§870 Standard of Review, Generally
(See also substantive topics)
5th Circuit reverses where oral sentence failed to include written judgment’s mental health treatment. (870) At sentencing after revocation of supervised release, the district court orally imposed a new condition of release ordering defendant to take medication for his bipolar disorder. However, the written judgment ordered him to undergo mental health treatment. The Fifth Circuit held that the district court’s oral discussion of medication did not put defendant on notice that he had to undergo mental health treatment. The special supervised release condition was stricken from the written judgment. U.S. v. Prado, __ F.4th __ (5th Cir. Nov. 11, 2022) No. 22-4027.
9th Circuit clarifies standards of review for hearsay admitted at sentencing. (770)(870) The Ninth Circuit held that the question of procedural reliability of a hearsay statement offered by the government at sentencing, i.e., that defendant had an adequate opportunity to confront the corroborative evidence supporting the hearsay, is a legal question that the court of appeals reviews de novo. The court held that substantive reliability, i.e., whether statements received at sentencing are from reliable sources or are consistent enough with one another to support their probable truth, is a factual question subject to clear error review. U.S. v. Franklin, __ F.4th __ (9th Cir. Nov. 23, 2021) No. 20-30136.
6th Circuit finds interests of justice justified considering error even though it was invited. (870) Defendant argued on appeal that the district court erroneously found he was in criminal history category VI, when he was actually in category V. However, defendant had invited the error by stating in his district court brief that he was in category VI. Nevertheless, the Sixth Circuit found that it was in the interests of justice to consider the error even though it had been invited. U.S. v. Montgomery, __ F.3d __ (6th Cir. May 24, 2021) No. 20-1201.
D.C. Circuit reviews compassionate release motions under abuse of discretion standard. (870) The D.C. Circuit held that it would review compassionate release grants or denials under the abuse-of-discretion standard. The court found that the abuse-of-discretion standard comports with the language of the statute and accords with the discretion a district court has when reviewing its original sentence. U.S. v. Long, __ F.3d __ (D.C. Cir. May 18, 2021) No. 20-3064.
5th Circuit says “pervasiveness” of fraud is a question of fact reviewed only for clear error. (219)(870) Defendant argued that the determination of whether fraud was “pervasive” at defendant’s company, was a legal question reviewed de novo on appeal. The Fifth Circuit rejected the argument, ruling that the more limited “clearly erroneous” standard of review applied because the district court’s “pervasiveness” determination was a factual finding, not a question of law. U.S. v. Barnes, __ F.3d __ (5th Cir. Oct. 28, 2020) No. 18-31074.
5th Circuit uses plain error review even though defendant “noted” proffer information could not be used. (790)(870) On appeal, defendant argued that the use of his proffer to set his offense level violated his plea agreement. At sentencing, defendant “noted” that the proffer information could be used to rebut defendant’s evidence, but he did not explicitly assert that the government’s use of that information constituted a breach of the plea agreement. The Fifth Circuit held that defendant’s remarks at sentencing were not sufficiently specific to put the district court on notice of his claim, so the court applied plain error review. U.S. v. Tapia, __ F.3d __ (5th Cir. Jan. 6, 2020) No. 18-10161.
6th Circuit says court may believe some trial witnesses and disbelieve others in setting drug quantity. (254)(870) At trial, defendant was convicted of a drug conspiracy that involved both heroin and cocaine. At sentencing, she argued that she was responsible for only the cocaine part of the conspiracy and had no involvement with the heroin. The district court rejected that argument and found, based on trial evidence, that defendant was involved with purchase, packaging, and transportation of all the drugs. The district court found that some trial testimony supported defendant’s argument but dismissed it as “just talk.” The Sixth Circuit found no clear error, noting that the district court had sat through the trial and was entitled to believe some witness testimony and disbelieve others. U.S. v. Smith-Kilpatrick, __ F.3d __ (6th Cir. Nov. 7, 2019) No. 18-1671.
6th Circuit says standard of review for assessments depends on question presented. (870) The Justice for Victims of Trafficking Act, 18 U.S.C. § 3014, requires the district court at sentencing to impose a $5,000 assessment on a non-indigent defendant convicted of specified crimes. The Eighth Circuit held that it would review the district court’s ruling as to what constitutes indigence under a de novo standard and its determination that a particular defendant is indigent under the “clearly erroneous” standard. U.S. v. Shepherd, __ F.3d __ (6th Cir. May 1, 2019) No. 18-3993.
10th Circuit says standard of review for Johnson claim depends on whether evidentiary hearing was held. (870) In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held unconstitutionally vague the portion of the Armed Career Criminal Act that allowed imposition of a mandatory minimum sentence for a defendant who had a prior conviction that “involves conduct that presents a serious potential risk of physical injury to another.” The Tenth Circuit held that the standard of review for a Johnson claim is de novo unless the court conducted an evidentiary hearing from which it made findings. Unless the district court had the benefit of observing live testimony in an evidentiary hearing, the Tenth Circuit held that it can review the sentencing record and the relevant background law on equal footing with the district court. U.S. v. Copeland, __ F.3d __ (10th Cir. Apr. 23, 2019) No. 17-5125.
9th Circuit says remedy under 28 U.S.C. § 2255 is reviewed for abuse of discretion. (870) Defendant appealed the remedy he received in a motion under 28 U.S.C. § 2255. The Ninth Circuit held that the applicable standard of review for a district court’s determination of the appropriate remedy under § 2255 is abuse of discretion. The court distinguished its cases stating that the applicable standard of review for a district court’s grant or denial of a § 2255 motion is de novo. Troiano v. U.S., __ F.3d __ (9th Cir. Mar. 22, 2019) No. 18-15183.
4th Circuit says harmless-error review is limited to substantive reasonableness. (870) Defendant’s sentence was subject to plain error review and therefore he had to show that he was prejudiced by any error. He raised a claim that his sentence was procedurally unreasonable. The Fourth Circuit held that when applying harmless-error review of any kind, its review is limited to the substantive reasonableness of sentences. U.S. v. Mills, __ F.3d __ (4th Cir. Mar. 5, 2019) No, 16-4777.
5th Circuit finds challenge to criminal history is not reviewable as plain error. (246)(870) Defendant was convicted of drug trafficking. For the first time on appeal, he argued that the district court’s improper calculation of his criminal history made him ineligible for a “safety valve” reduction below the mandatory minimum, under 18 U.S.C. § 3553(f). The Fifth Circuit found no plain error, because defendant would not have been eligible for the “safety valve” regardless, because he had a criminal history point for a conviction defendant did not challenge. U.S. v. Cordell, __ F.3d __ (5th Cir. Oct. 19, 2018) No. 17-30937.
7th Circuit finds no plain error where error would not affect sentencing range. (504)(870) At defendant’s sentencing, the district court mistakenly included two misdemeanor convictions in defendant’s criminal history. The Seventh Circuit found no plain error because defendant’s sentencing range was life in prison regardless of whether the two misdemeanor convictions were included. For that reason, any error would not have affected defendant’s substantial rights. U.S. v. Price, __ F.3d __ (7th Cir. Oct. 19, 2018) No. 17-3077.
(315)(431)(450)(715)(870) U.S. v. Christensen, 801 F.3d 970 (9th Cir. 2015), amended without changing the summaries, __ F.3d __ (9th Cir. July 8, 2016) No. 08-50531.
11th Circuit reviews de novo §3553(c)(2) claim not raised below. (800)(870) Defendant violated his conditions of supervised release. His guideline range was 21-27 months, but the court sentenced him to the statutory maximum of 60 months. Defendant argued, for the first time on appeal, that the court violated §3553(c)(2) by failing to provide specific reasons for his non-guideline sentence. The Eleventh Circuit held that it would review the claim de novo rather than for plain error. Under U.S. v. Bonilla, 463 F.3d 1176 (11th Cir. 2006), “[t]he question of whether a district court complied with 18 U.S.C. §3553(c)(1) is reviewed de novo, even if the defendant did not object below.” There was no discernible reason to treat subsections (c)(1) and (c)(2) differently for purposes of standard of review. The panel distinguished Bonilla from U.S. v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014), which applied plain error review to a challenge to the reasonableness of a revocation sentence. Vandergrift will be used in most procedural sentencing cases “given its strong response to tactical silence.” Bonilla provides an exception for claims that can be evaluated on a silent record. Because §3553(c)(2) affirmatively requires the district court to provide a specific reason for a non-guideline sentence, a silent record exposes the error. U.S. v. Parks, __ F.3d __ (11th Cir. May 20, 2016) No. 15-11618.
9th Circuit upholds 36-month within-guidelines sentence for wiretapping. (315)(870) Defendant, a lawyer, was convicted of illegal wiretapping, in violation of 18 U.S.C. § 2511(1)(a). At sentencing, the district court increased defendant’s offense level by 7 based on three enhancements and departed upward by three offense levels under § 5K2.0(a)(2) because defendant’s offense level failed to account for the harm defendant had caused. The resulting guidelines range was 30-37 months, and the district court sentenced defendant to 36 months. Reviewing for substantive reasonableness, the Ninth Circuit upheld the sentence. U.S. v. Christensen, __ F.3d __ (9th Cir. Aug. 25, 2015) No. 08-50531.
9th Circuit includes departure in overall reasonableness review. (715)(870) Defendant was a lawyer who hired a private investigator to wiretap the spouse of a client to obtain information about a child support dispute. Defendant was convicted of illegal wiretapping, in violation of 18 U.S.C. § 2511(1)(a). At sentencing, the district court departed upward three levels under § 5K2.0(a)(2), finding that defendant’s Guidelines range failed to account for the harm he had caused. The Ninth Circuit declined to consider the appropriateness of the departure and instead held that defendant’s overall sentence should be reviewed for reasonableness. U.S. v. Christensen, __ F.3d __ (9th Cir. Aug. 25, 2015) No. 08-50531.
9th Circuit finds 262-month sentence reasonable for child pornography. (310)(870) Defendant possessed more than 11,000 images of child pornography, and he shared that pornography with others on a peer-to-peer network. Defendant was found guilty of distribution and possession of child pornography. At sentencing, the district court imposed a 262-month, within-Guidelines sentence. The Ninth Circuit held that this sentence was not substantively unreasonable. U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585. XE “U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585.”
Supreme Court allows sentencing court to disagree with crack/powder disparity in guidelines. (870) When defendant was sentenced, the federal drug-trafficking statute, 21 U.S.C. § 841, and the Sentencing Guidelines required the same sentence for a defendant who dealt a quantity of crack cocaine and a defendant who dealt 100 times that quantity of powder cocaine. Defendant’s guideline range for dealing crack was 228 to 270 months. The district court stated that it disagreed with the 100-1 powder-to-crack ratio and sentenced defendant to 180 months. The Court of Appeals reversed, holding that a sentence outside the guidelines range is per se unreasonable when it is based on the sentencing disparity for crack and powder offenses. The Supreme Court held that the Court of Appeals erred in treating the crack/powder disparity as mandatory and that a district court may conclude that the crack/powder disparity yields a sentence greater than necessary to achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a). The Court cautioned that closer appellate review may be in order when a judge varies from the guidelines based solely on the judge’s view that the guidelines range fails properly to reflect the § 3553(a) considerations. Kimbrough v. U.S., 128 S.Ct. 558 (2007).
Supreme Court clarifies post-Booker appellate review of sentences. (870) Defendant, convicted of participating in a drug-trafficking conspiracy, had a sentencing range under the advisory guidelines of 30-37 months. Citing defendant’s youth, his withdrawal from the conspiracy, and his post-offense rehabilitation, the district court imposed a sentence of probation. The Eighth Circuit found the sentence unreasonable. The Supreme Court reversed the Court of Appeals and affirmed the district court’s sentence. The Court held that (1) courts of appeals may not require extraordinary circumstances to impose a sentence outside the guidelines range; (2) courts may not apply a heightened standard of review to sentences outside the guideline range or employ a formula that uses the percentage of the departure as the standard for determining the strength of the justification necessary for the sentence imposed; (3) the guidelines remain the “initial benchmark” for sentencing, and “a major departure should be supported by a more significant justification than a minor one”; (4) courts must adequately explain the sentence imposed to allow meaningful appellate review; and (5) the “substantive reasonableness of the sentence is reviewed under an abuse-of-discretion standard.” In sum, “while the extent of the difference between a particular sentence and the recommended guidelines range is surely relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the guidelines range – under a deferential abuse of discretion standard.” Gall v. U.S., 128 S.Ct. 586 ( 2007).
Supreme Court finds 33-month sentence for perjury and obstruction reasonable. (870) Federal agents investigating a gun manufacturer questioned defendant about firearms he had purchased from the company. Defendant lied to federal investigators, then made two false statements under oath to a grand jury. He was convicted of perjury, making false statements, and obstruction of justice. At sentencing, he sought a sentence below the guidelines range of 33-41 months on the grounds that he would be especially vulnerable in prison, suffered health problems, and had served 25 years in the Armed Forces. The district court imposed a sentence of 33 months, and the court of appeals affirmed on the ground that the sentence was not unreasonable. The Supreme Court agreed that the sentence was not unreasonable. Rita v. U.S., 127 S.Ct. 2456 (2007).
Supreme Court says appellate presumption of reasonableness may be applied to within-guidelines sentence. (870) Under U.S. v. Booker, 543 U.S. 220 (2005), a court is to review a sentence under the advisory guidelines to determine whether it is unreasonable. The Supreme Court held that in reviewing for reasonableness, a court may apply a nonbinding presumption that a sentence within the advisory guidelines range is reasonable. The presumption applies only on appellate review; a district court may not presume that a sentence within the guidelines range should apply. Nor may a court of appeals adopt a presumption that sentences outside the guidelines are unreasonable. The Court also held that applying a presumption of reasonableness to a within-guidelines sentence on appeal does not violate the Sixth Amendment. Rita v. U.S., 127 S.Ct. 2456 (2007).
Supreme Court holds that Blakely error can be harmless. (870) In Blakely v. Washington, 542 U.S. 296 (2004), the Court held that imposition of a sentence under Washington’s Sentencing Guidelines based on facts found by the judge, not the jury, violated the Sixth Amendment. In another case from Washington, the Supreme Court held that Blakely errors are subject to harmless-error analysis. Washington v. Recuenco, 548 U.S. __, 126 S.Ct. 2546 (2006).
Supreme Court holds that Blakely applies to the guidelines and that guidelines are advisory. (870) In the long-awaited Booker decision, the Supreme Court held that the rule announced in Blakely v. Washington, 124 S.Ct. 2531 (2004), applies to the federal Sentencing Guidelines and therefore that sentences imposed by judges using the guidelines violate the Sixth Amendment right to a jury trial. In the remedial portion of the opinion, a different majority of the Court held that 18 U.S.C. § 3553(b), the statute that makes guideline sentencing mandatory, should be severed and that the guidelines would henceforth be advisory. The Court also held that the provisions allowing appeals of sentences by both the defendant and the government survived, but that 18 U.S.C. § 3742(e), which defines the standards of review for guideline sentences must also be severed. The Court instead held that courts of appeals should review sentences to determine whether they are “unreasonable.” U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
Supreme Court requires deference to district court’s finding that prior convictions were “related.” (870) The guidelines define “career offender” as an offender with “at least two prior felony convictions” for violent or drug related crimes. USSG § 4B1.1. However, prior convictions that are “related” must be treated as only one conviction. In a unanimous opinion written by Justice Breyer, the Supreme Court held that a district court’s finding that prior convictions are not “related” is reviewed “deferentially” on appeal, not de novo. The court observed that 18 U.S.C. § 3742(e) requires a reviewing court not only to accept a district court’s findings of fact unless clearly erroneous, but also to give “due deference” to the district court’s application of the guidelines to the facts. Moreover, the court observed that the question of whether two prior convictions are “related” is a “minor, detailed, interstitial question of sentencing law, buried in a judicial interpretation of an application note to a sentencing guideline.” The question is not a “generally recurring, purely legal matter, such as interpreting a set of legal words.” Rather, the issue is bounded by “case-specific detailed factual circumstances,” which “limits the value of appellate court precedent.” Accordingly, the court rejected the “de novo” review standard adopted by the Fifth and Ninth Circuits and held that the court of appeals properly deferred to the district court’s ruling that two cases were not “functionally consolidated” and therefore were not “related.” Buford v. U.S., 532 U.S. 59, 121 S.Ct. 1276 (2001).
Supreme Court limits review of sentencing departures to “abuse of discretion.” (870) All nine justices of the Supreme Court agreed that an appellate court should not review de novo a decision to depart from the guidelines, but instead should ask whether the court abused its discretion. The limited appellate review provided in 18 U.S.C. § 3742 directs appeals courts to “give due deference” to the district court’s application of the guidelines to the facts. Thus the statute was not intended to vest in appellate court’s wide ranging authority over district court sentencing decisions. In most cases a departure decision will be due “substantial deference” because it embodies the sentencing court’s traditional exercise of discretion. This is true whether a given factor is present to a degree not adequately considered by the commission or whether a discouraged factor nevertheless justifies departure because it is present in some unusual or exceptional way. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
Supreme Court applies harmless error analysis to departure based on both “good” and “bad” reasons. (870) In a 7-2 decision written by Justice O’Connor, the Supreme Court held that when a departure is based on both permissible and impermissible grounds, reviewing courts should use a “harmless error” analysis to decide whether the defendant would have received the same sentence even if the sentencing judge had not given the impermissible reasons. Although the defendant bears the initial burden of showing that the district court relied on an invalid factor at sentencing, he does not have the additional burden of proving that the invalid factor was determinative. “Rather, once the Court of Appeals has decided that the district court misapplied the guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.” Justices White and Kennedy dissented. Williams v. U.S., 503 U.S. 193, 112 S.Ct. 1112 (1992).
1st Circuit approves obstruction increase based on perjury. (870) Defendant, a physician, was convicted of using another doctor’s name (Keefe) and DEA registration number. The district court applied an obstruction of justice increase finding that defendant committed perjury at trial. In particular, the court found irreconcilable differences between defendant’s testimony and Keefe’s testimony as to whether Keefe had authorized defendant to use his name and DEA number. This was not a minor conflict about a peripheral matter, but “a head-on clash about a central issue in the case.” The First Circuit affirmed the obstruction enhancement. Since the sentencing judge presided over the trial, the appellate court must allow him “reasonable latitude for credibility assessments.” U.S. v. Shinderman, 515 F.3d 5 (1st Cir. 2008).
1st Circuit holds that guideline sentence was reasonable despite court’s misstatement of role of guidelines post-Booker. (870) In re-imposing a guideline sentence in the wake of U.S. v. Booker, 543 U.S. 220 (2005), the sentencing judge stated that he would “generally heed to the guidelines in imposing criminal punishment,” and that he would follow the guidelines “in all but unusual cases.” The First Circuit found that the sentencing court misconstrued the role of the Sentencing Guidelines, but nonetheless found that the sentence imposed was reasonable. The court appeared to treat the Sentencing Guidelines as presumptively applicable. However, in U.S. v. Jimenez-Beltre, 440 F.3d 514 (1st Cir. 2006), abrogated by Rita v. U.S., 551 U.S. 338, 127 S.Ct. 2456 (2007), the court made it clear that a case need not be unusual for a sentencing court to consider the other factors in 18 U.S.C. § 3553(a). However, the sentence was reasonable. Defendant did not present any § 3553(a) factors militating in favor of a sentence below the advisory guideline range. U.S. v. Vazquez-Rivera, 470 F.3d 443 (1st Cir. 2006).
1st Circuit infers court’s reasoning for guideline sentence from court’s actions. (870) Defendant pled guilty to drug conspiracy charges. The district court initially sentenced him to 210 months, but the case was remanded for resentencing in light of U.S. v. Booker, 470 F. 3d 443 (1st Circuit 2006). On remand, the court again sentenced defendant to 210 months. Defendant appealed, arguing that the court did not adequately explain the reasoning behind his sentence, as required by 18 U.S.C. § 3553(c). The First Circuit disagreed. The court’s reasoning could be inferred by comparing the parties’ arguments from what the judge did. Although the court did not specifically reject defendant’s arguments for a downward variance, it did explain that it found that by a preponderance of the evidence that at least five kilograms of cocaine could be attributed to defendant, that a weapon was foreseeable, and that it considered every § 3553(a) factor. The court also specifically stated that it did not agree with defendant’s disparity argument because plea bargains were “very valuable to the system.” Thus, the panel could infer that the sentencing court did not find defendant’s arguments regarding sentencing disparities or the sufficiency of the evidence persuasive, and that it thought a sentence based on the guideline recommendations was warranted. U.S. v. Vazquez-Rivera, 470 F.3d 443 (1st Cir. 2006).
1st Circuit reviews drug testing condition for abuse of discretion. (870) The written judgment stated that defendant “shall submit to one drug test within 15 days of release from imprisonment and at least two periodic tests thereafter as required by the Probation Officer.” Both defendant and the government acknowledged that the court improperly delegated to the probation officer the authority to determine the number of drug tests defendant must undergo while on supervised release. The government contended that the review was for plain error, and that the improper delegation could not meet this rigorous test. The First Circuit held that the proper standard of review was not plain error because the court did not announce the condition until the written judgment. Defendant never had the opportunity to object to the wording of the drug testing condition. Instead, the standard of review was abuse of discretion. The district court abused its discretion by delegating to the probation officer the authority to determine the number of drug tests defendant must undergo while on supervised release, and vacated the condition. U.S. v. Sepulveda-Contreras, 466 F.3d 166 (1st Cir. 2006).
1st Circuit holds that drug quantity in mandatory minimum statute is sentencing factor to be determined by preponderance of the evidence. (870) Under 21 U.S.C. § 841(a)(1), defendants with a prior felony conviction convicted of an offense involving 500 grams or more of cocaine are subject to a mandatory minimum sentence of 10 years. The sentencing court found that a fact that triggers a mandatory minimum sentence must proved beyond a reasonable doubt. Thus, the court found the mandatory minimum inapplicable because the government did not prove drug quantity beyond a reasonable doubt. The First Circuit reversed, holding that drug quantity in the mandatory minimum statute is a sentencing factor that can be determined by a preponderance of the evidence. The recent cases of Blakely v. Washington, 543 U.S.296 (2004), and U.S. v. Booker, 543 U.S. 220 (2005), did not overrule the Supreme Court’s earlier opinions in McMillan v. Pennsylvania, 477 U.S. 79 (1986) (sentencing factors may be proven by a preponderance of the evidence) and Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013) (Apprendi does not apply to facts that increase the mandatory minimum sentences). The panel reaffirmed its opinion in U.S. v. Goodine, 326 F.3d 26 (1st Cir. 2003), which held that drug quantity under § 841 is a sentencing factor that may be determined by a preponderance of the evidence. U.S. v. Malouf, 466 F.3d 21 (1st Cir. 2006).
1st Circuit examines sentence under departure analysis where district court applied this standard to impose non-guideline sentence. (870) The district court sentenced defendant shortly after Booker was decided, but before the First Circuit’s subsequent developments in caselaw on the application of Booker. The district court used an approach different from the one adopted by the district court, using the departure framework as a gauge of the reasonableness of the sentence to be imposed. The court’s determination of the advisory guideline range should have included a determination of the appropriateness of a downward or upward departure, and then it should have decided whether the guideline sentence comported with the sentencing factors set forth in 18 U.S.C. § 3553(a). Here, the court turned to those statutory factors before doing the upward departure guidelines analysis. Thus, the First Circuit reviewed the sentence under the guidelines departure analysis. Because the court relied on several inappropriate grounds for departure, the court remanded for resentencing, without determining whether the sentence as a whole was substantially longer than necessary to meet the factors underlying 18 U.S.C. § 3553(a). U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit says defendant cannot not raise objection to firearm enhancement for first time on appeal. (870) Defendant failed to object to a § 2D1.1(b)(1) firearm enhancement either after sentence was pronounced or earlier, when expressly invited by the district court to offer any corrections or objections to the PSR. Thus, the First Circuit ruled that defendant could not raise the issue on appeal. Moreover, even if the issue were open on appeal, there was adequate evidence to allow the court to impose the weapon enhancement without committing error, plain or otherwise. There was evidence that defendant concealed weapons for a co-conspirator and possessed a firearm as part of his drug trafficking activities. A cooperating witness testified that defendant concealed weapons and drugs for him between 1994 and 1999. He testified that when someone had shot defendant’s brother, defendant and his brother both possessed weapons of their own. U.S. v. Escobar-Figueroa, 454 F.3d 40 (1st Cir. 2006).
1st Circuit holds that sentencing under mandatory rather than advisory guidelines was not harmless error. (870) Defendant preserved his Booker claim by raising a Blakely argument in the district court, and thus the government had the burden of establishing that the preserved Booker error was harmless. The First Circuit held that sentencing under the mandatory guidelines was not harmless error since it was not persuaded beyond a reasonable doubt that the district court would not have imposed a lower sentence if it had known the guidelines were advisory rather than mandatory. Defendant had requested a downward departure based on his “serious mental health issues. In refusing to depart the court found that “[i]ts unfortunately the case that [defendant’s] condition is not outside the heartland” and that although his condition was serious and severe, the court “see[s] a number of severe or serious mental health issues.” This was a “classic mandatory guidelines analysis.” Thus, although the court rejected defendant’s request for a downward departure under the mandatory guidelines, the court acknowledged that it was “certainly clear that [defendant] has severe mental health issues, and sentenced him to the lowest end of the guideline range. U.S. v. Anderson, 452 F.3d 87 (1st Cir. 2006).
1st Circuit holds that variance to eight times maximum guideline range was unreasonable. (870) Defendant was convicted of using a forged immigration document to try to enter the U.S. Although his guideline range was 0-6 months, the district court imposed a 48-month sentence. The First Circuit reversed, finding the court’s explanation for such a large variation to be inadequate. The fact that defendant had previously been deported from the U.S. was accounted for by the two-level enhancement in § 2L2.2(b)(1). The second factor cited by the court, defendant’s arrest in 1991 and the outstanding bench warrant, was also insufficient to support the increase. The guidelines contain a policy statement that permits a court to consider prior significant adult criminal not resulting in a criminal conviction, but prohibits courts from departing based solely on a defendant’s arrest record. U.S. v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006).
1st Circuit holds that nine-year sentence for drug dealer was not unreasonable given his history of violence. (870) Defendant pled guilty to two counts of possessing and distributing crack cocaine, and received a nine-year sentence, which was three and one half years below the bottom of the advisory guideline range. Defendant nonetheless appealed the sentence as unreasonably high because of various mitigating circumstance, primarily, his multiple serious medical problems. The First Circuit upheld the sentence as reasonable, finding the district court gave adequate consideration to defendant’s medical problems. The court found that defendant’s medical condition was “obviously a serious situation,” and this was the court’s primary rationale for imposing a sentence below the guideline sentencing range. However, the court felt that other statutory factors, including the public’s need to be protected from defendant’s “demonstrably violent personality,” warranted a “substantial sentence.” The court also expressed skepticism that defendant’s medical condition would prevent him from continuing his lifelong pattern of domestic violence, and discredited defendant’s argument that his forced sobriety while incarcerated would cure his lifetime alcohol abuse. U.S. v. Caraballo, 447 F.3d 26 (1st Cir. 2006).
1st Circuit finds plain error in mandatory application of guidelines where court sympathized with defendant and expressed frustration with long drug sentences. (870) The district court erred in sentencing defendant because it believed the Sentencing Guidelines were binding and sentenced defendant accordingly. The First Circuit remanded for resentencing, finding “some chance” that the court might have imposed a different sentence under the advisory guidelines regime. First, the court sentenced defendant to the minimum guideline sentence, which, while not dispositive, was still highly relevant. The court also stated that the drug sentences it was routinely called upon to impose were “off the chart,” perhaps indicating a concern that the guidelines recommendations failed in some cases to take into account relevant mitigating circumstances. This, combined with the court’s apparent sympathy for the defendant and its stated hope for defendant’s rehabilitation, was sufficient to carry the “relatively undemanding burden” a defendant must meet for resentencing under U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). U.S. v. Aitoro, 446 F.3d 246 (1st Cir. 2006).
1st Circuit says finding that defendant did not establish safety valve entitlement was not subject to Booker challenge. (870) The district court found that defendant was not entitled to safety valve protection under 18 U.S.C. § 3553(f) (2) and § 2D1.1(b)(7). Defendant argued that the court violated the Sixth Amendment by crediting evidence that the police found 11 firearms in defendant’s apartment during their execution of a search warrant. The First Circuit held that this safety valve finding need not be decided by a jury or admitted by the defendant under Booker. The burden of proof rests with the defendant to establish an entitlement to safety valve protection. The district court’s finding that defendant failed to establish that he did not possess a firearm in connection with the offense of conviction was not subject to a Booker challenge. U.S. v. Morrisette, 429 F.3d 318 (1st Cir. 2005).
1st Circuit holds that defendant was not prejudiced by application of mandatory guidelines. (870) Where a claim of Booker error has not been preserved, the first two prongs of the plain error test are met when the defendant shows that the sentencing court treated the guidelines as mandatory rather than advisory. With respect to the third prong, the defendant bears the burden of showing that, had the error not occurred, there was a “reasonable probability” that he would have received a lesser sentence. U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). The First Circuit ruled that defendant could not meet this standard. The fact that the court imposed a sentence at the bottom of the guideline range, standing alone, did not give rise to a reasonable probability that, under the advisory guidelines, it would have imposed a sentence lower than prescribed by the guidelines. The judge’s comment that drug laws are the source of “terrible human consequences” was ambiguous at best. U.S. v. Guzman, 419 F.3d 27 (1st Cir. 2005).
1st Circuit holds that conventional plain error analysis applied to delegation errors. (870) At sentencing, the district court ordered defendant to submit to at least three drug tests, and delegated to the probation officer the authority to determine the maximum number of tests to be administered. In U.S. v. Padilla, 393 F.3d 256 (1st Cir. 2004), a panel concluded that granting the probation officer unbridled discretion to determine the maximum number of drug tests constituted an improper delegation of judicial authority. Although defendant had raised this claim for the first time on appeal, the panel vacated the disputed condition and remanded for resentencing without engaging in conventional plain error review. That decision was dictated by U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003), which required vacation of the disputed condition without resort to conventional plain error analysis. On rehearing en banc, the First Circuit overruled that portion of Melendez-Santana that required automatic reversal for delegation errors, and held that conventional plain error principles must be applied in such cases. Under such principles, the panel concluded that defendant’s sentence could stand, despite the delegation error. Defendant could not demonstrate that the error affected his substantial rights. It was impossible for defendant to show a reasonable probability that he was worse off because the probation officer, rather than the district court, had the power to determine the maximum number of drug tests. There also was nothing fundamentally unfair about the delegation of authority to the probation officer, since it concerned a matter incidental to the case. U.S. v. Padilla, 415 F.3d 211 (1st Cir. 2005) (en banc).
1st Circuit holds that defendant’s expectation did not bar use of PROTECT Act. (870) Prior to April 30, 2003, the effective date of PROTECT Act, the First Circuit applied a deferential review of departures from the guidelines. The PROTECT Act directs appellate courts to review de novo the district court’s application of the guidelines to the facts. At sentencing, defendant believed that the court was inclined to depart based on extraordinary acceptance of responsibility. Based on this belief, and the deferential standard of review in place at the time, defendant made the strategic decision not to testify in support of that departure. Defendant argued that this decision created a “settled expectation” in the narrow appellate review in place at the time of his hearing. If he had known that the standard of review would have been de novo, he claimed he would have testified. The First Circuit found no retroactivity problem. The PROTECT Act’s change to the appellate standard of review applies to cases pending when the Act became effective on April 30, since procedural changes that do not affect substantial rights are not usually considered impermissibly retroactive. Defendant’s belief that his evidence for a departure would not be as persuasive on appeal as it might have been did not change this analysis. A court must apply procedural changes retroactively to all sentences that are not final, even if such application might disadvantage one of the parties. U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit gives deference to court’s finding that criminal history understated defendant’s background and predisposition. (870) The district court departed upward because it found that defendant’s criminal history category of III significantly understated both his criminal history and his predisposition towards recidivist behavior. The First Circuit said this finding was entitled to deference. A district court may have a better understanding of the unique circumstances of the case before it and is likely to have seen more “ordinary” guidelines cases. Therefore, an appellate court should review a district court “unusualness” determination “with full awareness of, and respect for, the trier’s superior feel for the case, not with the understanding that review is plenary.” U.S. v. Shrader, 56 F.3d 288 (1st Cir. 1995).
1st Circuit outlines standard of review for breach of plea agreement claims. (870) Defendant argued that the government breached its promise in his plea agreement not to oppose an acceptance of responsibility reduction. Defendant argued that the appellate court’s review was de novo and government argued that it was clear error. The First Circuit outlined the standard of review in breach of plea agreement cases. First, there are factual questions of what the terms of the agreement are and what the government’s conduct was. If disputed, these factual questions are to be resolved by the district court. The district court’s determinations are reviewed by the appellate court for clear error. Second, there is the question of whether the government’s conduct breached the plea agreement. This is a legal question, and an appellate court’s review is plenary. The only question here was whether the government’s undisputed conduct breached the plea agreement. This was a legal question to be reviewed de novo. U.S. v. Clark, 55 F.3d 9 (1st Cir. 1995).
1st Circuit uses “clearly erroneous” standard to review three level acceptance of responsibility. (870) A decision to withhold a two level reduction for acceptance of responsibility under section 3E1.1(a) will not be overturned unless clearly erroneous. The 1st Circuit held that this same standard governs its review of a decision to withhold a three level reduction under section 3E1.1(b). U.S. v. Donovan, 996 F.2d 1343 (1st Cir. 1993).
1st Circuit minimizes barriers to departure in “unusual” cases and limits scope of review of decision to depart. (870) In an effort to “illustrate an appropriate legal analysis” for departures, the 1st Circuit surveyed the law respecting four kinds of departures — unusual-case departures, encouraged departures, discouraged departures, and forbidden departures. The court concluded that the statutory language limiting departures to cases in which the Commission has not “adequately taken into consideration” a particular factor has little practical force in a truly unusual case, for the Commission itself has disavowed any intention to address such cases. The court also addressed the appropriate scope of appellate review of departure decisions, concluding that a district court’s determination that a case is unusual deserves “respect” of the same sort afforded determinations of fact. U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993).
1st Circuit finds 2C1.1 most analogous guideline for making illicit payments to municipal official. (870) Defendants were convicted of making illicit payments to a municipal official in violation of 18 U.S.C. section 666(a)(2). The 1st Circuit affirmed that the most analogous guideline for the offense was section 2C1.1 (dealing with bribery of, and extortion by, a public official) rather than section 2C1.2 (dealing in part with the giving of a gratuity to a public official). The court found that this was a fact-intensive issue subject to review for “clear error.” The bribery guideline applies when a transfer of money has a corrupt purpose, such as inducing a public official to participate in a fraud, while the gratuity provision does not include a corrupt purpose as an element of the offense. Since defendants each sought to receive a quid pro quo, in the form of future favorable treatment, and since their offenses involved corrupt intent, the determination that their actions were more akin to bribe-giving than to gift-giving was not clearly erroneous. U.S. v. Mariano, 983 F.2d 1150 (1st Cir. 1993).
1st Circuit examines serious bodily injury determination for clear error. (870) The parties agreed that whether the assault involved “serious bodily injury” presented a mixed question of law and fact. In light of this concession, the 1st Circuit reviewed the district court’s determination for clear error. Where more than one reasonable inference may be drawn from undisputed facts, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous. U.S. v. Newman, 982 F.2d 665 (1st Cir. 1992).
1st Circuit reviews de novo whether predisposition toward fencing justified enhancement. (870) Guideline section 2B1.2(b)(4)(A) provides a four-level enhancement for a defendant who is in the business of receiving and selling stolen property. The 1st Circuit reviewed de novo the district court’s determination that defendant’s predisposition toward fencing activities brought him within the ambit of section 2B1.2(b)(4)(A). U.S. v. St. Cyr, 977 F.2d 698 (1st Cir. 1992).
1st Circuit holds that denial of evidentiary hearing on a sentencing guideline issue is reviewable only for abuse of discretion. (870) The 1st Circuit held that a district court’s denial of an evidentiary hearing on a sentencing guideline issue is reviewable only for clear error. U.S. v. Shattuck, 961 F.2d 1012 (1st Cir. 1992).
1st Circuit reviews de novo whether flight constituted obstruction of justice under 1989 guidelines. (870) The 1st Circuit reviewed de novo whether defendant’s flight after conviction but prior to sentencing constituted obstruction of justice under the 1989 version of the guidelines. U.S. v. McCarthy, 961 F.2d 972 (1st Cir. 1992).
1st Circuit reviews determination that defendant knew laundered money was criminally derived for clear error. (870) The 1st Circuit reviewed the district court’s determination under guideline section 2S1.3 that defendant knew laundered money was criminally derived for clear error. U.S. v. Connell, 960 F.2d 191 (1st Cir. 1992).
1st Circuit reviews special skill determination under both de novo and clear error standards. (870) The 1st Circuit held that it would review de novo the meaning of the term “special skill” under guideline section 3B1.3. Thereafter, since a district court’s application of section 3B1.3 to a given set of facts was likely to involve drawing sophisticated inferences from a web of interconnected facts, the district court’s findings would only be reviewed for clear error. U.S. v. Connell, 960 F.2d 191 (1st Cir. 1992).
1st Circuit reviews obstruction enhancement de novo. (870) The 1st Circuit reviewed de novo whether defendant’s conduct was encompassed with the scope of guideline section 3C1.1. U.S. v. Manning, 955 F.2d 170 (1st Cir. 1992).
1st Circuit reviews role in the offense determinations only for clear error. (870) The 1st Circuit reaffirmed that it reviews a sentencing court’s determination of a defendant’s role in the offense only for clear error, and that such a determination, if based upon reasonable inferences drawn from undisputed facts, cannot be clearly erroneous. U.S. v. Garcia, 954 F.2d 12 (1st Cir. 1992).
1st Circuit affirms managerial enhancement based on testimony of defendant’s drug customer. (870) The 1st Circuit affirmed a two-level enhancement under guideline section 3B1.1(c) based on defendant’s managerial role in the offense. The district court relied heavily upon the testimony of one prosecution witness, who stated that defendant took over defendant’s father’s drug operation. Defendant assumed his father’s accounts receivable by demanding and receiving payment from the witness for a cocaine debt owed to the father. Defendant also stated to the witness that he had a personal drug runner. Moreover, the district court found that defendant supplied drugs to an organization and controlled the details of the transactions. Setting the details of drug transactions, where the offender also directs at least one accomplice, is sufficient to uphold an enhancement. While the appellate court might have given less credence to the witness’s testimony, a fact finder’s choice between two permissible views cannot be clearly erroneous. U.S. v. Veilleux, 949 F.2d 522 (1st Cir. 1991).
1st Circuit reviews grouping decision under clearly erroneous standard of review. (870) The 1st Circuit rejected a de novo standard review of the district court’s decision to group defendant’s offenses into four groups under guideline section 3D1.2. Central to the district court’s decision to group the counts was a finding that defendant’s offenses did not constitute a single ongoing plan. Because this was a finding of fact, 18 U.S.C. section 3742(e) required a clearly erroneous standard of review. The court also found that the statute’s requirement that an appellate court give “due deference” to the district court’s application of the guidelines to the facts translated into a clearly erroneous standard of review. “This is not a situation where the court has committed pure legal error by misinterpreting the words of the guideline.” The issue was “a mixed question of law and fact.” U.S. v. Pilgrim Market Corporation, 944 F.2d 14 (1st Cir. 1991).
1st Circuit gives “due deference” to district court’s determination of how to group counts. (870) Defendant challenged the district court’s grouping of his counts under guideline § 3D1.2. The 1st Circuit found that the determination of whether and how to group counts under the multiple counts provisions of the guidelines more closely resembles an application of the guidelines to the facts than a finding of fact. Accordingly, an appellate court should give “due deference” to the grouping determinations of the district court. U.S. v. Cousens, 942 F.2d 800 (1st Cir. 1991).
1st Circuit reviews role in the offense adjustment under the clearly erroneous standard. (870) The 1st Circuit held that the determination of whether defendant was a minimal or minor participant was subject to the clearly erroneous standard of review. The district court’s determination that defendant was not a minor or minimal participant was not clearly erroneous. There was evidence that defendant (a) was one of only three charged co-defendants in a conspiracy to distribute cocaine, (b) initially introduced one co-defendant to the other, (c) accompanied one co-defendant to the site where the delivery of the cocaine was to take place, (d) vouched for the quality of the cocaine to the government informant, and (e) was to receive $300 from the transaction. The district court did sentence at the bottom of the guideline range, which demonstrated that the district court did consider defendant’s role in the offense. U.S. v. Osorio, 929 F.2d 753 (1st Cir. 1991).
1st Circuit upholds obstruction of justice enhancement based on defendant’s perjury. (870) The district court increased defendant’s offense level for obstruction of justice based on the judge’s belief that the defendant perjured himself during trial by testifying in a self-serving “cock and bull story.” The 1st Circuit upheld the enhancement. However, an upward adjustment for obstruction of justice requires “more than a mere conflict in the trial testimony or a jury’s rejection of a defendant’s alibi or denial of guilt.” Because the determination is “fact-oriented,” an appellate court will review the district court’s findings under a clearly erroneous standard. Here the district court’s findings were not clearly erroneous. Defendant’s trial testimony where he disclaimed knowledge of the heroin and the marked money found in his apartment, and attempted to characterize his subordinate as the villain “could most charitably be described as fanciful.” U.S. v. Akitoye, 923 F.2d 221 (1st Cir. 1991).
1st Circuit rules that credibility and demeanor play a critical role in deciding whether defendant has accepted responsibility. (870) At sentencing the defendant said he was remorseful, but the district court found that he did not deserve the two point reduction for acceptance of responsibility because he “fail[ed] to voluntarily and truthfully acknowledge the extent of his conduct.” On appeal, the 1st Circuit affirmed, noting that acceptance of responsibility is a “fact-dominated issue.” “Credibility and demeanor play a critical role in determining whether a person is genuinely contrite.” “Because the court had a plausible basis for arriving at its conclusion, no more is required.” U.S. v. Royer, 895 F.2d 28 (1st Cir. 1990).
1st Circuit uses three-tier analysis for departures. (870) Reiterating its ruling in U.S. v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir. 1988), the 1st Circuit states that departures will be reviewed to determine 1) whether the case is sufficiently “unusual” to warrant departure, 2) whether the “unusual” circumstances are adequately documented, and 3) whether the court abused its “considerable discretion” in determining that an upward departure is warranted. The first two tiers are subject to plenary review, and “in the absence of indicia of atypicality, departure cannot be sanctioned.” The district court’s departure here was reversed. U.S. v. Aguilar-Pena, 887 F.2d 347 (1st Cir. 1989).
1st Circuit holds managerial position is a factual determination subject to clearly erroneous review. (870) Whether defendant is an organizer or leader of a charged criminal activity (which would subject him to a two point increase in offense level under § 3B1.1) is a factual question subject to clearly erroneous review. Since the determination in this case was not without foundation, the sentences were proper. U.S. v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989).
1st Circuit uses a three-step standard of review for departures. (870) In affirming the sentence of a large scale drug dealer, the 1st Circuit held that the standard of review for departures is as follows: First, an appellate court conducts plenary review of the legal question of whether the circumstances were “unusual.” Second it reviews under a clearly erroneous standard the factual determination of whether those circumstances actually existed. Third, it determines whether the departure was reasonable, making a “judgment call.” Here there were adequate grounds for making a permissible departure and the sentence imposed was reasonable. U.S. v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989).
2nd Circuit reviews refusal to reduce sentence for abuse of discretion. (870) Based on the recent crack amendments, defendant moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction. The district court declined to reduce defendant’s 96-month sentence. The Second Circuit held that abuse of discretion is the proper standard of review to apply to a district court’s ruling on a § 3582(c)(2) motion. Because the statute says a court may reduce the term of imprisonment, it clearly allows the court to exercise its discretion when considering the § 3582(c)(2) motion. The district court here did not abuse its discretion in declining to reduce defendant’s sentence. The court decided against a sentence reduction only after reviewing the relevant records concerning the defendant, including the transcript of the sentencing proceeding and considering the § 3553(a) factors. Although defendant’s caseworker had determined that defendant did not pose a threat to society, the court was acting well within its authority in deciding that the 96-month sentence was appropriate. U.S. v. Borden, 564 F.3d 100 (2d Cir. 2009).
2nd Circuit holds Booker did not affect standard of proof for guideline calculations. (870) During a resentencing hearing under U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), the judge reviewed the § 3553(a) factors, and then stated that she was “constrained” to apply a preponderance of the evidence standard in determining for guideline purposes whether defendant had a leadership role in the conspiracy, and if the previously imposed sentence was proper under Crosby. Defendant argued that the court erred as a matter of law in failing to recognize that, post-Booker, while entitled to apply a preponderance standard, the sentencing court had the discretion, if it so chose, to apply a more stringent standard, including proof beyond a reasonable doubt. The Second Circuit disagreed. The discretion given judges by Booker applies only to their consideration of a guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge’s obligation to perform a guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that guideline calculation is made. U.S. v. Salazar, 489 F.3d 555 (2d Cir. 2007).
2nd Circuit rejects increased downward departure to make up for enhancement required by appellate court opinion. (870) Defendant’s company monitored pacemakers for Medicare patients. He falsely represented to Medicare that his company had complied with all relevant regulations, and instructed his managers to alter records. The district court initially found that defendant’s noncompliance did not cause Medicare any harm, granted him a six-level downward departure for public service, and imposed a sentence of one year’s probation. On defendant’s first appeal, the Second Circuit reversed, holding that the district court had erred in declining to make a guideline loss calculation. On remand, the court added a 13-level enhancement for a loss of $5 million. However, it also granted a 15-level downward departure on the ground that the monetary loss overstated the seriousness of the offense. The court again imposed a sentence of one year’s probation, and the Second Circuit reversed. The court’s explanation of why the $5 million loss overstated the seriousness of the offense related only to actual loss; the court made no findings as to intended loss. Moreover, it was questionable whether the departure authority in Note 11 to § 2F1.1 applied here. The court also improperly considered Medicare’s conduct – Medicare did not provoke defendant’s conduct. Finally, the extent of the departure was unreasonable. The effect of the departure was to treat defendant as through he had intended to cause no loss at all, which was contrary to the appellate court’s instructions. U.S. v. Canova, 485 F.3d 674 (2d Cir. 2007).
2nd Circuit finds that during Crosby remand court properly refused to consider post-sentencing rehabilitation. (870) On remand from the Supreme Court, the district court affirmed its original sentence, and defendant appealed. Defendant argued that the court’s failure to consider evidence of his post-sentencing rehabilitation when deciding whether to resentence violated his due process rights. The Second Circuit disagreed. It has repeatedly held that a district court is not to consider such evidence on a remand under U.S. v. Crosby, 397 U.S. 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005). Rather, on a Crosby remand, a court must first make a “threshold determination” of whether “based on the circumstances at the time of the original sentence,” it would have imposed a different sentence had it known the guidelines were advisory. If the court finds that it would not have imposed a materially different sentence, that is the end of the matter. Only if the court answers the threshold determination in the affirmative does a resentencing occur. Such a procedure does not violate a defendant’s due process rights. U.S. v. Ferrell, 485 F.3d 687 (2d Cir. 2007).
2nd Circuit remands where court suggested sentence was based in part on defendant’s identification with West African community. (870) Defendant, a native of the West African nation of Guinea, pled guilty to heroin distribution charges. At sentencing, the prosecutor told the court that the government’s biggest concern was the message defendant’s sentence would send to other people in the West African community in town, which was very close-knit. The court imposed a 72-month sentence noting, that “from what I hear from [the prosecutor], it is entirely reasonable to assume that people from the Guinea community are going to say gee, do you hear what happened to [defendant]? I don’t want that to happen to me. I hope that that has some effect here that will deter other people from that background from doing what you’ve done here …” Defendant appealed on the ground that the court impermissibly based its sentence on her national origin. The Second Circuit agreed and remanded for resentencing with a different judge. A defendant’s race or nationality may not play an adverse role in the administration of justice, including at sentencing. This case was similar to U.S. v. Leung, 40 F.3d 577 (2d Cir. 1994), where the court referred to the publicity a sentence might receive in the defendant’s ethnic community or native country and explicitly stated its intent to deter others sharing that national origin from violating U.S. laws in the future. U.S. v. Kaba, 480 F.3d 152 (2d Cir. 2007).
2nd Circuit will review for reasonableness after court declines to resentence under Crosby. (870) The appellate court remanded defendants’ case pursuant to U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), for a determination of whether to resentence them in light of Booker. On remand, the district court declined to resentence either defendant, stating that it would make the same findings as to the guidelines and impose the same sentence. The Second Circuit held that it reviews a sentence for reasonableness even after a district court declines to resentence pursuant to Crosby. It was obliged to apply Booker/Fanfan to this case because it was pending on direct review. By the time a court’s decision not to resentence under Crosby reaches the appellate court, at least two claims of error related to sentencing will normally be foreclosed by the prior proceedings. First, any error in selecting a sentence under the mandatory guideline regime would be harmless if the judge decides on remand, in full compliance with now applicable requirements, that under Booker/Fanfan it would have imposed the same sentence. Second, the law of the case doctrine ordinarily will bar a defendant from reviewing challenges to rulings made by the sentencing court that were adjudicated by the appellate court, or that could have been adjudicated had the defendant made them during the initial appeal. U.S. v. Williams, 475 F.3d 468 (2d Cir. 2007).
2nd Circuit holds that any error in stating duty to impose “reasonable” sentence was not reversible. (870) After a Crosby remand, the district court declined to resentence defendant, stating that it would have imposed the same sentence under an advisory guideline regime. Defendant argued that the district court improperly stated that it was obligated to impose a “reasonable sentence” after considering the § 3553(a) factors, when in fact, the court’s duty under § 3553(a) is to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth in” § 3553(a)(2) (the so-called parsimony clause). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task. The Second Circuit ruled that any error by the district court in stating it was obligated to impose a reasonable sentence was not reversible. There was no indication that the court actually failed to consider the requirements of the parsimony clause when deciding whether to resentence defendant. The court actually stated that it was considering all of the § 3553(a) factors. There was no evidence in the record that the court’s reference to its duty to impose a sentence that was “reasonable” affected in any way its assessment of whether resentencing was warranted. U.S. v. Williams, 475 F.3d 468 (2d Cir. 2007).
2nd Circuit holds that disparity between defendant’s sentence and sentences received in fast-track jurisdiction did not make it unreasonable. (870) Defendant pled guilty in the Southern District of New York to illegal reentry after deportation. This district does not use a “fast-track” or “early disposition” program. Defendant argued that the district court erred in declining to reduce his sentence to account for the lesser-sentence he presumably would have received in one of the district courts that use a fast-track program, and that the disparity resulted in an unreasonable sentence. The Second Circuit disagreed. Defendant’s argument rested in a false equivalence between defendants in fast-track jurisdictions who receive a benefit in exchange for the acceptance of certain detriments and a defendant in his position, who claimed the benefit without suffering the detriment. Although defendant did not have the opportunity to make the bargain, by the same token, the bargain was not made and no sentencing principle required the sentencing court to mimic the transaction or compensate for its unavailability. Legislative history confirms that departures pursuant to fast-track programs were intentionally limited to authorized programs. The Sentencing Commission has rejected compensatory downward departure as a remedy for the disparity. The sentencing imposed was reasonable, even though defendant might have been treated more favorably in other jurisdictions. U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006).
2nd Circuit holds court did not clearly err in refusing leadership increase for boss of New York crime family. (870) Defendant, the acting boss of the Gambino crime family, was convicted of a variety of racketeering offenses. However, the district court declined to impose a § 3B1.1 leadership increase, explaining that it did not “think it automatically follows that because somebody is the acting boss of the crime family that he’s responsible for these four level enhancements in each and every relevant conduct scenario.” The court noted that the government was required to present some evidence to show an active role, and that defendant did not “exhibit typical leadership characteristics that one would expect of the acting crime boss of a New York crime family, but was simply filling a power vacuum brought about by the incarceration of other members of the Gotti family.” The Second Circuit held that the clear error standard of review was appropriate because the court’s application of U.S.S.G. § 3B1.1 to the facts of the case presented an issue that was predominantly factual rather than legal. There was no dispute about the relevant facts. The panel further found no clear error in the court’s refusal to apply the enhancement. U.S. v. Gotti, 459 F.3d 296 (2d Cir. 2006).
2nd Circuit holds that 25-year sentence for CEO involved in securities fraud was reasonable. (870) Defendant was the Chief Executive Officer of WorldCom, Inc, a publicly traded global telecommunications company. He engineered a scheme to disguise WorldCom’s declining operating performance by falsifying its financial reports. The Second Circuit upheld his 25-year sentence. Although co-defendants received much shorter sentences, the disparity was based on the varying degrees of culpability and cooperation between the various defendants. All of the co-conspirators cited by defendant cooperated and pled guilty, defendant did not. Moreover, each was a subordinate of defendant. Defendant, as CEO, had primary responsibility for the fraud. The 25-year sentence for the white-collar crime was reasonable, although it was longer than the sentences routinely imposed by many states for violent or serious crimes. The sentence was actually below the guideline level. The guidelines reflect Congress’ judgment as to the appropriate national policy for such crimes. Moreover, the securities fraud here was not puffery or even a misguided attempt to protect the company’s shareholders from a temporary downturn in business. Rather, the fraud was motivated by defendant’s personal financial circumstances. U.S. v. Ebbers, 458 F.3d 110 (2d Cir. 2006).
2nd Circuit upholds its jurisdiction to review reasonableness of below-guidelines sentence. (870) Although the Sentencing Guidelines established an advisory range of 30-37 months’ imprisonment, the district court imposed a non-guidelines sentence of 24 months’ imprisonment, six months below the bottom of the advisory range. The Second Circuit upheld its jurisdiction to review the reasonableness of a below-guidelines sentence. See U.S. v. Fernandez, 443 F.3d 19 (2d Cir. 2006). The case relied on by the government, U.S. v. Colon, 884 F.2d 550 (2d Cir. 1989) (decision not to depart from the guidelines is not reviewable) was not reconcilable with the Supreme Court’s recent opinion in U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Kane, 452 F.3d 140 (2d Cir. 2006).
2nd Circuit holds that court did not have discretion to award only one criminal history point to make defendant eligible for safety valve. (870) At sentencing, the district court found that defendant had two criminal history points under the Sentencing Guidelines, and thus was ineligible for safety valve relief under 18 U.S.C. § 3553(f). Defendant argued that under U.S. v. Booker, 543 U.S. 220 (2005), the district court should have considered the guidelines advisory for purposes of calculating his criminal history points. The Second Circuit disagreed. Booker did not alter the content of the guidelines or that requirement that guideline results be determined according to the terms of the guidelines. Moreover, there was no basis for considering § 3553(f)(1) as advisory. The court’s denial of safety valve relief did not implicate the Sixth Amendment. U.S. v. Barrero, 425 F.3d 154 (2d Cir. 2005).
2nd Circuit holds that admission of drug quantity did not waive requirement that drug quantity be charged in indictment. (870) Defendant was indicted for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a), with no particular quantity specified in the indictment. In order to impose a sentence above the statutory maximum for a drug offense involving an indeterminate quantity of drugs, the type and quantity of drugs must be charged in the indictment and submitted to the jury. However, a defendant’s plea allocution effectively waives the requirement of submitting the quantity question to the jury. The Second Circuit held that admission of a drug quantity in a plea allocution does not waive the requirement that a defendant be charged with drug quantity in the indictment. When a defendant has been indicted for a drug crime involving an unspecified quantity of drugs, the defendant cannot be sentenced above the statutory maximum for an indeterminate quantity of drugs, as set forth in § 841(b)(1) (C). U.S. v. Cordoba-Murgas, 422 F.3d 65 (2d Cir. 2005).
2nd Circuit adopts “either/or approach” to review of judge’s application of guidelines to facts. (870) While serving as a guard in a prison, defendant engaged in sexual activity with four female inmates, some of them on more than one occasion. At issue was whether the district court correctly decided not to group together the sexual offenses against the same inmate on different days. In determining the standard of review for this decision, the Second Circuit held that the statutory requirement of “due deference to the district court’s application of the guidelines to the facts,” 18 U.S.C. § 3742(e), required it to select either “de novo” review or “clearly erroneous” review, depending on the primary nature of the issue. To apply the “either/or approach” here, the court must determine whether the district court’s grouping decision involved primarily an issue of fact or law. While the application of the grouping rules might, in some circumstances, present primarily an issue of fact warranting clearly erroneous review, the panel found that the grouping determination here was proper for de novo review. The narrow issue in dispute was whether grouping of offenses involving the same person on different days is proper when force is used. That is a legal issue. The grouping issue turns on the meaning of “substantially the same harm” in § 3D1.2, an issue of guideline interpretation. U.S. v. Vasquez, 389 F.3d 65 (2d Cir. 2004).
2nd Circuit applies PROTECT Act’s de novo review retroactively. (870) Defendant committed his offense and the district court sentenced him prior to the effective date of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act). Because the de novo standard of review of departures imposed by the Act neither criminalizes conduct that was not criminal when committed nor applies a greater penalty than could have been imposed at that time, the Second Circuit held that the PROTECT Act applied to defendant’s appeal. The Act’s change in the standard of review “is properly characterized as procedural rather than substantive and therefore can be applied to a pending appeal without violating the Ex Post Facto clause because it neither increases the punishment nor changes the elements of the offense or the facts that the government must prove at trial.” U.S. v. Kostakis, 364 F.3d 45 (2d Cir. 2004).
