§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).