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Table of Contents

750 – Sentencing Hearing, Generally (§6A)

750 – Sentencing Hearing, Generally (§6A)
  • 755 Burden of Proof
  • 760 Rule 32, Presentence Report (§6A1.2)
  • 770 Information Relied On/Hearsay (for Acquitted, Uncharged, Dismissed Conduct, see §175, §270, §718)
  • 775 Statement of Reasons For Sentence Within Range (18 U.S.C. §3553)

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§775 Statement of Reasons for Sentence Within Range

(18 U.S.C. §3553)

1st Circuit affirms despite failure to provide defen­dant with form post-sentence Statement of Reasons. (750)(775) After sentencing, the district court failed to give defendant a Statement of Reasons for the sentence, even though every district judge must complete the form after imposing sentence. The First Circuit found no prejudice to defendant, because the district court gave substantial oral reasons for the sentence, and defendant did not show that he was harmed by the failure to receive the Statement of Reasons. U.S. v. Farmer, __ F.3d __ (1st Cir. Feb. 16, 2021) No. 19-1603.

11th Circuit upholds sentence despite failure to give specific reasons for particular sentence. (775) Defen­dants participated in an effort to import 614 kilograms of cocaine into the U.S. At sentencing, the district court sentenced defendants within the guidelines range, but did not state why it had chosen a particular sentence, as required by 18 U.S.C. § 3553. The Eleventh Circuit held that it was sufficient for the court to recite that it had considered the parties arguments, the presentence re­ports, and the applicable factors. U.S. v. Cabezas-Mon­tana, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.

5th Circuit affirms despite failure to explain consec­u­tive senten­ces in open court. (650)(775) Defendant con­tended for the first time on appeal that the district court procedurally erred when it failed to explain its decision in open court to impose consecutive sentences, as mandated by 18 U.S.C. § 3553(c). Rather than stating in open court the reasons for the consecutive sentences, the district court issued a written Statement of Reasons, which explained that consecutive sentences were justi­fied because the crimes involved extreme conduct, wea­pons, and death. The court further explained, in detail, that defendant’s callous behavior and the gruesomeness of the murders warranted consecutive sentences. This written, rather than oral, explanation did not strictly com­ply with § 3553(c). Nevertheless, defendant was still re­quired to show plain error. The Fifth Circuit held that defendant could not meet this burden, because he could not show that the district court’s sentencing procedure affected his “substantial rights.” U.S. v. Gurrola, __ F.3d __ (5th Cir. Aug. 2, 2018) No. 17-50325.

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.

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).

2nd Circuit suggests Sentencing Commission amend Statement of Reasons form. (775) Defendant pled guilty to being a felon in possession of a firearm. He argued for the first time on appeal that the district court failed to explain its reasons for imposing a sentence at the top of the guideline range, as required by 18 U.S.C. §3553(c). The Second Circuit found no plain error. The panel agreed that the court failed to explain its reasons at the time the sentence was imposed. However, it adopted the PSR in open court and the factual findings in the report were adequate to support the sentence. None­theless, the panel suggested the Sentencing Commission amend the State­ment of Reasons form to bring it into conformity with §3553(c) and Supreme Court precedent. Specifically, a check-a-box section of the form, which was checked by the district court here, invited sentencing judges to impose a sentence within the applicable guide­lines range simply because the judge finds no reason to depart. This undermines the statutory obligation to state the reasons for every sentence, and unlawfully presumes the reasonableness of the advisory guidelines range. U.S. v. Pruitt, __ F.3d __ (2d Cir. Feb. 1, 2016) No. 14-1921-cr.

1st Circuit says court adequately explained upward variance in firearms case. (718)(741)(775) Defendant argued that the court did not adequately explain his 120-month sentence. The First Circuit disagreed, finding that the court based defendant’s sentence “on a panoply of facts to which it alluded in open court immediately before imposing the sentence.” The court emphasized that the offense was quite serious: the defendant carried a firearm equipped with an extended magazine, pointed it at a police officer, held for sale sizeable quantities of various types of drugs, fled when confronted, and tried to hide his identity. The sentencing court adequately stated its reasons for the upward variance. The sentence was substantively reasonable. The court properly consider the four drug-trafficking counts that were dismissed as part of his plea negotiation, since the conduct underlying the dismissed counts was relevant to the offense of convic­tion. A sentencing court may take into account relevant conduct underlying counts dismissed as part of a plea negotiation as long as that conduct was not used in cal­cu­lating the defendant’s guideline range. U.S. v. Fernandez-Garay, __ F.3d __ (1st Cir. May 20, 2015) No. 14-1367.

Supreme Court says sentence may not be lengthened to foster rehabilitation. (775) At defendant’s sentencing for smuggling illegal aliens into the U.S., the district court determined that she had a sentencing range of 41 to 51 months under the Guidelines. The district court imposed a sentence of 51 months because that sentence was long enough to allow defendant to take advantage of the Bureau of Prison’s 500-hour Residential Drug Abuse Program (RDAP). On appeal and in the Supreme Court, defendant argued that the court could not lengthen her sentence in order to allow her to participate in RDAP because 18 U.S.C. § 3582(a) provides that a court may not use imprisonment to promote correction and rehabilitation. The Supreme Court held that § 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Tapia v. U.S., 564 U.S. __, 131 S.Ct. 2382 (2011).

 

Supreme Court says lengthy statement of reasons unnecessary to explain within-guide­lines sentence. (775) At defendant’s sentencing hearing, the district court heard defendant’s argu­ment for a sentence below the advisory guidelines range and noted that defendant could seek a lower sentence either through a departure or a variance from the guidelines based on the factors in 18 U.S.C. § 3553(a). After hearing argument, the court said that it was “unable to find” that a sentence within the guidelines range was inappro­priate. The Supreme Court held that the district court had provided an adequate justification for the sentence it imposed. The Court held that in explaining its sentence, a court should say enough to satisfy the appellate court that it has considered the parties’ arguments and has a reasoned basis for its decision. The Court noted, however, that when the sentencing court simply applies the guidelines to a particular case, “doing so will not necessarily require lengthy explanation,” unless one of the parties presents “nonfrivolous reasons for impos­ing a different sentence.” Rita v. U.S., 127 S.Ct. 2456 (2007).

 

1st Circuit affirms above-guideline sentence despite lack of sentencing memo. (775) Defen­dant receiv­ed an above-guideline sentence of 300 months for his various prostitution offenses. He complained because on its statement of reasons, the district court wrote “sentencing memo to follow” in the space provided to justify the imposition of an above-guidelines sentence. No separate memo was ever produced. None­theless, the First Circuit found no error, finding the district court adequately explained defendant’s above-guidelines sen­tence in the sentencing transcript, which it also incor­por­­ated into the statement of reasons. The district court’s decision to incorporate the sentencing transcript, which contained the re­quired information, rather than to write its reasoning in the space provided, adequately fulfilled the requirement that the reasons for the imposition of the sentence be stated. U.S. v. Tavares, 705 F.3d 4 (1st Cir. 2013).

 

1st Circuit rejects post-judgment memo filed by district court. (775) At sentencing, the district court cited three grounds for its below-guideline sen­tence, citing defendant’s close family relationship, the support of his family, his own commitment to rehabilita­tion, and to bring defendant’s sentence “in line” with other defendants in the case. While the government’s appeal was pending, and almost a year after the court pronounced sentence and entered judgment, the district court issued a supplemental memorandum that “intended to distill … more concisely” the reasoning that underlay the sentence. The First Circuit held that a federal appellate court has the discretion, in an appropriate case, to accept a post-judgment memo (including but not limited to a post-judgment sentencing memorandum) even if it is not filed by the district court until after the docketing of a notice of appeal. Since the drawbacks of such belated filings are real, the discretion to accept and rely upon them should be exercised “sparingly.” “District courts should be encouraged to explain their sentences at the time of sentencing and to eschew belated post-judgment amplification.” The memo filed here essentially restated (although more expansively) the three elements on which the district court relied in imposing its sentence. Since it did not add to the appellate court’s assessment of the reasonableness of the sentence, the panel did not consider it. U.S. v. Martin, 518 F.3d 989 (1st Cir. 2008).

 

1st Circuit rejects one-sentence explanation that failed to resolve guidelines disputes or state reasons for sentence. (775) At defendant’s sentencing for drug-trafficking offenses, he chal­leng­ed two enhancements recommended by the probation office, and he argued for a sentence at the low end of the guideline range of 168 to 210 months that would apply if the court did not impose the two enhancements. Without expressly deciding whether the enhancements applied, the court imposed a 210-month sentence. In its one-sentence explanation, the court noted only that it had considered the guidelines and three of the 18 U.S.C. § 3553(a) factors. The First Circuit held that the district court’s failure to explain its guide­lines calculation, provide any analysis, or refer­ence any evidence that influenced its deci­sion violated the requirements in 18 U.S.C. § 3553(c) that the court explain its reasons for the sentence imposed and for selecting a sentence within a guidelines range exceeding 24 months. U.S. v. García-Carrasquillo, 483 F.3d 124 (1st Cir. 2007).

 

1st Circuit finds remand unnecessary where later written statement gave reasons for sentence in middle of guideline range. (775) Section 3553(a) requires a sentencing judge to state in open court the reasons for its imposition of the particular sentence. Where the applicable guideline range exceeds 24 months, the court must articulate “the reason for imposing a sen­tence at a particular point within the range.” Defen­dant’s advisory guideline range was 188-235 months, and the district court imposed a 204-month sentence. The court stated that it was primarily moved by the stories of lives “shat­tered” by defendant’s crimes. The First Circuit held that the district court erred by failing to explain adequately the reasons for the sentence imposed. The court’s statement at the sentencing hearing was inadequate as a matter of law. However, defendant failed to object in the court below; therefore, he forfeited his § 3553(c)(1) argument, and had to make a showing of plain error. He could not meet that showing — the record provided no reason for believing that remanding the case would alter defendant’s sentence. In the later written statement of reasons accompanying the judgment, the court itemized multiple case-specific reasons for the length of the sentence, including the substantial length of the fraud, that ended only when discovery by the SEC became likely, defendant’s betrayal of his friends’ trust, his callousness to the degree of harm he caused, and his willingness to lure his own son into the “terrible mess” defendant created. U.S. v. Gilman, 478 F.3d 440 (1st Cir. 2007).

 

1st Circuit upholds consideration of sale of guns to drug kingpins in sentencing within guideline range of less than 24 months. (775) Defendant, a police officer, used his position to improperly seize weapons and resell them. Despite defendant’s request for a sentence at the bottom of his 70-87 month range, the district court sentenced him to 80 months, citing a number of factors, including his role as a police officer, the fact that the informant told him the guns were intended for use by drug kingpins, the fact that the guns sold had an obliterated serial number, and defendant’s propensity for violent behavior. Defendant argued that the court erred in basing its sentencing determination on a material misstatement of fact – that the weapons were intended for use by drug kingpins. The First Circuit found no error since a district court is not required to cite any reason for sentencing a defendant within a properly constructed guideline range that spans no more than 24 months. Defendant’s guideline range spanned only 17 months. Moreover, the finding was not clearly erroneous, but based on reasonable inferences from the record. In addition, the finding was probably not material, given the court’s other findings in support of its sentence. U.S. v. Mansur-Ramos, 348 F.3d 29 (1st Cir. 2003).

 

1st Circuit has no authority to review sentence within proper guideline range. (775) Defendant appealed the district court’s decision to sentence him at the high-end of the 24-30 month guideline range, alleging that the court’s sentencing decision was imposed in violation of law. The court commented that one of the reasons for the high sentence was a continued belief that more than $723,000 was lost as a result of defendant’s actions. Defendant accused the court of offending due process in relying on “intuition” that more monetary damage had occurred than was reflected in the sentencing figure. The First Circuit found no error. Under 18 U.S.C. § 3553(c), a court does not have to provide any reason for a particular sentence, provided that the sentence falls within the guideline range and that range does not span more than 24 months. Moreover, when a district court sentences within the appropriate guideline range, an appellate court has no authority to review that sentence. U.S. v. O’Connell, 252 F.3d 524 (1st Cir. 2001).

 

1st Circuit holds that judge adequately explain reason for sentence in middle of guideline range. (775) Defendant argued that the district judge failed to explain why he saw fit to sentence defendant at the midpoint, rather than the low end, of the applicable guideline range. See 18 U.S.C. § 3553(c) (if guideline range exceeds 24 months, sentencing court must explain why it selected the particular point that it did within that range). The First Circuit ruled that the record showed that the judge adequately explained his decision. The judge found this a “quintessential case for the imposition of the penalty that the Congress has required to be imposed,” noting that police found evidence that defendant intended to use his gun in additional criminal conduct, and that he had a criminal record considerably more serious than the minimum to trigger the applicable guideline range. The court’s explana­tion was sufficient to meet the requirements of § 3553(c). U.S. v. Snyder, 235 F.3d 42 (1st Cir. 2000).

 

1st Circuit permits reliance on large drug quantity to sentence at top of guideline range. (775) Defen­dants argued that at sentencing, the district court was unduly influenced by the amount of cocaine involved in his offense. The First Circuit found no impropriety in the court’s consideration of drug quantity. The amount of the controlled substance is not only a relevant concern at sentencing, it is the most critical factor used to determine the proper base offense level. Moreover, the court could properly rely on the large drug quantity involved to sentence defendants at the top of the applicable guideline range. Defendants possessed almost seven times the 150 kilograms of cocaine needed for their base offense level of 38. The district court also properly considered the need for deterrence in imposing a sentence at the top of the guideline range. In fact, 18 U.S.C. § 3553(a)(2)(B) ex­pressly directs the court to consider the need for adequate deterrence when imposing a sentence. U.S. v. Rosario-Peralta, 199 F.3d 552 (1st Cir. 1999).

 

1st Circuit says adoption of PSR was not adequate for leadership enhancement. (775) The district court imposed a four-level leadership enhancement, finding that defendant was “the principal figure, the organizer” of a drug conspiracy. The court checked the box on the judgment form that states “The court adopts the factual findings and guideline application in the presentence report.”  The First Circuit ruled that the adoption of the PSR did not satisfy § 3553(c)’s requirement of a statement of reasons, since the PSR did not demonstrate why defendant was a “leader or organizer” rather than a “manager or supervisor.”  In many cases the adoption of the PSR will provide adequate reasons for the sentence. Here, however, the PSR never analyzed why it concluded that defendant was a “leader or organizer” rather than a “manager or supervisor.” U.S. v. Catano, 65 F.3d 219 (1st Cir. 1995).

 

1st Circuit says judge who refused leniency did not impose harsher sentence because of defendant’s alienage. (775) Defendant, a citizen of the Dominican Republic, claimed that he was sentenced more harshly because of his alienage. The First Circuit disagreed. The district court sentenced defendant at the high end of the guideline range because of his continued dishonesty and defiance. Defendant’s alien status was raised by his counsel, who requested a lighter sentence because defendant would be subject to deportation on his release from prison. The sentencing judge simply said that defendant was not entitled to leniency because he faced deportation. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).

 

1st Circuit says findings met requirements of 18 U.S.C. §3553(c). (775) The 1st Circuit af­firmed that the district court’s findings met the minimum requirements of 18 U.S.C. sec­tion 3553(c) “by the narrowest margin.” Since the sentencing tran­script clearly reflected that the court and the parties focused primary at­tention on the pre­sentence report, the appel­late court was able to de­termine that the minimum requirements of section 3553(c) were met.  U.S. v. Cruz, 981 F.2d 613 (1st Cir. 1992).

 

1st Circuit affirms obstruction enhance­ment based upon defendant’s submission of altered passport. (775) The 1st Circuit upheld an enhancement for ob­struction of justice based upon defendant’s submission of an altered passport to verify his identity to the court.  The commen­tary to guideline sec­tion 3C1.1 clearly states that producing an al­tered docu­ment during a ju­dicial proceeding is grounds for an en­hancement.  The court also rejected de­fendant’s claim that the dis­trict court improperly relied upon his alleged false identity in sentencing within the guide­line range.  The court found only that defen­dant was not the individual de­picted in the photographs and finger­prints in his INS file.  This was properly relied on in im­posing sen­tence within the range. U.S. v. Rojo-Alvarez, 944 F.2d 959 (1st Cir. 1991).

 

1st Circuit affirms upward departure despite inappro­priate comparison with an earlier sen­tence imposed by same judge. (775) Defendant appealed the District Court’s upward departure based on his criminal history, contending it was improper for the judge to state that if he were to sentence within the guideline range for the offense of conviction, de­fendant would receive a sen­tence below what he served on the prior sentence.  The 1st Circuit affirmed the sen­tence.  It agreed that a court could not depart upward because a sen­tence would be asymmet­rical as contrasted with earlier non-guideline sentences imposed by the same judge.  How­ever, here the District Court articulated other sufficient reasons for departure.  U.S. v. Brown, 899 F.2d 94 (1st Cir. 1990).

 

1st Circuit upholds finding that defendant played a “mana­ger­ial” role in the offense. (775) Reviewing the trial court’s finding under the “clearly erroneous” stan­dard, the 1st Circuit upheld the adjustment for man­agerial role un­der U.S.S.G. § 3B1.1(c).  Although de­fendant objected generally, he did not chal­lenge any of the factual information in the pre­sentence report.  When asked whether he pro­vided the wallet and belt full of drugs to his co-defendants, he ad­mitted having done so.  The 1st Circuit declined “to require the judge to write out more specific findings about the de­fendant.”  U.S. v. Fuentes-Moreno, 895 F.2d 24 (1st Cir. 1990).

