740 Booker “Variances” and 18 U.S.C. §3553(a) Factors, Generally

700 – Departures, Generally (§5K)

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§740 Booker “Variances” and 18 U.S.C. §3553(a) Factors, Generally

1st Circuit affirms within-guidelines drug/firearms sentence, finding offense was not over-emphasized. (240)(330)(740) Defendant pleaded guilty to drug and firearms offenses, and was sentenced within the guidelines to 168 months. Defendant argued the district court placed too much weight on the circumstances of the case and not enough weight on his history and characteristics. The First Circuit affirmed, finding that the sentencing rationale was defensible because the district court weighed the applicable factors and the offense was serious. U.S. v. Mujero-Vargas, __ F.4th __ (1st Cir. Feb. 2, 2022) No. 19-1941.

6th Circuit says court need not “ritualistically” recite § 3553(a) factors in sentencing within guidelines. (240)(740) Defendant was convicted of drug trafficking. His guidelines range was 360 months to life, and the district court sentenced him to 360 months. Defendant argued that the district court did not consider mitigating circumstances. The Sixth Circuit held that the district court considered defendant’s “off the charts” criminal history and was not required to ritualistically recite the factors under 18 U.S.C. § 3553(a). U.S. v. Hall, __ F.4th __ (6th Cir. Feb. 2, 2022) No. 20-4128.

8th Circuit says telling defendant he “had to persuade the court to depart downward” was harmless error. (740) It is a “significant procedural error” to treat the advisory guidelines range as presumptive. Thus, the Eighth Circuit held that it was error for the district court to tell defendant that he had to “persuade the court to vary downward.” Nevertheless, the panel found that court’s comment did not affect defendant’s substantial rights because it played no role in the sentence. The district court found that the aggravating factors far outweighed the mitigating factors. U.S. v. Meyer, __ F.4th __ (8th Cir. Dec. 2, 2021) No. 20-2958.

11th Circuit rejects argument that sex traffickers’ victim was to blame. (310)(740) Defendants were convicted at trial of sex trafficking a minor, in violation of 18 U.S.C. § 1591. One defendant’s guidelines range was 324 to 405 months, but the district court sentenced him to 300 months because it found that his criminal history score overrepresented his prior record. The other defendant’s guidelines range was 188 to 235 months, and the district court sentenced her to 188 months. Applying the abuse-of-discretion standard, the Eleventh Circuit found that neither sentence was substantively unreasonable because the district court had considered applicable factors. The court rejected defendants’ argument that because they did not force their victim to engage in prostitution, their sentences were unreasonable. U.S. v. Whyte, __ F.3d __ (11th Cir. July 10, 2019) No. 17-15223.

8th Circuit says Dean does not allow variance below mandatory minimum. (245)(330)(740) In Dean v. U.S., 137 S.Ct. 1170 (2017), the Supreme Court held that a sentencing court may consider the mandatory minimum sentence required by 18 U.S.C. § 924(c) when deciding whether to vary downward on other counts of conviction. The Eighth Circuit held that Dean did not allow a court to vary below a mandatory minimum sentence when defendant is convicted on a § 924(c) count and another count carrying a mandatory minimum. U.S. v. Guzman, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1506.

Supreme Court to decide if objection is necessary to preserve substantive reasonableness claim. (740)(855) Defendant did not object to the substantive reasonableness of his sentence in district court. Because defendant did not object, the Fifth Circuit reviewed his claim for plain error. The Supreme Court granted certiorari to consider whether the court of appeals correctly applied the plain error standard of review when defendant failed to object on substantive reasonableness grounds in the district court. Holguin-Hernandez v. U.S., __ U.S. __, 139 S.Ct. __ (June 3, 2019) (granting certiorari).

10th Circuit finds government waived substantive reasonableness claim in its brief. (740)(855) The government appealed defendant’s bank robbery resentencing as outside the Tenth Circuit’s mandate and as substantively unreasonable under the factors in 18 U.S.C. § 3553(a). The Tenth Circuit held that the government waived its argument that the sentence was substantively unreasonable based on inadequate briefing. The court noted that the government framed the argument as a violation of the court’s mandate, that its “skeletal briefing” made clear that it “acted on its own declared framing of the case,” and that its brief “demonstrates a lack of meaningful interaction with the district court’s § 3553(a) analysis.” U.S. v. Walker, __ F.3d __ (10th Cir. Mar. 25, 2019) No. 17-4103.

8th Circuit upholds sentence that fell within both reduced and initial guideline range. (740) Defendant was convicted of numerous charges arising out of his operation of a “smoke shop” that sold “potpourri,” a product containing synthetic marijuana. His initial guideline range was 110-137 months. Dissatisfied with how the guidelines converted “potpourri” to a marijuana equivalent, the district court varied downward by two levels, to a guideline range of 92-115 months. The court sentenced him to 115 months. Defendant argued that the variance imposed “was more form over substance” since his sentence fell within the original guidelines range of 110-137 months. The Eighth Circuit held that the district court acted within its discretion when it varied downward and then imposed a sentence within the reduced guidelines range that happened also to be within the initial guidelines range. U.S. v. Peithman, __ F.3d __ (8th Cir. Feb. 27, 2019) No. 17-2768.

5th Circuit remands to allow resentencing in light of Dean and mandatory minimum. (245)(740) Defendant was convicted of drug trafficking and firearms charges, and was sentenced to 652 months. He argued that the district court erroneously believed that it could not consider the counts carrying mandatory minimum sentences – a total of 40 years – in arriving at his aggregate sentence. In Dean v. U.S., 137 S. Ct. 1170 (2017), decided two months before sentencing, the Supreme Court abrogated several circuits’ precedents that had barred courts from considering a defendant’s § 924(c) mandatory-minimum sentence when deciding what sentence to impose on the other counts. The Fifth Circuit never announced a contrary position. However, because the judge found the guidelines calculation “excessive,” but nonetheless imposed a guideline sentence, it appeared unlikely that the judge considered Dean. The Fifth Circuit remanded for the limited purpose of determining whether the district court wished to resentence defendant in light of Dean. U.S. v. Gomez, __ F.3d __ (5th Cir. Sept. 26, 2018) No. 17-10690.

7th Circuit vacates sentence for inaccurate count of prior felony convictions. (504)(740) Defendant’s PSR said that defendant had 11 adult convictions, including five felonies. The report did not say whether a 2011 Michigan firearm conviction, for which defendant was incarcerated 161 days, was a felony or misdemeanor, but documents made part of the record on appeal showed that the offense was a misdemeanor under state law. The government in its sentencing memo erroneously wrote that defendant had six prior felony convictions. At defendant’s allocution, he said he had only five felony convictions. However, in imposing a sentence at the top of the guidelines range, the judge repeated the government’s error, noting that this offense was defendant’s seventh felony conviction. The Seventh Circuit vacated and remanded for resentencing. Although the error did not affect the guideline range, the miscount received explicit attention from the judge. U.S. v. Miller, __ F.3d __ (7th Cir. Aug. 16, 2018) No. 17-3514.