2nd Circuit says that whether a prior conviction should be counted in criminal history is a question of law. (870) The 2nd Circuit found that whether defendant’s prior driving with ability impaired convictions should be counted for criminal history purposes is a question of law to be reviewed de novo. U.S. v. Moore, 968 F.2d 216 (2nd Cir. 1992).
2nd Circuit reviews de novo whether criminal facilitation is controlled substance offense for career offender purposes. (870) Defendant challenged the district court’s determination that his prior conviction for criminal facilitation was a controlled substance offense for career offender purposes. The 2nd Circuit found that this was a legal issue justifying de novo review. U.S. v. Liranzo, 944 F.2d 73 (2nd Cir. 1991).
2nd Circuit holds de novo standard applicable to review of application of abuse of trust enhancement. (870) Defendant challenged the district court’s two-level enhancement under guideline § 3B1.3 for abuse of trust. The 2nd Circuit concluded that the proper standard of review for this question was de novo. The significant facts in the case were not in dispute. “The question whether an interpretation of the guideline embraces those facts is, in our view, a legal question which we review de novo.” Judge Mahoney believed that the case should be reviewed on a due deference, rather than a de novo, basis. U.S. v. Castagnet, 936 F.2d 57 (2nd Cir. 1991).
2nd Circuit holds that whether conduct is relevant to the offense of conviction is reviewed for clear error. (870) Agreeing with the 1st, 6th and 8th Circuits, the 2nd Circuit held that “the determination that one transaction is part of the same course of conduct or part of a common scheme or plan as the offense of conviction necessitates an evaluation of the facts presented to the district court.” Since the requisite analysis is “essentially factual,” and since “the district court’s resolution of the question raises no important, widely applicable issues of law,” the court reviewed the district court’s determination for clear error. U.S. v. Vazzano, 906 F.2d 879 (2nd Cir. 1990).
2nd Circuit holds that application of guidelines to the facts is reviewed for abuse of discretion. (870) The 2nd Circuit ruled that “we will not overturn the court’s application of the guidelines to the facts.ÿ.ÿ. unless we conclude that there has been an abuse of discretion.” The court relied on 18 U.S.C. § 3742(e), which requires the appeals court to “accept the findings of fact of the district court unless they are clearly erroneous and .ÿ.ÿ. give due deference to the district court’s application of the guidelines to the facts.” The court found no clearly erroneous finding or abuse of discretion here. U.S. v. Santiago, 906 F.2d 867 (2nd Cir. 1990).
2nd Circuit holds that standard of review of obstruction enhancement depends on nature of issue on appeal. (870) The 2nd Circuit noted that while a district court’s determination of whether a defendant obstructed justice is typically reviewed as a factual finding under the clearly erroneous standard, the issue here — whether mere flight from the crime scene constitutes willful obstruction — turned primarily on the legal interpretation of a guideline term. Consequently the court applied the de novo standard of review. U.S. v. Stroud, 893 F.2d 504 (2nd Cir. 1990).
3rd Circuit reviews for clear error whether public official has a “high-level decision-making or sensitive position.” (870) Defendant, the former director of human resources for a county government, pled guilty to accepting a bribe. He challenged a § 2C1.2(b)(3) increase for being a government official in a high-level decision-making or sensitive position. The Third Circuit ruled that whether an individual is a public official in a “high-level decision-making or sensitive position” is a factual determination, reviewable on appeal for clear error. U.S. v. Richards, 674 F.3d 215 (3d Cir. 2012).
3rd Circuit says below-guideline sentence in similar case did not make guideline sentence unreasonable. (870) Defendant was involved in a mortgage and bank fraud conspiracy. Relying on the one-year sentence received by the defendant in a similar but unrelated case, defendant argued that the court improperly considered the § 3553(a) factors in sentencing him to 40 months, which fell within the middle of the applicable guideline range of 37-46 months. The Third Circuit found that the guideline sentence was reasonable. The existence of another case where a defendant was charged with a somewhat similar crime and faced the same advisory guideline range, but who received a below-guideline sentence, did not make defendant’s within-guideline sentence unreasonable. If that were the law, any sentence outside of the Guideline range would set precedent for all future similarly-convicted defendants. Although a similar sentence might have been reasonable here, that did not make defendant’s sentence unreasonable. U.S. v. Jimenez, __ F.3d __ (3d Cir. Jan. 14, 2008) No. 05-4098.
3rd Circuit, in reviewing breach of plea agreement, applies same standard to both government and defense. (870) Defendant’s plea agreement provided that neither party would argue for an upward or downward departure not specified in the agreement. The government claimed that defendant breached the agreement by filing a sentencing memo requesting a downward departure. The Third Circuit held that it will apply the same standard of review in considering a defendant’s breach of a plea agreement as it would apply in a government breach case. It will review the question of whether a defendant breaches his plea agreement de novo, and will impose the burden on the government to prove the beach by a preponderance of the evidence. Further, it will analyze the issue of whether a defendant has breached a plea agreement according to the same contract principles that it would apply in analyzing a government breach, including the principle that it will construe ambiguities in the agreement against the government. Here, defendant breached the agreement by arguing that his criminal history was overstated, and that the court should depart downward because of his troubled background, health and family issues. As a remedy, the court remanded to a different judge for resentencing. The sentencing judge could be influenced inadvertently by the breaching party’s prior arguments when the case was remanded for resentencing. U.S. v. Williams, 510 F.3d 416 (3d Cir. 2007).
3rd Circuit says erroneous use of “reasonable doubt” standard made sentence unreasonable. (870) Defendants were convicted of fraud. At sentencing, the judge found that loss amounts should be based on proof beyond a reasonable doubt. The Third Circuit reversed. Post-Booker, a court must continue to calculate a defendant’s guideline sentence in the same way it would have before Booker. The standard of proof under the guidelines for sentencing facts continues to be a preponderance of the evidence. The court here erred in calculating the sentencing range according to its assessment of the amount provided beyond a reasonable doubt. The judge also failed to specify even a reasonable estimate of the loss amount for each defendant. These mistakes made the resulting sentence unreasonable. U.S. v. Ali, 508 F.3d 136 (3d Cir. 2007).
3rd Circuit does not require notice of intent to impose guideline variance. (870) In U.S. v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006), the Third Circuit held that advance notice of a potential sentencing variance is not required under Rule 32(h). Here, defendant argued that the district court’s failure to provide advance notice of its intent to impose a sentence well above the advisory guideline range violated due process. The Third Circuit found no due process violation, but nonetheless ruled that the court’s failure to address defendant’s claim of unwarranted disparity rendered the sentence unreasonable. For substantially the reasons stated in Vampire Nation, the panel found the due process challenge unavailing. Due process in criminal sentencing requires that a defendant receive notice of and a reasonable opportunity to comment on the alleged factual predicate for his sentence, and the potential punishments which may be imposed. Defendant received this – he did not identify any fact relied on by the district court which was not included in the PSR. He also received adequate notice of the potential punishment when he was charged in a criminal information with an offense carrying a maximum sentence of 30 years. Moreover, while defendant claimed he had no notice that the district court would double his sentence based on victim impact statements, defendant did not specify the nature of any rebuttal evidence he would have offered if he had received prior notice. Nonetheless, remand was required, because the district court did not address at least one potentially meritorious argument advanced by defendant. When the record is inadequate, an appellate court will not fill in the gaps by searching the record for factors justifying the sentence. U.S. v. Ausburn, 502 F.3d 313 (3d Cir. 2007).
3rd Circuit rules Kikumura is no longer good law in light of Booker. (870) Although courts have generally upheld the use of the preponderance of the evidence standard under Sentencing Guidelines, in U.S. v. Kikumura, 918 F.3d 1084 (3d Cir. 1990), the Third Circuit held that when the enhancements are so substantial as to constitute “the tail that wags the dog” of the defendant’s sentence, the facts underlying those enhancements must be established by clear and convincing evidence. Here, the Third Circuit held that Kikumura was no longer good law in light of Booker. The application of Kikumura went “hand-in-hand” with the then mandatory force of the guidelines. Under an advisory system, facts relevant to enhancements under the guidelines no longer increase the maximum punishment to which the defendant is exposed, but simply inform the judge’s discretion as to the proper sentence. Accordingly, sentencing judges are free to find facts by a preponderance of the evidence, provided that the sentence actually imposed is within the statutory range, and is reasonable. Thus, although concerns about the “tail wagging the dog” were valid under the mandatory guidelines system, these concerns were put to rest when Booker rendered the guidelines advisory. U.S. v. Fisher, 502 F.3d 293 (3d Cir. 2007).
3rd Circuit finds four-month sentence for child porn defendant was unreasonably lenient. (870) Defendant was convicted of possessing hundreds of electronic images of child pornography on his computer. Although the PSR recommended a guideline range of 37-46 months, the district court imposed a four-month sentence. As support, it noted that it had considered the guidelines (but made no mention of the range that was applicable to defendant), considered a letter from a doctor that stated that defendant “had never acted out in any sexual way with children,” and noted the number of letters of support from friends and family. The court relied heavily on the fact that defendant had no criminal history and had lived an “exemplary” life for 54 years. The Third Circuit reversed, finding the four-month sentence both procedurally and substantively unreasonable. First, the district court did not follow the three-step process laid out in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006) for imposing sentences after Booker. The court’s decision failed to reflect the required analysis of the § 3553(a) factors and gave short shrift to the guidelines, one of the listed factors. The four-month sentence was unreasonably lenient. The court viewed this as a victimless crime, and ignored the real injuries suffered by the children depicted in the pornography. The fact that defendant never “acted out in any sexual way with children” was irrelevant – defendant was not charged with molestation. U.S. v. Goff, 501 F.3d 250 (3d Cir. 2007).
3rd Circuit holds that court failed to provide necessary explanation for significant variance. (870) For three years, defendant sold counterfeit software over the Internet. His advisory guideline range was 18-24 months. Throughout the sentencing hearing, the district court focused on the repayment of restitution and implied that if defendant could arrive at a satisfactory plan of restitution, he would be able to avoid imprisonment. The district court eventually sentenced defendant to five years of probation with restitution of $48,000 a year. The Third Circuit reversed, finding that the district court failed to provide a sufficient explanation for the significant variance. The government objected strenuously to the variance, and the district court was obliged to explain why such a significant variance was warranted in light of the concerns raised by the government. The court focused its explanation exclusively on the need for defendant to remain productive and employable and the need for defendant to maintain the financial ability to pay restitution to Microsoft. However, the appellate court failed to see “the trade-off between incarceration and restitution” which seemed to motivate the district court. Given defendant’s financial information, the money to pay the restitution was clearly coming from defendant’s in-laws. While it was conceivable that in some circumstances the need for restitution would be great enough to subordinate certain penal interests, the court did not identify any such circumstances. In light of the course of defendant’s restitution payments, there was no reason to favor the restitution aspect of punishment over the incarceration aspect. U.S. v. Kononchuk, 485 F.3d 199 (3d Cir. 2007).
3rd Circuit holds 47-year sentence for attempted importation of missiles was reasonable. (870) Defendant was convicted of five charges related to his role in the attempted importation of shoulder-fired, surface to air missiles. He believed he was selling the missiles to a terrorist group that intended to use the weapons to shoot down civilian airliners in the U.S. The advisory guidelines recommended life imprisonment, and the district court imposed a sentence of 47 years. The statutory maximum for the offenses of conviction was 67 years in prison. The Third Circuit held that the 47-year sentence was reasonable. Although defendant admitted the seriousness of his offenses, he continued to assert entrapment as a mitigating factor. While the court would have been entitled to consider at sentencing the government’s “pervasive role in this case,” even if it did not amount to a due process violation or entrapment, in the end, the court and the jury were not persuaded by defendant’s defense. The appellate court refused to second guess this contention. U.S. v. Lakhani, 480 F.3d 171 (3d Cir. 2007).
3rd Circuit, en banc, holds that court’s explanation of sentence was insufficient. (870) In sentencing defendant for being a felon in possession of a firearm, the district court recognized that the guidelines were advisory but nevertheless imposed a sentence of 100 months, which fell within the recommended guideline range. It justified the sentence is a single statement: “The Court believes that 100 months is reasonable in view of the considerations of 18 U.S.C. § 3553(a).” Defense counsel did not object to the court’s explanation for the sentence. The Third Circuit, en banc, held that the court’s explanation of the sentence was insufficient. Booker did not alter the burden of proof or the standard of review for findings of fact relevant to sentencing. However, by making the guidelines advisory, rather than mandatory, it “place[d] a premium on thorough explication of sentencing decisions.” The record did not reflect the court’s reasoning. U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
3rd Circuit holds that court could not impose longer sentence solely to make defendant eligible for drug treatment program. (870) Although defendant’s guideline range was two to eight months, the district court imposed a 30-month sentence, finding such a term was necessary to make defendant eligible for a 500-hour drug treatment program offered by the Bureau of Prisons. The Third Circuit reversed. It is the policy of Congress that defendants not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. See 18 U.S.C. § 3582(a) (“imprisonment is not an appropriate means of promoting correction and rehabilitation”). Rehabilitation is a legitimate goal of sentencing. See § 3553(a)(2)(D) (courts shall consider the need for the sentence imposed “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment…”). However, that legitimate goal of sentencing is to be accomplished through other authorized forms of punishment. U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007).
3rd Circuit holds that court was not required to use ratcheting procedure to impose sentence above guideline range. (870) At defendant’s initial sentencing, the district court rejected the government’s request to sentence defendant as a career offender. The court imposed a 180-month sentence, a 50 percent increase over the applicable mandatory minimum, but lower than the 262-327 month range that would have applied to defendant as a career offender. On appeal, the Third Circuit directed the court to reconsider any upward departure by using the ratcheting procedure set forth in U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). Prior to resentencing, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). Thus, at resentencing, the court did not ratchet up the sentence in Kikumura fashion. Instead, it based its sentence on all the § 3553(a) sentencing factors, particularly defendant’s criminal history, and again imposed a 180-month sentence. The Third Circuit found no error. Although ratcheting is still necessary to determine the propriety of an upward departure, the court did not depart upward. Where a court sentences above the guideline range based on the § 3553(a) factors, without granting a departure from the guideline range, it is not bound by the ratcheting procedures set forth in Kikumura. When a court sentences post-Booker and views all of the § 3553 factors, the guideline range is simply one factor for it to consider in arriving at the sentence. U.S. v. Colon, 474 F.3d 95 (3d Cir. 2007).
3rd Circuit holds that parsimony provision does not require court to state that sentence is the minimum necessary for § 3553(a) purposes. (870) Under the so-called parsimony provision of § 3553(a), a court should “impose a sentence sufficient, but not greater than necessary,” to comply with the purposes set forth in § 3553 (a)(2). Defendant claimed that his sentence was unreasonable under Booker because the court failed to adequately consider the parsimony provision. The Third Circuit held that district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in § 3553(a)(2).The appellate court reviews sentences for reasonableness and looks to the record to determine whether the court adequately considered the relevant provisions of § 33553(a) and any arguments properly presented by the parties which have legal merit and a factual basis in the record. The record here showed the court expressly mentioned § 3553(a) and the court’s discussion was consistent with the relevant provisions of § 3553(a). U.S. v. Dragon, 471 F.3d 501 (3d Cir. 2006).
3rd Circuit finds no error despite failure to explicitly rule on departure motion where it could infer court’s ruling. (870) Defendant argued that the district court erred by never ruling on his motion for a downward departure based on his extraordinary acceptance of responsibility. In U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Third Circuit outlined a three-step process for district courts to follow after Booker: (1) calculate the defendant’s guideline sentence as they would pre-Booker; (2) state on the record whether they are granting a departure; and (3) consider the relevant § 3553(a) factors in setting the sentence, regardless of whether it varies from the sentence calculated under the guidelines. Here, the record did not reveal a ruling on defendant’s motion for a downward departure based on his extraordinary acceptance of responsibility. The Third Circuit found no error, since pre-Booker law regarding guideline departures allowed it to infer meaning from the court’s actions. The government’s argument to the court conceded the plausibility of the downward departure, and thus, it was likely that the court’s refusal to depart was discretionary. As to the third step, the court adequately considered the § 3553(a) factors. The court did more than simply recite the factors – it addressed both arguments defense counsel raised in support of a variance. U.S. v. Jackson, 467 F.3d 834 (3d Cir. 2006).
3rd Circuit holds that § 3553(a)(6) is not directed at disparity between co-defendants’ sentences. (870) Defendant and two co-defendants were convicted of drug conspiracy charges. Defendant was originally sentenced to 349 months, while his co-conspirators received sentences of 125 and 324 months, respectively. The Third Circuit later remanded for resentencing in light of U.S. v. Booker, 543 U.S. 220 (2005). On remand, the court resentenced the co-conspirators to 86 and 180 months of imprisonment, but it resentenced defendant to 349 months, an identical term to that originally imposed. Defendant argued that his sentence was unreasonable because it failed to take into account “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” § 3553 (a)(6). The Third Circuit concluded that the goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing rather than uniformity among co-defendants in the same case. Therefore, a defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence designed to “lessen disparity between co-defendants’ sentences.” Moreover, even if § 3553(a)(6) were applicable to co-defendants, it only applies where co-defendants are similarly situated. The court here distinguished its reduction of one co-conspirator on the grounds that he had assisted in convicting his co-defendants. It also distinguished the second defendant’s reduction in sentence, noting that he had a far less extensive criminal record than defendant. Defendant did not meet his burden of establishing that his sentence was unreasonable. U.S. v. Parker, 462 F.3d 273 (3d Cir. 2006).
3rd Circuit holds that judge’s reference to gun violence did not make felon in possession sentence unreasonable. (870) Defendant was convicted of being a felon in possession of a firearm. In imposing a 63-month sentence, the court referred to a recent shooting and discussed the evils of gun violence in general. Defendant argued that because his conviction involved neither gun violence toward innocence bystanders nor the death of a police officer, the recent news reports and the judge’s personal feelings toward gun violence were irrelevant to his sentencing and were not proper considerations under 18 U.S.C. § 3553(a). The Third Circuit held that the judge’s comments did not make the sentence imposed unreasonable. Gun violence is a serious problem in the U.S., and the possession by a convicted felon of a nine-millimeter handgun loaded with hollow-point and “full metal jacket” bullets was certainly related to other instances of gun violence, regardless of whether defendant himself used or intended to use the weapon against a person. The judge comments were designed to explain “the seriousness of the offense.” 18 U.S.C. § 3553(a)(2)(A). U.S. v. Williams, 458 F.3d 312 (3d Cir. 2006).
3rd Circuit holds that court understood discretion to grant variance based on extraordinary acceptance of responsibility. (870) Defendant argued that the district court failed to recognize its authority to sentence him below the advisory guideline range based on his extraordinary acceptance of responsibility. The Third Circuit ruled that the court understood its discretion to issue a variance on this basis, but merely exercised its discretion not to reduce the sentence. The record revealed that the court well understood the advisory nature of the guidelines and its duty to consider the guidelines and other factors pursuant to the sentencing goals outlined in § 3553(a). The court’s statement that defendant’s impressive acceptance of responsibility “isn’t something that I’m going to reduce your sentence for” clearly implied that the court understood that it could reduce a sentence on that basis, but that it chose not to do so based upon its consideration of the § 3553(a) factors. The court reinforced this understanding by stating that it chose “to stay within the guidelines.” Absent an express statement or other evidence to the contrary, the Third Circuit will not find a sentence unlawful merely because a sentencing court has not indicated that the guidelines are advisory. U.S. v. Severino, 454 F.3d 206 (3d Cir. 2006).
3rd Circuit approves variance to nearly 50 percent above advisory range where record reflected “rational and meaningful consideration” of statutory factors. (870) Defendant had a two-decades old history of defrauding the Department of Defense. The district court denied defendant’s request for a downward departure. It found that, in light of the numerous victims and defendant’s persistent failure to rehabilitate, his assignment to criminal history V did not overrepresent the “seriousness of his criminal history” or the likelihood that he will commit other crimes.” The Third Circuit ruled that the 84-month sentence was reasonable, even though it was nearly 50 percent above the recommended guideline range of 46-57 months. The district court discussed in great detail the circumstances underlying the offenses of conviction and defendant’s criminal history. It assessed the effect of defendant’s offenses on his family and the victim, his blatant disregard of prior orders of court, his failure to be deterred or rehabilitated despite prior terms of imprisonment and supervised release, and his dismissive attitude toward restitution obligations. There was no doubt that the record reflected “rational and meaningful consideration” of the relevant statutory factors. U.S. v. Schweitzer, 454 F.3d 197 (3d Cir. 2006).
3rd Circuit approves upward variance based on criminal history although court did not follow departure methodology. (870) Over a twenty-year period, defendant engaged in identity theft, using the social security number and date of birth of another man with the same name, and causing losses exceeding $166,000. Although defendant’s guideline range was 30-37 months, the district court sentenced him to 72 months. He argued that the court erred by not following the methodology established prior to Booker for imposing a sentence above the guideline range. When departing upward based on an underrepresentation of criminal history, district court are required to apply U.S.S.G. § 4A1.3 and consider each higher criminal history category in sequence. See U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). If the court were under the pre-Booker mandatory guideline scheme, the failure of the district court to have expressly followed that approach would have required remand because the appellate court would have assumed prejudice. Post-Booker, the Third Circuit ruled that it would not presume prejudice, but would review the sentence for plain error. The court here provided an adequate explanation for the sentence on the record. It gave extensive attention to the circumstances of defendant’s life and offense and the harm done to the victim. Defendant was a career criminal who was not deterred by prosecution in state or federal court. A lengthy prison sentence was clearly warranted to prevent and deter defendant from re-offending. Because the district court “did in fact touch all the bases required,” the panel affirmed the sentence imposed. Nonetheless, it emphasized that “the sentencing courts in this Circuit should continue to follow the requirement to ‘consider’ the guidelines by calculating a guidelines sentence as they would have before Booker, including formally ruling on the motions of both parties and stating on the record whether they are granting a departure and how that departure affects the guidelines calculation, and taking into account this Circuit’s pre-Booker caselaw, which continues to have advisory force.” U.S. v. King, 454 F.3d 187 (3d Cir. 2006).
3rd Circuit overrules Kikumura and finds preponderance standard of proof applies to facts relevant to sentencing. (870) Defendant pled guilty to being a felon in possession of a firearm after he was involved in a fight in which shots were fired. The district court found that the fight constituted an aggravated assault under state law, and that the offense had been committed in connection with the firearm possession. This resulted in a four-level enhancement under § 2K2.1(b)(5). The Third Circuit held that the district court properly applied a preponderance of the evidence standard to the facts relevant to the guidelines, including the finding that defendant had committed an aggravated assault. In U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 2006), the Third Circuit held that certain sentencing enhancements that significantly increase the recommended sentence and “can fairly be characterized as ‘a tail which wags the dog of the substantive offense’“ must be proved by clear and convincing evidence. Since the jurisdictional basis of this holding has been disavowed by the Supreme Court and plainly conflicts with Booker, the court overruled this aspect of Kikumura. U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
3rd Circuit holds that government may invoke plain error doctrine to challenge sentence that is too low. (870) Where a party does not object or otherwise bring an error to the attention of the district court, an appellate court normally reviews for plain error. Usually in the criminal context, this standard is used in an appeal by a defendant who challenges aspects of his conviction or his sentence. Defendant argued that the government should not be permitted to raise plain error because the third prong of the plain error analysis, which require a finding that “substantial rights” have been affected by the error, cannot have been met where the government challenges a sentence that is too low. The circuits are split on this issue, but the majority have rejected this argument and applied the plain error standard in the context of criminal appeals brought by the government. See, e.g. U.S. v. Gordon, 291 F.3d 181 (2d Cir. 2002); U.S. v. Perkins,108 F.3d 512 (4th Cir. 1997); U.S. v. Barajas-Nunez, 91 F.3d 826 (6th Cir. 1996). The Third Circuit was persuaded by the majority position and concluded that the language of Rule 52(b) does not limit which party may raise a plain error before an appellate court. Moreover, the government’s right to seek justice on behalf of the accuser and society in a criminal case can certainly be “substantially affected” where a plainly erroneous sentence that is inappropriately light is imposed. U.S. v. Dickerson, 381 F.3d 251 (3d Cir. 2004).
3rd Circuit articulates standards for reviewing claim that government breached plea agreement. (870) Defendant contended that the government breached its plea agreement with him. The 3rd Circuit articulated the standard of review of such a claim. There are three questions to be determined, each with a different standard of review. First, the court must determine the facts of the case, i.e. what are the terms of the agreement and the conduct of the government. The appellate court’s review of those findings is limited by the “clearly erroneous” standard. Second, the court must determine whether the government’s conduct violated the terms of the plea agreement. This is a question of law and the appellate court’s review is plenary. Finally, if a violation occurred, the court must determine an appropriate remedy. The case must be remanded for either resentencing or withdrawal of the guilty plea. U.S. v. Hayes, 946 F.2d 230 (3rd Cir. 1991).
3rd Circuit gives plenary review to whether section 3E.1 requires acceptance of conduct beyond offense of conviction. (870) Defendant argued that section 3E1.1 requires only that he accept responsibility for the specific acts constituting the offense of conviction. The 3rd Circuit found that this was a legal question subject to plenary review. U.S. v. Frierson, 945 F.2d 650 (3rd Cir. 1991).
3rd Circuit reviews “grouping” issue under clearly erroneous standard. (870) Defendant contended that his money laundering counts were ancillary, rather than related, to the other counts in the indictment, and therefore the district court should not have grouped the money laundering offenses with his other offenses. The 3rd Circuit held that this was a factual issue governed by the clearly erroneous standard of review. Although the court previously stated that construction of guideline § 3D1.2 was a legal issue for plenary review, in that case the issue was whether offenses for which society is the victim were properly grouped together. In contrast, the issue in this case was whether defendant’s offenses were part of one overall scheme, which the court viewed as essentially a factual issue. U.S. v. Cusumano, 943 F.2d 305 (3rd Cir. 1991).
3rd Circuit exercises plenary review over question of which guideline is applicable. (870) Defendant argued that the district court erroneously applied the extortion guideline, § 2B3.2, to his case rather than the blackmail guideline, § 2B3.3. Both defendant and the government agreed that serious economic harm must be threatened before the extortion guideline is applicable. The government, however, contended that whether the extortioner’s threat is serious enough to meet the guidelines test is a factual issue reviewed by the appellate court for clear error. The 3rd Circuit, however, agreed with defendant that the review is plenary because the question of which section is applicable is a legal determination. U.S. v. Inigo, 925 F.2d 641 (3rd Cir. 1991).
3rd Circuit upholds upward departure based upon extreme psychological injury caused by defendant’s fraud. (870) Defendant’s fraudulent stock scheme swindled various people, including several elderly people, out of large sums of money. The district court increased defendant’s offense level under guideline § 5K2.3 for infliction of extreme psychological injury. The appellate court found sufficient evidence to support this finding. At least two of the couples were elderly and lost their entire life savings. One of the women was forced to seek treatment for high blood pressure, and continued to be under a doctor’s care. One of men who was already in poor health displayed adverse physical and behavioral effects. Judge Hutchinson, dissenting in part, argued that the district court’s findings were clearly erroneous because they were based upon unsupported lay statements. He also found that the victims’ age and financial circumstances were already considered in the guidelines. U.S. v. Astorri, 923 F.2d 1052 (3rd Cir. 1991).
3rd Circuit applies de novo standard in reviewing whether defendant held position of trust. (870) Defendant was a bank manager who misapplied bank funds. In determining whether defendant should receive an adjustment under guideline § 3B1.3 for abusing a position of trust, the 3rd Circuit found that the determination of what authority defendant had as branch manager and what he did in the course of committing his crime are factual findings reviewable only for clear error. However, whether the authority defendant possessed as bank manager was such that he served in a “position of trust” is “better characterized as an inquiry into the ‘interpretation of the guideline term.’” The inquiry therefore approaches a “purely legal determination,” and a standard “approaching de novo review” is appropriate. Whether defendant abused his position in a way that substantially facilitated the commission or concealment of the crime is a finding of fact reviewed under the clearly erroneous standard. U.S. v. McMillen, 917 F.2d 773 (3rd Cir. 1990).
3rd Circuit holds “minimal planning” is a factual determination subject to “clearly erroneous” review. (870) The 3rd Circuit ruled that a determination whether the commission of some particular offense involved more than minimal planning is essentially factual and subject only to “clearly erroneous” review. cian U.S. v. Cianscewski, 894 F.2d 74 (3rd Cir. 1990).
3rd Circuit holds factual determinations under the guidelines are reviewed for clear error. (870) The 3rd Circuit held that factual findings used to support offense level adjustments will be reviewed only for clear error under 18 U.S.C. § 3743(e). In this case, the sentencing court’s finding that the defendant had suborned his son’s grand jury testimony was not clearly erro-neous. U.S. v. McDowell, 888 F.2d 285 (3rd Cir. 1989).
3rd Circuit holds issues of credibility at sentencing are solely within the trial court’s power. (870) The Third Circuit held that even if the “beyond a reasonable doubt” standard governs sentencing hearings, this would have no effect upon appellate review of a trial court’s findings of fact, because issues of credibility are reserved for the district court. Thus, it was proper for the district court to believe a government witness that the defendant had engaged in a marijuana transaction of 450 pounds and rely upon it in sentencing. U.S. v. Sciarrino, 884 F.2d 95 (3rd Cir. 1989).
3rd Circuit holds clearly erroneous standard of review proper in finding that defendant was an “organizer.” (870) The 3rd Circuit found that the appropriate standard of review in determining whether a defendant was an organizer, leader, manager or supervisor is the “clearly erroneous” standard, because these conclusions are essentially factual. Applying this standard, the district court’s conclusion that the defendant was an organizer or leader of five or more persons under § 3B1.1(a) was proper. The four point increase in the base offense level was therefore justified, given the defendant’s control of the location of the drug transaction, the quantity, price to be paid and the responsibilities and actions of the other participants. U.S. v. Ortiz, 878 F.2d 125 (3rd Cir. 1989).
4th Circuit finds no plain error where court found defendant “should never see the light of day.” (870) Defendant challenged the substantive reasonableness of his sentence on appeal, claiming that the district court considered an improper factor (the exercise of his right to trial, which caused the victim to have to testify). Because this claim was not addressed in any of defendant’s earlier arguments in favor of a below-Guidelines sentence, the Fourth Circuit reviewed the argument for plain error. The panel concluded that defendant did not show that the district court’s error affected his substantial rights. The district court’s sentence was within both the statutory maximum and the advisory guideline range. The court considered and addressed the § 3553(a) factors and It emphasized that it would impose the identical sentence even if defendant had a lower guidelines range because it would have varied upward to life imprisonment due to the nature of defendant’s conduct, The court commented that defendant “should never see the light of day.” Defendant could not show that he would have received a lower sentence had the district court not also mentioned the victim suffered further harm by testifying at trial. U.S. v. Hargrove, 625 F.3d 170 (4th Cir. 2010).
4th Circuit says claim of error made before ruling is preserved despite failure to renew after ruling. (870) Defendants argued for the first time on appeal that the sentencing court committed reversible procedural error by failing to consider the required sentencing factors and offer an adequate explanation for the sentence imposed. Fourth Circuit held that when a party lodges such an objection at sentencing, the appellate court reviews for abuse of discretion, but when the objection is raised for the first time on appeal, review is only for “plain error.” The panel rejected the government’s claim that to preserve such a claim of procedural sentencing error, a party must object to a perceived error after the court has rejected the party’s argument. The Federal Rules of Criminal Procedure reject this formulaic approach – a party may preserve a claim of error by informing the court when an order is made or sought. U.S. v. Lynn, 592 F.3d 572 (4th Cir. 2010).
4th Circuit applies “plainly unreasonable” standard of review where no sufficiently analogous guideline. (870) Defendant was arrested on a U.S. army post for driving under the influence of alcohol. He pled guilty to drunk driving in violation of Virginia law, as assimilated into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13. Because of the circumstances of the crime and defendant’s extensive history of alcohol abuse, the district court sentenced him to 27 months’ imprisonment. When an assimilated state offense resembles conduct for which a federal offense has been promulgated, the Sentencing Guidelines provides that “the most analogous offense guideline should be applied.” § 2X5.1. But where, as here, there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(a) control directly. The Fourth Circuit held that because there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3742(a)(4) apply to impose a “”plainly unreasonable” standard of review for the sentence. Defendant’s 27-month sentence was not plainly unreasonable. The panel rejected defendant’s claim that the district court did not adequately consider the disparity between its sentence and Virginia’s sentencing guidelines. The district court considered the state guidelines, and then explained how sentencing under the state guidelines provided no deterrence to defendant. The court found that the previous six-month sentences imposed had not been sufficient, and the court needed to impose a sentence that would change defendant’s behavior and protect the public. U.S. v. Finley, 531 F.3d 288 (4th Cir. 2008).
4th Circuit affirms substantial downward variance in child porn case. (870) Defendant was a junior high school teacher. On several occasions, an eighth-grade student approached him and asked whether he was interested in paying her money if she took nude photos of herself. On each occasion, defendant agreed. He pled guilty to one count of possessing photographs that contained images of child pornography. Although his guideline range was 78-97 months, the district court found that the facts of the case warranted a downward variance to a sentence of 42 months. The court found the following factors supported the variance: (1) on each occasion in which defendant bought nude photos, defendant initially was approached by the victim; (2) fewer than two dozen pornographic pictures were taken with the victim’s Polaroid camera; (3) the victim’s face did not appear in any of the photos; (4) defendant displayed deep remorse; (5) besides the criminal conduct at issue, defendant was a model citizen and a good father and teacher; (6) as a result of his conviction, defendant lost his teaching certificate and his state pension; (7) defendant agreed to a lifetime term of supervised release; (8) no other child pornography was found in defendant’s house; and (9) the counseling defendant would receive during incarceration would rehabilitate him and allow him to lead a productive life. The Fourth Circuit found no abuse of discretion in the below-guideline sentence. There were no procedural errors. The court’s rationale for varying downward 36 months from the low-end of defendant’s guideline range was reasonable and premised on the § 3553(a) factors. U.S. v. Pauley, 511 F.3d 468 (4th Cir. 2007).
4th Circuit says 63-month sentence for traveling interstate to have sex with 12 year-old was reasonable. (870) Defendant was convicted of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a 12 year-old child. The district court properly calculated his guideline range as between 51 and 63 months, and then imposed a sentence of 63 months, the top of the advisory range. In doing so, the court rejected defendant’s argument that because no actual minor child was involved and because defendant’s prior conviction was 22 years prior to the charged crime, defendant should be sentenced at the lower end of the guideline range. The court found that defendant’s “predilection for sexual violence,” and the fact that defendant took substantial steps toward having sex with a minor militated against imposing a sentence at the low end of the advisory guideline range. The Fourth Circuit found nothing in the record to rebut the presumptive reasonableness of the 63-month sentence, which was within the guideline range and below the 30-year statutory maximum. U.S. v. Kelly, 510 F.3d 433 (4th Cir. 2007).
4th Circuit finds court properly considered statutory sentencing factors. (870) Defendant was convicted of being a felon in possession of a firearm, and received a 120-month sentence. He argued that the district court failed to adequately consider the § 3553(a) factors in imposing his sentence. He had objected to the PSR’s finding that no mitigating factors supported a sentence outside the guidelines range. He requested the court take into consideration his medical condition, the lack of educational opportunities in the prison system, and other facts “apparent from the record.” The Fourth Circuit held that the district court properly considered the statutory sentencing factors. While sentencing counsel failed to offer any argument on those issues at sentencing, it was clear from the record that the district judge understood defendant’s personal characteristics. The PSR presented an exhaustive overview of defendant’s personal history, and the judge accepted the report and made it part of the record. The judge stated that he considered “all of the factors under 18 U.S.C. § 3553(a)” and found “the guideline range sentence of 120 months to be appropriate in this case.” Such a statement demonstrated that the district court considered defendant’s arguments but found his personal characteristics did not warrant a sentence outside the guideline range. The judge’s brief statement was sufficient under the circumstances to show that he considered the § 3553(a) factors in determining the appropriate sentence. U.S. v. Battle, 499 F.3d 315 (4th Cir. 2007).
4th Circuit holds standard of review was whether probation revocation sentence was plainly unreasonable. (870) Defendant repeatedly violated the conditions of his probation by, among other things, failing to participate in a drug treatment program, using marijuana, failing to pay restitution, failing to submit monthly supervision reports, and failing to report an arrest. Although the policy statements in Chapter 7 called for a three to nine month sentence, the court imposed an 18-month sentence, explaining that defendant had “‘flaunted the requirements of probation.” The Fourth Circuit held that a probation revocation sentence should be vacated only if plainly unreasonable. In U.S. v. Crudup, 461 F.3d 433 (4th Cir. 2006), the court held that revocation sentences should be reviewed to determine whether they are plainly unreasonable with regard to the applicable 18 U.S.C. § 3553(a) factors. Although Crudup dealt with a supervised release revocation sentence, there was no reason to treat probation revocation sentences differently, and many reasons to treat them the same. The revocation sentence imposed here was not plainly unreasonable. Although all of defendant’s violations were Grade C, they were numerous and pervasive. It is appropriate for a court, in facing a probation violator, to take account of the fact that the policy statement range is based only upon the severity of the single most severe violation. U.S. v. Moulden, 478 F.3d 652 (4th Cir. 2007).
4th Circuit holds that upward variance was reasonable where defendant was member of violent street gang. (870) Defendant pled guilty to illegally reentering the country after deportation, resulting in an advisory guideline range of zero to six months. The district court found that a variance was warranted because, while defendant came back to the country primarily because of family considerations, he was a member of a violent street gang, and he began associating with fellow gang members upon his return to the U.S. The Fourth Circuit ruled that the 18-month sentence imposed by the district court was reasonable. The variance sentence of an additional 12 months was necessary to account for the fact that defendant not only illegally reentered the U.S. but also continued his association with a violent street gang after his reentry. The district court was understandably seeking to stymie defendant’s ability to associate with the gang, with the hope that further removing him from the violent lures of the gang would increase his chance of turning his life around. U.S. v. Hernandez-Villanueva, 473 F.3d 118 (4th Cir. 2007).
4th Circuit holds that 480% increase above guideline range was not reasonable. (870) Defendant embezzled $77,222 from her employer. She pled guilty to one count of bank fraud, resulting in an advisory guideline range of 24-30 months. The Fourth Circuit held that the 144-month sentence imposed by the district court, which represented a 480% increase over the high end of the guideline range, was not reasonable. The main § 3553(a) factor cited by the district court, defendant’s risk of recidivism and the need to protect the public, supported a variance. Defendant’s prior convictions were for similar offenses, and she was still serving the term of supervised release from the second offense when she was arrested and charged in this case. The district court found that defendant was a “habitual thief. “ However, the court did not articulate sufficiently compelling reasons to justify the extent of the variance. The court did not explain how it concluded that a 144-month sentence was necessary to serve the goals of § 3553(a). Many of the bases articulated by the court were already contemplated by the guidelines. U.S. v. Tucker, 473 F.3d 556 (4th Cir. 2007).
4th Circuit holds that court is not required to apply lowest sentence within advisory guideline range. (870) Defendant argued that the holding in U.S. v. Green, 436 F.3d 449 (4th Cir. 2006), that sentences within a properly calculated guideline range are “presumptively reasonable,” requires a district court to always sentence a defendant to the lowest term within the relevant guideline range. The Fourth Circuit disagreed. Green requires a court to calculate the appropriate guideline range, and then to consider the factors outlined in § 3553(a) to determine which sentence within that range, if any, is sufficient, but not greater than necessary to comply with § 3553(a). The fact that a sentence at the lowest end of the guideline range could be reasonable if the sentencing judge concluded it was sufficient does not mean that the sentencing judge must conclude that it is sufficient. U.S. v. Smith, 472 F.3d 222 (4th Cir. 2006).
4th Circuit holds that downward variance to make sentence similar to co-defendant’s was unreasonable. (870) The judge properly calculated defendant’s guideline range as 97-112 months, but imposed a 52-month sentence. The district court was concerned about the disparity with the 46-month sentence received by a co-defendant, who the court felt was similarly situated to defendant. The Fourth Circuit held that the sentence was unreasonable. The variance reduced defendant’s sentence from his recommended guideline range by almost half. Thus, the court was required to present “compelling reasons” for the variance. However, the sentence reduction focused almost exclusively on the co-defendant’s sentence. Thus, the court gave “excessive weight” to “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Moreover, defendant and his co-defendant were not similarly situated. The co-defendant was the second of the 11 defendants to plead guilty, and received a three-level reduction for acceptance of responsibility. In contrast, defendant gave false statements to investigators, destroyed evidence, provided “incredible” testimony at trial, and received an obstruction of justice enhancement. U.S. v. Khan, 461 F.3d 477 (4th Cir. 2006).
4th Circuit holds that government preserved objection even though it did not restate objection after sentence was announced. (870) The government challenged the district court’s imposition of a sentence below the advisory guideline range. Defendant argued that the sentence should be reviewed for plain error because the government did not object to the sentence when it was announced. The Fourth Circuit held that the government preserved its claim by vigorously arguing for a sentence within the guidelines range throughout the sentencing hearing. During a three-hour sentencing hearing the government responded to every argument the defendant offered for a sentence below that recommended in the PSR. The government requested a “substantial” sentence because his crimes disrupted the lives of many individuals, and made its position known with respect to the effect of restitution. The fact that the government did not restate its position after the sentence was announced, by lodging a futile objection at the end of the sentencing colloquy, was without consequence. U.S. v. Curry, 461 F.3d 452 (4th Cir. 2006).
4th Circuit rejects 70 percent downward variance based on theory that ran counter to jury verdict. (870) Defendant used the Internet auction site eBay to buy and sell large volumes of coins. After several years, when he was on the verge of financial ruin, he advertised for sale gold coins that he did not possess, receiving $148,000 from 21 buyers for 381 coins. He delivered only 44 of the coins. He was convicted of multiple counts of mail and wire fraud, and the district court sentenced him to 12-month terms on each count, to be served concurrently. This amounted to a 70% variance below the 41-51 month advisory guideline range. The Fourth Circuit held that the sentence was unreasonable. First, the district court stated that defendant did not at the outset intend to defraud the buyers, but this ran counter to the weight of the evidence and the jury’s verdict. The second reason for the variance was defendant’s restitution. However, defendant’s restitution was insufficient to justify a 70% variance. Defendant did not begin making restitution until the jury convicted him of the charges. Thus, in paying restitution, he was not accepting responsibility for his actions, particularly since he always maintained his innocence. Defendant merely complied with an order of restitution that he likely knew was forthcoming. While it might be worthy of some consideration, it did not justify so large a variance from the advisory guidelines. U.S. v. Curry, 461 F.3d 452 (4th Cir. 2006).
4th Circuit holds that revocation sentences should be reviewed to see if they are “plainly unreasonable.” (870) After numerous supervised release violations, the district court revoked defendant’s supervised release and imposed the maximum 36-month revocation sentence. Defendant argued that the variance from his 5-11 month advisory sentencing range was unreasonable. The Fourth Circuit held that revocation sentences should be reviewed to determine whether they are “plainly unreasonable” with regard to those § 3553(a) factors applicable to supervised release revocation sentences. There is a distinction between the term “unreasonable” and “plainly unreasonable.” To determine whether a sentence is plainly unreasonable, a court must first decide whether the sentence is unreasonable. If the court determines that a revocation sentence is not unreasonable, then the sentence should be affirmed. However, if the revocation is procedurally or substantively unreasonable, the court must decide whether the sentence is plainly unreasonable, relying on the definition of “plain” that is used in plain error analysis. “Plain” is synonymous with “clear” or “obvious.” Defendant’s 36-month sentence was not unreasonable. The court expressly considered the Chapter 7 policy statement range, and stated a proper basis for its conclusion that defendant should be sentenced to the statutory maximum. Defendant had a repeated pattern of violating the terms of his release, and any one of the violations would have subjected him to a 5-11 month sentence. The pattern continued despite repeated leniency offered by the court to encourage his compliance. U.S. v. Crudup, 461 F.3d 433 (4th Cir. 2006).
4th Circuit holds that defendant preserved claim of statutory Booker error by raising timely Blakely objection at sentencing. (870) Treating the guidelines as mandatory, the court sentenced defendant at the bottom of his 46-57 month sentencing range. The Fourth Circuit ruled that defendant properly preserved his claim of statutory Booker error by raising a timely Blakely objection at sentencing. Therefore, it would review his preserved claim of statutory Booker error for harmless error. Under this standard, defendant was entitled to be resentenced. Although the court offered no indication of whether it might have imposed a different sentence had it considered the § 3553(a) factors under an advisory guidelines regime, because defendant preserved his claim of Booker error, the prejudice burden fell on the government. The sentencing court’s silence had to be interpreted in favor of defendant. U.S. v. Rodriguez, 433 F.3d 411 (4th Cir. 2006).
4th Circuit reviews departures for abuse of discretion after Koon. (870) The district court departed downward for extraordinary restitution. The Fourth Circuit noted that the Supreme Court’s recent decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) abolished “de novo” review of departures and substituted a “unitary abuse of discretion standard.” This includes a legal analysis as to whether the Sentencing Commission listed the grounds for departure as forbidden, discouraged, or encouraged. A district court’s legal conclusions on these questions are not given any particular deference. However, an appellate court should defer to a sentencing court’s fact‑based determination as to whether the presence of a suggested feature removes a case from the “heartland” for which the guideline was designed. When the Commission designates a factor as a basis for a reduction within the guidelines, this implies that the factor is discouraged as a basis for departure from the guidelines. Thus, such a factor may only provide a ground for departure when present to such a degree that a case is removed from the “heartland” for which the guideline was designed. U.S. v. Hairston, 96 F.3d 102 (4th Cir. 1996).
4th Circuit reviews de novo whether defendant waived right to appeal his sentence. (870) The 4th Circuit held that the question of whether a defendant has effectively waived his right to appeal is a matter of law that is to be reviewed de novo. U.S. v. Marin, 961 F.2d 493 (4th Cir. 1992).
4th Circuit reviews abuse of trust determination under clearly erroneous standard. (870) The 4th Circuit held that whether a person abused a position of trust under guideline section 3B1.3, including whether that person held a position of trust in the first place, is a factual determination reviewed under the clearly erroneous standard. U.S. v. Helton, 953 F.2d 867 (4th Cir. 1992).
4th Circuit reviews departure from guideline fine range under same standard as other departures. (870) The 4th Circuit held that it was appropriate to review the district court’s upward departure from the guideline fine range under the same standard of review as other departures. Consequently, the court must first review de novo the statement of reasons offered by the district court for the departure to determine whether it identified a factor not adequately considered by the sentencing commission. Second, the court then reviews the sufficiency of the evidence to support the stated factor under the clearly erroneous standard. Finally, the court must determine whether the district court abused its discretion in determining that the factor is sufficiently important such that a sentence outside the guideline range should result and that the extent of the departure is reasonable. U.S. v. Graham, 946 F.2d 19 (4th Cir. 1991).
4th Circuit examines whether conspiracy continued after guidelines’ effective date under clearly erroneous standard. (870) Defendants challenged the district court’s determination that their conspiracy continued after November 1, 1987, and thus the guidelines applied to the offense. The 4th Circuit held that under 18 U.S.C. § 3742(e), it must accept this finding unless clearly erroneous. U.S. v. Barsanti, 943 F.2d 428 (4th Cir. 1991).
4th Circuit holds that where facts are undisputed, determination of whether prior sentences are related is a legal determination. (870) The 4th Circuit held that when the facts as to prior convictions and prior sentences are undisputed, the question of whether such prior sentences are “related” under guideline § 4A1.2(a)(2) is a legal determination. In addition, where the facts as to the three elements defining a career offender set forth in guideline § 4B1.1 are not in dispute, the question of whether a defendant is a career offender is a legal and not a factual determination. U.S. v. Rivers, 929 F.2d 136 (4th Cir. 1991).
4th Circuit adopts three-step standard of review for departures. (870) The 4th Circuit found that the appropriate standard of review for a departure is the three prong test first used by the 4th Circuit in U.S. v. Hummer, 916 F.2d 186 (4th Cir. 1990). A court must first examine de novo the specific reasons cited by the district court in support of its sentence outside the guidelines range to ascertain whether those reasons encompass factors not adequately taken into consideration by the Sentencing Commission. If the sentencing court identified one or more factors potentially warranting departure, the appellate court is to apply a clearly erroneous standard and review the factual support in the record for those identified circumstances. Upon ascertaining that there is an adequate factual basis for the factors, the appellate court must apply an abuse of discretion standard to determine if the cited departure factors are of sufficient importance to impose a sentence outside the guidelines range. The court then applies an abuse of discretion standard to determine if the extent of departure was reasonable. U.S. v. Chester, 919 F.2d 896 (4th Cir. 1990).
4th Circuit explains “reasonableness” standard for reviewing departures. (870) Judge Wilkins, the chairman of the Sentencing Commission stated that when a mitigating or aggravating circumstance was not adequately taken into consideration by the commission, the court should use a standard of review “akin to that used in addressing questions of law.” For factual questions, the court should use a standard of review “approximating the clearly erroneous one.” Finally, in reviewing the reasonableness of the degree or extent of the departure the “decision should not be reversed unless an abuse of discretion occurs.” U.S. v. Summers, 893 F.2d 63 (4th Cir. 1990).
4th Circuit rules minor or minimal status in offense is a factual question subject to review for clear error. (870) Under guideline § 3B1.2, a defendant who is a minimal or minor participant is entitled to a two to four level reduction in his offense level. This determination is a factual one to be determined by the sentencing court. Thus it is subject to review only for clear error. U.S. v. Daughtrey, 874 F.2d 213 (4th Cir. 1989).
5th Circuit holds that any error in application of sentencing enhancements was harmless. (870) Defendant falsely represented himself to be an attorney to the court and to the prosecution, and was convicted of obstruction of justice and making a materially false statement to a governmental agency. The district court applied five sentencing enhancements recommended by defendant’s PSR. This resulted in a guideline range of 57-71 months, and the district court sentenced defendant to 65 months. On appeal, the Fifth Circuit held the government met its burden of showing that any error in the court’s application of the sentencing enhancements was harmless. The district court stated that it would have imposed the same sentence even if none of the enhancements, or any combination of the enhancements short of all five, had been applied to defendant’s offense level. The court also stated that it had considered each of the 18 U.S.C. §3553(a) factors and weighed them in considering a sentence, but determined that any of the resulting guidelines ranges “would be insufficient in this case.” U.S. v. Richardson, 676 F.3d 491 (5th Cir. 2012).
5th Circuit outlines post-Booker standard for harmless error. (870) The district court ruled that defendant’s 12-18 month sentence was inadequate, given his recent murder conviction, and sentenced him to the statutory maximum sentence of 36 months. However, the court erred in categorizing defendant’s prior drug conviction as an aggravated felony for purposes of an eight-level enhancement. His correct guideline range was 6-12 months, not 12-18 months. The Fifth Circuit held that the error was not harmless. Under the discretionary sentencing regime of Booker and its progeny, the harmless error doctrine applies only if the proponent of the sentence demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing. Although the court’s explanation for its above-Guidelines sentence still applied, the court could not state with certainty that it would have imposed precisely the same sentence. U.S. v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010).
5th Circuit says Booker reasonableness standard does not apply to sentencing on retroactive amendment. (870) Defendant filed an 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on the retroactive amendment to the crack cocaine guideline. The district court granted the motion but imposed a sentence at the high end of the new sentencing range. Defendant argued that his resentencing was procedurally unsound and the resulting sentence substantively unreasonable. The Fifth Circuit held that the Booker reasonableness standard does not apply to § 3582(c)(2) proceedings. Instead, the appellate court should review the decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion. Defendant was correct, however, that the court must consider the § 3553(a) factors in determining whether a reduction is warranted and the extent of the reduction. Here, the fact that the court did not mention the § 3553(a) factors when it summarily reduced defendant’s sentence did not mean that it did not consider them. Because the court granted defendant’s § 3582(c)(2) motion and reduced his(U.S.S.G. §5D) sentence, it presumably concluded that the § 3553(a) factors weighed in his favor. U.S. v. Evans, 587 F.3d 667 (5th Cir. 2009).
5th Circuit holds that 87-month sentence for illegal reentry was not unreasonable. (870) Defendant pled guilty to illegally reentering the country after deportation. He argued that his 87-month sentence, which fell within his properly calculated guideline range, was unreasonable. However, his only argument to rebut the presumption of reasonableness was that the crime of illegal reentry into the U.S. after removal is just simple trespass. The Fifth Circuit rejected the argument. Congress considers illegal reentry into the U.S. after a conviction for an aggravated felony an extremely serious offense punishable by up to 20 years in prison. Given this, his 87-month sentence was not unreasonable. U.S. v. Juarez-Duarte, __ F.3d __ (5th Cir. Jan. 4, 2008) No. 05-11394.
5th Circuit rules Booker does not permit sentence below statutory minimum, and affirms 370-month sentence. (870) Defendant was convicted of a variety of drug and weapons counts, including two counts of possessing a weapon during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He argued that his 370-month sentence was unreasonable because it was inconsistent with the applicable Guidelines range and was greater than necessary to comply with the purposes of sentencing in 18 U.S.C. § 3553(a). He argued that several mitigating factors justified a lower sentence, including his young age and that this was his first brush with the law. The Fifth Circuit found no error. Defendant’s 370-month sentence was an aggregate sentence based on his conviction of six counts. He was sentenced to 10 concurrent months on four of the counts, 60 consecutive months on the first § 924(c) count, and 300 consecutive months on the second § 924(c) count. Both the 60-month and the 300-month consecutives sentences were statutory minimums, and the district court only had authority to impose a sentence below the statutory minimum if the government moved for a substantial assistance motion under § 3553(a) or defendant met the safety valve criteria under § 3553(f). Otherwise, post-Booker sentencing courts lack discretion to depart below the relevant statutory minimums. U.S. v. Harper, 514 F.3d 456 (5th Cir. 2008).
5th Circuit applies plain error to forfeited contention that government breached plea agreement. (870) Defendant argued, for the first time on appeal, that the government breached his plea agreement at sentencing by opposing a reduction for acceptance of responsibility. The government conceded that it breached the agreement, but contended that reversal was appropriate only if defendant could show prejudice. Clarifying some conflict in its precedent, the Fifth Circuit held that under U.S. v. Calverley, 37 F.3d 160 (5th Cir. 1994), a breach of a plea agreement can constitute plain error, but in order to warrant reversal, defendant must establish the elements of plain error and show prejudice. Defendant did not carry his burden of showing prejudice. It was clear that the district court denied defendant an acceptance reduction because he committed another crime while in custody. When defendant requested the reduction, the court made it clear that it was “so rare to be unknown” that defendant with subsequent criminal activity would receive such a reduction. Defendant made no showing that, absent the government’s recommendation, the court would have disregarded his criminal conduct and granted the acceptance reduction. U.S. v. Puckett, 505 F.3d 377 (5th Cir. 2007).
5th Circuit approves sentence more than twice the guideline sentence for felon in possession of firearm. (870) While searching defendant’s residence for illegal narcotics, they found an old, rusty, 12 gauge shotgun stashed in an outdoor shed. Defendant pled guilty to being a felon in possession of a firearm. The court sentenced defendant to 120 months, which was the statutory maximum penalty and more than twice the maximum of the advisory guideline range of 46-57 months. The court noted defendant’s long criminal history, his violence and anger problems, the dangers posed by his drunk driving, and his addiction to drugs. The court felt that defendant would not be able to beat his addiction or his anger problems by himself on the outside. Defendant challenged the reasonableness of the sentence for the first time on appeal. Although the Fifth Circuit expressed concerns about the reasonableness of a 120-month sentence for keeping a rusty shotgun in a shed, it found no plain error to warrant reversal. The court found that defendant’s long history of recidivism made his situation stand out from the norm. Any erroneous reliance on defendant’s socioeconomic status was neither plain nor so essential to the judgment a to affect defendant’s substantial rights. U.S. v. Peltier, 505 F.3d 389 (5th Cir. 2007).
5th Circuit finds court failed to adequately articulate reasons for above-guideline sentence. (870) Defendant constructed a homemade bomb and mailed it to an Air Force personnel manager involved in discharging him from the Air Force. The bomb detonated, and the manager suffered numerous injuries. Defendant was convicted of four counts relating to the bombing, including a count under 18 U.S.C. § 924(c)(1) of use of a destructive device in relation to a crime of violence. The court sentenced defendant to concurrent 262-month terms on the guidelines counts, and a consecutive, non-guidelines term of 720 months for the § 924(c)(1) count. The court found that the guidelines did not take into consideration the seriousness of the offense, since the use of a bomb was an “act of terror.” The Fifth Circuit reversed. The court based the non-guidelines sentence primarily on the fact that this was a bomb-related crime. The court did not point to specific facts from the crime, other than the use of a bomb, to explain why 60 years, as opposed to the guideline recommendation of 30 years, was appropriate. While the court did not abuse its discretion in deciding to depart, the degree of departure here was substantial and “there must be more than mere lip service to the § 3553(a) factors to justify such a departure.” U.S. v. Walters, 490 F.3d 371 (5th Cir. 2007).