 

1st Circuit holds location of offense and pub­lic senti­ment against drugs are impermissible grounds for de­parture. (775) In sen­tencing a drug trafficker, the Dis­trict Court departed up­ward from the appropriate guideline range for two rea­sons.  First, Puerto Rico is particularly susceptible to, and suffers disproportionately from drug trafficking due to its ideal location as a lay­over point.  Second, local antipathy to­wards drug traf­ficking is great for this very rea­son.  The 1st Circuit va­cated the sentence and remanded, holding that these factors are impermissi­ble grounds for departure.  Congress has di­rected the Commission, not sentencing judges, to become arbiters of com­munity sentiment.  To allow judges to de­part from the guidelines based upon local sentiment would “only serve to foster the kind of wide variations in sentence severity which Congress ap­parently abhorred” when it enacted the guidelines.  “Because the guidelines were in­tended to eliminate re­gional disparity in sentenc­ing,” de­partures based upon public opinion “cannot be counte­nanced.” U.S. v. Aguilar-Pena, 887 F.2d 347 (1st Cir. 1989).

 

2nd Circuit affirms despite court’s failure to provide written statement of reasons. (775) The district court imposed a below-guidelines sentence without providing a written statement that explained with “specificity,” 18 U.S.C. § 3553(c)(2), the reasons for the sentence im­posed. In U.S. v. Hall, 449 F.3d 152 (2d Cir. 2007), the Second Circuit held that, in the context of an Anders motion, failure to provide a statement of reasons that complies with § 3553(c)(2) necessitates a remand to the district court. It has not, however, applied as rigid a requirement in the non-Anders context. Here, the Second Circuit reversed itself, holding that even in the context of an Anders motion, although compliance with § 3553(c)(2) is always required, remand is not always required to remedy noncompliance. It seems a waste of public funds to require a lawyer to perform a role and task that cannot benefit the client. At the same time, it was important to acknowledge that if, in a given case, the absence of a written statement of reasons provides an “arguable” basis for appeal, the Anders motion should be denied. U.S. v. Elbert, 658 F.3d 220 (2d Cir. 2011).

 

2nd Circuit remands for resentencing by different judge where judge held resentencing without defendant present. (775) Defendant pled guilty to drug charges and received a 180-month sentence. The appellate court vacated and remanded because the district court erroneously believed that the two minimum sen­tences must run consecutively. On remand, without notice to defendant or the presence of defendant or his counsel, the district court filed a memo and resentenced defendant to 180 months. The parties agreed that the judgment should be vacated and the case remanded for resentencing because the district court violated defen­dant’s right to be present at resentencing, and his right to notice that the court intended to impose an adverse non-Guidelines sentence. In addition, the district court failed to comply with 18 U.S.C. § 3553(c), which requires a sentencing judge to state “in open court” the reasons for imposing a particular sentence. The Second Circuit remanded for resentencing by a different judge, finding the judge might have substantial difficulty ignoring his previous views during a third sentencing proceeding. In addition, resentencing without the defendant or the prosecutor presents “bespeaks a lack of receptivity to their views and arguments.” U.S. v. DeMott, 513 F.3d 55 (2d Cir. 2008).

 

2nd Circuit finds statement of reasons for revocation sentence above advisory range was inadequate. (775) While on probation for federal mail fraud charges, defendant was arrested for committing additional financial crimes. The dis­trict court revoked his probation and imposed a sentence of 36 months, 24 months above the four-to-ten month advisory range. The Second Circuit held that under the circumstances, the district court’s statement of reasons for the length of the sentence was inadequate to support the sentence imposed. A court is statutorily required to “state in open court the reasons for its imposition of [a] particular sentence.” Where, as here, the sentence is outside of an advisory guideline range, the court must also state “with specificity in the written order” “the specific reason” for the sen­tence imposed. § 3553(c)(2). The court here noted that defendant had engaged in “egregious con­duct” despite being given a “substantial break” at the time of his original sentencing. However, this appeared to have been factored into the advisory range of four-to-ten months. The court was re­quired to give a sufficient explanation as to why his breach of trust warranted a sentence more than three and one half times the maximum recom­mended by the guidelines for run-of-the-mill such breaches of trust. U.S. v. Sindima, 488 F.3d 81 (2nd Cir. 2007).

 

2nd Circuit makes limited remand to allow court to amend written judgment to include oral reasons for upward departure. (775) The district court departed upward under § 5K2.6 because it concluded that the two-level increase imposed under § 2D1.1(b)(1) did not adequately account for defendant’s use of a firearm. How­ever, while the district court provided a thorough, on-the-record enumeration of the reasons for its upward departure, see 18 U.S.C. § 3553(c)(2), it did not reduce that statement of reasons to writing in the judgment. The parties contended that remand was required under 18 U.S.C. § 3742 (F)(1) because defendant’s sentence was imposed “in violation of law.” The Second Circuit did not resolve this issue, and instead, exercised its discretion to remand the case for the very limited purpose of amending the written judgment and conviction order to set forth in writing its reasons for granting the § 5K2.6 upward depar­ture. The court remanded without vacatur in order to allow the amendment of the written judgment. The remand did not constitute a ruling that the appellate court lacked the authority to affirm the district court in the absence of a written statement of reasons. The panel issued the limited remand to avoid deciding that question of law. U.S. v. Santiago, 384 F.3d 31 (2d Cir. 2004).

 

2nd Circuit remands because of ambiguous remarks as to whether court sentenced within range or departed. (775) In its “Order: Guidelines Application Issues,” the court wrote that, although it had enhanced defendants’ base offense level by two points for use of an aircraft in importing drugs under § 2D1.1(b)(2)(A), it was departing downward two levels—and thus canceling out the enhancement—because the use of the plane was minimal. Yet in its “Amended Judgment in a Criminal Case,” the court stated that the “airplane enhancement will not be applied,” and in its “Statement of Reasons for Sentence,” the court reiterated that “the airplane enhancement will not be applied.” In its oral decision at the sentencing hearing, the court did not mention any airplane enhancement and subsequent departure. In addition, in the “Statement of Reasons” section of the Judgment, the court checked the box for the statement, “The sentence is within the guideline range, that range does not exceed 24 months, and the court finds no reason to depart from the sentence called for by the application of the guidelines.” Because it found the court’s remarks ambiguous, the Second Circuit remanded for clarification as to whether the court in fact sentenced defendants’ within their applicable range or departed downward. If the court did not depart, then it should provide a statement of reasons for imposing the defendants’ sentences at a particular point within their applicable ranges, which exceeded 24 months, as required by § 3553(c)(1). U.S. v. Greer, 285 F.3d 158 (2d Cir. 2002).

 

2nd Circuit finds explanation of guideline sentence adequate where range did not exceed 24 months. (775) Defendant’s guideline range was 57-71 months. Although the PSR recommended a sentence of 63 months, defense counsel urged a sentence at the bottom of the guideline range in order to make defendant eligible in the last 24 months for transfer to a boot camp. However, the court accepted the PSR’s recommendation and sentenced defendant to 63 months. Defendant argued that the court was required to state why it declined to sentence him to a sentence below 60 months, which might have rendered him eligible for boot camp. The Second Circuit held that because the guideline range was less than 24 month, the court was not required to provide further explanation. The general requirement of 18 U.S.C. § 3553(c) is satisfied when a district court indicates the applicable guidelines range, and how it was chosen. A more precise explanation is required by § 3553(c)(1) only when the sentencing range exceeds 24 months or the sentence imposed is outside the applicable guideline range. U.S. v. James, 280 F.3d 206 (2d Cir. 2002).

 

2nd Circuit says court need not state reasons where offense level of 43 mandated life sentence. (775) Defendant argued that his life sentence on a drug conspiracy count should be vacated because the district court did not state its reasons for imposing such sentence as required by 18 U.S.C. § 3553(c)(1). When the guideline range “exceeds 24 months,” § 3553(c)(1) requires the district court to state its “reason for imposing a sentence at a particular point within the range.” Because defendant’s base offense level of 43 mandated a sentence of life imprisonment, there was no applicable “range” and § 3553(c)(1) did not apply. U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999).

 

2nd Circuit does not decide whether court must give reasons when mandatory minimum applies. (775) Under 28 U.S.C. § 3553(c)(1), if a sentencing range exceeds 24 months, a sentencing court is required to state its reasons for imposing a sentence at a particular point within the range. Defendant’s range under the guidelines was 108-135 months, a 27-month range. However, because he was subject to a mandatory minimum 120-month sentence, the effective range was 120-135 months, a 15-month range. Defendant argued that for purposes of § 3553(c), only the range calculated under the guidelines, without regard to the effect of mandatory minimum statutes, is relevant. The Second Circuit did not resolve this issue. Since the court correctly found defendant was subject to the mandatory minimum sentence of 120 months, its failure to state its reasons for sentencing him to 120 months was harmless error, if error at all. U.S. v. Chen, 127 F.3d 286 (2d Cir. 1997).

 

2nd Circuit upholds harsher sentence based on statements during allocution. (775) Before defendant’s allocution, the judge indicated he intended to impose a 37-month sentence. However, after defendant protested her inno­cence during her sentencing allocution, the judge imposed a 42-month sentence. The increased sentence was based on her unwilling­ness to accept responsibility and her manipulative course of conduct that persisted through the allocution. The Second Circuit found no error in the court’s decision to increase defendant’s sentence based on her protestations of innocence during the allocution. The moderate increase was substantially less than the two-level obstruction of justice that may be imposed when a defendant makes false statements as part of the allocution statement. U.S. v. Li, 115 F.3d 125 (2d Cir. 1997).

 

2nd Circuit upholds sentence at top of guideline range despite low drug quantity. (775) Defendant argued that the district court erred in sentencing him in the top 25 percent of his guideline range when the amount of drugs attributed to him was in the bottom ten percent of the range for his base offense level. The Second Circuit affirmed since under 18 U.S.C. § 3553(c), a sentencing court need not explain its reasons for imposing a sentence at a particular point within a sentencing range unless that range is broader than 24 months. The district court was under no obligation to impose a sentence at a particular point within defendant’s 12-month range, as long as the chosen sentence was within the applicable range. U.S. v. Prince, 110 F.3d 921 (2d Cir. 1997).

 

2nd Circuit rejects need for explanation where guideline range was less than 24 months. (775) Defendant argued that the district court erroneously failed to explain its reason for sentencing him at the top of his guideline range. The Second Circuit held that no explanation was necessary since defendant’s guideline range was less than 24 months. The Sentencing Reform Act only requires a court explain the reason for its selection of a point within a guideline range when that range exceeds 24 months. U.S. v. Sasso, 59 F.3d 341 (2d Cir. 1995).

 

2nd Circuit says judge need not state reasons for denying downward departure or sentence at bottom of range. (775) Defendant argued that the district judge did not explicitly rule on his motion for a downward departure or for a sentence at the low end of his guideline range. The 2nd Circuit found no error. The district court’s exercise of discretion is generally unreviewable when it imposes a sentence within a guideline range or denies a downward departure. The court need not articulate its reasons. U.S. v. Harris, 38 F.3d 95 (2nd Cir. 1994).

 

2nd Circuit holds failure to state reasons for downward departure is not appealable by defendant. (775) Defendant received a substantial downward departure.  However, after pointing to deeper sentence reductions received by co-defendants, he challenged the departure on the ground that the court may have limited the departure based on invalid factors such as his superior employment opportunities.  He claimed that these impermissible factors might have been revealed if the court had stated the reasons for his sentence, as required by 18 U.S.C. § 3553(c).  The 2nd Circuit held that it lacked jurisdiction to consider the claim.  Unquestionably a defendant could challenge a failure to state reasons for making an upward departure.  However, to permit a defendant to appeal from a downward departure simply because the court failed to state reasons for the sentence would impermissibly erode § 3742(a)(3), which restricts defense appeals to upward departures.  U.S. v. Lawal, 17 F.3d 560 (2nd Cir. 1994).

 

2nd Circuit finds sentence above bottom of guide­line range was not punishment for going to trial. (775) Defendant argued that the court’s selection of a sentence 120 months above the bottom of his guide­line range was meant to punish him for going to trial.  He pointed to the court’s statement that defendant sought to negate his role in the operation, claiming he was unjustly prosecuted by the government.  The 2nd Circuit rejected his claim, finding nothing in this statement to indicate that the court sought to penalize defendant for exercising his right to put the govern­ment to its proof. U.S. v. Tracy, 12 F.3d 1186 (2nd Cir. 1993).

 

2nd Circuit says “I don’t see any mitigating circumstances here” was not adequate to explain sentence. (775) Two defendants were sentenced at the top of their guidelines range.  The 2nd Circuit concluded that the district court adequately stated reasons un­der 18 U.S.C. section 3553(c) as to one de­fendant, but not as to the other.  With respect to the first defendant, the court stated that it believed the government’s evidence regarding defendant’s supplying of weapons and par­ticipation in acts of violence.  It rejected the government’s request to depart upward on these grounds, but instead sentenced defen­dant to the top of his guideline range.  How­ever, with respect to the second defendant, the court did not expressly adopt the gov­ernment’s description of defendant’s role, or refer to any specific aspect of defendant’s be­havior.  Although the court’s statement “I don’t see any mitigating circumstances here” explained the court’s rejection of a sentence at the bottom of the guideline range, it did not explain why the court did not sentence at some point between the bottom and the top.  U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).

 

2nd Circuit rules that saying “I have con­sidered everything” is an inadequate statement of reasons. (775) The 2nd Circuit ruled that the district court’s statement that “I have considered everything” was an inade­quate statement of reasons under 18 U.S.C. section 3553(c)(1).  Imposing a sentence without an articulation of reasons, even one briefly stated, does not comply with the statute.  The sentence was vacated and the case remanded for the judge to provide a statement of reasons.  U.S. v. Zackson, 6 F.3d 911 (2nd Cir. 1993).

 

2nd Circuit remands despite sentence within proper range because of judge’s pretrial remarks. (775) Prior to trial, the dis­trict judge threatened to impose the maximum sen­tence if he concluded that de­fendant went to trial without “a good defense.”  Defendant had a guide­line range of 262 to 327 months, and re­ceived a 320-month sen­tence.  The gov­ernment moved to remand the case, and the 2nd Circuit wrote an opinion only to make clear the inappropri­ateness of the judge’s threat.  The judge’s pretrial re­marks created an unacceptable risk that the sentence was impermissibly en­hanced above an otherwise ap­propriate sentencing norm to penalize the defen­dant for exercising his con­stitutional right to stand trial.  U.S. v. Cruz, 977 F.2d 732 (2nd Cir. 1992).

 

2nd Circuit upholds inadequacy of crimi­nal his­tory as proper basis for sentence at top of guide­line range. (775) The district court sentenced defen­dant to the top of his applicable guideline range, stating that it be­lieved that defendant was a very vio­lent and very dangerous young man and that criminal history category I inadequately reflected the serious­ness of his past criminal conduct.  The 2nd Circuit af­firmed that this statement of reasons satisfied 18 U.S.C. section 3553(c)(1). U.S. v. Rivera, 971 F.2d 876 (2nd Cir. 1992).

 

2nd Circuit upholds sentence at top of range based on facts already considered in offense level. (775) The judge imposed the maximum guideline sentence based on de­fendant’s possession of a weapon during the drug offense, and his attempt to smuggle marijuana into prison while awaiting sen­tencing.  Defendant contended that this con­stituted impermissible double counting, since the marijuana smuggling was already ac­counted for in the denial of acceptance of re­sponsibility, and the gun possession was ac­counted for by his five-year con­secutive sen­tence under 18 U.S.C. section 924(c)(1).  The 2nd Circuit found no double counting, noting that the Commentary to section 2K2.4, which directs a court to avoid double counting un­der section 924(c), only precludes a court from enhancing a defendant’s base of­fense level under section 2D1.1(b)(1).  U.S. v. Olvera, 954 F.2d 788 (2nd Cir. 1992).

 

2nd Circuit rules judge adequately explained reasons for sentence. (775) The 2nd Circuit found that the dis­trict court adequately ex­plained the reasons for the sen­tence he im­posed upon defendant.  Defendant received a sentence that was slightly above the middle of his guideline range.  The government had re­quested an ad­justment for obstruction of jus­tice because defendant had submitted mis­leading infor­mation to the probation depart­ment.  The district judge re­jected this request, but explicitly stated that in selecting a sentence within de­fendant’s guideline range, he would take into account defendant’s attempt to mis­lead the court.  The judge also stated that de­fendant worked closely with a co-conspir­ator, and that defendant was close to the source of sup­ply of the cocaine.  These statements satis­fied the re­quirements of 18 U.S.C. § 3553(c)(1).  U.S. v. Lopez, 937 F.2d 716 (2nd Cir. 1991).

 

2nd Circuit holds judge properly stated rea­sons for 216-month sentence. (775) The 2nd Circuit rejected de­fendant’s claim that the dis­trict judge failed to offer suf­ficient reasons for sentencing him as required by 18 U.S.C. § 3553(c).  The judge’s statement about gen­eralized deterrence was made in the context of re­jecting defendant’s request for the statutory minimum sentence, not as the sole rationale for the sentence.  The record revealed that the judge explicitly stated the spe­cific reasons for determining defendant’s offense level, that he explained the factors that led him to impose a 216-month sentence, rejected the probation depart­ment’s recommendation that defendant be given a two-point ad­justment for his man­agerial role and obstruction of justice, and carefully considered defendant’s psycho­logical history.  Although to avoid any possible dispute the judge might have emphasized that the rea­sons he gave reflected both his con­sideration of the imposition of the particular sentence as re­quired by § 3553(c), and the relationship of that partic­ular sentence to the applicable guideline range, as required by § 3553(c)(1), his statements here were sufficient.  U.S. v. Lopez, 937 F.2d 716 (2nd Cir. 1991).

 

2nd Circuit reviews statement of reasons. (775) As a ca­reer offender, defendant’s original guideline range was 210 to 262 months.  In sentencing defendant to 262 months, the dis­trict court observed that since a prior sentence of 10 to 15 years had not dissuaded him from a subsequent offense, a sentence at the bottom of the guideline range seemed insufficient.  The 2nd Circuit was troubled by this statement of reasons under 18 U.S.C. § 3553(c)(1) in two respects.  First, the prior 15-year sen­tence was subject to parole; defendant in fact served about nine years.  A more relevant basis for comparison would be the amount of time served on the prior sentence.  Second, the judge did not fully com­ply with § 3553(c)(1) by stating why he selected the par­ticular sentence within the guideline range.  He merely stated why the mini­mum sentence was inade­quate.  Since the sentence was being re­manded for other reasons, the court urged the judge “to give renewed con­sideration to the selection of the particular sentence to be im­posed within the guideline range.”  U.S. v. Chartier, 933 F.2d 111 (2nd Cir. 1991).