11th Circuit holds judge did not improperly rely on defendant’s national origin. (740) Defendant was convicted of conspiracy to export defense articles to China, in violation of the Arms Control Export Act, 22 U.S.C. § 2778. She objected to a line in the government’s sentencing memo that stated: “[Defendant] should have thought about her family before she put money and nationalism before them.” The district court rejected defendant’s contention that her “national origin” had been made an issue and explained that her actions were the relevant factor. It also mentioned that defendant acted out of a “commitment to help the Republic of China” and that she was “faithful to [her] native country.” The Eleventh Circuit rejected defendant’s argument, raised for the first time on appeal, that the district court erroneously relied on her national origin. The district court was entitled to reference defendant’s allegiance to China. The district court specifically rejected defendant’s claim that her national origin was an issue, and noted that her conduct had significant “potential [to] harm[ ] … national security” and that “[t]he clear intent of th[e] conspiracy was to enable [China]” to steal military technology. U.S. v. Wenxia Man, __ F.3d __ (11th Cir. June 6, 2018) No. 16-15635.

3rd Circuit reverses reliance on defendant’s bare arrest record. (508)(740) Defendant pled guilty to illegally reentering the U.S. after deportation. In calculating defendant’s sentence, the district court relied in part on defendant’s arrests that did not lead to conviction. The Third Circuit reversed, holding that it was plain error for the court to consider defendant’s bare arrest record. The case was controlled by U.S. v. Berry, 553 F.3d 273 (3d Cir. 2009), which rejected the use of a bare arrest record at sentencing. Moreover, since Berry, a wide body of scholarship indicated that socioeconomic factors influence disparities in arrest rates. The error violated defendant’s substantial rights. The court considered defendant’s arrest record even though the parties agreed to a lighter sentence, and in spite of defendant’s minimal record of only two prior convictions for nonviolent offenses since the 1980s. Although the sentencing court also referenced other appropriate factors, its sentence was nevertheless influence by its impermissible consideration of defendant’s arrest record. U.S. v. Mateo-Medina, 845 F.3d 546 (3d Cir. 2017).

2nd Circuit remands to consider if loss increase with low offense level should result in variance. (219)(740) Two defendants, who worked at a small grocery store, were convicted of offenses relating to the misuse of benefits under the Supplemental Nutrition Assistance Program. The calculation of one defendant’s adjusted offense level, driven by the monetary loss, increased his offense level from six to 18, a three-fold increase. The calculation of the second defendant’s adjusted offense level, also driven by the loss amount, increased his offense level from six to 16. The Second Circuit remanded to permit the sentencing judge to consider whether the significant effect of the loss enhancement, in relation to the low base offense level, should result in a non-Guidelines sentence. Where the Commission has assigned a low base offense level to a crime, and then increased it significantly by a loss enhancement, a sentencing judge is entitled to consider a non-guidelines sentence. U.S. v. Algahaim, 842 F.3d 796 (2d Cir. 2016).

7th Circuit does not require court to address sentencing manipulation claim. (135)(240)(740) Defendant, a ranking official of a Chicago street gang, pled guilty to distributing a controlled substance, based on his sale of 366.2 grams of crack cocaine to a confidential witness. He argued that the district court erred by failing to address his argument that the government engaged in sentencing manipulation by having its witness purchase, and continue to purchase, crack cocaine from defendant so as to drive up his guideline offense level. The Seventh Circuit noted that the sentencing manipulation argument was not one the district court was required to address, because the circuit does not recognize sentencing manipulation as a valid sentencing argument. See U.S. v. Garcia, 79 F.3d 74 (7th Cir.1996). U.S. v. Blackman, __ F.3d __ (7th Cir. July 29, 2016) No. 15-2003.

2nd Circuit says same sentence for defendant and co-defendants was “individualized.” (740) Defendant pled guilty to charges based on his involvement in a large-scale prostitution ring. The district court varied upward from a guideline range of 41-51 months and sentenced defendant to 60 months, the same term imposed on the majority of his co-defendants. Defendant argued that the district court failed “individualize” his sentence. The Second Circuit disagreed. The district court stressed at sentencing that it had considered “the particular circumstances relating to each and every defendant,” including the §3553(a) factors. The court recognized that some other defendants with more culpable roles had received the same sentence, and stated that the uniformity of the sentences was driven by the fact that the government had accepted guilty pleas from the defendants to single counts for which the statutory maximum was 60 months, explicitly noting that it would have given certain defendants higher sentences absent that limit. U.S. v. Garcia-De La Rosa, __ F.3d __ (2d Cir. Aug. 3, 2016) No. 14-1840(L).

7th Circuit finds no error in court’s silence on sentencing factors raised by defendant. (740) Defendant was convicted of knowingly transporting a minor across state lines to engage in criminal sexual activity. When pronouncing sentence, the district judge did not say anything in particular about three of defendant’s arguments for a lower sentence: that this was his first offense, that he had an extensive work history, and that he was a devoted father. Defendant argued on appeal that this silence was error. The Seventh Circuit disagreed. Defendant’s first argument was built into the guidelines (defendant was assigned a criminal history score of I) and required no further comment. The other two arguments were “the sort of stock arguments that may be passed in silence.” Being a devoted father did not require specific discussion in sentencing. See U.S. v. Young, 590 F.3d 467 (7th Cir. 2009). Work history in U.S. v. Chapman, 694 F.3d 908 (7th Cir. 2012), was treated the same way. U.S. v. Ray, __ F.3d __ (7th Cir. July 27, 2016) No. 14-3799.

5th Circuit rejects Kimbrough claim where district court acknowledged discretion to vary. (252)(740) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. The district court ruled that THC was the “most closely related controlled substance” to AM–2201, resulting in the use of a 1:167 ratio to convert THC into marijuana. Defendants pointed to contradictory statements made by the district court to argue on appeal that the court did not recognize its discretion under Kimbrough v. U.S., 552 U.S. 85 (2007) to vary from the 1:167 ratio for converting THC into marijuana. The Fifth Circuit initially agreed that the record was unclear as to whether the court properly understood its discretion under Kimbrough, but found any error was harmless. Nevertheless, the panel granted a limited remand to allow the district court to clarify its comments. At a non-evidentiary hearing, the court issued an oral ruling acknowledging that it had the discretion to vary from the 1:167 ratio under Kimbrough, but declined to do so. The panel then withdrew its harmless error analysis and reaffirmed its rejection of defendant’s Kimbrough claim. U.S. v. Malone, __ F.3d __ (5th Cir. July 6, 2016) No. 14-31426, superseding and replacing U.S. v. Malone, 809 F.3d 251 (8th Cir. 2015).

2nd Circuit remands child porn case where court may not have understood that one victim was unaware of abuse. (310)(740) Defendant pled guilty to three counts of production of child pornography, and two counts of possession of child pornography. The district court sentenced him to 60 years. At sentencing, the district court noted “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their li[v]e[s]” about the photographs, and that defendant “destroyed the lives of three specific children.” However, defendant’s third victim had “no knowledge of having been victimized” by defendant. Her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.” The district court was entitled to punish defendant for that abuse regardless of whether the victim was aware of it. But given the district court’s repeated emphasis on the fact that defendant had destroyed the lives of “three specific children,” the Second Circuit remanded to ensure that the sentence was not based on a clearly erroneous understanding of the facts. On remand, the court could re-impose the same 60-yer sentence, the panel “respectfully suggest[ed] that the district court consider whether an effective life sentence [was] warranted in this case.” Punishing defendant “as harshly as a murderer arguably frustrates the goal of marginal deterrence ….” U.S. v. Brown, __ F.3d __ (2d Cir. June 14, 2015) No. 13-1706.

