to the tampering charge as distinct from the child pornography charge. The Seventh Circuit found no error. A sentence below the guidelines range is presumed reasonable. Here, the district court fully discussed the § 3553(a) sentencing factors over several transcript pages. The court recounted the particularly disturbing nature of the child pornography in question (including the image with text offering to “rent” a child for sex), the testimony at sentencing of at least one woman whom defendant brutally coerced into sexual exploitation at the age of fifteen, defendant’s calls to his wife from jail in an effort to manipulate her, and his “inordinate preoccupation” with law enforcement in light of the evidence that he impersonated police officers on more than one occasion. Though the court did not dwell on the witness tampering charge, the record demonstrated that the sentencing process was fair overall. U.S. v. Eads, 729 F.3d 769 (7th Cir. 2013).
7th Circuit approves below-guideline sentence despite claim of “prosecutorial heavy-handedness.” (742) Defendant pled guilty to drug and firearms charges. He argued on appeal that his below-guideline 180-month sentence was erroneous because the judge did not comment on his arguments that prosecutorial heavy-handedness was the real reason he was a career offender, and that the federal sentence should run concurrently with any state-imposed sentence. The Seventh Circuit held that the 180-month sentence was reasonable. First, the sentence was below his correctly calculated guideline range of 188-235 months. Second, the judge rejected the premise of defendant’s argument, and then went on to explain why the 180-month sentence was reasonable based on the particular circumstances of the case: defendant had been involved in criminal activity since he was 13, had shown no sign of stopping, continued to possess firearms after being convicted of a felony, and posed a continuing threat to the community. Thus, the judge considered and rejected defendant’s argument that the guideline range did not accurately reflect his criminal history. The judge also acknowledged and rejected the argument that the sentence should run concurrently with any state-imposed sentence. U.S. v. Howard, 729 F.3d 655 (7th Cir. 2013).
7th Circuit affirms sentence at bottom of range, despite aberrant behavior claim. (742) Defendant robbed a bank by pretending to have a gun. Thirty-six days later he carried a gun to rob a payday lender. He pled guilty to bank robbery. The district court sentenced him to 41 months, the low end of the range, after denying an aberrant behavior departure under § 5K2.20. On appeal, the Seventh Circuit expressed skepticism that defendant’s conduct was aberrant behavior, given that he committed two robberies. However, it did not decide this issue, because Booker made departures obsolete. The guidelines are no longer binding. Here, the judge gave thoughtful consideration not only to § 5K2.20, but also to the independent possibility that defendant’s crimes were aberrational. The judge remarked on defendant’s “lifetime of rectitude and hard work, devotion to family and a course of conduct that can really only be described as exemplary.” The judge said he selected the low end of the range because it would “take account of the previous law-abiding life of the defendant.” The sentence was reasonable and there was no error. U.S. v. Townsend, 724 F.3d 749 (7th Cir. 2013).
7th Circuit says fact that career offender guidelines are Congressionally mandated did not overcome presumption of reasonableness. (742) Defendant was sentenced as a career offender to a within-guidelines sentence of 151 months. He sought to rebut the presumption that within-guideline sentences are reasonable. First, he argued that the Commission did not develop the career offender guidelines using its usual empirical approach; rather it followed a Congressional mandate. Second, he argued that his personal characteristics made his sentence substantively unreasonable. The Seventh Circuit rejected both arguments, finding that a Congressionally mandated guideline was entitled to a presumption of reasonableness, and that the sentence was otherwise reasonable.. Defendant’s criminal record in his young life stretched over 10 years, and was violent and put the public at serious risk. His behavior did not place his offense outside the heartland of drug offenses and the career-offender guideline. U.S. v. Smith, 721 F.3d 904 (7th Cir. 2013).
7th Circuit approves top of guideline range sentence for fraud defendant. (742) Defendant, a broker who sold financial investments, stole more than $6 million of her clients’ money. She was sentenced to 210 months, at the top of her 168-210 month guideline range. The Seventh Circuit held that the sentence was substantively reasonable. In addressing the nature of the crime, the district court noted defendant’s unique approach of ingratiating herself to victims so that they would not question her decisions with regard to their money, her pattern of targeting older persons, and how this harm to victims was especially serious and intangible. Regarding the seriousness of the crime, the court noted that even if the guidelines changed, it would still impose a long sentence because of “the effect on these victims in this case and the amount of loss in this case.” The court also noted that defendant used “sales tactics that made them trust the defendant and believe in her, and her criminal acts of fraud and deception that ultimately left them so devastated.” U.S. v. Harris, 718 F.3d 698 (7th Cir. 2013).
7th Circuit holds that court was not required to address defendant’s “factor creep” argument. (742) Defendant pled guilty to bank fraud and related charges. He sought a below-guidelines sentence, contending that the guidelines specify an excessive sentence for a white collar crime like fraud, noting the substantial lengthening of the sentencing ranges for fraud, larceny, and similar offenses over the last two decades. The longer sentences are the result of a three-fold increase in the number of specific offense characteristics (from six to 18) incorporated into the fraud guideline, see § 2B1.1(b), a phenomenon that has been described as “factor creep.” Defendant contended that the Sentencing Commission has allowed factor creep to substantially increase the penalties for fraud offenses without empirical data to suggest that harsher penalties were necessary. The Seventh Circuit held that the district court did not err in failing to address defendant’s factor creep argument, because it was a blanket challenge to the guideline rather than being tailored to his unique characteristics and circumstances. U.S. v. Schmitz, 717 F.3d 536 (7th Cir. 2013).
7th Circuit upholds refusal to grant variance based on defendant’s health conditions and age. (742) Defendant pled guilty to bank fraud and related charges. He sought a below-guidelines sentence, arguing that because his age (60), combined with a variety of health conditions (high blood pressure, high cholesterol, coronary heart disease, and an enlarged prostate), meant he had both a shorter life expectancy and a lower risk of re-offending, a sentence within the advisory range was greater than necessary. The Seventh Circuit found no error in the court’s imposition of a guideline sentence. The district judge expressly addressed defendant’s argument, but found that none of defendant’s conditions was out of the ordinary for a person of his age, and that all could be appropriately treated during his incarceration. Although defendant contended that the prison term would consume his remaining productive years, this was not true. By the time he completed his term he would only be in his mid-60s, which by today’s standards did not represent the end of one’s active years. U.S. v. Schmitz, 717 F.3d 536 (7th Cir. 2013).
7th Circuit upholds 40-year sentence for child porn offender as substantively reasonable. (742) Defendant pled guilty to multiple child pornography counts, and received a 40-year sentence. The guidelines had recommended a sentence of 50 years. The Seventh Circuit held that defendant did not overcome the presumption that the below-guidelines sentence was substantively reasonable. The sentencing court made its best estimate as to when it would be safe to return defendant to the general public, taking into account the unusually large amount of information it had about defendant. Federal sentencing law requires no more than reasonableness, and a 40-year sentence for this particular 35-year-old was “consistent with what we know from the perspective of incapacitation.” Defendant’s near-blindness was “a powerful and grievous mitigating factor,” but did not make the 40-year sentence unreasonable. Given defendant’s efforts to obtain child pornography while in pretrial detention, his argument that supervised release conditions would be adequate to protect the public was not persuasive. U.S. v. Annoreno, 713 F.3d 352 (7th Cir. 2013).
7th Circuit holds that below-guideline sentence was procedurally and substantively reasonable. (742) Defendant bilked investors out of more than $70 million. The district judge sentenced him to 160 months, which was below his guideline range of 188-235 months. The Seventh Circuit rejected defendant’s claims that his sentence was procedurally and substantively unreasonable. The district judge specifically stated that he had weighed “all of the 3553 factors” both in mitigation and in aggravation. It was clear from the face of the record that the judge gave “meaningful consideration,” to both of defendant’s mitigating arguments. The below-guideline sentence was also substantively reasonable. Although there were mitigating factors, the judge found he had to consider the “extraordinarily serious nature of the underlying crime.” Defendant was a “key player” in the large-scale theft and fraud. Even worse, defendant stole medical savings from clients and used them to finance his own “high-rolling lifestyle.” Stealing health care money from sick people justified a lengthy sentence. U.S. v. Banas, 712 F.3d 1006 (7th Cir. 2013).
7th Circuit affirms below-guidelines child porn sentence as not unreasonably high. (742) Defendant pled guilty to transporting child pornography in foreign commerce. His guideline range was 151-188 months. The court found that in nearly every child porn case, the guideline range was “too severe,” and sentenced him to 87 months. Defendant argued procedural error in the court’s failure to consider avoiding “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Defendant compared his final offense level to the base offense level for conduct that, in defendant’s eyes, was more severe than his. The Seventh Circuit held that the district court adequately considered the § 3553(a) factors. Comparing a final offense level to the base offense level of other crimes is not a valid gauge of unwarranted disparities. More importantly, when a district court has correctly calculated a guideline range, courts can “assume that significant consideration has been given to avoiding unwarranted disparities between sentences.” This assumption applied with added force where defendant did not challenge the court’s guideline calculation, and the court imposed a sentence well below the suggested guideline range. U.S. v. Dean, 705 F.3d 745 (7th Cir. 2013).
7th Circuit upholds 70-year sentence for child porn based on defendant’s risk of recidivism. (742) Defendant created hundreds of sexually explicit images and videos involving two of his own children. He pled guilty to four counts of manufacturing and one count of possessing child porn, and was sentenced to a total of 70 years. Defendant’s guideline range was life in prison. Nonetheless, he challenged the below-guidelines sentence, arguing that it was improperly based on the conclusion that defendant was certain to recidivate. The Seventh Circuit upheld the sentence, finding defendant mischaracterized the rationale for the court’s sentence. There was conflicting expert testimony about defendant’s risk of recidivism. The court simply weighed the evidence before it and concluded that the risk of future crimes was a factor in favor of a lengthy sentence. The district court did not improperly ignore defendant’s argument that he was not likely to recidivate. Even though defendant’s evidence was not specifically mentioned, the district court rejected it by implication when it focused on the fact that defendant was a pedophile who expressed an alarming lack of remorse for his crimes after being caught. U.S. v. Boroczk, 705 F.3d 616 (7th Cir. 2013).
7th Circuit finds court properly considered mitigating factors at sentencing. (742) Defendant argued that the district court did not meaningfully consider his argument at sentencing that he was likely to be deported following his release from prison. The Seventh Circuit found no error. Although the district judge did not explicitly discuss defendant’s deportation argument, the judge’s discussion demonstrated that he gave meaningful consideration to the § 3553(a) factors. In addressing the possibility of mitigation, the judge discussed the modesty of defendant’s criminal history, his contributions to his family, and his employment history. The judge pointed out that defendant was married with a child, but stated that defendant’s family circumstances were “unremarkable.” In explaining the appropriateness of a guidelines sentence, the judge emphasized how troubled he was by the nature and circumstances of the offense. He noted that defendant possessed more than twice the maximum amount of methamphetamine considered under the guidelines, and that the drugs were stored with loaded guns. Finally, the judge mentioned his dissatisfaction with defendant’s elocution in court, because defendant placed the blame on the agents rather than taking responsibility for the crime. U.S. v. Ramirez-Fuentes, 703 F.3d 1038 (7th Cir. 2013).
7th Circuit approves consecutive 20 and 30-year sentences where guideline was life. (742) Defendant pled guilty to four counts of producing child pornography. Because his total offense level was 43, the guideline sentence for each count was life. However, the statutory maximum for each count of conviction was 30 years. The judge sentenced defendant to the 30-year maximum on one count, and to concurrent sentences of 20 years on each of the remaining three counts, but ordered that the set of 20-year sentences be served consecutively to the 30-year sentence, making the total sentence 50 years. The Seventh Circuit held that the court’s decision to make defendant’s three concurrent 20-year sentences run consecutively to the 30-year sentence was reasonable. The guidelines recommend that the judge sentence consecutively when necessary to bring the total sentence into the guidelines range, even though the sentence would exceed the statutory maximum sentence for any count of which the defendant was convicted, § 5G1.2(d). The sentence fell within the guideline range and therefore was presumed on appeal to be reasonable. U.S. v. Craig, 703 F.3d 1001 (7th Cir. 2012).
7th Circuit remands to determine defendant’s portion of child porn victims’ damages. (742) Defendant pled guilty to seven child pornography counts. In addition to imprisonment and a lifetime term of supervised release, defendant was ordered to pay restitution to two women, identified as Amy and Vicky, in the amount of $3.3 million and $965,000, respectively. Pornographic images of them, as girls, were found in defendant’s possession. The Seventh Circuit remanded to the district court to determine the portion of the victims’ damages allocable to defendant. Both women were the subjects of child pornography that was widely disseminated online. The judge assessed Vicky’s loss as $1,224,697.04, but because she had already recovered $258,869.40 from other defendants, he ordered the defendant to pay only the unpaid balance of $965,827.64. He awarded the entirety of Amy’s losses, calculated at $3,367,854, even though her lawyer acknowledged that she had already recovered about half those losses. The lawyer should have specified the entire amount recovered, and the district court should then have subtracted that amount, as he did with Vicky. In addition, the court must determine whether the defendant uploaded any of Amy’s or Vicky’s images. Defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. U.S. v. Laraneta, 700 F.3d 983 (7th Cir. 2012).
7th Circuit approves 30-year sentence for multiple child porn offenses. (310) Defendant pled guilty to seven child pornography counts, and was sentenced to 30 years’ imprisonment and a lifetime term of supervised release, plus restitution to two women. The maximum prison sentence for six of the counts (receiving, distributing and transporting child pornography) was 20 years, and the judge ordered the sentences for these six offenses to run concurrently. However, it made the 10-year sentence for the seventh offense, possession of child pornography, consecutive to the other sentences, which increased defendant’s prison term to 30 years. The Seventh Circuit held that the 30-year sentence was reasonable. Defendant actually received a below-guidelines sentence. The guidelines sentence would have been life imprisonment (but was not imposed because it exceeded the statutory maximum), in part because of the “pattern of activity” guideline, § 2G2.2(b)(5), which provides for a five-level increase. U.S. v. Laraneta, 700 F.3d 983 (7th Cir. 2012).
7th Circuit approves 40-year sentence for child porn where defendant also committed “hands-on” sex offense. (742) Defendant pled guilty to producing child pornography and was sentenced to 40 years. The Seventh Circuit rejected defendant’s argument that the district court did not fully evaluate his arguments in mitigation. The “mitigating” factors he cited lacked evidentiary foundation or amounted to stock arguments that required no response from the judge. The court was not required to discuss defendant’s purportedly low risk of recidivism because there was no factual basis to support the contention. The recidivism studies cited by defense counsel concerned “sex offenders” generally, rather than a pedophilic sex offender like defendant who committed both a child-pornography offense and a “hands-on sex crime.” Defendant did not offer any empirical evidence to support his claim that the compulsion to produce child pornography would be diminished as he got older. The remaining factors in mitigation listed in defendant’s brief – his “sincere desire for treatment,” his “deep remorse,” his history of gainful employment, and the support of family and friends – were generic arguments that required no mention by the district court. U.S. v. Chapman, 694 F.3d 908 (7th Cir. 2012).
7th Circuit affirms below-guideline sentence for threats as not unreasonably high. (742) Defendant met a woman while working as a serviceman in her home, pursued her, and eventually left threatening telephone messages for her, her divorce attorney, and several others. His guideline range was 33-41 months, and the district court imposed a below-guidelines sentence of 24 months. Nonetheless defendant appealed, arguing that the 24-month sentence was substantively unreasonable. The 7th Circuit upheld the sentence. The district court properly considered the sentencing factors in 18 U.S.C. § 3553(a) and adequately explained their application to defendant’s case. The sentence was entitled to a presumption of reasonableness, and it was not unreasonably high. Defendant’s actions were “disturbing and frightening,” particularly because he continued to scare his victims even after being warned by the FBI; investigators found maps of his victims’ locations in defendant’s house; and he resisted arrest. The district court considered these arguments and gave defendant a below-guidelines sentence. The sentence was neither excessive nor unreasonable. U.S. v. Lemke, 693 F.3d 731 (7th Cir. 2012).
7th Circuit affirms 30-year sentence for crack offense as substantively reasonable. (742) Defendant was convicted by a jury of possession of crack cocaine with intent to distribute and sentenced as a career offender to 30 years in prison. He argued that 360 months was an unreasonably long sentence because: (1) he was a “small time, small quantity” dealer and not a “repeat drug trafficker”; (2) career-offender enhancements disproportionately affect black offenders; and (3) career-offender enhancements do not reduce recidivism. The Seventh Circuit found these argument were insufficient to overcome the appellate presumption that defendant’s within-guidelines sentence was reasonable. The district court thoroughly considered defendant’s arguments as well as the relevant § 3553(a) factors. The judge noted that defendant had “steadily become involved in more serious drug crimes” since his first drug conviction at 17, and that he had failed to comply with restrictions while on both probation and parole. The judge ultimately concluded that defendant’s unbroken criminal history warranted the lengthy incapacitation called for by the advisory guidelines. U.S. v. Freeman, 691 F.3d 893 (7th Cir. 2012).
7th Circuit says court did not ignore defendant’s mitigation evidence. (742) Defendant and two co-defendants pled guilty to conspiring to use unauthorized accounts and aggravated identity theft. He received an above-guideline, 48-month term for the conspiracy, and a mandatory, consecutive 24-month term for aggravated identity theft. Defendant argued on appeal that the sentencing court overlooked the evidence he presented in mitigation, particularly proof that he left Wisconsin before the bulk of the fraudulent transactions occurred. The Seventh Circuit held that the district court adequately considered defendant’s mitigating evidence. The court considered defendant’s lesser participation in the conspiracy, but found it was outweighed by the severity of his crime and his underrepresented criminal history. The court stated that “lesser participation does [mollify the severity of the offense] … [b]ut that can’t be divorced from your history here.” It noted that defendant had never “complete[d] a successful supervision” and had one of the worst criminal records the court had ever seen. U.S. v. Trujllo-Castillon, 692 F.3d 575 (7th Cir. 2012).
7th Circuit holds that court adequately considered defendant’s family circumstances. (742) Defendant and her boyfriend stole debit-card information from customers of defendant’s nail salon, and used that information to make unauthorized ATM withdrawals. The district court sentenced her to 36 months, five months below the guideline range. She argued that the court did not consider the adverse effect on her young daughter. See § 5H1.6, Note 1(B)(ii) (encouraging courts to consider loss of caretaking). The Seventh Circuit acknowledged that defendant’s circumstances were unusual in that both parents faced prison time, and the court’s discussion about this issue was “bare-bones.” However, the district court did recommend that defendant serve her below-range prison term “as close as possible to her family” and in a “residential reentry center” (a halfway house). These recommendations might allow for outside visitation opportunities. The court said enough to satisfy the appellate court that it considered defendant’s family circumstances. U.S. v. Thi, 692 F.3d 571 (7th Cir. 2012).
7th Circuit approves reliance on “stale” conviction in illegal reentry case. (742) Defendant pled guilty to one count of illegal reentry after deportation. He received a 16-level enhancement under § 2L1.2(b)(1)(A) based on a 1985 drug conviction, resulting in a guideline range of 46-57 months. He was sentenced at the low-end of the range to 46 months. He argued that his 1985 conviction was stale, and overstated the seriousness of his current reentry offense. The Seventh Circuit ruled that the court sufficiently considered defendant’s arguments, and upheld the guideline sentence. The court addressed the seriousness of illegal reentry, and also discussed the defendant, including his family and ties to Colombia. All of these factors determined how much weight the court gave the 1985 conviction which was at the center of defendant’s argument for a below-guidelines sentence. The district court noted that defendant was not previously deterred by his prior federal prison sentence and as a result, only a within-guidelines sentence would meet the sentencing aims of § 3553. U.S. v. Marin-Castano, 688 F.3d 899 (7th Cir. 2012).
7th Circuit approves guideline sentence for child porn defendant. (742) Defendant sexually molested his girlfriend’s three-year-old daughter and took pornographic photos of her. He pleaded guilty to two counts of producing child pornography, and received concurrent sentences of 360 months, the bottom of his guidelines range but also the statutory maximum. Defendant argued that child-pornography guidelines skew toward the statutory maximum and that this, plus mitigating evidence in his PSR, rebutted the appellate presumption that a within-guidelines sentence is reasonable. The Seventh Circuit upheld the sentence as reasonable. Defendant’s argument amounted to a marginal-deterrence argument, i.e., that the harshest sentences must be reserved for the worst offenders. Marginal-deterrence arguments work only if the sentencing scheme actually encourages criminals to commit more-serious crimes. The child-pornography sentencing scheme does not do this – offenders worse than defendant can be given consecutive sentences or prosecuted separately for child molestation. Defendant’s disagreement with how the judge weighed the mitigating factors he raised did not establish an abuse of discretion. U.S. v. Reibel, 688 F.3d 868 (7th Cir. 2012).
7th Circuit rejects cultural assimilation departure for defendant with extensive criminal history. (742) Defendant pled guilty to being in the United States without permission after he had been deported. He was sentenced to 71 months, at the top of his advisory guideline range. He argued that he should have been given a lenient sentence because he had moved to the United States at the age of 3 and so had undergone “cultural assimilation,” i.e. he had become in a practical sense an American. However, under Note 8(C) to § 2L1.2, a departure based on cultural assimilation is proper only when “such a departure is not likely to increase the risk to the public from further crimes of the defendant.” Given defendant’s criminal record, which included both arrests and a conviction for crimes that he committed after his illegal reentry, the Seventh Circuit found no basis for a cultural-assimilation departure. U.S. v. Lopez-Hernandez, 687 F.3d 900 (7th Cir. 2012).
7th Circuit says 78-month sentence was not de facto life sentence for 70-year-old defendant. (742) Defendant pled guilty to drug and firearms charges, and was sentenced to 78 months, which fell at the bottom of his 78-97 month guideline range. Defendant’s lawyer filed an Anders brief, seeking leave to withdraw on the ground that there was no colorable ground for an appeal. The only possible ground was the judge’s decision not to give a below-guidelines sentence despite defendant’s age. Defendant’s lawyer had argued that defendant should get a shorter sentence because he was 70 years old, and might die before he was released from prison. The Seventh Circuit found that the sentence imposed was reasonable, and defendant’s current lawyer was right to disclaim the existence of a colorable ground of appeal. Although persons convicted of a crimes committed when they are 70 or older are unlikely to commit further crimes, defendant was an unusual case. He was devoted to guns and drugs, and hosted parties in his home at which he and his guests consumed drugs, and he bought and sold guns in his crime-ridden neighborhood. Moreover, he was not frail. His age and physical condition did not make his sentence a de facto life sentence. U.S. v. Johnson, 685 F.3d 660 (7th Cir. 2012).
7th Circuit affirms sentence at bottom of range where defendant failed to overcome presumption of reasonableness. (742) Defendant pled guilty to making false statements in a tax return for underreporting his gross receipts. He argued that the district court erred at sentencing by failing to consider his request for a below-guidelines sentence based on his claim that the tax loss overstated the seriousness of the offense. The Seventh Circuit held that the 24-month sentence, which fell at the bottom of defendant’s guideline range, was reasonable. It was within the guideline range, and there was no basis to overcome the presumption of reasonableness that attaches to a guideline sentence. Although the court did not expressly discuss defendant’s argument, in rejecting defendant’s arguments for a lower tax loss calculation, the district court made clear that a lower figure was not justified because defendant had not provided adequate documentation. Under these circumstances, there was no reason for the district court to discuss defendant’s argument in more detail when setting the sentence at 24 months. Moreover, in sentencing defendant, the district court stated that it had considered defendant’s arguments, but that the need to provide deterrence in the arena of self-reporting taxes justified the sentence. U.S. v. Psihos, 683 F.3d 777 (7th Cir. 2012).
7th Circuit holds that below-guideline sentence was reasonable. (742) Defendant ran an elaborate mortgage fraud scheme. The court sentenced him to 216 months, below the low-end of his 235-295-month guideline range, plus a mandated consecutive 24-month-sentence for identity fraud. The Seventh Circuit upheld the sentence as reasonable, rejecting defendant’s argument that the judge demonstrated personal bias against defendant for hurting and bringing down his co-defendant’s in the scheme. The court adequately explained the 18 U.S.C. § 3553(a) factors and its reasoning for defendant’s sentence, and then actually imposed a sentence that was under the recommended guideline range by about ten percent. The district court discussed the serious nature of defendant’s criminal conduct and the fact that his scheme had a devastating impact on several communities. The court also noted the overwhelming scope of the scheme, resulting in millions of dollars in losses affecting more than 20 individual communities, and his role in recruiting or directing 32 other co-defendants. It was not improper for the court to take note of the significant influence and role defendant exercised in relation to his co-defendants. U.S. v. Love, 680 F.3d 994 (7th Cir. 2012).
7th Circuit upholds within-guidelines sentence for child porn offense as reasonable. (742) Defendant pled guilty to accessing an Internet website for the purpose of viewing child pornography. The district court calculated an advisory guidelines imprisonment range of 41-51 months, and sentenced defendant to 45 months. The Seventh Circuit upheld the guideline sentence as reasonable. Defense counsel did not identify any reason to disregard the presumption that a within-guidelines sentence is reasonable. The district court properly applied the sentencing factors in 18 U.S.C. § 3553(a), in particular noting as a mitigating factor that defendant had not downloaded images of children engaged in sexual activity with other persons, or images that were sadistic. However, the court concluded that a sentence within the guidelines range was appropriate to provide just punishment and protect the public from further crimes. U.S. v. Konczak, 683 F.3d 348 (7th Cir. 2012).
7th Circuit remands where court did not adequately explain need for upward variance. (742) Defendant pled guilty to traveling in interstate commerce to engage in sexual conduct with a minor, 18 U.S.C. §2423(b). At defendant’s first sentencing hearing, the district court sentenced him to 240 months in prison and 10 years of supervised release, despite a guidelines range of 57-71 months. Because the court based this sentence on an unsupported assumption of recidivism, the Seventh Circuit remanded for resentencing. At defendant’s second sentencing hearing, the district court again sentenced him to 240 months, and added a lifetime term of supervised release. The Seventh Circuit again vacated the sentence. The court’s rationale, that defendant’s offense was “calculated,” and involved traveling 2,000 miles to have sex with a 15-year old boy, was little more than what was implicit in the offense. To the extent the district court relied on the commission of the sexual act, an element not required for a conviction under 18 U.S.C. §2423(b), defendant’s offense level was already increased by two points under §2G1.3(b)(4)(A) for the “commission of a sex act.” U.S. v. Bradley, 675 F.3d 1021 (7th Cir. 2012).
7th Circuit upholds 384-month sentence for youth leader who produced and possessed child porn. (742) Defendant, a leader in a children’s youth ministry, surreptitiously filmed boys he supervised on camping trips or in the locker room. He also filmed the boys showering, and in one instance, filmed a boy using the restroom. He cropped the facial features of his subjects before trading those images for more child pornography. He pled guilty to producing and possessing child pornography, and was sentenced to 384 months. He argued on appeal that 384 months was too harsh, and that sentences of that magnitude should be reserved for hard-core pornography. The Seventh Circuit held that the sentence was not unreasonable. Because the overall sentence was below the advisory guidelines range, it was entitled to a presumption of reasonableness. Defendant seemed to argue that no harm came to the children he filmed because there was no sexual contact. However, defendant’s definition of harm was too narrow. Defendant circulated his films on the Internet and caused distinct and serious harm to his victims by giving their images a permanent existence and the potential for endless replication. Although the facial features in the images were cropped, facial features are not the only basis that can be used to identify a person depicted in an image. U.S. v. Klug, 670 F. 3d 797 (7th Cir. 2012).
7th Circuit upholds guideline sentence for kidnapping. (742) Defendant committed a kidnapping to extract payment of a drug debt, holding the victim for two days before federal agents rescued her. The district court calculated a guideline range of 168-210 months, and sentenced defendant to 168 months. The Seventh Circuit rejected defendant’s argument that the district court did not adequately address the mitigating facts he raised at sentencing. The court’s explanation “was brief but adequate, enough to demonstrate that the court engaged in ‘meaningful consideration of § 3553(a) factors.'” The judge explained several times that the guidelines were discretionary and that the § 3553(a) sentencing factors were guiding his discretion. The judge reviewed the § 3553(a) factors, with particular emphasis on the seriousness of the offense, as well as the need for specific and general deterrence. The 168-month sentence was also substantively reasonable. Although defendant did not plan the kidnapping, his role was not minor. He forcibly abducted the victim, drove her across state lines, and stood watch during her two days of captivity. U.S. v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
7th Circuit finds that below-guidelines fraud sentence was reasonable. (742) Defendant acted as a lookout for others stealing credit information from stores, and also helped pick up packages of fraudulently ordered merchandise. Before sentencing, she cooperated with the government in their investigation against her co-schemers. The court sentenced defendant to 40 months, below her guideline range of 57-71 months. Defendant argued that the court failed to fully account for her personal circumstances and inflated criminal history. The Seventh Circuit held that defendant’s below-guidelines sentence was reasonable. Although defendant raised a number of mitigating factors, she did not demonstrate either that the court treated the guidelines as mandatory or that it failed to consider the applicable § 3553(a) factors. The court entertained and responded to each of defendant’s arguments, and even continued the sentencing for two days to think about her sentencing before imposing a sentence. When it pronounced its sentence, the court said it had attempted to fashion a sentence that would be minimally disruptive for her children, but had concluded that a “serious” sentence was necessary under the circumstances. U.S. v. Sandoval, 668 F.3d 865 (7th Cir. 2011).
7th Circuit affirms guideline sentence for food stamp fraud defendant. (742) Defendant operated several grocery stores that made phony sales for food-stamp recipients looking to exchange their benefits for discounted amounts of cash. He argued that his guideline 60-month sentence was unreasonable because the court unfairly penalized him for selling junk food instead of nutritious items, and was unduly harsh because of concern that some of his patrons exchanged benefits for cash to buy drugs. The Seventh Circuit ruled that defendant did not rebut the presumption that his within-guidelines sentence was reasonable. The court did criticize defendant for operating stores “where people were provided essentially nothing but calories.” However, this criticism had to be read in context. The court’s concern was not simply the food selection at defendant’s stores, but the fact that he wasted an opportunity to serve the needs of a community with a real shortage of grocery options. Defendant operated businesses that were food stores in name only. A court may consider the harm that a particular community suffers from a crime. U.S. v. Hussein, 664 F.3d 155 (7th Cir. 2011).
7th Circuit remands where court did not follow correct order of steps for sentencing. (742) At sentencing, the judge noted that defendant had mental health and substance abuse issues that needed treatment. He then appeared to impose a longer sentence in order to enable defendant to receive treatment. Such actions would be improper and merit resentencing under Tapia v. U.S., 131 S.Ct. 2382 (2011). The Seventh Circuit found the court’s words ambiguous, and remanded. The court also noted that defendant had been removed involuntarily from a halfway house because of his behavior, and that it could not release him earlier because “he had nobody who could step forward and be a custodian for him.” These remarks suggested a concern that because of his untreated mental illness and alcoholism, defendant might be too dangerous to release until those conditions were put into control. It is not improper to lengthen a sentence because of concern, whether based on mental illness or addiction, that the defendant is likely to commit further crimes upon release. Mental problems themselves, and the possibility that a defendant would benefit from treatment that he could obtain by an extended prison term, are not a proper consideration. However, the fact that mental problems made defendant more dangerous can justify a longer sentence. U.S. v. Kubeczko, 660 F.3d 260 (7th Cir. 2011).
7th Circuit says court did not improperly reject family circumstances as mitigating factor. (742) Defendant argued that the district court improperly rejected his family circumstances as mitigating evidence because he was responsible for imposing the hardship upon his family. This, he said, ran afoul of the court’s ruling that “the fact that the consequences of incarceration are attributable to a defendant’s own misconduct may be a factor in the analysis but … not the sole factor nor [the] dispositive one.” The Seventh Circuit found no abuse of discretion. The district court refused to reduce defendant’s sentence in light of his family circumstances not because his conduct created the hardship, but because his family difficulties were not so extraordinary as to outweigh or mitigate against the other § 3553(a) factors. U.S. v. Barnes, 660 F.3d 1000 (7th Cir. 2011).
7th Circuit upholds substantive reasonableness of 465-month sentence for child porn. (742) A jury convicted defendant of producing sexually explicit photographs of his minor daughters, which later crossed international boundaries, in violation of 18 U.S.C. § 2251(a). The Seventh Circuit rejected defendant’s argument that his 465-month below-guidelines sentence was substantively unreasonable. Defendant’s offenses were very serious, even though the judge remarked that she had “seen much worse” examples of child pornography. Moreover, the photos were so widely disseminated on the Internet, if not by defendant himself then by a friend, that they were found throughout the U.S. and in two foreign countries, thus perpetuating and expanding the harm. Although defendant expressed remorse for his acts, it was only after he was found guilty. His college education, job skills, age, marital status, and lack of history of drug abuse were neither remarkable nor so compelling as to call into question the reasonableness of the below-guidelines sentence. U.S. v. Russell, 662 F.3d 831 (7th Cir. 2011).
7th Circuit says court did abuse its discretion in refusing to vary based on defendant’s cooperation. (742) Defendant contended that the district court imposed an unreasonable sentence when it refused to reduce his sentence based on his cooperation. A district court may consider a defendant’s cooperation with the government as a basis for a reduced sentence, even if the government has not made a § 5K1.1 or Rule 35 motion. It would be reversible error if the court had said that it could not independently consider defendant’s cooperation because the government did not make a § 5K1.1 motion. Here, however, the court repeatedly said that it knew that it had the discretion under 18 U.S.C. § 3553 to lower defendant’s sentence because of his cooperation, but chose not to. The Seventh Circuit found no abuse of discretion. U.S. v. Leiskunas, 656 F.3d 732 (7th Cir. 2011).
7th Circuit affirms refusal to depart down for lack of fast-track program. (742) Defendant pled guilty to reentering the U.S. following deportation. He requested a sentence below the advisory sentencing range to avoid an “unwarranted sentencing disparity” because he was convicted in a district without a so-called “fast-track” program. The Seventh Circuit ruled that the district court did not abuse its discretion in denying the reduction. The court recognized that it had discretion to reduce defendant’s sentence but found that the sentencing range under the guidelines was “perfectly suitable to [defendant’s] offenses and his criminal history.” This was all the court needed to say. U.S. v. Lua-Guizar, 656 F.3d 563 (7th Cir. 2011).
7th Circuit affirms decision not to depart downward for cultural assimilation. (742) Defendant pled guilty to reentering the U.S. following deportation. He requested a sentence below the advisory sentencing range based in part on his “cultural assimilation,” as contemplated in a not-yet-effective amendment to the Guidelines. See § 2L1.2, note 8 (2010). The district court declined to adjust his sentence on this basis because the amendment was not yet in effect and it considered defendant to be a risk to the public in light of his criminal past. The Seventh Circuit held that the district court adequately explained its reasons for denying the departure. First, the court did not commit any procedural error by applying the Guidelines in effect at the time of sentencing. While it could have considered the pending amendment, it was not required to do so. Second, the court noted that the departure was authorized only if it was not likely to increase the risk to the public of further crimes of the defendant. The court reviewed defendant’s criminal history, and found this was not the case. U.S. v. Lua-Guizar, 656 F.3d 563 (7th Cir. 2011).
7th Circuit finds no plain error in failing to consider defendant’s claim of diminished capacity. (742) Defendant pled guilty to child pornography offense, and was sentenced at the bottom of his guideline range of 360 months to life. He argued on appeal that the district court improperly failed to consider his “diminished capacity” argument under § 5K2.13. The Seventh Circuit held that the district court did not err. Ordinarily, a judge’s failure to address the defendant’s principal argument for lenience would be a reversible error. However, diminished capacity was not mentioned by defense counsel at sentencing, although counsel did discuss defendant’s cognitive and psychiatric deficiencies (ADHD, dyslexia, depression, anxiety and an IQ of 83). At sentencing, defense counsel’s main argument was that defendant was unlikely to commit further sex crimes if released after 180 months, when he would be almost 60 years old. However, the judge was not persuaded. Defendant was shy and his one “hands on” victim was a relative. The fact that he exhibited “good judgment” and “empathy” in his interview by the psychiatrist did not ensure that he would not find another “hands on” victim when he was released from prison. U.S. v. Garthus, 652 F.3d 715 (7th Cir. 2011).
7th Circuit upholds refusal to grant downward variance. (742) Defendant argued that the district court abused its discretion in refusing to apply a downward variance in light of the sentencing disparity between crack and powder cocaine and his claim that he was a low-level street distributor. The Seventh Circuit held that the district court did not err in refusing to grant the downward variance. The court considered, and rejected, defendant’s arguments regarding the crack-powder disparity and that he was merely a low-level distributor because of his criminal history. The court did not err in finding that defendant had an extensive criminal history. The court relied on defendant’s conviction for distribution of a controlled substance and that he had been in “serious trouble” since the age of 12. The court also relied on defendant’s conviction for the aggravated discharge of a firearm and his probation and parole violations. Defendant committed this immediate offense within a year of being released from his state court conviction and returned “to a lifestyle of committing criminal offenses that made him a danger to society and deterrence was necessary to prevent further criminal conduct.” U.S. v. Curtis, 645 F.3d 937 (7th Cir. 2011).
7th Circuit affirms below-guidelines sentence for failing to register as sex offender. (742) Defendant, previously convicted of forced sodomy, pled guilty to failing to register as a sex offender, in violation of the Sex offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250. The recommended sentencing range was 24-30 months in prison and five years to life of supervised release. Although the district court sentenced defendant to a below-guidelines sentence of 18 months’ imprisonment and a 20-year supervised release term that was within the guidelines, defendant challenged his sentence as unreasonable. The Seventh Circuit ruled that defendant did not overcome the presumptive reasonableness of his sentence. Although the district court found that defendant was not dangerous and that he maintained steady employment, the court also noted that defendant committed a very serious sex offense and intentionally refused to register as a sex offender for seven years. Then, while out on bond for failing to register as a sex offender, defendant again changed residences without updating his registration. U.S. v. Taylor, 644 F.3d 573 (7th Cir. 2011).