 

2nd Circuit reversed upward departure for lack of ex­plicit findings connecting defendants with a death. (775) Defendants transported and sold a stolen diamond ob­tained from a di­amond dealer who disappeared be­fore the defen­dant’s arrest and was later found dead.  The sentencing judge found that the offense level in­volved (2B1.2) did not take into account the risk of per­sonal in­jury.  Therefore, the dis­trict court departed up­ward pur­suant to guide­lines 5K2.1, which allows an up­ward de­parture if death results from a criminal offense.  The 2nd Circuit held that loss of life does not automati­cally sug­gest a sentence at or near the statutory maxi­mum.  Fac­tors under 5K2.1 such as whether defendants “intended” or “knowingly risked” the life of another must be consid­ered in order to make an appropriate depar­ture.  The 2nd Circuit noted there was “persuasive cir­cumstantial evi­dence” connecting defendants with the death.  How­ever the court remanded and reversed based on a lack of ex­plicit findings by the district court that the death “resulted” from defendant’s actions and lack of ex­plicit findings that defen­dant’s “knowingly risked” or “intended” the death as required by guideline 5K2.1.  U.S. v. Rivalta, 892 F.2d 223 (2nd Cir. 1989).

 

2nd Circuit holds failure to resolve factual disputes in presentence report re­quired re­mand. (775) Both by let­ter and at the sen­tencing hearing, defense counsel raised several significant disputed sentencing factors.  Coun­sel requested an adjourn­ment so that the pro­bation depart­ment would have time to recon­sider these factors.  The district court refused.  On ap­peal, the Second Circuit re­versed, hold­ing that the district court “improperly failed to afford the parties an adequate opportunity to be heard on these is­sues by some appropriate means.”  U.S. v. Palta, 880 F.2d 636 (2nd Cir. 1989).

 

2nd Circuit holds dispute as to which of two overlap­ping guide­line ranges apply need not always be re­solved. (775) Where it is clear that the same sentence would have been imposed under either of two overlap­ping guidelines ranges, it is not neces­sary for the sen­tencing judge to re­solve a dis­pute between the parties as to which guideline range applies.  However, the dispute must be resolved if the sentence was selected “because it is at or near the low end of the guideline range urged by the Gov­ernment and deem­ed applicable by the sentenc­ing judge.”  This case was remanded for clarification.  U.S. v. Bermingham, 855 F.2d 925 (2nd Cir. 1988).

 

3rd Circuit holds that failure to give statement of reasons was not plain error. (775) Defendant argued for the first time on appeal that the district court failed to state in open court its reasons for sentencing defendant in the middle of the applicable guideline range and defendant at the top, a statement required by 18 U.S.C. § 3553(c) (1). Because defendant did not raise the objection below, for the appellate court to grant relief, the court must have committed plain error that prejudiced defendants. The Third Circuit declined to exercise its discretion to correct any error here, despite the fact that neither defendant was sentenced at the bottom of the applicable range. The district court presided over a four-month trial, held lengthy sentencing hearings, and approved an adopted PSRs. The record created precluded any finding that the absence of a formal statement of reasons had the potential to seriously affect the “fairness, integrity or public reputation” of the proceedings in the case. U.S. v. Merlino, 349 F.3d 144 (3d Cir. 2003).

 

3rd Circuit approves sentence at top of guideline range based on defendant’s perjury. (775) Defendant argued that the district court violated due process by sentencing him at the top of his guideline range based on a finding that he committed perjury at a prior exclusionary hearing. The Third Circuit held that a district court may impose a higher sentence within the sentencing range on the basis of the defendant’s perjury. If a court can enhance an offense level based on a perjury finding, then it can impose a higher sentence within the sentencing range based on a finding of perjury. U.S. v. Bass, 54 F.3d 125 (3d Cir. 1995).

 

3rd Circuit allows considering co-defen­dant’s sen­tence in selecting sentence within guideline range. (775) Defendant ar­gued that the district court’s decision to sen­tence him to the top of the guideline range was based on the fact that his co-defendant re­ceived a longer sentence, and that consid­ering this fact violated the law.  The 3rd Cir­cuit found that the district court did not rely on an improper factor in sentencing.  Defen­dant pointed only to a statement by the dis­trict judge noting the disparity in sentences for the defendants.  However, the disparity was based on a difference in criminal histo­ries.  Moreover, there is nothing to preclude a district court from considering a co-defen­dant’s sentence when selecting a sentence within the guideline range.  U.S. v. Newby, 11 F.3d 1143 (3rd Cir. 1993).

 

4th Circuit finds adequate explanation for within-Guidelines drug-trafficking sentence. (775) 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 holds that court adequately articu­lated reasons for sentence. (775) Defendant argued that the district court inadequately articu­lated the reasons for his sentence. The Fourth Circuit disagreed. Although the district court did not expressly mention § 3553(a), it clearly invoked three of the § 3553(a) factors: the need to provide “just punishment” for the offense, § 3553 (a)(2)(A); the need “to afford adequate deter­rence,” § 3553(a)(2)(B); and “the history … of the defendant,” § 3553(a)(1). Moreover, undisputed facts presented to the district court in the language of § 3553(a) made apparent the basis for its explanation. The court knew that defendant was a repeat offender, having illegally reentered the U.S. at least three prior times, knew mere deportation had not dissuaded him in the past, and knew that he had trafficked in drugs during one of his illegal visits here. The court clearly intended to rely on these facts when it referred to the § 3553(a) factors. The court would not vacate “simply because the court did not spell out what the context of its explanation made patently obvious: namely, that a shorter prison term was inappropriate for a defendant who had repeatedly committed a serious offense and who had already proven immune to other means of deterrence. U.S. v. Montes-Pineda, 445 F.3d 375 (4th Cir. 2006).

 

4th Circuit will not review sentence within properly calculated guideline range. (775) Defendant argued that the sentencing judge should have been more lenient in choosing his exact term of imprisonment within the guidelines range. Defendant had an applicable range of 262-327 months; the district court sentenced defendant to 324 months. Defendant claimed that the district court failed to consider his unusual cooperation in determining his sentencing. The Fourth Circuit refused to review the matter. Defendant did not argue that the court should have departed downward for extraordinary acceptance of responsibility or that he should have received a three-level reduction. Instead, he requested that the appellate court strip the sentencing judge of his discretion to set the defendant’s sentence within the proper guidelines range. U.S. v. Pitts, 176 F.3d 239 (4th Cir. 1999).

 

4th Circuit holds that poor credit risks promised mortgages were vulnerable victims. (775) Defendant ran a business that, for a fee, purported to help customers with poor credit to obtain mortgage loans. Only a few clients actually received loans;  the vast majority never even had their applications processed. The Fourth Circuit agreed that defendant’s clients were vulnerable victims because of their poor credit. Persons with poor credit ratings who have been turned down elsewhere are more vulnerable than most “to the melodious beseeching of a charlatan who assures them that their dreams are within their grasp.”  The court rejected defendant’s claim that the district court improperly relied on the fact that the victims were black to sentence him at the top of the guideline range. The district court merely criticized defendant’s attempt to gain his victims’ trust by making appeals based on race. The court sentenced him at the top of the guideline range because when the state consumer affairs department contacted him, he hired an attorney to “get them off his back.”  He then turned around and continued his business. U.S. v. Holmes, 60 F.3d 1134 (4th Cir. 1995).

 

4th Circuit holds that it cannot review sentence within properly calculated guideline range. (775) The district court sentenced defendant at the top of his guideline range because defendant failed to aid police in the apprehension of a co-conspirator.  Defendant argued that the district judge based this determination on insufficient evidence.  The 4th Circuit held that it lacked jurisdiction to consider defendant’s claim.  Under 18 U.S.C. § 3742(a), a criminal defendant may not seek review of a sentencing court’s discretion in setting a sentence anywhere within a properly calculated sentencing range.  U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).

 

5th Circuit upholds consecutive sentence despite court’s failure to expressly consider statutory factors. (775) In determining whether to impose a concurrent or consecutive sentence, 18 U.S.C. § 3584(b) directs a court to consider the factors in 18 U.S.C. § 3553(a). The Fifth Circuit held that a court may impose a consecutive sentence so long as the proceedings imply consideration of the § 3553(a) factors. Although the court here did not make a statement on the record from which such consideration could be inferred, the court was advised of those factors by the PSR and by the arguments of counsel. Absent a contrary indication in the record, such evidence implies that the court was aware of and considered the § 3553(a) factors. However, § 3553(c) separately requires the court at sentencing to “state in open court the reasons for its imposition of the particular sentence.” Defendant did not object at sentencing to the court’s failure to explain the reasons for its sentence under § 3553(c). However, even assuming that the court’s failure to state the reasons for the particular sentence was clear error, defendant did not show that the error affected his substantial rights. The district court was not required to impose a concurrent sentence, and it was within its discretion to impose a consecutive sentence given defen­dant’s extensive criminal background. U.S. v. Izaguirre-Losoya, 219 F.3d 437 (5th Cir. 2000).

 

5th Circuit finds no error in judge’s comments about defendant’s inability to pay restitution. (775) Defendants argued that the judge impermis­sibly considered their socioeconomic status—their inability to make restitution—in determining the length of their sentence. In sentencing defendants at the top of the guideline range, the judge noted that they had taken millions of dollars from people and were not going to be paying it back. The Fifth Circuit found no error. The judge seemed to focus on the amount of money taken in the scam and mentioned restitution in noting the real loss to the victims. Any error was not clear or obvious, since the sentences were within the guidelines and the meaning of the judge’s remarks was unclear. U.S. v. Humphrey, 104 F.3d 65 (5th Cir. 1997).

 

5th Circuit rules court adequately considered defendant’s background before imposing the maximum guideline sentence. (775) Defendant claimed that the court abused its discretion in sentencing her to the maximum possible sentence under the guidelines in light of her unusual and tragic background. The Fifth Circuit ruled that the court adequately considered defendant’s background before imposing the maximum sentence. The presentence report developed the facts of her background and the court acknowledged that defendant had traveled a “rocky road.”  Nevertheless, the court felt that the maximum sentence was appropriate. So long as the district court acts within the guidelines, a harsh sentence, in and of itself, does not constitute error. The Fifth Circuit agreed that to the extent that defendant was contesting the decision not to depart, that decision was not reviewable. U.S. v. Buchanan, 70 F.3d 818 (5th Cir. 1995).

 

5th Circuit finds no plain error in reasons for sentence. (775) Defendant had a guideline range of 151-180 months. The district court imposed a 160-month sentence. Defendant argued for the first time on appeal that the district court failed to state adequate reasons for choosing the 160-month sentence. The Fifth Circuit found no plain error. U.S. v. James, 46 F.3d 407 (5th Cir. 1995).

 

5th Circuit rules district court adequately stated grounds for upward departure. (775) The 5th Circuit rejected defendant’s claim that the district court failed to state reasons for his sentence and for the extent of an upward departure.  The district court did state specific reasons for the departure, empha­sizing that the guide­line range was based on the small quantity of marijuana in­volved and did not take into account that de­fendant committed his offense as deputy and guardian of a prison’s security.  These ar­ticulated reasons satisfied the requirements of 18 U.S.C. section 3553(c).  Under 5th Cir­cuit law, the judge was not required to state the reasons for the ex­tent of the departure.  U.S. v. Sicil­iano, 953 F.2d 939 (5th Cir. 1992).

 

5th Circuit rules district court need not state reasons for imposing sentence at top of guideline range. (775) Defen­dant contended that the trial court erred in im­posing a 46-month sentence which was at the top of his guideline range, with no articulated reason, when the probation office rec­ommended only 36 months.  Fol­lowing U.S. v. Ehret, 885 F.2d 441 (8th Cir. 1989), the 5th Circuit held that when the spread of an appli­cable guideline range is less than 24 months, the district court is not required to state its reasons for imposing a sen­tence within the applicable range.  Since defendant’s guideline range was between 37 and 46 months, the judge was not required to state his reasons for imposing a 46-month sentence.  U.S. v. Richardson, 925 F.2d 112 (5th Cir. 1991).

 

5th Circuit remands because sentencing judge may have improperly considered defendants’ socioeconomic status. (775) Defendant was one of five defendants sen­tenced on drug traf­ficking charges.  In response to de­fendant’s re­quest for a downward departure, the judge commented upon defendant’s high intelligence, his ma­terial advan­tages, and his educational opportunities, suggest­ing that an individual with such advantages might be punished more harshly under the law than one with mitigating circumstances.  The judge then reiterated these comments to at least one of the other defen­dants.  The 5th Circuit vacated the sentences of all five defen­dants and remanded for resen­tencing.  A defendant’s so­cioeconomic status is never relevant for sentencing.  Al­though the judge, acting as amicus curiae, contended that he was merely lecturing the defendants, the 5th Cir­cuit found that it could not ascertain whether from the record whether the judge considered the impermissible factors.  U.S. v. Hatchett, 923 F.2d 369 (5th Cir. 1991).

 

5th Circuit rules that district court is not re­quired to follow government’s sentence rec­ommendation. (775) Pur­suant to defendant’s plea agreement, the government rec­ommended that defendant be sentenced at the lower end of the applicable guideline range.  The district court advised defendant that the recommenda­tion was not binding on the court.  The pre­sentence report calculated a sentencing range of 15 to 21 months, and recom­mended an 18 month sentence based on the amount of drugs defendant intended to dis­tribute.  The district court sentenced defendant to 18 months.  The 5th Cir­cuit rejected defendant’s argument that the district court was required to follow the government’s recommenda­tion, or that the district court was required to state on the record its reasons for refusing to follow the gov­ernment’s recommendation.  A district court need not make “an elaborate statement of its reasons for a sen­tence imposed within the guideline range when the facts are undis­puted and the court’s calculation of the sen­tencing range under the guidelines is correct.”  U.S. v. Medina-Saldana, 911 F.2d 1023 (5th Cir. 1990).

 

5th Circuit holds statement of findings need not be comprehensive. (775)  The 5th Circuit held that a sen­tencing court’s findings need only be comprehensible when the sentencing record, includ­ing the presentence report, is viewed as a whole.  Courts need not “insulate all their findings against possible mis­readings, or preface them with ritualized in­cantations that partition rea­sons into specialized cate­gories.”  Such formal require­ments would in­terfere with the smooth operation of sentenc­ing hearings. The actual grounds for departure were clearly set forth, and it was not necessary to resolve the de­fendant’s dispute as to a factor that was not relied upon in departing from the guidelines.  U.S. v. Lopez-Esco­bar, 884 F.2d 170 (5th Cir. 1989).

 

5th Circuit rules credi­bility judgments as to quantity of drugs contem­plated by conspiracy are entitled to defer­ence. (775) De­fendant ap­pealed her sentence, claiming that the trial court improperly relied upon the quantity of drugs to be distributed.  She contended that the conspir­acy was actu­ally incapable of pro­ducing that amount.  The 5th Circuit disagreed and affirmed the sentence.  Appli­cation note 1 to guideline § 2D1.4 states that in incom­plete distribu­tions, the amount under negotia­tion shall be used to set the base offense level.  The sentenc­ing court’s credibility determina­tions are en­titled to def­erence.  It was not er­ror for the judge to be­lieve the Pro­bation De­partment’s account of the con­spiracy rather than the de­fendant’s and to set the base of­fense level ac­cordingly.  The sentence was proper.  U.S. v. Thomas, 870 F.2d 174 (5th Cir. 1989).

 

5th Circuit rules court’s finding as to amount of co­caine in­volved was based on adequate eviden­tiary foun­dation. (775) Defen­dant chal­lenged his sen­tence which was based upon an amount of cocaine larger than that to which he had pled guilty.  The dis­trict court found the informant’s account of the transaction more credible than the defen­dant’s.  Since credibility determina­tions are peculiarly within the province of the trier of fact, they will not be disturbed on ap­peal.  Thus, there was an ade­quate foun­dation for the evidence upon which the defendant’s sen­tence was based.  U.S. v. Sarasti, 869 F.2d 805 (5th Cir. 1989).

 

6th Circuit, en banc, applies plain error review to procedural reasonableness claim not raised below. (775) Defendant argued that the district court failed to explain in sufficient detail why it rejected some of his arguments for a downward variance. Under U.S. v. Bostic, 371 F.3d 865 (6th Cir. 2004), district courts must ask the parties whether they have any objections to the proposed sentence that had not previously been raised. If a party fails to raise an objection, plain error review applies on appeal. The Sixth Circuit, en banc, found that the Bostic rule applies to post-Booker challenges to procedural reasonableness. Here, defendant answered “No” to the district court’s Bostic question. Although “this answer did not undermine [defendant’s] right to appeal issues he had ‘previously raised,’ it did undermine his right to challenge the adequacy of the court’s explanation for the sentence.”  The court’s explanation for denying defendant’s request for a below-guideline sentence was not plain error. While the explanation was brief, and did not specifically address all of defendant’s arguments, any potential error was not “plain.”  Defen­dant’s arguments were “conceptually straightforward,” and the district court imposed a within-guideline sen­tence. Nothing in the record suggested that the court did not listen to, consider, and understand every argument that defendant made. U.S. v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc).