6th Circuit upholds tiered approach to sentencing multiple defendants as not plain error. (716)(740) Sixteen defendants, members of an Amish community, were convicted of crimes stemming from a spate of hair-cutting and beard-shearing attacks against other Amish individuals. They were convicted of multiple crimes, but their hate crimes convictions were reversed on appeal. At resentencing, the district court adopted the tiered approach it had used at the initial sentencing. The court determined sentences based on (1) the seriousness of each defendant’s conduct, (2) the decision reversing the hate crimes convictions, and (3) the prior groupings into tiers. The judge decided that two defendants’ sentences should decrease from 84 months to the newly applicable statutory maximum of 60 months. To maintain the tiers and keep proportionality between them, the court reduced the sentences of six other defendants by the same proportion: 28%. The Sixth Circuit found no plain error. A district court may choose to “determine a defendant’s sentence in light of a co-defendant’s sentence.” If the district court wishes to keep sentences among the defendants relatively fair, it is not wrong, let alone plainly wrong, to use proportions in doing so. The court did not rely solely on a mathematical formula, but expressly relied on additional factors such as the seriousness of the defendant’s conduct. U.S. v. Mullet, __ F.3d __ (6th Cir. May 4, 2016) No. 15-3212.

1st Circuit says court adequately explained sentence within guideline range was adequate. (740) Defendant was convicted of a variety of charges based on his involvement in a drug smuggling conspiracy. He argued for the first time on appeal that the district court failed to provide an adequate explanation for his 135-month sentence, which was at the bottom of his 135-168 month guideline range. The First Circuit found the argument “puzzling,” because the sentencing court stated that “[t]he guideline computations satisfactorily reflect the components of this offense by considering its nature and circumstances….” The court went on to note that it had “considered the other sentencing factors set forth in Title 18, U.S. Code [§] 3553.” The court referred to defendant’s personal history and characteristics, the nature of the offense, and various other §3553(a) factors, and concluded that a sentence within the guideline range was “just and not greater than necessary.” Where a court imposes a sentence that falls within a defendant’s advisory sentencing range, “burden of adequate explanation is lightened.” The court explanation here was sufficient. U.S. v. Perez, __ F.3d __ (1st Cir. Apr. 22, 2016) No. 15-1234.

D.C. Circuit reverses for failure to address defendant’s requests for departure. (740) Defendant was convicted of charges related to his participation in a large-scale, violent drug distribution business. At sentencing, he asked the court to depart based on the disparity in sentencing for crack and powder cocaine and his objections to the application of career offender status. The district court did not directly respond to either of those arguments. The D.C. Circuit reversed because the record failed to show whether the court “considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal decision-making authority,” or that it “listened to each argument” or “considered the supporting evidence.” U.S. v. McGill, __ F.3d __ (D.C. Cir. Mar. 1, 2016) No. 06-3190.

6th Circuit reverses where judge violated 5th Amendment by relying on defendant’s failure to testify. (120) (740) Defendant was convicted by a jury of being a felon in possession of a firearm after he obtained a handgun for a confidential informant. The district court sentenced him to 63 months, at the top of the guideline range. It cited two reasons: (1) defendant advanced a “fantastic” claim (that law enforcement had doctored an audio tape of the firearm transaction); and (2) defendant did not testify in support of that claim. The Sixth Circuit vacated the sentence, holding that (a) the district court plainly erred by relying on defendant’s decision not to testify; and (b) the court also violated defendant’s Sixth Amendment right to subject the government’s case to meaningful adversarial testing by punishing him for raising a “fantastical” claim. By relying on his failure to testify, the district judge effectively punished defendant for exercising his Fifth Amendment right against self-incrimination. The Sixth Amendment claim was closer, but the panel ultimately concluded that the court erred when it sentenced defendant for raising a “fantastic” claim. U.S. v. Cabrera, __ F.3d __ (6th Cir. Jan. 22, 2016) No. 14-5572.

1st Circuit reverses where rationale for sentencing disparity was not supported. (716)(740) Defendant was one of 110 defendants involved in and convicted of charges stemming from a drug ring that operated in a public housing project. For all of the conspirators other than defendant, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months, the latter imposed on the leader of the enterprise. However, defendant received the stiffest drug sentence: 360 months. The First Circuit held that district court’s rationale for the sentencing disparity was not supported by the record. The court’s found that because defendant was closely tied to Colón de Jesus, he should be treated like him with respect to drug quantity. However, the record lacked support for the court’s finding that defendant played a larger role in the conspiracy as a manager at the housing project than the other high-level defendants played at other locations. Although defendant happened to work at the same housing project where Colón de Jesus owned the drugs, that proximity alone did not justify attributing to defendant, uniquely among defendants with similar roles in the conspiracy, the quantity of drugs calculated in each of their PSRs. U.S. v. Reyes-Santiago, __ F.3d __ (1st Cir. Sept. 23, 2015) No. 12-2381.

1st Circuit affirms despite court’s comment about lenient local criminal justice system. (740)(742) Defendant pled guilty to drug charges, and was sentenced to 240 months, an upward variance from his guideline range of 168-210 months. He argued that the district court’s statements at sentencing suggested that it erroneously inflated appellant’s sentence to “counteract or adjust what [the court] thought was a laxity” in the Puerto Rico judicial system. The First Circuit found no error. The fact that the court noted its perception that the local criminal justice system was too lenient did not, in and of itself, render its sentence procedurally unreasonable. The question was whether the court properly focused on the defendant’s particular circumstances. Here, although the court viewed the history of sentences that defendant received in that system as emblematic of an overall laxity in the system, the upward variance it imposed was in response to defendant’s particular sentencing history and not the court’s perception of the local system’s laxity generally. U.S. v. Villanueva Lorenzo, __ F.3d __ (1st Cir. Sept. 23, 2015) No. 14-1260.

9th Circuit treats rejection of stipulated departure as “variance,” reviewed only for reasonableness. (700) (740) Pursuant to a plea agreement, defendant pleaded guilty to illegal entry after deportation, in violation of 8 U.S.C. § 1326. The plea agreement provided that the parties would jointly request a four-level downward departure pursuant to § 5K3.1 because defendant participated in a fast-track early disposition program. At sentencing, the district court declined to grant the departure because it would result in a nine-month sentence, which was shorter than the 14-month sentence that defendant had previously received for the same offense, and because defendant had been deported 35 times. Instead, the district court sentenced defendant to the high end of his guidelines range without the departure, or 27 months. The Ninth Circuit declined to consider the sentence as resulting from a departure and instead framed the issue as an exercise of the district court’s discretion to sentence a defendant outside the guidelines range. For that reason, the court of appeals did not consider whether the district court applied the departure provision and instead reviewed only for reasonableness. U.S. v. Rosales-Gonzales, __ F.3d __ (9th Cir. Sept. 15, 2015) No. 14-50286.