5th Circuit holds improper consideration of arrest record did not cause prejudice. (870) Defendant was arrested in possession of a firearm. At the time, he was on probation for a drug conviction 11 days earlier in state court. He received a sentence of 60 months, a departure of 23 months from the top of his guideline range. The court noted defendant’s extensive arrest record, although none were included in his criminal history. Defendant argued for the first time on appeal that it was inappropriate for the district court to consider his arrest record. The Fifth Circuit agreed that it was plain error for the court to consider defendant’s arrest record, but found that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Defendant had a history with guns, and the court was “particularly disturbed” by defendant’s possession of a gun little more than a week after a state court felony conviction. The court engaged in a lengthy discussion of the defendant’s criminal history and the offense characteristics, and it addressed the arguments raised by defense counsel. Finally, the court sought to align defendant’s sentence with similarly situated defendants. Cases cited by defendant involved more egregious errors. U.S. v. Jones, 489 F.3d 679 (5th Cir. 2007).
5th Circuit holds guideline sentence was entitled to presumption of reasonableness. (870) Defendant was convicted of drug charges, and was sentenced to 292 months, the bottom of the advisory guideline range. She argued that the sentence was unreasonable, noting that her role in the offense (largely chauffeuring and buying baking soda) was significantly less than that of her co-defendants. At sentencing, her counsel pointed out that defendant was “just a kid,” without so much as a traffic ticket in her past, who refused repeated plea offers to avoid hurting the father of her three-year-old child. The district court considered these arguments and was unmoved, ruling that the guidelines adequately took into account the seriousness of the offense. The Fifth Circuit affirmed the guideline sentence. The court properly calculated defendant’s guideline range, and her resulting sentence was entitled to a presumption of reasonableness. U.S. v. German, 486 F.3d 849 (5th Cir. 2007).
5th Circuit finds revocation sentence was not improperly based on illegal reentry guideline. (870) As a condition of defendant’s supervised release, he was ordered not to commit another crime, and if deported, he was ordered not to reenter the U.S. illegally. He was deported, reentered the country illegally, and was arrested in Illinois for shoplifting. He was not prosecuted for either theft or illegal reentry. Instead, the government sought to revoke his supervised release. The judge expressed frustration with the failure of the U.S. Attorney’s office in Chicago to prosecute defendant for illegal reentry, instead sending him to Texas for revocation proceedings. After inquiring what the guideline sentence for illegal reentry would have been (46-57 months), the court concluded that the four-to-ten month revocation range was insufficient to address this type of violation, and sentenced defendant to 46 months. Defendant argued that the court improperly based his revocation sentence on the illegal reentry guideline, a crime he committed but was not charged with. The Fifth Circuit held that the 46-month revocation sentence was not plain error. Although the court expressed displeasure at the government’s failure to charge defendant with illegal reentry, it was more plausible that the court based defendant’s sentence on the fact that it gave defendant a significant downward departure in his original sentence. Thus, if there was any error, it was not plain. U.S. v. Hernandez-Martinez, 485 F.3d 270 (5th Cir. 2007).
5th Circuit rules that sentencing court is not required to give notice of intent to impose non-guideline sentence. (870) Although nothing in the government’s submissions or the PSR mentioned any grounds for sentencing departures or variances, the district court, without providing pre-sentencing notice of its intent to do so, imposed a non-guideline sentence greater than the advisory guideline range. Noting the circuit split in this area, the Fifth Circuit concluded that Burns v.U.S. 501 U.S. 129 (1991), and the plain language of Rule 32(h) do not apply to post-Booker sentences at variance with the guidelines. Thus, it held that post-Booker, a sentencing court need not provide presentencing notice of its sua sponte intention to impose a non-guideline sentence. The plain language of Rule 32(h) limits its application to departures. It contains no language hinting that it might apply elsewhere. Moreover, since Booker has made the guidelines purely advisory, the concerns that precipitated the Court’s decision in Burns were no longer viable. The § 3553(a) factors that a court must consider are known (or knowable) by the parties prior to sentencing, thus putting the litigants on notice that sentencing court has discretion to consider any of these factors. This knowledge eliminates the element of unfair surprise, the concern that defense counsel will waste time with a presentencing filing, the possibility that defense counsel will unwittingly provide the court with a grounds for departure, and the worry of possibly undermining the adversarial process. U.S. v. Mejia-Huerta, 480 F.3d 713 (5th Cir. 2007).
5th Circuit finds non-guidelines sentences reasonable, and not result of departures. (870) In six cases consolidated on appeal, defendants argued that their sentences were unreasonable because the district court failed to comply with or consult the methodology established in § 4A1.3 for an upward departure. The Fifth Circuit disagreed, since each sentence was the result of a variance and not a departure. The courts’ decisions to impose non-guidelines sentences were not based solely on the defendants’ criminal histories, but on a number of § 3553(a) factors. Moreover, defendants ignored the circuit test for determining the reasonableness of a non-guidelines sentence. A non-guidelines sentence is unreasonable when it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to irrelevant or improper factors, or (3) represents a clear error of judgment in balancing the sentencing factors. The district court in the six cases here calculated the proper guideline range, considered multiple § 3553(a) factors, explained its reasons for imposing non-guidelines sentences, and imposed non-guidelines sentence that were not unreasonable. There was no error. U.S. v. Mejia-Huerta, 480 F.3d 713 (5th Cir. 2007).
5th Circuit holds that court lacked discretion to deviate from 100:1 ratio based solely on belief that policy was misguided. (870) Defendant was convicted of conspiracy to distribute and possess at least 50 grams of crack cocaine. He argued that the 100:1 sentencing ratio in the guidelines was unfair, and the district court agreed, instead applying a 20:1 ratio. The Fifth Circuit, agreeing with a majority of circuits to consider the issue, held that a sentencing court may not deviate from the 100:1 crack/powder ratio based solely upon its belief that the policies underpinning the sentencing regime are misguided or unfair. U.S. v. Leatch, 482 F.3d 790 (5th Cir. 2007).
5th Circuit holds that government adequately preserved challenge to concurrent sentence. (870) Defendant was convicted of a drug trafficking offense and possession of a firearm during the commission of a drug-trafficking offense. The PSR stated that the firearm-possession sentence “shall be consecutive” to the drug-possession sentence. At sentencing, the court stated that mandatory sentence for the firearm-possession conviction was 60 consecutive months, but that it would “depart downward” and impose the concurrent sentences. The judge stated he was “aware that this is a sentence that the government could easily appeal it if wishes. If it does, I will not be insulted. The government has the right to do that.” The government did not object to the sentences not being consecutive. Defendant argued that the government’s failure to object in district court to the sentences’ not being consecutive dictated plain error review. Although the government should have objected, the Fifth Circuit nonetheless disagreed. Generally, if a party fails to timely raise an issue in district court, the review will be plain error unless the party made its position clear to the district court and to have objected would have been futile. Here, pursuant to the PSR and its comments at sentencing, the government made clear its positions regarding defendant’s sentence, including the firearms sentence being consecutive. Further, the court’s comments at sentencing demonstrated the futility of any government objection to the concurrent sentences. U.S. v. Krumnow, 476 F.3d 294 (5th Cir. 2007).
5th Circuit holds that consecutive sentences and statement that sentence was “fair and appropriate” did not prove Fanfan error was harmless. (870) Defendant objected at sentencing to the mandatory application of the Sentencing Guidelines in light of Blakely and Apprendi. Because he preserved for review this so-called “Fanfan” claim, the Fifth Circuit reviewed for harmless error. Under this standard, the government carries the burden of proving “beyond a reasonable doubt” that the district court would not have sentenced the defendant differently had it acted under an advisory guideline regime. As evidence that the error was harmless, the government noted that the court ordered defendant to serve his two sentences consecutively. In addition, the court stated on the record its belief that the entire sentence was “fair and appropriate … under the applicable law.” The Fifth Circuit held that this was insufficient to establish that the court would have imposed the same sentence under an advisory guideline scheme. Defendant’s two sentence were for factually unrelated crimes. Therefore, it was likely district court simply meant to provide two distinct sentences. The court’s comment that the two sentences were “fair and appropriate” under “applicable law” could be interpreted several ways, and was insufficient to meet the government’s burden of proving harmless error. U.S. v. Zamora-Vallejo, 470 F.3d 592 (5th Cir. 2006).
5th Circuit says court improperly considered year-end value of stock. (870) Defendant received income in the form of stock for legal services he had previously performed. He was convicted of tax evasion after he failed to report his receipt of the stock on his tax return. Although his guideline range was 46-57 months, the district court imposed a 27-month sentence. The district court was uncomfortable with the guideline range because of the relative worthlessness of the stock at the end of the tax year, and based its calculation on defendant’s reported charitable deductions for gifts of the stock. The Fifth Circuit held that the sentence was unreasonable. The court gave significant weight to an irrelevant factor – there is no apparent connection between the year-end stock value and the seriousness of the offense. Because the court relied on an improper factor to determine what should be a fair basis for sentencing, (the stock’s year end value), the court substitution of the charitable contributions was similarly improper. U.S. v. Roush, 466 F.3d 380 (5th Cir. 2006).
5th Circuit upholds as reasonable a sentence within two possible guideline ranges. (870) Defendant pled guilty to reentering the U.S. after being deported. He had a prior New York conviction for attempted assault in the first degree. The district court found that if the prior conviction was technically not a crime of violence, defendant would have a guideline range of 10-16 months, and, because of the violent nature of the prior offense, a sentence within this range was not reasonable. It also found that if the offense was a crime of violence, the resulting guideline range of 46-57 months would unfairly exaggerate defendant’s criminal history. The court also recognized that defendant had been in the U.S. for several years and had a degree of cultural assimilation – a proper basis for a downward departure from the guidelines. Recognizing the non-binding nature of the guidelines, the court imposed a non-guideline sentence of 36 months. The Fifth Circuit held that the sentence was reasonable, and affirmed. The court elected to exercise its discretion to give a non-guideline sentence after considering the two possible properly calculated guideline ranges that could apply to defendant. Defendant’s sentence did not “result” from an incorrect application of the guidelines. The court, after carefully considering the guidelines, decided to impose a non-guideline sentence based on individualized § 3553(a) factors. The court found no errors of judgment in the district court’s balancing of the sentencing factors, and affirmed. U.S. v. Tzep-Mejia, 461 F.3d 522 (5th Cir. 006).
5th Circuit holds that refusal to consider sentencing disparity caused by early disposition program did not make sentence unreasonable. (870) Defendant asked the district court to impose a sentence below the applicable guideline range because the Western District of Texas lacked a U.S.S.G. § 5K3.1 “early disposition” program, which would have permitted a four-level downward departure. The Fifth Circuit held that a court’s refusal to factor the disparity caused by the lack of a fast-track program did not render the sentence unreasonable. To require a court to vary from the advisory guidelines based solely on the existence of early disposition programs in other districts would conflict with the decision of Congress to limit the availability of such sentence reductions to select geographical areas, and with the Attorney General’s exercise of prosecutorial discretion to refrain from authorizing early disposition agreements. U.S. v. Aguirre-Villa, 460 F.3d 681 (5th Cir. 2006).
5th Circuit holds that sentence was entitled to presumption of reasonableness even though imposed under miscalculated guideline range. (870) The district court improperly assessed a two-level enhancement, which increased defendant’s guideline range from 30-37 months to a range of 37-46 months. Defendant’s 37 month sentence, although imposed with reference to an improperly calculated guideline range, nonetheless fell within the correct guideline range. Under Fifth Circuit caselaw, a sentence within a properly calculated guideline range is presumptively reasonable. See U.S. v. Alonzo, 435 F.3d 551 (5th Cir. 2006). The Fifth Circuit held that in situations such as this, in which the district court miscalculates the guideline range yet imposes a sentence that falls within a properly calculated guideline range, the sentence enjoys a presumption of reasonableness. Defendant’s sentence remained presumptively reasonable, and since defendant did not articulate any factors that suggested the sentence was not reasonable, the sentence was affirmed. U.S. v. Medina-Argueta, 454 F.3d 479 (5th Cir. 2006).
5th Circuit holds that consecutive nature of guideline sentence is reviewed for reasonableness. (870) Defendant pled guilty to drug charges, and was sentenced within an applicable sentencing range properly calculated under the advisory federal Sentencing Guidelines. Defendant appealed the sentence as unreasonable because it was imposed consecutively to an undischarged state sentence. The Fifth Circuit held that under Booker, the consecutive nature of a properly calculated guideline sentence is reviewed for unreasonableness. Further, when a district court imposes a sentence according to the applicable advisory guidelines for imposition of a consecutive sentence, and also imposes that sentence within a properly calculated sentencing range, the sentence’s consecutiveness enjoys a rebuttable presumption of reasonableness. The consecutive sentence imposed here was reasonable. The state offense was not an uncharged part of the current offense and was not fully considered in determining defendant’s sentence. See § 5G1.2. The current conspiracy to distribute cocaine occurred between January 1988 and November 2000, a year and a half before the offense underlying defendant’s state conviction for possession of cocaine. The district court exercised its discretion within the boundaries set by U.S.S.G. § 5G1.3(c), § 3553(a) and § 3584(a) to impose a consecutive sentence. Defendant did not rebut the reasonableness of the sentence. U.S. v. Candia, 454 F.3d 468 (5th Cir. 2006).
5th Circuit applies abuse of discretion review of non-guideline sentence. (870) Defendant argued that his non-guideline sentence was unreasonable. The Fifth Circuit held that the standard of review for a non-guideline sentence was an abuse of discretion. Although the court must conduct a more thorough review of non-guideline sentences than of guideline sentences, see U.S. v. Mares, 402 F.3d 511 (5th Cir. 2005), the “inquiry in conducting that more thorough review will be limited to determining whether the trial judge overreached the discretionary sentencing authority afforded under Booker.” The judge must justify a non-guideline sentence with “fact specific reasons involving aggravating circumstances, personal characteristics of the defendant, his offense conduct, criminal history, and other conduct specific to the case at hand.” The judge satisfied this requirement by finding that defendant’s offenses were “the most heinous of all crimes in that you took advantage of children that were under your care as a Boy Scout leader,” and noted that he persisted in writing the victims while incarcerated after he had been instructed not to contact them. U.S. v. Reinhart, 442 F.3d 857 (8th Cir. 2006).
5th Circuit holds that government could not establish that Booker error was harmless. (870) On defendant’s appeal of his sentence, the Fifth Circuit held that Blakely v. Washington, 124 S.Ct. 2531 (2004) did not apply to the guidelines, and affirmed defendant’s sentence. U.S. v. Pineiro, 377 F.3d 464 (5th Cir. 2004) The Supreme Court remanded for further consideration in light of U.S. v. Booker, 543 U.S. 220 (2005). The Fifth Circuit held that the government could not establish that the Sixth Amendment Booker error was harmless, and remanded for resentencing. Harmless error analysis applies to preserved Sixth Amendment Booker claims. Defendant preserved his Booker claim by raising an Apprendi-based objection to the PSR’s drug-quantity calculations. An error is deemed harmless if it did not affect the outcome of the district court proceeding. The government did not meet its burden of showing that the error was harmless. The judge’s statement that he knew of no reason to depart and thus would adhere to the guidelines did not suggest that under an advisory scheme he would know of no reason to depart. The fact that the judge never said defendant’s guideline sentence was too high in light of his offense was insufficient to show the preserved error was harmless. The judge’s silence as to whether or not he would have imposed a different sentence under an advisory regime did not satisfy this burden. U.S. v. Pineiro, 410 F.3d 282 (5th Cir. 2005).
5th Circuit holds that unpreserved Booker error did not constitute plain error. (870) Defendant argued for the first time on appeal that the district court violated Booker when it applied certain enhancements and increased his sentence based on an amount of loss not found by the jury nor admitted by him. The Fifth Circuit held that defendant could not meet the third prong of the plain error test – he could not demonstrate the error affected his substantial rights. The record did not contain anything to reflect what the district court would have done had it sentenced defendant under an advisory guideline regime. The court made no remarks on the record to indicate it felt constrained by the guidelines. U.S. v. Akpan, 407 F.3d 360 (5th Cir. 2005).
5th Circuit says Booker error was preserved even though defendant never mentioned Sixth Amendment. (870) Defendant raised various challenges to his sentence under U.S. v. Booker, 543 U.S. 220 (2005). The Fifth Circuit found that defendant properly preserved his Booker challenge below. He repeatedly objected to the district court’s determination of a range of financial loss between five and ten million dollars on the ground that the figure had not been proven at trial. He also consistently urged that the court confine its loss to the amount alleged in the indictment. Although he never explicitly mentioned the Sixth Amendment, Apprendi, or Blakely, his objections adequately apprised the district court that he was raising a Sixth Amendment objection to the loss calculation. Where, as here, the defendant preserves his error, the court will ordinarily vacate the sentence and remand unless the error was harmless under Rule 52(a). The government could not show the error was harmless. It could not point to any record evidence that would prove beyond a reasonable doubt that the district court would not have sentenced defendant differently had it acted under an advisory guidelines regime. U.S. v. Akpan, 407 F.3d 360 (5th Cir. 2005).
5th Circuit says Booker did not alter standard for reviewing district court’s application of guidelines. (870) Defendant challenged a § 2K2.1(b)(5) enhancement on the grounds that (a) it was improper under the guidelines, and (b) violated his Sixth Amendment rights. The Fifth Circuit found that Booker did not alter the standard for reviewing a district court’s interpretation and application of the guidelines. Nothing suggested that Booker injected a reasonableness standard into the question of whether the district court properly interpreted and applied the guidelines, or that an appellate court no longer reviews a district court’s interpretation and application of the guidelines de novo. U.S. v. Villegas, 404 F.3d 355 (5th Cir. 2005).
5th Circuit applies plain error, rather than PROTECT Act de novo review, to government’s appeal of departure. (870) Defendant requested a downward departure premised on cultural assimilation. The government objected to the departure, noting that defendant had an extensive criminal history, which distinguished him from the defendant in a case where such a departure was approved. The district court granted the departure. On appeal, the government contended for the first time that cultural assimilation was not a sentencing factor that advanced the objectives of 18 U.S.C. § 3553(a) (2). The Fifth Circuit ruled that the government’s appellate issues were not preserved in the district court. Although the government informed the court that it was opposing the departure based on the facts of defendant’s case, at no point did the government contend that such facts could not support the departure. The standard of review for errors, raised for the first time in an appeal contesting a downward departure, was plain error. The PROTECT Act did not do away with plain error review. U.S. v. Castillo, 386 F.3d 632 (5th Cir. 2004).
5th Circuit says departure because of mental health concerns was not subject to de novo review under PROTECT Act. (870) Prior to the PROTECT Act, an appellate court reviewed a district court’s decision to depart from the guidelines for abuse of discretion. The Act explicitly changed the standard of review to de novo, but only when courts of appeals are considering determinations under (3)(A) or (3)(B) of 18 U.S.C. § 3742(e). Subsection 3(A) was clearly inapplicable. Subsection 3(B) mandates de novo review where “the sentence departs from the applicable guideline range based on a factor that – (i) does not advance the objectives set forth in section 3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not justified by the facts of the case.” The Fifth Circuit concluded that if a district court departs based on a factor that does advance the objectives set forth in § 3553(a)(2), then review of that determination does not fall under subsection 3(B). One objective listed by § 3553(a)(2) is “the need for the sentence imposed … (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment …” Defendant’s sentencing colloquy made clear that the district court was concerned with the interruption that incarceration would have caused in defendant’s mental health treatment. Although the statement of reasons listed only over-representation of criminal history as the basis for departure, the panel concluded that it could consider the sentencing colloquy as well as the court’s written reasons for departure. Because defendant’s sentencing was not a determination under 18 U.S.C. § 3742(e)(3)(A) or (B), the traditional abuse of discretion standard of review still applied. U.S. v. Bell, 351 F.3d 672 (5th Cir. 2003), superseded, U.S. v. Bell, 371 F.3d 239 (5th Cir. 2004).
5th Circuit holds that PROTECT Act standard of review applies retroactively. (870) On April 30, 2003, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, the PROTECT Act, was signed into law. The Act changed the standard of review applicable when courts of appeals consider departures from the guidelines, but only in specified situations. The PROTECT Act became effective after defendant was sentenced, but the Fifth Circuit held that the Act’s de novo standard of review may be applied in cases like this in which sentencing occurred before the Act’s enactment date. Procedural changes in the law may be applied retroactively without violating the Constitution’s ban on ex post facto laws. See Miller v. Florida, 482 U.S. 423 (1987). U.S. v. Bell, 351 F.3d 672 (5th Cir. 2003), superseded, U.S. v. Bell, 371 F.3d 239 (5th Cir. 2004).
5th Circuit agrees that note was not obviously counterfeit where judge personally examined it. (870) Defendant pled guilty to making a counterfeit $100 bill. The district court applied § 2B5.1(b)(2) for manufacturing the counterfeit currency. Section 2B5.1(b)(2) does not apply to persons who “produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.” The Fifth Circuit affirmed the district court’s finding that the note defendant created was not obviously counterfeit. Such a decision is factual in nature and should be reviewed under the clearly erroneous standard. Factors to consider include (1) physical inspection of the note, (2) whether any were successfully passed, (3) the number of notes successfully passed, (4) the proportion of notes successfully passed to the number attempted to be passed, and (5) the testimony of witnesses. Here, the district court examined the note. The government did not present evidence that any of the counterfeit notes were passed, successfully or otherwise. However, the government asserted that a Secret Service agent would be available to testify regarding the quality of the notes, although no testimony was presented at the hearing. No one factor is dispositive. The district court made a common-sense judgment as to the quality of the note, and the decision was not clearly erroneous. U.S. v. Bollman, 141 F.3d 184 (5th Cir. 1998).
5th Circuit gives great deference to denial of credit for acceptance of responsibility. (870) Defendant argued that his guilty plea and admission of conduct comprising the offense of conviction demonstrated his acceptance of responsibility. The Fifth Circuit held that the correct standard of review to apply to a district court’s refusal to grant a § 3E1.1 reduction is the great deference standard. Using this standard, the district court’s decision to deny the reduction was not error. Defendant tested positive for cocaine three times since his arrest. In addition, at sentencing, he continued to deny several factual elements of his drug offense, maintaining that he never sold cocaine for $1200 an ounce, was never in possession of crack cocaine, and never visited or lived at the apartment that was the scene of the offense of conviction. U.S. v. Vital, 68 F.3d 114 (5th Cir. 1995).
5th Circuit reviews findings of fact during retroactivity proceeding for clear error. (870) Defendant brought a motion to reduce his sentence based on a recent retroactive amendment to guideline § 2D1.1(c). The court treated the motion as brought under the statute that authorizes motions for retroactive application of the guidelines, 18 U.S.C. § 3582(c)(2). The Fifth Circuit held that findings of fact made during a § 3582(c)(2) proceeding are reviewed under the clearly erroneous standard. An appellate court will set aside a finding of fact as clearly erroneous only if, although there is evidence to support it, the court is left with the definite and firm conviction that a mistake has been committed. U.S. v. Mimms, 43 F.3d 217 (5th Cir. 1995).
5th Circuit reviews de novo grouping of defendant’s offenses. (870) The 5th Circuit found that the question of whether and how to group a defendant’s offenses are legal questions, as they involve a purely legal interpretation of the guidelines terminology and the application of that terminology to a particular set of facts. Accordingly, it reviewed the district court’s grouping of defendant’s offenses de novo. U.S. v. Patterson, 962 F.2d 409 (5th Cir. 1992).
5th Circuit holds amendment did not create rebuttable presumption of acceptance of responsibility for defendants who plead guilty. (870) The 5th Circuit rejected defendant’s claim that the November 1990 amendments to the commentary and application notes on guideline section 3E1.1 created a “rebuttable presumption” in favor of an acceptance of responsibility reduction for a defendant who pleads guilty and acknowledges involvement in the offense and related conduct. The amendments were intended by the Sentencing Commission to clarify the operation of section 3E1.1 rather than enact substantive changes. If the sentencing commission intended to create a rebuttable presumption it would have amended the guideline itself rather than the commentary. The amendments also did not alter the appellate court’s standard of review. There is no practical difference between granting a trial judge’s determination “great deference” and reviewing whether the trial court’s decision was “utterly lacking in foundation.” U.S. v. Brigman, 953 F.2d 906 (5th Cir. 1992).
5th Circuit reviews relevant conduct determination under clearly erroneous standard. (870) The 5th Circuit held that a district court’s determination that certain transactions were part of the conspiracy for which a defendant was convicted is subject to review under the “clearly erroneous” standard. The district court is in the best position to determine what constitutes relevant conduct. U.S. v. Lokey, 945 F.2d 825 (5th Cir. 1991).
5th Circuit finds that under plain error standard it may review record as a whole to find support for adjustments. (870) Defendant argued that the findings of fact contained in the presentence report did not support the adjustments made by the district court to his base offense level. The district court had adopted these findings of fact without making any additional findings. Because defendant failed to raise these issues in the district court, the 5th Circuit reviewed the issue under the plain error standard. It found that under this minimal review, it did not need to evaluate the adjustments based solely upon the district court’s factual findings. Rather, the appellate court was free to consider all of evidence in the record supporting the adjustments, and would uphold the adjustments if the record as a whole demonstrated that the adjustments did not result in a miscarriage of justice. U.S. v. Pattan, 931 F.2d 1035 (5th Cir. 1991).
5th Circuit applies plain error standard of review where defendant failed to raise issue below. (870) Defendant contended that it was fundamentally unfair to calculate his criminal history score based on the sentencing date of past crimes, as opposed to the commission date of those crimes. Defendant made no objection to either the PSI’s assessment of his past sentences or the district court’s computation of his criminal history. The 5th Circuit found that because defendant failed to raise these objections below, it could not review them now absent plain error. The error asserted involved the technical application of a single guideline and was not obviously of constitutional magnitude. Therefore, the court refused to consider the merits of defendant’s argument. U.S. v. Lopez, 923 F.2d 47 (5th Cir. 1991).
5th Circuit reviews for plain error where defendant did not object to sentence. (870) Defendant challenged the addition of two points to his criminal history score because he committed the instant offense while under a criminal justice sentence, contending that his Texas deferred adjudication probation was not a criminal justice sentence. The 5th Circuit reviewed the issue for plain error, since defendant did not urge his objection at sentencing or otherwise object to the presentence report. A criminal justice sentence is defined as a sentence countable under guideline § 4A1.2. Since the court had held in another case that a Texas deferred adjudication probation could properly be counted as a prior sentence, there was no plain error. U.S. v. Hatchett, 923 F.2d 369 (5th Cir. 1991).
5th Circuit upholds denial of acceptance of responsibility reduction where defendant denied involvement in drugs. (870) A district court’s findings as to a defendant’s acceptance of responsibility will only be overturned if clearly erroneous. Moreover, the standard of review may be even more deferential than usual: “Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the ‘clearly erroneous’ standard will nearly always sustain the judgment of the district court in this area.” In this case, the 5th Circuit affirmed the district court’s denial of a reduction for acceptance of responsibility. Although defendant pled guilty, during an interview with the probation officer, defendant maintained that he was not involved in anything illegal and that he was not involved with drugs. U.S. v. Giraldo-Lara, 919 F.2d 19 (5th Cir. 1990).
5th Circuit holds that relevant conduct is a factual finding subject to review for clear error. (870) Defendant argued that the determination of what is relevant conduct under guideline § 1B1.3 is a determination of whether a particular guideline applied, and thus subject to de novo review. The 5th Circuit found that such an analysis was primarily factual, and raised no substantial issues of law. Thus, it held that a district court’s determination of relevant conduct is reviewed under a clearly erroneous standard. U.S. v. Cockerham, 919 F.2d 286 (5th Cir. 1990), superseded by statute on other grounds as stated in U.S. v. Arnold, 947 F.2d 1236 (5th Cir. 1991).
5th Circuit reviews de novo decision not to group counts. (870) The district court grouped defendant’s two counts of auto theft separately for the purpose of determining defendant’s offense level. The 5th Circuit found that in a case such as this, where the underlying counts were specifically enumerated in guideline § 3D1.2(d) as offenses susceptible to grouping, it should apply a de novo standard of review to the district court’s decision not to group defendant’s counts. The two counts of auto theft to which defendant pled guilty involved two different cars, different owners and different events. Since the counts did not satisfy the primary requirement of § 3D1.2 that they involve “substantially the same harm,” the district court correctly refused to group the counts. U.S. v. Ballard, 919 F.2d 255 (5th Cir. 1990).
5th Circuit holds that credibility determinations are within the province of the sentencing court. (870) The 5th Circuit held that the sentencing court’s finding that the defendant placed a bomb under another person’s car was not clearly erroneous despite the fact that there was differing testimony on the issue. The issue was simply one of credibility, which is within the province of the fact finder. U.S. v. Michael, 894 F.2d 1457 (5th Cir. 1990).
5th Circuit holds incorrect application of guidelines which results in sentence within appropriate range need not be vacated. (870) Defendant pled guilty to using a telephone to facilitate a drug offense, but stipulated to facts which showed that he possessed over 500 pounds of marijuana with intent to distribute. The district court departed from the telephone count because it felt that it did not adequately represent the severity of the offense. The 5th Circuit affirmed the sentence even though it found that the guidelines were incorrectly applied. When a defendant stipulated to facts which establish an offense more serious than that of the offense of conviction, § 1B1.2, commentary 1 requires that the court sentence as if the stipulated facts were the offense of conviction. However, the case need not be remanded for resentencing because the sentence actually imposed would have been within the proper range had the guidelines been correctly applied. U.S. v. Garza, 884 F.2d 181 (5th Cir. 1989).
5th Circuit rules on standard of review for departures. (870) The 5th Circuit held that under 18 U.S.C. § 3742(e), a departure from the guidelines range will be reviewed to see if the trial court provided acceptable reasons for the departure and if the extent of the departure was reasonable. While the mere fact that a departure sentence exceeds by several times the guidelines maximum is of no independent consequence in determining the reasonableness of the sentence, it may indicate the unreasonableness of the departure when viewed against the court’s justification. U.S. v. Campbell, 878 F.2d 164 (5th Cir.
1989).
5th Circuit holds that whether two offenses are closely related to aggregate for sentencing purposes is subject to “due deference review.” (870) Defendant objected to the sentencing court’s refusal to aggregate the sale of a silencer and sale of a handgun together for sentencing purposes under § 3D1.2, on the grounds that the silencer was physically linked to the pistol. The sale of each was one count of a two count information. The 5th Circuit disagreed. This part legal, part factual determination is to be reviewed with due deference to the trial court’s findings. The refusal was proper given the Application Note 2 to that section, which provides that the interests implicated by the “separate” offenses will determine whether the offenses are indeed separate. Here, silencers and gun-toting ex-felons implicate different interests. U.S. v. Pope, 871 F.2d 506 (5th Cir. 1989).
5th Circuit holds credibility judgments as to quantity of drugs contemplated by conspiracy are entitled to deference. (870) 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 holds court’s finding as to amount of cocaine involved was based on adequate evidentiary foundation. (870) 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).
5th Circuit rules that district court’s finding that defendant possessed a gun was not clearly erroneous. (870) Section 2D1.1(b)(1) provides that a defendant convicted of a drug conspiracy shall receive a two point increase in his offense level (under 2D1.4) if he possessed a firearm during the commission of the crime. Here, the defendant and a Border Patrol agent vigorously disagreed as to whether the defendant had in fact possessed a gun and shot at the agent while trying to escape. The trial judge chose to believe the agent’s testimony and enhanced the offense level. The 5th Circuit affirmed the sentence on the grounds that the guidelines require an appellate court to defer to the sentencing court’s credibility determinations. Since the factual findings were not clearly erroneous, the sentence was affirmed. U.S. v. Franco-Torres, 869 F.2d 797 (5th Cir. 1989).
5th Circuit ruling on departures from guideline sentences — standard of review. (870) Once a district court has made factual findings, its guideline sentence will be affirmed if it results from a proper application of the guidelines unless the findings are clearly erroneous. [18 U.S.C. § 3742(d)] However, if a court applies the guidelines to its factual findings and then departs from the appropriate range, it must offer acceptable reasons for its departure. An acceptable departure will be upheld unless it is clearly unreasonable. 18 U.S.C. § 3742(d). U.S. v. Mejia-Orosco, 867 F.2d 216, amended, 868 F.2d 807 (5th Cir. 1989).
5th Circuit holds that amendment providing for “due deference” to trial court’s findings does not change “clearly erroneous” standard. (870) In U.S. v. Mejia-Orosco, 867 F.2d 216 (5th Cir. 1989), the 5th Circuit held that enhancement of the defendant’s sentence was proper because the district court’s findings were not “clearly erroneous.” In November, 1988, 18 U.S.C. § 3742(d) was renumbered (e) and amended to require that “appellate courts shall give due deference to the district court’s application of the guidelines to the facts.” In denying this petition for rehearing, the court held that the language of the amendment did not establish a separate “due regard” standard of review. Rather it serves as an “additional caution against overly intense judicial review.” U.S. v. Mejia-Orosco, 867 F.2d 216, amended, 868 F.2d 807 (5th Cir. 1989).
6th Circuit holds that acceptance of responsibility issue was factual and reviewed for clear error. (870) Defendants challenged on appeal the district court’s denial of an acceptance of responsibility reduction. The government contended that the district court’s determination was factual and therefore should be reviewed for clear error, while defendants argued that de novo review was appropriate because the only issue presented was the propriety of the application of the adjustment to uncontested facts. The Sixth Circuit ruled the clear error standard of review was appropriate. Defendants had challenged below whether they had the “intent to extort” their victim under 18 U.S.C. §875(b), and requested that the jury be given a specific-intent instruction at trial. Defendants could not reverse their position on appeal as to the intent requirement of the statute in the hopes of obtaining a more favorable standard of review. U.S. v. Coss, 677 F.3d 278 (6th Cir. 2012).
6th Circuit holds jurisdiction over appeal of § 3582 motion is governed by § 3742. (870) Defendant was sentenced on crack charges in 2000 to a below-Guidelines sentence of 262 months. In 2008, the government filed Rule 35(b) motion for a sentence reduction, and defendant filed a separate motion for a sentence reduction under § 3582(c)(2) based on the recent crack amendments. The district court refused to reduce his sentence under either motion. The Sixth Circuit considered whether it had jurisdiction over defendant’s appeal. The question with respect to the Rule 35(b) issue was settled in this circuit by U.S. v. Moran, 325 F.3d 790 (6th Cir. 2003): the appealability of Rule 35(b) determinations is governed by 18 U.S.C. § 3742. However, as a matter of first impression, the panel further ruled that its jurisdiction to consider the appeal of the § 3582(c)(2) determination, like its jurisdiction to consider the appeal of a Rule 35(b) motion, must come from § 3742. Section 3582(c) (2) determinations are not distinguishable from Rule 35(b) rulings in any relevant respect. U.S. v. Bowers, 615 F.3d 715 (6th Cir. 2010).
6th Circuit holds that court failed to give defendant an opportunity to object to his sentence. (870) In U.S. v. Bostic, 371 F.3d 865 (6th Cir. 2004), the Sixth Circuit held that so long as the district court asks counsel whether they have any objections to the sentence just pronounced that have not previously been raised, any sentencing claim raised for the first time on appeal will be reviewed under the plain error standard. Here, the district court inquired whether defendant wished to appeal his sentence, and then asked, at the conclusion of the sentencing hearing: “So is there anything else on these?” The Sixth Circuit found that this question closely resembled other questions found insufficient under Bostic. Thus, defendant’s sentencing claims merited a higher level of review than under the plain-error standard. U.S. v. Novales, 589 F.3d 310 (6th Cir. 2009).
6th Circuit approves upward variance for mom who videotaped boyfriend molesting her eight-year old daughter. (870) Defendant permitted her boyfriend to sexually molest her eight-year old daughter while she videotaped the molestation. She pled guilty to coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. Her guideline range was 121-151 months, but 18 U.S.C. § 2251(a) required a mandatory minimum sentence of 180 months. She argued that because her guideline range fell below the statutory minimum, the only reasonable sentence would be the statutory minimum. The Sixth Circuit rejected the argument, holding that the 240-month sentence was procedurally and substantively reasonable. The court properly considered the § 3553(a) factors. In sentencing defendant to five years above the statutory maximum, the court noted that defendant utterly failed to protect her daughter. The court also considered the impact of defendant’s actions on her daughter, and noted that both her children were having severe psychological and behavior problems as a result of her offense. The abuse would not have stopped but for the intervention of her boyfriend’s mother and law enforcement. U.S. v. Vowell, __ F.3d __ (6th Cir. Jan. 29, 2008) No. 06-5742.
6th Circuit holds that 65-year sentence for child molester was reasonable. (870) Defendant sexually molested his girlfriend’s eight-year old daughter while his girlfriend videotaped the molestation. He pled guilty to coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct and possessing child pornography. Although his guideline range was 188-235 months, he faced a statutory minimum sentence of 300 months under 18 U.S.C. § 2251(a). After considering the § 3553(a) factors, including the abusive and heinous nature of defendant’s conduct, the lasting damage he had inflicted on his victim, and the significant need to protect the community, the district court sentenced defendant to consecutive terms of 45 years’ imprisonment on the first count and 20 years on the second, to be followed by a lifetime period of supervised release. Because defendant’s guideline range fell below the statutory minimum, he argued that only a sentence of the statutory minimum would be reasonable. The Sixth Circuit disagreed, holding that the sentence was procedurally and substantively reasonable. The district court chose a sentence it considered sufficient but not greater than necessary to comply with the purposes of § 3553(a). U.S. v. Vowell, __ F.3d __ (6th Cir. Jan. 29, 2008) No. 06-5742.
6th Circuit approves large upward variance where defendant abused minor victim for five years. (870) Defendant pled guilty to travel with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). His advisory guideline range was 24-37 months, but the district court sentenced him to 60 months, finding that an upward departure was warranted for extreme psychological injury under § 5K2.3. In the alternative, the court found that application of the § 3553(a) factors warranted a variance from the Guidelines. The court noted that it was “hard to image a more serious offense, short of murder or other serious violence.” The court also noted the need to protect the public – this was not a one-time matter, but involved years of sexual abuse. The Sixth Circuit found that the court’s alternative sentence for defendant constituted a reasonable variance from the Sentencing Guidelines, and therefore did not reach the upward departure issue. Because the judge could have properly found by a preponderance of the evidence that defendant repeatedly abused the victim over a five-year period, the court could have validly taken this conduct into account as a justification for the variance. The panel rejected defendant’s claim that because his sentence was twice the high end of the advisory guideline range, the judge had to offer a “compelling justification” for the sentence. The Supreme Court in Gall rejected an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the guideline range, as well as “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” U.S. v. Klups, __ F.3d __ (6th Cir. Jan. 10, 2008) No. 06-1931.
6th Circuit finds sentence reasonable as either upward criminal history departure or variance. (870) Defendant pled guilty to bank fraud. The applicable guideline range was 33-41 months, but based on defendant’s understated criminal history, he was sentenced to 84 months. The sentence was the result of either a § 4A1.3(a)(4)(B) departure or a § 3553(a) variance. The Sixth Circuit found the sentence reasonable under either method. The court properly calculated the applicable guideline range, and then adequately explained its justifications for a higher sentence, including the fact that there were only two five-year periods during defendant’s adult life when he was not under supervision, incarceration, or involved in criminal activity. His first conviction was over 40 years earlier, but he had only had brief respites from prison, supervision and commission of new offenses. The court noted that previous sentences had not deterred defendant, and that without an upward departure his sentence would be shorter than many of his previous sentences. U.S. v. Hill, 513 F.3d 894 (6th Cir. 2008).
6th Circuit upholds sentence well below guideline range for child porn defendant. (870) Defendant pled guilty to possessing child pornography. His advisory guideline range was 135-168 months, but that range was reduced to the statutory maximum of 120 months. The district court, however, sentenced defendant to 66 months in prison and ten years of supervised release. The court found that the guideline enhancements produced a calculation that was “not fair.” The Sixth Circuit found that the length of the sentence was substantively reasonable. The Supreme Court’s recent decision in Gall v. United States bars a “rigid mathematical formula” for reviewing outside-guidelines sentences, although it still requires some correlation between the extent of a variance and the justification for it. Although the court found defendant’s crime “thoroughly disgusting and antisocial in every way, shape, and fashion,” it believed that the recommended guideline range was “not reflective of what [defendant] did.” The court recognized “troubling” aspects of defendant’s psychological evaluations, and recommended that, while defendant served his prison term, he should receive psychological counseling and reside in a facility as near as possible to his family. In addition, during his 10-year term of supervised release, defendant was required to continue psychological counseling. Thus, the court accounted for § 3553(a) concerns that the sentence protect society and deter future criminal conduct, but it opted to pursue those goals, not through a longer term of imprisonment, but through extensive counseling and treatment. Chief Judge Boggs dissented, finding that the judge reached its sentence by improperly “knock[ing] off a bunch” of upward enhancements. U.S. v. Grossman, 513 F.3d 592 (6th Cir. 2008).
6th Circuit outlines post-Gall standard of review. (870) The Sixth Circuit outlined its standard of review in light of Gall, Rita and Booker. Post-Booker, the appellate court reviews a district court’s sentencing determination under a deferential abuse of discretion standard for reasonableness. This review is not to be confused with the district court’s task to impose a sentence that is sufficient but not greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 35539(a). A sentence must be both procedurally and substantively reasonable. As for procedural reasonableness, the appellate court must first ensure that the district court (1) properly calculated the applicable guideline range; (2) considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the guidelines range; and (3) adequately articulated its reasoning for imposing the particular sentence chosen, including any rejection of the parties’ arguments for an outside guidelines sentence and any decision to deviate from the advisory guidelines range. In reviewing substantive reasonableness, the appellate court must taken into account the totality of the circumstance, including the extent of any variance from the guideline range. For sentences within the guidelines, the appellate court may apply a rebuttable presumption of substantive reasonableness. However, the court may not apply a presumption of unreasonableness to an outside Guidelines sentence. U.S. v. Bolds, 511 F.3d 568 (6th Cir. 2007).
6th Circuit holds that 24-month revocation sentence was reasonable even though it exceeded advisory range. (870) While on supervised release, defendant missed numerous drug screens and was arrested for shoplifting. After being released on bond, she refused to report to her probation officer, failed to appear for drug screens, and failed to appear at her supervised release revocation hearing. Although the Sentencing Guidelines policy statements recommended a revocation sentence of four to ten months, the district court sentenced defendant to 24 months, noting that he was concerned by the “pattern of contempt for the court and refusal to abide by mandatory conditions” exhibited by defendant. He also thought her shoplifting offense was a “very serious crime” given the assault of an elderly store employee and the involvement of a minor. The Sixth Circuit held that the 24-month revocation sentence was reasonable. The district court did not commit any significant procedural error in imposing defendant’s sentence. Moreover, the court provided a sufficiently compelling justification for its variance from the Sentencing Commission’s recommendation. U.S. v. Bolds, 511 F.3d 568 (6th Cir. 2007).
6th Circuit, post-Booker, reviews revocation sentence under same standard as sentence after conviction. (870) Prior to Booker, the courts reviewed a sentence imposed upon revocation of supervised release for abuse of discretion. Under this standard, the court would affirm a revocation sentence if it showed consideration of relevant statutory factors and was not plainly unreasonable. Post-Booker, courts have split on the question of whether to continue to review supervised release revocation sentences under the “plainly unreasonable” standard or to apply Booker’s “unreasonableness” review standard to such cases. The Sixth Circuit held that there is no practical different between the pre-Booker “plainly unreasonable” standard of review of supervised release revocation sentences and its post-Booker review of sentences for “reasonableness.” Sentences imposed following revocation of supervised release are to be reviewed under the same abuse of discretion standard that the court applies to sentence imposed following conviction. U.S. v. Bolds, 511 F.3d 568 (6th Cir. 2007).
6th Circuit says 15-month sentence not unreasonable simply because co-defendant received probation. (870) Defendant was convicted of filing false income tax returns, and was sentenced to 15 months’ imprisonment. He argued that the sentence was unreasonable because the court failed to adequately consider the disparity between defendant’s 15-month sentence and his niece’s sentence of probation. The Sixth Circuit found no error because defendant and his niece were not similarly situated. Defendant and his niece were both convicted of three counts of tax fraud, but defendant’s criminal history placed him in Category IV and the niece’s criminal history placed her in Category I. Further, the niece received an acceptance of responsibility reduction and pled guilty to her crime, while the district court found that defendant had not accepted responsibility for his crime. U.S. v. Carter, 510 F.3d 593 (6th Cir. 2007).
6th Circuit upholds refusal to grant departure or variance based on family circumstances. (870) Defendant challenged the district court’s denial of his motion for a downward departure or a variance based on “exceptional family circumstances.” The Sixth Circuit found no grounds for reversal. Even after Booker, a district court’s refusal to depart downward is not reviewable unless the district court incorrectly believed that it lacked discretion to depart downward. Here, the district court understood its discretion, so its decision was not reviewable. In addition, the court’s refusal to grant a downward variance did not make the sentence unreasonable. The court reasonably concluded that defendant’s absence from his family would be mitigated by his wife’s continued presence at home and the family’s continued receipt of substantial healthcare, housing and sustenance benefits. The sentence was also supported by the Sentencing Commission’s policy statement in § 5H1.6 regarding the relevance of family circumstances in sentencing. See. U.S. v. Carter, 510 F.3d 593 (6th Cir. 2007).
6th Circuit affirms 396-month sentence for bank robberies as reasonable. (870) Defendant was convicted of bank robbery and sentenced to 405 months in prison following his participation in a scheme in which the family of a bank manager was abducted, and the robbers threatened to blow up the manager’s husband unless the manager retrieved money from the bank vault. He was originally sentenced to 405 months, but on remand in light of Booker, the district court sentenced him to 396 months. The Sixth Circuit found no abuse of discretion. First, the court committed no procedural error such as failing to calculate or improperly calculating the Guidelines range, or failing to consider the § 3553(a) factors. Even though the court did not explicitly discuss the Sentencing Guideline range, it was clear from the record that the district court was aware of the range and considered it. The sentence was also substantively reasonable. Since it fell within the guideline range, it was entitled to a presumption of reasonableness. Although a co-conspirator who played an identical role in a different robbery received a 295-month sentence, this fact was not sufficient to make defendant’s sentence unreasonable. U.S. v. Smith, 510 F.3d 603 (6th Cir. 2007).
6th Circuit holds that upward departure and denial of credit for time served did not require remand. (870) Defendant’s original guideline range was 41-51 months. However, because he had 31 criminal history points (significantly higher than the 13 needed to place him in the Criminal History Category of VI), the district court departed upward by adding four points to his offense level. This resulted in a sentencing range of 63-78 months, and the court imposed a sentence 68 months. Defense counsel requested that defendant receive credit for the nine months he had already served for a previous conviction. The district court refused, concluding that, because of the likelihood of recidivism, the 68-month sentence was appropriate. Defendant argued that this was improper under U.S.S.G. § 5G1.3. The Sixth Circuit found no error. The court’s sentencing procedure was consistent with both Booker and Williams v. U.S., 503 U.S. 193 (1992) (sentence is imposed “as a result of” misapplication of the Guidelines if the sentence would have been different but for the district court’s error). The court properly calculated defendant’s guideline range of 41-51 months, made an informed decision to depart, and rejected his request for credit for time served. U.S. v. Lane, 509 F.3d 771 (6th Cir. 2007).
6th Circuit outlines post-Gall review procedure. (870) Defendant challenged the reasonableness of his 78-month sentence for fraud and tax evasion. In its first post-Gall case, the Sixth Circuit noted that is first task in evaluating the reasonableness of the district court’s sentence is to “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the guidelines range, treating the guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence, including an explanation for any deviation from the guidelines range.” A court commits such error if the judge fails to “consider” the applicable guideline range or neglects to “consider” the other factors listed in § 3553a), and instead simply selects what the judge deems an appropriate sentence without such required consideration. After an appellate court has determined that a defendant’s sentence is procedurally reasonable, it must “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Sentences falling within the applicable guidelines range are afforded a rebuttable presumption of reasonableness. Defendant’s sentence, which fell within his 63-78 month advisory range, was entitled to a presumption of reasonableness. U.S. v. Lalonde, 509 F.3d 750 (6th Cir. 2007).
6th Circuit reviews calculation of guideline range as part of review of procedural reasonableness of sentence. (870) In its first post-Gall case, the Sixth Circuit found that on appeal it still must ensure that the district court properly calculated the advisory guidelines range as part of its overall consideration of the § 3553(a) factors. In evaluating the district court’s calculation of the advisory guidelines range, the appellate court reviews the court’s factual findings for clear error and its legal conclusion de novo. Because the district court must properly calculate the advisory guidelines sentencing range as well as consider the § 3553(a) factors, appellate review of the district court’s guidelines range calculation is most properly viewed as part of the review of the procedural reasonableness of the sentence. A court cannot properly consider the § 3553(a) factors if it miscalculated the advisory guidelines range that it must consider together with the § 3553(a) factors. U.S. v. Lalonde, 509 F.3d 750 (6th Cir. 2007).
6th Circuit finds child pornography sentence reasonable. (870) Defendant pled guilty to transporting and receiving child pornography over the Internet. Although his guideline range was 210-262 months, the district court sentenced defendant to concurrent 180-month sentences. Although the court sentenced him to a term 15% below the low-end of the guideline range, defendant argued on appeal that the sentence was unreasonable and that the judge attempted to send a message to the entire child pornography industry rather than tailoring the sentence to the individual defendant appearing before it. The Sixth Circuit held that the sentence was both procedurally and substantively reasonable. Although the court extensively discussed how defendant’s offense factually related to the entire child pornography industry, defendant misunderstood how this undisputed fact affected the court’s consideration of the § 3553(a) factors. None of the other factors raised by defendant were so compelling as to necessitate a shorter sentence. While defendant argued that he was not a pedophile but was merely ignorant of the seriousness of his conduct and suffered from OCD, these facts, if believed, also supported a conclusion that defendant continued to minimized his conduct without fully accepting responsibility. Although defendant could point to other child pornography defendants who received lesser sentences, any discrepancy could be explained by the individual facts of their cases and the nature of appellate reasonableness review. Defendant’s sentence was reasonable. U.S. v. Kirchhof, 505 F.3d 409 (6th Cir. 2007).
6th Circuit holds it impermissible for court to consider defendant’s likely state sentence as factor in determining federal sentence. (870) Defendant was convicted of possession with intent to distribute marijuana. Although his guideline range was 51-63 months, the district court sentenced him to 24 months. At sentencing, the court noted that defendant was prosecuted in federal court under a cooperative state and federal government arrangement aimed primarily at firearms-related crimes. Defendant had been charged with both firearms and marijuana charges, but he was acquitted of the firearms charges. The court found that defendant’s acquittal on the firearms charges “mooted the reasons for the federal prosecution,” and as such, “[i]n a sense, the Court in this case acts as a Michigan State court would in considering the sentence since that is where the case would be now that the jury acquitted the defendant of the firearm charge.” Since defendant would have likely received a lower sentence in state court, the court found that the 24-month sentence was adequate. The Sixth Circuit reversed, holding that it was impermissible for the district court to consider defendant’s likely state court sentence as a factor in determining his federal sentence. Section 3553(a)(6)’s admonition that sentencing courts avoid unwarranted disparities is directed only at federal courts to federal court disparities, not those that may exist between federal and state courts. U.S. v. Malone, 503 F.3d 481 (6th Cir. 2007).
6th Circuit finds 70-month sentence for child porn offense substantively unreasonable. (870) Defendant pled guilty to distribution of child pornography. His advisory guideline range was 188-235 months, but the court sentenced him to 70 months. The court noted that defendant himself had been a victim of sexual abuse and found that this was probably a cause of his deviant behavior. The court also said it was reconciling defendant’s sentence with previous sentences imposed on defendants for similar conduct. The Sixth Circuit held that the sentence was substantively unreasonable. Although the court noted defendant’s personal history, and emphasized that he had suffered sexual abuse as a child, the court failed to mention that defendant had previously molested his daughter. Moreover, the court suggested that the distribution of child pornography was less serious than enticing a child and emphasized that it did not appear that defendant intended to engage in sexual conduct with children. However, this consideration is already incorporated into the guidelines. Moreover, the guidelines have changed significantly between the time of the cases referenced by the court and when defendant’s offenses took place. The defendants in the purportedly comparable cases were sentenced in 2001 and 2002, prior to Congress’s enactment of the PROTECT Act. Finally, defendant’s sentence was almost the most extreme variance possible, since it was only 10 months more than the five-year mandatory minimum imposed by 18 U.S.C. § 2252A(b)(1); this left virtually no room to make future distinctions between defendant’s case and the cases of more worthy defendants. U.S. v. Fink, 502 F.3d 585 (6th Cir. 2007).
6th Circuit says mandatory consecutive sentence for brandishing firearm did not justify sentence reduction for underlying offense. (870) Defendants were convicted of various bank robbery counts and brandishing a firearm during and in relation to a crime of violence. The latter charge carried a mandatory consecutive seven-year term of imprisonment, 18 U.S.C. § 924(c). At sentencing, the court expressly said that it was granting “a downward departure to some extent because I feel that adding on a mandatory seven years truly inflates the sentence.” The court granted defendant a downward variance of 34 months (35 percent below the minimum guideline range). The Sixth Circuit reversed. When any downward variance of the guideline range is based upon the effect of a mandatory sentence, congressional intent is repudiated, just as if the mandatory sentence itself had been reduced. Section 3553(a) factors do not apply to Congressionally mandated sentences. Although Booker gave substantial discretion to the sentencing court to impose sentences below a mandatory maximum, nothing in Booker allows a court to negate the imposition of a mandatory minimum sentence. A court’s disagreement with Congress as to what constitutes an appropriate sentence for a repeat offender is a policy matter, and not a permissible factor upon which to base a sentencing determination. U.S. v. Franklin, 499 F.3d 578 (6th Cir. 2007).
6th Circuit affirms single consideration of factors for both incarceration and supervised release as procedurally reasonable. (870) In sentencing to incarceration, procedural reasonableness requires the district court to consider the factors in 18 U.S.C. § 3553(A), including the advisory guideline range. In imposing a term of supervised release, the court is required to “consider the factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(C). In sentencing defendant to 135 months’ imprisonment and a lifetime term of supervised release for his child pornography offenses, the sentencing court engaged in a single consideration of the sentencing factors, which embraced both the incarceration sentence and the supervised release term. Its consideration was thorough; the court named and discussed the effect on its sentencing decision of almost all of the sentencing factors in § 3553(a), and thus almost all of the factors specified for consideration in § 3583(c). The Sixth Circuit held that the district court complied with the requirements of procedural reasonableness. U.S. v. Presto, 498 F.3d 415 (6th Cir. 2007).
6th Circuit holds lifetime term of supervised release for child porn offender reasonable. (870) Defendant was convicted of receiving and possessing child pornography. He was sentenced to 135 months’ imprisonment and, pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, a lifetime term of supervised release. Defendant claimed that the imposition of lifetime supervision in all child pornography cases results in a disparity in sentencing between offenders, since there would be no incremental increases for more serious offenses of conviction. The Sixth Circuit held that the lifetime supervised release term was reasonable. The district court did not mechanically sentence defendant to lifetime supervised release. Instead, the court found that his offense was a more serious offense than that of other defendants convicted of receipt of child pornography. Defendant had not only possessed pictures of minors being sexually abused, but had himself molested a child. His contention that the sentence was disproportionate to the gravity of the offense was without merit. Defendant “significantly underestimate[d] the seriousness of his offense.” U.S. v. Presto, 498 F.3d 415 (6th Cir. 2007).
6th Circuit finds lifetime term of supervised release for child porn offender reasonable. (870) Defendant was convicted of receiving and possessing child pornography. He was sentenced to 135 months’ imprisonment and, pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, a lifetime term of supervised release. Defendant claimed that the imposition of lifetime supervision in all child pornography cases results in a disparity in sentencing between offenders, since there would be no incremental increases for more serious offenses of conviction. The Sixth Circuit held that the lifetime supervised release term was reasonable. The district court did not mechanically sentence defendant to lifetime supervised release. Instead, the court found that his offense was a more serious offense than that of other defendants convicted of receipt of child pornography. Defendant had not only possessed pictures of minors being sexually abused, but had himself molested a child. His contention that the sentence was disproportionate to the gravity of the offense was without merit. Defendant “significantly underestimate[d] the seriousness of his offense.” U.S. v. Presto, 498 F.3d 415 (6th Cir. 2007).
6th Circuit reverses because court did not adequately state reasons for sentence. (870) Defendant was originally sentenced to the statutory maximum of 240 months in prison, which was within the then-mandatory guideline range of 210-262 months. The case was later remanded for resentencing in light of Booker. Defendant filed a sentencing memo discussing relevant § 3553(a) factors that he believed warranted a sentence below the guideline range. The judge, however, stated that the 240-month sentence was appropriate. It fell within the middle of the guideline range, and the fact that it coincided with the statutory maximum was “essentially happenstance.” The judge further found that the 240-month sentence was “a fair, adequate and reasonable sentence considering the advisory guideline range that applies, as well considering the additional factors contained within 18 U.S.C. § 3553(a).” The Sixth Circuit, although recognizing that this statement of reasons was similar to the statement of reasons sanctioned by the Supreme Court in Rita, nonetheless found the sentence was procedurally unreasonable. The record in Rita made clear that the district court considered and rejected the defendant’s arguments for a lower sentence. Here, the court’s only mention of defendant’s numerous arguments for a lower sentence was the statement, “I certainly have received [the sentencing memo], read it and understand its presentations.” This conclusory statement left it unclear whether the court adequately considered and rejected defendant’s arguments regarding proper application of the § 3553(a) factors or whether it misconstrued, ignored, or forgot defendant’s arguments. U.S. v. Thomas, 498 F.3d 336 (6th Cir. 2007).