 

6th Circuit vacates where court failed to pro­vide any reasons for sentence. (775) Defendant complained that the district court did not give reasons for the sentence it imposed. After Booker, an appellate court reviews a sentence for reason­ableness. The sentence must be both procedurally and substantively reasonable. “Pro­ce­dur­al reason­ableness” require a sentencing judge to consider the factors outlined in 18 U.S.C. § 3553(a) to enable appellate review. While there is no requirement that the court engage in a “ritualistic incantation of the § 3553(a) factors it considers,” the opinion should be “sufficiently detailed to reflect the considerations listed in § 3553(a).” Because it was unable to find any discussion of the reasons why the district court chose the sentence it imposed, the Sixth Circuit vacated the sentence and remanded for resentencing. While the appellate court had “little doubt that the experienced and learned trial judge was aware that the sentencing guidelines were advisory and that the factors enumerated in Section 3553(a) were to guide her discretion,” there was nothing in the record to confirm this. U.S. v. Johnson, 488 F.3d 690 (6th Cir. 2007).

 

6th Circuit says higher sentence on remand gave rise to Pearce presumption of vindictive­ness. (775) The district court originally sentenced defendant to 262 months, the low end of his 262-327 month guideline range. After a successful appeal by defendant, the district court found that it had failed to consider a particular conviction in defendant’s criminal history. At the same time, the court held defendant responsible for a significant­ly lesser quantity of drugs. This resulted in a guideline range of 235-293 months. The district court resentenced defendant to 292 months, at the high end of the new range. The Sixth Circuit held that since the same judge was involved, these facts gave rise to a presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711 (1969). Due process required the court to give “objective reasons” for imposing a higher sentence on remand than the one it originally imposed. While the factors cited by the court here were objective (long involvement in drug trafficking, large quantity of drugs involved, wide range of conspiracy, refusal to accept responsibility, and scofflaw attitude), they did not adequately explain the need to increase defendant’s sentence. All of the information cited by the court was before it at the first sentencing. U.S. v. Jackson, 181 F.3d 740 (6th Cir. 1999).

 

6th Circuit holds that court plainly erred in relying on undisclosed victim letters. (775) At sentencing, the judge noted that he had received a number of letters from people who were in the bank at the time defendant robbed it. The letters discussed the psychological impact the robbery had on these people. The judge said that he took those letters “very seriously,” and then sentenced defen­dant to the maximum guideline sentence. Before the court made these remarks, neither defendant nor his attorney knew that the letters existed. The Sixth Circuit held that the district court plainly erred in relying on the undisclosed victim letters. See U.S. v. Patrick, 988 F.3d 641 (6th Cir. 1993)(district court committed error by relying, without notice, on evidence from another defendant’s sentencing hearing). Rule 32 required that the letters be disclosed. The court disagreed with U.S. v. Curran, 926 F.2d 59 (1st Cir. 1991), which held that the failure to disclose letters such as these did not violate Rule 32 because they were not part of the presentence report. Evidence used at sentencing may not be kept from the defendant simply by failing to incorporate it into the PSR. The error affected defendant’s substantial rights. The court sentenced defendant to the maximum allowable sentence, and the crime’s impact on the victims, as conveyed in the letters, was prominent in the court’s explanation of its sentence. U.S. v. Hayes, 171 F.3d 389 (6th Cir. 1999).

 

6th Circuit says judge may only recommend defendant’s participation in prison drug program. (775) The district court revoked defendant’s supervised release under 18 U.S.C. § 3583(g) after he was found in possession of a controlled substance. It imposed a 16-month sentence with the requirement that defendant participate in an intensive drug treatment program while in custody. The Sixth Circuit held that the sentencing court may only recommend, and may not order, a defendant’s participation in a prison drug rehabilitation program. The Bureau of Prisons has the sole authority to select those prisoners who will best be served by participation in such programs. The 16-month sentence was not unreasonable. The court considered the applicable policy statements, and sentenced defendant within the statutorily prescribed range. A district court may properly consider a defendant’s rehabilitative needs in setting the length of imprisonment within the range prescribed by statute. U.S. v. Jackson, 70 F.3d 874 (6th Cir. 1995).

 

6th Circuit finds no requirement to state reasons for imprisonment rather than home confinement. (775) Defendant argued that the district court abused its discretion in failing to state the precise reasons why it sentenced defendant to a term of imprisonment, rather than a term of home confinement, as was permitted under section 5C1.1(c).   The 6th Circuit held that because the guideline range was less than 24 months, and defendant was sentenced within that guideline range, the district court was not required to state its reasons on the record.  U.S. v. Lively, 20 F.3d 193 (6th Cir. 1994).

 

6th Circuit refuses to review stated rea­sons for sentence at top of guide­line range. (775) The dis­trict court sen­tenced de­fendant at the top of her guideline range be­cause it was disturbed by evidence that de­fendant had intro­duced her brother-in-law to a co-con­spirator so that he could purchase cheap co­caine from the co-conspirator.  De­fendant contended this was improper since the information was not con­tained in her pre­sentence report and she did not have the op­portunity to rebut this information.  The 6th Circuit refused to review the district court’s decision to sentence defendant at the top of her guideline range.  The cases cited by de­fendant dealt with up­ward departures, whereas the information consid­ered by the district court was not the basis of a de­parture.  Moreover, defendant had no­tice of this in­formation because it came from testi­mony given by her brother-in-law at trial.  U.S. v. Chalkias, 971 F.2d 1206 (6th Cir. 1992).

 

6th Circuit finds district judge adequately stated rea­sons for imposing sentence within guideline range. (775) The 6th Circuit rejected defendant’s argument that the district judge failed to adequately state reasons for its sen­tencing decision.  Defendant’s guideline range was less than 24 months, and therefore the judge was not re­quired by the guidelines to specify a reason for imposi­tion of a sentence within the guideline range.  U.S. v. Smith, 928 F.2d 740 (6th Cir. 1991).

 

6th Circuit finds district court made ad­equate factual findings concerning amount of cocaine in­volved in conspir­acy. (775) Defendant con­tended that the district court did not make an adequate factual finding re­garding the amount of cocaine involved in his conspir­acy.  He ar­gued that a sen­tencing court must do more than state conclusions, it must state the ratio­nale for such conclusions.  The 6th Circuit found that the district court made adequate factual findings.  At trial, the jury had been presented with conflicting stories as to defen­dant’s involvement in the con­spiracy.  In sentenc­ing de­fendant, the judge stated “I think the jury chose to be­lieve the former [story], and I think that is a reasonable de­termination.”  This statement constituted an adequate factual finding.  U.S. v. Todd, 920 F.2d 399 (6th Cir. 1990).

 

6th Circuit finds district court made required findings on disputed factual issues. (775) The 6th Circuit re­jected defendant’s claim that the district court failed to make re­quired findings of fact on disputed issues in­volved in sen­tencing. The district court had expressly adopted the pre­sentence report as its finding of fact and law, and sufficient findings were made on the record to support the sentence.  The re­port adequately explained why a downward de­parture for diminished capacity was not appro­priate.  For diminished capacity to justify a de­crease, the offense must be nonviolent in na­ture.  De­fendant pled guilty to using an inter­state facil­ity to solicit a murder, which was not a non-violent offense.  U.S. v. Wilson, 920 F.2d 1290 (6th Cir. 1990).

 

6th Circuit holds that judge’s comments re­garding deter­rence did not render sentence improper. (775) While sentencing the defen­dant to the maximum term allowed un­der the guideline, the district judge stated that he was im­posing that term because “he wanted the peo­ple down in Clinton County to know . . . that drug of­fenders are going to be dealt with very severely.”  The defendant appealed, claiming that he was a made a “whipping boy.”  The 6th Cir­cuit rejected the argument, ruling that the judge’s statements were proper be­cause the deterrent effect the sentence will have on others is a legitimate sentencing con­sideration.  The court also noted that because the defendant’s sentence was within the proper guideline range, he was actually precluded from appealing.  U.S. v. Sawyers, 902 F.2d 1217 (6th Cir. 1990).

 

6th Circuit stresses requirement of statement of rea­sons for departures. (775) In this case, the 6th Circuit com­mented that the require­ment for “statement of rea­sons” in a de­par­ture serves several purposes: (1) the sentencing Commission looks to the district courts for feedback con­cerning factors; (2) requiring clarity in rea­sons helps to assure the uniformity sought by the Sen­tencing Reform Act of 1984 and; (3) a clear statement from the district court assures that the ap­peals process works properly in that both counsel and the re­viewing court will be able to challenge and or evaluate the dis­trict court’s actions.  U.S. v. Kennedy, 893 F.2d 825 (6th Cir. 1990) .

 

6th Circuit holds that no notice was required before judge concluded that 93% pure cocaine was “high qual­ity.” (775) In sentencing defen­dant within the guidelines range, the court stated that “the cocaine in question was of a very high quality and very high purity, 92.9 per­cent.”  Defendant argued that he should have been given ad­vance notice of the court’s de­termination of the quality of the cocaine and a chance to rebut it.  The 6th Circuit af­firmed the sentence, stating that a judge need not al­ways give advance notice and permit comment on the judge’s interpretation of the facts.  The judge’s conclu­sion that the cocaine was of high quality was one that any experi­enced judge would draw.  U.S. v. Ford, 889 F.2d 1570 (6th Cir. 1989).

 

6th Circuit holds no statement of reasons is required for sentence within appropriate range not exceeding 24 months. (775) A drug de­fendant appealed his sentence, claiming that the district court erred by failing to state with particularity its reasons for the sentence im­posed.  The 6th Circuit af­firmed, holding that under 18 U.S.C. § 3553(c)(1) when the judge sen­tences within the appropriate range and that range does not exceed 24 months, no statement of reasons is required.  Be­cause this was the case and the trial judge resolved a factual dispute asserted by the de­fendant, he satisfied the guide­lines requirements con­cerning a statement of reasons for a partic­ular sentence.  U.S. v. Duque, 883 F.2d 43 (6th Cir. 1989).

 

7th Circuit reverses for failure to provide suf­fi­cient, explanation for 97-month sen­tence. (775) Defen­dant pled guilty to drug charges, and was sentenced to 97 months. In imposing that sentence, the judge said only that he had “considered all the factors of 18 U.S.C. § 3553(a)” and that the crime was “serious.” The Seventh Circuit held that this trun­cat­ed explana­tion was insuf­ficient, and remanded. Because the judge imposed a sen­tence within a guidelines range exceeding 24 months, he was obligated to state “the rea­son for imposing a sen­tence at a particular point within the range.” 18 U.S.C. § 3553(c)(1). The district court did not meaning­fully ex­plain why 97 months was an appro­priate sentence. The court’s summary assertion that it had “considered all the factors of 18 U.S.C. § 3553(a)” was procedurally insuf­ficient. Less explana­tion is required for within-guidelines sentences, but the court may not simply presume that a within-guidelines sentence is reasonable, and must pro­vide an “independent justifica­tion” in accordance with the § 3553(a) factors for the term of imprisonment imposed. U.S. v. Washington, 739 F.3d 1080 (7th Cir. 2014).

 

7th Circuit ignores inconsistent written statement of reasons but still upholds upward variance. (775) Defendant, an office manager and accountant, embezzled hundreds of thousands of dollars from the companies he worked for by using company credit cards and writing company checks to pay for personal items. His guideline range was 21-27 months, but the district court varied upward to 60 months. Weeks later, the judge filed an amended judgment and attached a written statement of reasons to supplement the reasons it gave in open court for the sentence. The judge recalculated the guidelines range as 41-51 months. Thus, the 60-month sentence was a less significant variance. The Seventh Circuit disre­gard­ed the written statement, since (a) the district court lacked jurisdiction to make the change, and (b) when there is an inconsistency between the written statement and the oral pro­nouncement of a sentence, the oral pronounce­ment controls. None­the­less, the panel upheld the 60-month sentence as reasonable. The three counts of conviction hardly captured the scope and duration of the scheme. Defendant stole from his employer for many years causing significant losses. Over time he dealt a serious financial blow to these small family businesses and damaged their credit. U.S. v. Brown, 732 F.3d 781 (7th Cir. 2013).

 

7th Circuit says court gave adequate statement of reasons for sentence. (775) Defendant con­tended that the district court did not consider the 18 U.S.C. § 3553(a) factors in sentencing him. The Seventh Circuit disagreed, finding the court gave an adequate statement of reasons for defen­dant’s sentence. The government had asked for a guidelines sentence, emphasizing that defen­dant had violated his duties as an officer of the court and had not shown remorse. Defendant asked for a below-guidelines sentence based on his family circumstances, and pointing out that the court could consider the health implications of his Interferon treatments. The court addressed defen­dant’s history and characteristics, such as his failure to live up to his role as an officer of the court, and the seriousness of the offense, which involved a member of the bar preparing to engage in armed robbery. By recommending substance abuse treatment during and after defendant’s incar­ceration, the court crafted a sen­tence to address defendant’s particular treatment needs. U.S. v. Millet, 510 F.3d 668 (7th Cir. 2007).

 

7th Circuit cannot review where court sentenced at top of guideline range rather than impose obstruction increase. (775) The district court found that defendant’s wife obstructed justice by lying on the stand. Since the judge believed that defendant and his wife were partners in fraud, he also believed that they were partners in this attempt to deceive the jury. Instead of enhancing defendant’s offense level for obstruction of justice, the judge elected to sentence defendant at the top of a range that had been calculated without an obstruction of justice enhancement. Defendant argued that neither a direct nor an indirect means to hold him accountable for his wife’s perjury was proper, but the Seventh Circuit found this contention not open to appellate review. The court imposed a sentence within a properly determined range, and as the range did not exceed 24 months, the judge had discretion to select a sentence without needing to justify the choice to the court of appeals. See 18 U.S.C. § 3553(c)(1). U.S. v. Rettenberger, 344 F.3d 702 (7th Cir. 2003).

 

7th Circuit upholds court’s explanation for sentence at top of guideline range. (775) Defendant claimed that the district court’s stated reasons for imposing a sentence at the top of the guideline range were contradictory and therefore inadequate under 18 U.S.C. § 3553(c). The Seventh Circuit disagreed, finding the district court provided a detailed and internally consistent explanation to justify its decision. The court recognized that defendant was not required to confess, but stated that a sentence at the high end of the guideline range was appropriate because defendant failed to show “one ounce of remorse, one ounce of acceptance of responsi­bility, one ounce of some sort of understanding of why you are here and what you did[,] … one ounce of recognition.” The court informed defendant that “it would have been nice at some point for you, in whatever oblique way you wanted to do it, to recognize that society was harmed by your activity.” The judge further noted that despite defendant’s insistence that some of the witnesses lied, he thought the evidence against defendant was “overwhelming.” This explanation was both proper and sufficient to satisfy 18 U.S.C. § 3553(c). U.S. v. Ward, 211 F.3d 356 (7th Cir. 2000).

 

7th Circuit affirms where judge issued amended order stating reasons for sentence in middle of range. (775) Defendant had a sentencing range of 108-135. The district court failed to give reasons for imposing a 120-month sentence, as required by § 3553(c)(1) when a sentence exceeds 24 months. The judgment mistakenly said defendant’s range did not exceed 24 months. The Seventh Circuit affirmed because the court issued an amended judgment correcting this error, and stating why it imposed a prison term in the middle of his sentencing range. Although defendant argued that those reasons should have been articulated at the time of sentencing, defendant waived this objection by failing to object to the oversight. U.S. v. Burns, 128 F.3d 553 (7th Cir. 1997).

 

7th Circuit lacks jurisdiction to review reasons for sentence at top of range. (775) Defen­dant argued that the judge erred when he consider­ed defendant’s mental health in determining that defendant should be sentenced at the high end of the guideline range. The Seventh Circuit held that it lacked jurisdiction to review the sentence be­cause it was within the guideline range. A sentenc­ing judge’s ability to consider a defendant’s need for rehabil­itation or medical care is not limited by 28 U.S.C. § 994;  that section is directed to the Sentencing Commission in its promulgation of the guidelines. A district judge is instructed by 18 U.S.C. § 3553(a)(2)(D) to provide the defendant with needed medical care, or other correctional treat­ment, in the most effective manner. U.S. v. Hardy, 101 F.3d 1210 (7th Cir. 1996).

 

7th Circuit holds that court gave adequate reasons for imposing 200‑month sentence. (775) Defendant had a guideline range of 188‑235 months. The Seventh Circuit held that the district court gave adequate reasons for imposing a 200‑month sentence. It stated that defendant attempted to distribute 72 kilograms of 97-percent pure cocaine. Defendant admitted as relevant conduct four automobile trips from Los Angeles to Chicago, all of which were suspected of involving large shipments of mari­juana or cocaine. The court noted that it could easily presume that defendant was involved with a far greater quantity of drugs than set out in his plea agreement. U.S. v. Flores‑Sandoval, 94 F.3d 346 (7th Cir. 1996).

 

7th Circuit permits relying on pending charges to sentence at top of range. (775) Defendant argued that the district court sentenced him at the top of his guideline range based on the incorrect belief that sexual assault charges were pending against him in state court. The 7th Circuit upheld the consideration of the pending charge in setting defendant’s guideline sentence. The district court contacted the state court and determined that, contrary to defendant’s representations, charges against him had not been dropped. U.S. v. Moore, 25 F.3d 563 (7th Cir. 1994).

 

7th Circuit finds that court gave reasons for high sentence. (775) Defendant argued that the district court abused its discretion in sentencing him at the top of his guideline range, failing to give reasons for the high sentence.  The 7th Circuit rejected this claim.  The district court concluded that defendant was a con man who had been preying on people in desperate need of financial assistance for years.  The district court sentenced at the top of the guideline range because of the number of victims, the defendant’s lack of contrition, and the number of years he committed similar misconduct.  U.S. v. Fuller, 15 F.3d 646 (7th Cir. 1994).

 

7th Circuit upholds sentence at top of range for doubt about acceptance of responsibility. (775) Al­though defen­dant received a two level reduction for acceptance of responsibility, he was sentenced at the top of his guideline range because the district court had “doubts” as to whether he had really accepted re­sponsibility.  The 7th Circuit affirmed.  The case was distinguishable from U.S. v. Willard, 909 F.2d 780 (4th Cir. 1990), where the district judge refused to make findings concerning defendant’s acceptance of responsibility and sentenced him based on an over­lap between the two guideline ranges.  Here, the dis­trict court found the exact range into which defen­dant fell, and then sentenced him within that range.  U.S. v. Wagner, 996 F.2d 906 (7th Cir. 1993).