7th Circuit remands to consider potentially mitigating factors in defendant’s background. (740) Defendant and his associate were convicted of murder in the course of a robbery, and sentenced to life in prison. In sentencing defendant to life imprisonment, the judge recited boilerplate, and said nothing about the history and characteristics of either defendant. The Seventh Circuit found that the facts regarding defendant’s personal history, if true, were possible grounds for mitigation. From birth, defendant was beaten, emotionally abused, subjected to drug use, and abandoned by his drug-addicted mother for long periods of time. Left largely to himself, by the age of four defendant was being used by adults to help commit burglaries, and by eight, he was introduced to gambling and drug dealing. He was a terrible student, with cognitive difficulties that may have been related to his mother’s heavy drinking during her pregnancy. This background suggested that external forces beyond his ability to control created cognitive and psychological impairments that greatly diminished his ability to resist engaging in serious criminal activity. When substantial grounds for mitigation are presented, the sentencing judge must explain his reasons for rejecting them. The government agreed that defendant’s sentence must be vacated for the court to consider these factors. U.S. v. Thomas, __ F.3d __ (7th Cir. July 20, 2015) No. 13-2814.

5th Circuit holds that written statement of reasons provided adequate support for statutory maximum child porn sentence. (310)(740) Defendant pled guilty to receiving child pornography. The district court sentenced him to 240 months, the statutory maximum, rejecting defendant’s request for a downward variance from the guideline range of 210-240 months. Defendant argued for the first time on appeal that the district court erred by failing to adequately articulate the reasons for his sentence. Assuming without deciding that the district court failed to give adequate reasons at sentencing, the Fifth Circuit found no plain error because the court provided adequate justification for the sentence in its written statement of reasons. The statement noted that defendant “was actively engaged in child pornography with other [sic] via the internet, with some videos and images involving rape of toddlers. The defendant admitted to rape fantasies. He had also established contact with a 16 year old girls [sic] and has been trading sexual images with her.” U.S. v. Duke, __ F.3d __ (5th Cir. June 5, 2015) No. 14-30559.

6th Circuit says sentence at bottom of guidelines for sexually abusing own children was not too high. (215) (310)(740) Defendant was convicted of sexually abusing his own children in a foreign place. The court sentenced him to concurrent terms of 292 months, which fell at the bottom of his guideline range. Defendant argued that the sentence was substantively unreasonable sentence because the court did not credit the positive conclusions in the psychology report. The Sixth Circuit disagreed. The report contained only one conclusion, and it was negative: “[B]ased on the overall results of this evaluation,” the report concluded that defendant’s “risk for future sexual sexual acting out is considered to be moderate to high.” To reach that conclusion, the report considered a four-factor test in addition to his personality disorder and antisocial traits, history of instability, lack of insight and poor judgment, and unwillingness to accept responsibility for his action. The district court did not need to explain its decision to accept the report’s overall conclusion in any more detail than it did. The bottom-of-the-guidelines sentence was substantively reasonable. U.S. v. Al-Maliki, __ F.3d __ (6th Cir. May 27, 2015) No. 14-3386.

2nd Circuit affirms below-guidelines securities fraud sentence as not too high. (218)(740) Defendant and his partner in an investment firm were convicted of multiple counts of securities fraud and related counts for misusing investor funds. The Second Circuit held that defendant’s 180-month fraud sentence was procedurally and substantively reasonable. The court adopted the PSR’s loss calculations, and, consistent with those calculations, did not hold defendant accountable for total investor losses. Moreover, the district court appropriately took into account the fact that, for years, defendant had run the firm with little apparent regard for the legality of his conduct and that he continued to lack contrition. The 180-month sentence, which was significantly lower than his guideline range of 210-262 months, was substantively reasonable given the large number of investors who were defrauded, the large amounts of money that they lost, and the lengthy time the sophisticated criminal activity was ongoing. U.S. v. McGinn, __ F.3d __ (2d Cir. May 22, 2015) No. 13-3164-cr(L).

5th Circuit reverses for failure to recognize discretion to vary from career offender guideline. (520)(740) Defendant, who qualified as a career offender, argued that a downward variance was appropriate. The district court stated that it was “troubled” by the significant increase the career offender enhancement caused. Nevertheless, it imposed a sentence at the bottom of the guideline range, refusing to vary downward because there was no “Fifth Circuit guidance” related to variances for career offenders. The district court said that if it had “Fifth Circuit authority” to vary, defendant’s sentence likely “would have been different.” The Fifth Circuit held that the district court’s failure to recognize its discretion to vary from the guidelines was procedural error. After considering all of the §3553 factors, it is undisputable that a district court has discretion to vary from the advisory guidelines sentence. A district court’s sentencing discretion is no more burdened when a defendant is characterized as a career offender under §4B1.1 than it would be in other sentencing decisions. The error was not harmless because it likely affected defendant’s sentence. U.S. v. Clay, __ F.3d __ (5th Cir. May 22, 2015) No. 14-60283.

1st Circuit affirms court’s statement that it considered all the §3553(a) factors. (740)(742) Defendant argued that the district court did not adequately consider all of the statutory sentencing factors under 18 U.S.C. §3553(a). The First Circuit disagreed, noting that it has “held with a regularity bordering on the monotonous that even though ‘a sentencing court must consider all relevant section 3553(a) factors, it need not do so mechanically.’” Here, the sentencing court stated that it had considered the §3553(a) factors, and this was “entitled to some weight.” Moreover, court referred to the defendant’s personal history and characteristics, 18 U.S.C. §3553(a)(1), noting that he had two daughters and had worked to obtain a high-school equivalency diploma while in prison. The court also discussed the nature and seriousness of the offense, §§3553(a)(1), (a)(2)(A), commenting specifically on the large quantity of drugs and ammunition in defendant’s custody, together with his possession of a high-firepower weapon. This sufficiently showed that the court considered the §3553(a) factors. U.S. v. Fernandez-Garay, __ F.3d __ (1st Cir. May 20, 2015) No. 14-1367.

8th Circuit says failure to robotically recite every argument raised by defendant was not error. (740) (742)(750) Defendant was convicted of illegal reentry into the U.S., and was sentenced to 70 months, which fell at the bottom of his 70-87 month guideline range. On appeal, he contended that the district court improperly failed to address the sentencing factors in 18 U.S.C. §3553(a). He also asserted that the court failed to address “the numerous positive aspects of [defendant’s] life,” the difficulty of “start[ing] his life anew in [Mexico],” and his lack of access to the “Fast-Track” program. The Eighth Circuit found no error. The court expressly advised him that it considered all of the §3553(a) factors, including the “nature and circumstances of this offense, the history and characteristics of this defendant, the need for the sentence … to reflect the seriousness of the offense, to promote respect for the law, to afford adequate deterrence of criminal conduct, and to protect the public from further crimes of this defendant.” The court’s choice not to robotically recite every factor in §3553(a) was not reversible error. U.S. v. Ruiz-Salazar, __ F.3d __ (8th Cir. May 18, 2015) No. 14-2666.