7th Circuit says court was not required to comment on claim based on past role as caregiver. (742) Defendant argued that the district court wrongly sentenced him to the high end of the Guidelines range without meaningfully considering his personal history and characteristics, 18 U.S.C. § 3553(a)(1). He noted that the court failed to comment upon his past care-giving responsibilities, which he characterized as “extraordinary acts.” The Seventh Circuit found no error, finding defendant’s care-giving claim “was so thin as not to require comment.” At the time defendant was sentenced, he was no longer caring for ill family members, as the two fathers had died years earlier. Defendant’s argument was based on past rather than present care giving, and thus was doomed from the start. U.S. v. Runyan, 639 F.3d 382 (7th Cir. 2011).
7th Circuit finds no plain error in considering two prior arrests that did not result in conviction. (742) Defendant pled guilty to illegal reentry by a previously deported alien after a conviction for an aggravated felony. He was given a below-Guidelines sentence, but nonetheless appealed his sentence, arguing that the court improperly considered some prior arrests that did not lead to a conviction, and refused to consider the district’s lack of a “fast-track” program. The Seventh Circuit ruled that even though the district court erred in considering two out of three of defendant’s arrests, there was no plain error. Defendant did not show that he was prejudiced, given his below-guidelines sentence, the judge’s consideration of defendant’s criminal record as a whole, and the weight the court clearly gave to his more serious drug trafficking conviction. The judge made it sufficiently clear that even if defendant had only one driving under the influence arrest, he would not have further reduced defendant’s sentence in light of defendant’s drug trafficking conviction. The judge did not err with regard to the fast-track disparity issue. Although a court may consider such a disparity, it is not required to do so. U.S. v. Guajardo-Martinez, 635 F.3d 1056 (7th Cir. 2011).
7th Circuit upholds within-Guidelines drug sentence. (742) Defendant was convicted of various drug-related offenses, and received a 360-month sentence, which fell within his guideline range. The Seventh Circuit affirmed the sentence, rejecting defendant’s argument that the district court misapplied the § 3553(a) factors or failed to adequately consider the mitigating facts. The district court thoroughly analyzed the § 3553(a) factors and addressed the majority and strongest of defendant’s arguments. The fact that the court did not explicitly discuss each of defendant’s weaker arguments did not constitute reversible error under the facts of the case. The district court also did not unduly rely on the guideline range in selecting defendant’s sentence. There was no indication in the record that the district court treated the Guidelines as mandatory or presumed that a within-Guidelines sentence was reasonable. U.S. v. Vallar, 635 F.3d 271 (7th Cir. 2011).
7th Circuit holds that guideline sentence for child porn was reasonable. (742) Defendant pled guilty to receiving child pornography, and received a 210-month sentence, which fell at the bottom of his 210-240 month sentencing range. The Seventh Circuit held that the sentence was procedurally and substantively reasonable. It was clear from the sentencing transcript that the experienced district judge adequately considered the § 3553(a) factors – he explicitly mentioned his consideration of the seriousness of the offense, the need for deterrence, the need to protect the public, defendant’s personal characteristics, and the need for sex offender treatment. Moreover, the judge read the report submitted by defendant’s doctor and found the doctor’s conclusion that defendant was unlikely to re-offend questionable. The judge considered defendant’s depressed condition, and as well as other unique characteristics of defendant, and concluded that those factors did not support a below-guideline sentence. The sentence was substantively reasonable. Although defendant was convicted of a non-contact offense, the judge found it telling that defendant’s own expert concluded that defendant was a pedophile with ongoing fantasies. U.S. v. Mantanes, 632 F.3d 372 (7th Cir. 2011).
7th Circuit rejects extreme upward variance that was based on unfounded speculation. (742) Defendant pled guilty to traveling in interstate commerce to engage in sexual conduct with a minor, 18 U.S.C. § 2423(b). His advisory sentencing range was 57-71 months, but the district court varied upward to sentence him to 240 months. The Seventh Circuit ruled that the sentence was unreasonable. The district court assumed, without any support in the record, that defendant had committed previous undiscovered crimes, and thus was likely to commit more if released. In similar cases where upward variances have been affirmed, there was evidence of a prior underage victim. No similar evidence was here. The judge improperly made a predication about future conduct based on rank speculation about other, multiple instances of deviant behavior. Sentencing determinations must be based on reliable evidence, not speculation or unfounded allegations. U.S. v. Bradley, 628 F.3d 394 (7th Cir. 2010).
7th Circuit does not require lower sentence based on policy disagreement with child porn guidelines. (742) Defendant was convicted of child pornography counts, resulting in an advisory guideline range of 324-450 months. The district court rejected defendant’s objections to the guidelines calculation, but sentenced him to 240 months. Defendant argued that his sentence was unreasonable, contending that the Sentencing Guidelines on child porn are overly harsh, and that no sentence derived from these guidelines can be reasonable. The Seventh Circuit rejected defendant’s contention that virtually any application of § 2G2.2 will result in an unreasonable sentence. Here, the court correctly calculated defendant’s guideline range and evaluated the § 3553a) factors to arrive at a reasonable sentence. It agreed with defendant that several mitigating factors favored him, and then imposed a below-range sentence, which the court deemed warranted in light of the § 3553(a) factors. The court could have imposed an even lower sentence, but that did not make the sentence unreasonable. U.S. v. Maulding, 627 F.3d 285 (7th Cir. 2010).
7th Circuit finds below-guidelines sentence for drug conspiracy was not unreasonable. (742) Defendant pled guilty to conspiracy to possess and distribute heroin, cocaine, and crack. The district court found that defendant’s advisory guideline range was 292-365 months, but it sentenced defendant to 270 months. Defendant argued that the sentence was substantively unreasonable because of his youth, the fact that no comparable defendant was sentenced as long, and the unfair disparity in crack cocaine penalties. The Seventh Circuit held that the district court did not abuse its discretion when sentencing defendant to a below-range sentence. A sentence within the Guidelines range is presumptively reasonable, thus it follows that a sentence below that range also is not presumptively too high. Here, the court considered and applied the § 3553(a) factors. U.S. v. Curb, 626 F.3d 921 (7th Cir. 2010).
7th Circuit affirms sentence within range despite defendant’s traumatic childhood. (742) The district court sentenced defendant to 300 months, which fell within his guideline range of 262-327 months. He challenged the district court’s decision not to depart in light of his troubled childhood, history of substance abuse, and untreated psychological orders. The Seventh Circuit found no abuse of discretion and affirmed, although it acknowledged that defendant did suffer through a “tremendously difficult childhood.” At the age of eight, defendant witnessed his father kill his mother and inflict a non-fatal gunshot wound on his grandmother. His father committed suicide several days later, and defendant never received counseling to help him cope with those events. He struggled with substance abuse and various psychological orders, turning to alcohol in part because his father forced him and his siblings to drink when they were children. The court found that while defendant’s childhood was “clearly a mitigating factor,” the court also considered defendant’s extensive criminal history, as well as factors such as deterrence, protecting society, and providing necessary treatment. On balance, the court decided that 300 months was an appropriate sentence. U.S. v. Johnson, 624 F.3d 815 (7th Cir. 2010).
7th Circuit rules court adequately considered defendant’s bipolar disease in imposing guideline sentence. (742) Defendant argued that the judge treated the Sentencing Guidelines as mandatory and thus failed to adequately consider her arguments for a below-guidelines sentence, especially the role her now-controlled bipolar disorder played in her fraudulent conduct. The Seventh Circuit found no error. Although the judge indicated her intent to set defendant’s sentence at the low end of her guideline range, the judge also recognized her discretion to impose a sentence below the guidelines, if warranted. The judge considered defendant’s mental illness. She permitted a psychiatric evaluation and delayed sentencing to allow defendant to present the report. Although the court acknowledged defendant’s bipolar disorder was a factor contributing to the offenses and favored leniency, she went on to state the seriousness of defendant’s conduct and her inability to remain compliant with treatment favored a harsh sentence. U.S. v. Favara, 615 F.3d 824 (7th Cir. 2010).
7th Circuit holds that court adequately considered defendant’s arguments for leniency. (742) Defendant was convicted of using his position as a township official to obtain kickbacks on contracts awarded to a company owned by an acquaintance. He argued that the district judge failed to consider his arguments for leniency at sentencing, in particular, his age and decorated military career. The Seventh Circuit held that the district court properly imposed a within-guidelines sentence, and there was no procedural error. The court expressly considered defendant’s age, stating that it did not go to a higher sentence because of defendant’s age. The judge also mentioned defendant’s accomplishments. Finally, the judge explained why the sentence was appropriate in light of defendant’s arguments. The judge rejected defendant’s argument that he was a good father, noting that he put his children in harm’s way by fraudulently procuring health insurance on their behalf. The judge was also bothered by the amount of time, six years, that defendant was involved in criminal activity. Finally, the judge noted that defendant’s cut from the contracts, $68,000, could have been used by the township to help the poor. U.S. v. Cantrell, 617 F.3d 919 (7th Cir. 2010).
7th Circuit finds no error in failing to depart based on crack/powder disparity. (742) Defendants participated in an operation that supplied crack cocaine to street dealers. They argued that their sentences were unreasonable given the crack/powder sentencing disparity. The Seventh Circuit rejected the argument, noting that Kimbrough permits district courts to deviate from the crack cocaine guidelines but does not require them to do so. The court also rejected defendant’s argument that the district court failed to pay proper attention to her argument that a downward departure was warranted. U.S. v. Etchin, 614 F.3d 726 (7th Cir. 2010).
7th Circuit says court adequately considered mitigating factors raised by defendant. (742) Defendant appealed from his bankruptcy fraud conviction, arguing that the district court failed to give sufficient consideration to his family circumstances. The Seventh Circuit ruled that the district court gave the family issue sufficient consideration, as shown by its efforts to arrange for defendant and his ex-wife to serve staggered prison sentences for their joint crimes. Defendant did not provide evidence of unusual effects that even approached the serious medical problems that were present in U.S. v. Schroeder, 536 F.3d 746 (7th Cir. 2008), where the district court improperly failed to consider the defendant’s extraordinary family circumstances. Defendant did not argue that his imprisonment would affect his children to a degree beyond the effects that any child must suffer when a parent is imprisoned, and he did not show any exceptional circumstances. U.S. v. Gary, 613 F.3d 706 (5th Cir. 2010).
7th Circuit reverses for failure to explain basis for higher sentence. (742) The PSR calculated defendant’s criminal history as IV, but the district court stated that defendant’s criminal history was understated, and that it should be at least a category V. It sentenced him to 96 months, which would be at the top of the guideline range if defendant had a criminal history category of V. The Seventh Circuit ruled that the district court failed to adequately explain its sentence. The court imposed a sentence above the guideline range calculated in the PSR without explaining how it arrived at the higher range and in spite of its statement that it was sentencing based on the PSR’s calculations. Although the record showed that the sentencing judge believed defendant’s criminal history category was underrepresented, it was unclear as to how that finding was used to calculate defendant’s sentence. U.S. v. Johnson, 612 F.3d 889 (7th Cir. 2010).
7th Circuit finds below-range sentence was reasonable despite addition of five years for potential firearm. (742) Defendant was convicted of two drug charges, and the district court declared a mistrial on the remaining weapons charge . His guideline range was 360 months to life, but defendant requested a downward departure to a mandatory minimum 20-year sentence based on favorable 18 U.S.C. § 3553(a) factors. The district court considered defendant’s rehabilitation efforts since his arrest, and imposed a 25-year sentence. The court reasoned that defendant almost certainly possessed a weapon, which would have been associated with a 60-month sentence. It added those 60 months to the 240-months mandated by statute, to arrive at 25 years. Defendant argued that his sentence was procedurally unreasonable, but the Seventh Circuit disagreed. Defendant’s potential possession of a gun was a circumstance of the offense within the ambit of 18 U.S.C. § 3553(a)(1). The court carefully considered, among other factors, the guidelines range, defendant’s arguments, defendant’s family history, and the impact that various sentences could have on defendant’s rehabilitation. It then imposed a below-guidelines sentence. U.S. v. Booker, 612 F.3d 596 (7th Cir. 2010).
7th Circuit upholds sentence within negotiated plea range. (742) Over a 16-day period, defendant robbed four banks. His guideline range was 151-188 months, but the judge used a range of 87-108 months, which was negotiated by the parties in defendant’s plea agreement. On appeal, defendant challenged his 96-month sentence, claiming that the sentencing judge failed to adequately address the mitigating factors he raised. The Seventh Circuit affirmed the sentence. While the judge did not directly state how each of the factors raised by defendant factored into the sentence, he did not ignore them. Moreover, the judge was not required to explicitly mention each mitigation argument raised by the defendant. The judge’s discussion of defendant’s difficult childhood and previous conviction, along with his comment that defendant “does not easily learn a lesson,” made it clear that he gave meaningful consideration to § 3553(a) factors. Finally, a term of only 96 months for four bank robberies, the last ending in a violent chase, was “a bargain.” U.S. v. Paige, 611 F.3d 397 (7th Cir. 2010).
7th Circuit upholds statutory maximum sentence that was well below initial advisory range. (742) Defendant was arrested after he agreed to help an undercover agent rob a fictional stash house. His initial Guideline range was 210-262 months. However, the statutory maximum for the offense of conviction was only 120 months, which became the Guideline range under § 5G1.1. Defendant challenged his 120-month sentence, arguing that the district court committed procedural error by failing to take into account the 18 U.S.C. § 3553(a) factors. The Seventh Circuit held that the 120-month sentence was procedurally reasonable. The court clearly took the § 3553(a) factors into account, noting the seriousness of the offense conduct and the need to protect the community from defendant, who had a history of violent crime and had most recently been found with a loaded shotgun in his car. The judge believed that defendant would not receive any intervention in prison that might prevent him from resuming his pattern of violence upon his release. Further, § 3553(a) requires a court to consider the nature and circumstances of the offense. Defendant was not arrested in possession of a weapon in his closet, but on his way to commit a violent crime. U.S. v. Hall, 608 F.3d 340 (7th Cir. 2010).
7th Circuit reverses where court failed to articulate justification for downward departure. (742) Defendant pled guilty to distributing more than five grams of crack. He faced a mandatory minimum sentence of 120 months, but because he qualified as a career offender, his recommended guideline range was 262-327 months. At sentencing, the district court limited itself to making a few negative remarks about defendant’s character and capacity for change. However, it then sentenced defendant to the lowest sentence available, 120 months. In its short explanation, the court mentioned only defendant’s age (40 years old), the short length of his previous state sentence, and the conditions of his upbringing. The Seventh Circuit reversed, holding that the district court failed to prove an adequate explanation for the sizeable downward departure. Although a sentence so far below the recommended guidelines range lay within the court’s power, and might even have been justified in this case, the record was too sparse to support that conclusion. Moreover, the court made a significant number of observations that would have made more sense as justifications for a lengthier sentence. U.S. v. Brown, 610 F.3d 7 (7th Cir. 2010).
7th Circuit upholds within guideline sentence for possession of child porn. (742) Defendant pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2255(a) (4)(B). He was sentenced to 90 months’ imprisonment followed by 20 years’ supervised released. He argued that the district court failed to address his non-frivolous arguments in support of a two-year sentence, including a plea for leniency based on his personal history and his exceptional family responsibilities for his children. In addition, defendant argued that the court failed to address his argument that disparities in the length of pornography sentences among different districts in Wisconsin and lack of empirical study underpinning the child porn guidelines suggested that a sentence over two years was too high. The Seventh Circuit upheld the guideline sentence. The district court’s statement evaluated the mixed picture revealed in defendant’s history of an active community member and good father who also exhibited bad behavior in his private life. The court also considered defendant’s concerns with the child porn guidelines. It did not commit error by declining to explain its precise position on the general debates regarding the child porn guidelines. U.S. v. Pape, 601 F.3d 743 (7th Cir. 2010).
7th Circuit rejects claim that court applied presumption of reasonableness to child porn guidelines. (742) Defendant pled guilty to receipt of child pornography, and was sentenced to 151 months, which fell at the bottom of his advisory guideline range. The Seventh Circuit upheld the sentence, rejecting defendant’s claim that the district court improperly applied a presumption of reasonableness to the Guidelines, failed to consider non-frivolous arguments, or misapplied 18 U.S.C. § 3553. The court’s comments that the Guidelines were “fair and reasonable based on the facts of this case” did not mean that the court applied a presumption of reasonableness. The court did not fail to consider mitigating evidence offered by defendant’s doctor. The court seemed concerned with the doctor’s methodology and analysis; these deficiencies in the doctor’s testimony could serve as the basis for the court’s discounting of that testimony. The guideline sentence was not unreasonable. U.S. v. Coopman, 602 F.3d 814 (7th Cir. 2010).
7th Circuit rejects variance where explanation applied to all sex offenders. (742) Defendant pled guilty to traveling in interstate commerce to engage in prohibited sexual conduct with a 14-year-old girl. The district court imposed a sentence that was 50 percent above the high end of the advisory guideline range. The Seventh Circuit reversed. The court based its above-Guidelines sentence at least partly on its belief that sex offenders have a higher-than-normal rate of recidivism, specific deterrence does not work for them, and as a result, lengthy incapacitation is the only way to protect the public. These factors, assuming their accuracy, would apply to all sex offenders, not just defendant. Moreover, neither party presented evidence that supported the court’s views about recidivism and deterrence of sex offenders, nor did the court provide any support for them. The court’s comments were also subject to debate, as evidenced by studies previously cited by the court, and another study, cited by defendant, suggesting the recidivism rate for female sex offenders is even lower. U.S. v. Miller, 601 F.3d 734 (7th Cir. 2010).
7th Circuit upholds 300-month sentence for drug and firearm offenses. (742) The district court sentenced defendant to a within-Guidelines sentence of 240 months in prison for his conviction for conspiracy to distribute heroin and other drugs and a consecutive 60-month term for using a firearm during and in relation to the drug-trafficking conspiracy. That sentence rested in part on the district court’s finding that defendant was a career offender. On appeal, defendant argued that his sentence was substantively unreasonable because he had a desire to rehabilitate, he was raised by drug-using and abusive parents, his prior offenses occurred at a young age, his prior offenses were relatively minor, and his incarceration would have an adverse impact on his minor children. The Seventh Circuit held that the district court had adequately considered defendant’s plea for leniency and that defendant’s sentence was not substantively unreasonable. U.S. v. Turner, 604 F.3d 381 (7th Cir. 2010).
7th Circuit finds court properly considered potential disparities with co-conspirators. (742) Defendant was convicted of participating in a conspiracy to distribute heroin and other drugs. The district court imposed a within-Guidelines 300-month sentence. On appeal, defendant argued that the district court erred in failing to consider unwarranted sentencing disparities between him and his co-conspirators. The Seventh Circuit held that a court that sentences within a properly calculated Guidelines range necessarily gives weight to avoiding unwarranted disparities because that is one of the goals of the Guidelines. The court also found that defendant was not similarly situated to his co-conspirators because defendant was sentenced as a career offender and his co-conspirators were not, defendant did not cooperate with the government, and defendant was facing a charge of first-degree murder. U.S. v. Turner, 604 F.3d 381 (7th Cir. 2010).
7th Circuit says evidence would not have supported diminished capacity claim. (742) Defendant argued that the district court should have imposed a below-guidelines sentence because he suffered from a diminished capacity that substantially contributed to the commission of his offense. The Seventh Circuit held that the district court’s failure to explicitly discuss whether defendant had a significantly reduced mental capacity was harmless error, because based on the evidence, the court could not have found that any diminished capacity substantially contributed to defendant’s commission of his crimes. The doctor who testified for defendant did not analyze the specific charges defendant was convicted of committing, nor related defendant’s actions to his mental capacity. In fact, the doctor seemed unclear as to what crimes defendant committed. The doctor derived his understanding of the causal link between defendant’s diminished capacity and his crimes based only on information defendant provided. He did not confirm defendant’s account of his crimes and did not seem to fully understand the criminal charges. U.S. v. Portman, 599 F.3d 633 (7th Cir. 2010).
7th Circuit finds that judge considered argument that intended loss overstated seriousness of offense. (742) Defendant argued that the intended loss from his fraud schemes overstated the seriousness of his offenses, and that the district court should have exercised its discretion to set a below-guideline sentence. The Seventh Circuit upheld the court’s refusal to impose a below-guideline sentence. The district judge considered defendant’s arguments, but found that the intended loss adequately reflected the seriousness of the offense. The PSR calculated an intended loss of $1.030,825. This was based on defendant’s attempt to obtain $512,825 in loans from various individuals and businesses with his Nigerian inheritance scheme and his attempts to obtain $508,000 from several banks through falsely altered and counterfeit checks. The actual loss was much less: $50,000 from one businessman, and $31,099 from the banks. Although the judge could have reduced the sentence based on the actual loss amount, she was not required to do so. The judge addressed the merits of defendant’s request for a reduced sentence, and found it unwarranted. U.S. v. Portman, 599 F.3d 633 (7th Cir. 2010).
7th Circuit upholds court’s rejection of “lesser harms” departure. (742) Defendant lent his laptop computer to his mother. She gave police officers permission to search the computer and case, and they found a handgun inside an exterior pocket of the computer case. Defendant was convicted of being a felon in possession of a firearm. He argued that his 120-month sentence (60 months below the low-end of his advisory guideline range), was unreasonable because he was entitled to a reduced sentence under U.S.S.G. § 5K2.11. Although § 5K2.11 has been rendered obsolete in post-Booker sentencing, the district court may apply that departure guideline by way of analogy in applying the § 3553(a) factors. Section 5K2.11 authorizes a departure where the defendant’s conduct does not cause or threaten the harm or evil sought to be prevented by the statute. The Seventh Circuit held that the district court appropriately rejected defendant’s § 5K2.11 argument. Congress sought to prohibit even a brief possession of a firearm by a felon. Section 922’s plain language and legislative history demonstrated that Congress sought to prohibit defendant’s conduct here. U.S. v. Jackson, 598 F.3d 340 (7th Cir. 2010).
7th Circuit finds that court considered and rejected mitigating factors raised by defendant. (742) Defendant pled guilty to distributing cocaine, and was sentenced to 151 months, the bottom of his advisory guideline range. He argued on appeal that the court failed to adequately his mental health and history of sexual abuse. The Seventh Circuit found that the district court sufficiently considered defendant’s arguments for mitigation, but rejected defendant’s argument because of his extensive criminal history. Although defendant said at sentencing that he had turned over a new leaf, the district court was not persuaded. The court’s discussion showed that it considered defendant’s argument and provided a basis for rejecting it. U.S. v. Curby, 595 F.3d 794 (7th Cir. 2010).
7th Circuit says guideline sentence was not based on defendant’s need for mental health treatment. (742) Defendant pled guilty to stalking the surgeon who saved his life. A psychiatrist found defendant competent to stand trial, but also found defendant was delusional and would benefit from extensive therapy and psychiatric medication. His guideline range was 18-24 months, and the district court sentenced him to 24 months’ imprisonment. The Seventh Circuit upheld the guideline sentence. Defendant’s need for mental health treatment was not the “sole” reason he was sentenced to prison rather than probation; in fact, it was not even the primary reason. Defendant had committed a serious offense that significantly impacted multiple people (the surgeon, his family and his staff), and the court found that a term of incarceration was warranted. The court emphasized the seriousness of defendant’s conduct, and even noted that it had given thought to imposing a sentence above the guideline range. The court did address defendant’s mental health issues, but given his lack of participation in group therapy, was not confident that defendant would receive needed treatment in a non-custodial environment. U.S. v. Zohfield, 595 F.3d 740 (7th Cir. 2010).
7th Circuit rejects defendant’s claim that he possessed gun to protect others. (742) Defendant pled guilty to being a felon in possession of a firearm. The district court sentenced him to 92 months, which fell at the bottom of his Guidelines range. Defendant argued that the sentence was unreasonable because it did not adequately account for the chaotic circumstances in which he was forced to act. Defendant had taken the gun from his drunk brother (who had previously shot another man and then accidentally shot himself). Defendant carried the gun outside, and threw it in a snow bank. The Seventh Circuit held that the guideline sentence was reasonable. The district court considered and rejected defendant’s argument that he acted in good faith and for the benefit of others. It found that defendant was more likely motivated by a desire to prevent law enforcement from learning of the gun and the shots fired from it than by a desire to protect others. This was particularly plausible given that the gun had been used to shoot a person earlier in the day during an attempted drug purchase. This was reinforced by defendant’s actions in emptying the gun of the spent cartridges, but not the remaining live bullets. U.S. v. Kilgore, 591 F.3d 890 (7th Cir. 2010).
7th Circuit holds that guideline sentence was reasonable. (742) Defendant was involved in a drug conspiracy and sentenced to 125 months, which fell within the middle of his Guidelines range of 110-137 months. He argued that the district court did not properly apply the § 3553(a)(2) factors, but merely told him that his conduct was detrimental to society. The Seventh Circuit disagreed, finding the sentence both procedurally and substantively reasonable. The district court articulated the basis for the sentence, discussing the need for punishment, deterrence and rehabilitation. The court noted that defendant’s prior light sentences had not deterred him. The court also mentioned the need to protect the public from the type of conduct defendant had been involved in over an extended period of time. The court’s statement of reasons for defendant’s sentence was sufficient to allow for meaningful appellate review and promote the perception of fair sentencing. As to the substantive reasonableness, a sentence within the properly calculated Guidelines range is presumed reasonable on appeal. U.S. v. Are, 590 F.3d 499 (7th Cir. 2009).
7th Circuit says defendant failed to rebut presumption that guideline sentence was reasonable. (742) Defendant, who had twice previously been convicted for aggravated felonies and deported, pled guilty to illegally reentering the U.S. The district court sentenced him to 90 months, near the high-end of his guidelines range of 77-96 months. Defendant argued that the court erred by failing to consider his contention that the time remaining on his sentence for state offenses supported a reduced sentence. The Seventh Circuit held that defendant failed to rebut the presumption that his guideline sentence was reasonable. The district court did not address defendant’s specific argument, but it did consider the § 3553(a) factors. It implicitly considered and rejected a basis for a lower sentence. The court expressed some sympathy for defendant’s circumstances – his entire family was in Chicago – emphasized that he had done everything “the wrong way” by re-entering without permission, and pointed to his “checkered criminal history.” It also cited a significant need to deter him from this kind of behavior with a substantial penalty. U.S. v. Carrillo-Esparza, 590 F.3d 538 (7th Cir. 2010).
7th Circuit rejects upward variance where court did not determine Guidelines range. (742) After defendant was arrested on firearms charges, he falsely confessed to committing four drug-related murders. He also falsely told a cellmate that he had arranged a contract hit on a federal agent. The Sentencing Guidelines recommended a sentencing range of 37-46 months, but, the district court varied upward to a sentence of 108 months. The Seventh Circuit remanded for a more thorough explanation of the sentence. When a variance is carefully explained, appellate review is deferential. However, where, as here, a sentence appears to be chosen arbitrarily, it is problematic. The judge proceeded as if any sentence within the statutory maximum (10 years) needed no explanation beyond the conclusion that something more than the top of the Guidelines’ range was in order. When a judge believes that extra crimes justify extra punishment, “it is wise to see how much incremental punishment the Sentencing Commission recommends.” Here, if defendant also were convicted of lying to federal agents and making threats to intimidate agents, his recommended range would have been only 57-71 months. U.S. v. Kirkpatrick, 589 F.3d 414 (7th Cir. 2009).
7th Circuit finds district court gave meaningful consideration to § 3553(a) factors. (742) Defendant contended that the district court erred by failing to articulate any reason for rejecting his arguments for mitigation under 18 U.S.C. § 3553(a). In particular, he cited the effects his likely deportation would have on him and his family and his claim that a shorter sentence would assist him in readjusting to life outside the United States. The Seventh Circuit found no error. Although a court is required to consider the § 3553(a) factors and to address any substantial arguments the defendant made, the court need not discuss every factor, as long as the record confirms meaningful consideration of the § 3553(a) factors. Here, although the court did not specifically discuss the effects of defendant’s likely deportation and expected separation from his wife and children, the record reflected that the court considered those arguments. The court discussed defendant’s likely deportation with his counsel. The court also gave meaningful consideration to the § 3553(a) factors and adequately explained its reasons for imposing a within-Guidelines sentence. U.S. v. Mendoza, 576 F.3d 711 (7th Cir. 2009).
7th Circuit holds that plea agreement was not voided despite “mutual mistake” about defendant’s career offender status. (742) Defendant argued for the first time on appeal that the district court should have vacated his guilty plea because his plea agreement was based on the parties’ “mutual mistake” regarding the application of the career offender guideline. The Seventh Circuit found no plain error. While defendant’s plea agreement “anticipated” a sentence lower than the one he ultimately received, the agreement stated several times that it did not ultimately control the sentence imposed by the district court. The agreement stated that its Guidelines calculations were “non-binding predictions upon which neither party is entitled to rely” and that defendant could not withdraw his plea if the district court rejected the agreement’s guideline calculations. The panel also rejected defendant’s argument that the government breached the agreement by arguing for a higher sentence after it learned that defendant was possibly eligible for sentencing as a career offender. The government never agreed to not argue for a different sentence. U.S. v. Patterson, 576 F.3d 431 (7th Cir. 2009).
7th Circuit rejects variance based on unsupported claims of poor conditions of confinement. (742) Prior to sentencing, defendant was housed in a county jail that contracted with the U.S. Marshals Service to house federal prisoners. He claimed that he was not given nutritious food, reasonable medical care, clothing, educational classes or sanitary conditions in which to live. The judge found that none of these conditions rose to the level warranting sentencing relief, and the Seventh Circuit agreed. Conditions of presentencing confinement are not considered as part of the § 3553(a) factors. Although the circuit has not determined whether “extraordinarily harsh conditions of confinement” might justify a reduced sentence, defendant did not support his claims of poor presentencing confinement with any evidence. U.S. v. Turner, 569 F.3d 637 (7th Cir. 2009).
7th Circuit upholds court’s refusal to grant criminal history departure. (742) Defendant argued that being placed in criminal history category IV substantially overrepresented the seriousness of his criminal history, and that he should have received a downward departure under § 4A1.3(b)(1). The Seventh Circuit found no abuse of discretion. The judge discussed defendant’s argument at length and decided against assigning a lower criminal history category. Defendant had 34 adult convictions for an array of offenses, including at least one per year from 2001 to 2006. Fifteen of these convictions were used in calculating defendant’s criminal history points. U.S. v. Turner, 569 F.3d 637 (7th Cir. 2009).
7th Circuit finds defendant did not rebut presumption of reasonableness for guideline sentence. (742) Defendant argued that his sentence was unreasonable because the district court failed to meaningfully consider the sentencing factors of 18 U.S.C. § 3553(a). The Seventh Circuit upheld defendant’s sentence. Although the court did not discuss the § 3553(a) factors at defendant’s sentencing, the reasons that the court gave in support of its sentencing decision “reflect[ed] consideration of the types of factors identified in § 3553(a).” The court rejected defense counsel’s argument that defendant was merely the pawn of drug lord Vey, concluding instead that defendant knowingly accepted the risks and monetary benefits of dealing in large quantities of cocaine. The court also seriously considered the possibility of choosing a below-guidelines sentence based on defendant’s lack of criminal history, but felt that it could not overlook defendant’s “continuing effort to peddle large amounts of poison for large amounts of money.” Moreover, the 262-month sentence selected by the court was at the low end of defendant’s 262-327 advisory guideline range, and thus was subject to a presumption of reasonableness. U.S. v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009).
7th Circuit finds judge did not improperly apply presumption in favor of Guidelines. (742) Defendant pled guilty to one count of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2), after authorities found more than 3,000 images of child porn on defendant’s computer hard drives, which had been set up to share images over the Internet. The Seventh Circuit upheld the district court application of a 240-month guideline sentence, and rejected defendant’s claim that the district court improperly applied a presumption in favor of a Guideline sentence. Although the judge told defendant that he “better tell me why the guidelines are improper,” the judge’s other statements showed that he understood the proper role the guidelines play in sentencing. During presentation of mitigating factors by defense counsel, the judge stated that he could go lower or higher than the guidelines “for no other reason than I disagree that they’re fair, or that there are reasons why I should be higher or lower.” The panel also rejected defendant’s claim that the court failed to adequately address the § 3553(a) factors. U.S. v. Smith, 562 F.3d 866 (7th Cir. 2009).
7th Circuit says even if Kimbrough applies to child porn guidelines, sentence was not unreasonable. (742) Defendant pled guilty to producing child pornography. Based on defendant’s criminal history, which included many previous incidents of sexually abusing children, the judge imposed an above-guidelines 450-month sentence (his guideline range was 300-365 months). Defendant noted that the child-pornography guidelines, § 2G2.1-.2, like the drug guidelines in Kimbrough v. U.S., 128 S.Ct. 558 (2007), are atypical in that they are not based on the Sentencing Commission’s nationwide empirical study of criminal sentencing. The Seventh Circuit held that the lack of empirical research did not make the child pornography guidelines invalid or make defendant’s sentence unreasonable. Even assuming that Kimbrough applies to the child exploitation guidelines, Kimbrough does not require judges to disagree with the crack guidelines. So even if a court may sentence below the child-porn guidelines based on a disagreement with the guidelines, its failure to do so does not make the sentence unreasonable. U.S. v. Huffstatler, 571 F.3d 620 (7th Cir. 2009).
7th Circuit affirms 480-month guideline sentence where kidnapping victim was killed. (742) Defendant and a co-conspirator were convicted of kidnapping and conspiracy to commit kidnapping. His guideline range was 360 months to life, and the court sentenced him to 480 months. The Seventh Circuit upheld the sentence as reasonable. The record supported the court’s finding that it was defendant, rather than his co-conspirator, who struck the blow that killed the victim. The court credited the co-conspirator’s statement because it “fit the facts and evidence” while defendant’s statement did not. Sentences that fall within the Guideline range are presumptively reasonable, and defendant did not meet his burden to show an abuse of discretion. The court explicitly weighed the facts of the case in light of the §3553(a) factors. It considered a number of factors that could potentially counsel a lower sentence, including the fact that defendant did not intend to kill the victim, had no prior criminal record and had been a model prisoner while incarcerated. U.S. v. Busara, 551 F.3d 669 (7th Cir. 2008).
7th Circuit rejects upward variance that was based on mistakes and misunderstandings. (742) Defendant pled guilty to defrauding Indiana’s Medicaid program. His guideline range was 18-24 months, but the district court sentenced him to 60 months, apparently believing that the guidelines treat white-collar criminals too leniently. The Seventh Circuit reversed, finding that the sentencing transcript was “laced with apparent mistakes and misunderstandings.” The judge erroneously believed that Medicaid fraud was more serious because it is fraud against the government. However, the statute of conviction punished frauds only against health care benefit programs. The court found that defendant had been motivated by personal greed, but this is true of most frauds. The judge also thought the complexity of the fraud required an out-of-guideline sentence. However, sophisticated means is already a guideline factor, § 2B1.1(b)(9)(C). The judge cited the amount of money stolen ($294,000), but defendant would have had to steal $20 million for a sentence of 60 months to be within the guideline range. The judge also wanted to avoid unwarranted sentence disparities among defendants with similar records, but did not mention any sentence he had imposed in another case. U.S. v. Higdon, 531 F.3d 561 (7th Cir. 2008).
7th Circuit rejects below-guideline sentence where court’s comments supported upward variance. (742) Defendant was involved in a complex identity theft scheme carried out over two years. The guideline range for his wire-fraud counts was 63-78 months. In addition, he was subject to a mandatory consecutive term of 24 months’ imprisonment for an aggravated identity-theft count. The Seventh Circuit held that the 12 month sentence imposed by the district court for the wire-fraud counts was unreasonable. There was a sizable difference between the advisory range and the sentence imposed by the judge. As such, the court had to enunciate persuasive reasons, based on the § 3553(a) factors, for the variance. However, the judge’s comments were negative, and stated a strong case for an above-guideline sentence. The court severely chastised defendant for his character flaws, including his arrogance, his lack of empathy, and his self-centeredness. Although the judge cited defendant’s young age and his lack of substantial involvement with the law as the reasons for the low sentence, defendant’s age (20) was not unique to defendant, and was not sufficient to convince the appellate court that defendant deserved the reduced sentence. Although the court may have leaned toward a lighter sentence for the wire-fraud conviction to somehow compensate for the mandatory 24-month identity theft sentence, this would have violated 18 U.S.C. § 1028A(b)(3), which prohibits courts from reducing the sentence of a connected crime to “compensate” the separate term of imprisonment imposed for aggravated identity theft. U.S. v. Omole, 523 F.3d 691 (7th Cir. 2008), abrogated by U.S. v. Satham, 581 F.3d 548 (7th Cir. 2009).
7th Circuit finds court properly considered request for below-guideline sentence. (742) Defendant argued that the district court failed to consider his arguments for a below-guideline sentence—in particular, his assertion that the lack of treatment for his cataract while he was in pretrial detention warranted a lower sentence. The Seventh Circuit found no error. The sentencing court acknowledged and rejected this contention when it noted that defendant could have surgery shortly after he arrived in his designated prison to serve his sentence. Moreover, none of the § 3553(a) factors made pretrial detention or the conditions of that detention a relevant consideration, and even if unusually harsh conditions could warrant a lower sentence, the conditions defendant described were not in that category. U.S. v. Martinez, 520 F.3d 749 (7th Cir. 2008).
7th Circuit says court properly considered § 3553(a) factors. (742) Defendant was convicted of armed bank robbery. He argued that the district court, in sentencing him, failed to consider the 18 U.S.C. § 3553(a) factors, but the Seventh Circuit found no error. The judge is not required to apply the § 3553(a) factors mechanically or in a “checklist fashion,” but must explain why, consistent with the § 3553(a) factors, the sentence is appropriate. The judge gave ample opportunity to both sides to present their arguments. Defendant pointed out that prior to the robbery, he had kept steady jobs for years, and wanted to return home to provide for his wife and children. After considering the government’s response, the judge responded to the issues raised by defendant and touched upon many others. Although defendant was a “good father,” the judge believed that he had “forfeited [his] right to participate” in his children’s upbringing by committing a serious crime involving guns, placing many innocent bystanders at risk. The judge found that defendant deserved a low-end sentence because he was less culpable than the other participants in the robbery and committed the crime “for greed, pure and simple.” U.S. v. Price, 516 F.3d 597 (7th Cir. 2008).