6th Circuit reverses where court did not resolve disputed issues in PSR and simply selected sentence based on § 3553(a) factors. (870) At sentencing, the district court did not resolve defendant’s objections to the PSR expressly, nor did it determine that the matters to which she objected were not material to and would not be considered in calculating her sentence. A sentence is unreasonable when the district judge fails to consider the applicable guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration. Here, the court could not have considered the applicable guideline range because it did not calculate a correct guideline range. Instead, the court looked at the two proposed guidelines ranges (one in the PSR and the other by defendant), concluded that neither was correct, and without making factual findings to support any guideline range, selected what it viewed as an appropriate sentence in light of the § 3553(a) factors. The Sixth Circuit reversed, finding that more was required. U.S. v. Lanesky, 494 F.3d 558 (6th Cir. 2007).
6th Circuit finds within-guidelines sentence was adequately explained. (870) Post-Rita, defendant argued that his sentence should be vacated and that he should be resentenced because he had called a number of factors to the district court’s attention, including his drug addiction, and his mental, emotional, psychological and medical difficulties, but the court did not address his multiple reasons for a lesser sentence or explain why it rejected his reasons. The Sixth Circuit rejected defendant’s challenge. Defendant’s within-guidelines sentence was adequately explained, as the judge considered the applicable range and the factors in § 3553(a). Moreover, the court carefully considered the nature and circumstances of defendant’s drug operations, specifically referencing the facts underlying the crime. The court also noted that defendant had a record of drug convictions, that his choice to sell cocaine form his house was a serious offense, and that his likelihood of recidivism was high. The panel declined to issue an advisory opinion to better define what a criminal defendant must do to rebut the presumption of reasonableness. U.S. v. McGee, 494 F.3d 551 (6th Cir. 2007).
6th Circuit finds sentence reasonable where court considered and rejected diminished capacity departure. (870) Defendant argued that his 235-month felon-in-possession sentence was unreasonable because the court failed to account for mitigating factors, primarily that defendant suffered from a “substantial mental handicap.” The district court considered defendant’s motion for a downward departure based on his diminished mental capacity under § 5K2.13, but ultimately found that defendant “long history of violence” and “unwillingness to conform his conduct to the law” precluded a departure. The Sixth Circuit found the sentence reasonable, since defendant failed to identify any relevant factor that the court neglected to consider. The mere allegation that the sentence imposed was greater than necessary to achieve the goals of punishment in § 3553(a) is insufficient to rebut the presumption of reasonableness. The court took into account defendant’s mental capacity and the nature of his crime and found that a sentence at the bottom end of the guideline range would provide the optimal balance between defendant’s personal circumstance and the need to protect the public. Nothing in the record indicated the court erred in this assessment. U.S. v. Crowell, 493 F.3d 744 (6th Cir. 2007).
6th Circuit reviews impact of Rita. (870) After defendant appealed his sentence, the Supreme Court issued its decision in Rita v.U.S.,127 S.Ct. 2456 (2007). The Sixth Circuit outlined the effect of Rita on its post-Booker jurisprudence. Booker transformed the Sentencing Guidelines from a mandatory scheme to an advisory resource, and directed appellate courts to review sentences for reasonableness. The Sixth Circuit has applied a rebuttable presumption of reasonableness to sentences falling within the applicable guideline range. Rita clarified that appellate reasonableness review merely asks whether the trial court abused its discretion. Second, Rita reinforced the conclusion that reasonableness review requires appellate courts to inquire into both the length of the sentence and the factors evaluated and the procedure employed by the district court. Third, Rita demands that any “presumption” of substantive reasonableness is not a “presumption” as generally defined. The presumption is not binding, but merely reflects that by the time an appeals court is considering a within-guideline sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. Thus, today, as before Rita, regardless of whether the sentence falls within the guideline range, the appellate court will review the sentencing transcript to ensure (1) that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly stated his reasons for imposing the chosen sentence, and (2) that the sentence is substantively reasonable. U.S. v. Liou, 491 F.3d 334 (6th Cir. 2007).
6th Circuit holds guideline drug sentence reasonable. (870) Defendant was convicted of 21 drug and firearms charges. He argued that the court erred when it failed to consider certain mitigating factors under 18 U.S.C. § 3553(a). However, the court did not actually identify any factors that the court did not consider. The record indicated that the court noted every one of the 20 or so arguments defendant made. The court did not make specific findings as to why each of the 20 arguments did not warrant a below-guideline sentence, but generally relied on defendant’s “history of violence and threats of violence.” Thus, the Sixth Circuit ruled that the sentence was procedurally reasonable. The panel also ruled that the 210-month sentence was substantively reasonable. Although several of the factors cited by defendant might warrant a below-guidelines sentence in some circumstances, the court did not give an unreasonable large amount of weight to defendant’s significant history of violence or an unreasonably small amount of weight to defendant’s mitigating arguments. U.S. v. Jones, 489 F.3d 243 (6th Cir. 2007).
6th Circuit vacates where court failed to provide any reasons for sentence. (870) 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 § 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 holds explanation for sentence at a low-end of guideline range was sufficient. (870) Defendant was convicted of armed robbery, and sentenced as a career offender to 188 months’ imprisonment. He argued that his sentence was unreasonable because the court’s sentencing explanation was “an unblinking, script-bound and liturgical ‘ritualistic incantation’ of 18 U.S.C. § 3553(a).” The Sixth Circuit found no error. Defendant did not highlight any specific mitigating factors that the district court failed to take into account, nor did he make any particular point about why a lower sentence should have been imposed. Moreover, defendant construed Sixth Circuit law backwards. While Sixth Circuit has stated repeatedly that it has never required “the ritual incantation” of the § 3553(a) factors, a court’s “script-bound” recitation of all the factors is not obviously problematic, provided that the court communicates clearly its rationale for imposing the specific sentence. The court here addressed all of the pertinent § 3553(a) factors, explained their application in light of defendant’s serious offense and significant criminal history, and sentenced defendant at the low end of the advisory guideline range. U.S. v. Esteppe, 483 F.3d 447 (6th Cir. 2007), modification recognized by U.S. v. Ford, 560 F.3d 420 (6th Cir. 2009).
6th Circuit chastises defense counsel for raising same baseless challenge against same judge as in previous case. (870) Defendant’s brief stated that the district court “erroneously perceived its duty under Booker to be that of imposing a ‘reasonable’ sentence.” A district court’s job is not to impose a reasonable sentence, but rather to follow § 3553. “Reasonableness” is the appellate standard of review. See U.S. v. Foreman, 436 F.3d 638 (6th Cir. 2006), abrogated by U.S. v. Young, 580 F.3d 373 (6th Cir. 2009). The Sixth Circuit found no factual basis for defendant’s claim, and chastised the defense attorney for raising it. By placing the word “reasonable” in quotes, defense counsel suggested this is what the district court actually said, but failed to present anything that supported this position. The panel noted that this was the same baseless argument mounted against the same judge by the same attorney in the same Federal Defender’s Office. The panel cautioned that using quotes to attribute to a judge words that were never uttered, and claiming that they constitute reversible error, may deserve sanction by the appellate court. U.S. v. Bridgewater, 479 F.3d 439 (6th Cir. 2007).
6th Circuit affirms departure to one-day sentence where defendant was “irreplaceable” to her family. (870) Defendant participated in two transactions involving the sale of ecstasy, although she was neither the buyer nor the seller in either transaction. Although her guideline range was 37-46 months’ imprisonment, the district court departed downward, based on extraordinary family circumstances, to a sentence of one day, plus three years’ of supervised release. Defendant lived with her parents and three minor siblings. Defendant’s father was totally incapacitated due to a recent stroke, required around-the-clock care, and defendant and her mother provided for all of the family’s financial and other needs. Defendant and her mother alternated working shifts at a factory to insure than an adult was always home to attend to the father and the minor children. In addition, defendant was the only member of the household with a valid driver’s license. The Sixth Circuit affirmed the one-day sentence, finding the departure both procedurally and substantively reasonable. The mere possibility of potential alternative care was not sufficient to undermine a claim of irreplaceability. The court considered five of the six relevant § 3553(a) factors. The case was distinguishable from U.S. v. Davis, 458 F.3d 491 (7th Cir. 2006), cert. granted, vacated, Davis v. U.S., 552 U.S. 1088, 128 S.Ct. 856 (2008), which rejected a one-day sentence as unreasonable. The sole purpose of that departure was leniency. Here, the purpose was to allow defendant to provide assistance to her father. Any time spent in jail necessarily defeated that purpose. Defendant was also a far “more worthy defendant” than the one in Davis. U.S. v. Husein, 478 F.3d 318 (6th Cir. 2007).
6th Circuit says court improperly refused to sentence defendant as career offender. (870) Defendant qualified as a career offender, resulting in a guideline range of 262-327 months. The district court, however, imposed a 150-month sentence, finding that the career offender enhancement was excessive and unreasonable because defendant’s marijuana conspiracy did not involve cocaine or guns, and a sentence of 150 months would be just, would incapacitate defendant and deter him from future criminal activity; and would provide adequate public deterrence and safety. The Sixth Circuit reversed. The fact that defendant’s conspiracy did not involve cocaine or firearms was not a reason to decrease his sentence from the guideline range. If the conspiracy had used guns or additional drugs, the properly calculated guideline range would have been greater than 262-327 months. Therefore, it defied logic to reduce defendant’s sentence because of the absence of this factor. The properly calculated guideline range already took into account the absence of this factor. The court erred in deciding not to sentence defendant as a career offender because it found the career offender enhancement “excessive and unreasonable.” The court’s disagreement with Congress as to what constitutes an appropriate sentence for a repeat offender is a policy matter, and is not a permissible factor upon which to base a sentencing determination. U.S. v. Funk, 477 F.3d 421 (6th Cir. 2007).
6th Circuit upholds large variance where false statement guideline did not account for national security concerns. (870) Shortly after the 9/11 attacks, defendant made comments supporting the attacks and Osama bin Laden, and told his superiors that he would fight for Iraq in a war between the U.S. and Iraq. As a result, defendant’s access to classified military information was restricted and he was discharged from the Air Force. In 2004, he applied for a baggage screener position with the Transportation Security Administration (TSA), and failed to disclose the fact that his access to classified information had ever been revoked. Defendant was convicted of making false statements, in violation of 18 U.S.C. § 1001(a)(2). Although defendant’s guideline range was zero to six months, the district court imposed a sentence of 18 months. The Sixth Circuit held that the sentence was reasonable. The district court explained that defendant’s guideline range largely contemplated false statements in the context of financial or other similar fraud rather than in a public safety or national security, and that a false statement in the latter context was much more serious and warranted greater punishment. Thus, the sentence “was grounded in the trial court’s clearly articulated, well-reasoned concerns about the seriousness of the crime and the need for deterrence.” U.S. v. Ahmed, 472 F.3d 427 (6th Cir. 2006).
6th Circuit holds that court’s failure to consider statutory sentencing factors was not reasonable. (870) The PSR recommended an advisory sentencing range of 27-33 months. At sentencing, defense counsel informed the court that Probation Department was likely to recommend an additional two criminal history points, which would result in a sentencing range of 30-37 months. The court found that a 30-month sentence was appropriate, since defendant was at the top of the criminal history scored under the previous calculation and in the middle of the criminal history score under the current calculation. The Sixth Circuit held that the sentencing procedure used by the district court was not procedurally reasonable because the court failed to consider the statutory sentencing factors of 18 U.S.C. § 3553(a). Courts are required to consider the applicable guidelines sentencing range when arriving at a defendant’s sentence, but as only one factor of several laid out in § 3553(a). A sentence within the guidelines carries with it no implication that the court considered the § 3553(a) factors if it is not clear from the record. A district court’s failure to sufficiently consider those factors cannot be harmless. Judge Griffin dissented. U.S. v. Johnson, 467 F.3d 559 (6th Cir. 2006).
6th Circuit holds that 36 percent variance below advisory range for drug/firearm offenses was reasonable. (870) Defendant pled guilty to crack and firearms offenses, resulting in an advisory guideline range of 188-235 months. The court varied downward to impose a 120-month sentence (the statutory minimum for the charges involved), citing defendant’s personal history, his criminal history, and his age. Although defendant’s criminal history was IV, he had never been in custody for any substantial period of time, having only been imprisoned for seven months before this crime. In addition, the criminal history did not reflect that this was the first time that this quantity of drug and guns had been found in defendant’s possession. The court also noted that defendant’s father had been murdered when defendant was nine, and his mother died of cancer two years later. As a result, the court ordered defendant to undergo mental health counseling. The Sixth Circuit held that the sentence, which represented a 36 percent variance below the bottom of the advisory guideline range, was both procedurally and substantively reasonable. The court explained its analysis in reaching this sentencing determination and its analysis was sound. “This Court must show some level of deference to the district court in sentencing, especially when that district court provides this court with a factor-by-factor consideration of the relevant section 3553(a) factors.” U.S. v. Collington, 461 F.3d 805 (6th Cir. 2006).
6th Circuit holds that court’s statement that sentence it was imposing was “reasonable” was not reversible error. (870) Defendant was convicted of domestic violence and kidnapping. He challenged his 108-month sentence on the ground that the district court described its objective as issuing a sentence that was “reasonable.” Courts have noted that a district court’s job is not to impose a “reasonable sentence,” but “to impose a sentence sufficient, but not greater than necessary to comply with the purposes of section 3553(a)(2).” Reasonableness represents the standard of appellate review. Nonetheless, the Sixth Circuit held that a district judge does not necessarily commit reversible error merely by saying that the sentence he wishes to impose is “reasonable.” Here, the district judge correctly calculated the guidelines’ sentencing range, thoroughly considered the § 3553(a) factors, and exercised his independent judgment in sentencing defendant. The judge’s use of the word “‘reasonable” in describing the sentence he wished to impose “did not eclipse his thorough application of the §3553(a) factors and his exercise of independent judgment.” Resentencing was not required. U.S. v. Cruz, 461 F.3d 752 (6th Cir. 2006).
6th Circuit rejects extreme variance based on defendant’s age and delay in sentencing. (870) A jury convicted defendant of bank fraud. Although his guideline sentencing range was 30-37 months, the court imposed a sentence of one day in prison because defendant was 70 years old at the time of sentencing and had committed the underlying crimes 14 years earlier. The Sixth Circuit held that the one day sentence was not reasonable. The farther a judge’s sentence departs from the guidelines, the more compelling the justification based on factors in § 3553(a) must be. Here, the 14-year gap between defendant’s crimes and his second sentencing hearing did not support such a dramatic variance. The underlying prosecution occurred within the statute of limitations period. At a minimum, reliance on this factor should require some evidence that the government bears unjustified responsibility for the delay, and that defendant suffered from the delay. Any delays here stemmed from practical reasons, not “any malicious motive” by the government. What the delay principally did was to allow the defendant to age. While age may be a legitimate basis for a variance, that did not mean it warranted a one-day sentence. Defendant’s fraud caused over $900,000 in loss. He did not repay the lost money, did not accept responsibility for the crimes, and never showed remorse. The sentence represented the most extreme variance possible, leaving no room to make reasoned distinctions between defendant’s variance and variances that other, more worthy, defendants might deserve. Judge Keith dissented. U.S. v. Davis, 458 F.3d 491 (6th Cir. 2006), cert. granted, vacated, Davis v. U.S., 552 U.S. 1088, 128 S.Ct. 856 (2008).
6th Circuit holds that court’s reference to incorrect standard did not make guideline sentence unreasonable. (870) Defendant was convicted of escaping from a community corrections center, in violation of 18 U.S.C. § 751(a). Defendant asked for a variance because while the guidelines treated his escape as a crime of violence, his escape was not violent. The district sentenced defendant to 37 months, the lowest sentence within the recommended guideline range, finding such a sentence was “reasonable.” However, a district court’s job is not to impose a “reasonable” sentence. Rather, the court’s mandate is to impose “a sentence sufficient, but not greater than necessary, to comply with the purposes” of § 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task. Despite the court’s comments suggesting it thought its obligation was to impose a reasonable sentence, the Sixth Circuit nonetheless affirmed the guideline sentence. A guideline sentence is entitled to a presumption of reasonableness. Such a presumption can be rebutted by an “absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors.” There was no such shortcoming here. The court considered all of the § 3553(a) factors, considered defendant’s argument regarding the nonviolent nature of his escape, and explained that he would still sentence defendant within the guidelines range because the court considered his offense to be quite serious and thus promoting respect for the law required such a sentence. The court’s reference to a reasonableness standard did not render defendant’s sentence unreasonable in the face of the court’s satisfaction of the post-Booker sentencing mandates. U.S. v. Davis, 458 F.3d 505 (6th Cir. 2006), cert. granted, vacated, Davis v. U.S., 552 U.S. 1088, 128 S.Ct. 856 (2008).
6th Circuit remands where court failed to consider advisory policy statements for revocation sentence. (870) Defendant pled guilty to violating the terms of his supervised release. The district court sentenced him to the statutory maximum of 24 months’ imprisonment, in order to force defendant to participate in the Bureau of Prisons 500-hour drug treatment program. The Sixth Circuit reversed, finding that the court did not sufficiently consider the policy statements and sentencing factors in 18 U.S.C. § 3533(a). There was no evidence that the court considered the Chapter Seven policy statements. Although the policy statements are merely advisory, a court must still consider them prior to imposing sentence for revocation of supervised release. For a Grade C violation and a criminal history category of I, defendant’s recommended sentence was three to nine months. Furthermore, the 24-month sentence was plainly unreasonable because it was “greater than necessary” to comply with the purposes set forth in § 35553(a)(2). The 24 months was calculated by the court by adding the following: three months to designate and screen defendant’s needs, and nine months for the actual program. This only added up to 12 months. Even adding six months in a halfway house (as recommended by the probation officer), this would only amount to 18 months. U.S. v. Yopp, 453 F.3d 770 (6th Cir. 2006).
6th Circuit holds that 37-month sentence for felon in possession charge was reasonable. (870) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The guideline calculations resulted in a sentencing range of 37-46 months, and the district court imposed a 37-month sentence. The Sixth Circuit found no Booker error, because in addition to determining defendant’s sentence under the guidelines, the district court also treated the guidelines as advisory and sentenced defendant pursuant to the sentencing factors outlined in 18 U.S.C. § 3553(a). The court found that the sentence it imposed would afford adequate deterrence and just punishment. In addition, the sentence would give defendant the opportunity to get a GED and pick up a trade so that upon the end of his sentence he could become a productive member of society. The 37-month sentence was reasonable, in light of the guidelines recommended sentencing range and the reasons expressed by the court. U.S. v. Chandler, 419 F.3d 484 (6th Cir. 2005).
6th Circuit reviews de novo the application of acceptance of responsibility to uncontested facts. (870) Defendant challenged the district court’s denial of an acceptance of responsibility reduction. The Sixth Circuit gave the issue de novo review since the only issue presented was the propriety of the adjustment to uncontested facts. This is a question of law. U.S. v. Childers, 86 F.3d 562 (6th Cir. 1996), abrogation as to standard of review recognized by U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).
6th Circuit reviews de novo whether consecutive sentence was appropriate. (870) Defendant argued that the district court improperly applied § 5G1.3(c) when it imposed a 13-month consecutive sentence. The 6th Circuit held that the matter should be reviewed de novo, since it was a question concerning the proper application of the guidelines. It rejected the government’s claim that defendant was merely challenging the district court’s factual finding that he would probably serve no more than 24 months of his state indeterminate sentence. U.S. v. Brewer, 23 F.3d 1317 (6th Cir. 1994).
6th Circuit reviews sporting exception under clearly erroneous standard. (870) The 6th Circuit found that the determination under section 2K1.1(b)(2) of whether defendant used the gun in this case solely for sporting purposes was a question of fact to be reviewed under the clearly erroneous standard. U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993).
6th Circuit refuses to find that 1990 amendments changed standard of review for acceptance of responsibility. (870) Defendant claimed that because the 1990 amendments deleted the phrase “should not be disturbed unless it is without foundation” from the application note, an appellate court now has greater leeway in reviewing an acceptance of responsibility determination. The 6th Circuit rejected this argument, finding that this “minor alteration” in the application notes did not change the standard of review. Accordingly the court reviewed the district court’s decision to deny defendant an acceptance of responsibility reduction under the clearly erroneous standard. U.S. v. Osborne, 948 F.2d 210 (6th Cir. 1991), superseded on other grounds by statute as stated in U.S. v. Carr, 5 F.3d 986 (6th Cir. 1993).
6th Circuit reverses district court’s failure to impose fine. (870) The district court refused to impose a fine on defendant, concluding that he was “unable to pay a large fine.” Reviewing this factual finding under the clearly erroneous standard, the 6th Circuit reversed. The guidelines place on a defendant the burden of proving an inability to pay a fine. Defendant presented no proof to the district court that he was unable to pay a fine. Uncontested evidence showed that defendant’s net worth was $250,500, of which $200,000 was the proceeds of a spendthrift trust. The minimum fine for a person with defendant’s offense was $15,000. Therefore, the district court’s finding was clearly erroneous. U.S. v. Hickey, 917 F.2d 901 (6th Cir. 1990).
6th Circuit defines clearly erroneous standard. (870) Quoting a statement of the 7th Circuit in a different context, the 6th Circuit stated that to be clearly erroneous “a decision must strike us a more than just maybe or probably wrong; it must strike us as wrong with the force of a 5-week-old, unrefrigerated, dead fish.” U.S. v. Perry, 908 F.2d 56 (6th Cir. 1990).
6th Circuit rules that constitutionality of sentence is a question of law subject to de novo review. (870) Relying on a 9th Circuit opinion, the 6th Circuit held that the “constitutionality of a sentence is a question of law subject to de novo review.” Costo v. U.S., 904 F.2d 344 (6th Cir. 1990).
6th Circuit holds that district court’s application of the guidelines to the facts must be given “due deference” on appeal. (870) Quoting 18 U.S.C. § 3742(e), the 6th Circuit held that a reviewing court must “give due deference to the district court’s application of the guidelines to the facts.” The court added that “factual findings of the district court are given deference and will stand unless clearly erroneous.” U.S. v. Christoph, 904 F.2d 1036 (6th Cir. 1990), superseded by guideline on other grounds as stated in U.S. v. Williams, 940 F.2d 176 (6th Cir. 1991).
7th Circuit finds any error in applying serious bodily injury increase was harmless. (870) Defendant led police on a high speed chase, resulting in crash that led to a garage fire. One officer spent two days in the hospital as a result of his exposure to the smoke. The Seventh Circuit upheld a four-level increase for “serious bodily injury,” finding it unnecessary to decide whether hospitalization for observation because of the risk of serious injury, rather than because of an actual injury, was sufficient to constitute “serious bodily injury.” Any error here was harmless because it did not affect the sentence imposed. There was at least one “bodily injury” here, because another officer had lacerations in his hand requiring 16 stitches. Thus, even if the four-level increase was improper, defendant’s offense level would be reduced by only two levels, to a range of 235-293 months. The district court imposed the statutory maximum sentence of 240-months, and made it clear that it felt such a sentence was fair under the circumstances. The fact that this was toward the low end of, rather than below, the proper guideline range would not have made any difference. U.S. v. Dortch, 628 F.3d 923 (7th Cir. 2010).
7th Circuit upholds drug quantity finding based on judge’s finding that detective was credible. (870) Defendant pled guilty to two marijuana offenses and to possessing a firearm in connection with those crimes. He challenged his 70-month sentence for the drug offenses, arguing that the judge should have only held him accountable for the 13 kilograms of marijuana found at his home. The judge calculated defendant’s relevant conduct at 490 kilograms of marijuana after converting to a marijuana equivalent the $40,000 in cash seized in the house and estimating the extent of defendant’s drug distribution business. Defendant contended that the record did not show that he had any such business. However, the judge’s finding was based on a detective’s testimony at an evidentiary hearing that defendant had confessed to conducting a substantial marijuana-distribution operation. Defendant testified at the hearing that he never said any such thing to the detective,. The judge believed the detective rather than defendant. A challenge to such a finding “has no prospect of success on appeal.” U.S. v. Billian, 600 F.3d 791 (7th Cir. 2010).
7th Circuit holds that conviction for resisting law enforcement was violent felony. (870) Defendant argued for the first time on appeal that his Indiana conviction for resisting law enforcement was not a “violent felony” under the Armed Career Criminal Act. Two days before oral argument, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which changed the standard for deciding what a violent felony under the ACCA is. When a new Supreme Court case affects a pending appeal, the sentence may be reviewed for plain error. Accordingly, the Seventh Circuit reviewed for plain error in light of Begay, and found none. Fleeing a law enforcement officer in a vehicle is a violent felony. The Indiana statute specifically provides that the flight must be done “knowingly or intentionally,” so the defendant must make a “purposeful” decision to flee from an officer. Such conduct, when committed with a vehicle, is inherently “aggressive,” even though the Indiana statute does not require that the conduct endanger others. U.S. v. Spells, 537 F.3d 743 (7th Cir. 2008).
7th Circuit reviews Rule 35(b) sentence reduction for violation of law, not for reasonableness. (870) While serving their sentences, defendants provided substantial assistance to the government. The government filed Rule 35(b) motions to reduce their sentences, which the district court granted, reducing one defendant’s sentence from 120 to 102 months, and the second defendant’s sentence from 84 to 72 months. On appeal, defendants argued that the district court failed to properly consider their arguments for greater sentence reductions. An appeal from a Rule 35(b) order is an appeal from an “otherwise final sentence” over which the appellate court has limited jurisdiction. Section 3742 does not grant appellate courts jurisdiction to review a district court’s exercise of its discretion under Rule 35(b). Thus, the Seventh Circuit found that its review of a Rule 35(b) sentence reduction was more limited than its review of an original sentence. The court will examine only whether the reduction was imposed in violation of the law, not whether the new sentence imposed was reasonable. The panel upheld the sentences imposed here. The district court could properly consider defendant’s criminal history and the nature of their crimes. Although the court did not explicitly address all of the arguments defendants raised for a lower sentence, there was no reason to doubt that the district court considered defendants’ arguments. U.S. v. Chapman, 532 F.3d 625 (7th Cir. 2008).
7th Circuit refuses non-guideline sentence for alleged gambling addiction. (870) Defendant embezzled hundreds of thousands of dollars from his employer and did not report the income on his tax return. He requested a below-guideline range sentence based on the purposed link between a claimed gambling addiction and his criminal conduct. He also raised several other grounds for a below-guideline range sentence. The court refused to grant a departure or a variance, and imposed sentences at the low end of the advisory guideline range. The Seventh Circuit held that the sentences were reasonable, rejecting defendant’s claim that the district court failed to give meaningful consideration to his arguments in favor of a below-guideline sentence. The district court found that there was insufficient evidence of a gambling addiction, noting that defendant claimed to have suffered from the addiction for many years without committing any crimes. The court also questioned his claims that his losses from playing the stock market even constituted gambling. The court also rejected defendant’s tenuous claims that he suffered from depression and bipolar disorder. The other “factors” were nothing more than stock arguments that sentencing courts see routinely, such as family ties, overrepresentation of criminal history, and acceptance of responsibility. The court was free to reject these without discussion. U.S. v. Tahzib, 513 F.3d 692 (7th Cir. 2008).
7th Circuit approves upward variance where defendant illegally reentered the country to commit crimes. (870) Defendant was convicted of illegally reentering the country after deportation. His 96-month sentence was 25 months above the high end of his advisory guideline range. Defendant argued that the sentence was unreasonable because it rested upon a clearly erroneous factual finding that defendant knew it was illegal to return to the U.S. The Seventh Circuit affirmed the above-guideline sentence, deferring to the district court’s determination regarding defendant’s lack of credibility on this issue. Further, the court did consider the evidence, namely the I-294 form that defendant presented as the alleged source of his confusion regarding the legality of his return. The panel upheld the district court’s conclusion that the I-294, when read in its entirety, made it clear to defendant that he was not allowed to return to the U.S. without permission. The court also articulated appropriate grounds for the variance. Unlike many other illegal aliens who come to the U.S. to work and support their families, defendant came to the U.S. to commit crimes and take advantage of vulnerable people. The court also believed that defendant would return to the U.S., despite his promise not to, and would again prey on vulnerable members of society. U.S. v. Gordon, 513 F.3d 659 (7th Cir. 2008), abrogation recognized by U.S. v. Bartlett, 567 F.3d 901 (7th Cir. 2009).
7th Circuit upholds guideline sentence for sex offender despite psychologist report. (870) Defendant pled guilty to traveling across state lines to have sex with a minor, and was sentenced to 46 months’ imprisonment, the bottom of the applicable guideline range. Defendant presented testimony of a forensic psychologist who opined that defendant had been driven to commit the crime after years of suffering from low self-esteem and poor body image. The doctor said there was only a 9-13 percent risk that defendant would repeat his crime, and the risk could be reduced by counseling and psychotropic medication. He further opined that prison would be “devastating” for defendant. Defendant’s lawyer noted his parents’ ill health, his cooperation, and his solid record of employment and charitable work. The judge considered these mitigating factors, but did not think they justified a below-guideline sentence. The judge was dismissive of the psychological evidence, noting that preying on minors through the Internet was a “deadly serious problem,” and that the best way to deal with it was to remove individuals from the community for a period of time. The Seventh Circuit affirmed the guideline sentence as reasonable. U.S. v. McIlrath, 512 F.3d 421 (7th Cir. 2008).
7th Circuit says lower court did not presume that it should impose sentence within Sentencing Guideline range. (870) Defendant argued that the district court erroneously presumed that it should impose a sentence within the guidelines range. He pointed to the court’s oral statements at sentencing, such as “that is the consideration of the case, not only under the Guidelines, which are presumptively correct, but also under the statute under 18 U.S.C. § 3553(a)….” The Seventh Circuit found no error. The court’s oral statement did not indicate that the court sentenced defendant under the mistaken belief that a sentence within the guidelines was presumptively correct. The court’s discussion merely characterized the discussion by defense counsel. The court said several times that its views were contained in the written memo and that its oral statements were only a summary. The sentencing memo reflected that the court properly considered the § 3553(a) factors, and did not suggest that it should presumptively impose a guideline sentence. U.S. v. Mendoza, 510 F.3d 749 (7th Cir. 2007).
7th Circuit says sentence 10 years below advisory guideline range is not excessive. (870) Defendant argued that his 20-year sentence for drug charges was “excessive.” The Seventh Circuit disagreed. The district court rejected the PSR’s findings that would have resulted in life in prison. It even varied from the advisory guidelines range requiring 30 years in prison down to 20. Given how central defendant was to a decades-long drug conspiracy, a sentence that was 10 years below the advisory guideline range was not “excessive.” U.S. v. Bailey, 510 F.3d 726 (7th Cir. 2007).
7th Circuit says court gave adequate statement of reasons for sentence. (870) 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 reverses where court did not address need to avoid unwarranted sentencing disparities. (870) Defendant threatened to kill his brother-in-law, who was cooperating with police in a criminal investigation of defendant. Defendant was convicted of threatening physical force with the intent to prevent the testimony of a witness, in violation of 18 U.S.C. § 1512(a). The court sentenced defendant under U.S.S.G. § 2A2.1, Assault with Intent to Commit Murder, Attempted Murder, rejecting defendants claim that it should apply § 2J1.2, Obstruction of Justice (and which the guidelines do not link to § 1512(a) violations). The difference was significant – attempted murder carries a base offense level of 33 while threats of physical injury to obstruct justice carry a base offense level of 22. Defendant challenged his 262-month sentence as unreasonable. The Seventh Circuit found it unnecessary to address the reasonableness issue because the record on appeal did not indicate that the district court considered “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The court gave no indication that it considered the disparity that might arise from defendant’s sentence when it discussed a variance under § 3553(a), even though defendant pointed to the factual dissimilarity between his threat and the applicable guidelines section. This was important where, as here, it appeared that the Sentencing Guidelines might have a scrivener’s error in the Statutory Index due to 2002 changes in the witness tampering statute that were not reflect in the Sentencing Guidelines. U.S. v. England, 507 F.3d 581 (7th Cir. 2007).
7th Circuit remands to permit court to address defendant’s arguments about his mental illness. (870) Defendant pled guilty to one count of bank robbery. He had a history of severe mental illness, and at sentencing, he presented considerable evidence of diminished capacity. He also presented evidence in support of an argument that his criminal history category was overstated, and argued for a below-guideline sentence based on several factors listed in 18 U.S.C. § 3553(a). The district court did not directly address these non-frivolous arguments and sentenced defendant to 50 months of imprisonment, a sentence greater than the government requested. The Seventh Circuit found that remand was required so that the district court could address defendant’s principal, non-frivolous arguments in favor of a lower sentence. The evidence was uncontested that defendant was suffering from delusions and auditory hallucinations at the time he committed the crime. Guideline § 5K2.13 recognizes diminished capacity as a ground for a downward departure. While departures are obsolete in post-Booker sentencing, the district court may apply those departure guidelines by way of analogy in analyzing the § 3553(a) factors. There also was some suggestion in the record that the court considered whether defendant met the legal standard for insanity at the time of the crime. U.S. v. Miranda, 505 F.3d 785 (7th Cir. 2007).
7th Circuit says defendant who challenges revocation sentence must show it is plainly unreasonable. (870) Before the Supreme Court’s decision in Booker, the Seventh Circuit would set aside a sentence imposed after the revocation of supervised release only if it was “plainly” unreasonable. After Booker, five courts of appeals decided that the proper standard was “unreasonable,” see, e.g. U.S. v. Miqbel, 444 F.3d 1173 (9th Cir. 2006)., while two others decided to adhere to “plainly unreasonable.” See, e.g. U.S. v. Crudup, 461 F.3d 433 (4th Cir. 2006). The Seventh Circuit decided to adhere to its earlier position that a revocation can be set aside only it if is “plainly” unreasonable. There is nothing in the logic or language of the Booker majority opinions to suggest that the Court was altering the statutory standard of appellate review of sentencing for violating conditions of supervised release. U.S. v. Kizeart, 505 F.3d 672 (7th Cir. 2007).
7th Circuit says conditions of pretrial confinement were not so egregious as to merit sentencing reduction. (870) Defendant argued that the district ignored his argument that he should receive a shorter sentence to “compensate” for his two-and-one-half-month pretrial stay at a county detention center, where he clamed he was denied care for his toothache, lived in poorly ventilated quarters, and was not able to exercise. The Seventh Circuit found no error, since even if it accepted defendant’s descriptions of the conditions of his confinement as true, the conditions were not unusually harsh. Because defendant’s sentence fell within the guidelines’ recommended range, the appellate court would presume that the sentence was reasonable unless defendant could show that the court did not adequately consider the sentencing factors in 18 U.S.C. § 3553(a). Harsh or unpleasant conditions of pretrial confinement are not among the § 3553(a) factors. While other circuits have found, prior to Booker, that extraordinary conditions of pretrial confinement could justify a downward departure, the conditions involved in those cases were far more severe than the conditions alleged by defendant. The judge here said that he had read defendant’s submission, which was enough to show that he considered defendant’s argument and rejected it. U.S. v. Ramirez-Gutierrez, 503 F.3d 643 (7th Cir. 2007).
7th Circuit finds court erroneously presumed within guidelines sentence was proper. (870) Defendant’s guideline range was 78-97 months, and the district court sentenced him to 78 months. When announcing the sentence, the district court noted that it could not see “any reason why the guideline sentence isn’t appropriate in this case.” The court further stated that “All I can do is accept that we’re dealing with a regime which punishes people very severely for dealing drugs,” and that it had given defendant “the lowest sentence that’s possible ….” Although the court’s language was ambiguous, the Seventh Circuit found that the district court applied a presumption that defendant should be sentenced within the guidelines range. While the court did weigh some § 3553(a) factors, nevertheless, the court told defendant that it could not sentence him below the guideline range unless defendant “presented some kind of good reason” to do so. U.S. v. Ross, 501 F.3d 851 (7th Cir. 2007).
7th Circuit holds court gave inappropriate weight to guidelines. (870) Defendant pled guilty to one count of possession of child pornography, resulting in a guideline range of 63-78 months. The court imposed a sentence of 63 months. The Seventh Circuit held that the district court did not err in refusing to consider the sentence defendant might have received had he been charged with the same crime in state court. Allowing a departure because a defendant might have been subjected to different penalties in state court would make federal sentences dependent on the law of the state in which the sentencing court was located. However, the panel agreed with defendant that, in imposing a guideline sentence, the district court gave too much weight to the guidelines in child pornography cases. The judge emphasized that Congress, by passing the PROTECT Act in 2003, showed an intent to prevent judges from departing from the guidelines in child sex offense cases. The court said that because “Congress has spoken” in this area, favorable evidence offered on defendant’s behalf did not permit the judge to impose a below-guidelines sentence. However, in light of Rita, this approach gave too much weight to the guidelines. The remarks suggested that the judge felt outside constraint on his discretion that he was not free to set aside. U.S. v. Schmitt, 495 F.3d 860 (7th Cir. 2007).
7th Circuit finds sentence within guideline range reasonable. (870) Defendant received a 300-month sentence for his drug conviction. He argued that the sentence was “oppressive,” given his background and his role in the offense. The Seventh Circuit found that the sentence, which fell within the advisory guideline range, was reasonable. The court correctly calculated defendant’s advisory guideline range, considered the § 3553(a) factors, and identified the factors that he was taking into consideration in determining defendant’s sentence. Because the court gave meaningful consideration to the § 3553(a) factors, chose a sentence within a properly calculated guideline range, and explained its reasoning for sentencing defendant to 300 months, the sentence was reasonable. U.S. v. Otero, 495 F.3d 393 (7th Cir. 2007).
7th Circuit finds explanation for guideline sentence adequate. (870) Defendant was responsible for more than 150 kilograms of cocaine, resulting in a total offense level of 40. With a criminal history category of VI, his guideline range was 360 months to life. Defendant argued that his life sentence was unreasonable under the sentencing factors outlined in 18 U.S.C. § 3553 (a). However, the Supreme Court recently approved this circuit’s practice of presuming that a district court’s guidelines sentence is reasonable. Rita v.U.S., 127 S.Ct. 2456 (2007). The Seventh Circuit held that defendant’s guideline sentence was both reasonable and supported by sufficient reasons. Defendant’s circumstances were not so different from other defendants convicted of distributing large amounts of drugs. The court reasonably could have concluded that defendant’s criminal record suggested an individual prone to recidivism and that his involvement and GED and Bible study classes was not significant enough to merit a lower sentence. The fact that a co-conspirator received a much lighter sentence (15 years), did not matter. The court recited each of the § 3553(a) factors and mentioned a few facts that weighed heavily in its decision, including the ramifications that drug selling has on our communities, defendant’s lengthy criminal history, and the seriousness of his offense. The explanation was substantially greater than the one approved in Rita. U.S. v. Bustamante, 493 F.3d 879 (7th Cir. 2007).
7th Circuit finds sentence of one day in prison for child pornography offense unreasonable. (870) Defendant, the 23-year old son of a wealthy couple, was convicted of possessing child pornography. Although his guideline range was 63-78 months, the judge imposed a sentence of one day in prison, followed by 10 years of supervised release. The judge noted that defendant needed treatment, which he could get during a lengthy period of supervised release, but if he went to prison “with the hope that he gets sex offender treatment in prison, we’re pretty much guaranteeing his life will be ruined.” The court also found that the offense was committed “out of boredom and stupidity” and not because defendant had a real problem. The court also thought that sex offender treatment within the Bureau of Prisons was going to “expose him to people who are dangerous to him.” The Seventh Circuit reversed, holding that the sentence of one day in prison was unreasonable. It was unclear why the assertion that defendant committed the offense out of “boredom and stupidity” should be a mitigating factor. This was inconsistent with the 10-year term of supervised release the judge imposed, which included conditions that required defendant to participate in sex offender treatment. The judge’s suggestion that defendant did not have a “real problem” suggested that she disparaged Congress’s decision to criminalize the consumption and distribution of child, and felt that only people who actually molest children, rather than watching them molest children, have a “real problem.” Finally, the judge’s assertion that “sex offender treatment within the Bureau of Prisons is going to expose defendant to people who are dangerous to him” was ill-informed. U.S. v. Goldberg, 491 F.3d 668 (7th Cir. 2007).
7th Circuit upholds refusal to impose below-guideline sentence based on duress. (870) Defendant was convicted of firearms charges, and requested a lower sentence due to coercion and duress. Defendant claimed that he was under duress because his mother was murdered in October 2003 while he was in jail. He also claimed that when he was released from jail in January 2004, he was shot at several times and received death threats. Thus, he asserted that when he was pulled over by police in March 2004, he was wearing body armor and carrying weapons and ammunition because he was in fear for his life. The Seventh Circuit ruled that the district court properly found that his assertion of duress was improbable and did not err in denying his request for a lower sentence on that basis. Jettisoning the weapon (that was supposedly protecting him) while being pursued by police is not an indication of duress, and his evasive conduct was more reasonably attributable to fear of apprehension. Additionally, the police stop occurred five months after defendant’s mother was murdered, and two months after defendant alleged he was shot at and received death threats. The time lapse indicated that defendant was not under a reasonable belief of a current and imminent threat. U.S. v. Burks, 490 F.3d 563 (7th Cir. 2007).
7th Circuit holds that court erred in departing but error was harmless. (870) Defendant was convicted of dealing in firearms without a license. The district court initially imposed a sentence of 56 months, but the Seventh Circuit remanded for resentencing in light of Booker. On remand, the district court determined the applicable advisory guideline range to be 63-78 months. The court then granted defendant’s motion for a downward departure and reduced his criminal history category from IV to III, resulting in an advisory guideline range of 51-63 months. The court imposed a 51-month sentence. The Seventh Circuit held that the court erred in granting a downward departure, but the error was harmless. Under Booker, the proper procedure is for the sentencing judge first to compute the guideline range, and then to apply the sentencing factors in 18 U.S.C. § 3553(a) in order to decide whether the sentence should be inside or outside the range. See U.S. v. Spano, 476 F.3d 476 (7th Cir. 2007). After Booker, departures have become “obsolete.” However, the error was harmless. “It is hard to conceive of below-range sentences that would be unreasonably high.” Defendant’s sentence was an entire year below the low end of the appropriate guideline range. U.S. v. Simmons, 485 F.3d 951 (7th Cir. 2007).
7th Circuit says probation for $1.4 million health care fraud was unreasonable. (870) At defendant’s sentencing for convictions involving extensive health care and tax fraud, the district court calculated defendant’s sentencing range at 24-30 months. If the court had accepted the government’s minimum loss calculation of $1.4 million, defendant’s range would have been 78-97 months. The court imposed a sentence of five years’ probation because of the following factors: defendant, a cardiologist, was an inept businessman, the government had violated Brady, the defendant had spent a great deal of money on his defense, and the prosecution had stigmatized defendant and might cause him to lose his medical license. After concluding that the court should have used a minimum loss calculation of $1.4 million, the Seventh Circuit found the sentence unreasonable. It held that although the stigma and possible loss of license would justify a “limited” reduction in the defendant’s sentence, the amount the defendant spent on attorneys and the alleged government misconduct were irrelevant to defendant’s sentence. U.S. v. Sriram, 482 F.3d 956 (7th Cir. 2007).
7th Circuit finds 360-month sentence for non-violent drug offense reasonable. (870) Prior to sentencing defendant, the district court elicited and considered his written submissions detailing mitigating circumstances that the court should take into account. Defendant’s written submissions included information on his father’s violent death when defendant was five years old, the murder of his step-brother, defendant’s lack of a male role model, his association with “a bad crowd,” and his two children. After hearing arguments from both sides, the court imposed a sentence of 360 months, the low end of the guideline range. The court noted that defendant’s arguments in mitigation did not dissuade it from a guideline sentence because, based on defendant’s history and characteristics, defendant was a recidivist. Although 30 years for a non-violent drug offense was harsh, the Seventh Circuit ruled that it was not unreasonable in light of defendant’s criminal history. U.S. v. Glover, 479 F.3d 511 (7th Cir. 2007).
7th Circuit holds post-sentencing discoveries and events did not merit revisting downward departure. (870) At sentencing, the district court granted defendant a downward departure based on extreme family circumstances, finding that she was irreplaceable to her family. On appeal, the government wanted to supplement the record on appeal with purported evidence that defendant’s mother and sister possessed valid driver’s licenses. The district court had found that defendant was the only member of her household with a valid driver’s license. In addition, four months after sentencing, defendant’s father died. The departure was intended to permit defendant to help with around-the-clock care for her father. The Seventh Circuit held that neither of these post-sentencing discoveries or events warranted reversal of the one-day sentence imposed. Even if defendant’s mother and sister did possess driver’s licenses at the time of sentencing, it did not establish that the court’s finding that defendant was “irreplaceable” was an abuse of discretion. The death of defendant’s father was also not grounds to reverse the departure. A defendant has a legitimate expectation of finality in his sentence, unless he is or should be aware at sentencing that the sentence may permissibly be increased. The court never mentioned that a change in family circumstances might result in an increased sentence. If defendant’s family situation had become worse, the appellate court would not have permitted her to argue for a further reduced sentence. U.S. v. Husein, 478 F.3d 318 (6th Cir. 2007).
7th Circuit holds defendant’s status as deportable alien did not make guidelines sentence unreasonable. (870) Defendant argued that his status as an alien who would be deported immediately following his release from prison warranted a below-guideline sentence, since it precluded him from receiving an early release to a halfway house and otherwise affected the programs and services available to him while in prison. Prior to U.S. v. Booker, 543 U.S. 220 (2005), the Seventh Circuit held that these differences never justified a sentence below the guidelines. Defendant argued that he was entitled to a reduction to avoid unwarranted disparities between the effective punishment meted out to citizens and the punishment of aliens. See 18 U.S.C. § 3553(a)(6). The Seventh Circuit held that the district court’s failure to reduce defendant’s sentence based on his status as an alien did not make the sentence unreasonable. Sentences within the guideline range are “the surest way to comply with § 3553(a)(6) for the guidelines are designed to ensure like treatment of like situations, and thus to avoid unwarranted disparities.” A sentence within a properly calculated guideline range is not unreasonable by reference to § 3553(a)(6). See U.S. v. Boscarino, 437 F.3d 634 (7th Cir. 2006). U.S. v. Babul, 476 F.3d 498 (7th Cir. 2007).
7th Circuit approves variance well below guideline range based on defendant’s rehabilitation. (870) Defendant pled guilty to importing heroin into the U.S. The district court sentenced her to 84 months, well below the guideline range of 188-235 months’ imprisonment. The variance was based on defendant’s rehabilitation efforts, as evidenced by her certificates of achievement while incarcerated, her shame, as reflected by a letter from a fellow inmate and defendant’s own letter to the district court, and her good character, to which her friends and family attested. The government argued that defendant lied to federal agents about her knowledge of the scheme to import heroin from Kenya, and that commonplace opinions from family members and friends cannot be the basis for a downward deviation. The Seventh Circuit nonetheless affirmed the variance. Since defendant was almost certain to be deported following her release, she would be incapacitated from further drug importation to the U.S. The court did not clearly err in finding that defendant had demonstrated a commitment to reform with her words and actions. The court credited her statements of repentance, and she had already obtained numerous certificates of achievement by taking nearly every offered class at the correctional center. Although the court accepted that defendant had coordinated the smuggling, this finding was not inconsistent with its decision to give her a sentence below the recommended guideline range. U.S. v. Ngatia, 477 F.3d 496 (7th Cir. 2007).
7th Circuit holds that failure to discuss departure request was harmless where no evidence of coercion. (870) Defendant was a member of a gang that trafficked in cocaine in and around a Wisconsin Indian reservation. Defendant ran powder and crack cocaine from Milwaukee to the reservation for resale, and served as secretary for the gang at the reservation. She argued that the judge should have lowered her sentence on the basis of coercion and duress. At sentencing, the court did not mention her argument on this point, and did not depart. The Seventh Circuit found any error by the court in failing to discuss the argument was at worst a harmless error since the claim was not valid. Defendant’s point about coercion was weak in light of all the evidence that she willingly participated in the drug conspiracy. She was not a bit player in the gang, but rather worked as an officer with substantial responsibility. Her participation was not limited to a few acts but rather took place, uninterrupted, over a period of years. She continued to work even after her husband, the alleged manipulator, was imprisoned. She provided no real evidence of coercion outside of her own self-serving testimony. U.S. v. Acosta, 474 F.3d 999 (7th Cir. 2007).
7th Circuit holds that judge understood discretion to impose non-guideline sentence. (870) Defendant argued that the district court did not understand the advisory nature of the guidelines, and improperly disregarded defendant’s appeal for judicial clemency on behalf of his son. He noted that the judge imposed a sentence at the bottom end of the guideline range. The Seventh Circuit found no error. The court followed the procedures outlined in U.S. v. Rodriguez-Alvarez, 425 F.3d 1041 (7th Cir. 2005) for imposing a sentence post-Booker. Defendant’s relationship with his son was discussed extensively at the hearing. The judge considered defendant’s relationship with his son in calculating his sentence and imposed a sentence at the low end of the guideline range. In response to defendant’s claim that his sentence should be even shorter, the judge indicated that even if she reduced his sentence, she would not be sending defendant home to his son. This indicated that the judge understood that she had the authority to impose a sentence lower than the minimum guideline sentence. The panel had no doubt that the judge understood her discretion to take the full range of § 3553(a) factors into account. U.S. v. Stitman, 472 F.3d 983 (7th Cir. 2007).
7th Circuit approves 77-month sentence where five teens died after overdosing on medicine sold by defendant’s company. (870) Over a four-month period, defendant’s company made hundreds of sales of dextromethorphan hydrobromide (DXM), a cough suppressant found in over-the-counter medicines, but also consumed recreationally as an intoxicant. In high doses, it can be fatal. It is not a controlled substance under Title 21 of the Criminal Code, but it is regulated by the Food and Drug Administration, which requires that it be accurately labeled according to its intended use. Five of defendant’s customers, all teenage boys, died from consuming the DXM. Defendant pled guilty to three counts of introducing a misbranded drug into interstate commerce, in violation of 21 U.S.C. § 331(a). The judge sentenced defendant to consecutive prison terms totaling 77 months, which was 61 months above the top of the applicable guideline range, although below the statutory maximum of 108 months. The judge considered the lethal consequences of defendant’s acts, plus the recklessness demonstrated by the fact that he continued to sell the misbranded product after learning that two of his customers had overdosed and died. The Seventh Circuit held that the sentence was not unreasonable. Defendant arguments in favor of a lighter sentence “mock[ed] the gravity of his conduct,” and some were “in poor taste.” U.S. v. Johnson, 471 F.3d 764 (7th Cir. 2006).
7th Circuit holds that court’s overemphasis on restitution and unspecified charitable works resulted in unreasonable sentence. (870) Defendant, the president of a federally insured bank, used his position to misappropriate bank funds for himself and his friend. Despite an advisory range of 41-51 months’ imprisonment, and the prosecutor’s recommendation of 24 months (in its § 5K1.1 motion), the district court sentenced him to just one day in prison, three years’ supervised release, and a $100,000 fine. The court found that there was no need to protect the public from defendant, that defendant had done unspecified “good works,” and there was no need to rehabilitate him or deter him from committing future crimes. Moreover, because the crime was money-motivated, the court thought that just punishment for defendant would be to hit him in the pocketbook. The Seventh Circuit reversed. First, the court did not explain why it granted the § 5K1.1 motion or how much of the reduced sentence was attributable to defendant’s substantial assistance as opposed to the other factors cited by the court. Second, although the court sufficiently considered the § 3553(a) factors, the court’s consideration of these factors resulted in an unreasonable sentence. Charitable works must be exceptional before they will support a more-lenient sentence – it is not unusual to find white collar defendants who are high-ranking executives involved as a leader in community charities and civic organizations. In addition, the amount of restitution defendant actually paid under the complex settlement agreement was unclear. The repayment of stolen funds figures into the adjustment for acceptance of responsibility, but only extraordinary efforts to make restitution support a reduced sentence. U.S. v. Repking, 467 F.3d 1091 (7th Cir. 2006).
7th Circuit says that de facto life sentence for drug offender was not unreasonable. (870) Defendant, 58 years old, was sentenced to 262 months in prison for his role in a conspiracy to manufacture methamphetamine. The sentence fell at the top of the advisory guideline range. The Seventh Circuit rejected defendant’s sentence that the sentence was unreasonably long, even though defendant would most likely die in prison. Defendant suffered from diabetes, and was already experiencing disturbing complications from the disease. While the probability that a convict will not live out his sentence should give pause to a sentencing court, it was not sufficient to require a below-guideline sentence. Under the mandatory guidelines, such a departure would be a discouraged ground, and even now, a below guideline sentence must be supported by “a very good explanation” rooted in the circumstances of the case. A guideline sentence is presumptively reasonable. U.S. v. Wurzinger, 467 F.3d 649 (6th Cir. 2006).
7th Circuit holds that refusal to impose below-guideline sentence based on cultural assimilation and lack of fast-track program did not make sentence unreasonable. (870) Defendant pled guilty to being in the U.S. after being deported following a conviction for an aggravated felony. The district court sentenced him to 57 months, refusing to award defendant a below guideline range sentence on the basis of his cultural assimilation or the lack of a fast-track program in the North District of Illinois. The Seventh Circuit held that the court’s refusal to impose a sentence below the guideline range did not make the sentence unreasonable. The district court found no basis for any lesser harm or cultural assimilation in defendant’s background that would be sufficient to overcome his very serious criminal history. This decision was within the court’s discretion. The absence of a fast-track program did not make his sentence unreasonable. See U.S. v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006), abrogation recognized by U.S. v. Ramirez, 652 F.3d 751 (7th Cir. 2011). U.S. v. Roche-Martinez, 467 F.3d 591 (7th Cir. 2006).
7th Circuit holds that above-guideline sentence for 58-year old diabetic was not unreasonable. (870) Defendant pled guilty to being a felon in possession of a firearm. The guideline range for his offense was 188-235 months, but the district court imposed a sentence of 264 months, citing his frightening criminal history, which included multiple rapes, kidnappings, and armed robberies. Defendant argued that the sentence was unreasonably long, noting that his age (58) and his diabetic condition meant the sentence amounted to a life sentence. The Seventh Circuit held that the sentence was not unreasonable. While age may be a reason to depart downward where the defendant is elderly and infirm, § 2H1.1, defendant was not yet elderly or infirm, or for any other reason harmless. Moreover, the panel challenged defendant’s claimed life expectancy of 64, finding that even with his diabetes it was 76.5. Finally, even if the tendency to commit crimes diminishes with age, given defendant’s unusually violent criminal history, the judge could certainly worry about what defendant might do in his seventies. U.S. v. Bullion, 466 F.3d 574 (7th Cir. 2006).
7th Circuit upholds guideline career offender sentence for “walk-away” escape from halfway house. (870) Defendant escaped from a Salvation Army halfway house. Within 24 hours of the escape, he realized the error of his decision and voluntarily returned to the facility. He pled guilty without a plea agreement, and the district court found that he was a career offender, and sentenced him to 37 months. The Seventh Circuit affirmed the sentence as reasonable. Although defendant argued that the judge failed to consider the circumstances of his escape under § 3553 (a)(1), the judge’s statement on the consequences of defendant’s escape was more than adequate. Further, the court provided ample opportunity for defendant to direct its attention to factors contained in § 3553(a) that possibly warranted a sentence different than that suggested by the guidelines. The court heard defendant’s argument that the escape was a simple mistake, and that what he needed was drug treatment, not imprisonment. The court explicitly rejected this plea, reasoning that, given defendant’s criminal record and the strong policy expressed in the guidelines, the 37-46 month sentencing range was appropriate. U.S. v. Rivera, 463 F.3d 598 (7th Cir. 2006).
7th Circuit upholds career offender sentence for marijuana defendant. (870) Defendant was convicted of conspiracy to possess with intent to distribute 100 kilograms of marijuana. The district court found that he was a career offender with a guideline range of 262-327 months, and imposed a sentence of 276 months. He argued that the sentence was unreasonably long because his previous offenses were nonviolent and involved only marijuana, rather than a more dangerous drug, because he provided substantial assistance to the government, because he would be in his late sixties when he would be released from prison, and because he claimed he was coerced into committing the offense by his partners from a previous drug enterprise, to whom he owed $500,000. The Seventh Circuit found that these were “exceedingly poor reasons for questioning the reasonableness” of defendant’s sentence. Defendant was quarreling with Congress’s judgment that nonviolent offenses involving marijuana are serious crimes. Defendant committed the offense less than two months after being released from prison for a major drug offense in which he received a substantial assistance reduction. It was predictable that if he received a similar discount here he would be back in the drug business as soon as he completed his sentence. His debt to his previous partners was based on the disruption of the drug dealings by his arrest. U.S. v. Gonzalez, 462 F.3d 754 (7th Cir. 2006).