4th Circuit reverses for failure to explain identical sentences for three co-defendants. (740) Defendants pled guilty to offenses based on their participation in a string of convenience store robberies. The district court imposed identical 140-month sentences on all three defendants (a variance of 62 months, 15 months, and three months, respectively), plus a mandatory, consecutive 60-month term for a §924(c) violation. They argued that the district court erred because it offered no individualized rationale. The Fourth Circuit agreed, concluding that the sentences were procedurally unreasonable. In each case, the district court concluded that a variance was required because the robbery guideline did not reflect the §3553(a) objectives. In addition to failing to explain its rejection of the guidelines, the district court also failed to sufficiently explain the sentences imposed. The district court ignored every other statutory factor, and essentially sentenced for the crime itself rather than the individual defendants, ignoring the fact that the defendants engaged in different conduct and played different roles during the robbery spree. U.S. v. Lymas, __ F.3d __ (4th Cir. Mar. 18, 2015) No. 13-4635.

7th Circuit reverses where unclear whether court considered defendant’s mitigating arguments. (250) (740) Defendant pled guilty to crack cocaine charges. Although the court sentenced him below his applicable guideline range, it did so without addressing his principal arguments in mitigation. Because the Seventh Circuit could not tell from the record whether the court considered those arguments, it remanded for resentencing. Defendant had argued that the court should reduce his guidelines sentence because the informant’s police handlers directed the large size of the final purchase, because most of the drug quantity attributed to him was a counterfeit substance, and because he was subjected to the 18:1 crack-to-powder cocaine ratio for that counterfeit substance. The district judge, who had previously sentenced defendant, was well-versed with defendant’s life story, and noted various factors relevant under §3553(a). But the court did not remark on defendant’s principal arguments in mitigation, which were raised in both his sentencing memorandum and at the sentencing hearing. A judge need not comment on every argument the defendant raises. But when a court gives little or no attention to the defendant’s principal argument, and that argument “was not so weak as not to merit discussion,” an appellate court cannot have confidence that the judge adequately considered the §3553(a) factors. U.S. v. Morris, __ F.3d __ (7th Cir. Jan. 5, 2015) No. 14-2242.

9th Circuit rejects ineffective assistance as basis for downward variance. (740) Defendant pleaded guilty to various federal offenses. At sentencing, he claimed that he should receive a downward departure because his prior attorney had been ineffective in failing to counsel him to take the government’s plea offer. The district court rejected defendant’s argument, and the Ninth Circuit affirmed. The court held that ineffective assistance of counsel is not a sentencing factor under 18 U.S.C. § 3553(a) and therefore that a court may not consider it as a ground for variance at sentencing. Instead, the court held that the proper remedy for ineffective assistance is to allow the defendant to withdraw his guilty plea or to require the government to re-extend its plea offer. U.S. v. Dibe, __ F.3d __ (9th Cir. Jan. 13, 2015) No. 13-50515.

6th Circuit says Tapia allows considering rehabilitation in supervised release conditions. (719)(740) Defendant appealed his sentence on the ground that the sentencing judge based the length of his sentence on rehabilitative goals, contrary to Tapia v. U.S., __ U.S. __, 131 S.Ct. 2382 (2011). Tapia requires reversal only where the district court bases the length of the sentence of incarceration in part on rehabilitation. The Sixth Circuit found no such basis here, and affirmed. The district court carefully considered rehabilitation for permissible purposes. Supervised release was part of defendant’s sentence, and the court imposed conditions of supervised release, designed to habituate defendant away from his prior drug-motivated criminal tendencies. This reflected valid and reasonable rehabilitative goals. Tapia limits only the length of imprisonment, not other parts of the sentence. It was consistent with Tapia for the district court to rely on providing rehabilitation in support of an overall sentence that included supervision as well as imprisonment. U.S. v. Krul, __ F.3d __ (6th Cir. Dec. 18, 2014) No. 13-2451.

Supreme Court reiterates that district courts may not presume that a Guidelines sentence is reasonable. (740) At defendant’s sentencing for possession of more than 50 grams of crack with intent to distribute it, the district court calculated the Guidelines range, then stated that “the Guidelines are considered presumptively reasonable” and that absent a “good reason,” “the Guideline sentence is the reasonable sentence.” The court of appeals affirmed the sentence on the ground that sentences within the Guidelines are presumptively reasonable. In a per curiam summary reversal, the Supreme Court held that although an Appellate Court may apply a presumption of reasonableness to a within-guidelines sentence, it is impermissible for the district court to do so. Nelson v. U.S., 555 U.S. __, 129 S.Ct. 890 (2009).

Supreme Court reiterates that courts may categorically disagree with crack Guideline. (740) Defendant was found guilty of conspiracy to distribute at least 50 grams of crack cocaine. At sentencing, the district court found that defendant had an offense level of 38, and that he fell into criminal history category IV, for a sentencing range of 324-405 months. The court found, however, that the 100:1 ratio between powder cocaine and crack quantities in § 2D1.1(c) yielded an excessive sentence in light of the sentencing factors in 18 U.S.C. § 3553(a). For that reason, the court recalculated defendant’s offense level based on a 20:1 ratio; that calculation yielded an offense level of 34, and a sentencing range of 210-262 months. The court sentenced defendant to 240 months. The court of appeals held that the district court lacked authority to reject the 100:1 cocaine-crack ration. In a per curiam summary reversal, the Supreme Court held that the court of appeals decision was inconsistent with Kimbrough v. U.S., 128 S.Ct. 558 (2007), which held that district courts may vary categorically from the crack cocaine Guidelines based on a policy disagreement with them. Chief Justice Roberts and Justices Alito and Thomas dissented. Spears v. U.S., 555 U.S. 261, 129 S.Ct. 840 (2009).

Supreme Court says notice is not necessary before court varies from Guideline range. (740) Federal Rule of Criminal Procedure 32(h) provides that before a court may depart from the applicable Guideline sentencing range on a ground not identified in the presentence report or the party’s pre-sentencing submissions, it must give the parties reasonable notice that it is contemplating a departure. The Supreme Court, in a 5-4 decision in which Justice Stevens wrote the majority opinion, held that Rule 32(h) does not apply when a district court exercises its authority under Booker to impose a sentence that varies from the advisory Guidelines range. The Court noted, however, that “sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues.” Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008).

Supreme Court allows sentencing court to disagree with crack/powder disparity in guidelines. (740) 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. (740) 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., 552 U.S. 38, 128 S.Ct. 586 ( 2007).

Supreme Court finds 33-month sentence for perjury and obstruction reasonable. (740) 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., 551 U.S. 338, 127 S.Ct. 2456 (2007).

Supreme Court says appellate presumption of reasonableness may be applied to within-guidelines sentence. (740) 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., 551 U.S. 338, 127 S.Ct. 2456 (2007).