7th Circuit holds that guideline sentence for child pornographer was reasonable. (742) Defendant was convicted of distributing child pornography and was sentenced to 330 months, which fell within the middle of his 292-365 month sentencing range. He argued that his sentence was unreasonably long, pointing to other defendants convicted of violating § 2252(a) who received lower sentences. The Seventh Circuit found no error. The sentences to which defendant pointed as comparisons were not wholly comparable. One defendant convicted of the same offense did not receive all of the enhancements applicable to defendant, such as material involving prepubescent minors or material depicting sadistic or masochistic conduct. Another defendant received a three-level acceptance of responsibility reduction that defendant did not receive. More generally, it is pointless for a defendant whose own sentence is within the Guidelines to raise this ground. “Sentencing disparities are at their ebb when the Guidelines are followed, for the ranges are themselves designed to treat similar offenders similarly.” U.S. v. Shrake, 515 F.3d 743 (7th Cir. 2008).
7th Circuit refuses non-guideline sentence for alleged gambling addiction. (742) Defendant embezzled hundreds of thousands of dollars from his employer and did not report the income on his tax return. He requested a below-guideline range sentence based on the purposed link between a claimed gambling addiction and his criminal conduct. He also raised several other grounds for a below-guideline range sentence. The court refused to grant a departure or a variance, and imposed sentences at the low end of the advisory guideline range. The Seventh Circuit held that the sentences were reasonable, rejecting defendant’s claim that the district court failed to give meaningful consideration to his arguments in favor of a below-guideline sentence. The district court found that there was insufficient evidence of a gambling addiction, noting that defendant claimed to have suffered from the addiction for many years without committing any crimes. The court also questioned his claims that his losses from playing the stock market even constituted gambling. The court also rejected defendant’s tenuous claims that he suffered from depression and bipolar disorder. The other “factors” were nothing more than stock arguments that sentencing courts see routinely, such as family ties, overrepresentation of criminal history, and acceptance of responsibility. The court was free to reject these without discussion. U.S. v. Tahzib, 513 F.3d 692 (7th Cir. 2008).
7th Circuit upholds guideline sentence for sex offender despite psychologist report. (742) Defendant pled guilty to traveling across state lines to have sex with a minor, and was sentenced to 46 months’ imprisonment, the bottom of the applicable guideline range. Defendant presented testimony of a forensic psychologist who opined that defendant had been driven to commit the crime after years of suffering from low self-esteem and poor body image. The doctor said there was only a 9-13 percent risk that defendant would repeat his crime, and the risk could be reduced by counseling and psychotropic medication. He further opined that prison would be “devastating” for defendant. Defendant’s lawyer noted his parents’ ill health, his cooperation, and his solid record of employment and charitable work. The judge considered these mitigating factors, but did not think they justified a below-guideline sentence. The judge was dismissive of the psychological evidence, noting that preying on minors through the Internet was a “deadly serious problem,” and that the best way to deal with it was to remove individuals from the community for a period of time. The Seventh Circuit affirmed the guideline sentence as reasonable. U.S. v. McIlrath, 512 F.3d 421 (7th Cir. 2008).
7th Circuit says conditions of pretrial confinement were not so egregious as to merit sentencing reduction. (742) Defendant argued that the district ignored his argument that he should receive a shorter sentence to “compensate” for his two-and-one-half-month pretrial stay at a county detention center, where he clamed he was denied care for his toothache, lived in poorly ventilated quarters, and was not able to exercise. The Seventh Circuit found no error, since even if it accepted defendant’s descriptions of the conditions of his confinement as true, the conditions were not unusually harsh. Because defendant’s sentence fell within the guidelines’ recommended range, the appellate court would presume that the sentence was reasonable unless defendant could show that the court did not adequately consider the sentencing factors in 18 U.S.C. § 3553(a). Harsh or unpleasant conditions of pretrial confinement are not among the § 3553(a) factors. While other circuits have found, prior to Booker, that extraordinary conditions of pretrial confinement could justify a downward departure, the conditions involved in those cases were far more severe than the conditions alleged by defendant. The judge here said that he had read defendant’s submission, which was enough to show that he considered defendant’s argument and rejected it. U.S. v. Ramirez-Gutierrez, 503 F.3d 643 (7th Cir. 2007).
7th Circuit finds sentence of one day in prison for child pornography offense unreasonable. (742) Defendant, the 23-year old son of a wealthy couple, was convicted of possessing child pornography. Although his guideline range was 63-78 months, the judge imposed a sentence of one day in prison, followed by 10 years of supervised release. The judge noted that defendant needed treatment, which he could get during a lengthy period of supervised release, but if he went to prison “with the hope that he gets sex offender treatment in prison, we’re pretty much guaranteeing his life will be ruined.” The court also found that the offense was committed “out of boredom and stupidity” and not because defendant had a real problem. The court also thought that sex offender treatment within the Bureau of Prisons was going to “expose him to people who are dangerous to him.” The Seventh Circuit reversed, holding that the sentence of one day in prison was unreasonable. It was unclear why the assertion that defendant committed the offense out of “boredom and stupidity” should be a mitigating factor. This was inconsistent with the 10-year term of supervised release the judge imposed, which included conditions that required defendant to participate in sex offender treatment. The judge’s suggestion that defendant did not have a “real problem” suggested that she disparaged Congress’s decision to criminalize the consumption and distribution of child, and felt that only people who actually molest children, rather than watching them molest children, have a “real problem.” Finally, the judge’s assertion that “sex offender treatment within the Bureau of Prisons is going to expose defendant to people who are dangerous to him” was ill-informed. U.S. v. Goldberg, 491 F.3d 668 (7th Cir. 2007).
7th Circuit says probation for $1.4 million health care fraud was unreasonable. (742) At defendant’s sentencing for convictions involving extensive health care and tax fraud, the district court calculated defendant’s sentencing range at 24-30 months. If the court had accepted the government’s minimum loss calculation of $1.4 million, defendant’s range would have been 78-97 months. The court imposed a sentence of five years’ probation because of the following factors: defendant, a cardiologist, was an inept businessman, the government had violated Brady, the defendant had spent a great deal of money on his defense, and the prosecution had stigmatized defendant and might cause him to lose his medical license. After concluding that the court should have used a minimum loss calculation of $1.4 million, the Seventh Circuit found the sentence unreasonable. It held that although the stigma and possible loss of license would justify a “limited” reduction in the defendant’s sentence, the amount the defendant spent on attorneys and the alleged government misconduct were irrelevant to defendant’s sentence. U.S. v. Sriram, 482 F.3d 956 (7th Cir. 2007).
7th Circuit finds 360-month sentence for non-violent drug offense reasonable. (742) Prior to sentencing defendant, the district court elicited and considered his written submissions detailing mitigating circumstances that the court should take into account. Defendant’s written submissions included information on his father’s violent death when defendant was five years old, the murder of his step-brother, defendant’s lack of a male role model, his association with “a bad crowd,” and his two children. After hearing arguments from both sides, the court imposed a sentence of 360 months, the low end of the guideline range. The court noted that defendant’s arguments in mitigation did not dissuade it from a guideline sentence because, based on defendant’s history and characteristics, defendant was a recidivist. Although 30 years for a non-violent drug offense was harsh, the Seventh Circuit ruled that it was not unreasonable in light of defendant’s criminal history. U.S. v. Glover, 479 F.3d 511 (7th Cir. 2007).
8th Circuit says court adequately considered defendant’s mental health and explained sentence. (742)Defendant was sentenced to 120 months, which was below his guide¬line range of 151-188 months. The Eighth Circuit rejected defendant’s argument that the district court erred by failing to consider his mental health issues sufficiently or to explain his sentence. The district court adopted the findings in the PSR which discussed defendant’s mental health issues, and heard exten¬sive argument from defendant’s counsel. The court responded to these arguments at sentencing and in its statement of reasons, expressing “no doubt that [defendant] has some mental health issues” and that his sentence would “give [him] an opportunity to take advantage of [the] mental health services [available] in prison.” The court also explained its sentence and its conclusion that a lengthy prison sentence was appropriate given defendant’s status as a career offender and his inability to remain law-abiding. The sentence was not unreasonable. U.S. v. Brown, __ F.3d __ (8th Cir. Dec. 4, 2014) No. 14-1252.
8th Circuit finds guideline firearm sentence was reasonable.(742)Defendant pled guilty to being a felon in possession of a firearm, and was sentenced to 120 months, which fell within his 110-120 month guide¬line range. The Eighth Circuit rejected defendant’s argu¬ment that the within-guidelines sentence was substantive¬ly unreasonable. The district court heard extensive arguments from defendant’s counsel concerning each of the mitigating factors raised by defendant, but determin¬ed that defendant’s violent criminal history and the court’s obligation under §3553(a) to protect the public “overwhelm[ ] the other considerations in this case.” De¬fendant had numerous convictions for violent conduct. There was no clear error. U.S. v. Maid, __ F.3d __ (8th Cir. Nov. 24, 2014) No. 14-1546.
8th Circuit holds that court adequately considered defendant’s history and characteristics. (742) Defendant pled guilty to assaulting state correctional officers. He argued for the first time on appeal that the district court committed procedural error at sentencing by failing to consider evidence regarding his history and characteristics under 18 U.S.C. § 3553(a). The Eighth Circuit found no plain error. The court reviewed the information contained in defendant’s PSR and heard extensive argument from defendant’s attorney, thus indicating that the court “was aware of the § 3553(a) factors and adequately considered them in selecting an appropriate sentence.” Furthermore, defendant could not show that the alleged error affected his substantial rights. The court sentenced defendant to a guideline sentence of 164 months, 82 months to run concurrently with another sentence. Defendant received a sentence lower than those imposed on the other two federal inmates involved in the assault, and his term of imprisonment was only 13 months higher than his request. Given defendant’s criminal record and the seriousness of his assault, he failed to establish “a reasonable probability that he would have received a lighter sentence” if the district court had considered the mitigating evidence that defendant alleged it ignored. U.S. v. Luedtke, __ F.3d __ (8th Cir. Nov. 17, 2014) No. 13-3738.
8th Circuit says defendant did not rebut presumption that guideline sentence was reasonable. (742) Defendant pled guilty to drug and firearms charges, and was sentenced to 100 months for methamphetamine possession and a consecutive 60 months for firearm possession. Defendant challenged the 100-month meth sentence, arguing that the court gave “too little weight to the traumatic effects of his dysfunctional upbringing” and “overestimat[ed] the likelihood [that he] would commit future crimes.” His advisory range for the offense was 100-125 months. The Eighth Circuit upheld the guideline sentence. A sentence within the guideline range is presumed to be reasonable on appeal. Defendant did not overcome this presumption. The district court weighed the § 3553(a) factors and fairly reasoned that defendant had been a “troubled young man” for a very long time. It found “a very substantial risk that this young man will commit additional crimes” and that a long prison sentence “taking him out of circulation for a long period of time … [was] required.” U.S. v. Ray, __ F.3d __ (8th Cir. Nov. 18, 2014) No. 14-1711.
8th Circuit holds that court gave adequate weight to defendant’s mental illness. (742) Defendant, who had a history of mental illness, posted a classified ad on Craigslist that stated: “Wanted dead, all the maplewood city police officers, paying one million per head. two million for detectives Kerry Daniels.” He pled guilty to use of an interstate commerce facility in the commission of murder-for-hire. His guideline range was 292-365 months, but the statutory maximum under 18 U.S.C. § 1952 was 120 months. The district court departed downward based on defendant’s mental illness, § 5H1.3, and sentenced him to 72 months. Nonetheless, defendant argued that the district court gave insufficient weight to his mental illness at sentencing. The Eighth Circuit disagreed. The district court gave great weight to defendant’s mental illness, departing downward from his guidelines sentence by 48 months despite finding that defendant’s history of inappropriate behavior, combined with his access to firearms, created a “potentially explosive situation.” This history was well documented. His prior behavior indicated both that defendant was prone to violent thoughts and that he possessed sufficient individual autonomy to act on those thoughts. U.S. v. Lawrence, 749 F.3d 1092 (8th Cir. 2014).
8th Circuit says court adequately considered mitigating circumstances before refusing to depart. (742) Defendants recruited straw buyers to purchase homes at inflated prices, using corrupt appraisals to secure mortgage loans. Defendant Huston was sentenced to 57 months, and defendant Anderson was sentenced him to 60 months. On appeal, defendants argued that their sentences were substantively unreasonable. Huston argued that the three-month difference in their sentences did not reflect differences in their criminal histories, and therefore did not comport with the mandate that a district court consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Anderson argued the district court failed to consider several mitigating factors—he participated in only a limited number of fraudulent transactions, profited modestly, worked to avoid foreclosures, and could pay more restitution if given a shorter sentence. The Eighth Circuit upheld the guideline sentences as reasonable. The sentencing records confirmed that the district court expressly considered Huston’s lack of criminal history and the mitigating circumstances urged by Anderson. U.S. v. Huston, 744 F.3d 589 (8th Cir. 2014).
8th Circuit upholds refusal to vary or depart based on physical impairments. (742) Defendant was convicted of misapplication of funds from an Indian tribal organization, and related charges. The court sentenced her to 33 months, the bottom of the advisory guideline range. She argued on appeal that the court abused its discretion in failing to depart downward under § 5H1.4 for extraordinary physical impairments, and failing to grant her a variance based upon her substantial health issues. The Eighth Circuit found no error. When a district court is aware of its discretion to depart downward, its decision not to depart is unreviewable. Here, the court clearly recognized its authority to depart and declined to depart because it believed that defendant’s health care problems could be easily managed by the Bureau of Prisons. Moreover, defendant’s sentence fell within her advisory guideline range, which meant it was entitled to a presumption of reasonableness. Defendant did not overcome that presumption. U.S. v. Wanna, 744 F.3d 584 (8th Cir. 2014 ).
8th Circuit upholds below-guideline child exploitation sentence as substantively reasonable. (742) Defendant photographed a minor in sexually explicit positions and was convicted of sexual exploitation of a minor. He argued that his 220-month sentence was substantively unreasonable, claiming that the court did not adequately consider the criteria in 18 U.S.C. § 3553. The Eighth Circuit disagreed. The district court considered the § 3553 factors and varied downward from the guidelines range of 262-327 months, sentencing defendant to 220 months. The district court chose a below-guidelines sentence due to defendant’s advanced age and lack of criminal history. Addressing his medical condition, the court recommended a full physical examination and evaluation, and assignment to an institution for sex offender treatment. Ultimately, the court did not sentence defendant to the 15-year statutory minimum because of the severity of his offense, the creation and production of child pornography. Because the district court considered and properly weighed the relevant factors, the sentence was not substantively unreasonable. U.S. v. Vanhorn, 740 F.3d 1166 (8th Cir. 2014).
8th Circuit upholds refusal to vary based on history of addiction and rehabilitation. (742) Defendant pled guilty to conspiring to distribute methamphetamine. She moved for a downward variance based on her personal and familial history of substance abuse. The district court sentenced defendant to 87 months, at the bottom of her advisory sentencing range. On appeal, defendant argued that given her history of addiction and rehabilitation, the district court abused its discretion by imposing a substantively unreasonable sentence and denying a downward variance. The Eighth Circuit found no error. An appellate court may presume that a sentence within the guideline range is reasonable. The district court considered defendant’s struggles with addiction and her rehabilitation, and acted within its wide range of discretion by sentencing her at the bottom of her guideline range. The court also did not err by denying credit for the time she staying in a halfway house. While on release defendant was not subject to Bureau of Prison control, and was therefore not entitled to credit under 18 U.S.C. § 3585(b). U.S. v. Parris, 741 F.3d 919 (8th Cir. 2014).
8th Circuit holds that below guideline sentence for illegal reentry was reasonable. (742) Defendant pled guilty to illegal reentry. The district court sentenced him to 36 months, ten months below his advisory guideline range. Nonetheless, defendant argued on appeal that his sentence was substantively unreasonable, contending that the court gave too much weight to the advisory guidelines—in particular, a 16-level enhancement under § 2L1.2(b). The Eighth Circuit disagreed. Although district courts are entitled to reject and vary categorically from the guidelines based on a policy disagreement, they are not required to do so. Because the court varied downward here, it was hard to say that it gave too much weight to the guidelines. The panel also rejected defendant’s claim that the court gave too little weight to his health problems and family circumstances. The district court acknowledged that defendant had significant health problems and young children in the country. The court articulated a reasoned basis for its sentence, finding defendant’s repeated violations of immigration laws and the need to deter others from similar conduct warranted a lengthy sentence. U.S. v. Gonzalez, 742 F.3d 815 (8th Cir. 2014).
8th Circuit affirms life sentence for sexual abuse and child porn offenses. (742) Defendant was convicted of aggravated sexual abuse and child pornography charges. The district court applied a five-level increase under § 4B1.5(b) for engaging “in a pattern of activity involving prohibited sexual conduct.” Defendant did not dispute that his case supported the enhancement, but argued that there was “an implicit cap” to ensure that a defendant who received a five-level enhancement under § 4B1.5(b) (for a pattern of prohibited sexual conduct during the instant offense) did not receive a higher offense level than a defendant who received a five-level enhancement under § 4B1.5(a) (for a prior, separate sex offense). The Eighth Circuit rejected this argument, ruling that it contradicted the language of the guidelines. The life sentence, which fell within defendant’s guideline range, was not unreasonable. Defendant’s “sexual activity with children occurred with two different victims over a substantial number of years.” The court also considered defendant’s history of “extreme self-centered behavior and unbelievably poor judgment”—notably, a 2008 felony conviction for neglect and endangering the lives of three dependent adults. U.S. v. Goodale, 738 F.3d 917 (8th Cir. 2013).
8th Circuit upholds guideline sentence for child porn offenses as substantively reasonable. (742) Defendant argued that his 360-month child pornography sentence was substantively unreasonable because of a disconnect between § 2G2.2 and the sentencing factors in 18 U.S.C. § 3553(a). Specifically, he claimed that the child porn guidelines routinely produce sentences at or near the statutory maximum even in mine-run cases, and reflected the political will of a few Congressional members, instead of the data-driven expertise of the Sentencing Commission. Defendant argued that his conduct was “typical,” and therefore the court abused its discretion by relying too heavily on § 2G2.2 in fashioning his sentence. The Eighth Circuit disagreed, and held that defendant’s sentence was substantively reasonable. Appellate courts apply a presumption of reasonableness to a within-guidelines sentence, even if that guideline is a product of Congressional direction. While a court may choose to deviate from the guidelines because of a policy disagreement, it is not required to do so. Here, defendant’s claim that his was a “typical” child porn case was undermined by a videotaped statement by one of defendant’s sons detailing how defendant had repeatedly sexually abused him. U.S. v. Manning, 738 F.3d 937 (8th Cir. 2014).
8th Circuit affirms sentence at bottom of guideline range as procedurally and substantively reasonable. (742) Defendant pled guilty to methamphetamine charges, and was sentenced to 108 months. He argued that the district court failed to properly consider all of the sentencing factors in 18 U.S.C. § 3553(a). The Eighth Circuit found no procedural error. The district court expressly stated, “I’ve [ ] reviewed all of those sentencing factors set out in § 3553(a)” and specifically invited defendant to underscore any of the factors for particular consideration. There was nothing to suggest that the court did not consider defendant’s arguments. The 108-month sentence was also substantively reasonable. The court sentenced defendant at the bottom of his calculated guideline range. It acknowledged that defendant was married and had close family ties, had attended Narcotics Anonymous and continuing education classes while incarcerated, and had a limited criminal history. The district court also recommended participation in drug treatment as part of his sentencing, and urged defendant to further his education. Though 108 months was a lengthy sentence, the district court did not abuse its discretion. U.S. v. Salazar-Aleman, 741 F.3d 878 (8th Cir. 2013).
8th Circuit upholds sentence at bottom of guideline range as substantively reasonable. (742) Defendant pled guilty to one count of burglary in the first degree in Indian country. His guideline range was 151-188 months. The court heard defendant’s allocution and defense counsel’s description of defendant’s difficult and abusive upbringing and chronic substance abuse. After stating that it had reviewed all of the factors in 18 U.S.C. § 3553(a), the district court found that the violence involved in the offense could not be excused, and sentenced defendant to a guideline sentence of 151 months. The Eighth Circuit rejected defendant’s claim that his sentence was substantively unreasonable. Based on this violent home invasion and physical attack, and on defendant’s individual history, the district court did not abuse its discretion by sentencing defendant to 151 months, a presumptively reasonable sentence at the bottom of his guidelines range. U.S. v. Downwind, 736 F.3d 785 (8th Cir. 2013).
8th Circuit reverses downward variance for insufficient explanation. (742) Defendant was convicted of fraud, tax evasion, and conspiracy charges. The mail and wire fraud conspiracy conviction stemmed from her company’s theft of nearly $33 million from Best Buy over a four-year period. The tax charges stemmed from understating tax liability by more than $3 million between 2004 and 2007. Defendant’s advisory guideline range was 135-168 months, but the district court varied downward and sentenced her to three years’ probation. The Eighth Circuit reversed, holding that the district court provided an insufficient explanation for the variance. Given the magnitude of the downward variance, the district court offered very little explanation for the sentence. Moreover, the relatively brief explanation that the court offered was at times contradictory. For example, the court said that it was “taking a huge chance” on defendant by imposing only a term of probation, but then said in its statement of reasons that it was confident defendant would not re-offend. Because defendant’s probationary sentence was a “major departure” from the advisory guidelines range, the court’s brief and contradictory explanation was not sufficient “to allow for meaningful appellate review and to promote the perception of fair sentencing.” U.S. v. Cole, 721 F.3d 1016 (8th Cir. 2013).
8th Circuit approves upward departure for serial arsonist who endangered others. (742) Defendant was convicted of three counts of arson. His advisory range was 130-162 months. The district court departed upward to 240 months under § 2K2.0(a)(3) for circumstances inadequately considered by the guidelines. Alternatively, the court deemed the sentence a variance under 18 U.S.C. § 3553(a), finding that the advisory range did not reflect the serious impact of the fires on the victims, including property loss, emotional distress, and substantial risk of injury or death. Specifically, it noted that defendant knew “all of the structures were occupied” when he set the fires. Children (including one of his own) were in the targeted house during a fire in October 2009. Another fire in an apartment building in May 2010 endangered the lives of all the building’s tenants. The Eighth Circuit held that district court did not abuse its discretion in departing under § 5K2.0(a)(3). Defendant also claimed the sentence was unreasonable because the district court ordered it to run consecutive to an existing 10–year federal sentence. However, the court determined his danger to society and recidivism risk merited a consecutive sentence. The court found the guidelines failed to account for defendant being a “serial arsonist.” This determination was not unreasonable. U.S. v. Gant, 721 F.3d 505 (8th Cir. 2013).
8th Circuit rejects challenge to extent of downward variance. (742) Defendant was convicted of marijuana conspiracy charges, and sentenced to 276 months. The district court found his guideline range was 360 months to life, but ultimately varied downward to 276 months. Defendant argued on appeal that the sentence was unreasonable, claiming that the district court unduly relied upon two or three unrelated cases in its proportionality analysis under 18 U.S.C. § 3553(a)(6). The Eighth Circuit held that the sentence was reasonable. Where, as here, a district court has varied below the guidelines range, “it is nearly inconceivable that the court abused its discretion in not varying downward still further.” While the district court did mention its sentencing of other criminal defendants, who were arguably not similarly situated with defendant, the district court did not abuse its discretion by placing any undue weight on those comparisons. U.S. v. McCauley, 715 F.3d 1119 (8th Cir. 2013).
8th Circuit upholds guideline sentence for meth offense. (742) Defendant was convicted of methamphetamine distribution charges, and was sentenced to 324 months, which fell at the bottom of his 324-405 month guideline range. He argued that the sentence was substantively unreasonable, and that he should have been given a below-guideline sentence because of his age, limited criminal history, family circumstances, and need for drug treatment. He also contended that the 324-month sentence was disproportionate when compared to the 52 months his co-defendant received. The district court considered each of these arguments in the context of all the 18 U.S.C. § 3553(a) sentencing factors. It explained that defendant did not deserve a below-guideline sentence because of the large quantities of methamphetamine involved, the duration of his trafficking operations, the serious nature of his offenses within 1,000 feet of a playground, and his criminal history. The Eighth Circuit found no abuse of discretion, noting that defendant was sentenced to the bottom of his guideline range. U.S. v. Alexander, 714 F.3d 1085 (8th Cir. 2013).
8th Circuit upholds 51-month guideline sentence despite mitigating factors presented by defendant. (742) Defendant was an Iranian-born Christian who fled to the United States to escape persecution. He was 36 years old and had a wife with lupus and three minor children who depended on him for support. He had been continuously employed since his arrival in the United States and had no history of violent or criminal conduct. He argued that the district court insufficiently weighed these mitigating personal characteristics when it meted out his 51-month sentence. The Eighth Circuit held that the sentence, which fell at the bottom of his 51-63 month guideline range, was substantively reasonable. The district court considered the 18 U.S.C. § 3553(a) factors and chose to assign greater weight to the nature of the offense than the mitigating personal characteristics defendant presented. That choice was well within the district court’s wide latitude in weighing relevant factors. U.S. v. Bakhtiari, 714 F.3d 1057 (8th Cir. 2013).
8th Circuit approves upward variance for involvement in uncharged shooting. (742) Defendant pled guilty to firearms charges, resulting in a guideline range of 87-108 months. However, based on evidence that defendant had shot Bell, the district court departed under § 4A1.3(a) to criminal history category V or VI based on defendant’s underrepresented criminal history. In the alternative, the district court varied upward to 132 months imprisonment. The Eighth Circuit held that the district court did not abuse its discretion in varying upward based on defendant’s involvement in the shooting. Defendant told three people similar stories about how he had shot Bell. The statements from the three men were consistent with each other and with other evidence. The police reports showed that defendant knew Bell’s name, the location of his injury, and the model and color of the car in which Bell was riding. The model of the car was never released to the media. Defendant was also the same gender and race as one witness to the shooting identified. This corroboration suggested that the hearsay testimony about defendant’s involvement in the shooting was reliable. Because the court did not abuse its discretion in varying upward, any error in alternatively imposing an criminal history departure was harmless. U.S. v. Grandon, 714 F.3d 1093 (8th Cir. 2013.
8th Circuit approves guideline sentence for tax evasion. (742) Defendant, a manager at an car assembly plant, was in charge of approving invoices for payment to various vendors. He was convicted of four counts of willful income tax evasion for failing to report and then concealing kickbacks he received from the vendors. His guideline range was 51-63 months. At sentencing, defendant moved for a downward departure under § 5K2.20 for aberrant behavior, or a variance to a term of probation. After carefully balancing mitigating factors such as defendant’s age and lack of a criminal record, with the seriousness of the offense, the many victims, and defendant’s steadfast refusal to accept responsibility for his actions, the court sentenced him to 51 months. The Eighth Circuit held that the guideline sentence was substantively reasonable. A sentence within the guidelines range is presumptively reasonable on appeal. Nothing in the record established that that the district court abused its considerable discretion in fashioning an appropriate sentence. U.S. v. Perry, 714 F.3d 570 (8th Cir. 2013).
8th Circuit approves upward variance based on extent and persistence of defendant’s harassment. (742) Defendant pled guilty to multiple counts of sending and mailing threatening communications to an FBI agent who had investigated defendant in connection with threats she made against an airline. Her guideline range was 120-150 months, but the district court varied upward and sentenced her to 180 months. Defendant contended that the district court gave undue consideration to the victim’s law enforcement status and not enough to her mental illness. The Eighth Circuit held that the district court did not abuse its discretion in varying upward. Defendant’s PSR revealed a 30-year history of criminal conduct. She threatened the agent over an extended period of time and made graphic and violent threats, which also targeted his family. She continued her behavior before sentencing and showed no remorse, demonstrating an intent to continue her harassment. Given the extent and persistence of defendant’s conduct, the district court did not abuse its discretion in varying upward and imposing a 180-month sentence. U.S. v. Hutterer, 706 F.3d 921 (8th Cir. 2013).
8th Circuit holds that life sentence for drug charges was reasonable. (742) Defendant was convicted of drug and money laundering conspiracy charges. She argued her life sentence was substantively unreasonable, noting that she had no violent criminal history, and because she used her sister’s name to obtain employment in the United States, was subject to removal upon her release from prison. Further, she contended the district court gave insufficient weight to her difficult upbringing and personal circumstances. The Eighth Circuit held that the sentence was reasonable. At sentencing, the district court considered the § 3553(a) factors and explained its decision to sentence defendant to life imprisonment. The court observed defendant was undeterred by a previous conviction for marijuana importation. It noted defendant’s criminal conduct had escalated from marijuana importation to participation in a larger organization which dealt greater quantities of drugs. It also cited defendant’s theft of her sister’s identity to gain entry to the country. The district court chose to assign greater weight to the nature and circumstances of the offense rather than the mitigating personal characteristics defendant presented at sentencing. That choice was “well within the wide latitude [given] to individual district court judges in weighing relevant factors.” U.S. v. Hoffman, 707 F.3d 929 (8th Cir. 2013).
8th Circuit upholds court’s refusal to depart or vary from guidelines. (742) Defendant was convicted of two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact. He was sentenced to 192 months, which fell within his guideline range of 188-235 months. The Eighth Circuit held that the district court did not abuse its discretion by refusing to depart or vary downward. Defendant had requested a downward departure or variance due to his age, 58, and health concerns. The district court demonstrated awareness of its discretion to depart downward by recognizing that the guidelines are advisory, not mandatory. The decision to not depart was unreviewable. Further, the district court considered all relevant factors in arriving at its sentence, including defendant’s age and medical condition. The court recommended that he serve his sentence in a federal medical center. The district court weighed the appropriate factors and did not commit a clear error of judgment. U.S. v. Crow Eagle, 705 F.3d 325 (8th Cir. 2013).
8th Circuit upholds refusal to vary below bottom of career offender range. (742) Defendant was a career offender with an advisory guideline range was 262-327 months, and the court sentenced him to 262 months. He argued that the district court should have rejected the guidelines due to his age at the time of the offense, the “extenuating facts” surrounding those crimes, and the disparity between his 262-month sentence and his sentence for prior crimes. A sentence within the recommended guideline range is presumed reasonable, and Eighth Circuit ruled that the district court acted within its broad discretion in rejecting defendant’s arguments for a lighter sentence. The district court noted that defendant’s criminal history began at the age of 13 and reflected a “trajectory … that suggests that the public needs to be protected from him for a significant period of time.” The court acknowledged defendant’s relatively young age, and that he might be able to “turn his life around,” but after considering the statutory sentencing factors, determined that a sentence within the advisory guideline range was appropriate. The court’s refusal to vary was consistent with USSG § 5H1.1, which provides that “[a]ge (including youth) is not ordinarily relevant in determining whether a departure is warranted.” U.S. v. Ponce, 703 F.3d 1129 (8th Cir. 2013).
8th Circuit upholds marijuana sentence at bottom of guideline range as reasonable. (742) Defendant pled guilty to marijuana conspiracy charges. The district court attributed at least 80 kilograms of marijuana to defendant, and sentenced him to 33 months. The Eighth Circuit held that the 33-month sentence was reasonable. The sentence fell within defendant’s guidelines range, and thus could be presumed reasonable. The district court explicitly considered the § 3553(a) factors such as defendant’s involvement with the conspiracy and his personal background. The court considered his parental involvement with his five children, but it also noted that defendant had repeatedly been prosecuted for drug-related offenses over the past 15 years, receiving six convictions. Given defendant’s work in transporting the drugs, he could have reasonably foreseen the transport of the entire 180 pounds of marijuana. The district court properly calculated the guideline range, considered all relevant sentencing factors, and chose a sentence at the low end of the appropriate advisory guidelines range. Defendant did not show this sentence to be substantively unreasonable. U.S. v. Standafer, 703 F.3d 424 (8th Cir. 2013).
8th Circuit says court adequately explained reasons for rejecting downward variance. (742) Defendant argued for the first time on appeal that the district court failed to adequately explain why it rejected his request for a downward variance based on his advanced age and poor health, and his claim that the loss calculation overstated his criminal culpability. The Eighth Circuit found that defendant’s claim lacked merit. At sentencing, the district court told defendant it heard three victims “talk about the heartache and pain that they have gone through because of your criminal activities.” Noting his long history of criminal fraud, the court added: “If you’re not a sociopath, you’re close to being one. You are willing to lie, cheat and steal and it does not affect you.” The court’s subsequent written Statement of Reasons explained its decision to impose a sentence at the top of the advisory range in greater detail. The “crime was especially serious” due to its extent and sophistication and because defendant’s “calculated greed devastated the lives of many victims.” The court emphasized defendant’s long history of criminal fraud and deceit. It rejected the argument that defendant was less culpable than other defendants who caused comparable losses, and acknowledged his age and poor health, but found that these factors did not warrant a lower sentence. U.S. v. Krzyzaniak, 702 F.3d 1082 (8th Cir. 2013).
8th Circuit says court properly considered defendant’s military service and resulting mental health issues. (742) Defendant argued that the district court procedurally erred because there was no indication that it considered his military service and resulting mental health issues when determining his sentence. The Eighth Circuit found no procedural error. A district court need not quote verbatim all of the factors listed in § 3553(a). Instead, a district court generally can demonstrate its consideration of the factors by referring to some of the statute’s relevant considerations. In this case, defendant presented information about his military history and mental health issues to the district court at sentencing, and the appellate court presumed the district court considered the matters as were presented to it. Therefore, the district court committed no procedural error, much less plain error, in determining defendant’s sentence. U.S. v. Grimes, 702 F.3d 460 (8th Cir. 2012).
8th Circuit holds 220-month guidelines sentences for four unarmed bank robberies were substantively reasonable. (742) Defendant was convicted of four bank robberies in Minnesota. His guideline range was 210-262 months. The district court sentenced him to 220 months on each count, to be served concurrently with one another, and with 100 months of his sentence for two robberies in other states. Defendant argued that sentences were substantively unreasonable because he was unarmed during the robberies, and he was already serving lengthy sentences for the other state robbery convictions. The Eighth Circuit disagreed. Defendant’s 220-month sentences were within his guideline range and therefore were presumptively reasonable. The district court considered the sentencing factors in 18 U.S.C. § 3553(a), and acted within its authority in ordering the 220-month sentences. The district court explained that defendant should serve an independent term of imprisonment for the bank robberies he committed in Minnesota, and concluded that his sentence was “sufficient to comply with the statutory objectives.” The district court did not abuse its discretion. U.S. v. Young, 701 F.3d 1235 (8th Cir. 2012).
8th Circuit says court need not sua sponte acknowledge its discretion to vary based on lack of fast-track program. (742) Defendant pled guilty to unlawful reentry after deportation following an aggravated felony conviction, and was sentenced to 46 months. Two weeks after sentencing, the Eighth Circuit ruled that the absence of a fast-track program and the resulting difference in the guidelines range “should not be categorically excluded as a sentencing consideration.” U.S. v. Jimenez–Perez, 659 F.3d 704 (8th Cir. 2011). Based on Jimenez–Perez, defendant argued that that the district court erred by failing to recognize its authority to grant a downward variance based on the unavailability of a fast-track downward departure. The Eighth Circuit disagreed. Defendant did not move for a downward variance on this ground, did not pursue the issue at sentencing, and the district court gave no hint that it misunderstood the extent of its sentencing discretion. Defense counsel’s passing reference to a four-level departure that would be available in fast-track districts did not require the district court to acknowledge, sua sponte, that it would have discretion to take this factor into account in determining whether to grant defendant’s request for an even greater variance. U.S. v. Longarica, 699 F.3d 1010 (8th Cir. 2012).
8th Circuit upholds denial of variance for cooperating defendant who stole drugs from controlled buy. (742) Defendant was convicted of drug conspiracy charges, resulting in a guideline range of 151-188 months. The court sentenced him to 165 months, denying his request for a downward variance. The court acknowledged defendant participated in a controlled purchase, but found he “undid [his] chances for a cooperation agreement or [U.S.S.G. § 5K1.1] motion from the government when [he] went ahead and stole some of the undercover drugs,” explaining the theft showed defendant had not “turned over a new leaf.” The Eighth Circuit held that the district court did not abuse its discretion in finding defendant was not entitled to a downward variance. Defendant’s suggestion that the district court may consider only those § 3553(a) factors advanced by the government was without merit. The district court has wide discretion in weighing a defendant’s cooperation against any misconduct by the defendant. U.S. v. Cook, 698 F.3d 667 (8th Cir. 2012).
8th Circuit upholds refusal to vary despite defendant’s ignorance of victim’s true age. (742) Defendant pled guilty to two counts of enticement of a minor, and was sentenced to 240 months, which fell within his guideline range of 235-293 months. His victim was 11 years old, and he received an eight-level enhancement under § 2G1.3(b)(5) for a victim under the age of 12. Defendant believed the victim was 13, and argued that he should have received a downward variance based on his ignorance of the victim’s age. The Eighth Circuit held that the district court did not abuse its discretion in refusing to grant a downward variance. The sentencing court’s decision to place greater emphasis on factors that favored a sentence within the guidelines range, rather than on § 3553(a) factors that might favor a more lenient sentence, was a permissible exercise of the court’s discretion. The court’s comments showed it considered defendant’s ignorance of the victim’s true age, and determined it did not carry sufficient weight to offset the other statutory factors. U.S. v. Hammond, 698 F.3d 679 (8th Cir. 2012).
8th Circuit approves guideline sentence for defendant who stored drugs for distribution conspiracy. (742) Defendant used his home to store drugs as part of a marijuana and cocaine distribution conspiracy. His guideline range was 78-97 months. The court denied his request for a downward variance, and sentenced him to 78 months. He argued that the 78-month sentence was substantively unreasonable because the conspiracy only lasted two years, it had ended long before he was indicted, and it did not cause death or serious injury. He further argued that his history and personal characteristics weighed in favor of a lower sentence, citing his family’s financial difficulties, his family ties, his employment, his lack of criminal history, and his lack of criminal activity while on presentence release. The Eighth Circuit held that the district court did not abuse its discretion in sentencing defendant to 78 months, the bottom of his guideline range. The court thoroughly considered the § 3553(a) factors and defendant’s mitigation arguments, and then properly concluded that a downward variance was not appropriate in light of the seriousness of the offense, defendant’s substantial participation in the conspiracy, the harm that drug activity causes the community, and the need for deterrence. U.S. v. Dengler, 695 F.3d 736 (8th Cir. 2012).