7th Circuit holds that guideline sentence was reasonable. (870) Defendant argued that the district court erred in failing to grant him a downward departure in his prison sentence based on his diminished capacity or mental status. The Seventh Circuit noted that the concept of “departures” was outmoded; it now reviews a district court’s sentencing decision for unreasonableness. U.S. v. Wallace, 458 F.3d 606 (7th Cir. 2006). When a sentence falls outside of the guideline range, it is incumbent upon the district court to provide a sound justification according to the § 3553(a) factors. The 21-month sentence imposed here fell within the 15-24 month sentencing range. Defendant’s claim that the court should have adjusted his sentence for his diminished capacity made no citation to the record, and ignored the full rehearing of both parties’ expert medical testimony. In holding that there was no basis for grant a sentence below the guidelines, the district court reflected on the personal success of defendant’s orthodontic practice and the impact his fraud had on the taxpayers of the state of Illinois and the federal government. Defendant’s 21-month sentence was not unreasonable. U.S. v. Rinaldi, 461 F.3d 922 (7th Cir. 2006).
7th Circuit holds that statutory maximum fine was reasonable where defendant’s obstruction obscured extent of fraud offense. (870) Defendant, an orthodontist, was convicted of mail fraud and obstruction of justice based on fraudulent claims he submitted to state and federal authorities for services rendered to wards of the state of Illinois. The obstruction count was based on his destruction of case files and documents that had been subpoenaed in the case. The suggested guideline fine was $4,000-$40,000, § 5E1.2(c)(3). However, the district court imposed the statutory maximum of $250,000 per offense, or $500,000. The Seventh Circuit held that the statutory maximum fine was not unreasonable. The court found that defendant had bilked the taxpayers “out of a tremendous amount of money,” and that the doubt regarding the extent of the fraud existed in part because of defendant’s actions. The court was concerned that defendant may have benefited from the obstruction, noting that he was “well-to-do” with a net worth of $2.3 million. The court further found that a fine within the guideline range “would not adequately reflect the seriousness of the offense or provide just punishment for the offense.” The judge noted that the offense was non-violent, and chose not to increase the term of imprisonment, but opted instead to increase the fine, “punishing the perpetrator with a correlate of his own crime.” U.S. v. Rinaldi, 461 F.3d 922 (7th Cir. 2006).
7th Circuit upholds departure based on analogy to career offender guideline. (870) Defendant argued that the district court incorrectly characterized him as a career offender. The Seventh Circuit found no error. The district court never stated that defendant met the requirements for sentencing under the career criminal guidelines, nor did it impose defendant’s sentence using that guideline. Instead, the court took note of defendant’s lengthy criminal history, his propensity to commit crimes while on probation and supervised release, and the criminal activity that was not reflected in his criminal history. It then stated, “under all of these circumstances, in my opinion, I believe this man is a career offender. I believe the law gives me the discretion to consider him as [a] career offender, that his – that the totality of these circumstances fall completely outside the heartland for the bank robbery guidelines that we have talked about ….” If defendant were sentenced as a career offender, his guideline sentence would be 151 months, but the court reduced that sentence to 139 months. Thus, the district court did not make a mistake of fact as to the nature of defendant’s prior convictions, not did it determine as a matter of law that defendant was a career offender. U.S. v. Valle, 458 F.3d 652 (7th Cir. 2006).
7th Circuit finds above-guideline sentence reasonable for “committed” recidivist. (870) Defendant was sentenced to 163 months’ imprisonment for bank robbery and violation of his supervised release. The sentence exceeded the guideline range of 63-78 months. The Seventh Circuit held that the sentence was reasonable, when measured against the 18 U.S.C. § 33553(a) factors. The district court found that the robbery and revocation were only the most recent in a long line of serious crimes that defendant had undertaken during his adult life. The court believed that defendant was “committed to violating the law with impunity, including the commission of the present bank robbery while on supervised release for the earlier conviction in California for bank robbery.” Addition, based on defendant’s history and recidivism, he would “almost certainly continue to commit bank robberies once released from custody in this case.” Thus, a lengthy sentence was necessary to protect the public from this criminal activity. U.S. v. Valle, 458 F.3d 652 (7th Cir. 2006).
7th Circuit rejects extraordinary variance from 24-30 month range to probation. (870) Defendant, who worked in the stock department of Merrill Lynch, abused his position to record fictitious trades of more than $600,000 to his personal account. Although his guideline range was 24-30 months, the district court imposed a sentence of three years’ probation. The court cited defendant’s difficult childhood, psychological problems, his exemplary life up until his offense, his gambling addiction, and his participation in a Gambler Anonymous program. The Seventh Circuit held that the district court did not offer a sufficient explanation to justify such an extraordinary variance. Under U.S. v. Dean, 414 F.3d 725 (7th Cir. 2006), the farther a sentence departs for the guideline sentence, the more compelling the justification based on factors in § 3553(a) the judge must offer. The court needed to offer a much more thorough explanation of his choice of sentence. U.S. v. Wallace, 458 F.3d 606 (7th Cir. 2006).
7th Circuit affirms guideline sentences after Paladino remand. (870) Following a limited remand under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2006), the sentencing judge indicated that he would have imposed the same sentences had he known the guidelines were advisory. The Seventh Circuit affirmed the sentences because it was unpersuaded by the defendants’ arguments that the judge failed to exercise his discretion, and the sentences were reasonable. A fair reading of the judge’s response made clear that he reviewed each defendant’s sentence again “in light of all of the § 3553(a) factors,” and he explained for each individual defendant why he believed the guidelines sentence was appropriate. The sentences, which fell within the properly calculated guideline range, were presumptively reasonable. None of the defendants rebutted this presumption by demonstrating that their sentence were unreasonable when measured against the factors set forth in § 3553(a). U.S. v. Spano, 447 F.3d 517 (7th Cir. 2006).
7th Circuit looks at current version of § 2G2.2 to determine that upward departure was reasonable. (870) Defendant pled guilty to three child pornography charges. The district court, finding the images the most shocking he had seen in 16 years, departed upward from a range of 70 to 87 months to a sentence of 236 months. The judge (1) added the equivalent of four levels to account for defendant’s possession of 42 images of children engaged in bestiality; (5) added the equivalent of five levels for the number of images in defendant’s possession (4,638); and (3) increased defendant’s criminal history category from I to II to account for additional uncharged criminal conduct. The Seventh Circuit affirmed. “[A]fter Booker, what is at stake is the reasonableness of the sentence, not the correctness of the ‘departures’ as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory.” Although defendant’s sentence was substantially longer than the guidelines range under § 2G2.2 as it existed when he committed his crimes, § 2G2.2 has since been amended twice to increase the punishment for trafficking in child pornography. Viewing the current version of § 2G2.2 as one benchmark to gauge the reasonableness of defendant’s sentence, the 236-month sentence defendant received would fall within the advisory range instead of substantially above it, and thus would be presumptively reasonable. Given the reasons for departure, a sentence of this length was amply justified. U.S. v. Johnson, 427 F.3d 423 (7th Cir. 2005).
7th Circuit looks to pre-Booker law by analogy to examine reasonableness of sentence well above advisory range. (870) Defendant pled guilty to being in the U.S. after deportation. The district court imposed a sentence of 48 months, well above the upper end of his advisory guideline range of 15-21 months. To evaluate the reasonableness of the sentence, the Seventh Circuit looked to pre-Booker law by analogy. If the appeal had been decided pre-Booker, the panel would have found that the 48-month sentence was not adequately tied to the structure of the guidelines. However, under post-Booker, all that is necessary to sustain a sentence above the guideline range is “an adequate statement of the judge’s reasons consistent with § 3553(a) for thinking the sentence he has selected in indeed appropriate for the particular defendant.” The district court could not meet this standard. The court mentioned only defendant’s criminal history. However, the analogy to § 4A1.3 did not fully explain the 48-month sentence. Because the sentence was more than double the high end of the guideline range, the court’s explanation was not sufficiently compelling. U.S. v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005).
7th Circuit holds that 57-month guideline sentences for firearms offenses were reasonable. (870) Defendant was convicted of possessing an unregistered short-barreled rifle and possessing a firearm with an obliterated serial number. The Seventh Circuit ordered a limited remand to the district court for proceedings consistent with U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005). The district judge issued an order advising the court that he would have imposed an identical sentence had he known that the Sentencing Guidelines were advisory. The Seventh Circuit affirmed the concurrent 57-months as reasonable. The sentences fell within the properly calculated guideline range and thus were presumptively reasonable, a presumption that defendant did not attempt to rebut. Moreover, defendant’s sentences lay in the middle of the proper guideline range, and reflected the court’s consideration of a number of the factors in 18 U.S.C. § 3553(a), including defendant’s four prior convictions, the fact he was on probation at the time of the offense, and his failure to accept responsibility. U.S. v. Hite, 425 F.3d 365 (7th Cir. 2005).
7th Circuit says sentence within properly calculated guideline range has rebuttable presumption of reasonableness. (870) Defendant was convicted of drug charges, and was sentenced under the then-mandatory guidelines to 150 months in prison. The Seventh Circuit affirmed defendant’s conviction in April 2005, but ordered a limited remand under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005) to the district court to see whether it was inclined to change the sentence now that it was clear that the Sentencing Guidelines are advisory only. The district court advised the appellate court that it would not change the sentence imposed. The Seventh Circuit ruled that the sentence was reasonable, holding that any sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness. U.S. v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).
7th Circuit says sentencing judge not required to expressly discuss all § 3553(a) factors. (870) Defendant was entitled to be resentenced in accordance with U.S. v. Booker, 543 U.S. 220 (2005). He argued that at resentencing, the judge was required to make an explicit, articulated analysis of all of the sentencing factors mentioned in § 3553(a), whether or not he invoked them. The Seventh Circuit disagreed. The judge can discuss the application of the statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge’s reasons, consistent with § 3553(a), for choosing a particular sentence. Judges “need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” The farther the judge’s sentence departs from the guidelines sentence, the more compelling the justification based on § 3553(a) factors the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed. U.S. v. Dean, 414 F.3d 725 (7th Cir. 2005).
7th Circuit employs three-part test to review guideline departures. (870) The Seventh Circuit uses a three-part test to review departures based on criminal history. See U.S. v. Duncan, 230 F.3d 980, 986 (7th Cir. 2000). First, the court reviews de novo whether the district court articulated adequate grounds for the departure. Second, it examines the facts cited by the district court in support of the departure, ensuring that such facts actually exist in the record. This review is for clear error. Finally, the court determines whether the degree of the district court’s departure is “linked to the structure of the sentencing guidelines.” This aspect of the court’s departure is reviewed “deferentially.” Applying the test here, the Seventh Circuit upheld a two-level upward departure based on (1) defendant’s 19 criminal history points, (2) a number of pending charges not used to calculate his offense level, and (3) the fact that he had “made a full time career of defrauding individuals and financial institutions.” U.S. v. Peterson, 256 F.3d 612 (7th Cir. 2001).
7th Circuit reviews for clear error even though sentencing judge did not preside at trial. (870) The original sentencing judge, who also presided at trial, denied defendant a minor role reduction. The Seventh Circuit remanded for reconsideration of this issue because the record was unclear. Because the original sentencing judge had retired, the case was reassigned to a new judge who held a resentencing hearing, and denied defendant the reduction. Defendant argued that because the judge did not preside at trial, his sentence was not entitled to deference under the clearly erroneous standard. The Seventh Circuit disagreed, holding that the factual determinations of a duly assigned successor judge are to be reviewed under the same standard as that of the original trial judge. Any other holding would disrupt the administration of justice. Here, the new judge reviewed the PSR, the relevant sections of the record, the appellate decision, and the sentencing memoranda submitted by counsel. Moreover, he had the opportunity to evaluate defendant’s credibility, including his statements at the sentencing hearing. U.S. v. Soto, 48 F.3d 1415 (7th Cir. 1995).
7th Circuit holds that perjury findings satisfied Dunnigan. (870) Defendant argued that the district court improperly relied on the testimony of unreliable government witnesses to determine that he committed perjury and to enhance his sentence for obstruction of justice. The Seventh Circuit approved the obstruction enhancement, since the perjury findings satisfied U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). The district court made a specific finding that defendant had committed perjury at trial. The finding was supported by the record, since defendant’s version of the facts was contradicted by the government witnesses’ testimony. The government’s testimony was corroborated by fingerprint evidence, hand-writing exemplars and tape recordings. Defendant’s false testimony was material because it bore directly on the extent of his involvement in the conspiracy. An appellate court will not “second guess” a trial judge’s assessment of the reliability and credibility of witnesses. U.S. v. Dillard, 43 F.3d 299 (7th Cir. 1994).
7th Circuit upholds decision not to impose leadership enhancement. (870) The government argued that the district court improperly refused to impose a four level § 3B1.1(a) enhancement after finding that defendant was a leader or organizer. The court imposed a three level § 3B1.1(b) enhancement. The 7th Circuit concluded that the district court did not make a definitive finding that defendant controlled the requisite number of participants to qualify as a leader. Rather, the statements were “a careful weighing of two competing views of the evidence.” After acknowledging that there might be sufficient evidentiary support for finding defendant was an organizer or leader, the district court chose to view the evidence in defendant’s favor. The choice between two permissible views of the evidence cannot be clearly erroneous. U.S. v. Sax, 39 F.3d 1380 (7th Cir. 1994).
7th Circuit rejects government’s post hoc justification for scope of departure. (870) The district court departed from criminal history category I to III because defendant continued his extortionate collection of loans while incarcerated pending trial. Though finding the grounds for departure adequate, the 7th Circuit disapproved the district court’s failure to explain why defendant’s history more closely resembled those of defendants in category III than those of defendants in category I. The court refused to consider the government’s argument that defendant’s conduct should be analogized to the commission of an additional offense for which he would have been sentenced in excess of one year, resulting in three additional criminal history points and moving defendant into category III. It would be improper to consider this without evidence that the district court had actually relied on that basis. U.S. v. Tai, 994 F.2d 1204 (7th Cir. 1993).
7th Circuit reviews de novo whether tax loss should be based on previously assessed tax deficiency or value of hidden assets. (870) The 7th Circuit found that it was a question of law whether the amount of tax loss under guideline section 2T1.1 and 2T1.3 should be based on the amount of defendant’s previously assessed tax deficiency or the value of assets she hid from the IRS. Thus, the district court’s determination was reviewed de novo. U.S. v. Brimberry, 961 F.2d 1286 (7th Cir. 1992).
7th Circuit reviews criminal livelihood determination under clearly erroneous standard. (870) The 7th Circuit found that whether defendant engaged in illegal gambling as a criminal livelihood is a finding of fact. Therefore, it would accept a district court’s finding on appeal unless it was clearly erroneous. U.S. v. Rosengard, 949 F.2d 905 (7th Cir. 1991).
7th Circuit reviews sentence for plain error where defendant failed to raise issues below. (870) Defendant contended for the first time on appeal that his sentencing proceeding violated due process. The 7th Circuit found that since defendant did not preserve the issue by presenting a proper objection below, the district court’s ruling may be reversed only if “plain error” was committed. U.S. v. Blythe, 944 F.2d 356 (7th Cir. 1991).
7th Circuit rules district court may not rely solely upon guilty verdict to determine that defendant testified falsely. (870) Defendant testified at his trial that he had never handed drugs to a co-conspirator for delivery to an undercover government agent. The jury found defendant guilty of several drug-related counts. The district court enhanced defendant’s sentence for obstruction of justice, based entirely upon the jury’s verdict. Reviewing the matter de novo, the 7th Circuit found that a district judge may not rely entirely upon a jury’s guilty verdict to determine that a defendant obstructed justice by testifying falsely. The district court, “based upon its own observations of [defendant’s] testimony and other evidence, must independently determine whether the defendant lied on the witness stand. Imposing the penalty automatically from a jury verdict that concededly does not establish the defendant lied in his testimony impinges upon the right to testify in one’s behalf.” U.S. v. Lozoya-Morales, 931 F.2d 1216 (7th Cir. 1991), abrogation on other grounds recognized by U.S. v. Buchannan, 115 F.3d 445 (7th Cir. 1997).
7th Circuit reviews “special skill” determination under two-part analysis. (870) Defendant challenged an enhancement under guideline § 3B1.3 for use of a special skill. The 7th Circuit found it should review the enhancement under a two-part analysis. The district court’s factual findings are reviewed for clear error, and the legal meaning of the term “special skill” is determined de novo. U.S. v. Hubbard, 929 F.2d 307 (7th Cir. 1991).
7th Circuit holds calculation of loss is factual determination subject to clearly erroneous standard of review. (870) Defendant made false claims of travel and moving expenses to the Army. On appeal, he challenged the district court’s calculation of loss under guideline § 2F1.1, contending that the amount of loss was $9,635.38, rather than $10,780.35. The 7th Circuit upheld the district court’s calculation, finding that the calculation of loss was a factual determination subject to clearly erroneous review. Defendant had the opportunity at the sentencing hearing to offer an alternative method of calculating the loss, but appeared to agree with the judge’s calculation. He cannot, on appeal, offer new facts to show that the district court’s calculation was incorrect. U.S. v. Haddon, 927 F.2d 942 (7th Cir. 1991).
7th Circuit defines “clearly erroneous” standard of review. (870) Quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985), the 7th Circuit ruled that “[w]here there are two permissible views of the evidence, the fact finders choice between them cannot be clearly erroneous.” Thus, “if the most that [defendant] can show is that the record permits more than one conclusion .ÿ.ÿ. there is not clear error.” The court found no clear error here. U.S. v. Brick, 905 F.2d 1092 (7th Cir. 1990).
7th Circuit holds that adjustment for “restraint of victim” in kidnapping case was not plain error. (870) Defendant argued that it was improper to apply a two level increase for restraint of the victim under § 3A1.3 in a kidnapping case. However, he failed to raise the issue in the district court, so the 7th Circuit applied the “plain error” standard. Ruling that a “colorable” argument could be made that the “restraint of the victim” adjustment could apply in a kidnapping case, the 7th Circuit held that the district court’s application of the adjustment in this case was neither “conspicuous error” nor “palpably wrong.” U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
7th Circuit defines the “clearly erroneous standard.” (870) The 7th Circuit held that a district court’s factual findings in determining an appropriate criminal sentence are reviewed for “clear error.” 18 U.S.C. § 3742(e). The court stated that this meant that it would “affirm the district court if it correctly applied the guidelines to findings of fact that do not leave us with a definite and firm conviction that a mistake has been committed.” U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
8th Circuit says Gall does not apply retroactively to final convictions. (870) In Gall v. U.S., 552 U.S. 38 (2007), the Court set the standard of review that a court of appeals must apply in reviewing the sentence imposed by the district court. Defendant, whose conviction became final before the Court decided Gall, argued that the decision should apply retroactively to convictions that were final on the date it was issued. The Eighth Circuit rejected this argument, finding that Gall was not an interpretation of 18 U.S.C. § 3553 that would have applied to all cases, and that it did not apply retroactively to already-final convictions. U.S. v. Hodge, 602 F.3d 935 (8th Cir. 2010).
8th Circuit defers to district court’s finding that witnesses were credible. (870) Based on testimony by Baker and Townsend, the district court found that defendant was responsible for over 1.5 kilograms of cocaine base. Defendant contended that Baker was unreliable because he wrongly testified that he had no prior criminal convictions and that defendant claimed to have sold a quantity of crack that would have made him extremely wealthy, which he was not at the time of his arrest. Defendant argued that Townsend was regularly using marijuana when he testified and that Townsend claimed to have received drugs from defendant during the time that defendant was incarcerated. The Eighth Circuit held that the district court did not err in basing its drug quantity finding on the testimony of Baker and Townsend. The district court found that there was “some credibility in the testimony of Baker and Townsend” with regard to drug quantity. The finder of fact may accept the parts of a witness’s testimony that it finds credible while rejecting any portion it finds implausible or unreliable. Findings about the credibility of witnesses are virtually unreviewable on appeal. U.S. v. Boyce, 564 F.3d 911 (8th Cir. 2009).
8th Circuit says court gave proper weight to § 3553(a) factors in imposing within-guideline sentence. (870) Defendant’s advisory guideline range was 100-125 months; the district court sentenced him to 100 months. Defendant argued that his sentence was unreasonable because the court failed to consider several facts in calculating his sentence, including the fact that he had an overly strict father, his parents divorced when he was 15, he was a bright, intelligent and engaged child, he has two minor children, he obtained his GED and took business classes at the community college, and he worked as a drug counselor. The Eighth Circuit ruled that the guideline sentence was reasonable. Defendant raised these facts in his sentencing memo, and the district court considered each § 3553(a) factor. While some of these facts were commendable and some were unfortunate, the district court did not fail to give them proper weight. U.S. v. Banks, __ F.3d __ (8th Cir. Jan. 9, 2008) No. 06-3593.
8th Circuit affirms despite error in treating Guideline sentence as presumptively reasonable. (870) Defendant argued that the district court erred by interpreting the law to require that it impose a “reasonable” sentence and by presuming reasonable a sentence within the advisory Guidelines range. Since the time of defendant’s sentence, the Supreme Court issued Rita, Gall and Kimbrough, which made it clear that this approach was incorrect. However, defendant did not object below; therefore, the Eighth Circuit reviewed for plain error and found none. To show plain error, the defendant must show prejudice as a result of the error – there must be a reasonable probability that the district court would have imposed a lesser sentence but for the error. Thus, defendant was required to produce evidence that the district court might have imposed a more favorable sentence except for the application of the erroneous presumption. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc). There was no such evidence here. Nothing showed that the judge felt constrained by the presumption, and it expressly noted that the facts of the case did not warrant a sentence at the top nor at the bottom of the Guidelines, but one in the middle. U.S. v. Marston, 517 F.3d 996 (8th Cir. 2008).
8th Circuit says increased sentence was reasonable regardless of whether a variance or a departure. (870) Defendant’s recommended guideline range for his attempted robbery was 37-46 months. Without indicating whether it was granting a guideline-based departure or a post-Booker variance pursuant to § 3553(a), the district court imposed a 72-month sentence. The court noted that defendant had committed the same crime within five months of his release from a prior sentence for bank robbery despite his unusually supportive family and the impending arrival of a new child. The Eighth Circuit ruled that the sentence was procedurally sound and substantively reasonable. The court acknowledged that the guideline range already accounted for the prior bank robbery “to an extent” but explicitly concluded that the additional five months resulting from the criminal history calculations alone did not adequately reflect the seriousness of defendant’s conduct. The court appropriately considered the relevant factors of § 3553(a) and noted additional facts relevant to the nature and circumstances of the offense and defendant’s history and characteristics. U.S. v. Washington, 515 F.3d 861 (8th Cir. 2008).
8th Circuit says Booker does not allow sentence below mandatory minimum, absent substantial assistance. (870) Defendant faced a mandatory life sentence on the two drug counts and a mandatory consecutive 60-month sentence on a gun count. The government made a substantial assistance motion under § 5K1.1 and 18 U.S.C. § 3553(e) on the drug counts, which the trial court granted. However, the government refused to make a substantial assistance motion on the gun count, stating that this was based on “a determination of her overall assistance.” Defendant asked the court to compel the government to make the motion on the gun count, and the court found that the government in bad faith tried to limit the court’s sentencing discretion. The court also imposed two alternative sentences, granting downward Booker variances from the mandatory minimum, in the event that the appellate court reversed the compelled substantial assistance motion. The Eighth Circuit reversed all three possible bases for the 186-month sentence. As to the compelled motion for a substantial assistance departure, the government’s reason for not making the motion on the gun count fit within the permissible bounds of prosecutorial discretion because the decision was based on defendant’s overall assistance. As for the Booker variances, Booker does not allow a variance below the statutory minimum. A reduction below the statutory minimum must be based exclusively on assistance-related considerations, and cannot be based on § 3553(a) factors. U.S. v. Freemont, 513 F.3d 884 (8th Cir. 2008).
8th Circuit upholds probation for felon in possession, given family circumstances. (870) In 2005, defendant’s then-eight-year old son called defendant to tell her that his 14-year old sister was bleeding. Defendant returned home to find her daughter had shot herself. The daughter died several days later. Defendant had taken the gun from an ex-boyfriend in 2003, because he was an alcoholic, and kept it high on a shelf in her closet. Defendant pled guilty to being a felon in possession of a firearm. Her advisory guideline range was 37-46 months, but the district court sentenced her to five years’ probation with six months of community confinement. The court based the variance on its concern for the welfare of defendant’s nine-year-old son. The boy suffered from numerous disabilities that required defendant’s day-to-day presence, and if he was separated from her, the boy would suffer a setback in his overall development. The court also noted that defendant was not on trial for her daughter’s death, that she was already punished by the loss of her daughter, and that there was no need for incarceration to protect the public. The Eighth Circuit ruled that the sentence was not substantively unreasonable in light of § 3553(a) and the Supreme Court’s recent decision in Gall. The circumstances described here were not materially different from the sort of “compelling family circumstances” that the Supreme Court indicated in Gall would justify probation for a drug trafficker with a similar advisory guideline range. U.S. v. Lehmann, 513 F.3d 805 (8th Cir. 2008).
8th Circuit says court did not abuse discretion in imposing guideline sentence. (870) Defendant was convicted of being a felon in possession of a firearm. He argued that his 120-month sentence was unreasonable, since he was not actually carrying the firearm while engaging in criminal activity, and because a shorter sentence would still reflect the seriousness of the offense, deter criminal conduct, protect the public from future crimes, and provide educational and vocational opportunities for defendant. However, the district court explicitly addressed the § 3553(a) factors in imposing the sentence and found that a guideline sentences of 120 months was appropriate. The district court adequately explained the sentence. Defendant’s argument did not convince the Eighth Circuit that the district court abused its discretion in imposing the 120-month sentence, which fell within defendant’s advisory guideline range. U.S. v. McPike, 512 F.3d 1052 (8th Cir. 2008).
8th Circuit affirms downward variance in crack cocaine case. (870) Defendant pled guilty to crack cocaine and firearms charges. Although his advisory guideline range was 235-293 months, the district court sentenced defendant to 132 months on the drug charges and 60 months on the firearms charges, to be served consecutively. The government argued that the court abused its discretion by departing one criminal history category under § 4A1.3, and that the court impermissibly took into account its disagreement with the sentencing guidelines for crack cocaine. The government urged the appellate court to reverse the lower court’s “extraordinary variance” because there were no extraordinary circumstances to support it. The Eighth Circuit found no error. Whether the court’s decision to depart downward under § 4A1.3 was considered a “procedural” aspect of calculating the guideline range, or part of the “substantive” reasonableness review, it was evident that the district court would have reached the same outcome under § 3553(a), and there was no abuse of discretion in concluding that defendant’s criminal history differed meaningfully from the active violent behavior often associated with defendants in criminal history category VI. In addition, the district court did not abuse its discretion in concluding that the crack cocaine guidelines yielded a sentence “greater than necessary” to achieve the purposes of § 3553(a). See Kimbrough v. United States, 128 S. Ct. 558 (2007). Finally, in light of the Supreme Court’s decision in Gall, the government’s argument that the sentence was unreasonably lenient due to the absence of “extraordinary circumstances” failed. Gall precluded requiring “extraordinary circumstances” to justify an “extraordinary variance.” U.S. v. McGhee, 512 F.3d 1050 (8th Cir. 2008).
8th Circuit finds no improper government motive for refusal to make § 5K1.1 motion. (870) Defendant argued that the district court erred by not compelling the government to file a motion for a substantial assistance departure under § 5K1.1 or 18 U.S.C. § 3553(e). Alternatively, he argued that the court abused its discretion by not considering his assistance under the factors outlined in 18 U.S.C. § 3553(a). The Eighth Circuit ruled that defendant did not make a substantial threshold showing that the government had an improper motive for refusing to make the motion. Absent a plea agreement that creates a duty for the government to file the motion, the government retains discretion to determine whether substantial assistance was provided and whether to file a motion under § 3553(3) or § 5K1.1. Although a third party offered to provide assistance on behalf of defendant, the government contended that it neither solicited, nor used, that assistance because it determined that the third party was unreliable and impeachable. Defendant conceded that the government articulated a logical basis for not using the third party as a confidential informant. As to the § 3553(a) factors, the district court did not abuse its discretion when it imposed a sentence at the bottom of the applicable guideline range. Because the government did not file, and the district court did not compel, a motion under § 3553(e), defendant was subject to a statutory minimum sentence of 180 months. Thus, the most he could gain under § 3553(a) would be an eight-month decrease in his sentence. U.S. v. Fields, 512 F.3d 1009 (5th Cir. 2008).
8th Circuit affirms guideline sentence even though co-defendants received lower sentences. (870) Defendant argued that his sentence, while at the bottom of the applicable guideline range, was excessive because it was above the statutory minimum sentence; his co-defendants received much shorter sentences; he had a relatively insignificant criminal history; he had three children; he maintained a meager lifestyle; and he was subject to deportation following his sentence. The Eighth Circuit found that the district court adequately considered the § 3553(a) factors and that defendant’s sentence was reasonable. A district court does not abuse its discretion by imposing a sentence within the applicable guideline range merely because the statutory minimum sentence is lower than the guideline range. Further, the fact that defendant’s co-defendant received sentences lower than his did not indicate that his sentence was disproportionate or unreasonable. Defendant’s co-defendants received downward departures by providing substantial assistance to the government, an option defendant declined. As to defendant’s personal history, the district court was aware of, and therefore considered, those factors. U.S. v. Garcia, 512 F.3d 1004 (8th Cir. 2008).
8th Circuit approves upward variance for defendant who previously received lenient state sentences. (870) Defendant pled guilty to fraudulent use of an unauthorized access device. Although the Guidelines recommended a sentence of 15-21 months, the district court sentenced defendant to 48 months. The court noted that courts had been lenient to defendant in the past, yet she continued to commit crimes of fraud and theft. The court believed that a guideline range sentence would not stop the criminal activity. The Eighth Circuit, affirmed the sentence as reasonable, noting that Gall v. U.S., 552 U.S. __ (2007) rejected the argument that “extraordinary” circumstances were required to justify a sentence outside the Guidelines range. In addition, the Court rejected “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” The district court properly considered the factors in § 3553(a) when it imposed defendant’s sentence. U.S. v. Braggs, 511 F.3d 808 (8th Cir. 2008).
8th Circuit approves four-level upward variance based on jail misconduct. (870) While in jail awaiting sentencing on damage to property charges, defendant engaged in numerous acts of disruptive behavior. His advisory guideline range was 27-33 months, but based on his misconduct, the district court sentenced defendant to 50 months, which amounted to a four-level increase in his offense level. The Eighth Circuit held that the district court did not err in both denying defendant an acceptance of responsibility reduction and imposing the four-level variance based on the same jailhouse misconduct. Defendant’s misconduct not only demonstrated his lack of acceptance of responsibility, but it was clearly relevant to other § 3553(a) factors, such as protecting the public from defendant’s future crimes, deterring criminal conduct and promoting respect for the law. Although the use of the same conduct to deny the reduction and grant the variance “stretche[d] the outer bounds” of what was reasonable, the court did not abuse its discretion. The fact that the court did not find that the misconduct warranted a departure under § 5K2.0 did not mean that it could not grant a variance on these grounds. U.S. v. Jones, 509 F.3d 911 (8th Cir. 2007).
8th Circuit holds that under-represented criminal history did not justify doubling sentence. (870) Defendant pled guilty to conspiracy to commit commercial check fraud. The district court sentenced him to 60 months’ imprisonment, which represented upward variance from the advisory guideline range of 27-33 months. The Eighth Circuit held that the sentence, which represented a near doubling of the upper limit of the advisory guideline range, was not reasonable based on the court’s expressed concerns regarding punishment and adequate deterrence. The court’s brief discussion focused on defendant’s serious criminal history and the fact that while he was in prison, he had used the time to plan and assist in carrying out the current offense. However, these were all factors that were taken into account by the guidelines. While it was not unreasonable for the court to find that defendant’s incorrigibility warranted additional prison time, the recommended range did not so substantially under-represent the seriousness of defendant’s criminal history as to justify imposing a sentence almost twice as long as the top of the advisory guideline range. U.S. v. Wiley, 509 F.3d 474 (8th Cir. 2007).
8th Circuit says objection after sentence not necessary to preserve claim that sentence is unreasonably long. (870) Defendant pled guilty to conspiracy to commit commercial check fraud. The district court sentenced him to 60 months’ imprisonment. Defendant argued that the court’s decision to vary upward from the 27-33 months range made the sentence unreasonable. The government argued that defendant forfeited this claim of error, and that it could only be reviewed for plain error. The Eighth Circuit held that where a party asserts only that the length of the sentence is unreasonable under § 3553(a), a defendant is not required to object after the sentence is imposed to preserve the claim. Since a court is not required to provide advance notice of its intent to vary from the advisory guideline range, there will be cases, such as here, where the defendant first learns of the variance when the court pronounces the final sentence. “To insist that the defendant object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle district courts with the burden of sitting through an objection—probably formulaic—in every criminal case.” U.S. v. Wiley, 509 F.3d 474 (8th Cir. 2007).
8th Circuit holds that consecutive sentences did not make sentence unreasonable. (870) Defendant was convicted in federal court of being a felon in possession of a firearm. Following the Sentencing Guidelines, the court ordered the federal sentence to run consecutively to defendant’s state sentences. The Eighth Circuit rejected defendant’s claim that this resulted in an unreasonable sentence. Because the court imposed a sentence within the advisory Sentencing Guideline range, defendant’s sentence was presumptively reasonable. Defendant had an undischarged term of imprisonment because Missouri revoked defendant’s probation before the imposition of the federal sentence. The guidelines recommend the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation of a previous sentence. USSG § 5G1.3, Note 3(C). The court’s decision to run defendant’s federal sentence consecutively to defendant’s state sentence was not unreasonable. U.S. v. Betts, 509 F.3d 441 (8th Cir. 2007).
8th Circuit holds court impermissibly relied on defendant’s post-sentencing rehab to justify 13.5 month reduction. (870) Defendant’s guideline range, prior to any departure, was 135-168 months. The offense carried a mandatory minimum sentence of 120 months. The district court granted the government’s § 5K1.1 and 18 U.S.C. § 3553(e) motion and reduced defendant’s sentence to 36 months. On defendant’s first appeal, the Eighth Circuit reversed the sentence, holding that the extent of the sentence reduction was unreasonable. On remand, the district court granted her a 50% reduction for substantial assistance, finding that her assistance was “extraordinary,” but not so extraordinary as to justify the 73% reduction. In addition to the 50% substantial assistance reduction, the court varied from the advisory guidelines based on defendant’s post-offense rehabilitation. The final sentence was 54 months. The Eighth Circuit reversed. First, it declined to reconsider its previous holding that a substantial assistance reduction from 135 months to 36 months was unreasonable. And, while the court was not prohibited altogether from considering factors other than substantial assistance in fashioning defendant’s sentence, the court was not permitted to rely on defendant’s post-sentencing rehabilitation. Such evidence is “not relevant” and cannot be considered at resentencing because the district court could not have considered the evidence at the time of the original sentencing. U.S. v. Coyle, 506 F.3d 680 (8th Cir. 2007).
8th Circuit holds that 33 percent downward variance did not need to be supported by extraordinary circumstances. (870) Defendant sent a pornographic photo of a naked girl and an adult male to child protective services, falsely identifying the girl as his neighbor’s daughter. He was convicted of possessing and receiving child pornography. His advisory guideline range was 108-135 months, but the district court granted a 33 percent downward variance to impose a sentence of 72 months’. The government appealed the sentence, claiming that the variance was not supported by extraordinary circumstances. The Eighth Circuit affirmed, holding that a 33 percent downward variance from the advisory guideline range did not have to be supported by extraordinary circumstances. The court cited adequate reasons for the variance, including the low number of images involved in the offense and defendant’s age, medical condition, and lack of a criminal record. Moreover, the fact that defendant’s single act of distribution did not take place over the Internet, but to a state agency charged with the protection of children, guaranteed the image would not be distributed to others. U.S. v. White, 506 F.3d 635 (8th Cir. 2007).
8th Circuit finds 40 percent downward variance resulted in reasonable sentence. (870) While serving a prison sentence for mailing threatening letters, defendant mailed additional threatening letters to a federal judge and defendant’s public defender. The district court found that the case fell outside the heartland, but concluded that a departure under § 5K2.13 was not authorized because the offense “clearly involved a serious threat of violence.” Nonetheless, the court found that it could depart under § 5K2.0. Based on the same circumstances, the court alternatively found that a non-guidelines sentence was appropriate. The Eighth Circuit held that the § 5K2.0 departure was not proper. The Sentencing Commission adequately considered reduced mental capacity when it formulated § 5K2.13, so this foreclosed consideration of diminished mental capacity under § 5K2.0. The error, however, was harmless, because the alternative ground for the sentence, a variance based on the § 3553(a) factors, supported the sentence. The 60-month sentence, which represented a 40 percent variance from the guideline range of 100-125 months, was reasonable. The court reviewed each § 3553(a) factor, and based the variance on a number of findings, including that defendant was a seriously mentally ill individual who had been institutionalized or incarcerated most of his life, his mental illness interfered with his ability to control his impulses, he acknowledged his mental impairment and expressed a desire to obtain help, he never carried through with a threat, and the threats were designed to get attention. The court carefully considered each § 3553(a) factors, and did not abuse its discretion in finding that a shorter period of incarceration, with mental health treatment and supervised release, was the most effective sentence. U.S. v. Myers, 503 F.3d 676 (8th Cir. 2007).
8th Circuit remands because not clear if court considered proper factors in imposing consecutive sentences. (870) Defendant pled guilty to five counts of bank fraud and five counts of aggravated identity theft. The guideline range for each of the bank fraud counts was 37-46 months, and the court sentenced defendant to 46-month concurrent sentences for each of these counts. In addition, the court imposed five statutorily mandated terms of 24 months for the identity theft counts. 18 U.S.C. §1028A(a)(1), (b); U.S.S.G. § 2B1.6. The court ran three of the counts consecutive to the bank fraud terms and to each other, and the remaining two concurrently to the other terms. This resulted in a 118-month total sentence. Defendant challenged the district court’s decision to run three of the identity theft counts consecutively. The Eighth Circuit remanded because the district court did not adequately explain its decision to impose consecutive sentences. The district court did little to explain on the record why it chose to essentially follow the government’s recommendation for a 10-year sentence. The panel was not convinced that the district court considered the factors that must inform its decision whether to run multiple § 1028A counts concurrently or consecutively. U.S. v. Lee, 502 F.3d 780 (8th Cir. 2007).
8th Circuit finds upward variance based on criminal history consistent with decision not to depart. (870) The district court declined to impose an upward departure under U.S.S.G. § 4A1.3(a)(1). However, it did impose a sentence 14 months above the upper end of the advisory guideline range, finding that defendant’s prior conduct was not adequately reflected by the advisory guideline range, and emphasizing his commission of a serious crime each time he reentered the country following deportation. Defendant argued that the district court acted inconsistently by declining to depart under § 4A1.3(a) for an underrepresented criminal history and then varying upward based on defendant’s commission of serious crimes and his potential for recidivism. The Eighth Circuit found no inconsistency, noting that the standards for departure in § 4A1.3(a) and the standards in § 3553(a)(1) and (a)(2)(C) are not identical. Here, defendant’s history of deportation and illegally reentry, together with his serious criminal record, justified the upward variance – only one of his three illegal entries was represented in the court’s advisory guideline calculation. Moreover, a little more than a year after his third illegal entrance, defendant was arrested for sexually assaulting his two young nieces. His repeated illegal reentry into the U.S. was strong evidence of his propensity to recidivate. U.S. v. Solis-Bermudez, 501 F.3d 882 (8th Cir. 2007).
8th Circuit holds record did not permit meaningful review of variance sentence. (870) Defendant pled guilty to knowingly hiring ten or more unlawful aliens. Although his guideline range was 12-18 months, the district court varied downward to impose a sentence of time served, with a two-year period of supervised release that included a total of 12 months confinement with work release privileges. The Eighth Circuit rejected the government’s contention that the variance was extraordinary, but nonetheless remanded because the record did not permit meaningful appellate review. The percentage approach advocated by the government (under which defendant received a 99.73% deviation from the minimum advisory sentence) is misleading where the court varies from a relatively short advisory sentence. The district court effectively varied three offense levels, which was not extraordinary or dramatic. However, the court failed to adequately state specific reasons for the variance. At sentencing, the court stated only that it was fashioning a sentence to punish defendant for exploiting undocumented workers for his personal benefit but which recognized defendant neither sexually nor physically abused those workers. The court later expanded on its reason by noting that defendant had provided the workers with a good place to live and had fed them. However, the panel remanded, because it was impossible with the record to conduct a meaningful review of whether the court gave significant weight to any improper or irrelevant factors. U.S. v. Chettiar, 501 F.3d 854 (8th Cir. 2007).
8th Circuit finds no abuse of discretion in sentence at bottom of guideline range. (870) Defendant argued that although the court stated that it had considered the § 3553(a) factors, had it done so, it would have imposed a sentence far below defendant’s 188-month sentence. The Eighth Circuit found that the district court did not abuse its discretion by imposing a sentence at the bottom of the properly calculated guideline range. The appellate court’s review of the ultimate sentence, including the district court’s application of the § 3553(a) factors, is for reasonableness, which is presumed on appeal when the sentence falls within a properly calculated guideline range. Here, after the district court noted that it had examined all of the § 3553(a) factors, it discussed the impact defendant could have made within his reservation and the grief the court experienced in having to impose the sentence on a “young talented Indian person.” The district court need not “categorically rehearse” each of the factors. Where the court has before it the information relevant to the factors, the appellate court will presume the factors were considered when the district court determined the sentence. U.S. v. Whirlwind Solder, 499 F.3d 862 (8th Cir. 2007).
8th Circuit rejects 100% downward departure for tax offender. (870) Defendant pled guilty to willfully failing to account for and pay withholding taxes. Although his guideline range was 18-24 months, the district court varied downward and imposed a sentence of eight months of home confinement, five years’ probation and 1,000 hours of community service. The court found the following circumstances extraordinary, and justified a comparably extraordinary variance. Defendant (1) had a significant record of charitable activities; (2) accepted responsibility and made an exceptional effort to repay the money; (3) suffered damage to his business, reputation, and family relationships; and (4) was not motivated by a desire to defraud the government, but was instead attempting to resolve a financial crisis in his business. The Eighth Circuit ruled that the sentence was unreasonable, finding that the court failed to give significant weight to certain § 3553(a) factors and failed to articulate sufficiently compelling circumstances to justify such a large variance. The circumstances were not sufficiently different from U.S. v. Ture, 450 F.3d 352 (8th Cir. 2006), where the court rejected a similar departure in a similar case. The court failed to adequately consider the seriousness of defendant’s offense, the goal of promoting respect for our federal tax laws, and the need for a just sentence. In addition, the court’s 100% variance failed to give significant weight to the need for sentences to deter future criminal conduct, and the need to avoid unwarranted sentencing disparities among similar defendant. Finally, the facts cited by defendant were not sufficiently compelling to justify a 100% variance. U.S. v. Carlson, 498 F.3d 761 (8th Cir. 2007).
8th Circuit finds guideline sentence for second-degree murder reasonable. (870) The guideline range for defendant’s second-degree murder conviction was 292-365 months, and the district court sentenced him at the upper end of that range, to 360 months. He argued that the sentence failed to allow for disparity between individuals who committed second-degree murder in “a tragic, mindless, drunken act,” as the district court characterized his crime, and those who murder with a greater degree of actual intent. The Eighth Circuit held that defendant’s argument was not sufficient to overcome the presumption of reasonableness an appellate court gives a sentence within the guidelines range. Defendant’s sentence was fashioned taking into account the factors set forth in § 3553(a). One of those factors is the need to avoid unwarranted sentencing disparities among defendants with similar records, § 3553(a) (6). In addition, the court observed that defendant had a long history of alcohol-related offenses and that the sentence was designed to deter further crimes, protect the public, promote respect for the law, and provide just punishment. U.S. v. Shields, 497 F.3d 789 (8th Cir. 2007).
8th Circuit says error was not harmless where court did not precisely state what the alternative sentence would be. (870) The district court found that defendant’s guideline range was 210-262 months, and imposed a 210-month sentence. However, the court erroneously refused to apply an obstruction of justice increase. An error in the court’s calculation of the advisory guideline range requires remand unless the error is harmless. A court’s pronouncement of an alternative sentence may allow for such a finding of harmless error. Here, the district court stated that if the appellate court were to hold that it should have applied an obstruction of justice increase, the district court would, in the alternative, vary downward “not down to 210 but down something close to 210” months based on the non-threatening nature of the obstruction. The Eighth Circuit held that this statement was insufficient to establish harmless error. While the statement suggested an intent to pronounce an applicable sentencing alternative, it did not precisely indicate what the variance would have been. Moreover, it was unclear whether the court would have increased the portion of the downward variance based on other factors to arrive at the same sentence. Because there was no specific alternative sentence to review, the panel remanded for resentencing. U.S. v. McMannus, 496 F.3d 846 (8th Cir. 2007), abrogated as to post-sentencing rehabilitation by Pepper v. U.S., 131 S.Ct. 1229 (2011).
8th Circuit finds error in considering post-sentencing rehabilitation was not harmless. (870) Defendant’s guideline range was 57-71 months, but the district court sentenced him to 24 months. The Third Circuit panel vacated the sentence as unreasonable. U.S. v. McMannus, 436 F.3d 871 (8th Cir. 2006). On remand, the district court again imposed a 24-month sentence. The court stated that because of the new evidence introduced during the resentencing hearing, the appellate court’s opinion did not preclude it from pronouncing a term of imprisonment identical to the one vacated previously as unreasonable. The court also stated that it considered defendant’s post-sentencing conduct in determining the extent of the variance, but that it would pronounce the same sentence even if it had not considered that conduct. The Eighth Circuit found defendant’s post-sentencing rehabilitation was an impermissible ground for a downward variance. The error was not harmless. Any harmless error analysis is precluded because the record on resentencing (excluding the impermissible evidence of post-sentencing rehabilitation) was substantially identical to the record at defendant’s first sentencing. An Eighth Circuit panel already held that a 24-month sentence on the same record was unreasonable. U.S. v. McMannus, 496 F.3d 846 (8th Cir. 2007), abrogated as to post-sentencing rehabilitation by Pepper v. U.S., 131 S.Ct. 1229 (2011).
8th Circuit holds that four months’ probation for maintaining drug house was unreasonable. (870) Defendant owned a house in which she lived with her two sons and her ex-husband. The sons sold drugs from the house. Defendant was aware of this, and was in the residence during some of the undercover drug purchases. She was convicted of firearms charges and maintaining a residence for the purpose of distributing methamphetamine. Although her guideline range was 33-41 months, the district court sentenced her to four months’ probation. The Eighth Circuit reversed the sentence as unreasonable. A downward variance to zero prison time, where the Sentencing Commission has found that substantial prison time is indicated, requires “extraordinary justification.” Although defendant’s conduct may not have been as serious as other violations of the relevant statutes, her conduct was still criminal. Moreover, the guidelines already accounted for defendant’s minimal role in the underlying drug crimes – she received a four-level reduction under § 2D1.8(a)(2). The district court also downplayed the seriousness of defendant’s offense by positing that her only option for avoiding criminal culpability was to “eject” her sons and ex-husband from her home. However, this was not the only option – she could have asked them to stop their criminal activities, she could have threatened to call the police, and she could have actually called the police if they continued. The sentence failed to give proper weight to other statutory sentencing goals, such as the need to promote respect for the law, the need to deter others, and avoiding unwarranted sentencing disparities. U.S. v. Soperla, 494 F.3d 752 (8th Cir. 2007).
8th Circuit holds court’s statement insufficient to support finding of harmless error. (870) The district court erroneously applied a six-level sentencing enhancement. The government argued that any sentencing error was harmless because it was clear from the court’s statements that it would have imposed the same 63-month sentence regardless of which guideline range applied. The Eighth Circuit held that the court’s general statement was not detailed enough to support a finding of harmless error. To support a finding of harmless error, the record clearly must show not only that the court intended to provide an alternative sentence, but also that the alterative sentence was based on an identifiable, correctly calculated guideline range. Here, the district court did not determine an alternative guideline range without the disputed enhancement and explain a variance from it based on § 3553(a) factors, but rather made a blanket statement that 63 months was a “fair” sentence. Such a statement cannot be a basis for a finding of harmless error. U.S. v. Icaza, 492 F.3d 967 (8th Cir. 2007).
8th Circuit holds that meth sentence was not unreasonably lenient. (870) Defendant pled guilty to methamphetamine conspiracy charges. Although his advisory guideline range was 188-235 months, the court granted a post-Booker variance under 18 U.S.C. § 3553(a) to impose an overall sentence of 96 months. The Eighth Circuit held that while the variance was substantial (49% below the bottom of the advisory guideline range), the sentence was not unreasonably lenient. The court did not consider any improper factors or fail to consider relevant factors. Defendant’s criminal history, his role in the offense, the need for general deterrence, the need for specific deterrence, defendant’s acceptance of responsibility, and his agreement not to contest removal were all relevant and proper factors under 18 U.S.C. § 3553(a). U.S. v. Jimenez-Gutierrez, 491 F.3d 923 (8th Cir. 2007).
8th Circuit finds guideline sentence for robbery reasonable. (870) Defendant was convicted of bank robbery, and the district court sentenced him to 151 months, which fell within his advisory guideline range. Defendant argued that the court was required to impose a more favorable sentence due to mitigating factors, such as the harmlessness of the purported bomb he used in the robberies, and his history of physical and mental illness. The Eighth Circuit held that the guideline sentence was reasonable. The Sentencing Commission recommends no distinction among armed robbers based on whether an apparently dangerous weapon was actually capable of inflicting death or serious injury during the robbery. See U.S.S.G. § 2B3.1, Note 2. The district court could reasonably conclude, consistent with the guidelines, that whether or not defendant’s bomb was real, his use of the device likely caused emotional and psychological harm to those present. The Sentencing Commission also recommends that physical and mental health ordinarily are not reasons to impose different sentences in the cases of similarly-situated bank robbers. U.S.S.G. §§ 5H1.3, 5H1.4. Here, while defendant’s record did include evidence of physical ailments and previous mental health concerns, the record did not include a clear showing of extraordinary impairments that would make his incarceration particularly dangerous or harsh. While the guidelines are advisory, it was not unreasonable for the court to conclude, in light of other statutory factors, that a sentence within the advisory guideline range was appropriate. U.S. v. McCracken, 487 F.3d 1125 (8th Cir. 2007).
8th Circuit holds guideline sentence was reasonable. (870) Defendant argued that his 24-month sentence was unreasonable because the court gave significant weight to the following improper or irrelevant factors: acquitted conduct, his failure to admit wrongdoing, and submitting inconsistent financial statements to the probation office. However, the district court followed the sentencing procedure set forth in U.S. v. Haack, 403 F.3d 997 (8th Cir. 2007). The court found that the guideline sentencing range was 18-24 months, and considered the factors set forth in § 3553(a), and sentenced defendant to 24 months. The court did consider all of the things that defendant complained about. However, it was within the court’s discretion to do so, and thus, the Eighth Circuit ruled that the court did not act unreasonably in refusing to sentence defendant below the guidelines range. U.S. v. Fazio, 487 F.3d 646 (8th Cir. 2007).
8th Circuit holds court did not err in refusing to award defendant credit for time served on state escape offense. (870) Defendant pled guilty to drug charges, and was sentenced to 160 months’ imprisonment and five years of supervised release. While being detained on this offense, defendant escaped from a local jail, was rearrested that same day and sentenced on a state escape charge. He was released from state custody in July 2004. The Eighth Circuit held that the district court did not err in refusing to award defendant credit for the time he served on the state escape offense. Under § 5G1.3(b), a defendant may receive credit for time served on a separate term of imprisonment if several conditions are met. None of those conditions were met here. The escape was not factored into his criminal history calculation and did not result in the imposition of an obstruction of justice enhancement. Nor was it the basis for any other increases in his offense level. U.S. v. Lozano, 486 F.3d 446 (8th Cir. 2007).
8th Circuit upholds sentence at bottom of guideline range absent showing that court failed to consider statutory sentencing factors. (870) Defendant pled guilty to drug-trafficking charges, and received a sentence at the bottom of the applicable advisory guideline range. Defendant argued that the court violated the principles of Booker by failing to explicitly consider the enumerated sentencing factors of 18 U.S.C. § 3553(a) in fashioning his sentence. However, while defendant argued that his sentence was unreasonable, he failed to point to any § 3553(a) factors that would have any bearing upon the severity of his sentence. He did not list any factors that the court should have considered, and he did not argue that the court ignored a factor that should or could have justified a lesser sentence. Since defendant offered no reason to support his assertion that his sentence was unreasonable, the Eighth Circuit held that resentencing was not necessary. While the court may remand a case when a district court fails to create an adequate record for review, brevity of the record alone does not give rise to a claim of per se unreasonableness. U.S. v. Mosqueda-Estevez, 485 F.3d 1009 (8th Cir. 2007).
8th Circuit upholds consecutive sentences so total punishment equaled bottom of guideline range. (870) Defendant’s advisory guideline range for two federal gun possession charges was 168-210 months. The district court sentenced defendant to 120 months’ imprisonment for a felon in possession charge, and 48 months’ imprisonment for possessing a firearm with an obliterated serial number, and ordered the sentences to run consecutively. The Eighth Circuit held that the total 168-month sentence imposed was reasonable. The court calculated the advisory guideline range and then considered the factors set forth in 18 U.S.C. § 3553(a). The decision to run the sentences consecutively was also reasonable. The “total punishment” imposed by the court was 168 months’ imprisonment, which fell at the bottom of the advisory guideline range. If the court had imposed concurrent sentences, the resulting sentence would have been 120 months, the maximum on the felon in possession charge, 18 U.S.C. § 924(a)(2). Guideline § 5G1.2 provides that if “the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.” U.S. v. Thomas, 484 F.3d 542 (8th Cir. 2007).
8th Circuit finds 87-month sentence reasonable for meth manufacture and firearms possession. (870) Police officers seized a disassembled methamphetamine lab and a sawed-off shotgun from defendant’s house. He pleaded guilty to being a felon in possession of a firearm, possessing a sawed-off shotgun, and attempting to manufacture methamphetamine. The district court sentenced defendant to 87 months, which was at the bottom of the advisory guidelines range. The Eighth Circuit rejected defendant’s challenge to the reasonableness of that sentence, noting that even if a guidelines sentence is not presumptively reasonable, it was entitled to some consideration. U.S. v. Patterson, 481 F.3d 1029 (8th Cir. 2007).
8th Circuit says defendant and co-defendant were not similarly situated. (870) Defendant enlisted several associates to help him steal drugs from a rival drug dealer. During an ambush, one of defendant’s associates shot and killed one of defendant’s rivals. Defendant’s sentence included a term of imprisonment of 305 months, while co-defendant Sallis received a sentence of 136 months. Defendant argued that the district court should have granted him a variance, in accordance with the § 3553(a) factors, to avoid significant sentencing disparities between equally situated offenders. The Eighth Circuit found that defendant and his co-defendant were not similarly situated, and thus the case was distinguishable from U.S. v. Lazenby, 439 F.3d 928 (8th Cir. 2006). Sallis received a downward departure for felony murder, along with reductions for acceptance of responsibility and substantial government assistance. U.S.S.G. § 2A1.1, Note 2(B), § 5K1.1. In contrast, defendant received several enhancements because his participation in the conspiracy involved a handgun and was committed within 1,000 feet of a protected area. The court also found that defendant was the conspiracy’s leader. Further, the court found that defendant was the more culpable of the two defendants. Defendant planned the ambush and recruited Sallis. Defendant conceived the ambush for his financial gain, and was aware that the shooter was armed. U.S. v. Watson, 480 F.3d 1175 (8th Cir. 2007).
8th Circuit holds that guideline sentence for smuggling powder cocaine into federal prison was reasonable. (870) Defendant, a former federal corrections officer, pled guilty to smuggling powder cocaine into a federal prison. Her advisory guideline range was 46-57 months, and the court sentenced her to 46 months. She claimed that defendants convicted of smuggling drugs into a federal prison are treated four times more harshly than a defendant convicted of selling the same amount of drugs on the street, and that § 2P1.2, the guideline applicable to prison offenses, created an unreasonable sentencing disparity. The Eighth Circuit disagreed. While it might be “unreasonable” to treat similarly situated defendants differently, a defendant who smuggles drugs into a federal prison, especially one who is a federal corrections officer, is guilty of conduct markedly different from selling drugs on the street. Drug dealing, in all its forms, creates a serious risk of potential harm to individuals and society. When it involves smuggling drugs into a correctional facility, “additional and unique risks of harm to inmates and corrections staff arise.” The sentence was reasonable. The court considered the mitigating factors defendant raised (strong employment record, financial support for son, low risk of recidivism), but rejected her arguments because it believed a lower sentence would not adequately reflect the sentencing goals of § 3553(a). U.S. v. Akers, 476 F.3d 602 (8th Cir. 2007).
8th Circuit approves large variance to defendant with record of stalking and preying upon minors. (870) Defendant pled guilty to attempting to receive child pornography. He argued that his 120-month sentence was an unreasonable upward variance from the top of the applicable guideline range of 63-78 months. Although the 54 percent upward variance from the top of the applicable guideline range was significant, the Eighth Circuit held that the district court did not abuse its discretion. The variance was motivated primarily by the need to protect the public, a sentencing factor specified by § 3553(a)(2)(C). Defendant was not a simple consumer of child pornography; he was an individual who had been “acting out in the community towards children.” He had been the subject of numerous citizen complaints spanning a six-year period, alleging he had followed school buses, waiting around school bus stops, and had followed a female jogger. In light of this disturbing record, the court’s reliance on the need to protect the public was not an abuse of discretion. U.S. v. Gnavi, 474 F.3d 532 (8th Cir. 2007).