1st Circuit holds that court’s failure to conclusively determine guideline range was harmless error. (740) Defendant was a pimp who, over several years, prostituted young women, including minors. At sentencing, the government argued that defendant’s criminal history category was VI, while defendant claimed it was only V. The government calculated defendant’s sentencing range as 235-293 months, while defendant argued it was 210-262 months. The court never chose between the two guideline ranges, finding it unnecessary because it was imposing a 300-month sentence. The First Circuit agreed with defendant that the court’s failure to determine defendant’s guideline range was a “significant procedural error.” Nonetheless, under the circumstances of this case, the district court’s failure to definitively calculate the guideline range was harmless error. The district court understood that the only point of disagreement between the parties was the applicable criminal history category. It then determined that a sentence within either guidelines range was not an appropriate sentence. Regardless of whether defendant’s sentencing range was that calculated by the government or by defendant, the district court was of the view that a sentence of 300 months was warranted. U.S. v. Tavares, 705 F.3d 4 (1st Cir. 2013).

1st Circuit says court may consider defendant’s cooperation under § 3553(a), even without a government motion. (740) Defendant argued that the court erred in determining that it could not consider the extent of his cooperation with the government as a basis for a downward variance, in the absence of a § 5K1.1 motion from the government. The Fifth Circuit agreed that, in varying from the guidelines, a sentencing court has discretion to consider the defendant’s cooperation with the government as a § 3553(a) factor, even if the government has not made a § 5K1.1 motion. Nonetheless, the court did not err in its assessment of the § 3553(a) factors. When defendant identified cases from other circuits permitting the consideration of a defendant’s cooperation, the court stated that it “understood the argument,” and went on to hear extensive argument from defendant about his cooperation. Accordingly, the record indicated that the court understood that it had the discretion to consider the extent of appellant’s cooperation in fashioning the appropriate sentence. U.S. v. Landron-Class, 696 F.3d 62 (1st Cir. 2012).

1st Circuit says court properly considered that identity fraud was a growing crime. (740) To obtain credit in various places, defendant used the social security number and date of birth of a person with the same first and last name as defendant. Defendant was convicted of wire fraud, aggravated identity theft, and social security fraud. At sentencing, the district court imposed a sentence at the top of the guideline range, noting that identity fraud was a growing problem both in Maine and in the country in general. The First Circuit held that the district court did not err in considering the widespread growth of identity theft, even though defendant was already subject to a mandatory, consecutive, two-year sentence under the Identity Theft and Penalty Enhancement Act, 18 U.S.C. § 1028A. The court discussed identity fraud in the context of deterrence, a factor which § 3553(a)(2)(B) specifically identifies as relevant. U.S. v. Landry, 631 F.3d 597 (1st Cir. 2011).

1st Circuit permits reasonableness review of judge’s refusal to depart. (740) Defendant challenged on appeal the extent of the substantial assistance departure he received. Under pre-Booker law, when the Sentencing Guidelines were mandatory, courts routinely held that discretionary departure decisions were not reviewable unless the sentencing court misunderstood its authority to depart or committed an error of law. Based on its en banc decision 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 First Circuit held that all sentences imposed under the advisory Guidelines, subject to one exception not applicable here, are open to reasonableness review, including those that entail either a discretionary refusal to depart or a departure whose extent is contested. In following the dictates of Booker and deciding whether the imposed sentence is reasonable, the reviewing court, in effect, resolves any question as to whether the extent of the departure is reasonable. Accordingly, it had jurisdiction to review defendant’s claim challenging the extent of his departure. U.S. v. Anonymous, 629 F.3d 68 (1st Cir. 2010).

1st Circuit finds no plain error in failure to state reasons for life sentence. (740) Defendant was convicted of arson of a building affecting interstate commerce, in violation of 18 U.S.C. § 844(i). The fire caused the death of a woman and her infant daughter. At sentencing, the district court imposed a life sentence without providing any explanation. Defendant did not object to the district court’s failure to explain its sentence. On appeal, defendant argued that the district court’s failure to explain the sentence violated 18 U.S.C. § 3553(c), which requires a court to state “the reasons for its imposition of sentence.” The First Circuit held that the district court did not commit plain error by failing to explain its sentence. The court noted that the district court’s failure to explain its sentence did not deprive the court of appeals of a record because the parties submitted sentencing memoranda and presented argument at sentencing. U.S. v. Guzman, 603 F.3d 99 (1st Cir. 2010).

1st Circuit says old age, poor heath, and co-defendant’s sentence did not make sentence unreasonable. (740) Defendants Lugo and Roman challenged the substantive reasonableness of their sentences under 18 U.S.C. § 3553(a), citing their old age and poor health. Lugo separately challenged the disparity between his 210-month sentence and that of Roman, who was sentenced to 108 months. The First Circuit held that the sentences imposed here were defensible. Although Roman claimed that nine years was a very long time for someone with his health conditions, he failed to show that he could not get adequate medical care in prison. Neither did Lugo, who made the same argument. Given the severity and sophistication of their offenses, their sentences were appropriate despite their ages. In addition, Lugo’s longer sentence was justified by, among other things, the fact that he embezzled twice as much money as Roman. U.S. v. Garcia-Pastrana, 584 F.3d 351 (1st Cir. 2009).

1st Circuit finds court knew it could vary based on categorical policy disagreement with Guidelines. (740) Defendant pled guilty to shipping child pornography in interstate commerce. His advisory guideline range was 210-240 months, and he asked for a below-Guidelines sentence. The district court noted that “an argument can be made that Congress has been particularly punitive,” but ultimately concluded that a sentence at the bottom of the guideline range was appropriate. The First Circuit rejected defendant’s Kimbrough argument, stating that the district court never lamented its lack of discretion to categorically disagree with the guidelines. Defendant squarely argued that the Guidelines were bad policy, and rather than rejecting the argument out of hand, the court discussed it. The court clearly understood that it could grant a variance from the guidelines. The court’s statement that its role was not to “second-guess congressional policy decisions” was best understood as expressing the view that it continued to value congressional policy statements in sentencing. U.S. v. Stone, 575 F.3d 83 (1st Cir. 2009).

1st Circuit allows consideration of mandatory two-year identity theft sentence in sentencing for other crimes. (740) Defendant pled guilty to aggravated identity theft under 18 U.S.C. § 1028A, as well as to several non-predicate counts relating to his attempt to pass himself off as a U.S. citizen. The district court sentenced defendant to a mandatory term of two years’ imprisonment on the identity theft count, followed by 15 months on the other counts. The court ruled that it could not consider the mandatory two-year sentence required by § 1028A in assigning a sentence for defendant’s non-predicate offenses. The First Circuit reversed, holding that the district court had authority to take the mandatory two-year sentence into account when it sentenced defendant for his non-predicate crimes. This interpretation is the only one consistent with the text of the statute as written. The legislative history cited by the government showed only that Congress intended to enhance criminal penalties for identity theft. U.S. v. Vidal-Reyes, 562 F.3d 43 (1st Cir. 2009).

1st Circuit affirms harsh sentence as reasonable based on differences between defendant and his partner. (740) Defendant and an accomplice stole guns from a firearm dealer. He argued that his 10-year sentence was unreasonable, especially when compared to the 18-month sentence imposed on his partner. The First Circuit affirmed the sentence. The district court confronted the disparity head-on, noting “significant differences” between defendant and his partner. Defendant trafficked the weapons, possessed a firearm with an obliterated serial number, had a higher criminal history category, and was a “prohibited person” due to his drug use. After the robbery, the partner demonstrated remorse beyond that shown by defendant, by apologizing personally and publicly to the victim, commencing restitution payments before they were ordered, and cooperating with the prosecution. In light of these differences, the district court properly exercised its informed discretion. U.S. v. Marceau, 554 F.3d 24 (1st Cir. 2009).