8th Circuit finds no abuse of discretion in rejecting downward variance. (742) Defendant, a sales assistant, embezzled money from her employer’s checking account by forging checks and making unauthorized electronic transfers. She argued that the district court misapplied the 18 U.S.C. § 3553(a) factors by denying her a downward variance in light of her family obligations, alleged mental illness, and lack of criminal history. The Eighth Circuit held that the district court did not abuse its discretion in denying defendant a downward variance. The sentencing hearing transcript revealed the district court’s careful consideration of each of the grounds on which defendant sought a downward variance. The court noted that defendant’s daughter’s health was improving, that defendant’s mental health was only a situational depressive disorder, and that her crimes’ long time span and her obstruction of justice mitigated against varying below the guideline range. U.S. v. Godsey, 690 F.3d 906 (8th Cir. 2012).
8th Circuit approves downward variance as not too high for mother with low IQ who took pornographic photos of her children. (742) Defendant pled guilty to production of child pornography based on photographs she took of her daughters at ages six and two. The district court sentenced her to 216 months, departing and varying downward from a guideline sentence of 360 months. On appeal defendant argued that her sentence was substantively unreasonable in light of her history of trauma, borderline intellectual functioning, lack of criminal history, and relative culpability. The Eighth Circuit found no abuse of discretion. The district court was aware of the mitigating information in defendant’s psychological report and her argument that she was less culpable than her boyfriend, who had been sentenced to 192 months. It also expressed concern that defendant just did not “get” that this was a “very, very serious offense.” The district court carefully considered the § 3553(a) factors in light of the mitigating evidence presented and the gravity of the offense. The sentence was well below the guideline sentence and 3 years above the statutory minimum. U.S. v. Zauner, 688 F.3d 426 (8th Cir. 2012).
8th Circuit affirms alternative crack sentence despite S.Ct.’s application of FSA to defendants sentenced after its enactment. (742) Defendant committed his crack offense before the Fair Sentencing Act of 2010 (FSA) was enacted, but he was was sentenced after its enactment. Following circuit precedent, the district court ruled that the FSA was not retroactive, and imposed a 60-month mandatory minimum sentence. Nevertheless, the judge was aware that the Supreme Court might rule that the FSA applied to defendants sentenced after its effective date, so the judge added that, even of the FSA were retroactive, he would vary upward from the advisory guidelines range and impose the same 60-month sentence, based on the factors in 18 U.S.C. § 3553(a). As the judge anticipated, the Supreme Court in Dorsey v. U.S., 132 S.Ct. 2321 (2012) held that the FSA applied to defendants sentenced after its enactment. The Eighth Circuit held that the district court’s alternative 60-month sentence was reasonable and supported by an adequate explanation. The court noted that defendant had several unscored criminal history points, and the offense was aggravated by the fact that a seven-year-old child was in the car with defendant and “a load of dope.” U.S. v. Thompson, 687 F.3d 1094 (8th Cir. 2012).
8th Circuit upholds sentence at top of guideline range for social security fraud. (742) Defendant pled guilty to social security representative payee fraud, in violation of 42 U.S.C. § 408(a)(5), and was sentenced to 18 months, the top of her guideline range. The Eighth Circuit upheld the sentence as reasonable. The district court reviewed the PSR, the victim losses and their impact statements, as well as letters in support of defendant. The court pointed out that defendant had defrauded “human beings who are living at the edge of society” and cited the emotional and financial problems that defendant’s actions had caused for at least one of her victims. Although defendant had medical problems, the district court noted that federal prisons have “excellent medical care.” The court specifically stated that it thought “that the federal sentenc[ing] statute, 3553(a) and its factors, … line up nicely with the guidelines in [this] case.” It thus properly applied its “wide latitude to weigh the § 3553(a) factors … and assigned some factors greater weight than others in determining an appropriate sentence.” U.S. v. Norris, 685 F.3d 1126 (8th Cir. July 20, 2012).
8th Circuit affirms running sexual exploitation sentence consecutive to state sentence for rape of victim’s sister. (742) Defendant, who secretly filmed a 12-year-old girl’s nude body before and after she took a shower, was convicted of sexual exploitation of a minor and possession of child pornography. The district court imposed concurrent sentences of 360 and 120 months, and ordered them to run consecutively to a state sentence of life without parole that defendant received for raping the victim’s 11-year-old sister. The Eighth Circuit upheld the consecutive sentence as reasonable. Because the state offense was not relevant conduct that increased defendant’s advisory guidelines offense level, the district court had discretion to impose a consecutive, concurrent, or partially concurrent sentence “to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The court did not exceed its “wide latitude to weigh the [18 U.S.C.] § 3553(a) factors in each case and assign some factors greater weight than others in determining an appropriate sentence.” U.S. v. Ward, 686 F.3d 879 (8th Cir. 2012).
8th Circuit upholds 216-months for campaign to harass neighbors. (742) After a neighbor reported to police defendant’s inappropriate contact with the neighbor’s son, defendant began a campaign to terrorize the neighbor. As part of the scheme, he gained access to the neighbor’s wireless internet router, and used the router to send images of child pornography to the neighbor’s co-workers under an email account defendant created in the neighbor’s name. He also used the email account and router to send death threats to the Vice President and other public officials. Defendant was convicted of various charges, including possession and distribution of child pornography, and was sentenced to 216 months. The Eighth Circuit held that the 216-month sentence was substantively reasonable. It was clear the district court sufficiently considered the § 3553(a) factors, expressly noting that defendant was the single father of three children, and was not a typical child porn offender. The court varied upward by four months because “the guidelines didn’t contemplate” the way in which defendant used the child pornography. Given defendant’s serious and repeated invasions of the victims’ privacy and security, as well as his plans to continue such conduct had law enforcement not intervened, the district court did not abuse its discretion. U.S. v. Ardolf, 683 F.3d 699 (7th Cir. 2012).
8th Circuit affirms refusal to depart based on defendant’s back injury. (742) At sentencing, defendant argued for a downward departure due to extraordinary physical impairments under U.S.S.G. § 5H4.1. Defendant suffered from serious back problems after being robbed by two assailants in February 2010. He was diagnosed with mobile spondylolisthiesis, and experienced significant pain when sitting and standing. He could not stand or walk for more than seven or eight minutes without experiencing pain. The district court denied defendant’s motion and sentenced him to 235 months, the bottom of the advisory range. The Eighth Circuit held that the district court properly exercised its discretion in refusing to depart based on defendant’s serious physical disability to his back. The court discussed defendant’s back injury and medical history at length during sentencing in the context of a potential downward departure under U.S.S.G. § 5H1.4. The district court was aware of the authority to grant such a departure and chose not to do so, but gave defendant a sentence at the bottom of the applicable guidelines range. No constitutional violation was shown. U.S. v. Varner, 678 F.3d 653 (8th Cir. 2012).
8th Circuit approves guideline sentence for autistic defendant who “collected” child porn. (742) Defendant pled guilty to receiving child pornography, and was sentenced to concurrent 97-month terms, which fell at the bottom of his advisory guideline range. He had requested a sentence of 60 months due to the “relatively tame” nature of the child porn that he collected, and due to his diagnosis of autism. A neuropsychologist testified that autistic individuals tend to collect things, and that defendant did not understand the “social basis” for the prohibition on child pornography. He also opined that defendant’s autism placed him at risk of being victimized or manipulated in prison. The Eighth Circuit held that the 97-month sentences were not unreasonable. The court rejected defendant’s argument about the “tame” nature of his child porn, and that such a distinction failed to provide adequate deterrence, promote respect for the law, or reflect the seriousness of the offense. While the doctor testified about how autism was related to defendant’s collecting tendencies, autism did not necessarily dictate the content of what he chose to collect. Finally, the doctor admitted that he had neither done nor seen any research on how individuals with autism fare in prison. U.S. v. Morais, 670 F.3d 889 (8th Cir. 2012).
8th Circuit holds that “drastic difference” between sentences did not make defendant’s sentence unreasonable. (742) Defendant pled guilty to drug charges, and was sentenced to 48 months. His co-defendant, Fisher, pled guilty to the same offense as defendant, but was sentenced to 12 months and one day of imprisonment. Defendant argued that the “drastic difference” between the sentences established that the court abused its discretion when sentencing defendant to 48 months. The Eighth Circuit held that the sentencing disparity did not render defendant’s sentence either procedurally or substantively unreasonable. The district court was aware of the need to avoid unwarranted sentence disparities and expressly mentioned that statutory factor. Moreover, Fisher was sentenced more than one month after defendant. Even if an appellate court were to conclude that there were no legitimate distinctions between the two defendants, there was no principled basis for determining whether the appropriate sentence for a similarly-situated defendant was Fisher’s sentence of 12 months’ imprisonment, or defendant’s sentence of 48 months. U.S. v. McDowell, 676 F.3d 730 (8th Cir. 2012).
8th Circuit holds that court implicitly denied motion for downward departure. (742) The district court calculated an advisory guideline range of 63-78 months for defendant. After hearing arguments from defense counsel, the court discussed a number of issues relating to the § 3553(a) factors, and then sentenced defendant below the advisory range to 48 months. Defendant argued that the district court committed procedural error by failing to recognize and consider its authority to depart under the advisory guidelines, since the court discussed the § 3553(a) factors without mentioning the requested departures. Reviewing for plain error, the Eighth Circuit disagreed. The court’s failure to make an explicit ruling on defendant’s motion did not amount to a clear or obvious error. The record showed that the district court was familiar with defendant’s sentencing memorandum, and in discussing the § 3553(a) factors, the court adverted to the issues that defendant raised as grounds for a departure, including his criminal history and physical and mental health. Thus, the district court implicitly denied defendant’s motion by proceeding to consideration of the § 3553(a) factors and making a downward variance from the advisory range. U.S. v. McDowell, 676 F.3d 730 (8th Cir. 2012).
8th Circuit finds court adequately considered possible grounds for reduced sentence. (742) Defendant pled guilty to one count of structuring financial transactions and was sentenced to 30 months, the bottom of his 30-37 month guideline range. The district court had rejected defendant’s request for a downward departure based on his age, health, military service, and service to his tribe. The Eighth Circuit found no procedural error. The court adequately considered defendant’s military service and PTSD. It was clear from the court’s comments that it was aware of these factors and considered them. The district court did not fail to distinguish between a departure and a variance. Rather, it correctly identified possible bases for a departure, age and health, but did not find that they warranted a reduced sentence. The court adequately explained its reasons for denying both a downward departure and a variance. It noted that defendant’s age and health were not “outside of the heartland,” and commented that although defendant had served his country and tribe, his “work as a conduit for bribes [was] a disservice to both his country and his tribe.” U.S. v. Bordeaux, 674 F.3d 1006 (8th Cir. 2012).
8th Circuit upholds refusal to grant further downward variance for illegal entry. (742) After illegally reentering the U.S. seven times, and having been convicted twice of illegal entry, defendant once again pleaded guilty to illegal reentry. His guideline range was 70-87 months. The district court sentenced him to 48 months, finding that defendant’s overstated criminal history and cultural ties to this country warranted a downward variance, but that “the principle of incremental punishment” warranted a “slightly longer sentence” because his prior illegal reentry sentences were 18 and 24 months, and seven prior deportations … counts for something.” The Eighth Circuit held that the district court did not abuse its discretion when it declined to grant an even greater downward variance from the recommended guideline range of 70-87 months. The court considered the mitigating factors defendant presented and articulated a reasoned basis for its sentence. It properly took into account that prior illegal reentry sentences had failed to deter; defendant’s repeated illegal reentries demonstrated “contemptuous disregard for our immigration laws.” U.S. v. Elodio-Benitez, 672 F.3d 584 (8th Cir. 2012).
8th Circuit rejects claim that downward variance in child porn case should have been even lower. (742) Defendant pled guilty to possessing child pornography. His guideline range was 78-97 months’ imprisonment. After discussing defendant’s sentencing memo, his mental health, and lack of criminal history, the court varied downward to a sentence of 60 months. The Eighth Circuit upheld the sentence, rejecting defendant’s argument that the court failed to consider or adequately respond to his argument that the child porn sentencing guidelines are overinflated. Defendant raised his argument regarding the child porn guidelines in his sentencing memorandum, but he did not reiterate it at sentencing, nor did he ask the district court to address it. Although the district court made no specific reference to the argument at the hearing, it indicated that it had read the sentencing memorandum. Moreover, when the district court asked whether there were other factors that it should discuss, Black did not renew his overinflated child pornography guidelines argument. The sentence was substantively reasonable, and the court did not abuse its discretion in declining to vary downward still further. U.S. v. Black, 670 F.3d 877 (8th Cir. 2012).
8th Circuit holds that sentence at bottom of child porn guidelines was reasonable. (742) Defendant was convicted of possessing child pornography, and was sentenced at the bottom of the guideline range, 97 months, followed by a lifetime of supervised release. The Eighth Circuit affirmed, rejecting defendant’s argument that the court failed to adequately explain the basis for his sentence or to consider the 18 U.S.C. § 3553(a) sentencing factors. The district court expressly cited the § 3553(a) factors in support of the chosen sentence, and characterized defendant’s collection as “the worst I’ve seen” because of its size, violent imagery, and depictions of prepubescent victims. The court adequately considered defendant’s arguments for a variance from the guidelines, acknowledging his contention that, as a matter of policy, the sentencing guidelines are excessive for child pornography offenses, and then granting him “some relief” by sentencing at the bottom of the advisory range. Further discussion was not required. The sentence was substantively reasonable. The fact that a district judge may vary from the guidelines based on a policy disagreement with the Sentencing Commission does not mean that the judge is required to do so. U.S. v. Munjak, 669 F. 3d 906 (8th Cir. 2012).
8th Circuit rules 480-month sentence for sexual abuse and child porn was substantively reasonable. (742) Over a four-year period, defendant sexually abused his daughter on a weekly basis, and recorded the abuse. He pled guilty to transportation of a minor with intent to engage in sexual activity and production of child pornography, resulting in a guideline range of life imprisonment. The district court sentenced him 480 months, followed by a lifetime term of supervised release. The Eighth Circuit held that the 480-month sentence was substantively reasonable. Although defendant presented arguments regarding his remorse, minimal criminal history and past childhood abuse, the court said it had reviewed the § 3553(a) factors and was skeptical of defendant’s claims of remorse. The court placed great weight on the monstrous nature of defendant’s offense. The court relied upon its viewing of the videotapes confiscated by police and the horrifying detailed “sex contracts” that defendant had the victim sign. The court believed that the nature and circumstances of defendant’s offense deserved greater consideration under § 3553(a) than any of the mitigating factors presented by defendant, which was a determination well within the discretion of the district court. U.S. v. Wilcox, 666 F.3d 1154 (8th Cir. 2012).
8th Circuit upholds reasonableness of sentence at top of guideline range. (742) Defendant pled guilty to drug charges involving the distribution of a cocaine base mixture. The district court sentenced her to 327 months, which was at the top of her advisory guideline range of 262-327 months. The Eighth Circuit held that defendant’s sentence was reasonable. Contrary to defendant’s claim, the district court expressly considered and rejected defendant’s argument that her relationship with an abusive boyfriend “turned her into a drug dealer.” It was not improper for the district court to consider, when sentencing defendant, the government’s decision not to file an information to establish a prior conviction, which would have qualified defendant for a mandatory life sentence. Moreover, because defendant’s sentence was within the advisory guideline range, it received a presumption of substantive reasonableness. Defendant did not rebut that presumption. U.S. v. Forde, 664 F.3d 1219 (8th Cir. 2012).
8th Circuit upholds refusal to vary or depart due to mental illness and intellectual disabilities. (742) Defendant was convicted of second-degree murder. He argued that the district court abused its discretion by refusing to depart or vary downward due to his mental illness and intellectual disabilities. The Eighth Circuit found no abuse of discretion. At sentencing, the district court engaged in an extensive discussion of these issues with defendant’s attorneys. It also noted that a psychiatric evaluation concluded that defendant had “understood the wrongfulness of his actions and he would have the intellectual level to control his actions should he choose to do so.” Moreover, the court noted that if there had been no mental disability at all, “I would be closer to 280 to 300 months this morning, not the 222 where I ended up under all the circumstances.” U.S. v. Maxwell, 664 F.3d 240 (8th Cir. 2011).
8th Circuit finds court considered defendant’s request for a duress departure before rejecting it. (742) Defendant and her boyfriend each pled guilty to second-degree murder on an Indian reservation. Defendant’s guideline range was 168-210 months, but she received a substantial assistance departure and was sentenced to 121 months. She argued for the first time on appeal that the district court failed to give proper consideration to her request for a downward departure under § 5K2.12 for “serious coercion, blackmail or duress,” based on her fear of her boyfriend. The Eighth Circuit found no error. The district court acknowledged defendant’s fear of her boyfriend, but did not “entirely accept that each and every thing that was done that evening was done out of fear.” The court then declined to “give any mitigation” because of this factor, under either the guidelines or as a variance. Thus, the record made it clear that the district court considered defendant’s requested departure and rejected it. U.S. v. Maxwell, 664 F.3d 240 (8th Cir. 2011).
8th Circuit upholds statutory maximum sentence for child porn defendant. (742) Defendant befriended two adolescent girls, engaged in sexual conduct with them, and downloaded sexually explicit pictures of them onto his computer. He pled guilty to production of child pornography. His offense level of 46 usually leads to a guideline range of life imprisonment, but 18 U.S.C. § 2251(e) has a maximum statutory penalty of 30 years. The district court sentenced him to 30 years. The Eighth Circuit held that the sentence was substantively reasonable, rejecting defendant’s argument that the court should have given little deference to the child porn guidelines. The court was well within its discretion to consider the victim’s statement during the sentencing hearing. The court’s consideration of uncharged conduct in the PSR was also proper. The court did not improperly consider defendant’s need for rehabilitation in deciding his sentence. The court focused on the high likelihood that defendant would reoffend and the need to protect the public from him. While the court mentioned therapeutic intervention and treatment at sentencing, these references were made in the context of explaining why defendant posed a risk of recidivism. U.S. v. Werlein, 664 F.3d 1143 (8th Cir. 2011).
8th Circuit upholds refusal to grant variance based on defendant’s alleged Asperger’s syndrome. (742) Defendant was convicted of possessing child pornography, and sentenced to 135 months, which fell within his advisory guideline range. He argued that the district court should have sentenced him to probation because he suffered from Asperger’s Syndrome, and would likely be a victim in prison. The Eighth Circuit found no abuse of discretion. The district court heard evidence on defendant’s mental health issues and addressed them thoroughly and thoughtfully in the order denying the variance. The following facts weighed against a downward variance: there was conflicting evidence on the degree of defendant’s infirmity, his mental illness did not appear to have contributed to his commission of the crimes, he knew that his conduct was wrong and unlawful, he presented a risk to children, including his roommate’s children, and the Bureau of Prisons had adequate facilitates and programs to deal with and treat defendant during his incarceration. U.S. v. Dolehide, 663 F.3d 343 (8th Cir. 2011).
8th Circuit upholds 88-month guideline sentence for multiple counts of threatening communications. (742) Defendant was convicted by a jury of mailing threatening communications and interstate communication of threats, and received a guideline sentence of 88 months. He argued that the sentence was unreasonable because the court failed to consider that he did not have a violent history, that he behaved extremely well at trial, that the threats he made were mild and indirect, and that no one suffered physical harm as a result of his conduct. The Eighth Circuit held that the district court did not abuse its discretion in sentencing defendant to a term of 88 months. The court considered the entirety of defendant’s criminal record, which included convictions for harassment, assault, and trespassing. Defendant’s good behavior during trial “may not have been entirely due to his desire to excel in deportment but perhaps also due to the stun belt that he wore throughout the course of the trial.” U.S. v. Mabie, 663 F.3d 322 (8th Cir. 2011).
8th Circuit finds court did not improperly lengthen sentence to promote rehabilitation. (742) Defendant pled guilty to bank robbery, and was sentenced within the guidelines to 63 months. The Eighth Circuit rejected defendant’s argument that the district court impermissibly lengthened his sentence to promote rehabilitation. Defendant’s attorney requested a downward departure to a sentence between 36-48 months, which would permit defendant to complete the BOP’s 500-hour drug treatment program. The court interrupted to point out that defendant could not possibly complete the drug program if he received a 36-month sentence. Counsel then clarified that a 48-month sentence would permit defendant to complete the program. In sentencing defendant to 63 months, the court emphasized that defendant had continuously committed crimes since he was 17, despite having served an 8-year prison sentence. The court also recommended that defendant enter the BOP’s treatment program. On this record, the panel was not convinced that the court lengthened defendant’s sentence to promote rehabilitation. Rather, it was defendant who requested a downward variance based on his rehabilitative needs, and the court merely pointed out a flaw in his request. U.S. v. Blackmon, 662 F.3d 981 (8th Cir. 2011).
8th Circuit says court adequately explained denial of criminal history departure. (742) Defendant pled guilty to drug charges and was sentenced to 105 months, which fell below his guideline range of 121-151 months. He argued that the court procedurally erred by failing to explain adequately why it denied his motion for a downward departure based on an overstated criminal history. Defendant did not specifically object at sentencing to the adequacy of the district court’s explanation, and the Eighth Circuit found no plain error. The district court adequately considered and then rejected each of defendant’s arguments for a downward departure. The court explicitly considered defendant’s argument that his criminal history was overstated because his offenses all stemmed from his addictions. The sentence was not substantively unreasonable. The court weighed all of the factors defendant mentioned against the seriousness of the offense. The court did not abuse its discretion simply by weighing these factors differently than defendant. U.S. v. Dace, 660 F.3d 1011 (8th Cir. 2011).
8th Circuit finds no plain error in using MDMA tables for BZP offense. (742) Defendant pled guilty to distributing and conspiring to distribute Benzylpiperazine (BZP). The district court found that BZP was sufficiently equivalent to Methylenedioxymethamphetamine (MDMA), also known as “Ecstasy,” to compute defendant’s drug quantity. Defendant argued that the district court failed to consider his argument that BZP was insufficiently similar to MDMA, in both potency and properties, to justify use of the MDMA tables in sentencing a BZP offense. The Eighth Circuit disagreed. The court stated at sentencing that it had reviewed all of defendant’s evidence, stressed it had “thought about this a long time,” and acknowledged that he had made some good arguments. Moreover, the court actually continued defendant’s sentencing for over five months and ordered a second addendum to the PSR for the specific purpose of addressing defendant’s BZP argument. The court adequately explained why BZP and MDMA were sufficiently related. It examined BZP’s multiple deleterious effects on its users and the community as compared to other drugs listed in the guidelines. There was no significant procedural error. U.S. v. Bennett, 659 F.3d 711 (8th Cir. 2011).
8th Circuit upholds reasonableness of below-guidelines range sentence. (742) Defendant pled guilty to conspiring to distribute and possess cocaine and cocaine base. He was sentenced to 180 months, a downward variance from his guideline range of 188-235 months. He argued that his below guideline sentence was substantively unreasonable because he had not previously served significant prison time, and the other co-conspirators received much lower sentences. The Eighth Circuit found no abuse of discretion. The district court properly examined the statutory factors. It considered defendant’s history and characteristics, including letters submitted by his family. It also noted that he had eight previous convictions, four of them involving drugs, and expressed concern that his criminal history showed “a pattern of behavior of not learning the lesson and increasing levels of seriousness of the crime.” The court considered the seriousness of defendant’s current offense, noting that he was responsible for very large quantities of drugs as well as using others. The 180-month sentence was “necessary to reflect the seriousness of the crime and to protect the public from further crimes.” U.S. v. Cole, 657 F.3d 685 (8th Cir. 2011).
8th Circuit rejects downward variance for scout leader who sexually abused minors. (742) Defendant, the leader of a scout troop, sexually abused several young girls, including his 12-year-old daughter. Authorities found pornographic pictures and videos of the abuse on his cell phone and computer. He pled guilty to one count of producing child pornography. His guideline range was 360 months to life. The Eighth Circuit held that the 360-month sentence imposed by the district court was not substantively unreasonable. The court acknowledged that defendant had a “very difficult upbringing,” and that the victimization could have been much more severe if defendant had distributed the images. However, this factor was counterbalanced by “the extreme harm and the fact that these victims are never, ever, ever going to recover.” The court considered all of the mitigating circumstances urged by defendant, but found them outweighed by the seriousness of the offense and the special relationship with the child victims that defendant had fostered and then abused. U.S. v. Borromeo, 657 F.3d 754 (8th Cir. 2011).
8th Circuit upholds refusal to vary based on motive and family responsibilities. (742) Defendant, the manager of a meatpacking company, fraudulently inflated the company’s accounts receivable in order to increase its borrowing ability. The district court sentenced him to 324 months, the low end of his guideline range. The Eighth Circuit found no error in the court’s refusal to grant defendant a variance. The court did not, as defendant contended, erroneously believe that motive should not ever be considered. The court simply chose not to vary downward based on motive in this case. The court acknowledged defendant’s family commitments and charity, but noted that defendant’s disabled son would receive care in his absence from his “loving and competent mother” and “supportive extended family.” The sentence was not substantively unreasonable. U.S. v. Rubashkin, 655 F.3d 849 (8th Cir. 2011).
8th Circuit rules that court adequately explained reason for sentence. (742) Defendant argued that the district court committed procedural errors by failing to consider the factors in 18 U.S.C. § 3553(a), and by not adequately explaining the basis for its sentence. The district court discussed defendant’s lengthy criminal history, the need to protect society from his nearly continuous crimes, his high culpability for the crime, his physical, mental, and emotional health, and his difficult childhood. The court concluded that a sentence within the guideline range was appropriate, but determined that a sentence at the top of the range was not warranted, because defendant never caused serious physical harm to anyone. Thus, the Eighth Circuit ruled that the district court considered the § 3553(a) factors and adequately explained the basis for defendant’s sentence. U.S. v. Dixon, 650 F.3d 1080 (8th Cir. 2011).
8th Circuit permits considering sentences imposed on others in related scheme. (742) Defendant pled guilty to willfully filing a false joint tax return with his wife for calendar year 2007. The return listed defendant as the proprietor of a business that reported cost of goods that exceeded sales, resulting in a net loss that reduced defendant’s income tax liability for the year. The company’s income was derived from a fraud scheme by defendant’s wife and a government employee, Brown. His wife and Brown pled guilty to theft of public money and each was sentenced to 24 months. Defendant argued that at sentencing, the district court improperly considered the 24-month sentences imposed on his wife and Brown for the theft-of-public-money-conviction, an offense for which defendant was neither charged nor shown to be personally involved. The Eighth Circuit found no error. At sentencing, the district court noted that defendant did not dispute the PSR’s conclusion that he was equally culpable with his wife, and that he disproportionately benefited financially from the scheme. On these facts, it was not improper to consider the sentences imposed on his wife and Brown for their clearly related offenses in order to avoid potential sentence disparity. U.S. v. Shrum, 655 F.3d 782 (8th Cir. 2011).
8th Circuit upholds sentence at top of guideline range for attempted child molester. (742) Defendant was convicted of attempted enticement of a minor, and sentenced to 121 months, the top of the guidelines range. On appeal, the Eighth Circuit found no error in the court’s statement that defendant was a “repeat sex offender.” Although defendant had no prior sex offense convictions, he did not object to the PSR’s reference to a dismissed count involving defendant’s attempted enticement of a different minor. The court’s statement that defendant was “getting bolder,” was supported by the PSR, which detailed defendant’s efforts to meet a second minor. The court’s statement that defendant had an interest in child pornography was supported by the forensic examination of defendant’s computer. The court did not err in giving little weight to defendant’s expert, who opined that defendant would not re-offend. The court identified several problems with his testimony, including that most of it was based on defendant’s limited and contradictory statements. U.S. v. Wohlman, 651 F.3d 878 (8th Cir. 2011).
8th Circuit upholds guideline sentence for disability fraud as reasonable. (742) A jury convicted defendant of making a false statement to obtain Social Security disability benefits, and concealing that he earned wages above the income threshold for disability payments. His Guideline range was 21-27 months, and the district court sentenced him to 21 months. The Eighth Circuit held that the Guideline sentence was substantively reasonable. The sentence was relatively “lenient,” in light of defendant’s prior history of similar misconduct. He was also caught in 2004 of accepting disability payments from 2001 to 2003 while his income exceeded the monthly permitted amount. A district court’s choice to assign relatively greater weight to the nature and circumstances of the offense than to the mitigating personal characteristics of the defendant was well within its wide latitude in weighing the sentencing factors. U.S. v. Farmer, 647 F.3d 1175 (8th Cir. 2011).
8th Circuit says mid-range sentence was reasonable despite Somali immigrant’s violent experiences. (742) Defendant was an immigrant from Somalia whose family had endured numerous atrocities in Somalia before escaping to the United States. He operated two tax preparation businesses that filed over 1000 tax returns, each fraudulently claiming fuel credits to which the taxpayer was not entitled. Defendant helped defraud the United States of over two million dollars. The Eighth Circuit held that defendant’s mid-guidelines range sentence of 72 months was reasonable. The court considered defendant’s violent experiences during the Somalia Civil War, including witnessing the murder of his father and the rapes of his sisters. The court also considered but rejected defendant’s sentencing-disparity argument, concluding that the associate defendant claimed had taught defendant how to commit the fraud only perpetrated a loss of $44,000. U.S. v. Shakai, 644 F.3d 642 (8th Cir. 2011).
8th Circuit says sentence at bottom of career offender range was not unreasonable. (742) Defendant argued that his 151-month sentence was greater than necessary to achieve the goals of sentencing and was substantively unreasonable. The government argued that defendant waived his right to raise this challenge. His plea agreement included a limited appeal waiver, providing he waived the right to appeal his sentence in the event the court accepted the plea agreement and applied the recommendations agreed to by the parties in the agreement. The agreement permitted defendant to appeal his career offender status. However, the district court did not apply all the recommendations agreed to by the parties, sentencing defendant as a career offender. The Eighth Circuit ruled that defendant could appeal not only his career offender status, but also the reasonableness of the court’s refusal to vary downward from the career offender advisory range. However, the panel rejected defendant’s arguments on the merits. After weighing the mitigating circumstances argued in defendant’s sentencing memo and at sentencing against the serious offense of conviction – four bank robberies in a one-year time span – and defendant’s long history of crimes and substance abuse, the district court concluded that a sentence at the bottom of the advisory range was consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a). U.S. v. Eason, 643 F.3d 622 (8th Cir. 2011).
8th Circuit allows court to give greater weight to seriousness of offense than to mitigating personal factors. (742) Defendant fired a rifle through the front grill of a government-owned truck in the custody of Bourne, a land assessor for the Bureau of Indian Affairs. He was convicted of depredation of government property. His guideline range was 21-27 months, but the district court sentenced him to 36 months. Defendant argued that the district court failed to consider factors such as his role as a single parent, his former service in the military, and his work as a firefighter and a corrections officer. The transcript showed, however, that defendant presented each of these facts to the district court at sentencing. Thus, the court was aware of defendants’ arguments, and the Eighth Circuit presumed that the district court considered and rejected them. Moreover, the court did not clearly err in weighing the relevant factors. Its decision to assign greater weight to the nature and circumstances of the offense than to the mitigating personal characteristics of the defendant was well within the wide latitude given to district judges. U.S. v. Wisecarver, 644 F.3d 764 (8th Cir. 2011).
8th Circuit upholds refusal to grant downward departure for family circumstances. (742) Defendant sought a sentence that would involve zero incarceration through a downward departure under § 5H1.6, or alternatively, a variance under § 3553(a). He argued that his son, who suffered from muscular dystrophy, required around-the-clock care that defendant’s wife could not provide by herself. The Eighth Circuit refused to review the district court’s refusal to grant a downward departure based on family circumstances. The district court neither had an unconstitutional motive nor erroneously believed it was without authority to grant a departure under § 5H1.6. Therefore, its refusal to depart was not reviewable. The court did not commit procedural error by failing to consider defendant’s family circumstances as a relevant factor under § 3553(a). The record reflected that the court clearly considered the son’s medical condition and defendant’s role as a caretaker. It credited the testimony of the son’s doctor that the son could be cared for by one-person full-time with occasional assistance from others. U.S. v. Underwood, 639 F.3d 1111 (8th Cir. 2011).
8th Circuit rejects variance where defendant was not similarly situated to other defendants. (742) Defendant argued that his sentence was unreasonable because of unwarranted sentencing disparities between defendant and three defendants in unrelated cases. The Eighth Circuit rejected the argument because defendant was not similarly situated to any of the defendants in the cases he cited. Unlike defendant, the defendant in one case provided substantial assistance to the government and received a § 5K1.1 reduction. Defendant was not similarly situated to the other two defendants because they were not convicted of conduct similar to that of defendant. Defendant’s argument based on the sentences of his two co-conspirators failed for the same reason – he was not similarly situated to his two co-conspirators. Defendant was the organizer of the conspiracy, since he orchestrated two separate drug sales in which he directed his co-conspirators to complete the transactions. In addition, the co-conspirators each received three-level reductions for acceptance of responsibility upon the government’s motion, § 3B1.1(b), while defendant only received a two-level reduction. U.S. v. Frausto, 636 F.3d 992 (8th Cir. 2011).
8th Circuit says defendant failed to rebut presumption that sentence at top of range was reasonable. (742) Defendant was convicted of sexually abusing a drunk woman who had passed out at a party. His advisory guideline range was 121-151 months, and the district court sentenced him to 151 months. The Eighth Circuit held that defendant failed to rebut the presumption that his guideline sentence was reasonable. The court stated at sentencing that defendant had a “definite alcohol issue,” was a high-school dropout, and had shown an interest in combining alcohol usage and attempts to “hook up with” women. This explanation suggested that the judge thought defendant had a background of which he was convicted. Since 18 U.S.C. 3553(a)(1) and (2) require sentencing judges to impose a sentence that is sufficient to deter the defendant from repeating the same offense, the court’s explanation supported the conclusion that defendant’s sentence was reasonable. U.S. v. Knox, 634 F.3d 461 (8th Cir. 2011).
8th Circuit rejects sentencing disparity claim where co-conspirators were not similarly situated. (742) Defendant and two co-conspirators, Duran and Mendoza-Ramirez, faced similar drug charges, were responsible for about the same amounts of methamphetamine, and they all pleaded guilty. However, defendant received a 292-month sentence, while Duran received a 96-month sentence, and Mendoza-Ramirez received a 108-month sentence. Defendant argued that the district court committed procedural error by failing to adequately consider the disparity between his sentence and the sentences of his co-conspirators. The Eighth Circuit found that the three conspirators were not similarly situated, and thus there was no error. Defendant obstructed justice (the other two did not), he was ineligible for safety valve relief (the other two received such relief), and he did not accept responsibility for his criminal activity (the other two did). Moreover, the district court’s comments showed that it knew that it had the authority to vary downward from the advisory sentencing guidelines, and rejected defendant’s request to do so. The sentence was not substantively unreasonable. U.S. v. Sandoval-Sianuqui, 632 F.3d 438 (8th Cir. 2011).
8th Circuit upholds refusal to consider defendant’s post-sentencing rehabilitation. (742) Defendant challenged the district court’s refusal to consider his post-sentence rehabilitation at resentencing. In the Eighth Circuit, consideration of post-sentence conduct is prohibited in a sentencing proceeding, but the Supreme Court has granted certiorari to review this position. See Pepper v. U.S., 570 F.3d 958 (8th Cir. 2009) cert. granted, 130 S.Ct. 3499 (June 28, 2009) No. 09-6822. However, the Eighth Circuit ruled that any error was harmless. The district court explicitly stated at the resentencing that even if it considered defendant’s post-offense rehabilitation, its sentence would not change. U.S. v. Williams, 624 F.3d 889 (8th Cir. 2010).
8th Circuit holds that court did not err in refusing to grant downward variance based on accomplice’s lower sentence. (742) Defendant was convicted of drug trafficking and sentenced to 140 months. He argued on appeal that the court failed to adequately consider his arguments for a below-guideline sentence given the downward variance to the mandatory minimum to 60 months granted to his accomplice Parks. The Eighth Circuit held that the court did not procedurally err in refusing to grant a variance. The court found defendant was “different from the other defendants.” The court noted defendant’s high risk of recidivism, long history of criminality (defendant was in category VI and his accomplice was in Category I), and the fact that unlike the other defendants, defendant not only went to trial, but he lied at trial, for which he received an obstruction of justice adjustment. U.S. v. Williams, 624 F.3d 889 (8th Cir. 2010).
8th Circuit upholds court’s refusal to grant variance based on crack/powder ratio. (742) Defendant challenged the district court’s failure to vary downward from the advisory guideline range based on the crack/powder ratio. The Eighth Circuit ruled that the district court did not abuse its discretion in denying defendant’s motion for a variance on this ground. The district court acknowledged its power and “very wide discretion” to consider a variance on this basis, but declined to do so. The court gave an extended discussion of its reasons for denying the variance. The fact that the district court did not explicitly address any policy disagreement with the other sentencing courts did not convert the denial of a variance into an abuse of discretion. U.S. v. Williams, 624 F.3d 889 (8th Cir. 2010).
8th Circuit says court was not required to vary from amended crack cocaine guidelines. (742) While on supervised release, defendant sold crack cocaine to a confidential informant. He was convicted of possession with intent to distribute, and the district court sentenced him to 188 months. The case was remanded for resentencing in light of Kimbrough. The district court conducted a full resentencing. Applying the retroactive amendments that reduced the Guidelines’ disparity between crack and powder cocaine, the court calculated an advisory guideline range of 130-162 months in prison. The court resentenced defendant to 130 months. Defendant argued that his sentence was unreasonable because the court should have granted a downward variance to eliminate the remaining disparity between crack and powder cocaine. The district court acknowledged its ability to vary, but declined to do so, describing defendant as “an unrepentant recidivist” and pointing to his false testimony at trial, and his attempt to rationalize his crime by blaming the police. The Eighth Circuit held that the sentence was reasonable, noting that the court was not required to vary from the amended crack cocaine guideline. U.S. v. Moore, 624 F.3d 875 (8th Cir. 2010).