8th Circuit holds that probation was too lenient in white collar crime case. (870) Defendant was convicted of over 90 counts of public official bribery and money laundering arising from a scheme to bribe a highway department employee. The guidelines’ range was 33-51 months, but the district court sentenced defendant to five years’ probation. The court imposed the probationary sentence in order to preserve defendant’s business and the jobs of his employees, because of the need for defendant to continue his charitable activities, and because of defendant’s medical problems, briefly referred to in the PSR. The Eighth Circuit held that the probation sentence was unreasonably lenient. The court’s recitation of the § 3553(a) factors was insufficient to justify the sentence. Although the court seemed especially concerned that defendant’s 40 employees would be discharged if defendant were sent to prison, defendant’s son testified that he would continue the business in defendant’s absence. It is not extraordinary that in the area of white collar crime, a principal’s business and employees may suffer if he is incarcerated. The court gave insufficient weight to other § 3553(a) factors, such as avoiding unwarranted sentencing disparities. U.S. v. Pool, 474 F.3d 1117 (8th Cir. 2007).
8th Circuit bars court from considering disparity between defendant’s federal sentence and accomplice’s state sentence. (870) Defendant pled guilty to methamphetamine charges. His advisory guideline range was 84-105 months, but the district court varied downward to impose a sentence of 48 months because defendant’s accomplice received a sentence of between one to two years in state court. The Eight Circuit held that the district court abused its discretion by considering the disparity between defendant’s federal sentence and his accomplice’s state court sentence. In U.S. v. Jeremiah, 446 F.3d 805 (8th Cir. 2006), the court held that the Sentencing Commissions’ goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded if potential federal/state sentencing discrepancies were considered. A district court is neither required nor permitted under 3553(a)(6) to consider a potential federal/state sentencing disparity in imposing a sentence. U.S. v. McCormick, 474 F.3d 1012 (8th Cir. 2006).
8th Circuit approves 21 percent upward departure for producing child pornography. (870) Defendant pled guilty to one count of producing child pornography based on pictures he took of his live-in girlfriend’s four year old daughter. Although his guideline range was 180-210 months, the district court sentenced defendant to 255 months, which was the midway point between the top of the guideline range and the statutory maximum. The Eighth Circuit affirmed the upward variance and held the sentence was reasonable. The court considered the “history and characteristics of defendant” under § 3553(a)(1), noting that he had admitted viewing child pornography for about two years before his arrest, he had a specific interest in bondage, sadism and masochism, and had spent several hours each days viewing child pornography and discussing it with others. Second, the court found that only a “severe sentence” could account for the seriousness of defendant’s offense. The victim was only four years old at the time of the offense. The § 2G2.1(b)(1) adjustment for a victim under 12 did not account for the particularly vulnerable state that she was in given her age at the time of the abuse. The guideline also did not address the heinous level of sadism involved in the images found on defendant’s computers. Finally, the court found that the variance would permit defendant to receive both psycho-sexual and substance abuse treatment. U.S. v. Garnette, 474 F.3d 1057 (8th Cir. 2007).
8th Circuit holds that 188-month sentence for felon in possession was reasonable. (870) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He qualified as an armed career criminal, making him subject to a mandatory minimum 15-year prison sentence. Although defendant urged the court to impose the minimum 15-year sentence, the court instead sentenced defendant to 188 months, the bottom of his advisory guideline sentencing range. The Eighth Circuit held that the sentence was reasonable. Although defendant was only 28 years old, he had 14 juvenile and adult convictions, including multiple drug and firearm offenses as well as tampering by operating and making criminal threats. When arrested for this offense, defendant was driving a stolen motor scooter and carrying 23 small bags of crack cocaine. He committed the offense while on probation and less than two years after his release from custody for a prior drug convictions. U.S. v. Reliford, 471 F.3d 913 (8th Cir. 2006).
8th Circuit rejects 90-month downward variance for meth defendant as unreasonable. (870) Defendant pled guilty to meth conspiracy charges. The district court sentenced defendant to 120 months’ imprisonment, 90 months below the advisory guideline range. As grounds for the variance, the court noted that no guns or violence were involved in the offense, defendant was young (24), defendant was addicted to methamphetamine, and there was a need to avoid sentencing disparity between defendant and a co-conspirator. The Eighth Circuit held that the sentence was unreasonable; the factors cited by the court did not justify the extent of the court’s downward variance. The court gave too much weight to the lack of violence and firearms. The presence or absence of these factors were already considered in determining the advisory guideline range. See § 2D1.1(b)(1). An extraordinary reduction cannot be based largely on the youth of the defendant because relative youth is a factor that may apply to many defendants. Third, drug addiction or abuse is not a proper reason to impose a downward variance, absent exceptional circumstances. Finally, defendant was not similarly situated to the co-conspirator who received a lighter sentence. The co-conspirator was a minor participant in the meth distribution ring, and had a lighter criminal history. U.S. v. Plaza, 471 F.3d 876 (8th Cir. 2006).
8th Circuit upholds large sentencing increase upon resentencing in light of Booker. (870) Several months before his release from prison, defendant sent letters to a North Dakota federal district court, the city of Fargo, North Dakota, the Governor of North Dakota, and the President of the United States, proclaiming “a formal declaration of war on the city of Fargo” and threatening violence and the use of bombs against the city of Fargo and anyone within its city limits. The court initially sentenced defendant to 140 months’ imprisonment, but on remand after the appellate court rejected all of the grounds of departure, and in light of Booker, the court resentenced defendant to 360 months. The Eighth Circuit held that the 360-month sentence was reasonable. Defendant was a career offender, and his criminal history indicated that he was “resistant to authority” and that previous attempts to deter him from criminal conduct had been unsuccessful. Defendant admitted to federal agents that he made the threats, explained what weapons would be used and how he would carry out the attack, and declared he was willing to die if necessary. The court adequately considered the § 3553(a) factors. It did not appear that the court believed the appellate opinion required the district court to sentence defendant within the advisory guideline range. The opinion only rejected the court’s stated reasons for a downward departure, it did not prohibit the court from granting a downward variance if the court believed such a variance was warranted based on its consideration of the § 3553(a) factors. U.S. v. McMorrow, 471 F.3d 921 (8th Cir. 2006).
8th Circuit holds that five-year probationary sentence for fraud was reasonable given defendant’s need for dialysis. (870) Defendant pled guilty to mail fraud charges. The court varied from the 18-24 month advisory guideline range to impose a sentence of five years probation, citing defendant’s chronic health problems (he required three-hour dialysis treatments three times a week) and the fact that defendant was the sole caretaker for an adopted adult son who suffered from fetal alcohol syndrome. The Eighth Circuit ruled that the probationary sentence was reasonable. Cases cited by the government rejecting probationary sentences were distinguishable, and did not stand for a blanket rule that all such variances are unreasonable. A district court can impose a non-prison sentence when a defendant has serious medical needs. Section 3553(a)(2)(D) states that the effective provision of necessary medical care is an appropriate factor for the district court’s consideration in sentencing. The district court had the discretion to decide that it would be more efficient and effective for defendant to receipt treatment from his current health care provider. Defendant’s family responsibilities to his adult son, while not sufficient by themselves to warrant the variance, was properly one of multiple grounds for the variance, and the court did not abuse its discretion in giving it weight under § 3553(a)(1). U.S. v. Wadena, 470 F.3d 735 (8th Cir. 2006).
8th Circuit says court cannot impose downward variance based on same factors used for safety valve relief. (870) Defendant pled guilty to methamphetamine conspiracy charges. His advisory guideline range was 108-135 months, but the district court sentenced defendant to 60 months’ imprisonment. The court cited (1) the presence of the same factors that made defendant eligible for the § 3553(f) safety-valve, including that this was his first offense, that the crime did not involve violence, and that he was not a leader or manager, (2) the drugs used to calculate his offense level was substantially the result of six controlled purchases by law enforcement, (3) he faced deportation following his term of imprisonment, (4) he had lived an underprivileged life, and (5) his motivation for the crime was to gain money to provide treatment for his son’s cancer. The Eighth Circuit reversed. The court erred in considering the same facts that it considered in finding defendant eligible for the safety valve. Substantial variances based upon factors already taken into account in a defendant’s guideline sentencing range seriously undermine sentencing uniformity. The court also clearly erred when it found that police made six controlled purchases – they only made three, and the second and third purchases did not increase defendant’s guideline range. Given defendant’s history of reentering the country following deportation, the fact that he would be deported following his imprisonment would not support a variance. Finally, while defendant’s underprivileged background and need for money to pay for his son’s medical treatment were relevant, they did not by themselves support a variance of this magnitude. U.S. v. Morales-Uribe, 470 F.3d 1282 (8th Cir. 2006).
8th Circuit holds that court properly considered defendant’s gang affiliation in imposing sentence. (870) The district court found defendant, a juvenile, delinquent for committing assault resulting in serious bodily injury and assault with a dangerous weapon. The court sentenced defendant to 24 months. Defendant argued that the district court placed “undue weight” on its concern over the proliferation of gang violence in Indian country. The Eighth Circuit found no error in the court’s consideration of defendant’s gang affiliation in imposing its sentence. Defendant’s “association with gang members” was properly considered by the district court as part of defendant’s “history and characteristics.” 18 U.S.C. § 3553(a)(1). Further, the court heard defendant’s plea for leniency based on factors such as his successful completion of drug and alcohol counseling, participation in cultural activity, and improvement in school. The court considered these factors and did not give exclusive focus to its concerns regarding the proliferation of gang violence in Indian country. Moreover, the court showed leniency by imposing a dispositional sentence below the low end of the adult range. U.S. v. D.A.L.D., 469 F.3d 727 (8th Cir. 2006).
8th Circuit holds that court could not give defendant benefit of § 1B1.8 where parties did not include such a provision in cooperation agreement. (870) guideline § 1B1.8 provides that the government may agree, as part of a defendant’s cooperation agreement, that any self-incriminating information disclosed through the defendant’s cooperation “shall not be used in determining the applicable guideline range.” In sentencing, defendant on drug charges, the district court recognized that defendant and the government had not reached an agreement to exclude incriminating information, but nonetheless decided to give defendant the benefit of the § 1B1.8 protection. The court varied from 262 months to the 240-month mandatory minimum; it then granted a 25 percent downward departure from 240 to 180 months based on defendant’s substantial assistance. The Eighth Circuit held that the district court gave significant weight to an improper factor by attempting to give defendant the benefit of a § 1B1.8 sentencing immunity provision, despite the fact that the parties did not include such a provision in their cooperation agreement. Any sentencing disparities arising from the government’s discretionary use of § 1B1.8 agreements are not unwarranted. U.S. v. Blackford, 469 F.3d 1218 (8th Cir. 2006).
8th Circuit, en banc, holds that court could not depart downward based solely on rejection of 100:1 powder/crack cocaine sentencing ratio. (870) The government argued that the district court erred in granting a downward variance based solely on the court’s categorical rejection of the 100:1 powder cocaine to crack cocaine sentencing ratio in the guidelines. The Eighth Circuit, en banc, joined the First, Second, Fourth, Seventh and Eleventh Circuits in holding that courts cannot vary downward from the guidelines based solely on a categorical rejection of the guidelines 100:1 cocaine sentencing ratio. A judge’s personal views regarding the Sentencing Commissions’ recommendations cannot supplant Congress’s refusal to adopt those recommendations. For 20 years, Congress had elected not to revise the 100:1 quantity disparity between powder cocaine and crack cocaine. The reason for this inaction, whether due to a political stalemate or other legislative grounds, was irrelevant. U.S. v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc).
8th Circuit holds that four-year term of supervised release was a mistake, not a variance or a departure. (870) Defendant pled guilty to marijuana conspiracy charges, in violation of 21 U.S.C. § 841. The PSR stated that the guideline range of supervised release was three years. The district court sentenced defendant to 46 months’ imprisonment to be followed by four years of supervised release. The court gave no explanation for deviating from the guidelines, and defendant never objected to the four-year term. The Eighth Circuit held that the error in imposing a term of supervised release exceeding the guideline maximum was plain error. The four-year term was a mistake, not a departure or a variance. At the plea hearing, the judge mistakenly stated that defendant was subject to a three-to-five-year guideline term of supervised release. The court repeated this error in its written Statement of Reasons. Moreover, at sentencing, there was no discussion concerning increasing defendant’s term of supervised release beyond the guideline range. Defendant was prejudiced by the error, since his period of supervision was erroneously increased by a year. U.S. v. Leppa, 469 F.3d 1206 (8th Cir. 2006).
8th Circuit holds that court’s consideration of § 3553(a) factors prior to departure was error. (870) The government challenged the district court’s consideration of the § 3553(a) factors prior to considering the government’s § 5K1.1 motion. The Eighth Circuit agreed that this was error. Post-Booker, the first step in sentencing a defendant is to determine the appropriate advisory guideline range, including traditional departures. Post-Booker, guideline departures remain an important and relevant part of determining a defendant’s advisory guideline range. The 120-month sentence imposed here was unreasonable – it was not justified by the § 3553(a) factors relied upon by the district court, and the court’s error in failing to first consider the § 5K1.1 departure motion was not harmless. The fact that defendant was addicted to methamphetamine did not support shaving off 14 years of his sentence. The addiction may have motivated his participation in the conspiracy, but he was more than a mere user. The court also erred by giving significant weight to an improper factor – namely the government’s refusal to grant defendant use immunity for information he provided during debriefing. The disparity between defendant’s guideline range and the 120-month received by a co-conspirator also did not support a lesser sentence, since defendant and the co-conspirator were not similarly situated. U.S. v. Hodge, 469 F.3d 749 (8th Cir. 2006).
8th Circuit holds that 50% variance below guideline range for felon in possession was unreasonable. (870) Defendant was convicted of being a felon in possession of a firearm. The advisory guideline range was 360 months to life (defendant qualified both as a career offender and an armed career criminal), but the district court imposed a sentence of 180 months, the statutory minimum. The court found that 180 months was “a long period of time in anybody’s book,” and doubted that anyone would be “more deterred by a 360-month sentence than a 180 month sentence.” The court also cited defendant’s young age (22) and was concerned that a longer sentence would undermine his chance at rehabilitation. The Eighth Circuit held that the sentence, which was a 50 percent reduction from the bottom of the guideline range, was unreasonable. Absent exceptional facts, a sentence “dramatically lower than that recommended by the guidelines is an abuse of the district court’s discretion.” The district court’s analysis gave insufficient weight to the statutory objective of avoiding unwarranted sentence disparities. 18 U.S.C. § 3553(a)(6). Congress has specified that career offender should be sentenced at or near the statutory maximum, 28 U.S.C. § 944(h), which in this case was life imprisonment. In addition, the primary reason for the variance, defendant’s age, “is not ordinarily relevant in determining whether a departure is warranted”. § 5H1.1. Given this, the statutory minimum sentence of 180 months was unreasonable. U.S. v. Maloney, 466 F.3d 663 (8th Cir. 2006).
8th Circuit rejects probationary sentence for felon in possession offense. (870) Defendant traveled from Florida to Iowa for his high school reunion. Police stopped him for driving without wearing a seatbelt, and arrested him when they observed marijuana inside his truck. Officers searching the truck also found a gun and ammunition. He admitted that he owned the pistol and transported it from Florida, and that he had smoked marijuana while the pistol was in his possession. Defendant was convicted of being a felon in possession of a firearm and ammunition, resulting in a guideline range of 15-21 months’ imprisonment. The district court imposed a sentence of probation, noting that no violence was involved in the offense, defendant had a supportive family, and was suffering from a variety of health problems, including addictions to alcohol and drugs. The Eighth Circuit held that the probationary sentence was unreasonable. The court failed to consider the need to avoid unwarranted sentencing disparities, and gave inappropriate weight to irrelevant or insignificant factors, such as defendant’s age and substance abuse problems. The court minimized the seriousness of defendant’s conduct, and minimized the effect a prison sentence has in achieving the goals of deterrence and promoting respect for the law. Judge Bright dissented. U.S. v. Likens, 464 F.3d 823 (8th Cir. 2006).
8th Circuit holds that numerous false documents established sophisticated means. (870) Defendant was convicted of a variety of fraud counts based on misrepresentations she made to a business lender, a mortgage company, and an investor. She challenged a sophisticated means enhancement under § 2F1.1(b)(6)(c) because she only made simple false statements in applying for loans, created false documents that were easy to generate, copied forms from the IRS website that was easily accessed, and ran a real, not fictitious, business. She also never used corporate shells or offshore bank accounts. The Eighth Circuit nonetheless affirmed the sophisticated means enhancement. Defendant created and used numerous false documents, including multiple years of federal tax returns, supporting federal tax documents, such as W-2 and 1999 forms, bank statements (created from whole cloth), Articles of Incorporation from the Arkansas Secretary of State, profit and loss statements, and a series of bank letters. Collectively, these false documents demonstrated that defendant used sophisticated means. U.S. v. Edelmann, 458 F.3d 791 (8th Cir. 2006).
8th Circuit rejects variance based on finding that some testimony regarding drug quantity was dubious. (870) The district court calculated defendant’s advisory guideline range for his methamphetamine offenses as 188-235 months. In imposing only a 120-month sentence, the court noted that the drug amount calculated by the PSR came from the testimony of two other felons, “leaving in the Court’s mind considerable doubt as to the accuracy of the drug amounts testified to.” Thus, in varying from the guidelines range, the district court found that some testimony regarding drug quantity was dubious. The Eighth Circuit reversed, ruling that the basis for the variance was “internally inconsistent” because it contradicted the court’s implicit credibility findings made in determining the advisory guideline range. In fashioning a reasonable sentence, a district court must first calculate the advisory guideline range before applying § 3553(a) factors. The court may still determine a witness’s credibility at sentencing, but if credibility is necessary to calculate the advisory guideline range, the court cannot consider credibility as part of its § 3553(a) analysis. U.S. v. Potillo, 458 F.3d 828 (8th Cir. 2006).
8th Circuit holds that consecutive sentence was not unreasonable. (870) Defendant was convicted in federal court of various drug charges, and was sentenced to 262 months in prison. The district court ordered the entire sentence to run consecutively to a state murder sentence defendant was serving in Kansas. The Eighth Circuit held that the consecutive sentence was not unreasonable. The district court explained, citing the § 3553(a) factors, why it was imposing a consecutive sentence rather than a concurrent sentence. The court noted defendant’s substantial criminal history, indicated that the nature and circumstances of the offense were reflected in the mandatory minimum and the guideline range, gave particular weight to the consideration that the sentence imposed reflect the seriousness of the offense and the need to protect the public from defendant, noted the need for the sentence to avoid unwarranted sentencing disparities, and saw that similarly situated defendant had received similar sentences. The court decided to impose a consecutive sentence because defendant’s murder conviction was an offense against the people of the State of Kansas, while his conspiracy conviction was an offense against the people of the United States. U.S. v. Winston, 456 F.3d 861 (8th Cir. 2006).
8th Circuit remands where court failed to specify reasons for granting substantial assistance motion. (870) Defendant pled guilty to various drug charges, resulting in an advisory guideline range of 135-168 months. The government moved for a substantial assistance departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(c), recommending a 20 percent departure and characterizing his information and testimony as “ok.” Defendant’s counsel asked for the court to consider § 3553(a) factors such as defendant’s drug treatment, relative sobriety, work history, and family support. The court sentenced defendant to concurrent 68-month sentences, which represented a 50 percent downward departure for the bottom of the advisory guideline range and a 43 percent reduction below the mandatory minimum sentence of 120 months. In doing so, the court discussed factors other than defendant’s assistance. The Eighth Circuit remanded because the court failed to specify its reason for granting the departure. The record did not disclose (1) the weight the court gave permissible factors regarding defendant’s assistance, (2) the court’s position regarding the government’s recommended 20 percent departure, (3) for what purpose the court considered factors other than defendant’s assistance. Given the nature of defendant’s assistance, it was uncertain whether a 50 percent reduction based solely on defendant’s assistance would be reasonable. U.S. v. Peterson, 455 F.3d 834 (8th Cir. 2006).
8th Circuit holds that probationary sentence for felon in possession offense was unreasonable. (870) Defendant was a convicted felon found in possession of a shotgun while hunting on his own property with a valid hunting license. Although his guideline range was 63-78 months,’ the district court sentenced defendant to five years’ probation. The court emphasized the context of the conduct that gave rise to the possession, noting he did not use a firearm “in an unsafe manner or any illegal fashion.” In addition, defendant’s felony convictions had occurred when he was a young man, and he had avoided recent criminal activity other than the current charge. The Eighth Circuit found the sentence unreasonable. The extent of the variance here was much greater than the degree of departure in U.S. v. One Star, 9 F.3d 60 (8th Cir. 1993) (12-level departure approached outer limits). The difference here between the sentence and the advisory range was akin to a minimum departure of 19 levels. The court gave undue to weight to the fact that defendant was hunting with the firearm at issue. Although he did not engage in “unlawful use” of the firearm, the statute under which he was charged did not require any use at all – his possession alone was sufficient for conviction. U.S. v. Robinson, 454 F.3d 839 (8th Cir. 2006).
8th Circuit rejects downward variance based upon defendant’s age and history of drug abuse. (870) Defendant pled guilty to methamphetamine charges, which, because of his three previous drug convictions, subjected him to an enhanced sentence under 21 U.S.C. § 851. Although his guideline range was 262-327 months’, the district court sentenced him to the statutory minimum of 120 months’ (a variance of about 54 percent from the bottom of the advisory guideline range) based primarily on his age and his history of drug abuse. The Eighth Circuit reversed, since defendant’s characteristics in these area were not exceptional. Drug addiction or abuse if not a proper reason to impose a downward variance, absent exceptional circumstances. See 18 U.S.C. § 3553(a)(5)(A); U.S.S.G. § 5H1.4. Defendant was more than a simple user of drugs. Two of his prior convictions were for distribution-related offenses, and the current offense was also for possession with intent to distribute. Defendant’s age was also not exceptional. He was 44 years old, healthy, and had no history of mental health problems. Defendant qualified as a career offender, and his drug addiction and age did not present exceptional circumstances that would warrant such an exceptional variance. U.S. v. Lee, 454 F.3d 836 (8th Cir. 2006).
8th Circuit rejects downward variance due to internally inconsistent reasoning. (870) At resentencing ordered in light of Booker, the district court found that defendant was responsible for 1.5 kilograms of cocaine base, which resulted in an adjusted offense level of 40, and an advisory guideline range of 360 months’ to life. The court varied downward from the advisory range and sentenced defendant to 240 months’ imprisonment. In explaining its decision to vary, the court discussed the credibility of the witnesses whose testimony established the quantity of crack trafficked by defendant, noting that most of the witnesses were cooperating witnesses who were seeking a benefit from the testimony, and they didn’t keep records and were relying on their memory. The court also noted that it did not believe that the distinction between powder and crack cocaine was “scientifically justified” and resulted in sentences “out of proportion” to the crime. The Eighth Circuit held that the variance was unreasonable because the court’s reasoning was internally inconsistent. In calculating the advisory guideline range, the court was required to make a finding about the credibility of the prosecution’s witnesses who testified about drug quantity. By finding that defendant’s base offense level was 38 based on a quantity of 1.5 kilograms of crack, the court necessarily credited the testimony of those witnesses. To then vary from the range because those witnesses may not have been credible would contradict the court’s own credibility finding made in determining the advisory range. Moreover, the court’s view that the powder/crack distinction was not justified and resulted in out of proportion sentences was not a sufficient basis to affirm the sentence imposed. The distinction does not result in an unreasonable sentence. U.S. v. Brown, 453 F.3d 1024 (8th Cir. 2006).
8th Circuit holds that probation was unreasonable sentence for defendant who possessed several firearms. (870) Defendant pled guilty to possession of a firearm by an unlawful user of a controlled substance, possession of an unregistered short-barreled shotgun, and possession of a stolen firearm. Although his guideline range was 46-57 months’ imprisonment, the district court sentenced defendant to five years of probation. The Eighth Circuit held that the district court abused its discretion. The district court considered some § 3553(a) matters, such as the need to keep defendant from committing further crimes. However, the court paid little notice to other relevant matters, such as the requirement in § 3553(a) (2)(B) that a sentence should deter others from committing similar crimes. In fact, the court explicitly noted that a sentence of probation “would do little to deter others,” but thought probation would be sufficient to keep defendant from re-offending. The court also did not give proper weight to the seriousness of defendant’s offenses. Police found stolen property throughout defendant’s residence, including a high-powered rifle, and the short-barreled shotgun. Finally, the sentence did not meet the requirement that sentences should “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Defendant’s rehabilitation could not be allowed to trump all the other considerations in § 3553(a). U.S. v. Medearis, 451 F.3d 918 (8th Cir. 2006).
8th Circuit approves 56 percent upward departure for “one man crime wave.” (870) Defendant committed bank fraud in South Dakota while on supervised release for several Massachusetts federal convictions. The district court departed upward under § 4A1.3 from a guideline range of 92-115 months to a sentence of 180 months. The Eighth Circuit ruled that the extent of the departure was reasonable. Although the 56 percent departure was “significant,” the district court did not exceed the bounds of its discretion. As the court noted defendant’s “behavior suggest[ed] an addiction to deceiving people.” Describing defendant as a “one man crime wave,” and pointing to defendant’s “heinous” conduct of stealing his deceased brother’s life insurance proceeds from his mother and bring his mother into legal jeopardy by forging her name on checks and withdrawals, the court stated it had not seen “a more dedicated history of criminal activity” by someone only 38 years old. U.S. v. Hacker, 450 F.3d 808 (8th Cir. 2006).
8th Circuit holds that downward variance to probation for tax evader was unreasonable. (870) Defendant was convicted of willfully failing to file federal income tax returns for the years 1997-1999, respectively. Although defendant’s guideline range was 12-18 months’ imprisonment, the district court sentenced defendant to two years of probation and 300 hours of community service. The court found no reason to sentence defendant to prison, finding that the sentence it imposed, and the anticipated cost of back taxes, interest and penalties, constituted a sufficient sentence. The court also mentioned that this was defendant’s first offense “after a long life,” defendant used “relatively unsophisticated means” to commit the crime, he cooperated fully with authorities, and expressed remorse. The Eighth Circuit held that the sentence was unreasonable. Defendant’s sentence amounted to a 100 percent variance from the guidelines. Such an extraordinary variance must be supported by extraordinary circumstances. Given the long duration of defendant’s criminal conduct, the tremendous amount of taxes evaded, and his enlistment of an employee to assist with the crime, the district court failed to adequately consider the seriousness of defendant’s offense. Under the circumstances, any sentence without a term of imprisonment would be unreasonable. U.S. v. Ture, 450 F.3d 352 (8th Cir. 2006).
8th Circuit upholds sentence above guideline range for defendant who severely scalded toddler in bathtub. (870) Defendant pled guilty to assault resulting in serious injury following the bathwater burning of his two-year old daughter. The district court imposed a sentence of 60 months, which was three months above the top of his advisory guideline range. The Eighth Circuit upheld the sentence as reasonable, rejecting defendant’s argument that the sentence was the product of the court’s emotion rather than the result of proper judicial reasoning. Although the court characterized the crime as “torture,” this can be a ground for an upward departure from the guideline range. See U.S.S.G. § 5K2.8. The court’s use of the word torture was not emotional hyperbole, but a deliberate finding of fact in support of the sentence. The court also properly considered the § 3553(a) factors. Given the brutality of the crime, the defenseless and prolonged suffering of the victim, the severity of the injuries, the resulting permanent disfigurement and the complete abdication of defendant’s most basic responsibility as a parent, the 60-month sentence was reasonable. U.S. v. Little Hawk, 449 F.3d 837 (8th Cir. 2006).
8th Circuit holds that limited criminal history and drug-free status did not support large variance. (870) Defendant pled guilty to conspiracy to distribute 50 or more grams of cocaine base. Although his applicable guideline range was between 70-87 months, the district court sentenced him to 30 months’ imprisonment. As reasons for the variance, the court cited defendant’s good record, and the fact that he had been drug-free for the previous nine months. The Eighth Circuit held that the variance was not supported by the record. The further the district court varies from the presumptively reasonable guideline range, the more compelling the justification based on the § 3553(a) factors must be. The 30-month sentence was a 57 percent downward variance from the bottom of defendant’s advisory guideline range. Defendant’s limited criminal history was already reflected in his guideline sentence (he was assigned a criminal history of I) and therefore it was unreasonable for the court to use that criminal history as justification for an extraordinary variance. In addition, while remaining drug-free for nine months was commendable, it was not an extraordinary factor sufficient to justify such a large variance from the presumptively reasonable guideline range. U.S. v. Bryant, 446 F.3d 1317 (8th Cir. 2006).
8th Circuit bars consideration of potential disparity between federal sentence and sentence defendant might have received in state court. (870) Defendant pled guilty to violating 18 U.S.C. § 2425, using interstate facilities to transmit information about a minor in order to entice or solicit criminal activity. He requested a variance from the advisory guidelines based on the potential disparity between the sentence he might have received had he been convicted in Arkansas state court and the sentence he faced as a result of his conviction on the federal charge. The Eighth Circuit held that the sentencing court was neither required nor permitted to consider such a potential disparity. See U.S. v. Deitz, 991 F.2d 443 (8th Cir. 1993) (possible discrepancy between state and federal sentences is a factor the Sentencing Commission considered but chose not to account for in the guidelines.) Nothing in Booker cast doubt on the decision in Deitz. Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6), both before and after Booker. U.S. v. Jeremiah, 446 F.3d 805 (8th Cir. 2006).
8th Circuit says defendant satisfied plain error test where judge expressed desire to sentence him to a lower sentence. (870) The district court found that defendants possessed nine guns, six more than the jury convicted them of unlawfully possessing. The district court sentenced defendants under the belief that the guidelines were mandatory. Defendants did not raise a challenge based on Apprendi or Blakely, nor argued that the guidelines were unconstitutional. The Eighth Circuit found that one defendant did not meet his burden of showing plain error and the other did. Although the first defendant was sentenced at the low end of the sentencing range, that was insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error. However, the judge stated that the second defendant was less culpable than the first, and said if “the court had a way legally to [give the second defendant] a lower sentence I would.” U.S. v. Fleck, 413 F.3d 883 (8th Cir. 2005).
8th Circuit says Booker’s unreasonableness standard applies only to determination of ultimate sentence, not to interpretation of guidelines. (870) Defendant challenged a number of sentencing enhancements he received. The Eighth Circuit ruled that it would continue to review de novo the interpretation and application of the guidelines provisions after U.S. v. Booker, 543 U.S. 220 (2005). The unreasonableness standard articulated by the Supreme Court in Booker applies only to the district court’s determination of the ultimate sentence to impose based on all the factors in 18 U.S.C. § 3555(a), not to the district court’s interpretation of the meaning and applicability of the guidelines themselves. The appellate court “must continue to interpret the correct meaning and application of guidelines language, because the district court must continue to determine the appropriate guidelines sentencing range,” as it did pre-Booker, before it considers the other facts in 18 U.S.C. § 3553(a). The now-advisory guidelines, when correctly applied, become a consideration for the district court in choosing a reasonable ultimate sentence. Reasonableness may be “directly linked to the district court’s misapplication of a relevant guideline,” but is based on broader considerations than whether the guidelines were properly applied. U.S. v. Mathijssen, 406 F.3d 496 (8th Cir. 2005).
8th Circuit outlines standard of review of post-Booker sentences. (870) The Eighth Circuit found that a post-Booker review of a timely raised challenge to the district court’s interpretation and application of the guidelines is a two-step process. First, the appellate court will continue to examine de novo whether the district court correctly interpreted and applied the guidelines. The court will also continue to review findings of fact for clear error. If the sentence was imposed as the result of an incorrect application of the guidelines, the appellate court will remand for resentencing as required by 18 U.S.C. § 3742(f) (1) without reaching the reasonableness of the resulting sentence in light of § 3553(a). If the court determines that the district court correctly calculated the applicable guideline range, the second step of the analysis is a review of any challenge to the reasonableness of the sentence in light of § 3553(a). This examination includes whether the district court’s decision to grant a § 3553(a) variance from the proper guideline range is reasonable, and whether the extent of any § 3553(a) variance or guidelines departure is reasonable. If the district court correctly applied the guidelines and imposed a reasonable sentence in light of § 3553(a), the Eighth Circuit will affirm the judgment. U.S. v. Mashek, 406 F.3d 1012 (8th Cir. 2005).
8th Circuit, en banc, says plain error requires reasonable probability that court would have imposed more lenient sentence under advisory guidelines. (870) Following the decisions of the First, Fifth, and Eleventh Circuits, the Eighth Circuit en banc held that where a defendant failed to preserve a claim under U.S. v. Booker, 543 U.S. 220 (2005), a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice, i.e. a reasonable probability that the district court would have imposed a more favorable sentence under the advisory Sentencing Guidelines regime. Defendant here did not establish a reasonable probability of prejudice. Although the sentence imposed was at the bottom of the guidelines range, this by itself was insufficient to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error. Judge Bye dissented. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc).
8th Circuit, en banc, says defendant’s sufficiency of proof objection did not preserve Booker claim. (870) Defendant argued that he preserved his claim of error under Booker when his attorney stated, in arguing against an enhancement, that “the burden of proof should be beyond a reasonable doubt.” Because defendant did not couple this statement with a specific reference to Apprendi or Blakely or the Sixth Amendment, the 8th Circuit, en banc, ruled that he did not preserve the very different question of whether the district court committed Booker error in construing the guidelines as mandatory. Judge Heaney dissented, believing defendant preserved the error under existing precedent. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc).
8th Circuit rules drug type finding was factual finding reviewable only for clear error. (870) Defendant and the government agreed that defendant was responsible for 13 pounds of a controlled substance. Defendant insisted that the substance was amphetamine; the district court found it was methamphetamine. The Eighth Circuit ruled that this was a factual finding reviewable only for clear error, rather than an application of the guidelines to the facts to be reviewed de novo. The district court did not inquire into what substance defendant intended to distribute, but what the evidence showed about the actual composition of the controlled substance involved. Because the vast majority of the 13 pounds was not available for testing, the district court analyzed the testimony of members of the conspiracy regarding their understanding of the identity of the drug, as well as evidence from controlled buys from defendant’s customers and suppliers. The court also observed that all of the members of the conspiracy had pled guilty to meth, not amphetamine. Finally, the court did not find credible defendant’s claim that he distributed only amphetamine. Thus, it was clear that the district court’s decision as to the identity of the drugs was a factual finding. U.S. v. Hyatt, 207 F.3d 1036 (8th Cir. 2000).
8th Circuit reviews reason for sentence at top of range even though court not required to state reason. (870) 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 reviews de novo determination of related cases. (870) The 8th Circuit reviewed de novo the district court’s decision that defendant’s prior convictions were not related under section 4A1.2. U.S. v. Watson, 952 F.2d 982 (8th Cir. 1991)
8th Circuit applies clearly erroneous standard of review to determination that prior conviction was not invalid. (870) The 8th Circuit held that a sentencing court’s determination of whether a conviction used to enhance a defendant’s sentence under guideline section 4A1.2 was constitutionally valid should be reviewed for clear error and application of the proper legal standards. Here, the district court’s determination that defendant’s waiver of counsel was voluntary and knowing was not clearly erroneous. The transcript showed that state court thoroughly explained the right to have counsel and defendant’s prior experience and conduct at the hearing indicated that he was aware of the possible consequences. U.S. v. LaFrombois, 943 F.2d 914 (8th Cir. 1991).
8th Circuit counts innocent employees in finding that defendant’s criminal activity was “otherwise extensive.” (870) The district court concluded that there were at least eight employees who “knowingly or unknowingly participated in the instant offense of which this defendant was an organizer and leader.” Defendant contended that the other employees were not “participants” under guideline § 3B1.1(b) because they were not criminally involved. Reviewing this issue de novo, the 8th Circuit upheld the enhancement. While it is true that the word “participants” refers to persons criminally responsible for their acts, a defendant’s aggravating role can also be based upon supervision of an “otherwise extensive” criminal activity. This refers to the number of persons involved in the operation, including outsiders who did not have knowledge of the facts. Judge Heaney dissented from this portion of the opinion, finding that the involvement of eight company employees was not sufficient to make defendant’s criminal activity “otherwise extensive.” U.S. v. West, 942 F.2d 528 (8th Cir. 1991).
8th Circuit holds that number of weapons and relevancy of conduct are factual findings reversible only for clear error. (870) Defendant pled guilty to possession of an unregistered firearm. His offense level was increased under guideline § 2K2.2(b)(1)(B) based upon his distribution of six firearms. The 8th Circuit rejected defendant’s contention that this was improper since he was indicted for possessing only a single weapon. In drug cases, an appellate court may sentence on the basis of uncharged but relevant conduct to calculate offense levels. The amount of drugs and the relevancy of conduct are factual findings reversible only for clear error. The court found that the same rationale was applicable here. U.S. v. Dennis, 926 F.2d 768 (8th Cir. 1991).
8th Circuit reaffirms that relevant conduct determination is a factual finding subject to the clearly erroneous standard. (870) The 8th Circuit reaffirmed that a district court’s determination of “whether uncharged drugs are part of a common scheme or plan is a factual finding which will be disturbed only if clearly erroneous.” Moreover, a district court’s determination of the quantity of drugs for sentencing purposes is also a factual finding subject to the clearly erroneous standard. U.S. v. Lawrence, 915 F.2d 402 (8th Cir. 1990).
8th Circuit reviews minor participant finding under “clearly erroneous” standard. (870) Defendant argued that the district court erred in failing to find that he was a minor participant pursuant to guidelines § 3B1.2. The 8th Circuit held that the district court’s finding that defendant was not a minor participant is a finding of fact subject to review under the clearly erroneous standard. Here the record adequately supported the district court’s finding. Accordingly the 8th Circuit upheld the finding as not clearly erroneous. U.S. v. Follett, 905 F.2d 195 (8th Cir. 1990).
8th Circuit holds that vulnerability of a victim is reviewed under the “clearly erroneous” standard. (870) Defendant received a two level increase in base offense level because the victim was especially vulnerable. The 8th Circuit ruled that the appropriate standard of review for determination of the vulnerability of a victim is the clearly erroneous standard. U.S. v. Boult, 905 F.2d 1137 (8th Cir. 1990).
8th Circuit rules that evidence was sufficient to support district court’s sentencing findings. (870) Applying the “clearly erroneous” standard of review, the 8th Circuit upheld the district court’s findings that the defendant had possessed one kilo of cocaine in 1987 and possessed a weapon during the commission of the offense. Thus, it was proper to consider these facts when determining the offense level. U.S. v. Ehret, 885 F.2d 441 (8th Cir. 1989).
8th Circuit rules minor or minimal status in offense is a factual question subject to review for clear error. (870) Under guideline § 3B1.2, a defendant who is a minimal or minor participant is entitled to a two to four level reduction in his offense level. This determination is a factual one to be determined by the sentencing court. Thus it is subject to review only for clear error. U.S. v. Nunley, 873 F.2d 182 (8th Cir. 1989).
8th Circuit rules weight of drugs is a factual finding subject to review for clear error. (870) Defendant was convicted of selling rock cocaine. He claimed that because the government only proved at trial that the quantity of drugs he possessed was enough to exceed the statutory maximum, it was error for the sentencing court to rely on the higher figure of 46-66 grams, the amount he actually possessed. The 8th Circuit disagreed. Relying on a footnote to the drug quantity table under § 2D1.1, the court stated that because the sentencing court had a sufficient foundation for the finding, it was not clearly erroneous. U.S. v. Brett, 872 F.2d 1365 (8th Cir. 1989).
9th Circuit says appeal waiver does not bar argument that sentence was imposed in an unconstitutional manner. (870) In a plea agreement, defendant waived his right to appeal any sentence that was under the statutory maximum and was constitutional. On appeal, defendant argued that the district court violated the Sixth Amendment by excluding his family from his sentencing hearing. The Ninth Circuit held that the appeal waiver did not preclude defendant’s appeal to argue that his sentence was imposed in an unconstitutional manner. U.S. v. Rivera, 682 F.3d 1223 (9th Cir. 2012).
9th Circuit says sentence based on improper guidelines calculation is not harmless error. (870) The Ninth Circuit found that the district court erred by not increasing defendant’s offense level for illegal reentry after removal by 16 levels based on the defendant’s prior conviction. Defendant argued, however, that the error was harmless because the district court said during the sentencing hearing that the sentence imposed was sufficient but not greater than necessary to satisfy the statutory purposes of sentencing. The Ninth Circuit held that an error in the calculation of the Guidelines range is ordinarily not harmless and that defendant had not shown that the error was harmless in his case. U.S. v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012).
9th Circuit, en banc, reverses Millennium Bomber’s 22-year sentence as too short. (870) Defendant was caught at the Canadian border with explosives that he intended to detonate at the Los Angeles International Airport on the eve of the new millennium, December 31, 1999. He was convicted on nine counts in connection with the plot. Thereafter, he began cooperating with the government in investigating and prosecuting other terrorists around the world. Eventually, however, he stopped cooperating and recanted all his previous testimony and statements. In 2005, the district court sentenced him to 22 years in prison plus five years supervised release. Both sides appealed. The Ninth Circuit reversed one conviction and remanded for resentencing. At the resentencing hearing, the district court noted that the guideline range was 65 years to life, but imposed the same sentence. The en banc Ninth Circuit, in an opinion by Judge Clifton, reversed the sentence as substantively unreasonable, ruling that the 22-year sentence was an abuse of discretion under Gall v. U.S., 552 U.S. 38, 46 (2007). Judge Reinhardt, joined by Chief Judge Kozinski and Judge Wardlaw, concurred separately. Judge Schroeder, joined by Judges Paez, Berzon and Murguia, dissented. U.S. v. Ressam, 679 F.3d 1069 (9th Cir. 2012).
9th Circuit acknowledges inconsistency in standard of review for breach of plea agreement. (870) In reviewing a claim that the government breached a plea agreement, the Ninth Circuit noted that it has “not been entirely consistent” in setting forth the standard of review for a claim that the government breached a plea agreement. The court noted that it had used both a de novo and a clearly erroneous standard. Because the court found the district court to be clearly erroneous, it held that it was unnecessary to resolve the inconsistency. U.S. v. U.S. v. Alcala-Sanchez, 666 F.3d 571 (9th Cir. 2012).
9th Circuit says guidelines error is not harmless even though district court would have imposed same sentence. (870) At defendant’s sentencing, the district court erred in calculating defendant’s offense level. The court stated, however, that it would have imposed the same sentence if it had calculated the guidelines in the manner advanced by defendant. On appeal, the Ninth Circuit held that the district court erred in calculating the guidelines and that the court should have used the approach advocated by defendant. The court found that the error was not harmless because the court started with an incorrect guideline calculation. A district court’s mere statement, without more, that it would impose the same above-guidelines sentence regardless, does not make the error harmless where the court failed to initially determine the correct guidelines range. U.S. v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011).
9th Circuit affirms downward variance to probation in child pornography case. (870) Defendant’s guideline range for possessing child pornography was 41 to 51 months, but the district court granted a Booker variance to straight probation. In a lengthy discussion of the proper method for determining a sentence after Booker, a divided Ninth Circuit panel ruled 2-1 that the sentence was not an abuse of discretion. The majority found that the district court properly treated the guidelines as a “benchmark,” and properly considered the seven factors in 18 U.S.C. §3553(a). Judge Tashima dissented, arguing that the sentence was unreasonable under 18 U.S.C. §3553(a). U.S. v. Autery, 555 F.3d 864 (9th Cir. 2009).
9th Circuit reviews reasonableness for abuse of discretion despite failure to object at sentencing. (870) Defendant’s guideline range for possessing child pornography was 41 to 51 months, but the district court granted a Booker variance to straight probation. The government did not object at the time, but appealed, arguing that the sentence was substantively unreasonable. The Ninth Circuit joined the Seventh and D.C. Circuits in holding that the government’s failure to object at sentencing did not waive its right to appeal, and that the proper standard of review was for an abuse of discretion, See U.S. v. Bras, 483 F.3d 103, 113 (D.C. Cir. 2007) and U.S. v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir. 2005). The panel rejected the Fifth Circuit’s holding in U.S. v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), that “a defendant’s failure to object at sentencing to the reasonableness of his sentence” triggers plain error review. The panel also noted that Tenth Circuit in U.S. v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006) held that unchallenged errors in the method of sentence determination are still reviewed for plain error. Thus, the substantive reasonableness of a sentence—whether objected to or not at sentencing—is reviewed for abuse of discretion. U.S. v. Autery, 555 F.3d 864 (9th Cir. 2009).
9th Circuit affirms 36-year sentence for double murder. (870) Defendant was convicted under 18 U.S.C. § 2280 of murdering the captain and first mate of the ship on which he was a crew member while the vessel was on the high seas. The district court imposed a sentence of 36 years. In imposing sentence, the court noted that defendant had no prior criminal record but that defendant’s offense had put the lives of the entire crew of the ship at risk. The Ninth Circuit held that the sentence was not unreasonable. U.S. v. Shi, 525 F.3d 709 (9th Cir. 2008).
9th Circuit reviews appeal from sentence within range stipulated in plea agreement. (870) Defendants pleaded guilty pursuant to plea agreements under Federal Rule of Criminal Procedure 11(c)(1)(C) agreeing that the appropriate sentence was within a stipulated range. At sentencing, the district court found that the range under the advisory Guidelines was higher than the stipulated range, but nevertheless sentenced within the range in the plea agreement. Defendants appealed, arguing that the district court erred in calculating the advisory Guideline range and that the sentence imposed was unreasonable. The Ninth Circuit held that because neither defendant waived the right to appeal, the court had jurisdiction to consider the reasonableness of defendants’ sentences. On the merits, the court found the sentences reasonable. U.S. v. Garcia, 522 F.3d 855 (9th Cir. 2008).
9th Circuit does not assess reasonableness of each step of Guideline application. (870) Defendant pleaded guilty to possessing equipment for making credit card access devices, in violation of 18 U.S.C. § 1029(a)(4), based on his possession of a “skimmer” that was used to steal credit card numbers. The Guideline for that offense, § 2B1.1(b)(10), provides that if the offense level yielded by application of the guideline is less than 12, then the defendant’s offense level should be increased to 12. Application of that provision resulted in a six-level increase in defendant’s offense level. Defendant argued that as applied to him, the offense-level increase required by § 2B1.1(b)(10) was unreasonable. The Ninth Circuit held that a district court should not assess the reasonableness of each step of the application of the Guidelines; instead, the court must calculate the Guidelines range and then determine whether application of the Guidelines results in an unreasonable sentence. If the operation of a particular guideline has “inappropriately distorted” the guideline range, the court may take that into account in determining the final sentence. U.S. v. Barsumyan, __ F.3d __ (9th Cir. Feb. 28, 2008) No. 07-50251.
9th Circuit upholds 293-month sentence for attempt to entice minor to have sex. (870) Using the Internet, defendant induced an FBI decoy he believed to be a minor to have sex with him. He was arrested when he arrived at a meeting with the supposed minor. Based on that conduct, he was convicted of attempting to use a facility of interstate commerce to entice or coerce a minor into illegal sexual activity, in violation of 18 U.S.C. § 2422(b). Defendant had a prior state conviction for sexually molesting two other girls whom he met on the Internet. Defendant’s guideline range was 235-293 months, and the district court sentenced him to 293 months’ imprisonment. The Ninth Circuit noted that the sentence may be “unduly harsh” and that it exceeded the sentence usually given for completed sex crimes like rape, but found that it was not unreasonable. U.S. v. Cherer, 513 F.3d 1150 (9th Cir. 2008).
9th Circuit finds 18-year drug-trafficking sentence did not cause an unreasonably disparity. (870) Defendant was convicted of conspiracy to import cocaine and aiding and abetting the possession with intent to distribute 2,000 pounds of cocaine based on his assistance in building a tunnel from Mexico to the U.S. He was sentenced to 18 years in prison, 76 months below the applicable guideline range. He argued that his sentence was unreasonable because it was disproportionate to the sentences of two of his coconspirators who pleaded guilty and testified for the government. One coconspirator received a ten-year sentence and one received an 18-year sentence. The Ninth Circuit held that the district court had properly considered the factors set forth in 18 U.S.C. § 3553(a) and the disparity among the coconspirators’ sentences and that defendant’s sentence was not unreasonable. U.S. v. Corona-Verbera, 509 F.3d 1105 (9th Cir. 2007).
9th Circuit holds indictment’s failure to allege a fact necessary to raise statutory maximum subject to harmless error. (870) Under 8 U.S.C. § 1326(b), a defendant convicted of illegal reentry after removal is subject to an increased maximum sentence if he was removed after committing an aggravated felony. The Ninth Circuit held that when the government seeks an enhanced sentence under § 1326(b), the indictment must allege either the date of the defendant’s prior removal or the temporal relationship between the removal and the defendant’s prior conviction. The court held, however, that the failure to allege in the indictment a fact necessary to trigger a higher sentence is not structural error and that it is subject to harmless error review. U.S. v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007).
9th Circuit says 262-months for child porn offense was reasonable. (870) Defendant twice ordered videotapes containing images of young girls having sex with their parents. A search of his computer turned up numerous images of child pornography. When arrested defendant admitted that he had sexually abused his own children and stepchildren 35 years earlier and that he had distributed child porn over the Internet. The district court sentenced defendant to 262 months’ imprisonment, even though the court recognized that defendant’s age and health meant that he would die in prison. The Ninth Circuit held that the sentence was not unreasonable. U.S. v. Garner, 490 F.3d 739 (9th Cir. 2007).
9th Circuit says error in enhancing illegal reentry sentence based on judge’s finding of uncharged removal was harmless. (870) Under 8 U.S.C. § 1326, a defendant who illegally reenters the U.S. after being removed is subject to a substantially higher sentence if the prior removal occurred after an aggravated felony. In U.S. v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006), the court held that a sentencing court may not enhance the sentence of a defendant convicted under § 1326 based on a removal subsequent to a prior conviction unless that removal has been admitted by the defendant or proved beyond a reasonable doubt. In pleading guilty to a § 1326 violation, defendant admitted that he had previously been removed in 2002. At sentencing, the district court found that defendant had again been removed in 2004, after he had been convicted of a felony crime of violence, and sentenced him to an enhanced sentence. The Ninth Circuit held that the district court violated Covian-Sandoval by enhancing defendant’s sentence based on its findings that he had been removed after a conviction for a crime of violence. The court found beyond a reasonable doubt, however, that the result would have been the same absent the error and thus that the error was harmless. U.S. v. Zepeda-Martinez, 470 F.3d 909 (9th Cir. 2006).
9th Circuit says that district court’s conclusion that it would have imposed same sentence under Booker is unreviewable. (870) Defendant was sentenced before the decision in U.S. v. Booker, 543 U.S. 220 (2005). On appeal, he did not challenge his sentence, and the court of appeals affirmed. After Booker was decided, defendant filed a timely petition for rehearing seeking the benefit of Booker. Pursuant to U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court of appeals remanded to allow the district court to determine whether it would have imposed a lower sentence if it had known that the guidelines were advisory. The district court concluded that it would not have imposed a materially different sentence. The Ninth Circuit held that a district court’s decision in an “Ameline remand” that it would have imposed the same sentence under an advisory guideline system is “effectively unreviewable” and subject to “absolute deference,” as long as the district court understood the scope of its discretion after Ameline and Booker. U.S. v. Combs, 470 F.3d 1294 (9th Cir. 2006).
9th Circuit says that court’s expression of concern over drug quantity calculation does not preserve objection. (870) Based on interviews with people who bought methamphetamine from defendant, the presentence report estimated that defendant’s offense involved between 17 and 104 kilograms of methamphetamine. Defendant did not object to the PSR’s calculation. At sentencing, the district court expressed concern about the accuracy of the PSR’s calculation, but nevertheless accepted the PSR’s figure. Defendant did not object to the court’s finding concerning the amount of drugs involved in defendant’s offense. The Ninth Circuit rejected defendant’s contention that because the district court expressed concern about the accuracy of the PSR’s calculation, his counsel did not have to object to preserve the issue for review. Instead, the court held that the district court’s calculation of the amount of methamphetamine would be reviewed for plain error. U.S. v. Santiago, 466 F.3d 801 (9th Cir. 2006).
9th Circuit en banc to review role of guidelines in post-Booker sentencing. (120) On August 21, 2006, the Ninth Circuit granted en banc review in U.S. v. Carty, 453 F.3d 1214 (9th Cir. 2006) and U.S. v. Zavala, 443 F.3d 1165 (9th Cir. 2006) to undertake a comprehensive review of post-Booker sentencing decisions. The questions the court invited the parties to address include whether the court of appeals has jurisdiction to review a within-guidelines sentence; whether within-guidelines sentences are entitled to a presumption of reasonableness; the approach the court of appeals should use in reviewing a sentence for reasonableness; whether the district court has a duty to articulate its consideration of the factors set forth in 18 U.S.C. § 3553(a); and the weight that the advisory guidelines range has in relation to other § 3553(a) factors. U.S. v. Carty, 462 F.3d 1066 (9th Cir. 2006) (granting rehearing en banc).
9th Circuit finds sentence for firearm possession reasonable. (870) At defendant’s sentencing for possession of a firearm by a convicted felon, the court noted that defendant had earned his high school degree, said that defendant had likely “turned a corner” to a more productive life, and expressed sympathy for the fear of retaliation from gang members that had led defendant to carry a gun. The court nevertheless sentenced defendant within the advisory guideline range because defendant had two loaded firearms and tried to escape from a police officer. The Ninth Circuit found that the sentence was reasonable, noting that the district court had considered the guidelines and the applicable factors under 18 U.S.C. § 3553(a). U.S. v. Clark, 452 F.3d 1082 (9th Cir. 2006).
9th Circuit vacates sentence based on “preserved nonconstitutional” Booker error. (870) Defendant was sentenced prior to Booker under the mandatory guidelines regime. At sentencing, the district court enhanced defendant’s offense level by 16 levels based on his prior convictions, but did not increase defendant’s sentence based on any other facts that had not been admitted by the defendant or found by the jury. The court sentenced defendant in the middle of the guideline range. After finding that defendant had preserved his claim that the district court committed nonconstitutional error by sentencing him under the then-mandatory guidelines, the Ninth Circuit held that the government had not pointed to any evidence showing that the error was harmless. On that basis, the court vacated defendant’s sentence. U.S. v. Beng-Salazar, 452 F.3d 1088 (9th Cir. 2006).
9th Circuit holds that constitutional objection to sentence preserves nonconstitutional Booker claim. (870) At defendant’s pre-Booker sentencing for illegal reentry after deportation, he argued that the district court’s use of his prior conviction to enhance his offense level and calculate his criminal history category violated the Sixth Amendment. The district court rejected these challenges and sentenced defendant under the then-mandatory guidelines. In imposing sentence, however, the district court did not rely on any facts (other than defendant’s prior convictions) that had not been admitted by the defendant or found by the jury beyond a reasonable doubt. On appeal, the Ninth Circuit held that defendant’s Sixth Amendment objections to the use of his prior convictions were sufficient to preserve his nonconstitutional claim that the district court erred in sentencing him under the then-mandatory guidelines. U.S. v. Beng-Salazar, 452 F.3d 1088 (9th Cir. 2006).
9th Circuit says that sentences for offenses without a guideline are reviewed for “reasonableness.” (870) Under 18 U.S.C. § 3742(a), a sentence for an offense for which there is no Sentencing Guideline will be reversed only if it is “plainly unreasonable.” The Ninth Circuit held that after Booker, the applicable standard for all sentences, including sentences for offenses for which there is no guideline, is “reasonableness.” Accordingly, although the sentencing range for a violation of supervised release is set by policy statements, not guidelines, the court reviewed a sentence imposed upon revocation of supervised release for “reasonableness.” U.S. v. Miqbel, 444 F.3d 1173 (9th Cir. 2006).
9th Circuit says guidelines have no greater weight than other sentencing factors. (870) At defendant’s sentencing, the district court placed the burden on defendant to justify a sentence outside of the range generated by the Sentencing Guidelines calculation. The Ninth Circuit held that the district court erred in treating the guidelines sentence as the presumptive sentence. Instead, the court held, the guideline range is only the “starting point” for determining the sentence and should be given the same weight as the other factors set forth in 18 U.S.C. § 3553(a). The court stated that it was not deciding whether a reviewing court should treat a sentence within the guideline range as presumptively reasonable. U.S. v. Zavala, 443 F.3d 1165 (9th Cir. 2006), vacated, U.S. v. Carty, 520 F.3d 984 (9th Cir. 2008).
9th Circuit finds 15-year sentence for child porn offense reasonable. (870) Defendant was found guilty of possession of images of minors engaged in sexually explicit conduct. At sentencing, the district court found that defendant had a sentencing range under the guidelines of 151 to 188 months. The district court noted that defendant had sexually abused his own grand-daughter, created child pornography using his granddaughter, accused his son of the sexual abuse he committed, failed to show any remorse, and collected thousands of images of minors engaged in sexually explicit conduct. A psychiatric evaluation found that defendant continued to present a risk to the community. On the basis of these factors, the district court imposed a sentence of 180 months, the statutory maximum. The Ninth Circuit held that this sentence was not unreasonable. U.S. v. Williamson, 439 F.3d 1125 (9th Cir. 2006).