1st Circuit finds judge’s statement did not indicate misunderstanding of sentencing discretion. (740) At sentencing, defendant’s pastor, a character witness, framed his comments as a plea for mercy. Responding to this, the judge said that “there is not a basis for a federal judge to use mercy.” Defendant argued that this was clear error, and if the court had properly understood its discretion to indulge in mercy, it would have imposed a lower sentence. The First Circuit found no error. The sentencing proceedings as a whole, rather than the one statement defendant took out of context, revealed that the district court was aware of its discretion. The statement did not indicate a literal restraint, but was a response to those who sought mercy for mercy’s sake alone. U.S. v. Anthony, 545 F.3d 60 (1st Cir. 2008).

1st Circuit says district court mistakenly believed it could not vary based on disagreement with computer enhancement. (740) Defendant was caught in an undercover sting operation that targeted persons using the Internet to arrange sexual act with minors. Defendant was arrested when he crossed state lines to meet with an undercover agent posing as a 15-year-old girl. At sentencing, defendant expressed disagreement with the Guidelines’ policy of imposing a two-level enhancement for defendant’s use of a computer, noting that computers routinely are used to commit most offenses of this kind. In imposing a 46-month sentence, it observed that a district court’s disagreement with Guidelines policy would not support a decision to impose a below-Guideline sentence. The First Circuit remanded for resentencing in light of Kimbrough v. U.S., 128 S.Ct. 558 (2007). Kimbrough held that courts legitimately may cite their own disagreements with Guidelines policy as justification for imposing a below-Guidelines sentence. That decision was not available to the district court when it made its sentencing decision. U.S. v. Vanvliet, 542 F.3d 259 (1st Cir. 2008).

1st Circuit rules district court properly anticipated Kimbrough in imposing 180-month crack sentence. (740) Prior to Booker, defendant was sentenced to 235 months’ imprisonment for his crack cocaine offense. At resentencing in light of Booker, the district court sentenced him to 151 months based on a 20:1 crack to powder cocaine ratio that the district court substituted for the 100:1 Guidelines’ ratio. In U.S. v. Pho, 433 F.3d 53 (1st Cir. 2006), the First Circuit held that a court could not “categorically” substitute its own ratio for the 100:1 ratio, so defendant’s sentence was again vacated. On remand, the district court sentenced him to 180 months. Defendant appealed again, and while his appeal was pending, the Supreme Court decided Kimbrough v. U.S., 128 U.S. (2007). The First Circuit refused to order resentencing, finding that the district court properly anticipated the holding in Kimbrough by considering the crack/powder disparity as one factor of its case-by case analysis, and did not find that Pho substantially constrained its discretion. U.S. v. Russell, 537 F.3d 6 (1st Cir. 2008).

1st Circuit says failure to discuss reasonableness of Guidelines’ crack ratio was not plain error. (740) Defendant pled guilty to crack cocaine charges. He argued for the first time on appeal that his sentence was unreasonable because the district court did not address the reasonableness of the crack to powder cocaine ratio in the Sentencing Guidelines. The First Circuit found no plain error. There is no reason to treat plain error analysis in a Kimbrough context differently from plain error analysis in a Booker analysis. Thus, defendant must demonstrate a reasonable probability that he would have received a more lenient sentence had the district court considered the reasonableness of the crack to powder cocaine ratio. Defendant did not point to anything in the record, and the appellate court could not find anything in the record, to suggest that the district court would have imposed a more lenient sentence had it been asked to consider the reasonableness of the Guidelines’ crack to powder ratio. U.S. v. Matos, 531 F.3d 121 (1st Cir. 2008).

1st Circuit, en banc, says notice of variance is only required if parties would be unfairly surprised. (740) Ruling before the Supreme Court’s decision in Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008), the First Circuit, en banc, held that when a district court sua sponte imposes a sentence that varies from the Sentencing Guidelines, the court is not automatically required to provide advance notice of the variance. Under Booker, Rita, and Gall, the sentencing inquiry is far more broad, open-ended and discretionary than it was before these cases. Throughout the sentencing hearing, the judge may well be revising his views depending on what is presented and how counsel responds to questions. Therefore, advance notice of a variance is not automatically required. However, when proposing to adopt a variance sentence on some ground or factor that would unfairly surprise competent and reasonably prepared counsel, a judge must either provide advance notice or grant a continuance. U.S. v. Vega-Santiago, 519 F.3d 1 (1st Cir. 2008) (en banc).

1st Circuit holds that disparities caused by existence of fast-track program in other districts did not make sentence unreasonable. (740) Defendant claimed that his sentence for illegal reentry after deportation was unlawful because the district court refused to account for “unwarranted” sentence disparities, as required by 18 U.S.C. § 3553(a)(6). The unwarranted disparities he cited resulted from the operation of fast-track sentencing programs in other districts. The First Circuit held that the limited disparities arising from approved fast-track programs, using downward departures, as contemplated by Congress, are permissible. In addition, fast-track programs using charge-bargaining measures rather than downward departures are within the discretion of U.S. Attorneys, and have additionally been authorized by the Attorney General. Therefore, such disparities are “warranted” and may not be considered by a district judge in sentencing as a basis for a variance from the guidelines under § 3553(a)(6). U.S. v. Adujar-Arias, 507 F.3d 734 (1st Cir. 2007).

2nd Circuit remands to clarify if court considered § 3553(a) factors in imposing statutory maximum. (740) Defendants were involved in a conspiracy to lure a broker into financing an imaginary Siberian oil pipeline. But for the statutory maximum of 20 years, each defendants’ recommended guideline range would have been life, because the intended loss was three billion dollars. The court sentenced all four defendants to 20 years. The court took shortcuts in calculating the sentences. In each case, it calculated the guidelines in sufficient detail to know that the resulting sentencing range would equal 20 years, regardless of whether certain additional enhancements applied. The Second Circuit found no error in this approach. A court does not commit procedural error “where it bypasses a minefield of tricky determinations and still arrives at the correct Guidelines recommended sentencing range.” However, the court was still obligated to weigh the factors listed in § 3553(a), and it was unclear whether that occurred. The court appeared to assume that imposing a statutory maximum sentence reflected a per se reasonable sentence. The court remanded, because the record was ambiguous as to whether the court chose to impose the maximum sentence after considering the commands of § 3553(a). U.S. v. Corsey, 723 F.3d 366 (2d Cir. 2013).