8th Circuit reverses where court improperly tied downward variance to mandatory minimum on other count. (742) Defendant was convicted of mailing, possessing, and transporting a pipe bomb, and possessing a pipe bomb in furtherance of a crime of violence. The guideline range for defendant’s first three counts was 168-210 months, while the count of possessing a pipe bomb in furtherance of a crime of violence carried a mandatory minimum sentence of 360 months. The district court imposed a sentence of only one month for the first three counts, varying downward by 167 months from the bottom of the guideline range. It then imposed the mandatory 360-month sentence on the fourth count. The Eighth Circuit ruled that the district court improperly tied its downward variance for the first three counts to the mandatory minimum for the fourth count. Mandatory consecutive sentences are to be imposed independently of sentences for other counts. The severity of a mandatory consecutive sentence is an improper basis that a district court may not consider when sentencing a defendant on related crimes. U.S. v. Worman, 622 F.3d 969 (8th Cir. 2010).
8th Circuit holds that career offender sentence was reasonable. (742) Defendant pled guilty to bank robbery. His advisory guideline range as a career offender was 151-188 months, but defendant requested a sentence of not more than 96 months, the top of the guidelines range without the career offender enhancement. He raised potentially mitigating facts such as his mental and physical illnesses, his addictions, the lack of violence or a weapon used during the robbery, and his difficult childhood. Nonetheless, the district court sentenced defendant to 151 months, and the Eighth Circuit upheld the sentence as reasonable. The district court was clearly award of the facts alleged and took them into account. Defendant must show more than the fact that the district court disagreed with his view of what weight out to be accorded certain sentencing factors. U.S. v. Townsend, 617 F.3d 991 (8th Cir. 2010).
8th Circuit finds sentence at low-end of guideline range was not unreasonable for sex offender. (742) Defendant was convicted of sexual abuse of a minor, his 12-year-old step-daughter, in violation of 18 U.S.C. § 2243(A). He was sentenced to 87 months, the low end of his guidelines range. Defendant argued that the court erred by failing to adequately consider two factors weighing in favor of a lighter sentence: his poor health and his history as a victim of sexual abuse. The Eighth Circuit held that the 87-month sentence was not unreasonable. The district court considered both issues raised by defendant. The court noted that there was “no doubt” that defendant had “substantial medical problems,” and specifically sentenced him to the low end of the guideline range. The record similarly showed that the district court considered defendant’s experiences as a victim of sexual abuse. U.S. v. Holy Bull, 613 F.3d 871 (8th Cir 2010).
8th Circuit affirms 20-month sentence for failing to pay child support. (742) Defendant failed to make $35,833.13 in child support payments, and pled guilty to failure to pay child support without the benefit of a plea agreement. His offense level and criminal history yielded an advisory guideline range of 30-37 months, but the statutory maximum was 24 months, which became the guideline maximum under § 5G1.1 (a). The Eighth Circuit held that the 20-month sentence was reasonable, rejecting defendant’s argument that the district court failed to address the various mitigating factors he raised. The district court specifically addressed defendant’s lack of income, his drug abuse issue, his prior problems with the law, and his effort to help out at home. The court was not required to respond to every argument made by the defendant, or mechanically recite each § 3553(a) factor. The possibility that defendant might have been able to plead to a misdemeanor if he paid 10 percent of the loss was irrelevant to the district court’s sentencing discretion. At sentencing, defendant had already pled guilty to the felony charge. The court heard all of the arguments, properly considered the § 3553(a) factors, and in fact varied downward four months from the guideline sentence. U.S. v. Knight, 613 F.3d 1172 (8th Cir. 2010).
8th Circuit upholds guideline sentence for fraud and tax charges. (742) Defendant was convicted of conspiracy, mail and wire fraud, and failure to file tax returns. He argued that his 180-month sentence was unreasonable because the district court did not properly evaluate the 18 U.S.C. § 3553(a) factors and did not give sufficient weight to his unique, personal circumstances, including the positive role he played in the lives of many people. The Eighth Circuit found no procedural error in sentencing defendant. It properly calculated the guideline range and recognized that the guidelines were advisory. The sentencing transcript reflected the court’s intimate knowledge and careful consideration of the facts of the case. U.S. v. Midkiff, 614 F.3d 431 (8th Cir. 2010).
8th Circuit reverses sentence that was based on a finding that contradicted the jury’s verdict. (742) Relying on U.S. v. Campos,362 F.3d 1013, 1015-16 (8th Cir. 2004) the Eighth Circuit held that a district court “err[s] as a matter of law” if it imposes a sentence based on a finding that contradicts the jury’s verdict. In the present case, the jury convicted the defendant of conspiracy to endeavor to influence, obstruct, or impede due administration of justice by murdering or otherwise intimidating witnesses. After the verdict, the district judge granted a motion for a new trial, but the Eighth Circuit reversed that order, holding that the evidence was sufficient to support the jury’s verdict. On remand, the district court granted a downward variance on the ground that the defendant had no intent to harm a witness or to carry out any objectives of the conspiracy. In this second appeal, the Eighth Circuit reversed the sentence, ruling that the district court’s findings on the intent issue amounted to a declaration that no crime had been committed. Thus, its sentence contravened the jury’s verdict and was error as a matter of law. It did not matter that the district court also relied on other proper factors. U.S. v. Bertling, 611 F.3d 477 (8th Cir. 2010).
8th Circuit says defendant may not collaterally challenge validity of predicate ACCA convictions. (742) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argued that the district court erred in sentencing him under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He admitted that he sustained convictions for three prior violent felonies, but he collaterally attacked two of them, arguing that his guilty pleas did not comply with constitutional safeguards. However, a defendant may not collaterally attack prior convictions used to enhance a sentence under the ACCA unless he was denied the right to counsel. See Custis v. U.S., 511 U.S. 485 (1994). Certified documents concerning each of the prior convictions showed that defendant was represented by counsel in each case. Therefore, the Eighth Circuit ruled that the district court did not err in finding that defendant qualified for an enhanced sentence under the ACCA. The 188-month sentence was not unreasonable. It fell at the bottom of the advisory guideline range, and was presumptively reasonable. U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010).
8th Circuit says defendant lacked standing to challenge statutory minimum where court sentenced him to higher sentence based on § 3553(a) factors. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argued that he should not have been subject to the 15-year statutory minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Eighth Circuit held that he lacked standing to challenge the applicability of the statutory minimum. The court elected to sentence defendant to a term of 188 months based on 18 U.S.C. § 3553(A). The court’s sentencing decision was not constrained by the 180-month statutory maximum. U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010).
8th Circuit upholds refusal to grant downward departure or variance. (742) Defendant argued that the district court erred in denying his request for a downward departure based on his allegedly overstated criminal history. The Eighth Circuit rejected this argument, since the district court recognized its authority to depart downward, yet decided not to do so. The court stated “I don’t believe there’s any proper grounds for downward departure because the criminal history category does not substantially over represent the seriousness of your situation and your criminal history.” The panel also rejected defendant’s claim that the court committed procedural error by not adequately considering the § 3553(a) sentencing factors. Contrary to defendant’s contention, there is no requirement that the district court recite every § 3553(a) factor. U.S. v. Bryant, 606 F.3d 912 (8th Cir. 2010).
8th Circuit finds adequate reasons for 33-month sentence for 69-year old defendant. (742) Defendant and others pled guilty to wire fraud. Defendant’s guideline range was 30-37 months, and the court sentenced him to 33 months. Defense counsel had asked for a sentence that did not involve incarceration, citing defendant’s advanced age (69) and physical impairments. The district court reviewed defendant’s medical records and indicated that the federal corrections has “real good medical facilities” so that “unless someone is in a steep dive with regard to their heath, I go ahead and let him be treated in the institution.” The Eighth Circuit rejected defendant’s argument that the district court procedurally erred by failing to explain its reasons for the sentence. The court considered defendant’s arguments and had a reasoned basis for exercising its own legal decision-making authority. The sentence was substantively reasonable. The district court sufficiently considered defendant’s age and health in conducting its analysis, and defendant failed to rebut the presumption that his within-Guidelines sentence is substantively reasonable. U.S. v. Statman, 604 F.3d 529 (8th Cir. 2010).
8th Circuit upholds limited variance despite defendant’s medical issues. (742) The district court correctly calculated defendant’s advisory guideline range of 30-37 months, and then heard testimony from an investigator for the public defender’s office, who offered a declaration from defendant’s physician documenting defendant’s various medical conditions and stating defendant’s physical condition was “getting progressively worse.” Defendant’s counsel emphasized his lack of criminal history and asked for a sentence of probation. The district court sentenced defendant to 18 months, noting that this was not a case where defendant and the others got into a business and it started going bad. Rather, “there was larceny in [defendants’] hearts to begin with, and I still believe that deterrence is crucially important.” The Eighth Circuit found no procedural error, and certainly no plain error, in the sentence. The court ordered that defendant be incarcerated in an institution where they had “medical facilities sufficient to treat his illnesses, which were quite serious.” The district court considered the relevant factors and provided a reasonable basis for its sentence. U.S. v. Statman, 604 F.3d 529 (8th Cir. 2010).
8th Circuit finds no plain error in explanation for sentence. (742) At defendant’s sentencing for second-degree murder, the district court stated that it had “carefully considered” the factors set forth in 18 U.S.C. § 3553(a), and it listed most of the factors on the record. The court also stated that it had carefully reviewed the PSR, the parties’ sentencing memoranda, a psychological evaluation of defendant, letters of support submitted on her behalf, and a DVD submitted by her family. Defendant’s expert also structured much of his testimony around the § 3553(a) factors. The court also explained why it was not imposing either a higher or lower sentence than the 121-month sentence imposed. The Eighth Circuit held that the district court’s explanation for the sentence it imposed “is not obviously inadequate.” U.S. v. Deegan, 605 F.3d 625 (8th Cir. 2010).
8th Circuit upholds 97-month Guidelines sentence for crack distribution. (742) Defendant was convicted of possessing with intent to distribute almost 12 grams of crack. Based on that quantity, his sentencing range was 97 to 121 months. If defendant had been convicted of an offense involving powder cocaine, his sentencing range would have been 27 to 33 months. The district court imposed a 97-month sentence. The Eighth Circuit rejected defendant’s argument that the sentence was substantively unreasonable in light of the difference between the powder and crack sentencing ranges. U.S. v. Parish, 606 F.3d 480 (8th Cir. 2010).
8th Circuit finds 121-month sentence for murder of newborn child is reasonable. (742) On the day that defendant gave birth, she left the child alone in her house and did not return for two weeks. When she returned, she took the child’s dead body and threw it in a ditch. Defendant pleaded guilty to second-degree murder. Defendant’s sentencing range under the advisory Guidelines was 121 to 151 months, and the district court imposed a 121-month sentence. The Eighth Circuit held that this sentence was substantively reasonable. U.S. v. Deegan, 605 F.3d 625 (8th Cir. 2010).
8th Circuit upholds imposing same sentence at § 3582(c) resentencing. (742) Defendant pled guilty to conspiring to distribute five grams or more of crack. The district court found that his guideline range was 292-365 months, and sentenced him to 292 months. When defendant asked the court to vary downward due to a pending Guideline amendment that would reduce the offense level for crack offenses, the court declared that 292 months, which would be at the top of the new guideline range, would still be an appropriate sentence, even if Congress adopted the new Guidelines. The court then granted the government’s motion for a substantial assistance departure, applied a 15% departure, and sentenced defendant to 248 months. The Court of Appeals remanded for resentencing in light of the retroactive amendments to the crack Guidelines. At resentencing, the district court again sentenced defendant to 248 months, noting that it had considered the § 3553(a) factors. The Eighth Circuit affirmed. Although the district court found a sentence at the bottom of the advisory Guidelines range was appropriate when the range was 292-365 months, the court was not required to sentence defendant at the bottom of the revised range when it became 235-293 months. U.S. v. Woods, 603 F.3d 1037 (8th Cir. 2010).
8th Circuit rules court’s finding of defendant’s motivation for failing to register as sex offender was not inconsistent with PSR. (742) Defendant pled guilty to failing to register as a sex offender. The district court rejected defendant’s request for a below-guidelines sentence based in part on its finding that defendant intentionally failed to register in order to avoid detection by law enforcement. Defendant argued that this finding was inconsistent with the PSR’s undisputed statement that defendant failed to register because disclosure of his status as a registered sex offender would have made it difficult to locate work and a place to live. The Eighth Circuit found this argument without merit. The PSR’s statement was not inconsistent with the district court’s finding. Defendant could easily have had multiple motivations for his intentional failure to register, and the district court did not purport to describe defendant’s sole or exclusive motivation. Moreover, it was reasonable to infer that defendant desired to avoid detection by law enforcement ultimately to avoid any of the countless burdens attendant to registration. Decreased housing and employment opportunities were merely two of these burdens. U.S. v. Garcia, 604 F.3d 575 (8th Cir. 2010).
8th Circuit says defendant did not prove that child porn sentence was unreasonable. (742) Defendant argued that the three maximum, consecutive 10-year sentences she received were unreasonable in a child pornography case. After rehashing the mitigating circumstances argued at sentencing, defendant complained that the district court “simply imposed the sentences that were determined” in the court’s thorough sentencing memo; granted every sentencing increase sought by the government; discounted “positive attributes” of defendant’s prior life; and rejected “every one of her reasonable arguments for a less punitive sentence.” Given the court’s thorough explanation of its sentencing decisions, the Eighth Circuit held that defendant’s contentions fell short of persuading it that this was the “unusual case” warranting reversal. The sentence was not substantively unreasonable. U.S. v. Shuler, 598 F.3d 444 (8th Cir. 2010).
8th Circuit rules any error in applying career offender provision was harmless. (742) Defendant walked away from a federal prison camp, and remained at large for seven months. Upon recapture, he pled guilty to violating 18 U.S.C. § 751(a). His guideline range without application of the career offender provision was 18-24 months. The district court held that the walkaway escape was a crime of violence, and that defendant was a career offender. However, after applying the § 3553(a) factors, it imposed a sentence of 24 months, noting that this sentence would be appropriate even if the career-offender provisions were inapplicable. The Supreme Court then decided Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), holding that a failure to report conviction was not a predicate conviction under the ACCA. The Eighth Circuit held that any error in applying the career offender provision to defendant was harmless. The district court sentenced defendant below the career-offender range and at the top of the range that would have applied had the court found the career-offender provisions inapplicable. The court explained in detail why it believed a 24-month sentence was appropriate. The court also provided comments leaving no doubt that it would apply the same sentence regardless of whether the career offender provision applied. U.S. v. Jackson, 594 F.3d 1027 (8th Cir. 2010).
8th Circuit finds nothing to suggest that guideline sentence was unreasonable. (742) Defendant argued that the district court, in declining to sentence defendant below the advisory guidelines, did not properly apply the factors in § 3553(a). He contended that the court failed to properly consider that defendant (1) had a new-born child who would suffer from defendant’s incarceration, (2) grew up without a father during his teenage years, (3) benefitted from a substance abuse program in 2007, (4) had a good work history and was supported by his most recent employer, (5) displayed good conduct while on release pending disposition of this case, and (6) demonstrated that he will not commit any further crimes. The Eighth Circuit found nothing in the record to persuade it that the district court imposed an unreasonable sentence. The sentencing transcript established that the court thoroughly considered the § 3553(a) factors and was aware of its ability to vary from the Sentencing Guidelines but chose not to, for reasons carefully explained on the record. U.S. v. Butler, 594 F.3d 955 (8th Cir. 2010).
8th Circuit upholds refusal to grant variance in illegal reentry case. (742) Defendant was convicted of illegal reentry. He requested a downward variance from his guideline range of 41-51 months based on a number of factors, including the fact that he was in his 50s with a daughter and granddaughter in the U.S., he had never lived in Mexico as an adult, he had numerous health problems, and the lack of a “fast track” program in the district. The district court sentenced him to 41 months, at the bottom of his advisory guideline range, and the Eighth Circuit affirmed the sentence as reasonable. The district court considered each factor defendant raised in support of the suggested variance, but did not find the suggested mitigating factors persuasive in its overall § 3553(a) analysis. Given defendant’s extensive criminal history, defendant’s likelihood of recidivism was just too great.” U.S. v. Bolivar-Diaz, 594 F.3d 1003 (8th Cir. 2010).
8th Circuit reverses variance based on erroneous finding that defendant hindered drug task force. (742) Defendant, a police officer, took seized money from the evidence room and used it to pay personal bills. His guideline range was 10-16 months, but the district court varied upward to a term of 60 months. The court stated that defendant’s crime had violated the public trust in law enforcement, and it was also concerned that defendant’s embezzlement impaired the police departments ability to use seized funds for “drug buy” money. The Eighth Circuit held that the court’s assertion that defendant’s actions hindered the drug task force from having adequate “drug buy” money was plainly erroneous, and remanded. There was no evidence that undercover drug task force work was impaired. Although defendant was initially unable to produce $19,000 that was to be returned to a party from whom the funds were confiscated, there was no evidence that the drug task force confronted similar problems. State law did not allow drug task force officers to walk into the evidence room, take cash, and use the cash to make controlled drug buys. The seized money stored in the evidence room was not a direct source for “drug buy” money. U.S. v. Molnar, 590 F.3d 912 (8th Cir. 2010).
8th Circuit rejects as frivolous claim that criminal history overstated background. (742) Defendant argued that the district court’s sentence was substantively unreasonable because the court refused to grant a downward departure or variance after rejecting defendant’s request to exclude two uncounseled misdemeanor convictions in calculating his criminal history points. The Eighth Circuit found no abuse of discretion. Defendant’s sentence fell within his advisory guideline range, and therefore, the appellate court could apply a presumption of reasonableness. Defendant had 19 adult convictions beginning in 1971, when he was 18 years old. Fourteen of those convictions were assessed no criminal history points. Given this record, the contention that he deserved a downward departure or variance because his Criminal History Category of VI overstated his criminal history was frivolous. U.S. v. Deans, 590 F.3d 907 (8th Cir. 2010).
8th Circuit approves within-Guidelines range sentence for fraud defendant. (742) Defendant, using a religious-based appeal, defrauded people seeking lines of credit. The scheme’s victims paid defendant an up-front fee, but defendant never furnished the loan the fee was supposed to guarantee. Defendant’s guideline range was 262 to 327 months, and the district court sentenced him to 264 months, near the bottom of the range. The Eighth Circuit upheld the sentence as reasonable. The court rejected defendant’s argument that the sentence was too harsh because he was a non-violent criminal. Defendant cited no authority for the proposition that the absence of violence should diminish the Guidelines calculation for non-violent offenses. Although defendant cited a study that showed recidivism declines as age goes up, and he would be much older when released from prison, the district court found that defendant posed a high risk to the community. When he faced a Texas injunction to cease operating his fraudulent schemes, he moved his operations to Missouri, and when indicted for federal crimes, elected to continue defrauding new victims. U.S. v. Branch, 591 F.3d 602 (8th Cir. 2009).
8th Circuit upholds high-end Guideline sentence for violent carjacking. (742) When police officers went to defendant’s apartment to arrest him, defendant fled in his car and led police on a high-speed chase until he crashed the car. Defendant then entered a nearby home, pointed a rifle at the inhabitants, and demanded that they drive him to the hospital. When one of the occupants struggled with defendant, defendant shot him. Defendant pleaded guilty to attempted carjacking (18 U.S.C. § 2119), use of a firearm during a crime of violence (18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (18 U.S.C. § 922(g)). The § 924(c) violation carried a mandatory minimum sentence of 120 months, and with that sentence included, defendant had a sentencing range of 250 to 282 months. The district court imposed a 282-month sentence. Although the court acknowledged mitigating factors that defendant had advanced, it held that the violent nature of defendant’s offense deserved a lengthy punishment. The court added that it did not think that defendant should ever “see the light of day.” The Eighth Circuit held that the district court had properly considered defendant’s reasons for a lower sentence, that its statement that defendant should not see the “light of day” was a “rational conclusion” on the facts of the case, and that defendant’s sentence was not substantively unreasonable. U.S. v. Linderman, 587 F.3d 896 (8th Cir. 2009).
8th Circuit upholds within-Guidelines sentence for mailing threatening communications. (742) Defendant pleaded guilty to mailing threatening communications to a federal judge, in violation of 18 U.S.C. § 876(c). At sentencing, the district court calculated his Guideline range at 51 to 63 months. The court stated that it had read the report of defendant’s mental competency examination, which had found defendant competent, and it discussed defendant’s mental health history. The court imposed a 53-month sentence. On appeal, the Eighth Circuit rejected defendant’s contention that the district court should have explicitly referred at sentencing to defendant’s psychiatric history and held that the sentence was substantively reasonable. U.S. v. Wood, 587 F.3d 882 (8th Cir. 2009).
8th Circuit upholds within-Guidelines sentence for mailing threatening communications. (742) Defendant pleaded guilty to mailing threatening communications to a federal judge, in violation of 18 U.S.C. § 876(c). At sentencing, the district court calculated his Guideline range at 51 to 63 months. The court stated that it had read the report of defendant’s mental competency examination, which had found defendant competent, and it discussed defendant’s mental health history. The court imposed a 53-month sentence. On appeal, the Eighth Circuit rejected defendant’s contention that the district court should have explicitly referred at sentencing to defendant’s psychiatric history and held that the sentence was substantively reasonable. U.S. v. Wood, 587 F.3d 882 (8th Cir. 2009).
8th Circuit finds guideline sentence reasonable despite defendant’s minimal role in drive-by shooting. (742) Defendant was convicted of being a felon and an unlawful drug user in possession of a firearm. He argued that his 63-month sentence was unreasonable because he played a minimal role in the drive-by shooting. The Eighth Circuit found no abuse of discretion. The sentence was at the bottom of the Guidelines range, so it was presumptively reasonable. The court expressly considered the § 3553(a) factors and made specific reference to the nature and circumstances of the offense, including the particulars of defendant’s participation in the drive-by shooting. It also noted that defendant was in the vehicle at the time of the shooting, provided the victim’s address, and had fired the firearm three weeks before the shooting. The court also discussed defendant’s age, education, criminal history, history of gang membership and substance abuse. U.S. v. Valadez, 573 F.3d 553 (8th Cir. 2009).
8th Circuit upholds sentence at bottom of guideline range for child porn offense. (742) Defendant pled guilty to one count of interstate transportation of child pornography. The Eighth Circuit held that defendant’s 210-month sentence, which fell at the bottom of his advisory guideline range, was substantively reasonable. The district court expressly considered the § 3553(a) factors. The explanation included discussion of the large number of computer images of child pornography involved, the nature of the images and their distribution via the Internet. The court also alluded to details of defendant’s criminal history, both civilian and military. Finally, the court concluded that defendant would require mental health evaluation and treatment while on supervised release, and made reference to the possibility that the Bureau of Prisons will benefit defendant in this regard while he was incarcerated. U.S. v. Moore, 572 F.3d 489 (8th Cir. 2009).
8th Circuit rejects variance based on post-sentencing rehabilitation and cost of incarceration. (742) Defendant argued that the district court should have considered defendant’s post-sentencing rehabilitation and the cost of his incarceration as bases for varying downward under 18 U.S.C. § 3553(a). Defendant acknowledged that the court had explicitly stated that post-sentencing rehabilitation is not a permissible factor to consider in granting a downward variance, but suggested his case was unique. The Eighth Circuit commended defendant for the positive changes he made in his life, but found that it was bound by precedent and could not overrule an earlier decision by another panel. The district court also properly refused to consider the cost of incarceration as a basis for varying downward. U.S. v. Pepper, 570 F.3d 958 (8th Cir. 2009), affirmed in part, vacated in part, Pepper v. U.S., 131 S.Ct. 1229 (2011).
8th Circuit upholds guideline sentence for career offender. (742) Defendant pled guilty to crack cocaine charges. The district court found that defendant was a career offender, and sentenced him to 262 months’ imprisonment, the bottom of his advisory guideline range. The Eighth Circuit rejected defendant’s claim that his sentence was unreasonable. Where, as here, the sentence imposed is within the advisory guideline range, it is entitled to a presumption of reasonableness. The court explained its rationale for the guideline sentence, recounting defendant’s criminal history, noting several significant instances of criminal conduct that resulted in convictions that were not scored in arriving at the advisory sentence. Moreover, defendant was a repeat domestic abuser, began using alcohol at the age of 13, began using marijuana at the age of 14, and used other street drugs. The court specifically stated that it had read and considered defendant’s sentencing memo in support of a downward variance, but concluded that the case was not novel and that defendant had a long and serious criminal history. U.S. v. Jordan, 573 F.3d 586 (8th Cir. 2009).
8th Circuit holds that guideline directed by Congress did not result in unreasonable sentence. (742) Defendant was convicted of child pornography offenses and sentenced to 240 months. He argued that the applicable guideline, § 2G2.2, should be given less deference and weight than other Guideline sections because it was the product of congressional direction in the PROTECT Act, rather than the Sentencing Commission’s application of empirical data and national experience. He claimed that the guideline unreasonably established a greater offense level for trafficking in child porn than for such offenses as traveling to engage in a prohibited sex act with a minor or aggravated sexual abuse. The Eighth Circuit held that the guideline sentence was reasonable. Although § 2G2.2 was the product of congressional direction rather than an empirical approach, where a sentencing judge agrees with Congress, then the resulting sentence is probably reasonable. Even without a presumption of reasonableness, the 240-month sentence was reasonable. The court noted the aggravated nature of defendant’s offense, which included a pattern of activity involving the distribution to a minor, by computer, of child pornography involving prepubescent minors engaged in sadistic or masochistic conduct. U.S. v. Kiderlen, 569 F.3d 358 (8th Cir. 2009).
8th Circuit affirms 320-month sentence for child porn offense. (742) Defendant was convicted of child pornography offenses based on numerous photos he took of his 6-year-old daughter in various stages of dress wearing pantyhose or thigh-high stockings. He argued that his 320-month sentence was unreasonable because all of the § 3553(a) factors warranted a lower sentence. He pointed out that he had no criminal history, no arrests, and no juvenile records, had low risk of recidivism, had a steady and impressive work history, cooperated with the government, and never molested any of his children. The Eighth Circuit held that defendant’s sentence was not unreasonable. First, the sentence fell within his advisory guideline range of 292-360 months, thus was presumptively reasonable. Second, the court imposed defendant’s sentence after a thorough discussion of the § 3553(a) factors. U.S. v. Wallenfang, 568 F.3d 649 (8th Cir. 2009).
8th Circuit says court could consider Congress’s desire to avoid below-Guidelines sentences for sex offenses against minors. (742) Defendant pled guilty to child pornography charges. His guideline range was 188-235 months, but the district court granted defendant a downward variance and sentenced him to 120 months. In doing so, the court noted that it was erring on the high side and that a lesser sentence would probably be sufficient. However, it recognized that Congress and the Sentencing Commission did not want below-Guidelines sentences for sexual offenses involving minors. Defendant argued that the Supreme Court’s decision in Kimbrough v. U.S., 552 U.S. 85 (2007), prohibited the court from considering statutes or guidelines that were created through Congressional policy and directives rather than the Sentencing Commission’s usual empirical approach. The Eighth Circuit found no error in the district court’s decision to give significant weight to Congress and the Sentencing Commission’s expressed desire to avoid below-Guidelines sentences for offenders who commit sexual offenses involving minors. Kimbrough does not hold that a court must disagree with any sentencing guideline. U.S. v. O’Connor, 567 F.3d 395 (8th Cir. 2009).
8th Circuit finds court properly considered statutory factors before imposing guideline sentence. (742) Defendant pled guilty to possession with intent to distribute cocaine base. His advisory guideline range was 262-327 months, and the district court sentenced him to 262 months. Defendant argued that the district court committed procedural error by giving excessive presumptive weight to the Guidelines and failing to consider all of the § 3553(a) factors, including his personal characteristics, the crack and powder cocaine sentencing disparity, and the need to avoid unwarranted sentence disparities among similarly-situated defendants. Based on the sentencing record, the Eighth Circuit ruled that the district court adequately considered the § 3553(a) factors and did not give the advisory guidelines excessive weight. The court twice stated that it had considered the provisions of § 3553(a), and such references are generally sufficient to show “that the court was aware of the entire contents of the relevant statute.” Moreover, the court need not respond to every argument advanced by a defendant and the extent of the explanation required varies according to the circumstances of the case. U.S. v. Boyce, 564 F.3d 911 (8th Cir. 2009).
8th Circuit says cost of imprisonment and likelihood of deportation did not require lower sentence. (742) Defendant pled guilty to illegally reentering the U.S. after being deported. His advisory guideline range was 77-96 months, and the district court sentenced him to 96 months. Defendant argued that the district court abused its discretion by failing to consider the cost of imprisoning him for 96 months and the fact that he would be deported after serving his sentence. Defendant did not raise either issue below. The Eighth Circuit found no error and affirmed the guideline sentence. Defendant did not show that the district court was permitted to consider the cost of imprisoning him, much less that the court was required to do so. Defendant’s argument that the district court should have considered the fact that he would be deported was also without merit. The likelihood of deportation is not among the sentencing factors set out in § 3553(a). There was no reason to believe that allowing defendant to be deported as soon as possible would best protect the public. Defendant had illegally reentered the country after having been deported, and committed at least one additional crime while in the U.S. following his illegal reentry. U.S. v. Molina, 563 F.3d 676 (8th Cir. 2009).
8th Circuit rejects sentencing manipulation claim based on six controlled buys. (742) Police engaged in a series of six controlled buys of methamphetamine from defendant. Defendant was arrested after the last controlled buy. Based on the quantity involved in all six buys, the district court found that defendant was responsible for at between 50 and 150 grams of actual methamphetamine, resulting in a guideline range of 121-151 months. Defendant argued that the district court abused its discretion by failing to grant a downward departure or variance based on sentencing manipulation, and that the police conducted the later controlled buys solely to increase his sentence. The Eighth Circuit found that the investigative purposes identified by the district court were sufficient to support a finding of no sentencing manipulation. The district court credited testimony from police officers that they were attempting to locate accomplices and the source of the drugs, learn the structure of the criminal enterprise, and build a strong case against defendant. The court did not abuse its discretion in sentencing defendant to 121 months. U.S. v. Torres, 563 F.3d 731 (8th Cir. 2009).
8th Circuit upholds enhanced sentence for prohibited person who possessed large-capacity semiautomatic weapon. (742) Defendant pled guilty to unlawful possession of a firearm by a felon. He argued that the district court abused its discretion by refusing to vary from the advisory guideline range because of the “inherent inequity” of § 2K2.1(a)(4)(B), which provided for a base offense level of 20 when the defendant was a “prohibited person” and the offense involved a firearm described in 18 U.S.C. § 921(A)(30). Congress has since repealed § 921(A)(30), and § 2K2.1(a)(4)(B) now provides for the enhanced offense level if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine.” Defendant argued that it was inequitable to impose enhanced punishment for the possession of firearms that may be possessed lawfully by non-prohibited persons. The Eighth Circuit held that the court did not err in refusing to grant the variance. It was not unreasonable for the sentencing court to accept the Sentencing Commission’s recommendation regarding large-capacity semiautomatic weapons, and to sentence defendant more harshly than if he had possessed rifles or shotguns. U.S. v. Barron, 557 F.3d 866 (8th Cir. 2009).
8th Circuit finds defendant did not possess firearms solely for hunting or collection. (742) Defendant pled guilty to unlawful possession of a firearm by a felon. He argued that he used his firearms only for lawful sporting purposes, but was ineligible for the reduction because at least one of the firearms was a large-capacity semiautomatic weapon. See § 2K2.1(b)(2). The Eighth Circuit found no error in the court’s refusal to impose a below-guideline sentence based on this factor. The district court rejected the factual premise of defendant’s argument, concluding that it was not reasonable to believe the firearms were used for hunting purposes or collection given the number of firearms and ammunition found. U.S. v. Barron, 557 F.3d 866 (8th Cir. 2009).
8th Circuit does not require court to compare defendant to offender in separate case. (742) Defendant pled guilty to being a felon in possession of a firearm. He argued for a lenient sentence in light of the sentence of probation granted to a defendant in a similar case. Defendant argued that he, like the defendant in U.S. v. Francis, 462 F.3d. 810 (8th Cir. 2006), had reason to believe that the prohibition on his possession of firearms had ended. The Eighth Circuit upheld the sentence imposed, finding that the district court adequately considered defendant’s argument regarding his intent. First, there was no basis for defendant to believe that he could lawfully possess a firearm. Second, the appellate court refused to require a district judge, at the request of one party, to compare and contrast the defendant with a similar offender who has been sentenced by another federal judge in another judicial district, and to articulate on the record why the two offenders are sentenced differently. It would give too much weight to the decision of one district judge if a sentencing court was required to use a single example cited by one party as the reference point for an appropriate sentence. U.S. v. Barron, 557 F.3d 866 (8th Cir. 2009).
8th Circuit upholds sentence at bottom of guideline range. (742) The district court sentenced defendant to the bottom of the guidelines range. He argued that the district court failed to address the 18 U.S.C. § 3553 factors or explain why the length of the sentence was warranted. The Eighth Circuit found no error. The court noted the circumstances of the offense and defendant’s criminal history, which are both factors under § 3553(a)(1). The court considered defendant’s mental health issues and drug addiction and recommended treatment during incarceration, which are factors under § 3553(a) (2). The judge noted the sentences available, a factor in § 3553(a)(3) and sentenced defendant to the bottom of the guidelines range after reviewing the PSR. As for the court’s explanation, judges are not required to detail their reasons for a sentence when merely applying the guidelines to a case. How much should be said depends on the facts before the court. There was nothing unique about defendant’s case that warranted a more detailed explanation. U.S. v. McGlothen, 556 F.3d 698 (8th Cir. 2009).
8th Circuit finds no error in court’s refusal to vary from Guidelines. (742) The district court calculated defendant’s guideline range as 37-46 months, denied defendant’s request for a downward variance, and sentenced him to 37 months’ imprisonment. Defendant argued on appeal that he should be resentenced in light of the Supreme Court’s intervening decision in Gall v. U.S., 552 U.S. 38 (2007). Prior to Gall, many courts applied a form of “proportionality review” to non-guideline sentences. Defendant contended that Gall’s rejection of “proportionality review” entitled him to resentencing because Gall had not been decided at the time of his sentencing. The Eighth Circuit upheld the 37-month sentence. The sentence was at the bottom of defendant’s advisory guideline range, and nothing in the record suggested that the court thought “extraordinary” circumstances were required to justify even a modest variance. U.S. v. Marron-Garcia, 555 F.3d 1040 (8th Cir. 2009).
8th Circuit finds defendant failed to rebut presumption that guideline sentence was substantively reasonable. (742) Defendant pled guilty to being a felon in possession of a firearm. Although he requested a downward departure or variance because of several mitigating circumstances, the court imposed a 57-month sentence, which fell at the bottom of his advisory guideline range. The Eighth Circuit upheld the sentencing, finding that it was procedurally reasonable, and defendant did not rebut the presumption of substantive reasonableness. The district court considered defendant’s arguments for a downward variance, but believed that the advisory Guidelines established an appropriate sentence for the typical felon-in-possession case, and that defendant’s case was not sufficiently atypical to warrant a more lenient sentence. The court was familiar with defendant’s arguments regarding his abusive childhood and mental conditions, and it was not plain error for the court to refrain from addressing them specifically. The court did not apply a presumption of unreasonableness for sentences outside the advisory range. U.S. v. Lee, 553 F.3d 598 (8th Cir. 2009).
8th Circuit rejects downward variance for mother who forced nine-year old to submit to sexual abuse. (742) Defendant repeatedly restrained and compelled her nine-year-old daughter to submit to the sexual gratification of a pedophile in exchange for $20. In U.S. v. Kane, 470 F.3d 1277 (8th Cir. 2006), cert. granted, vacated Kane v. U.S., 552 U.S. 1088 , 128 S.Ct. 861 (2008), the Eighth Circuit reversed a 120-month sentence as unreasonable. On reconsideration in light of Gall, the Eighth Circuit again vacated the sentence, ruling that the court committed procedural error by failing to adequately explain the chosen sentence or support the degree of variance. Nothing supported the court’s finding that defendant was unlikely to repeat this type of crime. There was no evidence linking defendant’s past substance abuse or mental health issues to her crimes, and no indication that defendant was influenced by the pedophile. A defendant’s post-sentencing rehabilitation is an impermissible ground for a downward variance. Even if the pedophile was more culpable than defendant, this was not, by itself, sufficient justification for defendant’s unusually lenient sentence. Also, given the horrifying nature of defendant’s conduct, the court had “serious concerns” about the substantive reasonableness of defendant’s 120-month sentence. U.S. v. Kane, 552 F.3d 748 (8th Cir. 2009), vacated by Kane v. U.S., 131 S.Ct. 1597 (2011), and adhered to in part on reconsideration by U.S. v. Kane, 639 F.3d 1121 (8th Cir. 2011).
8th Circuit affirms ACCA sentence even though predicate felonies were committed when defendant was 18. (742) Defendant was convicted of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(e). He challenged the application of the Armed Career Criminal Act, contending that drunk driving offenses do not count as violent felonies under the ACCA. In Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), decided after defendant was sentenced, the Supreme Court ruled that drunk driving offenses were not violent felonies. However, the Eighth Circuit noted that defendant qualified as an armed career criminal because his three robbery convictions still qualified as predicate violent felonies. Defendant claimed that he was entitled to a downward variance because the remaining predicate felonies were all committed when he was 18, making punishment under the ACCA and U.S.S.G. § 4B1.4 unreasonably harsh. The district court disagreed, concluding armed career criminal status did not overstate defendant’s criminal history, with numerous convictions coming after his predicate offenses. The district court expressly addressed each of the § 3553(a) factors. U.S. v. Dembry, __ F.3d __ (8th Cir. July 28, 2008) No. 07-3578.
8th Circuit will not review refusal to vary or depart based on extraordinary medical condition. (742) Defendant was convicted of receiving child pornography, and received a 97-month sentence, which was at the low end of his advisory guideline range. He suffered from a rare congenital condition that led to the complete loss of vision in his right eye, was legally blind in the left eye, and would be blind in both eyes within three years. Defendant requested and was denied a departure under §§5H1.4 and 5K2.0 for an extraordinary physical impairment and extreme susceptibility to abuse in prison. The court also rejected defendant’s request for a variance based on the discretionary factors of 18 U.S.C. §3553. The Eighth Circuit upheld the sentence as substantively reasonable. The district court thoroughly considered defendant’s arguments, and the impact of an advisory guideline sentence on defendant’s medical conditions, before determining that a sentence at the bottom of the advisory range was appropriate. The court’s refusal to depart based on defendant’s claim of an extraordinary physical impairment was not reviewable on appeal. U.S. v. Toothman, 543 F.3d 967 (8th Cir. 2008).