 

7th Circuit upholds consideration of lack of coop­eration in assigning a sentence within guideline range. (775) The 7th Cir­cuit affirmed that the district court could properly consider defendant’s lack of co­operation in assigning a sentence within the guide­lines range.  U.S. v. Price, 988 F.2d 712 (7th Cir. 1993).

 

7th Circuit refuses to remand despite generic ex­planation for assigning base of­fense level. (775) The 7th Circuit refused to remand defen­dant’s case for resentencing, even though the district judge offered only a generic explanation for assigning defendant the offense level corresponding to 6.5 kilo­grams of cocaine.  Remand is necessary only if the defendant offers a meritorious argu­ment for remand­ing.  Here, defendant identi­fied no evidence to sub­stantiate his claim that the district judge erroneously found that the distribution of 6.5 kilograms of co­caine was reasonably foreseeable to him.  U.S. v. Mo­jica, 984 F.2d 1426 (7th Cir. 1993).

 

7th Circuit finds statement of reasons concerning drug quantity was adequate. (775)) The 7th Circuit found that the district court articulated an ad­equate statement of reasons for defendant’s sentence.  U.S. v. Edwards, 945 F.2d 1387 (7th Cir. 1991) does not state that a judge’s failure to go be­yond a generic statement of reasons entitles a defendant to resen­tencing as a matter of law.  Rather, in the absence of such individualized findings, the appellate court must determine, on a case-by-case basis, whether a given de­fendant has offered meritorious arguments for remanding for resentencing.  Here, the judge ar­ticulated particularized reasons for defendant’s sen­tence.  The judge stated that defendant was the initial player in the con­spiracy, that he was personally in­volved in the sale of 965 grams of cocaine, that evi­dence at trial connected him with each of the eight other conspirators.  This was more than a boilerplate explanation of the basis of his conclusion that defen­dant could reasonably foresee distribution of 6.5 kilograms of co­caine.  Moreover, defendant’s failure at sen­tencing to object to the explanation given by the judge waived this claim.  U.S. v. Mo­jica, 984 F.2d 1426 (7th Cir. 1993).

 

7th Circuit finds that judge made particu­larized findings of defendant’s role. (775) The 7th Circuit affirmed that the district judge made particularized findings with re­spect to defendant’s role in the drug conspir­acy.  He found that (a) defendant directly par­ticipated in two transactions which involved a total of “about 1200, 1250 grams of cocaine”;  (b) one of the deliveries with which he was in­volved was among the biggest involved in the conspiracy; and (c) defendant had more than a casual relationship with at least eight con­spirators, including several central figures in the conspiracy. U.S. v. Mo­jica, 984 F.2d 1426 (7th Cir. 1993).

 

7th Circuit finds no jurisdiction to re­view proper sentence despite im­proper tirade by judge. (775) Defen­dant, a citizen of Mex­ico, en­tered the United States illegally on nu­merous occa­sions and was de­ported almost as many times.  At sentencing, defense coun­sel requested defendant’s sentence be sus­pended on condition of deporta­tion.  This an­gered the sentencing judge, who deliv­ered a lengthy ha­rangue about aliens who illegally reenter the United States.  Defendant was then sen­tenced to the top of his guideline range.  The 7th Cir­cuit found that al­though the judge’s tirade was inap­propriate, it had no ju­risdiction to review defendant’s sentence since it was within his proper guideline range.  Since defen­dant’s sentence was within his guideline range, it was not an “incorrect ap­plication” of the guidelines.  U.S. v. Lopez, 974 F.2d 50 (7th Cir. 1992).

 

7th Circuit refuses to review sentence dis­parity between defendants with the same guideline range. (775) Defendant and his co-conspirator both had appli­cable guideline ranges of 97 to 121 months, but defendant received a 105-month sentence, while his co-conspira­tor received a 97-month sentence.  The district court based the difference upon the co-conspirator’s relatively inactive role in the conspir­acy, the government’s recommen­dation for a mini­mum sen­tence, his promise to cooperate with the government and the fact that he forfeited $109,000 cash along with half of the as­sets of his jewelry store.  Defen­dant ar­gued that he was being punished for ex­ercising his right to trial and for his lack of funds to forfeit.  The 7th Circuit re­fused to consider this ar­gument.  As the court had found in defendant’s first ap­peal, defendant’s disparity of sentence was eclipsed by the dis­trict court’s im­position of a sen­tence within the correct guideline range.  U.S. v. Cea, 963 F.2d 1027 (7th Cir. 1992).

 

7th Circuit affirms reliance upon prior bad act which did not result in conviction. (775) The 7th Circuit rejected a constitu­tional challenge to the dis­trict court’s consid­eration, in selecting a particular sentence within defendant’s guideline range, of an in­cident in which defendant shot a man, despite the fact that de­fendant was never convicted of the event.  Notwith­standing the contrary view expressed by the 9th Circuit in U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991), a judge may consider prior acts that did not result in a convic­tion.  U.S. v. Smith, 953 F.2d 1060 (7th Cir. 1992).

 

7th Circuit rejects contention that infor­mant’s tes­timony was too vague to deter­mine drug quantity. (775) Although defen­dant contended that he was in­volved with less than 50 kilograms of cocaine, the dis­trict court adopted the presentence report’s determina­tion, based on the testi­mony of an infor­mant, that de­fendant was respon­sible for 77 kilo­grams of cocaine.  The 7th Circuit re­jected defen­dant’s contention that the infor­mant’s testimony was too vague and specula­tive.  The informant testified that from June 1988 to Febru­ary 1989, he received up to 10 kilo­grams of cocaine from defendant every two weeks, al­though the normal quantity de­livered was only one kilo­gram.  After Febru­ary 1989, cocaine deliveries ranged be­tween five and 15 kilograms per trip, including one 27 kilogram delivery.  These de­liveries oc­curred biweekly until May 27, 1990, ex­cept for a month and a half in April 1989.  The dis­trict court had ample opportunity to ob­serve the infor­mant during his testimony.  The court did not im­properly base its finding on evidence presented dur­ing a co-defen­dant’s sentencing hearing.  U.S. v. Her­rera, 948 F.2d 1046 (7th Cir. 1991).

 

7th Circuit remands because district court never speci­fied drug quantity on which sentence was based. (775) De­fendant was convicted of con­spiring to dis­tribute less than 500 grams of cocaine.  He was sen­tenced to 97 months, which would have been a lawful sentence for at least 3.5 but less than five kilograms of cocaine.  The 7th Cir­cuit re­manded for resentencing because the quan­tity of cocaine was never dis­cussed during sentencing.  There was a “bald” statement in de­fendant’s pre­sentence report that the gov­ernment be­lieved defendant was respon­sible for at least four kilo­grams of co­caine.  How­ever, this would be a poor source for esti­mating the quan­tity of co­caine since there was no basis given for the government’s con­clusion.  Even if the presentence report had been expressly adopted by the district court, it would not have suffi­ciently ex­plained the sentence.  In imposing sentence a court must give rea­sons explaining, at the very least, how it computed the base offense level and appli­cable guideline range.  U.S. v. Leichtnam, 948 F.2d 370 (7th Cir. 1991).

 

7th Circuit rules defendant’s refusal to co­operate may be considered in sentencing within guideline range. (775) The policy statement in guideline section 5K1.2 states that a de­fendant’s refusal to assist authori­ties in the investi­gation of other persons may not be considered as an “aggravating sentencing factor.”  The 7th Circuit held that section 5K1.2 does not prevent a district court from relying upon a defen­dant’s refusal to assist when selecting a partic­ular sentence within the applicable guideline range.  The court found that the term “aggravating sentencing factor” re­ferred to a factor justifying an up­ward departure, rather than a factor consid­ered when sentencing within the guide­line range.  The court also rejected defendant’s claim that the dis­trict judge’s con­sideration of defendant’s refusal to as­sist was a violation of the 5th Amendment.  Defendant was not given an additional sentence based on his exer­cise of a 5th Amendment right, since he received a sen­tence within the guideline range. U.S. v. Klotz, 943 F.2d 707 (7th Cir. 1991).

 

7th Circuit upholds reliance on age, role in offense and length of criminal activities to sentence at top of range. (775) The 7th Circuit rejected defendant’s claim that the district court failed to state with particu­larity its reasons for imposing a sentence at the top of the guideline range as re­quired by 18 U.S.C. section 3553(c)(1).  The district court stated that it was basing defendant’s sentence on his age, his role in the offense and the length of time that his crimi­nal conduct lasted.  Although age is not ordinarily rel­evant in sentencing and defendant’s managerial role was al­ready taken into account under guide­line section 3B1.1, the dis­trict court was enti­tled to consider that defendant’s age al­lowed him to use a younger family member in the conspir­acy.  The sentence also reflected the district court’s conclu­sion that defendant “should have known better.”  Moreover, the length of defendant’s criminal conduct sup­ported the sentence.  Defendant had al­ready been indicted in Texas when he moved to Wis­consin to start the same il­legal busi­ness, bringing with him a five-year supply of chemicals.  U.S. v. Fairchild, 940 F.2d 261 (7th Cir. 1991).

 

7th Circuit rules judge provided adequate statement of rea­sons for sentence. (775) De­fendant argued that the district court violated 18 U.S.C. § 3553(c)(1) by failing to state the reasons for the sentence imposed and the reasons for choosing a sentence at a particular point in the range.  The 7th Circuit found de­fendant was not entitled to a remand.  First, defendant had waived this issue by not raising it at sentencing.  Second, the district court sat­isfied the statute by incorporating its 26 page sentencing opinion, which was filed prior to the imposi­tion of sentence.  The opinion addressed the factors which are to be considered at sen­tencing, such as the nature and circumstances of the offense, and it provided the court’s rea­sons for setting defendant’s sentence above the minimum 121-month sentence.  U.S. v. Caicedo, 937 F.2d 1227 (7th Cir. 1991).

 

7th Circuit holds that district courts must state rea­sons for sentences in open court. (775) The district court de­parted downward but did not state in open court its rea­sons for de­parture.  The 7th Circuit held that dis­trict courts must ad­here to the requirements of the act in or­der for them to meet their intended purpose and state their reasons in open court for imposing a particular sentence.  U.S. v. Carey, 895 F.2d 318 (7th Cir. 1990).

 

8th Circuit says failure to explain sentence at bottom of range did not affect substantial rights. (775) 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 rules that court did not improperly consider defendant’s national origin. (775) Defendant, a Cuban national who had been granted asylum in the U.S., argued that his sentence was improper because at sentencing the district court mentioned defendant had “been given an opportunity to come to the United States.” Defendant argued that this statement indicated that the court considered his national origin in determining his sentence, in violation of U.S.S.G. § 5H1.10. The Eighth Circuit ruled that the record did not show that the court improperly considered defendant’s national origin. The court’s statement was a reference to defendant’s being given asylum in the U.S. There was no mention that defendant came from Cuba. Thus, the statement was not necessarily a reference to “national origin.” Moreover, even if the statement was such a reference, there was insufficient evidence to show that national origin was a factor in the sentence imposed on defendant. The court stated three factors which warranted imposing the maximum sentence. The court said that defendant: (1) failed to show remorse for drug dealing; (2) failed to accept responsibility for drug dealing; and (3) impugned the integrity of a detective. In outlining these factors, the court made no reference to national origin. The statement regarding defendant’s political asylum was not made as part of an explanation for the sentence imposed. U.S. v. Pena, 339 F.3d 715 (8th Cir. 2003).

 

8th Circuit says defendant waived right to challenge lack of statement of reasons. (775) Defendant argued on appeal that the district court erred by not stating reasons for the particular point within his guideline range at which he was sentenced. Under 18 U.S.C. § 3553(c), a sentence judge must state reasons for imposing a sentence at a particular point within a sentencing guideline range if that range exceeds 24 months. He noted that the projected guideline range mentioned in his PSR and plea agreement was 168-210 months, a span of 42 months. The Eighth Circuit ruled that defendant waived his right to appeal this issue because he did not request a § 3553(c) statement from the court at sentencing. In the absence of extenuating circumstances, the failure to raise a § 3553(c) objection at sentencing waives the issue. Moreover, defendant’s argument would fail on the merits. The documents on which defendant relied to argue for a guideline range of 168-210 months also stated that a 20-year statutory mandatory minimum sentence applied. A statutory mandatory minimum sentence trumps an otherwise applicable guideline range. The 240-month mandatory minimum became the guideline sentence rather than 168-210 month range he claimed. Thus, he did not have a guideline range exceeding 24 months. U.S. v. McCabe, 270 F.3d 588 (8th Cir. 2001).

 

8th Circuit sentences at top of guideline range because defendant operated faith-based counseling service. (775) In September 1995, defendant and his wife filed a Chapter 7 bankruptcy petition that failed to disclose certain assets. The PSR noted that from 1990 through August 1997 defendant operated the Amazing Grace Ministry Christian Counseling Service. At sentencing, the district court sentenced defendant at the top of the applicable guideline range based in part upon the “hypocrisy” reflected by defendant’s operation of a faith-based counseling service at the same time he engaged in bankruptcy fraud. Defendant argued the court violated § 5H1.10 by increasing his punishment based on his religious beliefs. The Eighth Circuit held that the court’s consideration of defendant’s operation of the counseling service did not violate § 5H1.10. The court did not punish defendant for his religious beliefs, nor did not hold him to a higher standard based on his professed faith. Instead, defendant’s sentence “properly reflect[ed] the inconsistency between his assumption of moral leadership with respect to his clients and his simultaneous commission of bankruptcy fraud. This sort of inquiry into the degree of a defendant’s blameworthiness is entirely appro­priate to the court’s selection of a sentence within the guideline range.” U.S. v. Gunderson, 211 F.3d 1088 (8th Cir. 2000).

 

8th Circuit finds challenge to court’s reasons for sentence “wholly speculative.” (775) The district court excluded a prior conviction from defendant’s criminal history resulting in a criminal history category of IV and a guideline range of 110‑137 month. The court imposed a 137‑month sentence “because of [defendant’s] past involvement in criminal activity.”  Because 137 months fell within the applicable range for category V (130‑162), defendant argued that the district court improperly considered the prior conviction and effectively sentenced her at criminal history category V. The Eighth Circuit found that defendant’s argument was “wholly speculative” and not supported by the record. U.S. v. Byrne, 83 F.3d 984 (8th Cir. 1996).

 

8th Circuit finds court did not duplicate factors used in setting guideline range. (775) Defendant’s guideline range of six to 12 months could be satisfied by home detention and a term of probation. The district court declined to order home detention, noting the amount of loss, the planning involved, and the need for deterrence. Defendant argued that these reasons were already taken into account in setting his guideline range. The Eighth Circuit agreed that it might be improper to rely on factors already taken into account in setting a guideline range as a reason for fixing a sentence within that range. However, the court here specifically referred to its desire for the sentence to have a deterrent effect on defendant and others like him. The court also referred to the exact amount of loss, which was more than the $20,000 minimum that determined defendant’s guideline range. Thus, the sentencing court did not simply duplicate the considerations already used in setting the guideline range. U.S. v. Sykes, 46 F.3d 869 (8th Cir. 1995).

 

8th Circuit has no jurisdiction to review sentence at top of guideline range. (775) Defendant appealed the imposition of the maximum sentence within his applicable guideline range. The 8th Circuit held that it lacked jurisdiction to review the sentence. The district court was not required to state its reasons for imposing the maximum sentence where, as here, the applicable range was less than 24 months. U.S. v. Garrido, 38 F.3d 981 (8th Cir. 1994).

 

8th Circuit holds that reasons for sentence at top of guideline range were not already considered in guidelines. (775) Defendant pled guilty to drug and firearms charges.  The 8th Circuit rejected his claim that he was sen­tenced to the top of his guideline range based on factors which had already been taken into account by the guidelines.  The district court did not simply refer to the possession of weapons and drugs as such.  It referred specifically to the quantity of cocaine and co­caine base, and the fact that two of the weapons possessed were stolen.  The nature of defendant’s prior conviction was also given as a reason.  These specific reasons went be­yond the general basis stated in the guide­lines.  U.S. v. Harris, 997 F.2d 1235 (8th Cir. 1993).

 

8th Circuit reviews reason for sentence at top of range even though court not re­quired to state reason. (775) Because the spread of the applicable guidelines range was less than 24 months, the district court was not required under 18 U.S.C. §3553(c)(1) to state its reasons for imposing a particular sentence within that range.  However, the court chose to state its reasons.  The 8th Cir­cuit held that where a court chooses to give a reason, and a defendant claims that reason is unlawful, a question of law, reviewable de novo on appeal, would arise.  U.S. v. Harris, 997 F.2d 1235 (8th Cir. 1993).

 

8th Circuit affirms consideration of co-de­fendant’s probable sentence in choosing sentence within guideline range. (775) The 8th Circuit held that in choosing a sentence within a defendant’s guideline range under 18 U.S.C. section 3553(c)(1), a district court may consider a co-defendant’s probable sen­tence.  Section 3553(a)(6) states that among fac­tors to be considered during sentencing, the court should consider the need to avoid unwarranted sen­tence disparities among de­fendants who have been found guilty of simi­lar conduct.  Here, the dis­trict court com­pared the involvement of defendant and his co-defendant in the same drug transaction.  More­over, the court considered defendant’s back­ground, involvement in the offense, and age.  The court ade­quately stated its rea­sons for defendant’s sentence.  U.S. v. Stanton, 973 F.2d 608 (8th Cir. 1992).

 

8th Circuit finds district court considered factors listed in 18 U.S.C. section 3553(a). (775) The 8th Circuit rejected defendant’s claim that in imposing sen­tence, the district court failed to properly con­sider the factors enumerated in 18 U.S.C. section 3553(a).  The district court discussed the scope and objectives of the conspiracy; the defendants’ lack of prior criminal records; the objectives of punishment, general deter­rence and inca­pacitation; the applicable guideline ranges and the justification for downward depar­tures; the lesser culpability of three of the de­fendants; and the inability of four of the de­fendants to pay a fine.  U.S. v. Knapp, 955 F.2d 566 (8th Cir. 1992).