9th Circuit finds sentence above guideline range was reasonable. (870) Defendant was convicted of assault resulting in serious bodily injury based on an incident in which he severely kicked and beat his girlfriend. Defendant’s sentencing range under the guidelines was 27-33 months. At sentencing, the district court imposed a 48-month sentence based on the defendant’s extensive criminal record, the likelihood that defendant would offend again, defendant’s capacity to commit brutal and degrading acts, and the substantial injury he inflicted on his girlfriend with his heavy boots. The Ninth Circuit found that the district court had properly considered the appropriate factors under 18 U.S.C. § 3553(a) and concluded that the sentence was reasonable. U.S. v. Bad Marriage, 439 F.3d 534 (9th Cir. 2006).
9th Circuit says that disparity between co-defendants’ sentences does not make sentence unreasonable. (870) Defendant pleaded guilty to assault resulting in serious bodily harm and was sentenced to 71 months, a sentence at the high end of the advisory guidelines range. A co-defendant received a 37-month sentence. The Ninth Circuit held that the 71-month sentence was reasonable, and that it was not rendered unreasonable by the fact that it was nearly twice as long as the co-defendant’s sentence. U.S. v. Plouffe, 436, F.3d 1062 (9th Cir. 2006), amended, 445 F.3d 1126 (9th Cir. 2006).
9th Circuit announces that guidelines sentence is “presumptively reasonable.” (870) In the course of determining whether the district court had properly calculated defendant’s sentencing level, the Ninth Circuit noted that although the guidelines are advisory after U.S. v. Booker, 543 U.S. 220 (2005), “a sentence suggested by the guidelines is presumptively reasonable.” U.S. v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. 2006).
9th Circuit clarifies procedure for post-Booker review. (870) The Ninth Circuit set out the procedure it will use to review sentences under Booker. First, the court held, it will determine whether the district court correctly calculated the applicable guidelines range. If not, and the error is material, the court will remand. Second, if the district court did not err in applying the guidelines, the court will consider the overall reasonableness of the sentence in light of the factors set forth in 18 U.S.C. § 3553(a). U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006).
9th Circuit says that post-Booker review of departure authority is abuse of discretion. (870) The Ninth Circuit held that after U.S. v. Booker, 543 U.S. 220 (2005), the Court of Appeals reviews the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of the case for abuse of discretion, and the district court’s factual findings for clear error. U.S. v. Menyweather, 447 F.3d 625 (9th Cir. 2005), implied overruling recognized by U.S. v. Munoz-Camarena, 621 F.3d 967 (9th Cir. 2010).
9th Circuit says that family ties may warrant non-guidelines sentence even if they do not support departure. (870) Under § 5H1.6, family ties and responsibilities are not ordinarily relevant in determining whether a departure is warranted. The district court departed downward in part because defendant was the sole parent of her child and had an unusually strong relationship with the child. The Ninth Circuit upheld the departure, but noted that even if the court erred in departing, a court may after Booker now consider family ties and responsibilities as part of the “history and characteristics” of the defendant under 18 U.S.C. § 3553(a)(1). Balancing that factor against the other factors under § 3553(a), the court held that the defendant’s sentence was reasonable. U.S. v. Menyweather, 447 F.3d 625 (9th Cir. 2005), implied overruling recognized by U.S. v. Munoz-Camarena, 621 F.3d 967 (9th Cir. 2010).
9th Circuit holds that Ex Post Facto violation in sentencing is not subject to harmless error review. (870) After the Ninth Circuit found that the application of an amendment to California sentencing law could not be applied to a defendant who had committed his offense before the amendment, the State argued that the ex post facto error should be subject to harmless error analysis. The court rejected that argument and held that when a defendant establishes that an ex post facto error occurred at his sentencing, he need not show prejudice from the error. Williams v. Roe, 421 F.3d 883 (9th Cir. 2005).
9th Circuit, en banc, requires “limited remand” in Booker plain error cases. (870) Under U.S. v. Booker, 543 U.S. 220 (2005), a Sixth Amendment violation occurs if a defendant’s sentencing range under the Sentencing Guidelines is increased based on facts not found by a jury or admitted by the defendant. Sitting en banc, the Ninth Circuit held that when defendant failed to preserve an objection to the Sixth Amendment violation, the following procedure will be used: first, the court of appeals will determine whether the record is sufficiently clear to determine whether the district court would have imposed the same sentence if it had known that the guidelines would be held to be advisory; if the court of appeals cannot make that determination, it will remand to the district court for the limited purpose of having that court state whether the sentence would have been “materially different” under an advisory guidelines regime; if the district court responds that it would have imposed a different sentence, the district court is to impose a new sentence; if the district court determines that it would have imposed the same sentence under advisory guidelines, the defendant may appeal, and the court of appeals will review for reasonableness. U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
9th Circuit finds that PROTECT Act standard of review applies to pending cases. (870) The PROTECT Act, passed in April 2003, requires a court of appeals to apply a de novo standard of review to a district court’s decision to depart downward instead of the abuse-of-discretion standard that courts previously applied. 18 U.S.C. § 3742(e). The Ninth Circuit held that the Act’s de novo standard “must be applied to any case decided by [the] court subsequent to the PROTECT Act’s effective date.” The court also held that application of the de novo standard to pending cases would not violate the Ex Post Facto or Due Process Clauses. U.S. v. Phillips, 367 F.3d 846 (9th Cir. 2004).
9th Circuit says new PROTECT Act de novo standard of review does not apply to all departure issues. (870) Section 401 of the PROTECT Act of 2003 amended 18 U.S.C. § 3742(e) on April 30, 2003, to overrule the holding of Koon v. U.S. that downward departures are reviewed on appeal only for abuse of discretion, and instead require de novo review. Nevertheless, the Ninth Circuit held that the standard of review of the magnitude of a downward departure remains unchanged by the PROTECT Act. The court relied on the fact that subsection (3)(C) of § 3742(e) was not changed by the PROTECT Act, and thus “reflects, with respect to subsection (3)(C), no intent to overrule Koon’s holding that ‘due deference’ requires review for abuse of discretion.” U.S. v. Alfaro, 336 F.3d 876 (9th Cir. 2003).
9th Circuit describes standards of review of departures. (870) The Ninth Circuit said it reviews for abuse of discretion a district court’s decision to depart from the Sentencing Guidelines. U.S. v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc). The appeals court accords substantial deference to the district court’s decision to depart, because “it embodies the traditional exercise of discretion by a sentencing court.” Koon v. U.S., 518 U.S. 81, 98 (1996). However, it reviews de novo the district court’s interpretation of the Guidelines and reviews for clear error the factual findings underlying the sentencing decision. U.S. v. Jeter, 236 F.3d 1032, 1034 (9th Cir. 2001). In deciding whether to depart, Koon instructs that, first, the district court should identify what features of the case make it unusual. Id. at 95. Next, the court must determine whether the ground on which it is contemplating a departure is forbidden, encouraged, or discouraged by the Guidelines. U.S. v. Parish, 308 F.3d 1025 (9th Cir. 2002).
9th Circuit clarifies standard for plain-error review of Apprendi sentencing errors. (870) In a drug prosecution, the district court did not require a jury finding of the drug quantity that increased defendant’s statutory maximum, in violation of Apprendi. Defendant did not object to this error, however, so the Ninth Circuit reviewed for plain error. The court held that a defendant cannot satisfy the third prong of the plain-error standard – which requires a showing that the error “affects substantial rights” – if it is clear beyond a reasonable doubt that a rational jury would have found defendant guilty beyond a reasonable doubt. The court rejected a “less stringent” approach that would have allowed a defendant to show an effect on his substantial rights merely by showing that he received a sentence greater than that authorized by the jury’s verdict. U.S. v. Minore, 292 F.3d 1109 (9th Cir. 2002).
9th Circuit holds standard of review for claim that government breached plea agreement is unsettled. (870) The Ninth Circuit’s standards for reviewing a claim that the government has breached a plea agreement have been inconsistent. See U.S. v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000) (comparing U.S. v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) – de novo standard – with U.S. v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996) – clearly erroneous standard); U.S. v. Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999) (same). In this case, the Ninth Circuit found it unnecessary to decide which standard governs “because we conclude that under either standard the outcome is the same: the government did not breach the plea agreement.” U.S. v. Trapp, 257 F.3d 1053 (9th Cir. 2001).
9th Circuit finds clear error in failing to consider all evidence before ordering restitution. (870) “A restitution order is reviewed for abuse of discretion, provided that it is within the bounds of the statutory framework.” U.S. v. Lawrence, 189 F.3d 838, 846 (9th Cir. 1999). The factual findings underlying these orders are reviewed for clear error. Id. Here the Ninth Circuit found that the district court clearly erred when it failed to consider all of the evidence before ordering restitution of $2.19 million. At the sentencing hearing, the court said it was willing to hear defendant’s objections, and set the case for another hearing, but in the meantime the court adopted the probation officer’s calculation and imposed judgment. At the later hearing, the court admitted that it “wasn’t satisfied completely with the probation office’s calculations,” but agreed with the government that it lacked jurisdiction to reconsider the sentence. The Ninth Circuit reversed the restitution order because the district court failed to make an independent determination of the actual loss suffered by the bank as a result of defendant’s conduct. U.S. v. Najjor, 255 F.3d 979 (9th Cir. 2001).
9th Circuit describes “plain error” standard of review. (870) Where the defendant did not raise an issue in the district court, the appellate court reviews the issue only for “plain error.” Under the plain error doctrine, the defendant must show that (1) an error was committed, (2) the error was “plain” and (3) the error affected defendant’s substantial rights. See U.S. v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). If these conditions are met, the court may exercise its discretion to review the error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. U.S. v. Johansson, 249 F.3d 848 (9th Cir. 2001).
9th Circuit says factual findings are reviewed for “clear error” which is “significantly deferential.” (870) The Ninth Circuit held that the district court’s finding that defendant’s office manager was a criminal responsible participant was a finding of fact reviewed for clear error. See U.S. v. Alonso, 48 F.3d 1536, 1545 (9th Cir. 1995). Clearly erroneous review is “significantly deferential,” requiring that the appellate court accept the district court’s findings absent a “definite and firm conviction that a mistake has been committed.” U.S. v. Syrax, 235 F.3d 422 (9th Cir. 2000).
9th Circuit says applying guidelines to facts is reviewed for abuse of discretion and fact-finding for clear error. (870) “The district court’s application of the guidelines to the facts of a particular case is reviewed for an abuse of discretion.” U.S. v. Frega, 179 F.3d 793, 811 n.22 (9th Cir. 1999). “The district court’s factual findings in the sentencing phase are reviewed for clear error.” Id. “Review under the clearly erroneous standard is significantly deferential … [and] does not entitle a reviewing court to reverse the findings of the trial court simply because the reviewing court might have decided differently.” U.S. v. Palafox-Mazon, 198 F.3d 1182, 1186 (9th Cir. 2000) (quoting U.S. v. Asagba, 77 F.3d 324, 326 (9th Cir. 1996). Applying these principles in an alien smuggling case, the Ninth Circuit found no clear error in the fact-finding, and no abuse of discretion in applying the guidelines. U.S. v. Hernandez-Guardado, 228 F.3d 1017 (9th Cir. 2000).
9th Circuit finds estimate of tax loss was reasonable and not clearly erroneous. (870) Defendant argued that the district court erred in calculating the tax loss for his 1994 income based on the government’s evidence rather than his own sworn statement. The government’s estimate was calculated by subtracting the cost of books defendant sold in his book-selling business from the retail price of the books. The Ninth Circuit held that “the district court was not compelled to conclude that [defendant’s] estimate of his 1994 income was more accurate than the estimate provided by the government witness.” Under 18 U.S.C. § 3742(e), “[t]he court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.” Under Application Note 1 to section 2T1.1, “the amount of tax loss may be uncertain; the guidelines contemplate that the court will simply make a reasonable estimate based upon the available facts.” U.S. U.S. v. Andra, 218 F.3d 1106 (9th Cir. 2000).
9th Circuit reiterates standards of review of departures. (870) The Ninth Circuit reviews a district court’s departure decision for an abuse of discretion. See U.S. v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc) (citing Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 2047-48 (1996)). In doing so, the Ninth Circuit gives “substantial deference” to the district court’s decision to depart “for it embodies the traditional exercise of discretion by a sentencing court.” Koon, 116 S.Ct. at 2045. Whether a factor is a permissible ground for departure is a question of law, but “[l]ittle turns on whether . . . we label review of this particular question abuse of discretion or de novo, for an abuse of discretion standard does not mean a mistake of law is beyond appellate correction.” Id. at 2047. The district court’s factual findings are reviewed for clear error, U.S. v. Thompson, 80 F.3d 368, 370 (9th Cir. 1996). In the present case, the court affirmed the district judge’s downward departure for post-sentencing rehabilitation. U.S. v. Green, 152 F.3d 1202 (9th Cir. 1998).
9th Circuit says ruling that prior conviction can be counted for criminal history purposes is reviewed de novo. (870) The Ninth Circuit reviews de novo a district court’s determination that a prior conviction can be counted for criminal history purposes under the sentencing guidelines. U.S. v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir. 1994). Contrary to defendant’s argument, the guideline language leaves no room for discretion on the part of the district court. The only discretion the court has is to depart from the criminal history category after it is computed. U.S. v. Sandoval, 152 F.3d 1190 (9th Cir. 1998).
9th Circuit discusses standards of review of sentencing rulings. (870) The Ninth Circuit reviews the district court’s interpretation and application of the sentencing guidelines de novo. U.S. v. Newland, 116 F.3d 400, 402 (9th Cir. 1997). It reviews the district court’s factual findings used in sentencing, including the calculation of loss to the victims, for clear error. See U.S. v. Clayton, 108 F.3d 1114, 1118 (9th Cir. 1997). However, under U.S. v. Pinto, 48 F.3d 384, 389 (9th Cir. 1995), the Ninth Circuit reviews the district court’s determination that a particular item of evidence is sufficiently reliable to be considered at sentencing for abuse of discretion. U.S. v. Blitz, 151 F.3d 1002 (9th Cir. 1998).
9th Circuit reviews departures for abuse of discretion. (870) A district court’s decision to depart from the sentencing guidelines is reviewed for abuse of discretion. U.S. v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 851 (1998). This standard also applies where the court departs from a criminal history category. U.S. v. Goshea, 94 F.3d 1361, 1363 (9th Cir. 1996). Under U.S. v. Koon, 518 U.S. 81 (1996) the abuse of discretion standard includes review to determine whether the district court’s discretion was guided by erroneous legal conclusions. A sentencing court engages in a four step departure analysis: (1) it identifies what features of the case potentially take it outside the guidelines “heartland”; (2) it determines whether the Commission has forbidden departures based on those features; (3) if not, it determines whether the Commission has encouraged departures based on those features; and (4) if not, it determines whether the Commission has discouraged departures based on those features. U.S. v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc). U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit reviews denial of motion to apply amendment retroactively for abuse of discretion. (870) The denial of a motion under 18 U.S.C. § 3582(c)(2)¾to apply a guideline amendment retroactively¾is reviewed for abuse of discretion. U.S. v. Townsend, 98 F.3d 510, 512 (9th Cir. 1996). As stated in U.S. v. Plainbull, 957 F.2d 724, 725 (9th Cir. 1992), however, “a district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact.” In the present case, the Ninth Circuit held that the district court abused its discretion because it failed to recognize that the retroactive amendment to the guidelines applied to defendant’s case. U.S. v. Sprague, 135 F.3d 1301 (9th Cir. 1998).
9th Circuit says court abuses its discretion when it makes an error of law. (870) Quoting a statement in U.S. v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc) and Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 2047 (1996), the Ninth Circuit said that although it reviews departure decisions for an abuse of discretion a “district court by definition abuses its discretion when it makes an error of law.” U.S. v. Stein, 127 F.3d 777 (9th Cir. 1997).
9th Circuit, en banc, finds extent of departure not unreasonable in grenade explosion. (870) The en banc Ninth Circuit held that the extent of a departure cannot be so great as to be unreasonable within the meaning of 18 U.S.C. § 3742(f)(2). In this case, the district court identified three reasons for its decision to depart upward: (1) significant injuries suffered by three of the bombing victims, (2) the extent and value of the property damaged in the blast and (3) the need for greater deterrence than usual because the judge knew that the criminal who had asked defendant to throw the grenade into the police station had bought at least one more and the man who sold it to him might well have more. In a 6-5 decision, a majority of the Ninth Circuit held that the district court’s explanation “cannot be said to be unreasonable.” Therefore, the majority affirmed an upward departure to the statutory maximum of 20 years in prison. The court overruled U.S. v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991) (en banc) which held that an upward departure requires a comparison to analogous guideline provisions. “In light of Koon [v. U.S. 116 S.Ct. 2035 (1996)], we now reject such a mechanistic approach.” Judges Tashima, Hug, Browning, Schroeder and Reinhardt dissented. U.S. v. Sablan (David), 114 F.3d 913 (9th Cir. 1997) (en banc).
9th Circuit adopts abuse of discretion standard to review departures after Koon. (870) In Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), the Supreme Court held that a “district court’s decision to depart from the guidelines . . . will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Accordingly, in a 6-5 decision, the en banc Ninth Circuit held that the Supreme Court effectively rejected multi-step approaches to reviewing departures and “collapsed” the steps into a single inquiry. The majority concluded that Koon overruled U.S. v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991) (en banc), which had adopted a three-step standard for reviewing departures. In applying this unitary standard however, the court must consider the following four factors: “(1) What features of this case, potentially take it outside the Guidelines’ ‘heartland’ and make of it a special, or unusual, case? (2) Has the Commission forbidden departures based on those features? (3) If not has the Commission encouraged departures based on those features? (4) If not has the Commission discouraged departures based on those features?” U.S. v. Sablan (David), 114 F.3d 913 (9th Cir. 1997) (en banc).
9th Circuit says, after Koon, sentencing decisions are reviewed for abuse of discretion. (870) Citing Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 2046 (1996), the Ninth Circuit held that “[a] district court’s sentencing decisions are reviewed for abuse of discretion.” The court applied this standard to affirm the district court’s refusal to depart on one ground, and its decision to depart downward by three levels on another ground. U.S. v. Lopez, 106 F.3d 309 (9th Cir. 1997).
9th Circuit reviews de novo the legal consequences of undisputed facts. (870) In this case, the relevant underlying facts were not disputed; the parties only disagreed about the legal consequences of these facts under federal and state law. Therefore, the Ninth Circuit held that the district court’s decision to count defendant’s prior convictions under the criminal history guidelines was reviewed de novo. U.S. v. Gilcrist, 106 F.3d 297 (9th Cir. 1997).
9th Circuit says denial of sentence reduction under § 3582 is reviewed for abuse of discretion. (870) The decision whether to reduce a sentence under 18 U.S.C. 3582 based on a retroactive amendment to the guidelines is within the discretion of the district court. Accordingly, the Ninth Circuit held that the denial of a § 3582 motion is reviewed on appeal for abuse of discretion. U.S. v. Townsend, 98 F.3d 510 (9th Cir. 1996).
9th Circuit reviews criminal history departure for abuse of discretion. (870) Relying on Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 2047-48 (1996), the Ninth Circuit held that a district court’s decision to depart from the sentencing guidelines is reviewed for abuse of discretion. As the Supreme Court noted in Koon, district courts see many more sentencing petitions than appellate courts and thus have a “special competence” to determine whether a defendant’s criminal history is more serious than other defendants in the same category. The extent of the departure (from criminal history category II to category III) was reasonable. The court rejected defendant’s argument that the court was required to precisely determine the sentence he would have received for his prior unconvicted misconduct, and then mechanically add the criminal history points to determine the extent of the upward departure. The court found no requirement for the court to engage in such “mechanical” calculations. U.S. v. Goshea, 94 F.3d 1361 (9th Cir. 1996).
9th Circuit says Koon did not change standard of review of interpretation of the guidelines. (870) Under Koon v. U.S.,518 U.S. 81, 116 S.Ct. 2035, 2047 (1996) the district court’s application of the sentencing guidelines to the facts is reviewed for an abuse of discretion. But the district court’s interpretation of the guidelines as a matter of law is not entitled to deference. Nevertheless, the Ninth Circuit said “[l]ittle turns . . . on whether we label review of this particular question abuse of discretion or de novo, for . . . [a] district court by definition abuses its discretion when it makes an error of law.” U.S. v. Willett, 90 F.3d 404 (9th Cir. 1996) (quoting Koon, 116 S.Ct. at 1247). U.S. v. Gutierrez-Hernandez, 94 F.3d 582 (9th Cir. 1996).
9th Circuit says court may affirm sentence on any basis supported by the record. (870) Relying on U.S. v. Alexander, 48 F.3d 1477, 1487 (9th Cir.), cert. denied, 116 S.Ct. 210 (1995), the Ninth Circuit held that even though the evidence presented would not sustain defendant’s enhancement for “use” of a firearm in connection with his felonious drug sales, the Ninth Circuit “may nevertheless affirm the district court’s sentencing decision on any basis supported by the record.” In this case, the court held that the government proved by a preponderance of the evidence that defendant “possessed” the handgun in connection with the sale of marijuana, and therefore a four level enhancement under § 2K2.1(b)(5) was proper. U.S. v. Polanco, 93 F.3d 555 (9th Cir. 1996).
9th Circuit says after Koon, courts can no longer categorically exclude a basis for departure. (870) The Ninth Circuit said that after the Supreme Court’s decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), “federal courts can no longer categorically proscribe a basis for departure—unless the Commission has proscribed, as a categorical matter, consideration of the factor.” As the Koon court stated, “for the courts to conclude a factor must not be considered under any circumstance would be to transgress the policy-making authority vested in the Commission.” Rather, sentencing courts must now determine, under the facts and circumstances of each case, whether the factor takes the case outside of the “heartland.” In this case, the Ninth Circuit held that the district court had not made findings sufficient to satisfy the requirements of Koon. The case was remanded for further consideration of the “structure and theory” of the guidelines taken as a whole and a “refined assessment of the many facts bearing on the outcome.” U.S. v. Cubillos, 91 F.3d 1342 (9th Cir. 1996).
9th Circuit affirms that defendant was driver of van during high speed chase. (870) The district court’s factual findings underlying a sentence are reviewed for clear error. Review under the clearly erroneous standard is “significantly deferential, requiring a definite and firm conviction that a mistake has been committed.” Here, two police officers testified that defendant was the driver of the van. The trial judge found both officers’ testimony to be credible despite some inconsistencies. The discrepancy between the police reports and the officers’ testimony raised some doubt about whether or not defendant was the driver of the van. But the judge’s finding that defendant was the driver was not clearly erroneous. Therefore the two level increase for reckless endangerment during flight under Guideline § 3C1.2 was proper. U.S. v. Reed, 80 F.3d 1419 (9th Cir. 1996).
9th Circuit reverses district court’s drug quantity finding as clearly erroneous. (870) Two defendants were arrested in a hotel room. One had 7.8 grams of heroin in a condom in his alimentary canal, and the room contained 46 empty condoms that had been passed through some person’s digestive system. The second defendant told the officers that it had taken the first defendant two days to swallow the contents of his alimentary canal. Nevertheless, the district court based the sentence on only 7.8 grams of heroin. The government appealed, and the Ninth Circuit reversed, finding the district court’s factual finding was clearly erroneous. The second defendant’s statement was substantial evidence that more than 7.8 grams of heroin was involved. This could be used against the other defendant because it was (1) reliable, (2) against the second defendant’s interest, and (3) corroborated by the physical evidence. “Some substantial volume of heroin above 7.8 grams would appear to be unavoidable, given [the second defendant’s] statements to the effect that he had supervised two days of swallowing and the collection of 46 or 47 condoms containing the merchandise.” Judge Pregerson dissented. U.S. v. Asagba, 77 F.3d 324 (9th Cir. 1996).
9th Circuit reverses denial of credit for acceptance of responsibility after guilty plea. (870) A defendant who pleads guilty is not entitled to a reduction for acceptance of responsibility “as a matter of right” and the district court’s denial of credit is reviewed for “clear error.” Application Note 3 to U.S.S.G. §3E1.1 says the following constitute “significant evidence” of acceptance of responsibility: (1) plea of guilty before trial; (2) truthful admission of the elements of the offense; and (3) truthful admission, or at least no false denial, of “relevant conduct.” Thus the 9th Circuit held that these three pieces of evidence now have “significant” probative value for purposes of establishing “acceptance of responsibility,” and “insignificant evidence cannot outweigh a plea of guilty before trial, truthful admission of the elements of the offense and absence of a false denial of technically relevant conduct.” The court emphasized that a “defendant need not make a deal, need not engage in histrionic display, to get the reduction for pleading guilty.” Focusing on the “objectively ascertainable evidence,” the court ordered the district judge to grant defendant the three level credit for acceptance of responsibility on remand. U.S. v. Vance, 62 F.3d 1152 (9th Cir. 1995).
9th Circuit says pure questions of law are reviewed de novo. (870) Defendant argued that the Sentencing Reform Act did not authorize the sentencing commission to impose cost of imprisonment fines under §5E1.2(i), and that this section violates the due process clause. The court noted that these arguments presented pure questions of law which are reviewed de novo. U.S. v. Zakhor, 58 F.3d 464 (9th Cir. 1995).
9th Circuit says hearsay statements must be corroborated by extrinsic evidence. (870) A district court’s evaluation of the reliability of evidence is reviewed for an abuse of discretion. In this case, as to defendants Ponce and Monroy, the only evidence of their prior marijuana trafficking was the uncorroborated hearsay statements of a codefendant. “While hearsay statements may be considered at sentencing, due process requires that such statements be corroborated by extrinsic evidence.” U.S. v. Petty, 982 F.2d 1365, 1369 (9th Cir.), amended, 992 F.2d 887, 992 F.2d 1015 (1993). As to one defendant, the error was harmless because their was no doubt that the district court would have imposed a life sentence anyway. The other defendant’s sentence was reversed. U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).
9th Circuit reviews role enhancement for clear error; does require specific findings. (870) The Ninth Circuit held that the district court’s determination that a defendant was an “organizer or leader” is reviewed for clear error. Relying on U.S. v. Rigby, 906 F.2d 392 (9th Cir. 1990), the court said that “the district court need not make specific findings of fact in support of an upward role adjustment.” U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).
9th Circuit applies abuse of discretion standard to decision to consider particular evidence. (870) Reaffirming its ruling in U.S. v. Petty, 982 F.2d 1365, 1369 (9th Cir.), amended on other grounds, 992 F.2d 1015 (1993), cert. denied, 114 S.Ct. 683 (1994), the Ninth Circuit held that “[t]he district court’s determination whether a particular item of evidence is sufficiently reliable to be considered at sentencing is reviewed under an abuse of discretion standard.” U.S. v. Pinto, 48 F.3d 384 (9th Cir. 1995).
9th Circuit says role in offense is reviewed on appeal for clear error. (870) The Ninth Circuit reviews the trial court’s factual finding regarding defendants role in the offense for clear error. Without discussing the facts in this case, the court simply stated that under this standard, the defendant here “cannot prevail.” In a footnote, the court noted that the “mere fact that the government agents may have played managerial roles” did not help defendant, because “[t]here can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.” U.S. v. Manarite, 44 F.3d 1407 (9th Cir. 1995).
9th Circuit says prior felonies were not related by common scheme or plan. (870) The question of whether two prior convictions are “related” under 4A1.2 is a mixed question of law and fact subject to de novo review. Prior cases are related if they “(1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.” Here, the two prior felonies were conspiracy to distribute obscene materials and extortion. The extortion conviction was based on defendant’s threatening one of his coconspirators for failing to repay a loan, just before he was sentenced for the conspiracy charge. The Ninth Circuit rejected defendant’s argument that the two convictions were part of a common scheme or plan, noting that the loan was apparently unrelated to the obscene materials distribution ring. It was insufficient that the coconspirator in one crime was the victim in the other crime. U.S. v. Manarite, 44 F.3d 1407 (9th Cir. 1995).
9th Circuit reverses where some reasons for departure were proper and some were improper. (870) In U.S. v. Cervantes-Lucatero, 889 F.2d 916, 919 (9th Cir. 1989), the 9th Circuit held that “when some of the reasons stated [for a departure] are proper and some are improper, we must vacate and remand for resentencing.” In this case, the district court departed upward based on some prior convictions that were properly considered and some that were not. Reversal and remand was required to determine whether the district court would have departed upward if it had not relied on the improper prior convictions. U.S. v. Smallwood, 35 F.3d 414 (9th Cir. 1994).
9th Circuit finds criminal history error harmless where guidelines exceeded statutory maximum. (870) Defendant claimed the district court erroneously included three points for his prior 1978 marijuana conviction. But even if he were correct, his minimum guideline sentence would have been 130 months, which was 10 months over the statutory maximum of 120 months. Accordingly, the 9th Circuit found it unnecessary to decide this issue because “the error, if any, was harmless.” U.S. v. Rutledge, 28 F.3d 998 (9th Cir. 1994).
9th Circuit reverses finding that defendant’s 751 marijuana plants were for personal use. (870) Defendant told the probation officer that he smoked approximately seven grams of marijuana a day, or less than six pounds a year. Assuming that half of his marijuana crop died, that he threw away all of the male plants, and that the yield per plant was half of the stipulated quantity, he would still have produced over 60 pounds of marijuana, more than five times what he could personally consume in two years. Accordingly, the district court’s ruling that defendant’s 751 marijuana plants were for personal use and not for distribution was clearly erroneous, and was reversed. U.S. v. Crook, 9 F.3d 1422 (9th Cir. 1993).
9th Circuit says decision on acceptance of responsibility will not be reversed unless “without foundation.” (870) Because of the district court’s unique position, its ruling on acceptance of responsibility will not be disturbed “unless it is without foundation.” Here, the district court identified several facts that were inconsistent with contrition, including defendant’s denial of guilt at trial. The court was entitled to consider that he refused to discuss the case with the probation officer and did not make a statement evidencing remorse at the sentencing hearing. The fact that he made inculpatory admissions to the marshals did not necessarily demonstrate that he was remorseful or contrite. U.S. v. Innie, 7 F.3d 840 (9th Cir. 1993).
9th Circuit finds remand unnecessary even though one ground for departure was invalid. (870) The district court departed upward 3 levels based on three separate grounds for departure without identifying how much of the departure was attributable to which ground. However, the 9th Circuit found a remand was not necessary because the valid grounds for departure were sufficient to justify the magnitude of the departure. Under Note 2 to §3A1.2 (1991), one of the valid grounds — threatening the President — could have justified the entire 3 level increase. U.S. v. McAninch, 994 F.2d 1380 (9th Cir. 1993)
9th Circuit restates standards of review. (870) The 9th Circuit reviews de novo the legality of a sentence as well as the district court’s interpretation and application of the sentencing guidelines. It examines for clear error the district court’s factual findings underlying a sentence. U.S. v. Mullins, 992 F.2d 1472 (9th Cir. 1993).
9th Circuit says reasonable factual dispute does not automatically require an evidentiary hearing. (870) Rule 32(c)(3)(A) expressly vests in the district court discretion whether to hold an evidentiary hearing. The 9th Circuit reviews a decision to deny a request for an evidentiary hearing on alleged inaccuracies in a presentence report for abuse of discretion. On the facts of this case, the court concluded that as a matter of law, a reasonable factual dispute existed over the quantity of drugs involved in the conspiracy. Since the district court made no factual findings regarding this dispute the case was remanded to the district court to determine “in the sound exercise of its discretion, whether to hold an evidentiary hearing on the alleged inaccuracies in the presentence report.” U.S. v. Harrison-Philpot, 978 F.2d 1520 (9th Cir. 1992).
9th Circuit denies acceptance of responsibility where defendant’s story was “truly incredible.” (870) The district court found defendant’s version of the facts to the probation officer to be “truly incredible.” First, the appellant only admitted to smuggling aliens between January and March of 1990. She also stated that she only became involved because of a favor to a friend and the undercover agents’ encouragement. The court found that this contradicted her earlier statements to the agents that she had been involved in alien smuggling for twelve years. Moreover, the district court found it difficult to believe that she could have organized a large load of aliens to transport within twenty-four hours of the agents’ first contact with her. The 9th Circuit held that because the sentencing judge is “in a unique position to evaluate a defendant’s acceptance of responsibility,” her determination is entitled to “great deference.” U.S. v. Martinez-Gonzalez, 962 F.2d 874 (9th Cir. 1992).
9th Circuit reviews de novo whether district court provided adequate statement of reasons. (870) The 9th Circuit reviewed de novo defendant’s claim that when the district court sentenced him to 240 months, it failed to state its reasons for deciding on that particular point within the guideline range, as required by 18 U.S.C. section 3553(c). U.S. v. Johnson, 953 F.2d 1167 (9th Cir. 1992).
9th Circuit holds that in interpreting the guidelines, where the issue is factual, the clearly erroneous standard applies. (870) The defendant argued that the essential inquiry was legal, not factual, because it involved ascertaining the meaning of a particular sentencing guideline, section 2M5.2. Here, however, the issue was whether the district court properly found “that the underlying offense involved a sophisticated weapon, the Condor II, and that MX-4926 was itself a sophisticated material.” The 9th Circuit ruled that “[b]ecause the issue of whether a particular item falls within the category of sophisticated weaponry is strictly a factual one, we review the district court’s determination of that issue for clear error.” U.S. v. Helmy, 951 F.2d 988 (9th Cir. 1991).
9th Circuit reviews district court’s construction and interpretation of the guidelines de novo. (870) The 9th Circuit reviews de novo the district court’s construction and interpretation of the guidelines. The court noted that after revoking supervised release, the court must provide specific reasons for imposing a particular sentence. U.S. v. Baclaan, 948 F.2d 628 (9th Cir. 1991).
9th Circuit reviews application of guidelines de novo. (870) The 9th Circuit held that application of the sentencing guidelines is reviewed de novo. However factual findings under the guidelines are reviewed for clear error. Thus, in this case, the district court’s determination that the defendant did not possess the firearm solely for sporting purposes was a factual finding reviewed under the clearly erroneous standard. U.S. v. Uzelac, 921 F.2d 204 (9th Cir. 1990).
9th Circuit holds that de novo standard of review applies where facts are not in dispute. (870) It is “axiomatic” that legal issues are reviewed de novo and factual issues are reviewed for clear error.” Thus a district court’s application of the guidelines is reviewed de novo, but where the case turns on the facts, the issue will be reviewed only for clear error. Here the facts were not in dispute, so the court applied the de novo standard of review in considering whether the district court properly applied the guidelines. U.S. v. Hill, 915 F.2d 502 (9th Cir. 1990).
9th Circuit reviews obstruction of justice for clear error. (870) The 9th Circuit held that the sentencing court’s findings of fact under the guidelines are reviewed for clear error. “It is a question of fact whether a defendant obstructed justice under the guidelines.” U.S. v. Rodriguez–Macias, 914 F.2d 1204 (9th Cir. 1990).
9th Circuit holds that foreseeability of coconspirator’s conduct is a “factual issue” reviewable for clear error. (870) The “relevant conduct” section of the guidelines 1B1.3(a)(1) requires the sentencing judge to consider the “conduct of others in furtherance of the execution of the jointly undertaken criminal activity that was reasonably foreseeable by the defendant.” The 9th Circuit held that the question of whether conduct in furtherance of the conspiracy was reasonably foreseeable by the defendant is a factual question reviewed under the “clearly erroneous” standard. U.S. v. Willis, 899 F.2d 873 (9th Cir. 1990).
9th Circuit holds that whether a given conviction falls within the scope of the sentencing guidelines is reviewed de novo. (870) Judges Hall, Brunetti and Noonan held that “the district court’s determination of whether a given prior conviction falls within the scope of the sentencing guidelines is reviewed de novo.” The court added that a district court’s determination as to factual matters under the sentencing guidelines will not be reversed unless it is “clearly erroneous.” U.S. v. Gross, 897 F.2d 414 (9th Cir. 1990), abrogated on other grounds by U.S. v. Anderson, 942 F.2d 606 (9th Cir. 1991).
9th Circuit agrees with other circuits that acceptance of responsibility is reviewed for “clear error.” (870) The 9th Circuit held that “whether or not a defendant has accepted responsibility for his crime is a factual determination.” Therefore the court agreed with other circuits that the “clearly erroneous” standard applies to such questions. The court also noted that this standard was required by 18 U.S.C. § 3742(e): “the Court of Appeals … shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.” U.S. v. Gonzalez, 897 F.2d 1018 (9th Cir. 1990).
9th Circuit employs a two-step process in reviewing departures. (870) In reviewing a departure from the sentencing guidelines, the Ninth Circuit first determines whether departure is legally permissible and then decides whether the given departure is reasonable. U.S. v. Michel, 876 F.2d 784 (9th Cir. 1989).
10th Circuit reverses increase for being “prohibited person” as plain error. (870) Defendant was convicted of possessing unregistered destructive device and aiding and abetting an arson. The district court erroneously found that he was a prohibited person under § 2K2.1(a)(4)(B), which increased his offense level by two, and increased his advisory guideline range from 87-108 months to 135-168 months. Defendant failed to challenge this finding below, but the Tenth Circuit held that the mistake met all four prongs of the plain error test. The government conceded that defendant met the first two prongs of the plain-error test—there was error and the error was plain. In addition, the error was prejudicial and likely affected the defendant’s sentence. The court believed the Guidelines range was 135-168 months, and varied downward to a 120-month sentence. The correct range was only 87-108 months. The sentence imposed was thus 12 months higher than the top of the proper guideline range. This was plain error. U.S. v. Meacham, 567 F.3d 1184 (10th Cir. 2009).
10th Circuit says plain error in constraining discretion did not justify reversal. (870) Defendant argued for the first time on appeal that the court procedurally erred by improperly constraining its sentencing discretion. At the time of sentencing, circuit precedent mandated a proportional review of the extent of a variance. The government conceded that defendant showed (1) error (2) that was now plain, and (3) the error affected the defendant’s substantial rights. However, it argued that defendant could not satisfy the fourth prong of plain error review and the Tenth Circuit agreed. This prong requires the error to seriously affect the fairness, integrity or public reputation of judicial proceedings. While the court’s comments indicated some dissatisfaction with the sentencing process and the court’s perceived lack of discretion to vary from the guidelines. they did not establish the court would impose a significantly lighter sentence on remand. The court’s careful review of the § 3553(a) suggested the court would not have varied from the guidelines at all. U.S. v. Franklin-El, 554 F.3d 903 (10th Cir. 2009).
10th Circuit rejects its previous standard of review of non-Guidelines sentences. (870) In U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007), the Tenth Circuit adopted a five-step standard of review for non-Guidelines sentences. The procedure involved a mathematical calculation of both the absolute and relative percentage of the variance from a Guidelines baseline, and required “more compelling reasons” the farther the court diverged from the advisory guideline range. Here, the Tenth Circuit found that the Supreme Court’s decisions in Gall and Kimbrough could not be reconciled with this standard of review. Following Gall, review may not be based on “a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” The degree of variance from the Guidelines may not define the threshold standard of review. The appellate court’s Garcia-Lara practice of relying on its own reading of the factual record ignores the trial judge’s “superior position to find facts and judge their import under § 3553(a) in the individual case.” Instead, the appeals court must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. Gall and Kimbrough also ended the Tenth Circuit’s practice of permitting a variance only if the district court first distinguishes the defendant’s characteristics and history from those of the ordinary offense. This gives the Guidelines more weight than other § 3553(a) factors and has effectively required every sentencing variance to be justified by extraordinary facts. U.S. v. Smart, 518 F.3d 800 (10th Cir. 2008).
10th Circuit says defendant’s physical condition did not require downward variance. (870) Before being sentenced on drug charges, defendant suffered a stroke that left him with severe mental and physical impairments. At sentencing, defendant argued that his condition made him a candidate for a downward departure or a variance. The Tenth Circuit upheld the district court’s rejection of the request, which resulted in a 135-month sentence. To overcome the presumption of reasonableness for a within-Guideline range sentence, an appellant must demonstrate that the district court abused its discretion under 18 U.S.C. § 3553(a). The sentence was procedurally reasonable. Because the sentence fell within the advisory Guideline range, the district court was required as a matter of law only to provide “a general statement of ‘the reasons for its imposition of the particular sentence.'” The court here referred to (1) the need to avoid disparities between defendant and his co-defendants, (2) the fact that defendant’s condition was not as extreme as he portrayed (he continued to care for himself and his 10-year old son after the stroke), (3) the BOP believed it could provide all of defendant’s health-related needs, and (4) incarceration was necessary to prevent defendant from associating with his ex-wife, a heavy drug user. U.S. v. McComb, 519 F.3d 1049 (10th Cir. 2007).
10th Circuit holds that court’s explanation was sufficient to support Guidelines sentence. (870) Defendant argued that in imposing a 322-month Guideline range sentence, the court failed to explain how it considered the § 3553(a) factors. A sentencing court’s decision to apply a Guidelines sentence does “not necessarily require lengthy explanation.” A court’s brief explanation for a Guidelines sentence may be sufficient when the context and the record clearly show that the court listened to and considered the evidence and arguments. Here, although the district court did not specifically respond to defendant’s arguments for a variance, the “context and record made clear” the court’s reason for rejecting his arguments. After listening to defendant’s arguments for a non-Guideline sentence, the court explained that it was imposing a sentence under the career-offender guideline, § 4B1.1(c), and stated that it had found the advisory Guidelines “instructive and helpful and informative” in this case. In other words, the record and context demonstrated that the court considered defendant’s arguments for a variance and rejected them because it determined that a guideline sentence was appropriate based on the particular facts of this case. U.S. v. Hamilton, 510 F.3d 1209 (10th Cir. 2007).
10th Circuit finds court adequately considered defendant’s post-offense rehabilitation. (870) Defendant pled guilty to receiving of child pornography. His advisory guideline range was 151-188 months, but the district court granted a two-level variance for post-offense rehabilitation, and sentenced him to 121 months. On appeal, defense counsel filed an Anders brief and moved to withdraw as counsel. The Tenth Circuit granted the motion, finding no abuse of discretion in sentencing defendant. The court specifically considered the statutory maximum and mandatory minimum sentences and the differences between defendant and other offenders sentenced for his crime. The court also considered that defendant sought mental health treatment after the execution of the search warrant, that he was diagnosed with obsessive compulsive disorder and attention deficit disorder, and it considered his rehabilitative progress and letters from family and friends. The court thus fully considered defendant’s rehabilitative efforts and arguments for a variance under 18 U.S.C. § 3553(a). There was no colorable challenge defendant’s sentence. U.S. v. Gay, 509 F.3d 1334 (10th Cir. 2007).
10th Circuit holds sentence 300% above advisory range was reasonable. (870) Defendant provided false information to a bank to obtain a line of credit. The following year, she filed for bankruptcy, and failed to disclose the existence of the bank account. She pled guilty to making a false statement to a financial institution and bankruptcy fraud. She challenged the reasonableness of her 48-month sentence, which was 300% and 36 months higher than the top of her advisory guideline range of 6-12 months. The Tenth Circuit held that the sentence was reasonable. Defendant had an extensive history of financial crimes, and defrauded additional victims while out on bond. In the 11 years prior to the charge in the current case, she had five prior convictions for passing worthless check, three prior arrests for passing worthless check that were never prosecuted, a conviction for selling a car without the consent of the secured party, and a conviction for forgery. Her criminal history was comprised almost entirely of crimes of fraud and deceit – crimes similar to current offenses and similar to the fraud she engaged in while out on bond. Defendant was “a habitual prevaricator who has not been deterred by her run-ins with state and municipal law or by her appearance in federal court in this case.” U.S. v. Mumma, 509 F.3d 1239 (10th Cir. 2007).
10th Circuit holds that refusal to vary below guidelines for armed career criminal was reasonable. (870) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act to 235 months. He argued that his sentence was unreasonable because the nature of the offense was “benign” because the gun was small and unloaded, it did not belong to him, it was inoperative, and it was not used to commit another crime. Moreover, he noted that all of crimes used to sentence him under the ACCA occurred in the 1980s, and therefore were sufficiently “stale” so as to warrant a sentence of no more than the 15-year mandatory minimum. The Tenth Circuit found no error. The district court thoroughly considered and rejected defendant’s contentions, noting that the guidelines do not distinguish among firearms of different sizes. The court heard testimony that the gun could easily be concealed and could easily be made operable by using a rubber band. Neither defendant’s age nor the age of the predicate convictions justified a sentence below the guidelines range. The ACCA is designed to punish recidivists more harshly than first-time offenders. U.S. v. Hanrahan, 508 F.3d 962 (10th Cir. 2007).
10th Circuit holds any error regarding reasonableness of length of defendant’s sentence was invited and waived. (870) The PSR calculated defendant’s guideline range as 46-57 months, and defendant did not file any objections to the PSR. At sentencing, the court stated that a sentence “on the low end of the guideline range” was appropriate, and invited counsel to comment. Defendant’s counsel agreed, stating that he had nothing further to present to the court. Defendant also indicated, through an interpreter, that he had nothing to add to this statement. Nonetheless, defendant argued on appeal that his 46-month sentence was unreasonably high. When a defendant fails to preserve a sentencing challenge below, a court generally reviews only for plain error. However, in U.S. v. Torres-Duenas, 46 F.3d 1178 (10th Cir. 2006), the court held that when the claim is merely that the sentence is unreasonably long, it does not require the defendant to object in order to preserve the issue. The Tenth Circuit clarified Torres-Duena’s exception allowing reasonableness review of unpreserved substantive sentencing challenges to require that the defendant have at least made the argument for a lower sentence before the district court. When the appellate argument for a lower sentence was not raised at any time before the district court, and when, to the contrary, the defendant affirmatively endorses the appropriateness of the length of the sentence before the district court, any error was invited and waived. U.S. v. Mancera-Perez, 505 F.3d 1054 (10th Cir. 2007).
10th Circuit holds error in applying presumption of reasonableness to guidelines was not harmless. (870) Although the Probation Office recommended a sentence below the advisory guideline range of 15-21 months, the government “vehemently” objected to the variance, and repeatedly argued that defendant had the burden of overcoming a presumption that the advisory guideline range was reasonable. The district court found this was a difficult case, but ultimately ruled that the probation officer’s judgment and recommendation was not sufficient to overcome the presumption of reasonableness of the guidelines. The Tenth Circuit held that the district court erred in applying the appellate presumption of reasonableness to the advisory guidelines when sentencing. A district court’s job is not to impose a reasonable sentence. Rather, a court’s mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of § 3553(a)(2). Reasonableness is the appellate standard of review in judging whether the district court had accomplished that task. See U.S. v. Begay, 470 F.3d 964 (10th Cir. 2006); Rita v. U.S., 127 S.Ct. 2456 (2007). The error was not harmless, given the probation officer recommended a term of probation and the court termed the situation “a difficult case.” U.S. v. Conlan, 500 F.3d 1167 (10th Cir. 2007).
10th Circuit finds guideline sentence procedurally reasonable despite lack of direct response to departure request. (870) Under Tenth Circuit law, where a district court imposes a sentence falling with the range suggested by the guidelines, § 3553(a) requires the court to provide only a general statement of the reasons for the imposition of the particular sentence. Nothing in § 3553(a) requires a specific explanation from the district court of a sentence falling with the guidelines range – when imposing a sentence within the properly calculated guideline range, a district court must provide “only a general statement noting the appropriate guideline range and how it was calculated.” U.S. v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007). Based on these precepts, the Tenth Circuit held that the district court committed no error in sentencing defendant within the guideline range. Although the sentencing court provided no direct response to defendant’s requests for departure, its citation of the PSR’s calculation method and recitation of the suggested imprisonment range amply fulfilled § 3553(c) requirement of a “general statement noting the appropriate guideline range and how it was calculated.” U.S. v. Cereceres-Zavala, 499 F.3d 1211 (10th Cir. 2007).
10th Circuit holds variance from career offender sentence was not reasonable. (870) Believing the career offender enhancement overstated defendant’s criminal history, the district court sentenced him to a below-guidelines sentence of 140 months’ imprisonment. His guideline range with the career offender enhancement was 262-327 months. The Tenth Circuit held that the 140-month sentence was unreasonable. There was no problem with the manner in which the court set forth its reasoning for the sentence. The sentence was reasonable in a procedural sense. However, the sentence was not substantively reasonable. The fact that defendant’s crimes were non-violent and involved moderate quantities of drugs did not support the variance. The career offender provision required only two prior felony convictions of either a crime of violence or a controlled substances offense. There was no question that defendant was a recidivist drug dealer. In addition to the convictions noted in his criminal history, the PSR noted several arrests that did not result in a conviction. The fact that defendant’s last controlled substance offense was eight years earlier ignored the fact that he spent much of the intervening time in prison, or outside the country after he was deported. In short, defendant’s criminal history was not out of the ordinary for a career offender. U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007).
10th Circuit finds career offender sentence reasonable. (870) Based on defendant’s status as a career offender, his advisory guideline range was 262-327 months. The court agreed with defendant that his criminal history score overstated his criminal history “slightly” and therefore, rather than applying criminal history category VI as prescribed by § 4B1.1, the court applied category V. Based on this change, the court recalculated defendant’s sentencing range to be 235-293, and imposed a sentence at the bottom of this revised range. The Tenth Circuit ruled that the sentence was reasonable. Defendant pointed to a Sentencing Commission study suggesting that career offenders classified as such based only upon prior drug offenses had lower recidivism rates than those classified as career offenders based on prior crimes of violence. However, Congress has not yet removed prior drug offenses as predicate career offender crimes, and therefore, the court did not err in refusing to depart or vary on this basis. While defendant argued that his criminal history did not warrant him being classified as a career offender, the district court recognized this and granted a downward adjustment from § 4B1.1’s provision of criminal history category VI, instead opting to keep defendant in category V. U.S. v. Wilken, 498 F.3d 1160 (10th Cir. 2007).
10th Circuit says “reasonablenss” standard applies only on appeal, but error was harmless. (870) Defendant requested either a downward departure or a variance below his guideline range of 57-71 months. The district court rejected the request, explaining that it believed it could not sentence below the applicable guideline range unless it first determined that a sentence within the applicable range would be unreasonable. The court sentenced defendant to 60 months, three months above the low end of the applicable range. The Tenth Circuit held that the court erred in refusing to consider a variance, ruling that “reasonableness” is the appellate standard of review, and it is error for the district court to apply this standard at sentencing. See U.S. v. Begay, 470 F.3d 964 (10th Cir. 2006). A court may impose a non-guideline sentence if the sentencing factors set forth in § 3553(a) warrant it, even if a guidelines sentence might also be reasonable. However, the error was harmless because the district court exercised its discretion to impose a sentence above the low end of the applicable guideline range. U.S. v. Arrevalo-Olvera, 495 F.3d 1211 (10th Cir. 2007).
10th Circuit finds court erred in refusing to consider variance unless sentence within guideline range was unreasonable, but error was harmless. (870) Defendant requested either a downward departure or a variance below his guideline range of 57-71 months. The court rejected the request, citing defendant’s violent criminal history. In rejecting defendant’s request for a variance, the court explained that it believed it could not sentence below the applicable guideline range unless it first determined that a sentence within the applicable range would be unreasonable. The court found that a sentence within the applicable guideline range would be reasonable, and sentenced defendant to 60 months, three months above the low end of the applicable range. The Tenth Circuit held that the court erred in refusing to consider a variance unless it first determined that a sentence within the advisory guideline range was unreasonable. Reasonableness is the appellate standard of review, and it is error for the district court to apply this standard at sentencing. See U.S. v. Begay, 470 F.3d 964 (10th Cir. 2006). A court may impose a non-guideline sentence if the sentencing factors set forth in § 3553(a) warrant it, even if a guidelines sentence might also be reasonable. However, the error was harmless because the district court exercised its discretion to impose a sentence above the low end of the applicable guideline range. U.S. v. Arrevalo-Olvera, 495 F.3d 1211 (10th Cir. 2007).
10th Circuit holds plain error review applies to unpreserved challenges to sentencing procedure. (870) Defendant argued, for the first time on appeal, that his sentence was procedurally unreasonable because the district court failed to explain its reason for rejecting his request for a below-guidelines sentence based on cultural assimilation. The Tenth Circuit noted some confusion in its caselaw over the standard of review for an unpreserved failure to properly explain a sentence under 18 U.S.C. § 3553(a) and (c). In U.S. v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006), it held that because the defendant did not object to the court’s lack of explanation after it announced his sentence, plain error review was appropriate. However, several cases after Lopez-Flores considered the merits of procedural arguments under § 3553(a) and (c) without addressing whether sufficient objection had been raised or preserved at the district court. To alleviate this confusion, the Tenth Circuit clarified that Lopez-Flores controls its standard of review for unpreserved challenges to the method by which the district court arrived at a sentence, including arguments that the sentencing court failed to explain adequately the sentence imposed under the statutory factors in § 3553(a). Defendant could not meet the plain error standard here – he entirely failed to allege that any error by the court affected his substantial rights. U.S. v. Romero, 491 F.3d 1173 (10th Cir. 2007).
10th Circuit rejects large departure/variance based on uncharged conduct that was not related to current offense. (870) The FBI began to investigate defendant after an adult dancer reported defendant had discussed with her in detail his desire to kidnap, rape and kill young girls. The FBI investigated defendant for several months. Although there was some evidence that he had approached a young girl in Wal-Mart, and had been interrupted by the girl’s mother, the FBI was unable to find any additional evidence in this regard. Therefore, it shifted the focus of its investigation to defendant’s illegal drug activity. He pled guilty to a single count of possession of methamphetamine with intent to distribute. Although his guideline range was 120-135 months, the district court sentenced defendant to 360 months, finding that the advisory guideline range was “vastly inadequate.” The Tenth Circuit reversed. The horrific sexual abuse and murder that defendant either contemplated or took steps toward committing were not relevant conduct because they were completely unrelated to his sale of meth. The court could not have departed under the guidelines on the basis of these facts. When a § 5K2.0 departure is based on acts of misconduct not resulting in conviction, those acts must still relate meaningfully to the offense of conviction. Section 4A1.3(a)(2) also was unavailing, because the uncharged conduct was not similar adult criminal conduct. Finally, in an exercise of Booker discretion, a sentencing court may not discard the advisory guideline range and impose a sentence based on evidence of the defendant’s uncharged, unrelated misconduct, whether actually committed or contemplated for the future. U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007).
10th Circuit finds at facts did not support large variance for collector who purchased illegal machineguns. (870) Defendant purchased firearms from an undercover agent posing as a widow selling her late husband’s gun collection. Two of the guns were illegal machineguns, and defendant knew that at least one of the weapons was an illegal machinegun. Although his guideline range was 27-33 months, the district court imposed a variance sentence of three years’ probation, citing (1) defendant was not involved in the ongoing conduct of buying, selling or possessing machineguns; (2) he had a record of long-term employment; and (3) he posed a low risk of danger to the public. The Tenth Circuit held that these factors were not sufficiently compelling to warrant such a large divergence from the guidelines. The reasons cited by the court did not distinguish him from the ordinary defendant upon which the guideline sentence is calculated. Defendant’s criminal history category already accounted for the court’s finding that he posed a low risk of danger to the public, and the fact that he was not engaged in ongoing criminal activity was already accounted for by the guidelines. (Under the guidelines, uncharged conduct may serve as a basis for an increase in the base offense level of a sentence, but the absence of such conduct is not grounds for a departure). The fact that defendant was gainfully employed and supported his family was not out of the ordinary. U.S. v. Hildreth, 485 F.3d 1120 (10th Cir. 2007).
10th Circuit says fast-track disparity not “unwarranted.” (870) Defendant argued that a sentence within the guideline range would create an unwarranted sentencing disparity, since he would have been eligible for a four-level reduction in offense level if he had been convicted in a district where the fast-track program was available. The Tenth Circuit found this argument meritless. In U.S. v. Martinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006), the court made it clear that § 3553(a)(6) cannot be read to permit a court in a non-fast-track jurisdiction to consider what the guideline range would have been in a fast-track jurisdiction. Because the statute obviously contemplated that fast-track sentence would not be available in all districts, Congress itself created the fast-track disparity. U.S. v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007), overruled as to fast-track by Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007), as recognized by U.S. v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011).
10th Circuit holds court was not required to explain why it rejected below-guidelines sentence. (870) Although defendant presented a variety of reasons for a sentence below the 46-57 month guideline range, the district court imposed a 46-month sentence. Defendant argued that his sentence was procedurally unreasonable because the district court failed to explain why it rejected his arguments that he should be sentenced below the guideline range. The Tenth Circuit held that the court was not required to state why it rejected a below-guideline sentence. Although a court is not obligated to expressly weigh on the record each of the factors set out in § 3553(a), it must state its reasons for imposing a given sentence. Although the court never said explicitly why it was unconvinced by defendant’s arguments for leniency, it stated the two “most compelling” reasons why it chose a sentence of 46 months: defendant’s prior drug trafficking crime involved a large amount of methamphetamine and marijuana, and his continued criminal activity following his conviction and deportation showed that he was not repentant. The court satisfied its obligation to give reasons for choosing a 46-month sentence. U.S. v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007), overruled as to fast-track by Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007), as recognized by U.S. v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011).
10th Circuit says court is not required to refer to every § 3553(a) factor. (870) When a defendant makes a non-frivolous argument for a below-guideline sentence, but receives a within-guideline sentence, the district court must provide the appellate court with a record by which the appellate court can discern whether the district court considered the applicable § 3553(a) factors. At sentencing, defendant argued that a below-guideline sentence was appropriate because of his age, long drug addiction, and poor health. Defendant argued that the court did not refer to the § 3553(a) factors in arriving at his sentence. Since he did not object at sentencing, the Tenth Circuit reviewed for plain error, and found none. The sentencing judge is required to address the substance of defendant’s argument, but is not required to refer explicitly to every § 3553(a) factor. The sentencing judge discussed defendant’s long history of drug abuse and the seriousness of the meth problem as reasons for not departing from the guidelines. He addressed defendant’s medical problems by directing that defendant be housed in a facility with proper medical resources. The judge also referred to and incorporated the PSR, which expressly discussed the § 3553(a) factors and determined that they did not warrant a non-guidelines sentence. U.S. v. Traxler, 477 F.3d 1243 (10th Cir. 2007).