8th Circuit says even after Kimbrough, court cannot categorically reject 100:1 ratio and use its own ratio. (742) Defendant was convicted of crack cocaine offenses. Rather than apply the 100:1 sentencing ratio in the Sentencing Guidelines, the district court applied a 20:1 quantity ratio. The Eighth Circuit originally reversed and remanded for resentencing, but the Supreme Court granted certiorari, and, remanded the case for reconsideration in light of Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558 (2007). Upon reconsideration, the Eighth Circuit en banc again reversed and remanded for resentencing. In determining whether a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, Kimbrough made clear that the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses. Here, however, the district court did not just consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses in conjunction with a proper § 3553(a) analysis. Rather, it substituted its own ratio, and did not conduct any additional analysis under § 3553(a). This was impermissible. A district court may not categorically reject the ratio set forth in the Guidelines. U.S. v. Spears, __ F.3d __ (8th Cir. June 23, 2008) No. 05-4468 (en banc).
8th Circuit remands to reconsider crack sentences in light of Kimbrough. (742) Defendants were convicted of a variety of crack cocaine charges. The district court ignored defendants’ arguments for lighter sentences based on the 100:1 disparity between crack and powder cocaine in the Sentencing Guidelines. Previously, the Eighth Circuit had expressly refused to authorize such consideration. However, in Kimbrough v. U. S., 128 S. Ct. 558 (2007), the Supreme Court held that a sentencing court has discretion to consider whether the crack/ powder disparity makes a within-guideline sentence “greater than necessary” to serve the objectives of sentencing. Here, the district court said nothing about the disparity. It was unclear whether it declined to use its discretion because of the then-current Eighth Circuit precedent or because it did not find that the disparity warranted a variance. The Eighth Circuit vacated and remanded to the district court to reconsider the sentences in light of Kimbrough. U.S. v. Roberson, __ F.3d __ (8th Cir. Feb. 7, 2008) No. 06-3458.
8th Circuit refuses to review denial of departure or variance. (742) Defendant objected to the district court’s denial of his motion for a downward departure or variance and claimed that his sentence was unreasonably long. His request for a departure or variance was based on his mental and emotional disorders, the physical and sexual abuse he suffered as a child, and his difficulty in reading and writing. A sentencing court’s discretionary decision not to depart downward is not generally reviewable on appeal, however, and defendant did not allege that the district court had an unconstitutional motive or mistakenly believed it lacked authority to grant the departure. Therefore, the Eighth Circuit declined to review the court’s denial of the departure. The sentence was substantively reasonable. The district court correctly calculated defendant’s advisory guideline range and imposed a 360-month sentence, which fell at the very bottom of the range. U.S. v. Brown, 539 F.3d 835 (5th Cir. 2008).
8th Circuit remands where court’s rehab finding was contradicted by defendant’s post-indictment possession of drugs. (742) Defendants purchased large amounts of cold medicine containing pseudoephedrine knowing that it would be used to manufacture methamphetamine. The district court sentenced both defendants to three years’ probation, which represented a downward variance for both of them. The Eighth Circuit held that the district court failed to adequately explain the first defendant’s sentence with sufficient justification, but the second defendant’s sentence was reasonable. The district court did not mention that the first defendant possessed four grams of meth at the time of her arrest after indictment (two years after her initial arrest). This called into question the defendant’s rehabilitation and the effectiveness of her drug treatment program. The second defendant’s probationary sentence was substantively and procedurally reasonable. The court considered defendant’s rehabilitation after her initial arrest. Even though it only came after an encounter with law enforcement, her rehabilitation appeared genuine, and she was a positive contributor to society through her work with persons with disabilities. U.S. v. Shy, 538 F.3d 933 (8th Cir. 2008).
8th Circuit affirms ACCA sentence even though predicate felonies were committed when defendant was 18. (742) Defendant was convicted of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(e). He challenged the application of the Armed Career Criminal Act, contending that drunk driving offenses do not count as violent felonies under the ACCA. In Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), decided after defendant was sentenced, the Supreme Court ruled that drunk driving offenses were not violent felonies. However, the Eighth Circuit noted that defendant qualified as an armed career criminal because his three robbery convictions still qualified as predicate violent felonies. Defendant claimed that he was entitled to a downward variance because the remaining predicate felonies were all committed when he was 18, making punishment under the ACCA and U.S.S.G. § 4B1.4 unreasonably harsh. The district court disagreed, concluding armed career criminal status did not overstate defendant’s criminal history, with numerous convictions coming after his predicate offenses. The district court expressly addressed each of the § 3553(a) factors. U.S. v. Dembry, 535 F.3d 798 (8th Cir. 2008).
8th Circuit upholds 750-year sentence for defendant who took pornographic pictures of his grandchildren. (742) Defendant took numerous pornographic and erotic pictures of his two young grandchildren and their three girlfriends. At the time the pictures were taken, the girls ranged in age from eight to eleven years old. The district court calculated an offense level of 52, which is higher than the level 43 required for a life sentence. Because the statutory maximums prevented a life sentence, the court sentenced defendant to consecutive statutory maximum terms on all counts of conviction, for a total of 9000 months or 750 years. The Eighth Circuit upheld the sentence as reasonable. Defendant conceded that the district court properly calculated his advisory sentencing range under the Sentencing Guidelines. He also conceded that the court addressed every issue raised in his position paper. The district court considered the parties’ arguments and had a reasoned basis for its sentence. The court emphasized incapacitation among its various sentencing goals and stressed the importance of a life sentence in achieving that result. U.S. v. Betcher, 534 F.3d 820 (8th Cir. 2008).
8th Circuit rejects downward variance in identity theft case. (742) Defendant sold birth certificates and social security cards to others, and was convicted of trafficking in identification documents, in violation of 18 U.S.C. §1028(a)(3), and aggravated identity theft, in violation of 18 U.S.C. § 1028(a)(1). Under § 1028(b)(3), the crime of aggravated identity theft requires a sentence of two years, consecutive to any other term of imprisonment imposed by the court at the same time. In addition, the statute prohibits courts from considering the two-year consecutive sentence when imposing the other term of imprisonment. Here, however, the district court sentenced defendant to only seven days on the document trafficking charge—a downward variance from the advisory guideline range of 10-16 months. The Fourth Circuit reversed. Gall, Booker and Rita do not allow courts to ignore the limits placed upon their discretion by § 1028(b)(3). The court improperly reduced defendant’s document trafficking sentence to account for the aggravated theft sentence. U.S. v. Guillen-Esquivel, 534 F.3d 817 (4th Cir. 2008).
8th Circuit rejects variance for age, health, and alleged mental deficiency. (742) Defendant received a 220-month sentence for conspiring to make meth. He argued that he should have been granted a downward variance based on his age and disability. He was 59 years old, had been a law-abiding citizen for the past 35 years, was a hard worker with little education, had broken his back 25 years earlier but still worked as a carpenter and roofer, had limited intelligence, and was vulnerable to attack in prison. The Eighth Circuit held that the district court did not abuse its discretion in denying defendant’s request for a variance. The record did not show that defendant’s age, past or present physical or psychological health, or his intelligence made him particularly vulnerable in a prison environment. He failed to establish that he suffered from any extraordinary physical or mental impairment. Until his arrest, he actively worked as a carpenter. At the time of his arrest, he was a methamphetamine cook which required at least a basic understanding of certain chemical reactions and belied his claim of mental insufficiency. Moreover, the district court declined to impose an upward departure based on defendant’s role as a “cook” of the conspiracy. U.S. v. Canania, 532 F.3d 764 (8th Cir. 2008).
8th Circuit rejects downward variance based on defendant’s age, lack of guns in prior offenses, and completion of probation. (742) Defendant was convicted of drug charges, and, based on his status as a career offender, his resulting guideline range was 360 months to life. The district court sentenced him to 120 months, citing defendant’s status as a juvenile at the time of some of his prior convictions, his age at the time of the current offense, the fact that defendant did not carry a weapon when he committed his past crimes, and the fact that he had successfully completed two terms of probation. After the Eighth Circuit rejected this variance, the Supreme Court remanded for reconsideration in light of Gall. The Eighth Circuit again reversed and remanded. Contrary to its previous ruling, the panel found that the district court did not abuse its discretion in giving significant weight to defendant’s status as a juvenile at the time of some of his prior adult convictions. However, the court did abuse its discretion in substantially basing the variance on defendant’s age (26) at the time of the offense. His age did not distinguish him in any meaningful way from other defendants. The fact that defendant did not carry a weapon when he committed his past crimes was already taken into account in his guideline sentencing range. Finally, the fact that defendant had successfully completed two terms of probation was irrelevant. U.S. v. Feemster, 531 F.3d 615 (8th Cir. 2008).
8th Circuit rejects variance for alien’s ineligibility for early release because firearm made him ineligible. (742) Defendant was convicted of drug trafficking and firearm charges. The district court based a downward variance on the fact that prisoners who are U.S. citizens are eligible for early release programs, but illegal alien prisoners are not. The Eighth Circuit held that the court committed a procedural error in relying on this factor. Defendant’s conviction for possessing a firearm under § 924(c) made him ineligible, regardless of whether he was a U.S. citizen or an illegal alien. The district court committed a procedural error by relying on an erroneous factor. U.S. v. Garcia-Hernandez, 530 F.3d 657 (8th Cir. 2008).
8th Circuit says using client information to create fraudulent checks was “sophisticated means.” (218) Defendant was a phone bank operator who had access to confidential information associated with every checking account in the bank’s system. She and her boyfriend were convicted of bank fraud after they orchestrated a scheme to defraud the bank by cashing fraudulent checks. The Eighth Circuit upheld a § 2B1.1(b)(9)(C) increase for the use of “sophisticated means” to commit bank fraud. Defendants used especially complex methods, which enabled them to conceal from a sophisticated company (with a full-time investigative staff) a scheme that produced about 100 fraudulent checks. In addition, defendant recruited another employee to purloin confidential account information from the bank. Defendant and her boyfriend only created fraudulent checks for those accounts that they determined had frequent activity and high balances. The couple’s creation of checks with a home computer, while not requiring considerable technical acumen, added to the scheme’s sophistication. Moreover, defendant and her boyfriend prolonged the scheme by recruiting a sizable group of check cashers. U.S. v. Jones, 530 F.3d 1292 (8th Cir. 2008).
8th Circuit rejects alternative sentence based on whether defendant stipulated to removal. (742) Defendant, an illegal alien, pled guilty to drug charges. The district court found that she qualified for safety valve relief under § 5C1.2, which enabled the court to impose a sentence less than the statutory mandatory minimum term of 10 years. The court imposed a sentence of 36 months if defendant voluntarily stipulated to removal after serving her sentence. The court imposed an alternative sentence of 99 months in the event defendant did not stipulate to removal. The Eighth Circuit held that the imposition of alternative sentences was procedurally unreasonable. Section 3551(b) states the types of authorized sentence and does not authorize alternative sentences. Courts imposed alternative sentences only after Blakely in the event that the Guidelines were found unconstitutional. Further, the type of alternative sentences used here involved a change of fact that was wholly in defendant’s control, that occurred after sentencing, and that had significant legal consequences without any judicial oversight. This was distinct from the post-Blakely alternative sentences that were wholly dependent on changes in the law. U.S. v. Desantiago-Esquivel, 526 F.3d 398 (8th Cir. 2008).
8th Circuit refuses downward variance for crack cocaine career offender. (742) Defendant pled guilty to distributing crack cocaine and was sentenced as a career offender to 262 months, the bottom of the guideline range. The court said that it had considered all the relevant factors under 18 U.S.C. § 3553(a) and that the downward variance defendant requested based on the sentencing disparity between crack and powder cocaine would have no effect on the career offender provision, which determined defendant’s guideline range. The Eighth Circuit found no error. Although the district court could consider the disparity between crack and powder cocaine sentences, it was not required to do so. Also, defendant was not eligible for a sentence reduction based on the amendments to the crack guideline because his sentencing range was determined by the career offender guideline, § 4B1.1. These amendments lowered the offense levels associated with crack in the drug quantity table in § 2D1.1, but they did not change the career offender provision in § 4B1.1. U.S. v. Clay, 524 F.3d 877 (8th Cir. 2008).
8th Circuit says guideline sentence was reasonable. (742) Defendant was convicted of being a felon in possession of a firearm, and received a sentence of 151 months. His guideline range was 151-188 months. Defendant argued that the sentence was substantively unreasonable because the district court improperly failed to consider his actual rehabilitation efforts or lack of recent criminal history, as part of its § 3553(a) analysis. However, defense counsel specifically raised these factors at sentencing, and the district court rejected them, citing defendant’s significant violent criminal history. The court based its sentence on the need for deterrence, protection of the public, incapacitation, and punishment. See 18 U.S.C. § 3553(a)(2). The court adequately considered defendant’s arguments for a downward departure, and did not abuse its discretion in imposing a sentence at the bottom of the guideline range. U.S. v. Vaughn, 519 F.3d 802 (8th Cir. 2008).
8th Circuit reverses where court failed to adequately explain 59% downward variance. (742) On defendant’s first appeal (Pepper I), the Eighth Circuit reversed a 75% substantial assistance departure under § 5K1.1, because it was based on matters unrelated to defendant’s assistance. On remand, the district court granted a 40% downward substantial assistance departure, followed by a 59% downward variance, and imposed the same 24-month sentence. The Eighth Circuit reversed and remanded for resentencing by a different judge (Pepper II), but the Supreme Court remanded for reconsideration in light of Gall v. U.S., 128 S. Ct. 586 (2007). The Eighth Circuit again reversed and remanded for resentencing by a different judge. Although the court did not abuse its discretion in granting the § 5K1.1 departure, the court failed to adequately explain why the additional 59% downward variance was warranted. Defendant’s lack of a violent history was already counted in his criminal history score. Despite the district court’s desire to avoid unwarranted sentencing disparity among co-conspirators, it appeared that defendant’s 24-month sentence actually created a sentencing disparity. Finally, the court improperly considered defendant’s post-sentence rehabilitation. Gall did not alter circuit precedent or its conclusion in Pepper II that post-sentence rehabilitation is an impermissible factor to consider in granting a downward variance. U.S. v. Pepper, 518 F.3d 949 (8th Cir. 2008).
8th Circuit upholds Guideline crack sentence, presuming court knew it had authority to depart. (742) Defendant was convicted of crack cocaine charges. The district court declined to depart from the advisory guideline sentencing range, sentencing him to 188 months, the top of that range. On appeal, the Eighth Circuit had rejected his argument that his sentence was unreasonable based on the disparity in penalties for crack and powder cocaine under the Guidelines. The Supreme Court vacated and remanded for further consideration in light of Kimbrough v. U.S., 128 S. Ct. 558 (2007). The Eighth Circuit found no error, noting that Kimbrough did not hold that the crack cocaine guidelines are categorically unreasonable. It merely concluded that, in making the particularized sentencing determination required by 18 U.S.C. § 3553(a), the district court “may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.” Here, the district court did not state that it had no discretion to take the crack/powder guidelines disparity into account in deciding whether a variance was warranted. Since there was no circuit precedent to the contrary at the time, the panel presumed the district court was aware that Booker granted it authority to vary downward based upon the impact of the crack cocaine guidelines on the defendant, but elected not to exercise that discretion. U.S. v. Moore, 518 F.3d 577 (8th Cir. 2008).
8th Circuit says failure to explain sentence at bottom of range did not affect substantial rights. (742) At sentencing, defendant presented testimony of his severe medical problems. After listening to this testimony and the parties’ arguments and the PSR, the court stated that it could not “go to house arrest.” The court asked whether the VA hospital had restricted facilities. After noting that defendant was “confined to a wheelchair and has serious medical problems,” the court instructed the Bureau of Prisons to send defendant to a particular medical facility. In sentencing defendant to 87 months, the court made no other reference to the § 3553(a) factors or to explain its sentencing decision. The Eighth Circuit held that the district court plainly erred in failing to provide an adequate explanation for the sentence. The court’s vague references did not adequately explain the sentencing decision. However, the error was not reversible because defendant did not meet his burden to show that it affected his substantial rights. His guideline range was 87-108 months, and his 87-month sentence was presumptively reasonable. U.S. v. Guarino, 517 F.3d 1067 (2d Cir. 2008).
8th Circuit remands to reconsider crack sentences in light of Kimbrough. (742) Defendants were convicted of a variety of crack cocaine charges. The district court ignored defendants’ arguments for lighter sentences based on the 100:1 disparity between crack and powder cocaine in the Sentencing Guidelines. Previously, the Eighth Circuit had expressly refused to authorize such consideration. However, in Kimbrough v. U. S., 128 S.Ct. 558 (2007), the Supreme Court held that a sentencing court has discretion to consider whether the crack/ powder disparity makes a within-guideline sentence “greater than necessary” to serve the objectives of sentencing. Here, the district court said nothing about the disparity. It was unclear whether it declined to use its discretion because of the then-current Eighth Circuit precedent or because it did not find that the disparity warranted a variance. The Eighth Circuit vacated and remanded to the district court to reconsider the sentences in light of Kimbrough. U.S. v. Roberson, 517 F.3d 990 (8th Cir. 2008).
8th Circuit finds court did not improperly apply presumption of reasonableness to Guidelines. (742) Defendant argued that the district court improperly applied a presumption of reasonableness to the guidelines sentencing range. In weighing and rejecting defendant’s arguments for a departure, the district court opined that defendant’s case was not “special” enough to emerge from the “primordial soup” of initial sentencing considerations represented by the Guidelines. The Eighth Circuit found that this observation was not a presumption of the kind prohibited by Rita v. U.S., 127 S. Ct. 2456 (2007). The district court simply found defendant’s case to be typical and his arguments insufficient to warrant a sentence lower than that recommended by the Guidelines. The court found that defendant, at 61, was not so old and infirm that the prison system could not adequately care for him. Moreover, in addressing defendant’s argument that he should be sentenced leniently for conspiracy because he was acquitted of the underlying substantive charges, the district court indicated that it believed defendant was guilty of more than the just the conspiracy. U.S. v. Robinson, 516 F.3d 716 (8th Cir. 2008).
8th Circuit says court gave proper weight to § 3553(a) factors in imposing within-guideline sentence. (742) Defendant’s advisory guideline range was 100-125 months; the district court sentenced him to 100 months. Defendant argued that his sentence was unreasonable because the court failed to consider several facts in calculating his sentence, including the fact that he had an overly strict father, his parents divorced when he was 15, he was a bright, intelligent and engaged child, he has two minor children, he obtained his GED and took business classes at the community college, and he worked as a drug counselor. The Eighth Circuit ruled that the guideline sentence was reasonable. Defendant raised these facts in his sentencing memo, and the district court considered each § 3553(a) factor. While some of these facts were commendable and some were unfortunate, the district court did not fail to give them proper weight. U.S. v. Banks, 514 F.3d 769 (8th Cir. 2008).
8th Circuit says court did not abuse discretion in imposing guideline sentence. (742) Defendant was convicted of being a felon in possession of a firearm. He argued that his 120-month sentence was unreasonable, since he was not actually carrying the firearm while engaging in criminal activity, and because a shorter sentence would still reflect the seriousness of the offense, deter criminal conduct, protect the public from future crimes, and provide educational and vocational opportunities for defendant. However, the district court explicitly addressed the § 3553(a) factors in imposing the sentence and found that a guideline sentences of 120 months was appropriate. The district court adequately explained the sentence. Defendant’s argument did not convince the Eighth Circuit that the district court abused its discretion in imposing the 120-month sentence, which fell within defendant’s advisory guideline range. U.S. v. McPike, 512 F.3d 1052 (8th Cir. 2008).
8th Circuit affirms guideline sentence even though co-defendants received lower sentences. (742) Defendant argued that his sentence, while at the bottom of the applicable guideline range, was excessive because it was above the statutory minimum sentence; his co-defendants received much shorter sentences; he had a relatively insignificant criminal history; he had three children; he maintained a meager lifestyle; and he was subject to deportation following his sentence. The Eighth Circuit found that the district court adequately considered the § 3553(a) factors and that defendant’s sentence was reasonable. A district court does not abuse its discretion by imposing a sentence within the applicable guideline range merely because the statutory minimum sentence is lower than the guideline range. Further, the fact that defendant’s co-defendant received sentences lower than his did not indicate that his sentence was disproportionate or unreasonable. Defendant’s co-defendants received downward departures by providing substantial assistance to the government, an option defendant declined. As to defendant’s personal history, the district court was aware of, and therefore considered, those factors. U.S. v. Garcia, 512 F.3d 1004 (8th Cir. 2008).
8th Circuit holds court impermissibly relied on defendant’s post-sentencing rehab to justify 13.5 month reduction. (742) Defendant’s guideline range, prior to any departure, was 135-168 months. The offense carried a mandatory minimum sentence of 120 months. The district court granted the government’s § 5K1.1 and 18 U.S.C. § 3553(e) motion and reduced defendant’s sentence to 36 months. On defendant’s first appeal, the Eighth Circuit reversed the sentence, holding that the extent of the sentence reduction was unreasonable. On remand, the district court granted her a 50% reduction for substantial assistance, finding that her assistance was “extraordinary,” but not so extraordinary as to justify the 73% reduction. In addition to the 50% substantial assistance reduction, the court varied from the advisory guidelines based on defendant’s post-offense rehabilitation. The final sentence was 54 months. The Eighth Circuit reversed. First, it declined to reconsider its previous holding that a substantial assistance reduction from 135 months to 36 months was unreasonable. And, while the court was not prohibited altogether from considering factors other than substantial assistance in fashioning defendant’s sentence, the court was not permitted to rely on defendant’s post-sentencing rehabilitation. Such evidence is “not relevant” and cannot be considered at resentencing because the district court could not have considered the evidence at the time of the original sentencing. U.S. v. Coyle, 506 F.3d 680 (8th Cir. 2007).
8th Circuit holds that court failed to give adequate reason for 45% variance from career offender sentence. (742) Defendant pled guilty to firearms and drug charges. Although he qualified as a career offender with a guideline range of 100-137 months, at his original sentencing, the district court found his criminal history overstated and imposed a 36-month sentence. On appeal, the Eighth Circuit found that sentence was unreasonable, noting that it was beneath what it would have been had defendant fallen in criminal history category I. At resentencing, the district court treated defendant as having a criminal history category of I, and imposed a 60-month sentence, which amounted to a 45% variance from the low end of the applicable guideline range. The Eighth Circuit again reversed. The Sentencing Guidelines expressly limit the extent of a departure to a single criminal history level in those cases in which the district court determines that a career offender’s criminal history is overstated. In establishing that limit, the Sentencing Commission did not create or even acknowledge sub-tiers of career offenders based either on the duration of time between felonious acts or the relative youth of the defendant when he committed the prior felonies. While the court had some discretion to find that other facts supported a lower sentence, the district court failed to enunciate a sufficiently strong and legitimate rationale to justify reducing defendant’s criminal history category on an order of five times what Congress had intended to be possible. U.S. v. Bradford, 500 F.3d 808 (8th Cir. 2007).
8th Circuit holds that four months’ probation for maintaining drug house was unreasonable. (742) Defendant owned a house in which she lived with her two sons and her ex-husband. The sons sold drugs from the house. Defendant was aware of this, and was in the residence during some of the undercover drug purchases. She was convicted of firearms charges and maintaining a residence for the purpose of distributing methamphetamine. Although her guideline range was 33-41 months, the district court sentenced her to four months’ probation. The Eighth Circuit reversed the sentence as unreasonable. A downward variance to zero prison time, where the Sentencing Commission has found that substantial prison time is indicated, requires “extraordinary justification.” Although defendant’s conduct may not have been as serious as other violations of the relevant statutes, her conduct was still criminal. Moreover, the guidelines already accounted for defendant’s minimal role in the underlying drug crimes – she received a four-level reduction under § 2D1.8(a)(2). The district court also downplayed the seriousness of defendant’s offense by positing that her only option for avoiding criminal culpability was to “eject” her sons and ex-husband from her home. However, this was not the only option – she could have asked them to stop their criminal activities, she could have threatened to call the police, and she could have actually called the police if they continued. The sentence failed to give proper weight to other statutory sentencing goals, such as the need to promote respect for the law, the need to deter others, and avoiding unwarranted sentencing disparities. U.S. v. Soperla, 494 F.3d 752 (8th Cir. 2007).
8th Circuit denies request by fraud defendant for extraordinary variance. (742) Defendant was convicted of wire fraud stemming from a scheme to steal and sell airplane parts and electronic equipment from his employer. His guideline range was 41-51 months, but his attorney requested an extraordinary variance – probation instead of prison time, citing defendant’s young children and his considerable religious and civic work. The district court refused to do so, discussed the § 3355(a) factors, and imposed a 41-month sentence. The Eighth Circuit held that the sentence was reasonable. The district court dispatched its duties under U.S. v. Haack, 403 F.3d 997 (8th Cir. 2005). The court had good reasons for rejecting defendant’s request for such an extraordinary variance. The court took into account defendant’s history and characteristics, the seriousness of the crime, the need for deterrence, and the need to treat like-crimes similarly. U.S. v. Boothe, 491 F.3d 916 (8th Cir. 2007).
8th Circuit rejects variance based on absence of fast-track program. (742) Defendant was convicted of illegally reentering the U.S. after deportation. After departing downward based on cultural assimilation and an overrepresented criminal history, the court found that his guideline range was 33-41 months. Noting that defendant’s sentence would be further reduced if he had been taken into custody in a federal jurisdiction with a fast-track program, the court sentenced defendant to 12 months and a day. The Eight Circuit reversed, holding that variances based on the absence of fast-track programs are impermissible. See U.S. v. Sebastion, 436 F.3d 913 (8th Cir. 2006). U.S. v. Gonzalez-Alvarado, 477 F.3d 648 (8th Cir. 2007), abrogated on other grounds by Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
9th Circuit upholds 50-year sentence for child porn production as reasonable. (742) Defendant was found guilty of producing child pornography, in violation of 18 U.S.C. § 2251, and of committing a violation of § 2251 while a registered sex offender, in violation of 18 U.S.C. § 2260A. Defendant’s guidelines range for his violation of § 2251 was 360-720 months. Section 2260A requires a 10-year sentence consecutive to the sentence imposed on the underlying offense. At sentencing, the district court imposed a 480-month sentence for the § 2251 violation, to be followed by a 10-year sentence under § 2260A, for a total of 50 years. The Ninth Circuit held that this sentence was reasonable. U.S. v. Shouse, __ F.3d __ (9th Cir. June 24, 2014) No. 13-30134.
9th Circuit upholds 36-month sentence for securities fraud. (742) Defendant was a stock broker at a securities firm that engaged in a “pump and dump” scheme and authorized trading in its clients’ accounts. For about two years, defendant gave investment advice to clients and committed some of the unauthorized trading. At defendant’s sentencing for securities fraud, the district court imposed a 36-month sentence. The Ninth Circuit held that this sentence was not substantively unreasonable. U.S. v. Laurienti, 731 F.3d 967 (9th Cir. 2013).
9th Circuit upholds 18-month sentence for probation violation as reasonable. (742) Defendant was placed on five years’ probation for filing false income tax returns. While on probation, defendant sustained a state felony conviction for which she failed to serve the sentence imposed, failed to report her conviction to her federal probation officer, and failed to pay restitution as ordered. The district court found that defendant had violated the terms of her probation and sentenced her to 18 months’ imprisonment, a sentence at the low end of the Guidelines range. In imposing sentence, the court noted that it had considered the criteria in 18 U.S.C. § 3553(a). The Ninth Circuit held that the district court did not commit procedural or substantive error in imposing sentence. U.S. v. Grant, 727 F.3d 928 (9th Cir. 2013).
9th Circuit upholds 57-month sentence for illegal reentry as reasonable. (742) Defendant was born in 1979 and came to the U.S. in 1992. In 2003, he committed the aggravated felony of sexual penetration by a foreign object. After his conviction, he was deported from the U.S. When he tried to return, he was charged with and convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The district court imposed a within-Guidelines 57-month sentence. The Ninth Circuit held that the sentence was not procedurally or substantively unreasonable. U.S. v. Sandoval-Orellana, 714 F.3d 1174 (9th Cir. 2013).
9th Circuit upholds 24-month sentence for illegal reentry. (742) Defendant pleaded guilty to illegal reentry after departure and was given a sentence of 24 months, at the low end of the guidelines range of 24-30 months. Defendant had four prior deportations and five prior criminal convictions, but he also presented evidence of cultural assimilation and diminished mental capacity. The Ninth Circuit held that the 24-month sentence was substantively reasonable. U.S. v. Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012).
9th Circuit finds high-end sentence reasonable for meth trafficking. (742) Defendant sold small amounts of methamphetamine to an informant. After these sales, the informant arranged a 900-gram sale, and defendant and his accomplice were arrested when they tried to sell 947 grams to the informant. Defendant pleaded guilty without a plea agreement to conspiracy to distribute methamphetamine and four counts of possession of methamphetamine with intent to distribute. The district court calculated defendant’s guidelines range as 108-135 months, and sentenced him to 135 months. Defendant’s accomplice, who received the same sentence, pleaded guilty pursuant to a plea agreement and promised to cooperate. Although defendant claimed that the accomplice did not actually cooperate because he did not provide the source of the methamphetamine, the presentence report and the government both told the district court that the accomplice had cooperated. The Ninth Circuit held that defendant’s sentence was not substantively unreasonable. U.S. v. Biao Huang, 687 F.3d 1197 (9th Cir. 2012).
9th Circuit upholds below-guidelines sentence for exporting night-vision device. (742) Defendant pleaded guilty to exporting night-vision devices from the U.S. without the required export license. At sentencing, the district court imposed a below-Guidelines sentence of 36 months based on defendant’s military record and low likelihood of recidivism. The Ninth Circuit held that the district court did not abuse its discretion by declining to impose a lower sentence and that the sentence was not substantively unreasonable. U.S. v. Carper, 659 F.3d 923 (9th Cir. 2011).
9th Circuit affirms 46-month sentence at low end of guidelines range. (742) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court found that defendant’s prior conviction for forcible rape constituted a crime of violence and that defendant had committed his offense within two years of being released from prison. Based on these determinations, the court found that defendant’s guidelines range was 46-57 months. The court imposed a sentence of 46 months. The Ninth Circuit held that this sentence was not substantively unreasonable. U.S. v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011).
9th Circuit affirms refusal to impose lower sentence in illegal entry case. (742) At his sentencing for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, defendant argued that the 16-level increase in offense level for defendants who were deported after committing a “crime of violence” arbitrarily and disproportionately increases the length of sentences for § 1326 defendants. The district court stated that it had considered defendant’s argument as to the “disproportionate impact” of the 16-level enhancement. The Ninth Circuit held that the district court had adequately explained its reasons for rejecting defendant’s argument. U.S. v. Ayala-Nicanor, 659 F.3d 744 (9th Cir. 2011).
9th Circuit upholds within-Guidelines 210-month sentence for receipt of child porn. (742) Defendant pleaded guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252(a) (2). Defendant possessed thousands of images of child pornography, including images of very young children engaged in sexual conduct, as well as sexually violent and other violent images. Defendant also had engaged in on-line conversations in which he stated that he wished he had a daughter so he could molest her. Defendant’s guideline range was 210 months to the statutory maximum of 240 months, and the district court imposed a sentence of 210 months, to be followed by a lifetime term of supervised release. The Ninth Circuit held that defendant’s sentence was not substantively unreasonable. U.S. v. Maier, 646 F.3d 1148 (9th Cir. 2011).
9th Circuit upholds high-end guidelines sentence of 96 months for firearms possession. (742) Defendant was convicted of being a felon in possession of a firearm. He had an offense level of 24 and a criminal history category of IV, for a sentencing range of 77 to 96 months. The district court imposed a 96-month sentence, explaining that a sentence at the top of the guidelines range was warranted by defendant’s criminal history, which included a conviction for felony child abuse. The Ninth Circuit held that the sentence was not substantively unreasonable. U.S. v. Tucker, 641 F.3d 1110 (9th Cir. 2011).
9th Circuit upholds within-Guidelines sentence for engaging in sex act without consent. (742) Defendant was convicted of knowingly engaging in a sexual act with a person who was physically incapable of declining participation, in violation of 18 U.S.C. § 2242(2). The district court imposed a within-guidelines sentence of 130 months. It reasoned that defendant committed a serious crime, had caused serious harm to the victim, and that his past criminal history and attitude showed that he posed a danger to the community. On appeal, the Ninth Circuit held that the sentence was substantively reasonable. U.S. v. Fasthorse, 639 F.3d 1182 (9th Cir. 2011).
9th Circuit says court adequately considered lower sentence before imposing guidelines sentence. (742) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, he argued that he should receive a below-guidelines sentence because he had entered the country illegally only to retrieve his son, who had been abandoned by the child’s mother and was living with the defendant’s brother. The district court referenced the factors under 18 U.S.C. § 3553(a) but did not expressly refer to defendant’s desire to retrieve his child. The court then imposed a sentence at the bottom of the Guidelines range. The Ninth Circuit held that the district court had adequately considered defendant’s argument. U.S. v. Contreras-Hernandez, 628 F.3d 1169 (9th Cir. 2011).
9th Circuit upholds 71-month mid-Guidelines sentence for illegal reentry. (742) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. He had previously been deported from the U.S. ten times, and he had a prior conviction in California for lewd and lascivious acts upon a child under the age of 14. At sentencing, the district court imposed a 71-month sentence, which was in the middle of the Guidelines range. The Ninth Circuit held that the sentence was not substantively unreasonable. U.S. v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010).
9th Circuit upholds 97-month within-Guidelines sentence for child porn possession. (742) Defendant pleaded guilty to receiving child pornography, in violation of 18 U.S.C. § 2252A (a)(2), based on his possession of more than 600 images of child pornography, including images of children under the age of 12 being subjected to anal and vaginal penetration, bondage, and other acts. The district court correctly calculated defendant’s sentencing range as 97 to 121 months. The court imposed a 97-month sentence. In doing so, the court noted that it sought to impose a sentence that took into account the factors in 18 U.S.C. § 3553(a), and it weighed defendant’s military service, family ties, and lack of a criminal record. The Ninth Circuit held that the sentence was procedurally and substantively reasonable. U.S. v. Blinkinsop, 606 F.3d 1110 (9th Cir. 2010).
9th Circuit finds 41-month sentence reasonable for illegal reentry. (742) Defendant, who pleaded guilty in 2008 to illegal reentry after deportation, had a prior conviction from the mid-1990s for having sexual intercourse with a minor between the ages of 12 and 14. That conviction resulted in a 16-level increase in defendant’s offense level, resulting in a Guidelines range of 41 to 51 months. The district court imposed a 41-month sentence. Relying on U.S. v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), defendant argued that his within-Guidelines sentence was unreasonable because it resulted largely from the 16-level enhancement from his prior conviction. The Ninth Circuit held that defendant’s sentence was not unreasonable in light of the nature and timing of his prior conviction. U.S. v. Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010).
9th Circuit affirms within-guideline sentence for meth distribution by career offender. (742) Defendant pleaded guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841. Because defendant qualified as a career offender, his offense level increased to 34. With a three-level reduction for acceptance of responsibility, defendant had a sentencing range of 188-235 months. The district court sentenced him to 224 months. On appeal, defendant argued that this sentence was unreasonable because he was not a “major dealer” and because his coconspirator (and girlfriend) received a lower sentence. The Ninth Circuit found that this sentence was not unreasonable. U.S. v. Dewey, 599 F.3d 1010 (9th Cir. 2010).
9th Circuit upholds 90-month, below-Guidelines sentence for defrauding federal program. (742) Defendant was convicted of conspiracy, wire fraud, and bid-rigging based on her planning and execution of a scheme to defraud a federal program that provides telecommunication access to low-income schools. At sentencing, the district court found that defendant’s Guidelines sentencing range was 97 to 121 months, but it departed downward and imposed a 90-month sentence. The Ninth Circuit held that in light of defendant’s role in planning and executing the scheme, the sentence was not unreasonable. U.S. v. Green, 592 F.3d 1057 (9th Cir. 2010).
9th Circuit says 92-month sentence for firearm possession is not unreasonable. (742) Defendant was convicted of possession of a firearm by a convicted felon. He had two prior felony convictions for controlled substance offenses, which placed him in criminal history category VI. At sentencing, the district court increased defendant’s offense level by two because the firearm had an obliterated serial number. Defendant’s resulting sentencing range was 92 to 115 months, and the district court imposed a sentence of 92 months. The court rejected defendant’s argument that he should receive a lower sentence because his controlled substance convictions involved small amounts of marijuana. The Ninth Circuit found that the sentence was not unreasonable. U.S. v. Ringgold, 571 F.3d 948 (9th Cir. 2009).
9th Circuit finds no error in failing to consider disparity with state sentence. (742) Defendant pleaded guilty to possession of a firearm by a convicted felon. At sentencing, the district court found that defendant had a sentencing range under the Guidelines of 92 to 115 months. Defendant argued that he should receive a sentence below the Guidelines range because he would have been subject to a maximum sentence of three years if he had been convicted of the same offense in state court. The district court imposed a 92-month sentence. The Ninth Circuit held that the district court did not commit a procedural error by not considering the disparity between the recommended Guideline sentence and the sentence that defendant would have received in state court. The court held that 18 U.S.C. § 3553(a)(6), which requires a sentencing court to consider the need to avoid unwarranted disparities among defendants with similar records, applies only to disparities among similarly situated federal defendants. U.S. v. Ringgold, 571 F.3d 948 (9th Cir. 2009).
9th Circuit upholds 235-month child porn sentence against procedural and substantive claims. (742) Defendant was convicted of possession, receipt, and creation of child pornography, based in part on photographs he had taken of his minor stepdaughter. At sentencing, the district court found that defendant’s advisory Guidelines range was 188 to 235 months. The court imposed a sentence of 235 months, relying on the factors set forth in 18 U.S.C. § 3553(a), the lasting harm to the victim, the threat that defendant posed to children, and defendant’s need for treatment in a sex offender program. The court considered but discounted the testimony of witnesses who vouched for defendant’s good character at work. The Ninth Circuit held that the district court had adequately justified his decision to impose a sentence at the high end of the Guideline range and that the sentence was not unreasonable. U.S. v. Overton, 573 F.3d 679 (9th Cir. 2009).