 

8th Circuit affirms that court adequately stated rea­sons for sentence at top of guideline range. (775) The 7th Cir­cuit re­jected defendant’s claim that the dis­trict court failed to state adequate reasons for sentenc­ing him at the top of his guideline range as required by 18 U.S.C. section 3553(c)(1).  The dis­trict court’s writ­ten judgment listed only “career of­fender” as the reason for the maximum sen­tence.  However, the court’s orally-imposed sentence con­trolled the appellate court’s re­view of the rea­sons for the sentence.  At defendant’s sentenc­ing hear­ing, the court gave specific rea­sons for the maximum sen­tence, noting that de­fendant had pre­viously appeared be­fore the court and de­fendant’s pro­bation offi­cer had warned him he would face life in prison if con­victed again.  This was a suffi­cient rea­son for the maxi­mum sentence.  The appellate court noted its concern with the rising number of appeals in­volving sec­tion 3553(c)(1) and urged sentencing courts to re­fer to the facts of each case and explain why they choose a particular point in the sen­tencing range.  U.S. v. Du­morney, 949 F.2d 997 (8th Cir. 1991).

 

8th Circuit refuses to review sentence at top of properly calculated guideline range. (775) The 8th Circuit found that it lacked ju­risdiction to consider de­fendant’s claim that the district court abused its discre­tion in sen­tencing him at the top of his guideline range.  A sentence is not reviewable merely because it is at the top of a properly calcu­lated guide­line range.  The sen­tencing range did not span more than 24 months, which would trigger the requirement that the district court state its reasons for imposing a sentence at a particular point within that range.  U.S. v. Woodrum, 959 F.2d 100 (8th Cir. 1992).

 

8th Circuit rules district court need not give indi­vidualized statement of reasons for similar defen­dants. (775) Defendant was one of five co-defendants involved in a con­spiracy to cultivate and distribute marijuana.  The 8th Circuit rejected defendant’s claim that her sentence was unlawful because the dis­trict court did not support it with an indi­vidualized state­ment of reasons.  While the court did not ad­dress all five defendants indi­vidually, it stated at length its rea­sons for granting downward departures to all five de­fendants.  In granting lesser sentences to de­fendant and two other caretakers of the mar­ijuana plants, the court stated its belief that they may not have been aware of the enormity of the enterprise.  A court is not required to give an individualized state­ment of reasons when the same reasons may apply to two or more co-defendants.  U.S. v. Knapp, 955 F.2d 566 (8th Cir. 1992).

 

8th Circuit vacates sentence at top of guide­line range be­cause district court improperly considered defen­dant’s alien status. (775) Defendant was a Nigerian citi­zen who com­mitted insurance fraud.  The district court sentenced defendant at the top of the applica­ble guide­line range be­cause (a) the crime could have resulted in a much greater loss if the victims had failed to discover it, (b) defen­dant failed or refused to identify other partici­pants in the fraud, and (c) defendant was not a citizen of the United States.  The third factor was only in the judge’s oral statements, and not his written order.  The 8th Circuit found that because the district court’s consid­eration of defendant’s alien status was both an incorrect application of the guidelines and a viola­tion of law, it had authority to review his sentence un­der 18 U.S.C. § 3742(e).  Although two of the reasons men­tioned by the judge were permissible bases for the sentenced imposed, the third was not.  Because the appellate court could not be sure that the district court would have im­posed the same sentence absent the impermissible con­sideration, the sentence was vacated, and the case re­manded for recon­sideration.  U.S. v. Onwuemene, 933 F.2d 650 (8th Cir. 1991).

 

8th Circuit finds adequate reasons for im­posing sen­tence where range exceeded 24 months. (775) When the sentencing range ex­ceeds 24 months, the district court must state its reasons for imposing a particular sentence within the range.  Here the guideline range was 168 to 210 months, and the district court im­posed a 197-month sentence.  The 8th Cir­cuit found that the district court adequately stated its reasons for the sentence.  It consid­ered de­fendant’s three prior con­victions and the fact that he committed the instant offense while on probation.  Defendant requested leniency based on his military ser­vice, and the district court stated that the only reason it did not sentence defendant at the top of the guide­line range was defendant’s military service.  U.S. v. Tate, 915 F.2d 400 (8th Cir. 1990).

 

8th Circuit holds that sentencing court ade­quately ex­plained reasons for seven-fold de­parture. (775) Defen­dant was sentenced to a term of 210 months, which was a seven-fold departure from the guideline range.  De­fendant had been convicted of possession of cocaine for sale and invol­untary manslaughter, but had failed to ap­pear for sentencing on ei­ther of those charges.  The trial court indicated that the reason for the departure was that they could not be included in the criminal his­tory category because he had not been sentenced on these two convictions.  The 8th Circuit found that be­cause a “considerable portion of the sentencing pro­cedure was spent discussing the two convictions and their relation­ship to the guidelines”, there was no merit to defen­dant’s argument that an adequate explanation for his sen­tence was lacking.  U.S. v. Jones, 908 F.2d 365 (8th Cir. 1990).

 

8th Circuit upholds district court’s failure to resolve dis­puted facts that did not affect ca­reer offender status. (775) Defendant argued that the district court failed to make findings in the pre-sentence report regarding dis­puted facts such as acceptance of responsibility, role in the offense and drug quantity.  The 8th Cir­cuit upheld the district court’s conduct, holding that because defen­dant was a career of­fender whose guideline range far ex­ceeded the statu­tory maximum term, favorable resolu­tion of the remaining factual disputes would have had no impact on the sentence.  U.S. v. Thomas, 894 F.2d 996 (8th Cir. 1990).

 

8th Circuit finds reasons for sentencing were ade­quately stated despite sparseness of writ­ten memoran­dum. (775) Defendant argued that the district court failed to state in open court its reasons for sentencing.  The 8th Cir­cuit held that although the sentencing mem­orandum was “sparing in giving reasons,” the record of the sentencing proceedings showed that no credit for ac­ceptance of re­sponsibility was given because of defen­dant’s continued criminal conduct.  There was no error in failing to artic­ulate the reasons in the written memo­randum.  U.S. v. Wivell, 893 F.2d 156 (8th Cir. 1990).

 

8th Circuit rules sentencing court is required to resolve all factual dis­putes prior to denying adjustment for ac­ceptance of re­sponsibility. (775) Defendant, convicted of being a felon in possession of a firearm, claimed that he vol­unteered his possession of a weapon to the ar­resting officer, thus entitling him to a 2 point decrease in his of­fense level for acceptance of responsibility.  However, the probation re­port stated that he denied possessing a weapon when ar­rested.  Since the district court failed to resolve this dis­pute before denying the adjust­ment, the 8th Circuit va­cated the sentence and remanded it so this determination could be made.  The district court should then recon­sider its refusal in light of its finding.  U.S. v. Anderson, 886 F.2d 215 (8th Cir. 1989).

 

8th Circuit holds district court’s findings on disputed facts did not deny due process. (775) Defendant argued that he was denied due pro­cess because the presentence report was factu­ally inaccurate.  The 8th Circuit rejected his challenge, hold­ing that he was afforded due process because the District Court made find­ings on his allega­tions as required by Fed. R. Crim. P. 32(c)(3)(D).  The District Court’s find­ings that the defen­dant had ob­structed jus­tice, as alleged by the report, were not clearly erroneous, and a 2 point increase in the offense level was therefore proper.  U.S. v. Sciacca, 879 F.2d 415 (8th Cir. 1989).

 

9th Circuit rules that statement of reasons need not precede imposition of sentence. (775) After imposing sentence, the district court explained its reasons under 18 U.S.C. § 3553(a). On appeal, defendant argued that the district court was required to explain its reasons under § 3553(a) before imposing sentence. The Ninth Circuit held that a district court need not explain its reasons for a given sentence before it imposes that sentence. U.S. v. Juan, 704 F.3d 1137 (9th Cir. 2013).

 

9th Circuit says sentencing court need not address defendant’s arguments for lower sen­tence. (775) Defendant argued that the district court should impose a sentence below the advis­ory guidelines range based on several factors. At sentencing, the district court imposed a sentence at the bottom of the guidelines range. In ex­plain­ing the sentence, the court stressed defen­dant’s extensive criminal history and the need to deter defendant from future crimes without explicit mention of defendant’s mitigation arguments. The court said the fact that the defendant’s arguments were considered is clear from the transcript of the sentencing proceeding during which the district court actively engaged and questioned the defense. U.S. v. Perez-Perez, 512 F.3d 514 (9th Cir. 2008).

 

9th Circuit says increasing sentence for lack of re­morse in allocution did not violate First Amend­ment. (775) At defen­dant’s sentencing, the district court announc­ed that it planned to sentence defendant at the low end of the guideline range. Defendant then gave an allocution in which he denied committing the offense, challenged the jurisdiction of the district court, and demanded to be set free. After hearing defendant’s speech, the court stated that because defendant showed no remorse it was sentencing him to the high end of the guideline range. The Ninth Circuit rejected defendant’s contention that the district court had penalized defendant for exercising his First Amendment rights and instead held that the court properly decided on a higher sentence within the range based on defendant’s lack of remorse. U.S. v. Smith, 424 F.3d 992 (9th Cir. 2005).

 

9th Circuit finds failure to explain high-end sentence requires remand. (775) The district court imposed a sentence of 188 months’ imprison­ment, the high end of the applicable sentencing range, without giving a statement of reasons for the statement. The Ninth Circuit reiterated that courts must give “defendant-specific” reasons for imposing a sentence at the high end of a sentencing range when the range exceeds 24 months.  The sentence was vacated and the case was remanded to allow the court to explain its reasons. U.S. v. Delgado, 357 F.3d 1061 (9th Cir. 2004).

 

9th Circuit finds no harm in district court’s failure to state reasons for departure. (775) The PROTECT Act mandates that a district court must state its reasons for departing from the guidelines sentence “with specificity in the written order of judgment and commitment.” 18 U.S.C. § 3553(c)(2). Defendant, who was sen­tenced before the effective date of the PROTECT Act, argued that the district court erred by not adhering to this rule. The Ninth Circuit found that applying this rule retroactively in cases pending on appeal when the Act was passed is not impermissible, but that the district court’s failure to state its reasons was “of no significance” to defendant’s sentence. U.S. v. Daychild, 357 F.3d 1082 (9th Cir. 2004).

 

9th Circuit says failure to give reasons for sentence where range exceeded 24 months was not plain error. (775) If the sentencing range exceeds 24 months, 18 U.S.C. § 3553(c) requires the court to give reasons for imposing a sentence at a particular point within the range. Here, the district court failed to comply with the statute, but defendant forfeited the objection by failing to raise it in the district court. The Ninth Circuit found no plain error because the court’s reasons were implicit in its colloquy with counsel. “It would be a meaningless formal­ity to remand the case for the court to articulate the reasons.” U.S. v. Vences, 169 F.3d 611 (9th Cir. 1999).

 

9th Circuit does not require separate reasons for high end sentence where court departs upward. (775) Defendant Monroy argued that the district court erred by not explaining the reasons for imposing a sentence at the high end of the applicable guidelines range. The Ninth Circuit found the argument misplaced because the sentence resulted from an upward departure. There is no requirement under 18 U.S.C. §3553(c)(1) to explain a sentence where the district court departs upward. The court need only explain the basis for the upward departure. U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).

 

9th Circuit says court must explain reasons for sentence where range exceeds 24 months. (775) Under 18 U.S.C. § 3553(c)(1), where the guideline range exceeds 24 months, the court must give reasons for imposing a sentence at a particular point within the range. In U.S. v. Upshaw, 918 F.2d 789, 793 (9th Cir. 1990), cert. denied, 499 U.S. 930 (1991), the Ninth Circuit held that this meant the court must make a statement in open court that expressly considers he sentencing factors in § 3553(a). Here, the district court simply accepted the presentence report’s recommendations, and never stated why it chose 236 months as the appropriate sentence. Therefore, the sentence was vacated and the case remanded for resentencing. U.S. v. Price, 51 F.3d 175 (9th Cir. 1995).

 

9th Circuit remands for statement of reasons for sentence within range. (775) Where the sentencing range exceeds 24 months, the sentencing court is required by 18 U.S.C. § 3553(c)(1) to state reasons for choosing a sentence within the range. Here, the district court failed to state its reasons for imposing the defendant’s sentences. Accordingly, the Ninth Circuit remanded the case to permit the district court to make an adequate statement of reasons. U.S. v. Manarite, 44 F.3d 1407 (9th Cir. 1995).

 

9th Circuit upholds reasons for sentencing within guideline range. (775) Defendant argued that the district court failed to provide adequate reasons for its sentence, as required by 18 U.S.C. §3553(c). That section requires the court to “state in open court the reasons for its imposition of the particular sentence, and if the [range] . . . exceeds 24 months, the reason for imposing a sentence at a particular point within the range.” The 9th Circuit reviewed the district court’s explanation “to determine if the explanation is specific enough to permit meaningful appellate review.” Here, defendant did not explain how he was hindered in obtaining meaningful appellate review of his sentence. Therefore, the court rejected his claim as meritless. U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), overruled on other grounds by Witte v. U.S., 515 U.S. 389 (1995).

 

9th Circuit remands consecutive sentence for statement of reasons. (775) Defendant was convicted in Texas of smuggling mari­juana and received a 70 month sentence.  He was then convicted in California of drug con­spiracy charges and received a consecutive term of 48 months.  The version of §5G1.3 then in effect authorized the district court to impose a concurrent or consecutive sentence without considering the combined total of drugs in both cases.  However, on rehearing, the Ninth Circuit vacated the consecutive sen­tence and remanded the case to the district court because the statement of reasons for the consecutive term was inadequate to sat­isfy 18 U.S.C. §3553(c).  Congressional con­cern for avoiding unwarranted sentencing disparities supported a combined sentence for the total quantity of drugs, and .  because the record was nearly silent, the court of ap­peals could not determine the district court’s reasons for imposing a disparate sentence.  U.S. v. Conkins, 9 F.3d 1377 (9th Cir. 1993).

 

9th Circuit finds judge’s reasons for sen­tencing at top of range were inadequate. (775) As an armed career criminal, the de­fendant’s guideline range was 262-327 months.  The district court imposed 327 months plus 60 months consecutive.  After­ward, the district court explained that the sentencing guidelines and the Armed Career Criminal Act reflect Congress’ judgment that some people in society cannot adjust and that “there comes a time in a person’s criminal ca­reer when the person is to be exempted from society under all conditions.”  The 9th Circuit held that this statement was insufficient to satisfy the requirements of 18 U.S.C. section 3553(c).  Nor was it adequate for the judge to circle the only justification available for a high end sentence on a written form attached to the judgment, which stated that “criminal his­tory and other criminal conduct supported sentence in top range of guidelines.”  The dis­trict court made no statement pertaining to defendant’s individual conduct, character, and criminal background.  U.S. v. Wilson, 7 F.3d 828 (9th Cir. 1993).

 

9th Circuit upholds explanation for sen­tencing at low end of the range. (775) The district court imposed a sentence at the low end of the guideline range.  In doing so, it ex­plained that “there were mitigating circum­stances arising from (defendant’s diabetic) condition.”  The 9th Circuit said that this ex­planation was sufficient compliance with 18 U.S.C. section 3553(c)(1) which requires the court to explain why it imposed a sentence at the particular point it did within the guideline range. U.S. v. Gardner, 988 F.2d 82 (9th Cir. 1993).

 

9th Circuit finds court stated adequate reasons for departure. (775) The de­fendant argued the dis­trict court im­properly failed to state its reasons un­der 18 U.S.C. section 3553(c)(1), which re­quires the district court to state its rea­sons for choosing a sen­tence within the applicable guideline range if that range exceeds 24 months.  Here, subsection (c)(1) did not apply because the defen­dant re­ceived a sentence below the ap­plicable guide­line range.  In addition, the court provided an adequate state­ment of reasons for imposing a sentence different from the guideline range as re­quired by section 3553(c)(2).  The court clearly stated that it was granting a downward depar­ture for coercion and duress under sec­tion 5K2.12 and that because the defendant’s conduct was not en­tirely reasonable, she was only enti­tled to a two-level downward depar­ture.  The explanation satisfied the statute.  U.S. v. Roe, 976 F.2d 1216 (9th Cir. 1992).

 

9th Circuit upholds written statement of reasons. (775) The 9th Circuit affirmed that the district court’s written “Memorandum of Sentencing Hearing and Re­port of Statement of Reasons” adequately stated its rea­sons for choosing a particular sentence within the guideline range, as required by 18 U.S.C. sec­tion 3553(c).  The statement indicated that defen­dant had committed four prior rob­beries, each within a short time after release from prison for previous robberies, and each motivated by a heroin addiction.  A written statement serves as well as an oral state­ment under section 3553(c).  U.S. v. Johnson, 953 F.2d 1167 (9th Cir. 1992).

 

9th Circuit upholds enhancement even though one rea­son for enhancement was improper. (775) Defendant argued that because one of the district court’s grounds for the obstruction enhancement was improper, the case must be remanded for resentencing under U.S. v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989).  The 9th Circuit re­jected the ar­gument, noting that in Nuno-Para the dis­trict court had not clearly given alternative grounds for the extent of the de­parture.  Here, the district court gave “two separate and suf­ficient grounds for the two-point obstruction enhancement.”  The court made clear that the grounds were “alternative, not cumulative.”  Since the obstruction en­hancement here was proper on at least one ground, remand was not required.  U.S. v. Hernan­dez-Valenzuela, 932 F.2d 803 (9th Cir. 1991).