10th Circuit says court was not required to specifically explain reasons for not varying below advisory guideline range. (870) Defendant argued that the district court erred when it failed to articulate its reasons for rejecting his arguments for a variance from the advisory guideline range based on the factors in 18 U.S.C. § 3553(a). The Tenth Circuit held that the district court was not required to specifically explain its reasons for not imposing a sentence below the advisory guideline range. Section 3553(c)’s plain language only requires the court to provide a general statement of “the reasons for its imposition of the particular sentence.” It is only when imposing a sentence outside the guideline range that the statute requires a court to state the specific reason for a sentence “which reasons must also be stated with specificity in the written order or judgment and commitment.” § 3553(c) (2). There is nothing in § 3553(a) that requires a specific explanation either. While a more detailed sentencing explanation can often prove beneficial, it is not mandatory. U.S. v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007).
10th Circuit finds court’s reference to Apostle Paul did not violate defendant’s due process rights. (870) In rejecting defendant’s request for a below-guideline sentence, the court said that “good things can come from jail. A guy named Paul was put in jail a couple thousand years ago and wrote a bunch of letters from jail … and people are still reading those letters and being encouraged by them and finding hope in them thousands of years later.” The Tenth Circuit rejected defendant’s claim that the court’s reference to Apostle Paul impermissibly injected religion into the sentencing process, and thus violated his due process rights. It was obvious that the sentencing judge referred to the Apostle Paul as a way to illustrate that something good can come from difficult circumstances, even jail. The judge did not indicate that defendant needed a longer sentence to pay religious penance, or that the judge’s personal view of those letters prompted or influenced any aspect of defendant’s sentence. Defendant suffered no prejudice, religious or otherwise, because of the court’s reference. U.S. v. Traxler, 477 F.3d 1243 (10th Cir. 2007).
10th Circuit rejects downward variance where court gave no reasons for offense level reduction. (870) Defendant was convicted of crack cocaine charges, resulting in an advisory sentencing range of 235-293 months. In considering the § 3553(a) factors, the district court noted that four of seven defendants in this case received sentences of 240 months to life due to prior qualifying drug convictions. The court then noted that defendant’s criminal history stood in stark contrast to those defendants because he had never been previously convicted of a drug offense and his prior felony conviction, for which he was later pardoned – was 20 years old. The district court deemed that sentencing defendant within the applicable guideline range was unwarranted, and sentenced defendant to 151 months. The Tenth Circuit ruled that while the sentence might be substantively reasonable, the reasoning for the sentence was procedurally deficient. Although a court is not required to recite any magic words to show that it has fulfilled its obligation to consider the § 3553(a) factors, a court must give reasons for imposing a particular sentence. The court imposed a variance because of defendant’s criminal history. However, it determined the variance by calculating a hypothetical guidelines sentence with not only a lower criminal history category (I instead of III) but also a lower offense level (34 instead of 36). U.S. v. Hall, 473 F.3d 1295 (10th Cir. 2007).
10th Circuit holds that defendant was not similarly situated to defendants who accepted responsibility for all counts. (870) Defendant was charged with illegal reentry after conviction of an aggravated felony, making a false citizenship claim, and assaulting a federal officer. He went to trial on all three counts, but at trial, he conceded most of the facts necessary to prove the first two counts. Because defendant contested the third count, the district court denied him an acceptance of responsibility reduction. Defendant did not contest the guideline calculation, claiming only that his sentence violated the mandate in 18 U.S.C. § 3553(a)(6) that the court avoid “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The Tenth Circuit ruled that defendant was not similarly situated to a defendant who has received an acceptance of responsibility reduction, and thus his sentence did not violate § 3553(a)(6). First, it was not clear that defendant admitted sufficient facts necessary to accept responsibility for the first two counts, since he never admitted that his deportation followed an aggravated felony. Moreover, defendant did not accept responsibility for the third count. This made it reasonable to differentiate his sentence from that of a defendant who had accepted responsibility for all counts. The district court’s refusal to vary from the advisory guideline range was reasonable. U.S. v. Aguayo-Gonzalez, 472 F.3d 809 (10th Cir. 2007).
10th Circuit holds that extreme upward deviation was reasonable. (870) Defendant pled guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His advisory guideline range was 15-21 months, but the district court, after considering the sentencing factors in 18 U.S.C. § 3553(a), found this insufficient, and imposed a sentence of 120 months’ imprisonment. The Tenth Circuit held that the extreme upward deviation was reasonable. The district court’s reference to defendant’s prior arrest record was not improper – the court did not rely on the arrest record itself, but it extrapolated from the uncontested facts in the PSR (including the number, frequency, and seriousness of defendant’s various arrest and convictions) to draw conclusions about characteristics relevant to sentencing factors. The court also did not err by comparing defendant’s history to that of an armed career criminal, 18 U.S.C. § 924(e). The court properly sought guidance from the provision as to the appropriate length of sentence given defendant’s criminal history. The magnitude of the variance, although large, was reasonable, given defendant’s exceptional history and the fact that the advisory guideline sentence did not fully reflect the serous nature of his criminal record. Defendant had had significant contact with the criminal justice system over a short period of time, and indicated “a commitment to a criminal lifestyle.” U.S. v. Mateo, 471 F.3d 1162 (10th Cir. 2006).
10th Circuit upholds consideration of criminal history and defendant’s role in assault as grounds for variance above guideline range. (870) Defendant was sentenced for bank robbery above the advisory guideline range because the district court believed the guidelines failed to account for defendant’s criminal history and his role in assaulting a bank employee. Defendant argued that his 105-month sentence was unreasonable because the court simply increased his sentence to reach a sentence comparable to a co-defendant’s sentence, who had a different criminal history and therefore had a higher guideline range. The Tenth Circuit held that the sentence was reasonable. Although defendant and his co-defendant fell within different criminal history categories, the district court concluded that their records were quite similar and the guidelines did not adequately account for that similarity. The co-defendant received criminal history points because he committed the bank robbery while on parole or within two years of his release from incarceration, while defendant missed this benchmark by only 10 days. In addition, defendant’s conduct was more serious than his co-defendant’s because defendant was the one who actually assaulted the bank manager. Given the court’s careful explanation of its reasoning as to why defendant’s guideline calculation underestimated his culpability, there was substantial justification for the court’s divergence from the guideline range. U.S. v. Shaw, 471 F.3d 1136 (10th Cir. 2006).
10th Circuit holds that sentence outside properly calculated guideline range is not presumptively unreasonable. (870) Defendant was convicted of illegal reentry after deportation for an aggravated felony. He appealed his 60-month sentence, which was 33 months above the high-end of sentencing range recommended by the Sentencing Guidelines. The Tenth Circuit found that, although this was a substantial increase, it was reasonable under the facts of the case. The panel rejected defendant’s argument that sentences falling outside of the properly calculated guideline range are presumptively unreasonable. The district court gave three reasons for the upward variance: (1) defendant’s “demonstrated propensity for returning to the U.S., (2) his extensive history of alcohol-related problems, and (3) the risk that defendant would again reenter the U.S. and commit acts giving rise to a substantial risk of serious injury. While one reentry did not, by itself, be compelling enough to justify the upward variance here, his near immediate reentry showed some propensity to return to this country. Further, imposing a harsher sentence based on defendant’s long history with alcohol and potential threat in the future was no unreasonable. Defendant did not simply drink and drive, he killed someone while driving drunk and yet continued to engage in this behavior. U.S. v. Valtierra-Rojas, 468 F. 3d 1235 (10th Cir. 2006).
10th Circuit holds that guideline sentence was reasonable for illegal reentry case. (870) Defendant pled guilty to illegal reentry by a person previously deported for an aggravated felony, 18 U.S.C. § 1326(a) and (b)(2). He received a 16-level enhancement based on a 20-year old conviction for kidnapping, and argued that the § 3553(a) factors warranted a lower sentence than recommended by the guidelines. He noted that the age of his prior conviction, his likely minor role in that offense, and the intervening lack of any serous involvement with law enforcement warranted a variance from the guidelines. The Tenth Circuit held that the guideline sentence of 41 months was reasonable. The district court appropriately considered each of these contentions raised by defendant and noted countervailing considerations, including the absence of anything in the record showing that defendant was a minor participant in the kidnapping, the serious nature of that crime, and defendant’s multiple violations of immigration laws. U.S. v. Torres-Duenas, 461 F.3d 1178 (10th Cir. 2006).
10th Circuit holds that defendant who received § 5K1.1 departure was not affected by mandatory guidelines. (870) Defendant argued that he was entitled to be resentenced because he was sentenced under a mandatory sentencing regime. The Tenth Circuit rejected the request for resentencing because the error was harmless. Remand is not required where harmless error can be shown. The district court did not impose a sentence at the bottom of the applicable guideline range, but rather, exercised its discretion to impose a sentence less than the minimum indicated by the guidelines. The court followed the government’s recommendation that the court depart to a sentence 32 percent below the guideline range. In so doing, the court was not limited by the guidelines. Once a court exercises its discretion to depart from the guidelines, determination of the extent of that discretionary departure is within the sound discretion of the sentencing court and is not limited in any way by the guidelines. There was nothing of a mandatory nature in the guidelines that determined the extent of that departure. Thus, defendant’s sentence was not adversely affected by an erroneous belief that the guidelines were mandatory. U.S. v. Krejcarek, 453 F.3d 1290 (10th Cir. 2006).
10th Circuit upholds consecutive sentence for violating terms of supervised release. (870) In 1999, defendant pled guilty to illegal reentry after deportation for an aggravated felony. He was sentenced to 57 months, followed by a three-year term of supervised release, which included a provision that he not return to the U.S. Less than one year later, defendant was again found in the U.S. illegally and again pled guilty to illegal reentry. Defendant’s supervised release was revoked and he was ordered to serve an additional 15 months’ imprisonment for violating the terms of his supervised release, to be served consecutively to a 30-month term imposed for the current illegal-reentry offense. The Tenth Circuit held that the district court did not act unreasonably by making the revocation sentence consecutive to the sentence imposed upon his conviction for the underlying offense. Consecutive sentences were in accordance with the advisory policy statement in U.S.S.G. §7B1.3(f). Although the Supreme Court altered the standard of review for most sentencing cases, the standard of review for cases where the defendant challenged the revocation of his supervised release remained the same—the sentence will be upheld “if it can be determined from the record to have been reasoned and reasonable.” The sentence here was reasonable. U.S. v. Rodriguez-Quintanilla, 442 F.3d 1254 (10th Cir. 2006).
10th Circuit outlines post-Booker standard of review. (870) In its first case considering a sentence imposed after Booker, the Tenth Circuit “delineate[d] the contours of this newly pronounced standard of review.” Reasonableness review is guided by the factors set forth in 18 U.S.C. § 3553(a). However, the now-advisory guidelines are one of the factors to be considered in imposing a sentence, which means that district court “must consult those guidelines and take them into account when sentencing.” The Tenth Circuit joined other circuits in holding that a sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness. This is a deferential standard that either the defendant or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a). This new standard of review does not dispute the oft-cited principle that in considering the district court’s application of the guidelines, the appellate court reviews factual findings for clear error and legal determinations de novo. U.S. v. Kristl, 437 F.3d 1050 (10th Cir. 2006).
10th Circuit says non-constitutional Booker error did not constitute plain error. (870) In response to defendant’s Booker claim, the Tenth Circuit found no Sixth Amendment error because the district court enhanced defendant’s sentence based only upon the existence of his prior violent felony conviction. However, the district court did commit non-constitutional Booker error by treating the guidelines as mandatory. This was sufficient to satisfy the first two prongs of the plain-error analysis. However, the panel found it unnecessary to determine if defendant satisfied the third prong of prejudice, because he could not meet the fourth prong of plain error review: the court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Failing to correct a non-Sixth Amendment Booker error when the defendant has failed to preserve the error will rarely be found to have seriously affected the fairness, integrity, or public reputation of judicial proceedings. Such an error is only an “error” at all “as the serendipitous consequence of the severability analysis the Supreme Court employed to correct the constitutional infirmity created by the combination of judicial factfinding and the mandatory application of the guidelines.” There was no reason to conclude that the sentence imposed was “anything but reasonable.” U.S. v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005).
10th Circuit says defendant who agreed to specific sentence could not raise claim of improper use of mandatory guidelines. (870) Defendant’s plea agreement provided that he should be sentenced at the bottom of the applicable guideline range. Based on stipulated facts, the “tentative” guideline range contemplated by the plea agreement was 70-87 months. The district court disagreed with one of the PSR’s recommended enhancements, and imposed a 63-month sentence. Defendant argued that he was entitled to a remand on the grounds that he was sentenced under a mandatory sentencing scheme, in violation of U.S. v. Booker, 543 U.S. 220 (2005). The Tenth Circuit held that it lacked jurisdiction over the appeal. Defendant received the specific sentence he bargained for as part of his guilty plea. Having exposed himself to a specific punishment, he could not now claim he was the victim of a mandatory sentencing system. Booker did not undermine the validity of sentences imposed under Rule 11(c)(1)(C). U.S. v. Silva, 413 F.3d 1283 (10th Cir. 2005).
10th Circuit reviews defendant’s role in offense for clear error. (870) Defendant pled guilty to a methamphetamine conspiracy. He challenged a § 3B1.1(a) leadership enhancement. The government cited cases suggesting that the court’s conclusion that a defendant is a leader is a legal question, and therefore reviewed de novo. Defendant cited cases stating that the leadership determination is a factual finding subject to the clearly erroneous standard of review. Resolving the conflict, the Tenth Circuit held that an organizer or leadership enhancement should be reviewed for clear error rather than given de novo review. The role of a defendant is “among the sophisticated factual determinations a district court makes which depend upon an assessment of the context of the crime.” U.S. v. Cruz-Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit reviews loss determination under clearly erroneous and de novo standard. (870) The 10th Circuit held that a district court’s determination of loss under section 2F1.1 is reviewed under the clearly erroneous standard, but the factors a district court may properly consider are reviewed de novo. U.S. v. Gallegos, 975 F.2d 710 (10th Cir. 1992).
10th Circuit reviews imposition of concurrent sentence de novo. (870) Because the decision to impose a concurrent sentence presents a pure question of law, the 10th Circuit concluded that the decision was subject to de novo review on appeal. U.S. v. Shewmaker, 936 F.2d 1124 (10th Cir. 1991).
10th Circuit finds cuttings with root balls are marijuana plants under guidelines. (870) Defendant urged the court to adopt a scientific or botanical definition of the term marijuana “plant.” Under this definition a cutting does not become a plant until it develops its own means of obtaining energy through a gas exchange. Reviewing the matter de novo, the 10th Circuit rejected this definition, and found that the word “plant” under the sentencing guidelines should be given its ordinary and everyday meaning. Therefore, a marijuana plant includes cuttings with root balls. Congress intended to simplify, not complicate, the method of determining mandatory sentences. U.S. v. Eves, 932 F.2d 856 (10th Cir. 1991).
10th Circuit rejects claim that government wrongfully used information provided by defendant. (870) Defendant argued that the district court departed upward based on information obtained from him under his plea agreement, which provided such information would not be used against him. The government insisted that his co-defendants were independent sources for the information. The 10th Circuit found defendant’s claim unfounded. The government provided testimony, based on interviews with his co-defendants, that 50 ounces of cocaine were imported by the conspiracy of which defendant was a member. Defense counsel failed to rebut that testimony, or allege any facts which would rebut the lower’s court implicit finding that defendant was not the source of this information. Use of the co-defendant’s information did not violate any of defendant’s rights. U.S. v. St. Julian, 922 F.2d 563 (10th Cir. 1990).
10th Circuit reverses fine that exceeded guideline range. (870) On appeal, defendant objected to the alternative fine of $225,000. Since he had not objected to the amount of the fine in the district court, the 10th Circuit reviewed the sentence only for plain error. The court found that the district court had committed obvious error in selecting the appropriate fine range under the guidelines. The maximum fine was governed by the fine table in § 5E1.2(c), which provided for a maximum fine of $50,000, unless defendant was convicted under a statute authorizing a maximum fine “greater than $250,000.” Defendant was convicted of violating a statute with a maximum fine of $5,000. The alternative fine statute provided that a fine of “not more than $250,000” may be imposed if the defendant was convicted of a felony. The 10th Circuit found that even if the reference to “the statute under which ‘the defendant is convicted’ could be construed to include the alternative fine statute,” a “maximum fine greater than $250,000” is not the same as a fine “not more than $250,000.” Therefore, $50,000 was the maximum fine permissible. U.S. v. Smith, 919 F.2d 123 (10th Cir. 1990).
10th Circuit holds that ruling on acceptance of responsibility is entitled to great deference. (870) Relying on U.S.S.G. § 3E1.1, commentary note 5, the 10th Circuit held that the sentencing judge’s determination on acceptance of responsibility “is entitled to great deference on review and should not be disturbed unless it is without foundation.” The “clearly erroneous” standard applies. U.S. v. Trujillo, 906 F.2d 1456 (10th Cir. 1990).
10th Circuit gives “due deference” to trial judge in determining reasonableness of extent of departure. (870) The 10th Circuit held that in reviewing the reasonableness of the extent of an upward departure from criminal history category VI, a district court is entitled to “due deference.” An appellate court should not “lightly overturn determinations of the appropriate degree of departure.” The court found that the Commission did not intend to impose a particular formula upon a sentencing judge, but judges should not disregard the guideline requirements of proportionality and uniformity in making their determinations. U.S. v. Russell, 905 F.2d 1450 (10th Cir. 1990).
10th Circuit sets forth standard of review for departures. (870) The 10th Circuit reiterated that upon review of a departure, an appellate court must review three factors. First, whether the case was sufficiently unusual to warrant departure. This is a question of law subject to plenary review. Second, whether the “unusual” circumstances actually exist. This fact finding is subject to review for clear error. Thirdly, the direction and degree of departure must be measured by a standard of reasonableness. U.S. v. Emrick, 895 F.2d 1297 (10th Cir. 1990).
10th Circuit adopts three step test for reviewing upward departures. (870) The 10th Circuit agreed with the 1st Circuit and 6th Circuit that review of an upward departure from the guideline involves a three step process: (1) determination whether the circumstances cited by the district court justify a departure from the guidelines; (2) review of any underlying factual determinations made by the district court (utilizing a clearly erroneous standard of review); and (3) review of the reasonableness of the district court’s degree of departure. To determine whether the degree of departure is reasonable the court of appeals should consider the proffered justification as well as factors such as seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, sentencing pattern and policy statements of the guidelines and the need to avoid unwarranted disparities. The guidelines themselves offer direction in making the reasonableness determination. The court also stated that “at this early stage in the development of the guidelines, we should not lightly overturn determinations of the appropriate degree of departure.” U.S. v. Whyte, 892 F.2d 1170 (3rd Cir. 1989).
11th Circuit affirms despite court’s comments about defendant’s status as Cuban refugee. (870) At sentencing, the judge noted that this was a “disturbing case” because defendant came to the country as a Cuban refugee seeking freedom, “and the first thing she does is she rips off the Government for $19 million.” Defendant argued for the first time on appeal that this comment created the appearance that her sentence was based at least in part on her national origin. The Eleventh Circuit reviewed for plain error, rejecting defendant’s request for an exception to the contemporaneous objection rule for objections suggesting that the district judge was biased or created the appearance of bias. Defendant could not meet this standard. It was doubtful there was error, let alone plain error. It was unlikely that a reasonable observer, aware of the record facts, would have inferred that the court imposed a longer sentence on defendant because of how she came to reside in this country. Defendant’s sentence was 91 months, which was a 60-month variance below the low end of the advisory range of 151-188 months. U.S. v. Rodriguez, 627 F.3d 1372 (11th Cir. 2010).
11th Circuit says child porn sentence well-below advisory guideline range was not unreasonable. (870) Defendant pled guilty to one count of distributing child pornography. The district court found that 151-188 was the appropriate guidelines range, but imposed an 84-month sentence. The government argued that the sentence was substantively unreasonable, but the Eleventh Circuit disagreed. The 84-month sentence did not lie outside the range of reasonableness. The sentence exceeded the statutory minimum by several years. The court explicitly discussed a number of the § 3553(a) factors, including the goal of protecting the public. The court stated that the sentence provided for “a significant term of incarceration to account for his misconduct and the seriousness of the offense.” About defendant’s own history, the court also said that defendant had “perhaps one of the worst I have seen since being on the bench, being essentially abandoned by his family and then consistently abused.” The district court did not commit clear error in concluding that a sentence considerably less than the guideline-recommended range was appropriate. U.S. v. McBride, 511 F.3d 1293 (11th Cir. 2007).
11th Circuit holds probationary sentence for using or carrying a firearm during crime of violence was plain error. (870) Defendants pled guilty to robbery and firearm offenses, including a charge of using or carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced each of them to probation, with conditions of home confinement and community service. The Eleventh Circuit reversed, holding that the district court committed plain error by imposing a sentence of probation for the § 924(c) offense. Section 924(c)(1)(A) requires a mandatory minimum sentence of seven years’ incarceration, and required the sentence be served consecutively to defendants’ conspiracy and robbery sentences. The district court may impose a sentence below the statutory minimum pursuant to a § 3553(a) substantial assistance motion. However, the firearm statute explicitly prohibits a sentence of probation: “A court shall not place on probation any person convicted of a violation of this subsection.” § 924(c)(1)(D)(i). Although there was some question whether defendant preserved this issue for appeal, the court’s error satisfied the test for plain error. U.S. v. Mangaroo, 504 F.3d 1350 (11th Cir. 2007).
11th Circuit remands where court failed to follow procedure for departure or variance. (870) Defendant pled guilty to bank fraud and was sentenced to 108 months, well above his 41-51 month guideline range as calculated in the PSR, and also well above the 57-71 month range urged by the government on the basis of a two-level criminal history departure under § 4A1.3. The Eleventh Circuit vacated and remanded because the court failed to follow proper procedures for an upward departure under U.S.S.G. § 4A1.3, and the § 3553(a) factors listed by the court were inadequate to support the extraordinary variance. If the sentence was the result of a departure, the court wholly failed to specifically consider or even mention the next criminal history level, Category V, and even neglected to consider the Category VI range itself to determine whether that category more accurately represented defendant’s criminal history. As for a variance, many of the bases for the district court’s sentence were already accounted for in calculating the guidelines range and nothing extraordinary justified this extreme variance. The fact that it was the district court’s check that was counterfeited could not support a variance. There is no reason why fraud involving the district court is any more culpable than fraud involving other individuals or institution. U.S. v. Valdes, 500 F.3d 1291 (11th Cir. 2007).
11th Circuit holds post-offense rehabilitation justifies sentence 128 months below guideline range. (870) At defendant’s sentencing for possession of pseudoephedrine, eight witnesses testified that he had undergone a religious conversion after his arrest on drug-trafficking charges, maintained steady employment, kicked his methamphetamine addiction, inspired other addicts to overcome their addiction, and visited a juvenile home to encourage young people to change their lives. The district court found that defendant’s post-offense rehabilitation was extraordinary and imposed a sentence of 60 months, instead of a sentence within the advisory guidelines range of 188-235 months. On the government’s appeal, the Fifth Circuit held that the 60-month sentence was not unreasonable. It rejected the government’s contention that the district court impermissibly relied on defendant’s religion. It also held that although some of defendant’s post-offense conduct simply constituted compliance with his bail conditions, the district court had reasonably found that defendant’s post-offense rehabilitation showed that he posed less risk to the community and did not require lengthy incarceration. U.S. v. Clay, 483 F.3d 739 (11th Cir. 2007).
11th Circuit refuses to decide enhancement issue where court would have applied the same sentence anyway. (870) Defendant objected at sentencing to his receipt of a two-level threat of death enhancement. The district court overruled defendant’s objection and, applying the enhancement, arrived at an advisory guideline range of 100-125 months. Without the enhancement, defendant’s guideline range would have been 84 to 105 months. The court imposed a 120-month sentence, but in doing it said that even if the two-level enhancement had not been applicable, it court would have imposed the same sentence under its 28 U.S.C. § 3553(a) authority to impose a reasonable sentence outside the guideline range. The Eleventh Circuit found it unnecessary to resolve defendant’s challenge to the enhancement since either way, it would not affect the outcome of the case. The only questions was whether the resulting sentence was reasonable. In determining whether the sentence was reasonable, the court assumed that there was a guidelines error, and that the advisory guideline range was 84-105 months. Defendant could not carry the burden of showing that his 120-month sentence was not reasonable. Defendant committed three robberies while on probation. Although only 29 years old, he had previously been convicted of an assortment of drug, burglary and fraud offenses. Finally, he induced his sister, who had no criminal history, to join in the criminal enterprise. U.S. v. Keene, 470 F.3d 1347 (11th Cir. 2006).
11th Circuit holds that disparities from fast-track program did not support departure. (870) The government argued that the trial court erred by sentencing defendant to a term of imprisonment below the guidelines range to alleviate sentencing disparities associated with the unavailability of early disposition or “fast-track” programs in the South District of Georgia. The Eleventh Circuit ruled that such disparities were not “unwarranted,” and thus were an impermissible basis for sentencing. See U.S. v. Anaya Castro, 455 F.3d 1249 (11th Cir. 2006) (any disparity created by U.S.S.G. § 5K3.1 does not fall within the scope of § 3553(a)(6)). Section 5K3.1 makes clear that a defendant may benefit from its application only on motion of the government and only if the Attorney General has authorized the early disposition program in the district. Congress plainly contemplated that discrepancies would arise because it structured the law the way it did. U.S. v. Arevalo-Juarez, 464 F.3d 1246 (11th Cir. 2006).
11th Circuit holds that drug amounts were not derived from defendant’s debriefing. (870) Defendant argued that the drug quantity attributed to him at sentencing was derived from information he provided to the government as part of his plea agreement, in violation of U.S.S.G. § 1B1.8. He claimed that § 1B1.8 required that any corroboration of his statements given pursuant to a plea agreement must have been before the entry of the agreement and therefore, because the government’s evidence of drug weight was the same as the statements given by defendant, his sentence must be vacated. The Eleventh Circuit held that so long as the information is obtained from independent sources or separately gleaned from co-defendants, it may be used at sentencing without violating § 1B1.8. The government offered a DEA agent’s testimony which showed that, while defendant told authorities about the drug quantities transferred to North Carolina, that information was not provided in any way to Nguyen, who later corroborated defendant’s statement regarding drug quantity in an interview. There was no evidence that the DEA agent induced Nguyen to discuss those drug quantities by using defendant’s statements or that Nguyen would not have told authorities about those drug quantities absent defendant’s cooperation and agreement. The district court did not clearly err by finding that the drug quantity was based on statements other than defendant’s. U.S. v. Pham, 463 F.3d 1239 (11th Cir. 2006).
11th Circuit holds that reimposition of guideline sentence on remand was reasonable. (870) 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 says court may not disregard 100:1 crack to powder cocaine ratio to determine reasonable sentence. (870) Defendant was convicted of possession with intent to distribute crack cocaine. He argued that the district court erred by treating the 100:1 sentencing ratio as mandatory in light of Booker. The Eleventh Circuit disagreed. In U.S. v. Williams, 456 F.3d 1353 (11th Cir. 2006), abrogated by Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007), it held that a district court’s disagreement with the penalties for crack cocaine offenders relative to powder cocaine offenders was an improper basis upon which to depart from a properly calculated guidelines range under 18 U.S.C. § 3553(a). The district court was not free to disregard the 100:1 ratio in calculating defendant’s guidelines range or as part of its § 3553(a) analysis. The district court remained obligated to calculate the correct guidelines range, and could not disregard the 100:1 ratio as part of its calculation of a reasonable sentence under 18 U.S.C. § 3553(A). U.S. v. Pope, 461 F.3d 1331 (11th Cir. 2006).
11th Circuit holds that court may determine, on a case-by-case basis, the weight to give the guidelines. (870) At sentencing, the district court found that it should “give considerable weight to the guidelines in this case,” and found “no substantial reason to depart from those guidelines or to impose a non-guideline sentence in this particular case.” Defendant argued that the court’s reference to “substantial” and “considerable weight” indicated an excessive reliance on the guidelines that was inconsistent with the role the guidelines should play in a post-Booker world. The Eleventh Circuit held that a district court may determine, on a case-by-case basis, the weight to give the guidelines, so long as that determination is made with reference to the remaining § 3553(a) factors that the court must also consider in calculating the defendant’s sentence. Here, while the court made some statements that could be interpreted as presumptions in favor of the guidelines, the court ultimately considered that the guidelines were worthy of deference in that particular case. The court’s decision to defer to the guidelines was ultimately a case-specific one and was based on the consideration of the § 3553(a) factors. U.S. v. Hunt, 459 F.3d 1180 (11th Cir. 2006).
11th Circuit holds that failure to adjust for disparity with fast-track sentences did not make sentence unreasonable. (870) Defendant pled guilty to illegal reentry into the U.S. after deportation. He argued that the district court erroneously denied him a four-level downward departure under the early disposition program, see U.S.S.G. § 5K3.1, because the use of the program in some districts and not others created sentencing disparities in violation of § 32553(a)(6) and the constitutional guarantee of equal protection. The Eleventh Circuit disagreed. Any disparity created by § 5K3.1 does not fall within the scope of § 3553(a)(6). When Congress directed the Sentencing Commission to allow the departure for only participating districts, Congress implicitly determined that the disparity was warranted. The court’s refusal to grant defendant the benefit of a § 5K3.1 departure, as a matter of equal protection, did not constitute plain error (although the court did not go so far as to say the disparity did not violate equal protection). Defendant was unable to identify any precedent that has held that the limited availability of the fast-track departure violates equal protection. U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006).
11th Circuit holds that five-hour sentence for fraud defendant was unreasonable. (870) As the comptroller of a corporation, defendant participated in a fraudulent scheme that bilked a bank out of nearly half a million dollars. The government moved for a downward departure based on defendant’s assistance in the prosecution of the company’s president. When the court indicated its intent to sentence defendant to probation, the government pointed out that the law required incarceration. The district court modified the sentence to five hours in custody. The Eleventh Circuit held that the five hour sentence was unreasonable. In deciding how much to depart on substantial assistance grounds, the court not only considered the need for restitution, but it gave that factor controlling weight. The court did not discuss any of the § 5K1.1(a) assistance-related factors, such as the significance and usefulness of the assistance, or the nature and extent of the assistance. In addition, the leap from the post-departure guideline range of 6-12 months down to five hours was excessive. The court imposed the sentence to evade the strictures of the law forbidding a probationary sentence. However, the sentence was not a real sentence of incarceration, and violated 18 U.S.C. § 3561(a) (probation may not be imposed for Class B felony). Five hours imprisonment for an offense that caused almost half a million dollars in loss was unreasonable. U.S. v. Crisp, 454 F.3d 1285 (11th Cir. 2006).
11th Circuit upholds sentence less than half of bottom of advisory guideline range. (870) Defendant was convicted of distribution of child pornography, in violation of 18 U.S.C. §§ 2252A (a)(2)(A) and (b)(1). Although his advisory guideline range was 151-188 months, the district court imposed a sentence of 72 months. The Eleventh Circuit held that under the circumstances, a sentence of less than half of the low end of the advisory guideline range was reasonable. The court gave specific, valid reasons for its low sentence. The court’s statements indicated that it took into account defendant’s age (64 years old), his prior minimal criminal record (never molested a child and a few matters too old to be included in his criminal history) and his medical condition (depression, multiple attempts to commit suicide and a heart condition). These were all valid considerations because they related to the “history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The court weighed these against “the nature and circumstances of the offense” and decided to impose a non-guidelines sentence. There was no indication that the court imposed the lower sentence solely because it disagreed with the guidelines. U.S. v. Gray, 453 F.3d 1323 (11th Cir. 2006).
11th Circuit approves above guideline sentence to defendant who sold driver’s licenses to illegal immigrants. (870) Defendant was involved in a scheme to issue fraudulent driver’s licenses to illegal immigrants in South Florida. The district court found that the advisory guideline range of 15-21 months’ imprisonment failed to adequately deter or protect the public from future crimes. The court found a 42-month sentence would be adequate, but then, granting the government’s § 5K1.1 motion for a substantial assistance departure, imposed a sentence of 28 months. The Eleventh Circuit held that the sentence was reasonable. The court was concerned with (1) the egregious nature of the offense, based on its potential impact on national security; (2) defendant’s sales of license renewals to those who were unable to obtain them post 9/11 resulted in the provision of licenses to the very people Congress wanted to subject to greater regulation in the name of national security; and (3) there were no safeguards to prevent defendant from returning to this market after his release from prison. The court’s “careful consideration” of the § 3553(a) factors was not unreasonable. U.S. v. Valnor, 451 F.3d 744 (11th Cir. 2006).
11th Circuit rules that government failed to establish that Booker error was harmless. (870) The district court committed constitutional Booker error by finding that defendant possessed a stolen firearm – a fact neither admitted by him nor found by a jury – and imposing a two-level enhancement under a mandatory guideline system. Defendant preserved his claim of Booker error; therefore, the government had the burden of proving beyond a reasonable doubt that the error was harmless. The Eleventh Circuit ruled that the government could not meet this burden simply by showing that the court imposed a sentence at the top of the guideline range. Rather, the government must at least point to a statement by the court indicating it would have imposed the same or a higher sentence if it had possessed the discretion to do so. The court’s assertion that a sentence at the high end of the guideline range was appropriate was not sufficient. U U.S. v. Cain, 433 F.3d 1345 (11th Cir. 2005).
11th Circuit says court imposing post-Booker sentence need not specifically address and analyze each § 3553 factor. (870) Defendant was convicted of a variety of charges relating to his correspondence with, and eventual travel to, an undercover agent posing as a parent willing to have other adults have sex with his children. His guidelines range was 135-168 months’ imprisonment. The district court rejected defendant’s request for a sentence below the advisory guidelines range, and imposed a 135-month sentence. The Eleventh Circuit affirmed. The district court considered the § 3553(a) factors, although the court did not specifically address and analyze each of the factors defendant raised. Nothing in Booker or elsewhere requires the district court state on the record that it has explicitly considered each of the 3553(a) factors or to discuss each of these factors. The 135-month sentence, which was at the bottom of the guideline range, was reasonable. U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005).
11th Circuit says Booker did not alter its review of application of guidelines. (870) Defendant’s appeal did not raise any issue of a Sixth Amendment violation, as explicated by U.S. v. Booker, 543 U.S. 220 (2005), and neither party raised any issue of the application of the guidelines in a mandatory, rather than advisory, fashion. The Eleventh Circuit held that Booker did not alter its review of the application of the guidelines. Although Booker established a “reasonableness” standard for the sentence finally imposed on a defendant, the Supreme Court concluded in Booker that the district courts must still consider the guidelines in determining a defendant’s sentence. Nothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the guidelines by a district court. After Booker, courts remain obliged to “consult” and “take into account” the guidelines. This consultation requirement, at a minimum, obliges the district court to calculate correctly the sentencing range prescribed by the guidelines. U.S. v. Crawford, 407 F.3d 1174 (11th Cir. 2005).
11th Circuit holds that using PROTECT Act’s changed standard of review does not violate Ex Post Facto Clause. (870) The 2000 version of 18 U.S.C. § 3742(e)(3) instructed federal appellate courts to “give due deference to the district court’s application of the guidelines to the facts.” Accordingly, the appellate courts reviewed a district court’s decision to depart downward for an abuse of discretion. Section 401(d) of the PROTECT Act, effective April 30, 2003, amended § 3742(e)(3) to provide for de novo review of the district court’s application of the guidelines to the facts. Defendant was sentenced before the PROTECT Act was sentenced. The Eleventh Circuit held that the applying the changed standard of review under the PROTECT Act would not violate the Ex Post Facto Clause. Changing the standard of review retroactively did not alter the definition of defendant’s crime or increase the punishment for the underlying act. Although defendant might ultimately receive a longer sentence as a result, it will be because the guidelines were improperly applied and correction is required, not because the applicable substantive law has changed. U.S. v. Saucedo-Patino, 358 F.3d 790 (11th Cir. 2004).
11th Circuit outlines sliding standard of review for application of guidelines to facts. (870) Under 18 U.S.C. § 3742(e), “The court of appeals … shall accept the findings of fact of the district court unless they are clearly erroneous and, … shall give due deference to the district court’s application of the guidelines to the facts.” After reviewing Supreme Court precedent and its own caselaw in the area, the Eleventh Circuit concluded that “due deference” does not establish a fixed quantum of review, but instead requires varying degrees of deference to the lower courts based on the precise nature of the guideline provision at issue. Where a determination turns primarily on the evaluation of facts (such as a witness’s credibility, intonation, and demeanor) that are more accessible to the district court than to the court of appeals, the appellate court will defer to the court’s application of the law to those facts and apply “clear error” review. Similarly, a case involving application of a fairly well-understood legal standard to a complex factual scenario will be considered “primarily factual,” and will be reviewed for clear error. Most other cases, in contrast, will be reviewed de novo. In the case at hand, the question of whether charges should have been grouped differently is primarily one of law rather than of fact. An appellate court need not rely on the district court’s fact finding, because the charges of which the defendant was convicted were clearly set forth in the indictment. To resolve the issue, the court must interpret and apply § 3D1.2’s standards to these charges. Thus, the Eleventh Circuit ruled that it need not afford the district court’s ruling any special deference, and it reviewed the grouping ruling de novo. U.S. v. Williams, 340 F.3d 1231 (11th Cir. 2003).
11th Circuit reaffirms that district court’s role in the offense finding is reviewed for clear error. (870) The Eleventh Circuit has long and repeatedly held that a district court’s determination of a defendant’s role in the offense is a finding of fact to be reviewed only for clear error. See, e.g. U.S. v. Campbell, 139 F.3d 820 (11th Cir. 1998), vacated and superseded by U.S. v. Campbell, 181 F.3d 1263 (11th Cir. 1999). In the present case, the Eleventh Circuit, en banc, reaffirmed this holding, noting that every other circuit has adopted the clear error standard to review the court’s determination of a defendant’s role in the offense. The ultimate determination of a defendant’s role in the offense is a fundamentally factual determination, and the district judge is in the best position to weigh and assess both the defendant’s role in his relevant conduct and the relative degrees of culpability of the other participants in the conduct. Intensely factual inquiries such as these are properly consigned to the experienced discretion of the district judge. U.S. v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc).
11th Circuit reconciles cases describing departure steps. (870) The Eleventh Circuit applies a three‑step process for reviewing departures. First, it reviews de novo the decision as to whether the guidelines adequately consider a particular factor. Second, if the factor was not considered, it examines whether consideration of this factor is consistent with the guidelines. Third, it reviews the departure for reasonableness. The Eleventh Circuit noted an ostensible disagreement among panels regarding the second step of the analysis. Under one line of cases, the second step involves evaluating whether consideration of a factor is consistent with the goals of the guidelines. Another line suggests an inquiry into whether there exists factual support for the departure. These two lines of cases “do not represent diametrically opposed rules, but refinements of the same general process.” A court should evaluate whether the departure is consistent with the goals of the guidelines, but it cannot entertain an argument that the Commission failed to adequately consider a particular circumstance if there exists no factual predicate for that circumstance. U.S. v. Miller, 78 F.3d 507 (11th Cir. 1996).
11th Circuit reviews relevant conduct under clearly erroneous standard. (870) The 11th Circuit reviewed under the clearly erroneous standard the district court’s determination of whether criminal activity was part of the same course of conduct as the offense of conviction. U.S. v. Rodgers, 951 F.2d 1220 (11th Cir. 1992), amended, 972 F.2d 1253 (11th Cir. 1992).
11th Circuit gives plenary review to determination of whether defendant’s failure to reveal prior conviction was an attempt to obstruct justice. (870) Defendant failed to reveal to his probation officer a prior misdemeanor conviction which, because it was uncounseled, could not be included in the calculation of his criminal history. The district court found that this constituted obstruction of justice under section 3C1.1. The 11th Circuit found that the question of whether a defendant’s failure to disclose a previous conviction that cannot bear upon his criminal history calculation constitutes obstruction of justice involved a legal interpretation of section 3C1.1, and thus was subject to plenary review. U.S. v. Dedeker, 961 F.2d 164 (11th Cir. 1992).
11th Circuit reviews acceptance of responsibility determination under clearly erroneous standard. (870) The 11th Circuit held that a district court’s determination of whether a defendant has accepted responsibility is a finding of fact which is entitled to great deference on appeal, and will be affirmed unless clearly erroneous. However, the district court’s application of the sentencing guidelines is reviewed de novo. U.S. v. Rodriguez, 959 F.2d 193 (11th Cir. 1992).
11th Circuit rules flight from police does not constitute obstruction of justice but upholds enhancement. (870) When DEA agents followed defendant’s car into a drive-through lane of a fast food restaurant, the car reversed and headed toward a parking spot. When an agent approached the car on foot, the car did not stop, but drove up over a curb and struck another agent’s vehicle. Defendant challenged a two-level enhancement for obstruction of justice. The 11th Circuit, following other Circuits, found that under the prior version of the guidelines in effect at the time defendant was sentenced, mere flight from police does not justify an enhancement for obstruction of justice. The most recent version of the guidelines expressly states this rule. Nonetheless, the court upheld the enhancement in defendant’s case. Since defendant created a substantial risk of death or serious bodily injury to another person in the course of fleeing from police, such conduct did not constitute “mere flight.” U.S. v. Burton, 933 F.2d 916 (11th Cir. 1991).
11th Circuit adopts three step review for departure cases. (870) The 11th Circuit, following the 1st Circuit’s opinion in U.S. v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989), adopted a three step analysis to review departure cases. First, the appellate court will determine whether the guidelines adequately consider a particular factor which would preclude a district court from relying upon it as a basis of departure. Second, the court must determine whether there exists sufficient factual support for the departure. A district court’s findings may only be reversed if clearly erroneous. Finally, the direction and degree of departure must be measured by a standard of reasonableness. In doing so, the appellate court must consider the factors to be considered in sentencing in light of the reasons for the imposition of the particular sentence as stated by the district court. U.S. v. Weaver, 920 F.2d 1570 (11th Cir. 1991).
11th Circuit reviews district court’s finding as to “role in offense” under the “clearly erroneous” standard. (870) The 11th Circuit concluded that the district court was not clearly erroneous in finding that defendant was not entitled to a reduction in his offense level for being a minimal or minor participant. The court found that the sentencing judge placed the burden of persuasion on the government, but found that the evidence was such that without more from the defendant, it could not conclude that the defendant was entitled to any reduction in the offense level. The court found that this ruling was not “clearly erroneous.” U.S. v. Taxacher, 902 F.2d 867 (11th Cir. 1990).
11th Circuit upholds use of preponderance of evidence standard at sentencing but does not foreclose higher standard. (870) Defendant argued that the reasonable doubt standard should have been applied by the sentencing court in determining facts used for sentencing under the guidelines. The 11th Circuit disagreed, ruling that the “preponderance of the evidence” standard satisfied the due process clause. However, the court also wrote that it did not “foreclose the possibility that at some future time, and in some other context, we might require a higher standard of proof as a matter of policy.” U.S. v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990).
D.C. Circuit remands where court failed to explain how it calculated sentence. (870) Defendant argued that his 144-month sentence was nearly four times greater than the maximum guideline sentence for the three crimes for which he was convicted, and that the district court failed to provide a reasonable basis that would support such a draconian upward deviation. The D.C. Circuit remanded because the district court failed to provide a clear explanation of how it calculated defendant’s sentence. The PSR concluded that the jury found defendant responsible for 11.7 grams of cocaine base found in the console of his car, which would have resulted in a guideline range of 110-137 months. Defendant objected to the inclusion of this crack on the ground that he was only convicted of possessing 1.4 grams of crack, and that his guideline range should be 30-37 months. Based on the record, it appeared that the district court should have figured defendant’s possession of the 11.7 grams of crack into the calculation of the proper guideline range. However, the panel was unable to find anywhere in the record where the sentencing court stated or even implied that it used a guidelines range that took into account defendant’s possession of the 11.7 grams. U.S. v. Lawson, 494 F.3d 1046 (D.C. Cir. 2007).
D.C. Circuit notes that reasonableness is standard of review, not an objection that must be made at sentencing. (870) Defendant argued that his sentence was unreasonable because the district court failed to adequately consider the sentencing factors listed in 18 U.S.C. § 3553(a). The government insisted that the court could only review this claim for “plain error” because defendant did not argue in the district court that his 37-month sentence was “unreasonable” or object that the court did not adequately consider the factors set forth in § 3553(a). The D.C. Circuit noted that “reasonableness” is the standard of appellate review, not an objection that must be raised upon pronouncement of a sentence. Its review of a sentence was “not affected by whether the defendant had the foresight to label his sentence ‘unreasonable’ before the sentencing hearing adjourned. The sentence here was not unreasonable. U.S. v. Bras, 483 F.3d 103 (D.C. Cir. 2007).
D.C. Circuit holds findings at original sentencing were insufficient for appellate review. (870) The district court, sentencing defendant two months after the Supreme Court decided Booker, interpreted the case as permitting it to enter a sentence without making a specific finding of the appropriate range under the Sentencing Guidelines. At issue was whether his prior conviction for abduction constituted a crime of violence or an aggravated felony under U.S.S.G. § 2L1.2(b) (1). Announcing the sentence, the district court concluded: “On balance, the better arguments legally – and I’m not making a specific finding – are to treat the conduct that you engaged in as a crime of violence.” The D.C. Circuit found the court’s findings insufficient and remanded for resentencing. The panel refused to infer that the court made a specific finding that the offense was a crime of violence, since it expressly and repeatedly made statements to the contrary. U.S. v. Ventura, 481 F.3d 821 (D.C. Cir. 2007).
D.C. Circuit holds court plainly erred in imposing 108-month sentence based on mistaken belief that statutory maximum was 240 months. (870) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced to 108 months under the then-mandatory guidelines. Upon resentencing in light of Booker, the court imposed the same sentence. The D.C. Circuit held that the district court plainly erred in thinking the statutory maximum to which defendant could be sentenced was 20 years, when in fact it was 10 years. The error affected defendant’s substantial rights. The court was under the impression it was imposing a relatively lenient sentence – it stated that the sentence was “considerably less than the statutorily-available maximum” presumably in order to take into account relevant mitigating factors raised by defendant. The panel reversed the sentence. U.S. v. Watson, 476 F.3d 1020 (D.C. Cir. 2007).
D.C. Circuit holds that it was error for court not to consider problems raised by 100:1 crack/powder cocaine ratio. (870) Defendant argued that the court should impose a sentence below the guideline range, taking into account the unwarranted disparity caused by the 100:1 crack/powder cocaine sentencing ratio in § 2D1.1. The district court declined to rule on the issue, finding that the issue had already been decided. The D.C. Circuit held that the district court erred by refusing to evaluate whether sentencing defendant in accordance with the 100:1 ratio would effectuate the purposes of § 3553(a). Although a previous case, U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996), held that any problems caused by the 100:1 ratio did not justify a departure from the mandatory guidelines, Anderson was no longer controlling. Under U.S. v. Booker, the guidelines are no longer mandatory. A court must evaluate how well the applicable guideline effectuates the purposes of sentencing enumerated in § 3553(a). The panel did not believe that allowing courts to consider the “untoward” results of the ratio would frustrate the will of Congress, or that the guideline was a manifestation of congressional intent. For a crack dealer who distributes more than 50 grams of crack, Congress’s will is that his sentence be between 10 years’ and life imprisonment. Section 841(b) is silent as to where within that range the sentence should fall. U.S. v. Pickett, 475 F.3d 1347 (D.C. Cir. 2007).
D.C. Circuit upholds its jurisdiction to review reasonableness of sentence within guideline range. (870) In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court directed the circuit courts of appeal to review sentences for reasonableness, but did not expressly describe the jurisdictional basis for such review. Defendant argued that his 24-month sentence, which fell within the advisory guideline range, was unreasonable. The government contended that § 3742(a)(1) does not give an appellate court jurisdiction to review a sentence within a properly calculated guidelines range, relying on pre-Booker precedent. See U.S. v. Hazel, 928 F.2d 420 (D.C. Cir. 1991). The D.C. Circuit upheld its jurisdiction to review the reasonableness of a sentence within the guideline range, concluding that Booker has overruled its precedent on this point. Every circuit that has considered the issue has decided that § 3742(a)(1) provides appellate jurisdiction to review any sentence for reasonableness. An unreasonable sentence is a sentence “imposed in violation of law.” Circuit courts will review any sentence, whether within the guideline range or not, “to ensure that it is reasonable in light of the sentencing factors that Congress specified in 18 U.S.C. § 3553(a).” However, a sentence within the properly calculated guideline range is entitled to a rebuttable presumption of reasonableness. Defendant did not come close to rebutting this presumption. U.S. v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006).
D.C. Circuit holds that plain error in treating Sentencing Guidelines as mandatory did not affect defendant’s substantial rights. (870) Defendant argued for the first time on appeal that the district court erred under Booker by treating the Sentencing Guidelines as mandatory. Under circuit caselaw, the first two plain error requirements are met if a judge treats the guidelines as mandatory. U.S. v. Coles, 403 F.3d 764 (D.C. Cir. 2005). Thus, the only issue was whether the sentencing error affected substantial rights, that is, “whether there would have been a materially different result, more favorable to the defendant, had the sentence been imposed in accordance with the post-Booker sentencing regime. The D.C. Circuit held that the error did not affect defendant’s substantial rights. The court sentenced defendant at the very top of the applicable guideline range, and identified this maximum sentence as “appropriate” to “serve as a warming to those who will kidnap Americans abroad,” and “entirely appropriate” for the type of actions that took place here. The judge’s strong and unambiguous approval of the sentence imposed, based on its deterrent effect and its proportionality to the crime committed, showed that the judge, applying the guidelines as advisory rather than mandatory, would not have imposed a sentence materially more favorable to defendant. U.S. v. Tchibassa, 452 F.3d 918 (D.C. Cir. 2006).
D.C. Circuit says defendant failed to show prejudice from court’s failure to conduct proper inquiry into crime of violence. (870) Defendant was convicted of being a felon in possession of a firearm. Section 2K2.1(a)(4)(A) calls for a higher base offense level if the defendant previously had sustained one felony conviction for a “crime of violence.” To determine whether a prior conviction is a crime of violence, the sentencing court must consider the statutory definition of the offense of conviction, and not the particular circumstances under which that offense was committed. Here, the court plainly erred by failing to conduct the proper inquiry into defendant’s 1994 robbery conviction. The D.C. Circuit held that defendant failed to demonstrate the prejudice necessary to satisfy plain error review. There was nothing to suggest that the court would have assigned defendant a different offense level had it first conducted the proper inquiry into his 1994 robbery conviction. U.S. v. Williams, 358 F.3d 956 (D.C. Cir. 2004).
D.C. Circuit applies plain error standard of review to sentencing errors not raised below. (870) Defendant challenged for the first time on appeal the district court’s adoption of the presentence report’s drug quantity findings. The D.C. Circuit held that the district court’s decision was reviewable only for plain error. It rejected the notion that 18 U.S.C. § 3742(f)(1), which requires remand where a sentence is imposed in violation of law, mandates reversal regardless of plain error. Plain error exists only when the error is obvious. Generally, the error must also have been prejudicial. However, the required showing of prejudice should be slightly less exacting than it is in the context of trial errors. Defendant must show a reasonable likelihood that the sentencing court’s obvious error affected his sentence. U.S. v. Saro, 24 F.3d 283 (D.C. 1994).
D.C. Circuit gives “due deference” to district court’s application of guidelines to facts. (870) The district court found that defendant’s offense involved more planning than is typical. The D.C. Circuit held that the proper standard of review for the district court’s application of the guidelines to this set of facts (a “mixed question of law and fact”) was due deference. Congress created a trichotomy, rather than a dichotomy, for reviewing lower court’s actions: Purely legal questions are reviewed de novo; factual findings are to be affirmed unless “clearly erroneous”; and an appellate court must give “due deference” to the district court’s application of the guidelines to facts. Due deference presumably is meant to fall somewhere between de novo and “clearly erroneous.” It reflects a compromise between the need for uniformity in sentencing and the recognition that district courts should be afforded some flexibility in applying the guidelines to the facts before them. U.S. v. Kim, 23 F.3d 513 (D.C. Cir. 1994).
D.C. Circuit finds error harmless where court would impose sentence regardless of criminal history category. (870) Defendant argued that the district court improperly included two prior convictions in his criminal history score, yielding a criminal history category of V rather than IV. Recognizing that the choice of criminal history category was subject to dispute, however, the district court said that its sentence would not change regardless of the category applied; the sentence fell within the overlap between the two ranges. The D.C. Circuit concluded that the district court’s statement rendered harmless any error in calculating the criminal history score. U.S. v. Thompson, 994 F.2d 864 (D.C. Cir. 1993).
D.C. Circuit applies plain error standard to issues raised for first time in docketing statement. (870) Defendant failed to raise objections to the sentencing guidelines in district court. He argued that the plain error standard of review by the appellate court should not apply since he did raise the issues in his modified docketing statement filed in the appellate court. The D.C. Circuit rejected this argument, noting that the notice to the appellate court of the issues defendant intended to raise did not overcome the district court’s lack of opportunity to rule on the challenges. U.S. v. Broxton, 926 F.2d 1180 (D.C. Cir. 1991).
D.C. Circuit defers to district court’s judgment once it determines that departure is legally permitted. (870) The D.C. Circuit held that determining whether a certain factor is an appropriate ground for enhancement of a sentence is a question of statutory interpretation subject to plenary review. However, “[o]nce it has been established that a factor is a legally permissible basis for departure, we give broad deference to the district court’s judgment as to the appropriateness of considering this factor, and we will uphold the departure so long as it is reasonable.” Factual findings will be reviewed under the clearly erroneous standard. U.S. v. Burns, 893 F.2d 1343 (D.C. Cir. 1990), reversed on other grounds, Burns v. U.S., 501 U.S. 129, 111 S.Ct. 2182 (1991).
Article argues that Koon’s abuse of discretion standard for departures is really a “sliding scale.” (870) University of San Diego Law Professor Cynthia K.Y. Lee acknowledges that Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) instructs appellate courts to substantially defer to district court departure decisions. But she argues that Koon’s “unitary” abuse of discretion standard of review actually encompasses differing standards of review within the abuse of discretion umbrella. She suggests that to provide better guidance, “Koon’s abuse of discretion standard should be reformulated to reflect a sliding scale of deference approach which specifies varying degrees of deferential review for the different aspects of the departure decision.” Cynthia K.Y. Lee. A New “Sliding Scale of Deference” Approach To Abuse of Discretion: Appellate Review of District Court Departures Under the Federal Sentencing Guidelines, 35 Am. Crim. L. Rev. 1 (1997).
Articles discuss Supreme Court’s decision in Koon. (870) In an issue of the Federal Sentencing Reporter edited by Mark Harris and Douglas Berman, a number of authors discuss the Supreme Court’s decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). Paul Hofer, Special Projects Director at the Sentencing Commission, expresses concern that the Court’s “heartland” concept may yield different results depending on whether the method used is “statistical,” “intentional,” or “normative.” Professor Kate Stith asserts that the Court’s “abuse of discretion” standard did little to challenge the Sentencing Commission’s hegemony. Professor Frank Bowman argues that it is “pure banana oil” for the Court to say that Congress intended district courts to “retain much of their traditional sentencing discretion,” and says the Court is wrong when it says district courts have an “institutional advantage” over appellate courts in making departure decisions.” Former AUSA Peter Vigeland suggests that defense counsel’s role, after Koon, “is to exploit the hostility many district judges bear towards the guidelines,” but Federal Defender Abraham Clott worries that Koon may actually “encourage courts of appeals to narrow the range” in which district courts may exercise discretion at all.” Defenders James Forman and Giovanna Shay draw attention to the racial implications of Koon, suggesting that additional discretion “may largely reinforce existing discrimination in the criminal justice system.” Probation Officer Francesca Bowman offers statistics from the District of Massachusetts indicating that “it does not appear that the Koon decision is undermining the guidelines.” Finally, Catherine Goodwin, Assistant General Counsel at the Administrative Office of U.S. Courts, points out that Koon did not deal with the extent of departures, and she suggests that probation officers should “assist the court by analyzing the potential for departures.” Mark Harris and Douglas Berman, Koon v. United States: The Supreme Court’s Puzzling Ruling on Departures and Discretion, 9 Fed. Sent. Rptr. 4-36 (1996).
Article extols 1st Circuit departure case. (870) Aaron J. Rappaport predicts that the approach to reviewing departures in U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993), will be very influential. Though the court purported merely to be elaborating on and modifying an earlier case, U.S. v. Diaz-Villafane, 874 F.2d 43 (1st Cir.), cert. denied, 110 S. Ct. 177 (1989), Rivera represents a “major advance” over Diaz-Villafane, which itself has been expressly adopted by at least four other circuits. Rivera establishes different standards of review depending on the nature of the departure. The author notes that some departures will present hybrids of the two models discussed in Rivera, requiring special attention. Aaron J. Rappaport, Reviewing Departures — The First Circuit’s New Rivera Rule, 6 Fed. Sent. Rptr. 43-44 (1993).