9th Circuit upholds drug sentence against reasonableness and Apprendi challenges. (742) Defendant was convicted of conspiring to distribute heroin, methamphetamine, and marijuana, in violation of 21 U.S.C. § 846, and attempting to obtain contraband in prison, in violation of 18 U.S.C. § 1791(a)(2). Section 1791 provides that a sentence involving a controlled substance shall be consecutive to any sentence for the controlled substance offense. Defendant was initially sentenced to 210 months on each count, to be served concurrently. Defendant successfully challenged his sentence on the ground that the jury had not made findings as to the controlled substances involved in his offense. At resentencing, the court concluded that the verdict supported a finding only with respect to marijuana. So the court imposed the maximum sentence of 60 months on each count, to be served consecutively. Judge Thompson, joined by Judge Pregerson and Northern California District Judge Fogel, held that the sentence was not unreasonable, and the district court did not act vindictively because consecutive sentences were required by statute, and the imposition of a 60-month sentence did not violate defendant’s right under Apprendi to have the facts supporting the sentence found by a jury. U.S. v. Raygosa-Esparza, 566 F.3d 852 (9th Cir. 2009).
9th Circuit finds 32 months reasonable for involuntary manslaughter. (742) During a domestic dispute, defendant’s boyfriend drunkenly assaulted her. In response, defendant grabbed a knife, swung it at her boyfriend, and stabbed him. The knife severed an artery, and the boyfriend died. Defendant was charged with voluntary manslaughter, but the jury convicted her of the lesser-included offense of involuntary manslaughter. Defendant’s Guideline range was 27 to 33 months, and the district court imposed a 32-month sentence. The Ninth Circuit found the sentence reasonable, rejecting defendant’s claims that the district court ignored evidence of the victim’s behavior and that the sentence was unreasonably long. U.S. v. Crowe, 563 F.3d 969 (9th Cir. 2009).
9th Circuit upholds explanation and reasonableness of 471-month Guidelines sentence. (742) Based on his participation in two bank robberies, defendant was convicted of two counts of armed bank robbery, two counts of conspiracy, and two counts of using a firearm during a crime of violence. The district court sentenced him to 471 months—the low end of the advisory Guidelines range. The court heard argument from the parties over the Guidelines and the factors set forth in 18 U.S.C. § 3553(a), and stated that it had read and considered the PSR and that the sentence was based on defendant’s three prior convictions and the need to deter any further criminal activity. The Ninth Circuit held that the district court adequately explained the sentence and that it was not required specifically to address defendant’s arguments when it imposed sentence. Finally, the court held that the sentence was not unreasonable. U.S. v. Carter, 560 F.3d 1107 (9th Cir. 2009).
9th Circuit says firearms sentence below mandatory minimum was not unreasonably high. (742) Defendant was convicted on two counts of using or carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). A second or successive conviction under § 924(c) carries a mandatory minimum, consecutive sentence of 25 years. Defendant also pleaded guilty to drug-trafficking counts carrying a 10-year mandatory minimum, so that defendant’s mandatory minimum sentence was 40 years. At sentencing, the district court erroneously believed that each of defendant’s § 924(c) convictions carried five-year mandatory sentences. The district court therefore imposed a 10-year sentence on the two § 924(c) counts; it also imposed a below-Guidelines sentence for defendant’s sentence on the drug-trafficking count. As a result, defendant received a sentence of 35 years, five years below the mandatory minimum. Defendant nevertheless appealed his sentence as unreasonably high. In an opinion that criticized defendant’s appellate counsel for appealing a sentence below the mandatory minimum, the Ninth Circuit held that the sentence was not unreasonably high. U.S. v. Beltran-Moreno, 556 F.3d 913 (9th Cir. 2009).
9th Circuit holds that disparity between fast-track and non fast-track defendant did not support below-Guidelines sentence. (742) Defendant was charged with being found in the U.S. after deportation, in violation of 8 U.S.C. § 1326. The government declined to offer defendant a “fast track” disposition in which he would have received a lower sentence in return for an immediate guilty plea because defendant had a prior offense involving sexual abuse of a minor. At sentencing, the district court imposed a sentence below the Sentencing Guidelines range because a higher sentence would have created a lack of consistency between defendant’s sentence and the sentence of a defendant whom the court had sentenced earlier that day and who had pleaded guilty pursuant to a fast-track plea bargain. The Ninth Circuit held that it was unreasonable for the district court to base its sentencing decision solely on disparities between a defendant who did not receive a fast-track plea offer and a defendant who did. U.S. v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009).
9th Circuit rejects claim that diminished capacity should have led to further reduction in below-Guidelines sentence. (742) After calculating defendant’s Guidelines range for her mail fraud conviction as 37 to 46 months, the district court imposed a sentence of 24 months. The court explained that defendant was a gambling addict with a severe problem. On appeal, defendant claimed that the court should have imposed a lower sentence because she has diminished mental capacity. The Ninth Circuit affirmed, noting that the district court made a reasoned and reasonable decision that the factors set forth in 18 U.S.C. § 3553(a) justified the sentence. U.S. v. Blixt, 548 F.3d 882 (9th Cir. 2008).
9th Circuit affirms below-Guidelines 80-month sentence for armed bank robbery. (742) Defendant robbed a bank using a fake bomb. His offense level was 20, and he fell into criminal history category VI, for a sentencing range of 92-115 months. In calculating defendant’s criminal history, the court relied on many minor crimes, but did not consider several serious crimes that were outside the ten-year window for calculating a defendant’s criminal history. After considering the factors set forth in 18 U.S.C. § 3553(a), the court imposed a below-Guidelines sentence of 80 months. On appeal, defendant argued that his sentence was unreasonable because three of his convictions were a month shy of falling outside the ten-year window. The Ninth Circuit held that the 80-month sentence was reasonable. U.S. v. Bendtzen, 542 F.3d 722 (9th Cir. 2008).
9th Circuit finds 100-month sentence for illegal reentry reasonable. (742) After his conviction for illegal reentry after deportation, defendant was sentenced to 100 months, which was the low end of the applicable Guideline range. In imposing sentence, the district court stated that it had considered the factors set forth in 18 U.S.C. § 3553(a) and found the sentence justified by defendant’s extensive criminal history. The court also said that it had used the Guideline range as a starting point but did not find the case to warrant a departure. The Ninth Circuit held that the district court adequately explained its sentence and did not improperly treat the Guidelines sentence as presumptively reasonable. The court of appeals also held that the district court acted within its discretion by rejecting defendant’s argument that the sentence created unwarranted disparities with other defendants convicted of illegal reentry. U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008).
9th Circuit finds 168-month, within-Guidelines sentence reasonable in meth case. (742) At defendant’s sentencing on his conviction for conspiracy to distribute methamphetamine, the district court calculated the Guideline range as 168-210 months, based on an offense level of 35 and a criminal history category of I. Defendant then argued for a sentence of 120 months, and the government sought a sentence of 151 months. The district court imposed a 168-month sentence, based on defendant’s history and characteristics, the need for the sentence imposed, and the need to avoid unwarranted disparities. On appeal, defendant claimed that the sentence was unreasonable because, among other factors, his criminal history consisted only of misdemeanors, his involvement in the drug-trafficking organization was shorter than that of other coconspirators, and he had demonstrated remorse. The Ninth Circuit held that the district court adequately considered the factors in 18 U.S.C. § 3553(a) and that the sentence was reasonable. U.S. v. Rivera, 527 F.3d 891 (9th Cir. 2008).
9th Circuit upholds 90-month, within-Guidelines sentence for illegal reentry. (742) After a jury trial, defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. His Guideline range was 84 to 105 months. The district court rejected defendant’s request for a 48-month sentence (the sentence the government offered in a pretrial plea offer) and sentenced him to 90 months. The Ninth Circuit noted that the district court had discussed the factors set forth in 18 U.S.C. § 3553(a) and held that the sentence was reasonable. U.S. v. Vasquez-Landaver, 527 F.3d 798 (9th Cir. 2008).
9th Circuit finds no plain error in district court presumption that Guidelines sentence was reasonable. (742) Defendant and two other men attempted to smuggle about 140 pounds of marijuana into the U.S., and he was convicted of importing marijuana and other offenses. The district court found that defendant played a minor role in the conspiracy and denied him a reduction in offense level for acceptance of responsibility. The court then calculated defendant’s sentencing range as 33 to 41 months and sentenced defendant to 33 months. In imposing sentence, the court noted that sentences within the Guidelines would be considered reasonable. The Ninth Circuit found that the district court had improperly presumed that a sentence within the Guidelines range was reasonable. Although the court held that the district court had erred in presuming that a sentence within the Guidelines was reasonable, defendant had not shown a reasonable probability that he would have received a different sentence absent that presumption. U.S. v. Dallman, 533 F.3d 755 (9th Cir. 2008).
9th Circuit finds 151 months reasonable for child porn offense that involved sexual exploitation of minor. (742) Defendant uploaded pornographic pictures of a 14-year-old boy to a website and then arranged for the boy to engage in sex for a fee with men who saw the boy’s picture on the website. Based on the posting of boy’s pictures on the Internet, defendant pleaded guilty to transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). Under the Guidelines, his sentencing range was 151-188 months. The district court imposed a sentence of 151 months, explaining that it had considered the effect on the minor, the need to deter others from committing similar offenses, and the need to protect the public from defendant. The Ninth Circuit held that the sentence was reasonable. The court also rejected defendant’s argument that his sentence should be reduced because he suffered abuse as a child and had been addicted to methamphetamine. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit finds 21-month sentence reasonable for possession of access device. (742) Defendant provided a “skimmer” to an undercover law enforcement officer posing as a hotel employee and instructed her to use it to steal the credit card numbers of hotel guests. He pleaded guilty to possession of equipment used for making access devices, in violation of 18 U.S.C. § 1029(a)(4). Applying § 2B1.1, the district court calculated defendant’s offense level as 10 and imposed a sentence of 21 months. The court noted that defendant had a prior conviction for credit card fraud and that if he had not been brought to the attention of law enforcement by an informant, he could have caused very large losses. The Ninth Circuit held that the 21-month sentence was not unreasonable. U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008).
10th Circuit upholds refusal to vary despite remoteness of previous sexual misconduct. (742) Defedant pled guilty to child pornography charges, and received a pattern of activity increase under § 2G2.2(b)(5) based on his molestation of two nieces in the 1960s and 1970s. He argued that his 78-month sentence was substantively unreasonable, and the district court should have varied downward based on (a) the age of the conduct supporting the § 2G2.2(b)(5) enhancement, and its lack of connection to the offenses of conviction, and (b) his age and personal characteristics. The Tenth Circuit found no error. Although the district court was permitted to vary based on the remoteness of the pattern of activity, it was not required to do so. Defendant did not overcome the presumption of substantive reasonableness that attached to his guidelines-range sentence on appeal. Moreover, the panel was not convinced that the previous acts were not related to defendant’s offenses of conviction, which included viewing pornographic images of pre-pubescent girls. The court took into account the § 3553(a) factors, including his age, education and circumstances. However, it concluded that nothing took his case out of the heartland of child porn cases. U.S. v. Lucero, 747 F.3d 1242 (10th Cir. 2014).
10th Circuit says court is not required to consider sentences received by state court defendants. (742)Defendant pled guilty to oxycodone charges. Her guideline range was 57-71 months, but the district court sentenced her to 48 months. She argued on appeal that the district court erred by refusing to consider the disparity between her sentence and similarly situated defendants sentenced in Utah state court. She argued this comparison was appropriate because this type of crime was typically prosecuted in state court where lesser sentences are imposed. The Tenth Circuit disagreed, holding that 18 U.S.C. § 3553(a)(6) authorizes consideration of disparate sentences among and between federal defendants, and does not require the court to also consider sentences received by similarly situated state court defendants. See U.S. v. Branson, 463 F.3d 1110 (10th Cir. 2006). Although defendant argued that Branson was not controlling, she provided little analysis and cited no authority that would permit the panel to overrule or distinguish it. U.S. v. Wiseman, 749 F.3d 1191 (10th Cir. 2014).
10th Circuit upholds refusal to grant additional variance. (742) Defendant was convicted of multiple drug charges relating to a marijuana-growing operation. The court granted the government’s motion for a six-level downward departure based on defendant’s substantial assistance, but denied defendant’s request for an additional four-level departure based on the risk of injury to him and his family. Defendant argued that the court erred in denying his request for an additional downward departure. The Tenth Circuit held that defendant’s sentence was both procedurally and substantively reasonable. The district court considered defendant’s argument regarding the potential threat of retribution from his co-defendant, but found no factors present that separated defendant from the mine run of similarly-situated defendants. It noted that it had already granted defendant a “significant” downward departure based on defendant’s substantial assistance, and concluded that there was no reason to grant an additional variance. U.S. v. Shuck, 713 F.3d 563 (10th Cir. Apr. 12, 2013).
10th Circuit affirms below-guidelines child porn sentence as not unreasonably high. (742) Defendant used peer-to-peer file-sharing software to download child pornography. His guideline range was 151-188 months, and the court sentenced him to 102 months. Defendant argued that “the only substantively reasonable sentence” in this case was the five-year mandatory minimum required by 18 U.S.C. § 2252(b)(1). He pointed to his deletion of the files from his computer, his childhood history of sexual abuse, his having obtained counseling after his arrest, and his vulnerability to prison abuse. The Tenth Circuit held that the 102-month below-guidelines sentence was substantively reasonable. Defendant’s arguments were not sufficiently compelling to rebut the presumption of reasonableness that attaches to a below-guidelines sentence. U.S. v. Ray, 704 F.3d 1307 (10th Cir. 2013).
10th Circuit affirms below-guidelines child porn sentence as not unreasonable. (742) Defendant used peer-to-peer file-sharing software to download child pornography, and was sentenced to a below-guideline sentence of 102 months. The Tenth Circuit rejected defendant’s claim that the sentence was procedurally unreasonable. First, the court did not mistakenly treat the guidelines as mandatory rather than advisory. The court only said it was required to “consider” the guidelines and would “give them great weight and deference.” The court did not erroneously refuse to consider defendant’s history of sexual abuse as a child. It is not unusual for a court to say that it “cannot” grant a party’s request when it is not persuaded by the party’s argument. Given the court’s consideration of various personal information about defendant, if it thought some specific law precluded consideration of childhood abuse, it would have said so. Finally, the court did not improperly find that defendant had deleted material from his computer for fear of apprehension, rather than genuine remorse. The court spoke simply of its “suspicions,” and immediately after doing so, allowed for the possibility that its suspicions were false, and explained why its judgment was correct regardless. U.S. v. Ray, 704 F.3d 1307 (10th Cir. 2013).
10th Circuit says § 3553(a)(6) concerns nationwide disparities, not disparities among co-defendants. (742) Defendant was convicted of a marijuana conspiracy that ran from December 2003 through March 2006. He argued that his below-guidelines sentence was unreasonable because it was disparate to that of his co-conspirators. The Tenth Circuit found no error. Section 3553(a)(6) requires a judge to take into account only disparities nationwide among defendants with similar records and Guideline calculations. It is not reversible error for a sentencing court to adhere to this interpretation in its exercise of sentencing discretion. Defendant did not present any evidence suggesting his sentence was problematic in this sense. U.S. v. Damato, 672 F. 3d 832 (10th Cir. 2012).
10th Circuit rejects disparity argument where defendant failed to show that he would qualify for fast-track treatment. (742) Defendant pled guilty to illegal reentry after deportation. He argued on appeal that the sentencing court improperly refused to consider sentencing disparities created by fast-track programs in other districts. Even assuming defendant was correct that the court refused to consider this disparity, the Fifth Circuit found no error. Under the recently decided U.S. v. Lopez–Macias, 661 F.3d 485 (10th Cir. 2011), district courts can consider fast-track sentencing disparities, but a district court need not do so in the absence of “a minimum showing that a defendant charged with the same crime in a fast-track district would qualify for fast-track treatment.” Here, defendant made no such showing. U.S. v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012).
10th Circuit reverses for failure to address argument about unwarranted disparities. (742) Defendant killed three young men and seriously injured a young woman in a car accident that occurred while she was driving drunk. Her guideline range was 46-57 months, but the district court sentenced her to 192 months. She argued on appeal that the district court committed procedural error when it failed to address her argument that the variance would create unwarranted sentencing disparities with sentences of similar offenses and offenders. The Tenth Circuit agreed. Defendant presented a material non-frivolous argument based on sentencing data and comparative cases on the need to avoid unwarranted sentencing disparities. The court did not mention any of these cases or the sentencing data, and it did not address this sentencing factor after defendant devoted much of her briefing and argument to this issue. Beyond the court’s saying at the sentencing hearing and in its written decision that it had considered all of the § 3553(a) factors, there was no indication that the court considered defendant’s material, non-frivolous sentencing-disparity argument, which she supported with sentencing data and case examples. U.S. v. Lente, 647 F.3d 1021 (10th Cir. 2011).
10th Circuit reverses where court failed to address argument about recklessness. (742) Defendant killed three young men and seriously injured a young woman in a car accident that occurred while she was driving drunk. Her guideline range was 46-57 months, but the district court varied upward to a sentence of 192 months. She argued on appeal that the district court committed procedural error when it failed to address her argument that the circumstances leading up to the accident mitigated against a finding that she was acting with more than normal recklessness. She introduced undisputed evidence about pre-accident developments, including that her mother gave her the keys to her mother’s car and told her to drive one of the victims to his home because he was drunk and acting inappropriately. The district court identified three aggravating factors to support a finding of “extraordinary recklessness,” but it did not address defendant’s undisputed evidence about the victim’s behavior just before the accident and the multiple attempts to convince the victim to leave the home on his own. The Tenth Circuit held that the district court erred in granting the variance without addressing defendant’s mitigating circumstances argument. U.S. v. Lente, 647 F.3d 1021 (10th Cir. 2011).
10th Circuit rules minimum guideline sentence for child porn offense was reasonable. (742) Defendant pled guilty to receiving child pornography, in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256. His advisory guideline range was 97-121 months, but defendant requested a sentence at the statutory minimum of 60 months. The district court imposed a sentence of 97 months. On appeal, the Tenth Circuit held that the guideline sentence for the child porn offense was reasonable. Although defendant cited recent cases suggesting that the child porn guideline, § 2G2.2, is not entitled to the same deference as other guidelines, he never made this argument to the district court. The court did not abuse its discretion by failing to consider an argument that defendant did not raise. As for the individualized factors defendant raised, such as his age and history of mental illness, these arguments were not sufficient to compel the conclusion that the district court abused its discretion by declining to grant a downward variance. U.S. v. Regan, 627 F.3d 1348 (10th Cir. 2010).
10th Circuit upholds validity of 16-level aggravated felony enhancement. (742) Defendant was convicted of illegally reentering the country after having been deported following an aggravated felony conviction. He requested a non-Guidelines sentence, arguing that the 16-level enhancement under § 2L1.2(B)(1)(A)(i) for a prior felony drug trafficking sentence was “unwarranted” and “unreasonable.” The Tenth Circuit upheld the district court’s application of the 16-level enhancement. The panel rejected defendant’s argument that the enhancement was invalid because it lacked a specific explanation and justification by the Sentencing Commission. The Commission was merely following congressional policy to impose more severe statutory penalties on previously deported aliens with a criminal record who illegally return to the U.S. The panel also rejected defendant’s claim that the enhancement created unwarranted sentencing disparities based on the nature of the prior aggravated felony. U.S. v. Alvarez-Bernabe, 626 F.3d 1161 (10th Cir. 2010).
10th Circuit rejects claim of unwarranted disparity with co-conspirator’s sentence. (742) At defendant’s sentencing for engaging in a large-scale scheme to defraud a state government, the district court calculated defendant’s sentencing range at 151-181 months. Based on defendant’s substantial assistance to the government, the court departed downward to a sentencing range of 63-78 months. The court imposed a 67-month sentence, explaining that defendant was a public official and that he and a state senator were the leaders of the conspiracy. On appeal, defendant argued that his sentence was substantively unreasonable because the state senator did not cooperate with the government, and therefore an unwarranted disparity existed between his sentence and the 67-month sentence received by the state senator. The Tenth Circuit held that any disparity between defendant’s sentence and that of the state senator arose because the state senator’s plea agreement stipulated to a 67-month sentence. The court of appeals also found that it must give deference to the district court, which had considered the asserted disparity. U.S. v. Martinez, 610 F.3d 1216 (10th Cir. 2010).
10th Circuit finds above-Guidelines sentence for supervised release violation was reasonable. (742) Defendant violated the terms of his supervised release on a drug-trafficking charge. The district court imposed a six-month sentence, to be followed by a new term of supervised release. When released, defendant repeatedly violated the terms of his supervised release by testing positive for marijuana use. The district court revoked defendant’s supervised release and departed upward from the four to 10-month sentence recommended by the Guidelines and imposed an 18-month sentence. The Tenth Circuit held that this sentence was not substantively unreasonable. U.S. v. Steele, 603 F.3d 803 (10th Cir. 2010).
10th Circuit affirms refusal to vary based on age and nature of prior felony. (742) Defendant pled guilty to illegally reentering the U.S. after deportation, and received a 16-level enhancement under § 2L1.2(b) based on a 1997 state conviction for attempted distribution of marijuana. The court imposed a 41-month sentence. Defendant argued that the sentence was unreasonably long in light of the relatively benign nature of his prior offense in comparison to other offenses that trigger the 16-level enhancement. He noted that his only contact with police after the 1997 conviction was for driving without insurance. Although the Tenth Circuit agreed that the staleness of an underlying conviction may, in certain instances, warrant a below-Guidelines sentence, and that a downward variance might be warranted based on the relatively benign nature of the triggering offense, it nonetheless held found no abuse of discretion. The panel was not so stale that the court abused its discretion by refusing to vary downward under the circumstances of the case. U.S. v. Chavez-Suarez, 597 F.3d 1137 (10th Cir. 2010).
10th Circuit upholds 240 hours of community service as condition of probation. (742) Defendant shared a joint bank account with a friend who died. The friend’s Social Security benefits were automatically deposited into the account for 20 years after the friend’s death. Defendant withdrew $130,557 in Social Security benefits intended for the friend. Defendant pled guilty to theft of public money. His guideline range was zero to six months, and he was sentenced to two years’ probation, conditioned on 240 hours of community service. Defendant contended that the imposition of so many hours of community service was procedurally and substantively unreasonable. The Tenth Circuit disagreed, finding the community service requirement reasonable. Defendant admitted stealing $130,557 in Social Security benefits from the federal government over a 23-year period. He was not punished with any imprisonment or fine. Although his wife paid full restitution, this was no more than a repayment of his ill-gotten gains, and it was not even his efforts that accomplished the repayment – the money came from his wife’s inheritance. The district court could properly decide that anything less than the community-service requirement would devalue the rule of law. U.S. v. Middagh, 594 F.3d 1291 (10th Cir. 2010).
10th Circuit rejects variance below career offender guideline as unreasonable. (742) Defendant was a serial bank robber. Because he qualified as a career offender, his guideline range was 151-188 months. The district court sentenced him to 57 months, noting that 94 months off the low end of his guideline range were given because of his status as a career offender. The Tenth Circuit held that the sentence was substantively unreasonable. The district court simply disregarded the career offender provisions. Other than noting defendant’s “changed attitude,” the court never explained how the nature of the robbery or defendant’s individual characteristics supported the large variance. Nothing in the record distinguished defendant from the run-of-the mill career offender. In light of defendant’s extensive criminal history, his failure to accept full responsibility for his actions and inability to grasp the impact of his virtually uninterrupted pattern of violent criminal conduct, the 57-month sentence was substantively unreasonable. U.S. v. Friedman, 554 F.3d 1301 (10th Cir. 2009).
10th Circuit finds sentence reasonable despite alien’s non-criminal motive for reentry. (742) Defendant pled guilty to re-entry after deportation. He requested a sentence below his advisory range of 77-96 months, noting he had re-entered the country only to seek medications for his HIV condition. The court rejected the request and sentenced him to 96 months, based on his extensive criminal history. The Tenth Circuit held that defendant did not rebut the presumption of reasonableness for his guideline sentence. The district court thoughtfully considered the § 3553(a) factors and concluded that a sentence at the upper end of the guideline range was warranted in light of defendant’s extensive criminal history, which the court considered to be “off the charts.” The court noted that defendant had apparently been undeterred by a length sentence for a previous re-entry offense and that there had been victims in many of his previous crimes. Nothing about this decision was “arbitrary, capricious, whimsical, or manifestly unreasonable.” U.S. v. Navarrette-Medina, 554 F.3d 1312 (10th Cir. 2009).
10th Circuit says giving defense counsel only 30 seconds to speak did not make sentence unreasonable. (742) Defendant pled guilty without a plea agreement to illegal reentry by a deported alien. He argued that his 46-month sentence was procedurally unreasonable, because the district judge did not give his attorney adequate time to speak at the sentencing hearing. The judge told defendant’s attorney he had 30 seconds, during which time counsel summarized the arguments he had made in his sentencing memorandum. The Tenth Circuit found no plain error. Defendant presented a detailed sentencing memorandum, and his counsel was given 30 seconds to speak at sentencing. The judge asked defendant whether he would like to speak, and defendant declined. Neither defendant nor his counsel stated that they had additional arguments to make. Moreover, at oral argument, defense counsel did not identity a new argument that he would have made if given more time. The district court adequately explained the reasons for its sentence. A district court is not required to address explicitly all of a defendant’s arguments. U.S. v. Algarate-Valencia, 550 F.3d 1238 (10th Cir. 2008).
10th Circuit says co-conspirator’s shorter sentence did not rebut presumption of reasonableness for guideline sentences. (742) Five defendants, all family members or close family friends, were convicted of counts related to a large scale cocaine trafficking scheme. The sentences for all five defendants were within the guideline range, and therefore were entitled to a presumption of reasonableness on appeal. The Tenth Circuit ruled that the shorter sentence received by Carlos, a co-conspirator, did not rebut this presumption of reasonableness. A district court may consider sentencing disparities between co-defendants, but the purpose of the Guidelines is not to eliminate disparities among defendants, but rather to eliminate disparities among sentences nationwide. The disparity was explainable because Carlos pleaded guilty and cooperated with the government by testifying extensively at trial. U.S. v. Zapata, __ F.3d __ (10th Cir. Oct. 31, 2008) No. 06-1541, amending and superseding U.S. v. Zapata, 540 F.3d 1165 (10th Cir. 2008).
10th Circuit finds court understood guidelines were advisory despite stating that case was not outside heartland. (742) Defendant argued that his guideline sentence for illegal reentry by a deported alien was procedurally unreasonable because the court treated the Guidelines as mandatory, failed to adequately explain the basis for its decision, and incorrectly sought to impose a reasonable sentence, rather than one that was sufficient was not greater than necessary to effectuate the purposes of sentencing. The Tenth Circuit upheld the guideline sentence. The district court’s statement that the case did not fall outside the “heartland” of cases did not manifest a misunderstanding of the advisory nature of the Guidelines. Many of the same considerations are part of both the departure and variance analyses, and while the concepts are distinct, a court does not commit reversible error by consolidating the two discussions. The court considered the §3553(a) factors, although it did not cite the specific subsections of §3553(a), and properly exercised its discretion in sentencing. U.S. v. Martinez-Barragan, 545 F.3d 894 (10th Cir. 2008).
10th Circuit says consecutive sentence to reach guideline range was not unreasonable. (742) Defendant was convicted of conspiracy to kill a witness, attempting to kill a witness, and use of a firearm in conjunction with a crime of violence. She was sentenced to consecutive 20-year terms of imprisonment on each of the three counts. She argued that her sentence was presumptively unreasonable because the application of the enhancements far exceeded the potential punishment Congress intended for her offense. The Tenth Circuit found nothing presumptively unreasonable about imposing consecutive sentences to reach a sentence within the guideline range. Of course, if the guideline range exceeds the statutory maximum, the statute must prevail. However, if a defendant has been convicted of several offenses, it is “hardly unreasonable to stack the statutory sentences to reach a presumptively reasonable Guidelines sentence.” U.S. v. Ivory, 532 F.3d 1095 (10th Cir. 2008).
10th Circuit says defendant did not overcome presumption of reasonableness for guideline sentence. (742) Defendant claimed his guideline sentence was substantively unreasonable because he was similarly situated to his co-defendants, both of whom received below-Guidelines sentences. The Tenth circuit noted that the district court sentenced defendant within the guideline range, and thus his sentence was presumptively reasonable. The defendant failed to overcome the presumption of reasonableness because he could not show he was similarly situated to his co-defendants. His criminal history was more extensive than that of either co-defendant. Moreover, disparity among co-defendants is not a consideration required by § 3553(a). U.S. v. Rojas, 531 F.3d 1203 (10th Cir. 2008).
10th Circuit says court could not vary below mandatory minimum based on § 3553(a) factors. (742) Defendant was convicted of drug and firearm charges, each carrying a mandatory minimum 60-month sentence. The court granted the government’s § 3553(e) motion and sentenced defendant to 57 months on the drug count and a mandatory 60-month sentence on the firearm count. The Tenth Circuit rejected defendant’s argument that the court should have considered the § 3553(a) factors in determining whether to grant a downward variance after it granted the substantial assistance departure. As a matter of law, the district court was not authorized to consider factors other than substantial assistance in sentencing below the statutory minimum. Defendant also argued that the court should have considered the § 3553(a) factors before its departure analysis, and thus it could have granted a downward variance to the mandatory minimum based on the § 3553(a) factors, and then used that lower level as the baseline for the substantial assistance departure. The Tenth Circuit noted that this approach was “in significant tension with our caselaw,” which may require court to consider all available guideline departures before considering the § 3553(a). Moreover, the record demonstrated that the district court did consider the § 3553(a) factors before granting the substantial assistance departure. U.S. v. A.B., 529 F.3d 1275 (10th Cir. 2008).
10th Circuit holds variance from career offender sentence was not reasonable. (742) Believing the career offender enhancement overstated defendant’s criminal history, the district court sentenced him to a below-guidelines sentence of 140 months’ imprisonment. His guideline range with the career offender enhancement was 262-327 months. The Tenth Circuit held that the 140-month sentence was unreasonable. There was no problem with the manner in which the court set forth its reasoning for the sentence. The sentence was reasonable in a procedural sense. However, the sentence was not substantively reasonable. The fact that defendant’s crimes were non-violent and involved moderate quantities of drugs did not support the variance. The career offender provision required only two prior felony convictions of either a crime of violence or a controlled substances offense. There was no question that defendant was a recidivist drug dealer. In addition to the convictions noted in his criminal history, the PSR noted several arrests that did not result in a conviction. The fact that defendant’s last controlled substance offense was eight years earlier ignored the fact that he spent much of the intervening time in prison, or outside the country after he was deported. In short, defendant’s criminal history was not out of the ordinary for a career offender. U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007).
10th Circuit rejects large departure/variance based on uncharged conduct that was not related to current offense. (742) The FBI began to investigate defendant after an adult dancer reported defendant had discussed with her in detail his desire to kidnap, rape and kill young girls. The FBI investigated defendant for several months. Although there was some evidence that he had approached a young girl in Wal-Mart, and had been interrupted by the girl’s mother, the FBI was unable to find any additional evidence in this regard. Therefore, it shifted the focus of its investigation to defendant’s illegal drug activity. He pled guilty to a single count of possession of methamphetamine with intent to distribute. Although his guideline range was 120-135 months, the district court sentenced defendant to 360 months, finding that the advisory guideline range was “vastly inadequate.” The Tenth Circuit reversed. The horrific sexual abuse and murder that defendant either contemplated or took steps toward committing were not relevant conduct because they were completely unrelated to his sale of meth. The court could not have departed under the guidelines on the basis of these facts. When a § 5K2.0 departure is based on acts of misconduct not resulting in conviction, those acts must still relate meaningfully to the offense of conviction. Section 4A1.3(a)(2) also was unavailing, because the uncharged conduct was not similar adult criminal conduct. Finally, in an exercise of Booker discretion, a sentencing court may not discard the advisory guideline range and impose a sentence based on evidence of the defendant’s uncharged, unrelated misconduct, whether actually committed or contemplated for the future. U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007).
10th Circuit says fast-track disparity not “unwarranted.” (742) Defendant argued that a sentence within the guideline range would create an unwarranted sentencing disparity, since he would have been eligible for a four-level reduction in offense level if he had been convicted in a district where the fast-track program was available. The Tenth Circuit found this argument meritless. In U.S. v. Martinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006), the court made it clear that § 3553(a)(6) cannot be read to permit a court in a non-fast-track jurisdiction to consider what the guideline range would have been in a fast-track jurisdiction. Because the statute obviously contemplated that fast-track sentence would not be available in all districts, Congress itself created the fast-track disparity. U.S. v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007), overruled as to fast-track by Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007), as recognized by U.S. v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011).
10th Circuit finds at facts did not support large variance for collector who purchased illegal machineguns. (742) Defendant purchased firearms from an undercover agent posing as a widow selling her late husband’s gun collection. Two of the guns were illegal machineguns, and defendant knew that at least one of the weapons was an illegal machinegun. Although his guideline range was 27-33 months, the district court imposed a variance sentence of three years’ probation, citing (1) defendant was not involved in the ongoing conduct of buying, selling or possessing machineguns; (2) he had a record of long-term employment; and (3) he posed a low risk of danger to the public. The Tenth Circuit held that these factors were not sufficiently compelling to warrant such a large divergence from the guidelines. The reasons cited by the court did not distinguish him from the ordinary defendant upon which the guideline sentence is calculated. Defendant’s criminal history category already accounted for the court’s finding that he posed a low risk of danger to the public, and the fact that he was not engaged in ongoing criminal activity was already accounted for by the guidelines. (Under the guidelines, uncharged conduct may serve as a basis for an increase in the base offense level of a sentence, but the absence of such conduct is not grounds for a departure). The fact that defendant was gainfully employed and supported his family was not out of the ordinary. U.S. v. Hildreth, 485 F.3d 1120 (10th Cir. 2007).
11th Circuit upholds guideline sentence for child porn defendant. (742) Defendant was convicted of the distribution and possession of child pornography. The court sentenced defendant to 151 months in prison, the low end of his advisory guideline range. He challenged the court’s failure to vary downward, contending it treated the guideline’s range as presumptively reasonable, failed to properly consider his argument for a downward variance, and failed to adequately explain its sentence. The Eleventh Circuit found that all of these assertions were contradicted by the record. The record made clear that the district court read and considered all of defendant’s documents and arguments related to his specific characteristics and the circumstances of his offense conduct. The sentence, which fell at the bottom of his guideline range, was substantively reasonable. Defendant possessed hundreds of images and more than a dozen videos of child pornography that depicted infants, toddlers, pre-pubescent, and pre-teen girls and boys being molested, raped, and forced to participate in sadistic acts and bestiality. The district court found the images were “egregious,” and reasonably determined that a 151-month sentence was necessary to comply with the statutory sentencing factors. U.S. v. Cubero, __ F.3d __ (11th Cir. June 11, 2014) No. 12-16337.
11th Circuit says Sentencing Commission’s 2013 report did not make child porn guidelines invalid. (742) Defendant was convicted of the distribution and possession of child pornography. He was sentenced to 151 months, which fell at the bottom of his guideline range. After he was sentenced in November 2012, the Sentencing Commission released a report to Congress on the child pornography sentencing guidelines. The report concluded that the non-production guideline, § 2G2.2, warranted revision, particularly where the offender used peer-to-peer file sharing and the internet to receive and distribute pornography. Defendant argued that the report itself rendered his 151-month guideline sentence procedurally and substantively unreasonable. The Eleventh Circuit held that the Sentencing Commission’s 2013 report did not make non-production child porn guidelines in § 2G2.2 invalid or illegitimate. Rather, the Commission recommended that Congress enact legislation providing the Commission with express authority to amend § 2G2.2. The publication of the report did not change the statutory sentencing scheme, the applicable sentencing guidelines, or the binding precedent about § 2G2.2. U.S. v. Cubero, __ F.3d __ (11th Cir. June 11, 2014) No. 12-16337.
11th Circuit approves 1062-month sentence for multiple § 924(c) offenses. (742) Defendant was convicted of multiple counts arising from a string of armed robberies. He contended that his 1,062-month sentence was unreasonable because the nature of his offenses did not warrant such a severe sentence, and his co-conspirator, Kelly, received only 384 months. The Eleventh Circuit found no abuse of discretion. At sentencing, the district court observed that defendant failed to accept responsibility for his violent offenses, failed to show any remorse, and would likely be a recidivist if released from incarceration. The district court explicitly pointed to the nature and circumstances of the offenses, discussed the need to protect the public from defendant’s future criminal conduct, and referenced defendant’s personal characteristics. The district court also did not create an unwarranted sentencing disparity by sentencing defendant to a 1,062-month term while his co-conspirator received only a 384-month sentence. Defendant was not similarly situated to Kelly because Kelly pled guilty to only a few counts. Defendant went to trial and was convicted of nine counts, including numerous § 924(c) offenses that carried mandatory consecutive sentences of at least 25 years. U.S. v. King, __ F.3d __ (11th Cir. June 9, 2014) No. 12-16268.
11th Circuit approves life sentence for coercing vulnerable girls to work as prostitutes. (742) Defendant preyed on vulnerable girls, inducing them to come to his house, where he forced them to strip and to act as prostitutes for his house “parties.” He was convicted of child sex trafficking and related charges. He argued that his life sentence was substantively unreasonable, pointing to the 156-month sentence imposed on his common-law wife. He also claimed there was no evidence that he caused physical or emotional harm to his victims. The Eleventh Circuit upheld the life sentence. The guidelines recommended life imprisonment, and there was nothing in the record indicating that the district court did not consider the § 3553(a) factors or that it unreasonably balanced those factors. Defendant’s claim that there was no evidence that his teenage victims suffered physical or emotional harm was itself unreasonable. Sexual crimes against minors causes substantial and long-lasting harm. Defendant was not similarly situated to his wife, who pled guilty and cooperated with the government. Defendant was also the ringleader of the enterprise; his wife was not. U.S. v. Mozie, __ F.3d __ (11th Cir. May 22, 2014) No. 12-12538.