 

9th Circuit holds that court’s mention of one factor did not indicate a failure to exercise discretion in sen­tencing within the range. (775) Defendant argued that the district court’s citation of the defendant’s criminal history as its rea­son for choosing the top of the applica­ble guideline range in­dicated that the district court failed to consider all of the factors in 18 U.S.C. § 3553(a).  In a per curiam opin­ion the 9th Circuit held that this is­sue was ap­pealable but ruled that “simply be­cause the court in this case chose to mention one partic­ularly important factor does not mean that it failed to consider the others, or that the sen­tence was imposed in violation of law.”  The sen­tence was affirmed.  U.S. v. Cer­vantes-Valenzuela, 931 F.2d 27 (9th Cir. 1991).

 

9th Circuit finds that court would not have given credit for acceptance of responsibility even if it had not relied on dis­puted fact. (775) Although the defendant disputed In denying credit for acceptance of responsibility, the dis­trict court stated that defendant had denied that the firearm was at his residence.  Although the defendant disputed having made the state­ment, the 9th Circuit concluded that based on the district court’s statements, that there was no likelihood that the district court would have granted him acceptance of responsibility even if it had not relied on defendant’s denial that the firearm was at his residence.  U.S. v. Bar­ron-Rivera, 922 F.2d 549 (9th Cir. 1991).

 

9th Circuit reverses where court failed to give adequate rea­sons for choosing a sentence within the range. (775) 18 U.S.C. § 3553(c) requires a statement in open court of the reasons for choosing a sentence within the sentencing range if that range exceeds 24 months.  Here the range was 188-235 months.  The court simply indi­cated that it was im­posing a sentence in the midrange in accordance with it “customary procedure.”  The 9th Cir­cuit found this inade­quate, ruling that the state­ment must include a discussion of the factors used to choose a particular sentence including background, character and conduct, as well as the systemic goals of deterrence, re­habilitation and consistency in sen­tencing.  The sentence was vacated and remanded.  U.S. v. Upshaw, 918 F.2d 789 (9th Cir. 1990).

 

9th Circuit holds that court may satisfy re­quirement of “findings” by adopting the con­clusions of the presen­tence report. (775) In re­solving objections to the pre­sentence report, the court may satisfy the requirement to make its find­ings clear by adopting the conclusions of the presentence re­port.  Here, the presentence report recommended against giving defendant a reduction for acceptance of responsibility.  The judge gave the defen­dant an opportunity to argue at sentencing why he should receive the reduction, and then adopted the pre­sentence report’s recommendation.  The Ninth Circuit held that ‘[n]o more was required under Rule 32(c)(3)(D).”  U.S. v. Rosales, 917 F.2d 1220 (9th Cir. 1990).

 

9th Circuit rules that district court must state reasons for extent of departure. (775) After defendant’s arrest, the Naval Investigative Ser­vice searched his motel room and found armed forces identification cards, equipment used to manufacture false ID cards, and stolen per­sonal checks.  Pursuant to a plea bargain, some counts were dismissed, and the district court departed upward.  The 9th Circuit found that the district court stated adequate reasons for departing, but that it failed to state reasons ex­plaining the extent of the departure.  The case was re­manded to the district court “to express its reasons for the extent of the departure.”  U.S. v. Todd, 909 F.2d 395 (9th Cir. 1990).

 

9th Circuit requires findings to support denial of accep­tance-of-responsibility reduction. (775) At sen­tencing, de­fendant objected to the probation officer’s recommenda­tion that he be denied a reduction in of­fense level for accep­tance of responsibility.  The district judge re­fused to grant the re­duction.  In a per curiam opinion, the 9th Circuit re­manded because of the sen­tencing judge’s failure either to make specific findings supporting the refusal or to adopt ex­pressly the conclu­sions of the pre­sentence report.  The court declined to reach defendant’s argument that the right against self-in­crimination precluded denying him the acceptance-of-responsibility reduction be­cause of his refusal to impli­cate himself in other crimes, but the court noted that re­cent cir­cuit precedent has character­ized the reduction as “merely a benefit which may be ac­corded to a defen­dant if he is able to make the necessary showing.”  U.S. v. Carlisle, 907 F.2d 94 (9th Cir. 1990).

 

9th Circuit rules court’s failure to attach findings to presen­tence report required re­mand for that pur­pose. (775) The trial judge orally agreed with the defendant’s challenge to statements in the presen­tence report, stat­ing her belief that this was the defendant’s first narcotics of­fense.  However, she fail­ed to at­tach her findings to the presentence report as required by Fed. R. Crim. P. 32(c)(3)(D).  She also failed to rule on the defendant’s con­tention that he did not initi­ate this drug deal.  The Ninth Circuit af­firmed the sentences but or­der­ed the case re­manded to ensure compli­ance with Rule 32.  The court noted that on remand no resen­tencing hear­ing will be neces­sary if the district judge is confident that the dis­puted informa­tion played no role in the sen­tencing deci­sion.  U.S. v. Fernandez-Angulo, 897 F.2d 1514 (9th Cir. 1990) (en banc).

 

9th Circuit upholds as sufficient the district court’s finding that the probation report cor­rectly computed the guideline range. (775)  Defendant argued that the district court should have made more express findings concern­ing his role in the crime.  Specifically, he argued that the court was required as a matter of due process to state ex­pressly that the defendant was not merely a courier.  The 9th Circuit re­jected the argu­ment, noting that the defendant did not chal­lenge the ac­curacy of any informa­tion in the report, only inferences drawn from it.  Although specific findings of fact are to be encouraged, the record here reflected “no confusion on anyone’s part as to what the dis­trict court de­cided.”  U.S. v. Rigby, 896 F.2d 392 (9th Cir. 1990).

 

9th Circuit holds that reasons for departure need not be stated in language of 18 U.S.C. 3553(b). (775) 18 U.S.C. § 3553(b) re­quires the court to state spe­cific rea­sons in de­parting from the guidelines.  The Ninth Circuit held, however, that there is “no require­ment that the sen­tencing judge recite the specific lan­guage of 18 U.S.C. § 3553(b).”  In this case, the sentencing judge clearly and specifi­cally identified the factors upon which he based his decision to depart from the guideline range.  The failure to recite certain statu­tory lan­guage “was not error.”  U.S. v. Acosta, 895 F.2d 597 (9th Cir. 1990).

 

9th Circuit holds guidelines dispute need not be re­viewed where judge would impose same sentence either way. (775) The district judge declined to give a two-point downward adjust­ment for acceptance of responsibility, but stated that even if he had, he would have sen­tenced at the high end of the range “[s]o we end up with 33 months either way.”  The Ninth Circuit held that under these cir­cumstances, resolution of the dispute would be “purely advi­sory.”  Therefore the court declined to re­view the is­sue.  U.S. v. Munster-Ramirez, 888 F.2d 1267 (9th Cir. 1989).

 

9th Circuit holds it improper to base sentence partly on defendant’s Colom­bian national ori­gin. (775) In ex­plaining the difference between the 12-year sentence im­posed on defendant, a Colombian, and the 7-year sen­tence imposed on his codefendant, an “Anglo,” the dis­trict court stated in part that the codefendant was “not from a source country, and I want people in Colombia to know it is not going to be toler­ated.”  The 9th Circuit rejected the gov­ernment’s argument that the court was prop­erly penal­izing the de­fendant for being the source of Colombian drugs.  Rather, the court con­cluded that defendant was improp­erly pe­nalized “because of his na­tional origin.”  The sen­tence was vacated and remanded to the trial judge for re­sentencing.  U.S. v. Bor­rero-Isaza, 887 F.2d 1349 (9th Cir. 1989).

 

9th Circuit holds sentence based on erroneous informa­tion is illegal. (775) A sentence im­posed on the basis of erroneous in­formation is illegal.  However the appellant must show that the chal­lenged information is “(1) false or un­reliable, and (2) demonstrably made the basis for the sentence.”  In order to meet this bur­den, the appel­lant must show where it “affirmatively appears in the record that the court based its sentence on improper informa­tion.”  Here, the 9th Circuit held that the appel­lant failed to make a sufficient showing.  Lewis v. Borg, 879 F.2d 697 (9th Cir. 1989).

 

9th Circuit rules that statement of reasons for depar­ture was inadequate and required rever­sal. (775) The district court explained its deci­sion to depart from the Sentencing Guidelines as fol­lows:  “the defendant’s criminal history category signifi­cantly underrepresents the seri­ousness of the defendant’s criminal history, and the seriousness of the defendant’s criminal history more closely resembles that of defen­dants of a category VI criminal history.” The 9th Circuit held that “this conclu­sory statement by the district court is in­adequate to permit meaningful appellate review.”  The district court must “set forth the specific aspects of the defendant’s criminal history.”  Ac­cordingly, the sentence was va­cated.  U.S. v. Wells, 878 F.2d 1232 (9th Cir. 1989).

 

9th Circuit rules court may not make finding at sen­tencing and then dis­claim reliance on it. (775) In pro­nouncing sentence, the trial judge made a specific find­ing that the defendant used children in his marijuana growing operation.  How­ever, the judge then specifically dis­claimed any reliance on these statements.  The 9th Cir­cuit held that this violated Fed. R. Crim. P. 32(c)(3)(D), because the finding is required to be ap­pended to the presentence report and may be used by the Bureau of Prisons and the Parole Commis­sion to determine institu­tion assignment as well as eligi­bility for treatment pro­grams, furloughs and parole.  U.S. v. Kerr, 876 F.2d 1440 (9th Cir. 1989).

 

9th Circuit holds departure from guidelines is not per­mitted absent statement of reasons and specific find­ings. (775) The district court departed upward from the guidelines be­cause the guideline sentence did not ade­quately re­flect the defendant’s criminal history.  The 9th Circuit reversed, stating that “[t]he court’s conclu­sory statement of reasons .ÿ.ÿ. fails to clearly identify the spe­cific aggravating circum­stances.”  In addi­tion, the dis­trict court failed make a specific finding that the Com­mission inadequately considered those circum­stances in formu­lating the guidelines.  “Absent such a finding, de­parture is not permitted.”  U.S. v. Michel, 876 F.2d 784 (9th Cir. 1989).

 

10th Circuit holds lack of written statement of reasons did not require reversal. (775) The district court imposed a downward variance but did not, as required by §3553(c)(2), include a written statement in the order of judgment and commitment that explained its specific reasons for the variance. The government did not raise this issue prior to filing its appeal. The district court committed plain error by neglecting to enter a written statement of reasons, which satisfied the first two prongs of the plain error test. However, the Tenth Circuit held that the government did not meet its burden of showing that its substantial rights were affected by the error. It is the verbal act of sentencing, not its later confirmation in the written order, that formally imposes a sentence. Although a 2003 amendment specifically added the writing requirement to §3553(c)(2), and gave appellate courts the power to remand upon a district court’s failure to comply, this does not require the appellate court to presume that substantial rights are affected. U.S. v. Mendoza, 543 F.3d 1186 (10th Cir. 2008).

 

10th Circuit remands where court failed to address non-frivolous claim that § 3553(a) factor warranted below-guideline sentence. (775) Defendant received a sentence at the low end of the correctly calculated guideline range. Nonetheless, defendant argued that the presump­tion of reasonableness did not apply, and that his sentence was unreasonable, because the district court failed to state reasons for the sentence it imposed and failed to consider his arguments that the § 3553(a) factors warranted a sentence below the applicable guideline range. The Tenth Circuit agreed that the court’s failure to address defen­dant’s arguments at sentencing required resen­tencing. The court stated no reasons for the sentence it imposed, other than noting that it had reviewed the PSR’s factual findings and considered the guidelines application, and then citing defendant’s offense conduct. The court did not refer to the § 3553(a) factors. The pre-Booker requirement that district courts provide sufficient reasons to allow meaningful appellate review of their discretionary sentencing decisions continues to apply in the post-Booker context. Where a defendant has raised a nonfrivolous argument that the § 3553(a) factors warrant a below-guidelines sentence and has expressly requested such a sentence, the appellate court must be able to discern from the record that the sentencing judge did not rest on the guidelines alone, but con­sidered whether the guideline sentence actually conformed to the statutory factors. Defen­dant’s argument that the incongruity between his actual conduct and the 16-level enhancement in § 2L1.2 merited a below-guideline sentence was not clearly meritless – some district courts have imposed below-guideline sentences because of such incongruities. Therefore, the court needed to address this argument. U.S. v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006).

 

10th Circuit holds that court is not required to state on the record how it weighed the § 3553(a) sentencing factors. (775) Defendant contended that the district court erred by not stating on the record how it weighed the § 3553(a) factors other than the guidelines. The Tenth Circuit held that the court was not required to state on the record how it weighed the statutory sentencing factors other than the sentencing guideline range. Section 3553(c)(2) had no bearing on the case because the sentence was within the guideline range. Section (c)(1) did apply, because the sentence exceeded 24 months, but for obvious reasons defendant did not challenge the court’s failure to state why it was imposing a sentence at the bottom of the guideline range. When the defendant has not raised any substantial contentions concerning non-guidelines § 3553(a) factors and the district court imposes a sentence within the guideline range, the court is not required to explain on the record how the § 3553(a) factors justify the sentence. U.S. v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006).

 

10th Circuit says court must state reasons for sentence, even where range does not exceed 24 months. (775) The district court revoked defendant’s con­current terms of supervised release, and sentenced defendant to 24-month consecutive terms. Defendant argued that the district court failed to consider on the record the statutorily mandated facts set out in 18 U.S.C. § 3553(a). The Tenth Circuit held that absent a contrary indication in the record, it would assume that a district court weighed each of § 3553’s sentencing factors in exercising its discretion, even where the district court does not explicitly say so at the sentencing hearing or in its order. Thus, the district court was not obligated to expressly weigh on the record each of the § 3553(a) factors. However, the Tenth Circuit ruled that the district court was required to state in open court, pursuant to § 3553(c), its reasons for imposing consecutive sentences. Section 3553(c) applies even where the sentence does not exceed 24 months. Section 3553(c) imposes a general burden on a sentencing court to “state in open court the reasons for its imposition of the particular sentence.” Although additional burdens apply when the range exceeds 24 months or the court departs, the general requirement set out in § 3553(c) extends to all cases. U.S. v. Rose, 185 F.3d 1108 (10th Cir. 1999).

 

10th Circuit rules court did not refuse to consider bombing conspirator’s personal characteristics. (775) Defendant conspired with Timothy McVeigh in the planning and subsequent bombing of the Alfred P. Murrah Building in Oklahoma City. The district court imposed a life sentence. Defendant argued that the district court failed to give him individual consideration during sentencing. The judge stated, in part, that the life sentence was based upon its view “that anyone, no matter who that person might be, or what his background might be, who participates in a crime of this magnitude, has forfeited the freedoms that this government is designed to protect and defend.” The Tenth Circuit found no error. The court’s comments simply represented a view that the crime of conviction was so horrible that even the most innocent personal background would not mitigate in favor of a sentence less than life imprisonment. U.S. v. Nichols, 169 F.3d 1255 (10th Cir. 1999).

 

10th Circuit finds no prejudice where defendant did not provide sentencing transcript. (775) In a § 2255 motion, defendant contended that the court failed to give reasons for sentencing him at the upper end of his guidelines range. Under 18 U.S.C. § 3553(c)(1), a sentencing court must state its reasons for fixing a particular sentencing within the applicable guideline range whenever that range exceeds 24 months. The Tenth Circuit ruled that defendant did not show that he was prejudiced by the purported violation of § 3553(c)(1). Without the sentencing transcript, which was not included in the record before the court, it was impossible to tell whether the sen­tencing court met the requirements of § 3553(c) (1). Given a court’s expansive discretion to fix a sentence within the guideline range, defendant’s conclusory statement that “no reason” supported his sentence was insufficient. U.S. v. Lopez, 100 F.3d 113 (10th Cir. 1996).

 

10th Circuit refuses to speculate about reasons for sentence within range of less than 24 months. (775) At sentencing, defendant exercised his right of allocution. The court then stated that while it had seriously considered a sentence at the bottom of the guideline range of 87-108 months, it had changed its mind after hearing defendant’s comments and imposed a 100-month sentence. Defendant argued that the court determined his sentence on an improper basis. The Tenth Circuit refused to speculate about the reasons for the sentence. The district court was not required to state its reasons under 18 U.S.C. § 3553(c) because the range was less than 24 months. Defendant’s claim that the court was punishing him for exercising his right to allocution was nothing more than speculation. U.S. v. Smith, 81 F.3d 915 (10th Cir. 1996).

 

10th Circuit upholds constitutionality of life sentence for drug offenses. (775) Defendant conspired to distribute more than 50 grams of cocaine base and possessed, with intent to distribute, more than 500 grams of powder cocaine. The Tenth Circuit held that a life sentence for these crimes was not cruel and unusual punishment. The district court properly considered defendant’s “extended and serious” criminal history in imposing the life sentence. District courts have broad discretion in sentencing a defendant within the range prescribed by Congress. U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995).

 

10th Circuit says failure to recuse was not harmless where judge sentenced at top of range. (775) The district judge erred in failing to recuse himself under 28 U.S.C. § 455(a) based on circumstances that would cause a reasonable person to question his impartiality. The government argued that because defendant’s sentence was within the applicable guideline range, resentencing was unnecessary. The 10th Circuit disagreed. The error was not harmless because the judge chose to sentence defendant at the high end of his guideline range. U.S. v. Greenspan, 26 F.3d 1001 (10th Cir. 1994).

 

10th Circuit remands because district court failed to pro­vide adequate statement of rea­sons. (775) The dis­trict court adopted the pre­sentence report without making any specific findings.  The 10th Circuit re­manded for resentenc­ing and an adequate statement of reasons as required by 18 U.S.C. § 3553(c).  The presentence report included a two level enhancement under § 2D1.1(b)(1) for posses­sion of a firearm during a drug traf­ficking crime.  However, the enhance­ment may be based on either the de­fendant’s own pos­session or the reasonable foreseeability of a co-de­fendant’s possession.  Although a district court need not make par­ticularized findings for guidelines adjustments, the court must at a minimum make a finding that the require­ments for the adjustment have been satisfied.  Here, the ap­pellate court could not determine whether the firearms en­hancement resulted from the weapons found in defendant’s truck or found on the farms or both, or whether the district court applied the correct le­gal standard.  U.S. v. Under­wood, 932 F.2d 1049 (2nd Cir. 1991).

 

10th Circuit holds that career offender guide­line does not require a sentence at top of guideline range. (775) The district court found defendant to be a career of­fender and sen­tenced him to 210 months — the top of the guideline range.  The court suggested it be­lieved a sentence at the maximum of the guideline range was re­quired by 28 U.S.C. § 994(h).  The 10th Circuit remanded for re­sentencing, ruling that § 994(h) is merely a mandate for the Sen­tencing Commission to promulgate guidelines at or near the maximum statutory term.  It does not mandate or even sug­gest what sen­tence within the applicable guideline range should be imposed.  U.S. v. El­liott, 915 F.2d 1455 (10th Cir. 1990).

 

10th Circuit holds that review of reasonable­ness of depar­ture requires district court to explain criteria re­lied upon.  (775) In sen­tencing a felon in possession of a firearm, the district court imposed a sentence twice the maximum sentence allowed by the guidelines.  The court failed to ex­plain why 4 years as op­posed to 24 months was a necessary sentence.  In a 2-1 decision, the 10th Circuit reversed, hold­ing that for an appellate court to be able to review a depar­ture sentence for rea­sonableness, it must “have an explana­tion of why the district court chose the particular magnitude of depar­ture.”  The reasoning un­derlying a departure sen­tence is required be­cause the appellate court “will not spec­ulate as to how a particular sentence was chosen.”  U.S. v. Dean, 908 F.2d 1491 (10th Cir. 1990).

 

10th Circuit finds deficiency in statement of reasons for de­parture. (775) The 10th Circuit vacated an upward de­parture after finding that the statement by the district court that “the conviction does not adequately represent the crimi­nal conduct, and upward departure is war­ranted in this mat­ter” did not even remotely comply with the re­quirements for findings.  U.S. v. Emrick, 895 F.2d 1297 (10th Cir. 1990).

 

10th Circuit remands case for failure to ade­quately state rea­sons for departure. (775) The 10th Circuit va­cated the sen­tence of a bank robber because the district court fail­ed to ade­quately state on the record the rea­sons for up­wardly departing from the guidelines.  It noted that a gen­eral recitation is insufficient.  With­out a court’s enum­er­a­tion of the reasons for departure, an ap­pellate court is left to specu­late, and thus cannot ade­quately review the leg­ality of the departure.  In addition, the dis­trict court fail­ed to state that the grounds for de­parture were not adequately consid­ered by the Commis­sion, which is a con­dition prece­dent for a departure.  Specific reasons are re­quired to effectuate Congress in­tent to elimi­nate un­certainties and disparities in sen­tencing.  U.S. v. Smith, 888 F.2d 720 (10th Cir. 1989).

 

11th Circuit says comments by court after announcing sentence provided adequate explan­a­­tion. (775) The district court found that defendant’s advisory guide­line range was 151-188 months, and sentenced him to 185 months. Defendant argued that the sentence was proced­urally unreasonable because the district court did not offer an adequate explanation for it, as required by 18 U.S.C. § 3553(c)(1). The Eleventh Circuit disagreed. In imposing the sentence, the court expressly referred to defen­dant’s significant criminal history, the fact that he had continued to make fraudulent calls while incarcer­ated, that he admitted he was impulsive and that he “could not stop” offending, and the fact that defendant had skills and talents that could have been put to productive use. Although these statements were made after the sentence was imposed, they were clearly part of the court’s closing remarks regarding the propriety of the sentence imposed. U.S. v. Ghertler, 605 F.3d 1256 (11th Cir. 2010).

 

11th Circuit holds that reimposition of guideline sentence on remand was reasonable. (775) Defendant was convicted of drug trafficking while on board a vessel subject to federal jurisdiction. Based on U.S. v. Booker, 543 U.S. 220 (2005), the appellate court vacated his sentence and remanded for resentencing. After hearing arguments based on the 18 U.S.C.  3553(a) factors, the district court imposed the same 108-month sentence, which was at the bottom of the applicable guideline range. The Eleventh Circuit held that the sentence was reason­able, and the court’s statement of reasons was sufficient. Prior to imposing sentence, the district court heard defendant’s mitigating circum­stances and considered his apology. These items all concerned “the nature of the offense and the history and characteristics of the defendant” under § 3553(a)(1). The court expressly noted the serious­ness of the offense, see § 3553(a)(2), and the parties’ arguments and the PSR’s calculations outlined “the kinds of sentences available,” see § 3553(a)(3). The government also noted that defendant was receiving a much lower sentence that his co-defendants. Because the sentence reflected consideration of several relevant factors under § 3553(a), the sentence was reasonable. There was no error in the court’s explanation of its reasoning for imposing a sentence at the low end of the guidelines. A court is not required to articulate its consideration of each individual § 3553(a) factor, particularly where, as here, it was obvious the court had considered many of them. U.S. v. Bonilla, 463 F.3d 1176 (11th Cir. 2006).

 

11th Circuit considers defendant’s outrag­eous conduct at sentencing. (775) Defendant faced a guideline sentence of 562-627 months. At sentencing, the court commented that defendant had not acknowledged any guilt or fault. Defendant began yelling obscenities at the judge and was removed from the courtroom. The judge believed defendant’s outburst was indicative of his absolute lack of remorse and complete defiance of the rules. So, while the other defendants received the lowest possible sentence, the court sentenced defendant to 627 months, the maximum guideline sentence. The Eleventh Circuit held that the sentencing court did not abuse its discretion in considering defendant’s outrageous conduct at the sentencing hearing. The judge did not increase his sentence as punishment for making those remarks, but because the statements reflected defendant’s lack of remorse. Section 1B1.4 allows a judge to consider any information concerning the background, character or conduct of the defendant. U.S. v. Blackman, 66 F.3d 1572 (11th Cir. 1995).

 

11th Circuit finds no impropriety in judge’s comments about defendants’ racial ideology. (775) Defendants, members of the Ku Klux Klan, burned a cross in the yard of a black family. At sentencing, the judge made disparaging comments about defendants’ membership in the Klan and their racial beliefs. Defendants’ complained that their sentences were affected by their racial ideologies. The Eleventh Circuit found no impropriety, since each defendant received a sentence at the lower end of the guideline range with no upward departure. Defendants were not sentenced based upon their membership in the Klan, but upon their crimes and the relevant sentencing guidelines. Moreover, even if the court had factored the racist attitudes behind the crimes into the sentences imposed, it probably would not have been error. To the extent defendants did not like being lectured by the judge at sentencing, the appellate court was “not sympathetic.”  U.S. v. Stewart, 65 F.3d 918 (11th Cir. 1995).

 

11th Circuit remands where court failed to articulate specific mitigating circumstances. (775) Defendant was convicted of money laundering offenses. The district court departed downward, explaining that §2S1.2 substantially overrepresented defendant’s conduct. The 11th Circuit remanded with instructions to articulate the mitigating circumstances justifying the downward departure. In reviewing downward departures, an appellate court should only consider the reasons actually articulated by the sentencing court. Therefore, a district court granting a downward departure should articulate the specific mitigating circumstances upon which it relies and the reasons these circumstances are of a kind, or to a degree, not adequately taken into consideration by the sentencing commission. U.S. v. Baker, 19 F.3d 605 (11th Cir. 1994).

 

11th Circuit finds no plain error in district court’s fail­ure to sentence defendant at bottom of guideline range. (775) The 11th Circuit rejected defendant’s claim that the district court erred in sentencing him within the guideline range without stating why it did not sentence him at the bot­tom of his guide­line range, as recommended by the govern­ment in his plea agreement.  After imposing sen­tence, the district court asked the parties whether there were any ob­jections to the sen­tence imposed or the find­ings of the court.  Defen­dant’s counsel stated there were none, which waived defen­dant’s current objection.  There was no plain error in defen­dant’s sen­tencing proceeding. U.S. v. Webb, 945 F.2d 967 (7th Cir. 1991).

 

11th Circuit reverses for failure to adequately explain rea­sons for sentence within guideline range. (775) De­fendant was a career offender with an applicable guide­line range of 168 to 210 months.  The district court sen­tenced de­fendant to 200, explaining that this sentence just “seem[ed] right.”  The 11th Circuit found that the district court failed to prop­erly explain its reasons for sentencing defendant at this par­ticular point within the guideline range.  A sentencing court is required to state the reason for imposing a sentence at a particular point within the guideline range when the range ex­ceeds 24 months.  “[A]ll sentences should seem “right” to the sentencing judge; hence a judge’s view that a given sen­tence is appropriate, with­out more detail, is a tru­ism and not an expla­nation.”  U.S. v. Veteto, 920 F.2d 823 (11th Cir. 1991).

 

11th Circuit upholds statement of reasons for imposing life sentence on drug dealer. (775) Defendant was con­victed of various drug re­lated charges and sentenced to life imprison­ment.  Defendant claimed his sentence was imposed in violation of law because the district court failed to ade­quately explain its reasons for imposing a life sentence as re­quired by 18 U.S.C. § 3553(c)(1).  The 11th Circuit held that a court can satisfy § 3553(c)(1) by tailoring its comments “to show that the sentence imposed is appropriate, given the factors to be considered as set forth in § 3553(a).”  In this case the district court met its obligation to give a statement of reasons by noting that defendant’s prior offenses oc­curred while under direct supervision and while as­sisting the government.  These statements indi­cated that the district court felt defendant would continue to break the law as long as he was not incarcerated, and adequately sup­ported the district court’s decision to impose a life sentence.  U.S. v. Parrado, 911 F.2d 1567 (11th Cir. 1990).

 

11th Circuit holds that absent departure, sen­tencing judge need not give reasons justifying the sentence. (775) The defendant argued that since neither the pre­sentence report nor the court’s statements at sentencing reflected ex­press consideration of the factors in 18 U.S.C. § 3553, the court failed to comply with the statute.  The 11th Circuit re­jected the ar­gument, noting that nothing in the statute re­quires the sentencing court to state it had ex­plicitly consid­ered each of the factors listed in § 3553.  “When the court mandates no de­parture, the sentencing judge need not offer further rea­sons justifying the sentence.”  The court did urge district courts to clarify their ul­timate factual findings by more specific find­ings when possible.  But it stated that “a judge must offer reasons . . . only when he departs from the guideline range.”  U.S. v. West, 898 F.2d 1493 (11th Cir. 1990).

 

11th Circuit holds failure to append the tran­script of the judge’s findings to the presen­tence report was a “ministerial matter” that did not require resentencing. (775) Rule 32(c)(3)(D) Fed.R. Crim.P. requires the court to make findings as to dis­puted matters at sen­tencing, or to determine that no finding is nec­essary be­cause the dis­puted matter will not be taken into account in sentencing.  A written record of such findings and determinations must be appended to the presentence report when it is sent to the Bureau of Prisons.  Here the trial court made the required findings but failed to attach them to the pre­sentence report.  The 11th Circuit held that this was sim­ply a “ministerial matter” which may be remedied without resentencing by attaching a copy of the sentencing hear­ing transcript to the presen­tence report.  U.S. v. Forbes, 888 F.2d 752 (11th Cir. 1989).

 

D.C. Circuit rejects claim that court imposed longer sentence for rehabilitation purposes. (775) De­fendant argued that his sentence violated 18 U.S.C. § 3582(a), which prohibits prison time as a means of rehabilitation. See Tapia v. U.S.,  131 S.Ct. 2382 (2011). The D.C. Circuit disa­greed. At sentencing, the district court gave no indication that it thought time in prison would aid defendant’s rehabilitation. Although the court discussed the process of rehabilitation, it did so only in connection with elements of defendant’s sentence other than imprisonment. For instance, only after it im­posed defendant’s 60-month term of incarceration did it turn to the rehabilitative portions of the sentence, stating that it recom­mended defendant be placed in intensive drug treatment rehabilitation, and that upon release, he be placed in intensive psychiatric treatment. At no point did the district court suggest that the rehab­ilitation related to anything other than the treat­ment of defendant’s mental health and the terms of his supervised release. The State­ment of Rea­sons did not contradict this. Noth­ing on the form indicated that rehabilitation was a factor when the court determined defendant’s prison time. U.S. v. Godoy, 706 F.3d 493 (D.C. Cir. 2013).

 

D.C. Circuit, en banc, upholds “smaller” reduction for defendant who went to trial. (775) Although defendant went to trial, the district judge granted a reduction for accep­tance of responsibility, thereby reducing his guideline range from 151 to 188 months to 121 to 151 months.  The judge imposed a 127-month sentence, stating that if defendant had pled guilty, he would have imposed the minimum sentence.  The D.C. Circuit, en banc, affirmed, holding that when a sentenc­ing judge gives a defendant credit for accep­tance of responsibility, the judge may con­sider the defendant’s decision to go to trial as evidence that the acceptance was half-hearted.  The judge did not impose a pun­ishment based on defendant’s decision to go to trial.  Instead, the judge merely viewed de­fendant’s timing in pleading guilty as perti­nent to the scope of the benefit he should re­ceive.  Chief Judge Mikva, joined by Judges Wald, Edwards and Sentelle, dissented, be­lieving the judge improperly punished the de­fendant for going to trial.  U.S. v. Jones, 997 F.2d 1475 (D.C. Cir. 1993) (en banc).

 

D.C. Circuit, en banc, upholds “smaller” reduction for defendant who went to trial. (775) Although defendant went to trial, the district judge granted a reduction for accep­tance of responsibility, thereby reducing his guideline range from 151 to 188 months to 121 to 151 months.  The judge imposed a 127-month sentence, stating that if defendant had pled guilty, he would have imposed the minimum sentence.  The D.C. Circuit, en banc, affirmed, holding that when a sentenc­ing judge gives a defendant credit for accep­tance of responsibility, the judge may con­sider the defendant’s decision to go to trial as evidence that the acceptance was half-hearted.  The judge did not impose a pun­ishment based on defendant’s decision to go to trial.  Instead, the judge merely viewed de­fendant’s timing in pleading guilty as perti­nent to the scope of the benefit he should re­ceive.  Chief Judge Mikva, joined by Judges Wald, Edwards and Sentelle, dissented, be­lieving the judge improperly punished the de­fendant for going to trial.  U.S. v. Jones, 997 F.2d 1475 (D.C. Cir. 1993) (en banc).

 

D.C. Circuit affirms sentencing D.C. mayor, who “let down” com­munity, at top of guideline range. (775) De­fendant, the mayor of the Dis­trict of Columbia, was con­victed of posses­sion of cocaine.  He claimed that his sentence should have been vacated because, in sentenc­ing within the guideline range, the district court relied on unfounded as­sumptions that defen­dant “let down” the community and gave “aid, comfort and encouragement to the drug cul­ture at large.” The D.C. Circuit rejected this claim.  The district court relied on facts that defen­dant and his counsel admitted:  defen­dant failed as a role model to the citizens of Wash­ington, D.C., and contributed to “the an­guish that illegal drugs have in­flicted” on the city.  The statement that his conduct gave “aid, comfort and encour­agement” to the drug cul­ture was not a finding that defen­dant’s conduct had an ad­verse effect on the community, such as increasing drug use.  Rather, the statement was simply part of the court’s finding that defen­dant failed as a leader and role model by sending a signal condoning the use of ille­gal drugs.  U.S. v. Barry, 938 F.2d 1327 (D.C. Cir. 1991).

 

D.C. Circuit holds that statement of particu­lar reasons is required only where sentencing range is greater than 24 months. (775) Defen­dant argued that the “particularity re­quirement” of 18 U.S.C. § 3553(c)(1) came into play where the sentencing range al­lowed sentences of over 24 months.  The D.C. circuit rejected the argument, holding that the district court need only given specific reasons for imposing a sentence within the guideline range where the range varies by more than 24 months.  U.S. v. Zine, 906 F.2d 776 (D.C. Cir. 1990).

 

D.C. Circuit rules that court need not state reasons for selecting a point within range when sentence is less than 24 months. (775) 18 U.S.C. § 3553(c)(1) re­quires the District Court to explain the choice of a par­ticular sentence when the guideline range exceeds 24 months.  Therefore the district did not err in failing to explicitly state the reasons for its 10-month sentence.  Moreover, the circuit court held that the record ade­quately revealed that a two point increase in the defen­dant’s offense level was due to his role in the of­fense, even though the district court did not explicitly state the section it relied upon (§ 3B1.1(c)).  Nevertheless the court stated that in the future “the district court” should refer by section to the guidelines upon which it relies, or ex­pressly state that it is imposing a sentence in accor­dance with the guide­lines sections identified in the presentence report.”  U.S. v. Williams, 891 F.2d 921 (D.C. Cir. 1989), superseded on other grounds by guideline as stated in U.S. v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991).

 

D.C. Circuit holds that even if sentence falls within ei­ther of two guideline ranges, remand may be necessary. (775) Where the sentence falls within either of two ar­guably applicable guidelines ranges and it is clear that the same sentence would have been imposed under ei­ther guidelines range, the court need not re­solve the dis­pute.  “Where it appears, however, that the district court chose a sentence because it was at the low end of the applicable guide­lines range, the court should remand for resen­tencing.”  U.S. v. Williams, 891 F.2d 921 (D.C. Cir. 1989), superseded on other grounds by guideline as stated in U.S. v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991).

 

New York District Court holds that guidelines require statement of reasons only for cer­tain sen­tences does not violate equal protection. (775) The Eastern District Court of New York held that be­cause no suspect class is involved, the only inquiry to be made under the equal protection clause is whether the guide­lines are reason­able in light of the congres­sional pur­pose in enacting them.  Congress was justified in re­quiring a statement of reasons for partic­ular sentences only when the range ex­ceeds 24 months be­cause only at this upper end of the sentencing scale would there be a “serious po­tential for un­wanted or groundless dispari­ties.”  U.S. v. Dixon, 713 F.Supp. 565 (E.D.N.Y. 1989).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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