11th Circuit holds fraud sentence was not substantively unreasonable. (742) Defendant was convicted of securities fraud offenses based on his role in a “pump and dump” scheme, in which misrepresentations artificially boosted his company’s stock price and allowed insiders to sell inflated shares. He argued that his 192-month sentence, which was below his 210-262 month guideline range, was substantively unreasonable. He contended that the guidelines failed to take into account critical factors about the offense and the defendant, and the extent to which the offense was exacerbated by factors beyond the defendant’s control. He observed that the average sentence length for fraud offenses was 23.2 months, and the average variance was 52.9%. Finally, defendant identified cases in which defendants who committed similar crimes received much lower sentences. The Eleventh Circuit held that the sentence was substantively reasonable. The sentence was 18 months below the bottom of the guidelines range, 48 months below the government’s request, and 70 months below the top of the guidelines. There was no reason to find that the guidelines are substantively unreasonable for all economic fraud crimes involving large losses. U.S. v. Stanley, 739 F.3d 633 (11th Cir. 2014).
11th Circuit upholds refusal to depart or vary based on cultural assimilation. (742) Defendant pled guilty to unlawful reentry into the U.S. by an aggravated felon. He contended that the district judge erred in failing to depart downward based on his cultural assimilation under Note 8 to § 2L1.2. The Eleventh Circuit found no error. Defendant’s criminal history in the U.S. was “extremely lengthy.” Although he was brought to the country when he was seven, after he turned 17, he was arrested and/or convicted of crimes every year after that, including ten convictions for driving without a license or driving on a suspended license, battery, and false reporting of a crime. Following his return after deportation, defendant continued to engage in his former vehicular offenses, some of which involved in the safety of others. The judge noted that defendant had a hard time “complying with some of the simplest rules.” The judge did not abuse its discretion in declining to accord defendant a departure or variance based on cultural assimilation. U.S. v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013).
11th Circuit rejects downward variances for corrections officers who abused prisoners. (742) Defendants, corrections officers at a Florida state prison, were convicted of abusing and assaulting prisoners. Another officer, Griffin, pled guilty to misdemeanor charges carrying a maximum term of one year. The district court stated that it was troubled by the disparity between the sentences faced by defendants and Griffin. Thus, the court sentenced the first defendant to 12 months, and second defendant to only one month. The Eleventh Circuit ruled that the sentences were substantively unreasonable because they failed to “reflect the seriousness of the offense, and failed to promote respect for the law, and to provide just punishment for the offense.” The sentences were far below the advisory guideline ranges. A major variance requires a more significant justification than a minor one, and the court’s only justification was that Griffin was getting a lower sentence. This alone could not account for dramatic variances of over 90 percent for both defendants. U.S. v. McQueen, 727 F.3d 1144 (11th Cir. 2013).
11th Circuit affirms 121-month sentence for bank robbery and brandishing firearm. (742) Defendant robbed a bank, holding an assault rifle’s clip in his jacket pocket to fool bank employees into believing he was armed. Defendant fled in a car driven by a friend. Police gave chase, and defendant brandished an assault rifle from the rear window of the car, pointing it at pursuing officers. He pled guilty to bank robbery and brandishing a firearm in furtherance of a crime of violence. He was sentenced to 37 months for the bank robbery, followed by a mandatory minimum seven years for the firearm charge, for a total of 121 months. The Eleventh Circuit rejected defendant’s claim that the sentence was unreasonable. The 121-month sentence was within the guideline range, and was supported by the § 3553(a) factors, which the district court discussed at length. U.S. v. Victor, 719 F.3d 1288 (11th Cir. 2013).
11th Circuit allows court to consider defendant’s murder of wife in determining firearm sentence. (742) Defendant was convicted of being a felon in possession of a firearm. The court varied upward to 420 months, finding that defendant had killed his wife. Defendant argued that the district court improperly sentenced him as if he had been convicted for the death of his wife, and that his wife’s disappearance was unrelated to his firearm offense. The Eleventh Circuit upheld the sentence. Numerous pieces of circumstantial evidence led to the court’s finding that defendant killed his wife. Even if the murder was not directly related to the firearm possession, it was germane to several § 3553(a) factors, including the history and characteristics of the defendant. The court did not place undue weight on the murder. The fact that defendant murdered his wife and stole her belongings to escape parole not only cast a very negative light on his character, but also demonstrated the need for a lengthy sentence to protect the public. U.S. v. Overstreet, 713 F.3d 627 (11th Cir. 2013).
11th Circuit upholds 30-year sentence for physician who operated “pill mill.” (742) Defendant, a physician, was convicted of drug charges in connection with his operation of a “pill mill” that provided controlled substances to drug abusers and drug pushers without a legitimate medical purpose. His guideline range was 30 years to life, and the court sentenced him to 30 years. The Eleventh Circuit held that the 30-year sentence was reasonable. The sentence was at the bottom of defendant’s guideline range. The jury convicted defendant of 46 counts of violating or conspiring to violate the Controlled Substances Act, including one count of unlawfully dispensing or distributing controlled substances and causing death or serious bodily injury. Both the statutory penalty and the guideline range permitted the district court to impose a much more severe sentence of imprisonment. U.S. v. Joseph, 709 F.3d 1082 (11th Cir. 2013).
11th Circuit rejects claim of sentencing factor manipulation. (742) Defendant was arrested in a reverse-sting operation, and was convicted of drug and firearms charges. He contended that his 438-month sentence was substantively unreasonable because the government improperly pressured him to buy more drugs than he originally intended to purchase, and to pay for the drugs with guns. The Eleventh Circuit rejected the sentencing factor manipulation claim. Although the circuit has recognized sentencing factor manipulation, it has never applied it. Here, even though government agents initiated the conversation about the guns, it was defendants who agreed to supply and who brought the guns to the transaction. And, although agents offered to supply defendant with cocaine in addition to marijuana, defendant did not reject the offer or express any discomfort with the idea. The panel therefore declined to overturn the district court’s decision regarding defendant’s claim of sentencing factor manipulation. The sentence, which was the lowest within-guideline sentence defendant could have received, was not unreasonable. U.S. v. Haile, 685 F.3d 1211 (11th Cir. 2012).
11th Circuit upholds 320-month sentences for child porn offenses. (742) Defendant was convicted of producing child pornography and of attempting to entice a child to engage in unlawful sexual activity. He was sentenced to concurrent terms of 320 months in prison, which fell within his advisory range of 292-365 months. The Eleventh Circuit held that the sentence was reasonable. The court properly considered defendant’s failure to disclose his HIV-positive status to the minors. The sentencing court did consider defendant’s “history of having done many good things,” and that defendant’s conduct was not the “most extreme” the district court had seen. However, a lack of a downward variance alone did not demonstrate that the district court failed to consider these factors. Defendant failed to demonstrate that his within-guidelines sentence was a clear error of judgment. The court carefully balanced defendant’s “heinous crimes” against defendant’s lack of criminal history and admirable work as a paramedic and a doctor. His concurrent terms of 320 months’ imprisonment did not fall outside the range of reasonable sentences. U.S. v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012).
11th Circuit upholds reasonableness of sentence despite lack of fast-track sentencing program. (742) Defendant was convicted of illegal reentry after deportation. He argued that his 37-month sentence was unreasonable because the district court failed to grant him a variance based on sentencing disparities caused by the district’s lack of a fast-track program. The Eleventh Circuit rejected this argument. Previous circuit cases have rejected arguments based on sentencing disparities created by fast-track programs. See U.S. v. Vega–Castillo, 540 F.3d 1235 (11th Cir. 2008). Moreover, even if the court were to reconsider its prior precedent, defendant would not qualify for the fast-track program. At the time of defendant’s sentencing, the Attorney General’s guidance on fast-track programs provided that they were not available for any case involving an offense designated as a crime of violence. In addition, the defendant was required to enter into a written plea agreement that included certain provisions. Because defendant had a prior conviction for a crime of violence, and because he did not enter into a written plea agreement, defendant did not meet the Attorney General’s requirements for a fast-track program. U.S. v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012).
11th Circuit affirms life sentences for child exploitation enterprise as reasonable. (742) Defendants participated in an international child pornography ring, and were convicted of engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g), and related child pornography charges. The Eleventh Circuit rejected their argument that their life sentences were substantively unreasonable. During sentencing, the judge repeatedly recognized the extent, severity, and nature of defendants’ involvement in child pornography. Indeed, on more than one occasion he observed that the instant case was the most egregious he had seen. The harm to the victims of child pornography cannot be overstated. Defendants’ sentences did not create an unwarranted sentencing disparity. The life sentences fell within their advisory guideline range. U.S. v. McGarity, 669 F.3d 1218 (11th Cir. 2012).
11th Circuit rejects downward variance for terrorists. (742) Defendant was convicted of offenses relating to his support for Islamist violence overseas. His initial guideline range was 360 months to life, but the court varied downward to 208 months. The Eleventh Circuit reversed the sentence as substantively unreasonable. First, the sentence did not properly reflect defendant’s criminal history. Defendant qualified as a career offender, but his sentence was 12 years below the low end of the Guidelines range. His co-conspirator, who had no criminal history, received a sentence that was only 20 months less than defendant’s. The court also improperly found that defendant had a low risk of recidivism because of his age upon release. Although recidivism normally decreases with age, this is not true for terrorists. Defendant posed a heightened risk of future dangerousness due to his al-Qaeda training. The court unfairly compared defendant to other defendants convicted of less serious crimes. The court also erred in considering that defendant did not personally harm anyone and his crimes did not target the United States. Finally, although a court may reduce a sentence to account for harsh conditions of pretrial confinement, the court abused its discretion when it varied downward by 40 percent, a period more than three and one half times his period of pretrial confinement. U.S. v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011).
11th Circuit holds that guideline sentence was reasonable in light of aggravating factors. (742) Defendant argued that his 127-month sentence, which was near the low end of his Guidelines range of 121-151 months, was substantively unreasonable because it was greater than necessary to comply with the goals of sentencing. The district court denied defendant’s request for a below-guidelines sentence after noting the presence of several aggravating factors, including the magnitude of the fraud scheme, the costs borne by the government, the victim lenders, and the tax payers, and defendant’s lack of remorse as well as his sophisticated background in the mortgage industry. Despite these factors calling for a higher sentence, the court sentenced defendant to just six months above the bottom of his guidelines range. It justified that leniency on the ground that defendant had joined in some stipulations that helped move things along at trial. Given this, the Eleventh Circuit found it “bordered on the frivolous” to argue that defendant’s sentence was unreasonable. U.S. v. Hill, 643 F.3d 807 (11th Cir. 2011).
11th Circuit upholds guideline sentence for mastermind of massive fraud scheme. (742) Defendant argued that his guideline sentence was unreasonable because it varied greatly from the sentences of his co-defendants and the sentences of other high-profile fraud defendants nationwide. The Eleventh Circuit found no error. First, the co-defendants who received much more lenient sentences were not leaders in the conspiracy—he was the leader and kingpin who orchestrated the whole thing. As for others convicted in high profile fraud cases nationwide, the panel “was not convinced that a sentence imposed in this circuit is subject to a national grade curve.” Since the judge correctly calculated and carefully reviewed defendant’s guidelines range, the judge necessarily gave significant weight and consideration to the need to avoid unwarranted sentencing disparities. Defendant put in place and ran a massive conspiracy involving $110 million in fraudulent loans, almost all of which went into default, causing more than $38 million in direct losses to lenders. The people defendant used in his scheme suffered greatly, and the economic pain he inflicted to satisfy his own greed was felt by countless homeowners. His 336-month sentence was not substantively unreasonable. U.S. v. Hill, 643 F.3d 807 (11th Cir. 2011).
11th Circuit rules defendant’s sentence was reasonable even though others were not prosecuted. (742) Defendant recruited straw buyers for a massive real estate fraud scheme. She argued that her 87-month sentence, which was at the bottom of her 87-110 month Guidelines range, was substantively unreasonable because the straw buyers she recruited were equally or more blameworthy than she, but were not prosecuted. The Eleventh Circuit noted that the government’s decision to prosecute defendant but none of those who were merely straw buyers did not render defendant’s sentence unreasonable. Whether the straw buyers were victims or uncharged co-conspirators was irrelevant to the reasonableness of defendant’s sentence. U.S. v. Hill, 643 F.3d 807 (11th Cir. 2011).
11th Circuit affirms maximum sentence in child porn case. (742) Defendant sexually abused his stepdaughter from the time she was 11 until she was 27, and recorded 245 episodes of abuse on video. He was convicted of producing and possessing child pornography, and was sentenced to 30 years. This was the statutory maximum sentence available for both offenses, running the sentences consecutively. The Eleventh Circuit held that the district court did not abuse its discretion by imposing the statutory maximum sentences. Defendant’s offense level was 43, an offense level for which the Guidelines recommend a life sentence. The record made clear that the district court considered all the § 3553(a) factors and set forth a reasoned basis for its weight of the factors. Defendant’s argument – that his sentence was unreasonable in comparison with those of similar offenders – was disposed of by U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc). It was clear from the district court’s remarks at sentencing, and the sentence imposed, that it found that defendant’s conduct fell within the heartland of the Guidelines’ child porn cases, or was even more egregious in light of the torture involved. U.S. v. Dean, 635 F.3d 1200 (11th Cir. 2011).
11th Circuit upholds Guidelines sentences for child porn defendants. (742) Defendants were convicted of multiple child pornography offenses. They were both sentenced within their respective Guidelines ranges. Defendant Wayerski was sentenced at the top of his range to 365 months in prison, and defendant Roy was sentenced to 360 months, the bottom of his range. The Eleventh Circuit upheld both Guidelines sentences as reasonable. Although Wayerski presented the opinion of a psychiatrist who concluded that defendant’s risk of re-offending after his release from prison was low, the district court found other evidence showed that Wayerski was a danger to the community. This evidence included surreptitious videotapes of neighborhood children that defendant filmed while making sexually explicit comments, and on-line diaries defendant posted about an eight-year old girl who lived next door to him. As for defendant Roy, he failed to show how the totality of the circumstances or the § 3553 factors rendered his sentence unreasonable. U.S. v. Watkins, 625 F.3d 277 (6th Cir. 2010).
11th Circuit, en banc, rejects downward variance for pedophile who sexually abused 50 or more little girls. (742) Defendant pled guilty to using and coercing minors to engage in sexually explicit conduct outside the United States, and received a below-guidelines sentence of 210 months. The Eleventh Circuit originally affirmed the sentence, but on rehearing en banc, it held that the downward variance from the advisory guideline range was not reasonable. The sentence was substantively unreasonable primarily, but not solely, because of the nature and extent of defendant’s criminal conduct. Defendant’s case was extreme—he raped, sodomized, and sexually tortured 50 or more little girls, some as young as four years old, over a four or five-year period. He also produced and distributed worldwide “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” The district court implicitly found that child pornography on the internet caused defendant to sexually abuse children. However, that was not the case—defendant himself stated in a letter to the court that he did not start viewing child pornography until after he had begun having sex with little girls in Cambodia. The court’s view of defendant as a victim permeated its reasoning and tainted its weighing of the § 3553(a) factors. Judge Tjoflat concurred, but dissented from the court’s judgment that the district court must resentence defendant to 30 years’ imprisonment. Judges Edmondson, Birch, Barkett and Martin dissented. U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc).
11th Circuit upholds 2005-month sentence for multiple § 924 convictions. (742) Defendant was sentenced to 2005 months in prison for 15 counts of armed bank robbery, 18 U.S.C. § 2113(a)(d), carrying a firearm in relation to a crime of violence, § 924, and being a felon in possession of a firearm. § 922(g)(1). Defendant argued that a sentence for multiple violations of § 924 is capped at 25 years of imprisonment. The Eleventh Circuit noted that it rejected this argument in its recent decision in U.S. v. Tate, 586 F.3d 936 (11th Cir. 2009). Section 924 requires minimum consecutive sentences of 25 years for all subsequent convictions under the statute. The 2005-month sentence was not substantively unreasonable. The statutory minimum sentences, as provided in § 924, had to be applied even though the Sentencing Guidelines were only advisory. Defendant was a repeat offender recently released from prison when he committed the seven armed bank robberies. There was nothing in the record or the § 3553(a) factors that militated against a within-guidelines sentence. U.S. v. Phaknikone, 605 F.3d 1099 (11th Cir. 2010).
11th Circuit approves above-guideline sentence based on acquitted conduct of using stun gun on child. (742) Defendant was convicted of five counts of production of child pornography. His guideline range was 151-188 month, but the statutory minimum on each count was 180 months. The district court sentenced him to the statutory maximum of 360 months on each count, with two sets of the sentences running consecutively, for a total sentence of 720 months. He argued that the sentence violated the spirit of U.S. v. Booker, 543 U.S. 220 (2005), because the district court considered allegations that defendant drugged and shocked his stepdaughter. This conduct was not charged in the indictment, and he was acquitted by a state jury of the conduct. The Eleventh Circuit found no error. A sentencing court may consider acquitted conduct if the government proves the conduct in question by a preponderance of the evidence. Booker merely requires that consideration of acquitted conduct does not result “in a sentence that exceeds what is authorized by the jury verdict.” The district court properly considered evidence that defendant drugged and shocked his stepdaughter, and the sentence imposed did not exceed the sentence authorized by the jury verdict. U.S. v. Culver, 598 F.3d 740 (11th Cir. 2010).
11th Circuit holds that defendant failed to show why greater downward variance was required. (742) Defendant, an Alabama public official, was convicted of fraud, theft and money laundering charges based on his role in a massive case of public corruption. He challenged the reasonableness of his 125-month sentence, arguing that it was greater than necessary to achieve the objectives of sentencing, because of his age and poor health. The Eleventh Circuit upheld the sentence as substantively reasonable. First, the district court considered defendant’s age and health, and gave defendant a downward variance, stating that his sentence would have been significantly longer but for those factors. Essentially, defendant was asking the appellate court to review these relevant factors. Appellate courts do not reweigh relevant factors nor do they remand for resentencing unless the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence outside the range of reasonable sentences. Defendant failed to show why his age and health justified a downward variance greater than 43 months, or how his below-range sentence was unreasonable. U.S. v. Langston, 590 F.3d 1226 (11th Cir. 2009).
11th Circuit reverses probation for high-ranking officer in massive accounting fraud. (742) Defendant, a high-ranking corporate officer at HealthSouth Corporation, was involved in a massive accounting fraud conspiracy that artificially inflated Health South’s earnings and falsely reported the corporation’s financial condition. The Guidelines recommended a sentencing range of 78-97 months, but based on defendant’s cooperation, the district court sentenced defendant to 60 months probation. After multiple appeals and re-sentencings, a new judge re-imposed a term of 60 months’ probation. The Eleventh Circuit held that the sentence was patently unreasonable in light of defendant’s role in the massive corporate fraud. A sentence of probation for a high-ranking officer in a corporation where over a billion dollars of fraud was perpetrated on an unsuspecting work force and investing public is not reasonable, given the criteria in 18 U.S.C. § 3553(a). A sentence devoid of any meaningful period of incarceration does not reflect the seriousness of the offense, promote respect of the law, or provide just punishment for the offense. Moreover, probation alone does not provide adequate deterrence. U.S. v. Livesay, 587 F.3d 1274 (11th Cir. 2009).
11th Circuit finds 946-month sentence to be reasonable for bank robbery and use of gun. (742) Defendant was convicted of four counts of armed bank robbery (18 U.S.C. § 2113(a) & (d)), one count of bank robbery (18 U.S.C. § 2113(a)), and three counts of using a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)). Defendants’ convictions for using a firearm during and relation to a crime of violence carried a total mandatory minimum sentence of 684 months. The district court found that defendant qualified as a career offender under § 4B1.1, and it calculated defendant’s sentencing range on the bank robbery counts as 262 to 327 months. After stating that it had considered defendant’s arguments and the factors set forth in 18 U.S.C. § 3553(a), the district court imposed a sentence of 262 months on the bank robbery counts and 684 months on the § 924(c) violations, for a total sentence of 946 months. On appeal, defendant argued that it was unreasonable to sentence him above 684 months. The Eleventh Circuit found that the sentence was not unreasonable in light of defendant’s lengthy criminal history and the armed robberies that he committed. U.S. v. Tate, 586 F.3d 936 (11th Cir. 2009).
11th Circuit upholds life sentence that fell within guideline range. (742) Defendant was convicted of cocaine and methamphetamine charges. The Eleventh Circuit held that his life sentence, which fell within his properly calculated guideline range, was substantively reasonable. His entire challenge to the sentence was based on the fact that he was only 36, the father of three children, had no significant criminal record, and supported his elderly parents. That was not enough to disturb the sentencing discretion of the sentencing court where a life sentence was within the statutory maximum, was advised by the Guidelines, and was supported in the reasonable view of the district court by the § 3553(a) sentencing factors. U.S. v. Chavez, 584 F.3d 1354 (11th Cir. 2009).
11th Circuit upholds 1200-month sentence for child abuse offenses. (742) Defendant was convicted of persuading his minor step-daughter to engage in sexually explicit conduct for the purpose of producing photos of such conduct and for knowingly possessing child pornography. With an offense level of 43, defendant’s advisory guidelines range was life imprisonment. However, the statutory maximum imprisonment was 30 years for three counts under 18 U.S.C. § 2251(e), and 10 years for one count under 18 U.S.C. § 2252(b)(2). Following § 5G1.2(d), the district court imposed three 30-year sentences and one 10-year sentence, each to run consecutively, for a total sentence of 100 years or 1200 months. The Eleventh Circuit upheld the sentence as reasonable. The district court stated that it had reviewed the PSR, the parties’ submissions, and the § 3553(a) factors. The court expounded on several of the § 3553(a) factors, including the despicable offenses defendant committed, the fact that the victim would never fully recover, and defendant’s lack of remorse. Child sex crimes are the most egregious and despicable of societal and criminal offenses, and courts have upheld lengthy sentences in these cases as substantively reasonable. U.S. v. Sarras, 575 F.3d 1191 (11th Cir. 2009).
11th Circuit denies variance for diminished capacity. (742) In the wake of Hurricane Katrina, defendant filed 17 fraudulent applications for aid from FEMA. Defendant argued that she deserved a downward variance based on her diminished capacity, which she said prevented her from accepting guidance from her lawyers. See 18 U.S.C. § 3553(A)(1). The Eleventh Circuit held the court was reasonable in denying defendant’s motion and in imposing a guideline sentence. Defendant’s assertion of diminished capacity was contrary to a 45-day forensic evaluation conducted at defendant’s request. The report concluded that defendant was likely malingering and that she was possibly “motivated by external incentives such as … evading criminal prosecution.” Her trial counsel acknowledged that defendant was “entirely capable of rendering valuable assistance” in formulating her defense. U.S. v. Willis, 560 F.3d 1246 (11th Cir. 2009).
11th Circuit upholds crime of violence increase even though offense was not an aggravated felony. (742) Defendant pled guilty to illegally re-entering the U.S. after deportation. His sentence was increased by 16 levels under § 2L1.2(b)(1)(A)(ii) when the district court found that his prior 1985 bank robbery was a “crime of violence.” Effective November 2008, the Sentencing Commission amended the commentary to authorize a downward departure where a defendant receives an enhancement for a crime of violence that does not meet the definition of an aggravated felony. Defendant’s conviction was not an “aggravated felony” because her term of imprisonment was less than one year. See 8 U.S.C. § 1101(a)(43). The Eleventh Circuit rejected defendant’s claim that the 16-level enhancement only applies to crimes of violence that also qualify as aggravated felonies. The amended commentary uses permissive, rather than mandatory language—a downward departure may be warranted if the prior conviction does not meet the definition of “aggravated felony.” U.S. v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008).
11th Circuit holds that sentence disparity not grounds for below mandatory minimum sentence. (742) Defendant was convicted of drug conspiracy charges carrying a 120-month mandatory minimum sentence. See 18 U.S.C. § 841(b)(91)(A)(i). The district court nonetheless imposed an 80-month sentence to avoid a disparity between defendant’s sentence and those of his co-conspirators who had received sentences below 90 months. The government appealed, and the Eleventh Circuit reversed. The government did not file a substantial assistance motion, and defendant did not qualify for safety valve relief. Section 3553(a) does not authorize a district court to impose a sentence below the statutory mandatory minimum. It merely lists the factors the district court must consider in determining an appropriate sentence, one of which is the need to avoid unwarranted sentencing disparities. Section 3553(a) makes no mention of mandatory minimum sentences, much less purports to give the district court the authority to impose a sentence below the applicable statutory minimum sentence. Courts remain bound by statutes designating mandatory minimum sentences even after the remedial holding of Booker. Although the court’s concern for the disparity between defendant’s sentence and that of his co-conspirators was an appropriate factor to consider in determining where defendant’s sentence should fall between the applicable statutory minimum and maximum sentences, it did not provide a legal basis for imposing a sentence below he statutory minimum sentence. U.S. v. Castaing-Sosa, 530 F.3d 1358 (11th Cir. 2008).
11th Circuit holds prison sentence for false entry in police report was not unreasonable. (742) Defendant was convicted under 18 U.S.C. § 1519 of knowingly making a false entry into a police incident report with the intent to impede or influence an FBI investigation. The district court calculated his guideline range at 15-21 months, departed downward due to aberrant behavior to reach a new range of 10-16 months, and then sentenced defendant to five months’ imprisonment followed by five months’ home confinement. Defendant argued that under his circumstances, the only reasonable sentence was probation with no incarceration. The Eleventh Circuit held that defendant’s 10-month sentence was not an abuse of discretion. The district court found some prison time would be necessary in order to reflect the seriousness of the offense and provide deterrence to keep other officers from writing false reports. The panel rejected defendant’s argument that any jail time was per se unreasonable. U.S. v. Hunt, 526 F.3d 739 (11th Cir. 2008).
11th Circuit rejects probation where court gave no reasons to justify significant variance. (742) Defendant, a former officer of HealthSouth Corporation who played a major role in a fraud scheme, was originally sentenced to 60 months’ probation, with the first six months to be served as home detention. On appeal, the Eleventh Circuit found that the district court committed Gall procedural error, and vacated and remanded for resentencing. First, the district court improperly based the extent of its § 5K1.1 departure on a factor not related to defendant’s cooperation. The district court considered the fact that defendant “repudiated” the conspiracy at an early time, although his actions were not sufficient to meet the legal standards for withdrawing from a conspiracy. Also, the sentence could not be supported as a Booker variance because the court failed to explain its variance from the Guidelines range (78-97 months in prison) to its sentence of 60 months’ probation. Although the court listed certain § 3553(a) factors, it did not indicate what facts justified such a significant variance. The court recited the sentences of 12 others convicted in the fraud, but gave no description of their criminal conduct, nor an explanation of how defendant’s conduct was similar to co-conspirators who received probation. U.S. v. Livesay, 525 F.3d 1081 (11th Cir. 2008).
11th Circuit reverses probation for possessing child pornography as unreasonable. (742) Defendant possessed 68 images and two videos of child pornography. The Guidelines sentencing range was 97-120 months, but the district court imposed a five-year probationary term. Defendant was allegedly not a pedophile. Instead, he entered into chat rooms on the Internet pretending to be an under-aged female, and people emailed him child pornography images. Defendant would then send the images to other users under the pretense that he was the subject of the pictures. Defendant claimed he never sought child pornography, that he did not want the pictures that they did not arouse him, and that only wanted to talk. The Eleventh Circuit ruled that the probationary sentence was unreasonable. Even after Gall a district court’s sentencing discretion is not unfettered. A district court is obliged to consider all of the § 3553(a) factors. Defendant downloaded and forwarded child pornography consciously, intentionally, deliberately, and voluntarily, regardless of whether the receipt of child pornography was his end goal or only a means by which to encourage others to “chat” with him. Here, the district court performed a narrow analysis that minimized, and in some instances ignored, many of the § 3553(a) concerns. The panel was unable to find a single case involving child pornography in which any court has upheld a non-custodial sentence like this. U.S. v. Pugh, 515 F.3d 1179 (11th Cir. 2008).
D.C. Circuit finds no requirement to consider disparity between federal and D.C. guidelines. (742) Defendant was convicted in the D.C. District Court of various drug counts, and the court sentenced him within his 63-78 month guideline range. Defendant challenged on appeal the district court’s refusal to grant him a downward variance based upon the disparity between defendants tried in federal district court and sentenced under the U.S. Sentencing Guidelines, and those tried in the Superior Court of the District of Columbia and sentenced under the District’s own guidelines. He maintained that his sentence under the latter would have been lower, and that a variance was therefore justified. The district court found that the provision upon which defendant based his request, §3553(a)(6), addressed unwarranted disparities only at the federal level, rather than disparities between federal and state sentences. The D.C. Circuit found no error. Under U.S. v. Washington, 670 F.3d 1321 (2012), sentence disparities between the U.S. and D.C. guidelines are insufficient to support a variance under §3553(a)(6). Although nothing precluded consideration of the D.C. guidelines in the exercise of the district court’s exercise of discretion, the district court here clearly understood that the U.S. Guidelines were advisory only. U.S. v. Williams, __ F.3d __ (D.C. Cir. Dec. 2, 2014) No. 13-3034.
D.C. Circuit upholds refusal to grant variance based on disparity between U.S. and D.C. Guidelines. (742)Defendant arrested for being a felon in possession of a firearm, which was a violation of both D.C. Code § 22–4503(a)(1) (2001), and 18 U.S.C. § 922(g)(1). The U.S. Attorney for the District of Columbia prosecuted defendant in federal court. He pled guilty and was sentenced to 57 months, the bottom of the federal guidelines range. The D.C. Circuit upheld the sentence as reasonable, rejecting defendant’s argument that the court failed to consider the disparity caused by the U.S. Attorney’s “arbitrary” decision to prosecute him in federal court. The district court acknowledged its discretion under the federal guidelines to begin with the U.S. guidelines and end with the D.C. guidelines. However, under U.S. v. Clark, 8 F. 3d 839 (D.C. Cir. 1993), the disparities between the U.S. and D.C. guidelines do not warrant a downward departure under 18 U.S.C. § 3553(a)(6). The district court did not “blindly defer” to the U.S. Attorney’s decision to prosecute defendant in federal court, but found no abuse or unfairness in the decision. On appeal, defendant offered nothing to overcome this. U.S. v. Washington, 670 F. 3d 1321 (D.C. Cir. 2012).
D.C. Circuit says court provided adequate statement of reasons for sentence. (742) The district court sentenced defendant to 60 months’ imprisonment: 36 months for possession of stolen mail and 24 months, consecutive, for aggravated identity theft. The D.C. Circuit rejected defendant’s argument that the court failed to adequately consider two mitigating arguments she advanced. A court is not required to explicitly address each argument. As long as the judge provides a “reasoned basis” for its sentence, an appellate court will generally presume that the arguments were adequately considered. Here, defendant proffered nothing to rebut that presumption. The court provided a well-reasoned basis for its decision, and concluded that a “substantial period of incarceration” was warranted in light of the seriousness of the offense, the significant role played by defendant, and its doubts about her remorse. U.S. v. Locke, 664 F.3d 353 (D.C. Cir. 2011).
D.C. Circuit upholds sentence 12 months below career offender range. (742) Defendant qualified as a career offender based on two prior felony convictions. He contended that the prior convictions (1991 sales to undercover officers of cocaine base worth $50 and PCP-laced marijuana worth $25) involved too small a quantity of drugs and were too remote in time to justify sentencing him as a career offender. The district court granted a Booker variance of 12 months below the career offender guideline sentencing range. The D.C. Circuit upheld the sentence as reasonable. The district court rejected defendant’s argument that his criminal history was overstated, explaining that although his felony convictions were over a decade old at the time of his initial sentencing in 2005, distributing drugs was a serious offense no matter the amount of drugs involved and that his criminal activity continued throughout the 1990s, and he continued to have behavior and alcohol abuse problems. The district court acted within its discretion in evaluating the seriousness of his prior drug offenses. U.S. v. Lawrence, 662 F.3d 551 (D.C. Cir. 2011).
D.C. Circuit reverses for failure to adequately explain reason for above-guidelines sentence. (742) Defendant, a primary care physician who served Medicaid patients, was convicted of health care fraud and making false statements regarding heath care matters. His advisory guideline range was 33-41 months, but the district court sentenced him to 53 months, an upward variance of 12 months. The court explained that health care fraud contributes to the rising cost of health care in the country, that a sentence above the Guidelines would promote respect for the law, and 12 months above the guidelines was reasonable. The D.C. Circuit ruled that the district court committed plain error by failing to adequately explain its reasons for imposing the upward variance. Although the court did recite sentencing factors that informed its decision making, it did not explain why those particular factors justified this particular sentence. The court’s broad observations about the social costs of health care fraud were certainly related to sentencing, but they would apply to any defendant convicted of this offense and did not explain this individual sentence. The court’s brief mention of two other § 3553(a) factors shed no additional light on the sentence. U.S. v. Akhigbe, 642 F.3d 1078 (D.C. Cir. 2011).
D.C. Circuit says any error in applying presumption of reasonableness was not plain. (742) Defendant argued for the first time on appeal that the district court erred by applying a presumption of reasonableness to its within-Guidelines sentence. The court noted that defendant’s sentence, which fell at the bottom of his Guideline range, was “hefty,” but that there was “nothing in your life that the court can point to … to consider not giving you what the sentencing guidelines require.” The D.C. Circuit held even if the court applied an erroneous presumption that a sentence within the guidelines range was reasonable, the error was not plain. Where, as here, the law was unsettled at the time of trial but becomes settled by the time of appeal, the appellate court assesses error at the time of trial. When defendant was sentenced, it was unclear whether district courts could use the presumption of reasonableness applied by appellate courts to within-guidelines sentences. Thus, any error in using such a presumption was not plain. At resentencing (on other grounds), the court will be bound by Rita and may not apply a presumption of correctness to a within-guidelines sentence. U.S. v. Anderson, 632 F.3d 1264 (D.C. Cir. 2011).
D.C. Circuit finds no error despite mistake about crack-to-powder ratio. (742) Defendant argued that the district court erred by mistakenly believing that the 2007 amendment to the crack guideline had reduced the crack-to-powder disparity from 100-1 to a disparity “in the neighborhood” of 20-1, when the amendment actually brought the disparity to 70-1. The D.C. Circuit found no indication that the court’s sentence was motivated by an error of law. The court’s motivation for imposing a within-Guidelines sentence of 100 months was based on defendant’s escalating criminal conduct within a brief period of time. When defense counsel asked for a mandatory minimum sentence of 60 months, the court discussed the “progress” that defendant had demonstrated in the seriousness of his crimes, which the court termed “alarming” and made it difficult to sentence him to just a mandatory minimum. U.S. v. Tate, 630 F.3d 194 (D.C. Cir. 2011).
D.C. Circuit says sentencing disparity was explained by three-level acceptance reduction. (742) Defendant argued that his 208-month sentence resulted in an unwarranted disparity between himself and co-defendant Bran, in contravention of 18 U.S.C. § 3553(a)(6). Bran, who the court found had played a leadership role in the drug conspiracy, received only 144 months, a sentence more than five years shorter than defendant’s sentence. However, Morales, a third co-defendant who played a role closer to defendant’s than Bran’s, was sentenced to 220 months, one year longer than defendant. The D.C. Circuit concluded that there was no error in the disparity between defendant and Bran, which disparity was entirely explained by Bran’s three-level acceptance of responsibility reduction for his having pleaded guilty after his jury hung, which lowered his Guidelines range to 168-210 months. U.S. v. Mejia, 597 F.3d 1329 (D.C. Cir. 2010).
D.C. Circuit reverses longer prison sentence intended to promote rehabilitation. (742) At defendant’s sentencing, the district court noted his long history of drug use, and found that he could benefit from some of the treatment programs available in the federal prison system. The D.C. Circuit held that sentencing courts may not treat rehabilitation as a reason for a longer term of imprisonment. Under 18 U.S.C. § 3582, a court shall consider the factors set forth in § 3553(a), “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” This straightforward language leaves no room for the government’s distinction between selecting prison rather than a non-prison sentence and imposing a longer term of imprisonment. Here, the court stated that defendant would benefit from prison rehabilitation programs over a “somewhat longer period of time,” indicating that it believed rehabilitation was a reason to lengthen a term of imprisonment. Given the plain statutory language, the court’s error was plain, even though there is a circuit split on this issue. In re Sealed Case, 573 F.3d 844 (D.C. Cir. 2009).
D.C. Circuit says money-transferring offense level does not depend on loss. (742) Defendant was convicted of operating a money-transmitting business without a license, in violation of 18 U.S.C. §1960. Section 2S1.3(a)(2) provides for an enhancement “corresponding to the value of the funds.” These additional levels are determined using the table in §2B1.1, with increased levels depending upon the loss incurred. Defendant argued that his 31-month sentence was not reasonable, that there was no loss, and the value of the funds he transferred had no relationship to the individual nature and circumstances of his crime. The D.C. Circuit upheld the sentence as reasonable. The sentencing scheme established by §2S1.3(a)(2) does not require proof that the monies involved in the offense were themselves the product of illegal activity, were being transmitted for illegal means, or could be classified as laundered funds. The court properly applied the Guidelines. A sentence within a properly calculated Guidelines range is entitled to a rebuttable presumption of reasonableness. U.S. v. Keleta, 553 F.3d 861 (D.C. Cir. 2009).
D.C. Circuit considers arrest record as one factor warranting sentence at top of guideline range. (742) The district court imposed a sentence at the high end of defendant’s guideline range based on its consideration of numerous factors, including defendant’s arrest record. Defendant argued that § 4A1.3(a)(3), which provides that a prior arrest record shall not be considered for purposes of an upward departure, and caselaw interpreting § 4A1.3 to prohibit reliance on an arrest record for a downward departure, together prohibited consideration of his arrest record. However, the district court did not view defendant’s arrests in isolation, but in the context of numerous other contacts he had had with the criminal justice system. The court’s reference to defendant’s arrest record “simply catalogued an additional example of [defendant’s] repeated contact with the criminal justice system over a short period of time at a young age.” The district court did not err in considering defendant’s arrest record as one of many factors warranting a sentence at the top of the Guideline range. U.S. v. Brown, 516 F.3d 1047 (D.C. Cir. 2008).