2nd Circuit says 540-month sentence for child porn offense was reasonable. (740) Defendant sexually abused the daughter of a woman with whom he lived, photographed the abuse, and then distributed the images on the Internet, “resulting in one of the most prolific series of child pornography viewed worldwide.” He was sentenced 540 months, followed by a life term of supervised release. Defendant challenged the substantive reasonableness of his sentence, relying on U.S. v. Dorvee, 616 F.3d 174 (2d Cir.2010), which held that a 540-month sentence for a first-time child pornography offender was unreasonable. The Second Circuit upheld the 540-month sentence, distinguishing Dorvee on the ground that here, defendant actually sexually assaulted a child. He abused the girl over a two-year period, starting when she was only eight years old. He photographed the abuse and distributed the images over the Internet, where they have been viewed by thousands worldwide. Defendant’s distribution of these photos subjected the victim to a “lifelong constant revictimization.” The court also considered the need to protect the public from defendant, noting a pattern “of grooming and abusing very young girls.” U.S. v. Oehne, 698 F.3d 119 (2d Cir. 2012).

2nd Circuit reviews despite court’s statement that it would impose same sentence regardless. (740) Defendant challenged the court’s imposition of four sentencing enhancements. The government argued that the appellate court did not need to decide whether the enhancements were proper because, during sentencing, the court said that “even if some of my rulings regarding the enhancements or the grouping are inaccurate, there is no question that I still would give the same sentence I am about to give under [18 U.S.C. § 3553(a)].” The Second Circuit ruled that the district court’s statement was not a “unambiguous declaration” that the court would impose the same sentence even if its four challenged Guidelines determinations were overturned. The court referred, without specificity, to “some” of the enhancements, without stating which enhancement—or which combination of enhancements—would not affect defendant’s sentence. An appellate court should not “lightly assume that eliminating enhancements from the Guidelines calculation would not affect the sentence.” A district court “generally should not try to answer the hypothetical question of whether or not it definitely would impose the same sentence on remand if [the appellate] court found particular enhancements erroneous.” U.S. v. Feldman, 647 F.3d 450 (2d Cir. 2011).

2nd Circuit reverses where court relied on unsupported genetic theory. (740) Defendant pled guilty to possession of child pornography. He argued for the first time on appeal that the sentencing court improperly relied on its belief that defendant would re-offend because he was genetically predisposed to view child pornography. The court dismissed two separate psychological reports that had found defendant was at a low to moderate risk to re-offend. The court instead predicted that 50 years from now, defendant’s conduct would be discovered to be caused by a “gene you were born with. And its not a gene you can get rid of.” The Second Circuit held that insofar as the court decided to sentence defendant based on its belief that defendant was genetically incapable of controlling his urges, the court plainly erred. However, the record also contained evidence that would support the court’s decision that defendant would re-offend. Defendant continued viewing child pornography after an initial investigation by the FBI. The panel remanded the case to a different judge, finding that the judge’s discussion raised serious concerns over the judge’s objectivity in resentencing defendant. U.S. v. Cossey, 632 F.3d 82 (2d Cir. 2011).

2nd Circuit reverses variance that was based on guideline range rather than lower statutory maximum. (740) Defendant pled guilty to one count of distributing child pornography. His initial guideline range was 262-327 months, but the statutory maximum was 240 months. After considering various factors under § 3553(a), and giving defendant credit for six months and 14 days served, the district court sentenced him to 233 months and 16 days. The court noted that the guideline sentence was 262-327 months, and that the sentence imposed was “relatively far below the guidelines, although not terribly far.” The Second Circuit agreed with defendant that the court erred in finding that the guidelines range was 262-327 months, when in fact the guidelines sentence was the statutory maximum of 240 months. By any reasonable view, 233 months was not “relatively far” below the 240-month guideline range. The court appeared to believe it was imposing a non-guideline sentence when, in fact, it selected a sentence conforming to the guidelines. U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010).

2nd Circuit says court misunderstood its authority to depart from child porn guidelines. (740) Although defendant requested a downward departure for his child pornography offense, the district court sentenced him to 168 months, the bottom of his advisory guideline range. The Second Circuit held that the district court committed procedural error when it concluded that it could not consider a broad policy-based challenge to the child porn guidelines. Various recent decisions have made it clear that a court may depart based solely on a policy disagreement with the Guidelines, even where the disagreement applies to a wide class of offenders. Moreover, as the circuit recognized in U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010), the child pornography Guidelines raise a number of concerns, including that they were Congressionally directed, rather than based on empirical data, that they contain enhancements that apply in virtually every case, resulting in Guidelines ranges that are usually near or above the statutory maximum, and that they make virtually no distinction between the sentences for an ordinary first-time offender and the sentences for the most dangerous offenders. U.S. v. Tutty, 612 F.3d 128 (2d Cir. 2010).

2nd Circuit reverses for failure to consider intervening developments during 15-year sentencing delay. (740) In 1991, defendant was convicted of drug and firearms charges, and the district court sentenced him to 405 months. On appeal, the court rejected all of his arguments except for a challenge to a four-level leadership role enhancement. The case was remanded for fact-finding. Defendant’s case remained dormant until 2008. At a sentencing hearing in 2009, the district court reimposed the same 405-month sentence, without responding to evidence about defendant’s rehabilitation or other proposed mitigating factors. The Second Circuit held that the district court procedurally erred in failing to consider how intervening developments, in particular, defendant’s rehabilitation, affected the § 3553(a) analysis. Defendant offered evidence that during the 15-year interval, he succeeded at numerous vocational and educational efforts, including earning honors degrees in business and finance. Defendant also tutored other inmates and received positive performance evaluations. If credited, this evidence could affect the weight given to considerations that were discounted in 1991. U.S. v. Hernandez, 604 F.3d 48 (2d Cir. 2010).

2nd Circuit says defendant was not entitled to notice of court’s intent to vary upwards from Guidelines. (740) Defendant argued that the district court deviated from the 2003 Guideline range without giving him prior notice of its intention to do so, and thus deprived him of a meaningful opportunity to be heard. The Second Circuit found no error because (1) defendant clearly had adequate notice of the court’s intent to sentence above the Guideline range since the court had already done it once, and (2) defendant was not entitled to notice of the court’s intent to vary upwards from the Guidelines. In the wake of Booker, the Supreme Court has ruled that Burns v. U.S., 501 U.S. 129 (1991), and Rule 32(h) do not extend to variances, as opposed to departures. As a result, a sentencing court is not obligated to provide advance notice to a defendant of its intention to impose a non-Guidelines sentence. U.S. v. Gilmore, 599 F.3d 160 (2d Cir. 2010).

2nd Circuit remands where it was unclear why court denied minimal role reduction. (740) In a “Sentencing Opinion” issued prior to sentencing, the district judge opined that defendant was entitled to a minimal role reduction. The memo concluded that defendant was “hereby sentenced” to a term of 57 months. The government objected to the contemplated four-level reduction, and at sentencing, the judge declined to grant the reduction. Defendant challenged the denial of the reduction, contending that the court’s change from the sentencing opinion was not supported by adequate findings. The Second Circuit remanded for resentencing. It was unclear whether the judge (a) attributed to defendant more misconduct that he had originally found, and if so, what misconduct, or (b) was interpreting the relevant guideline differently than before, or (c) was simply reassessing the significance of defendant’s misconduct. Under these circumstances, the Second Circuit remanded to permit the court to conduct a new sentencing hearing, and give defendant and his counsel—now alerted to the judge’s inclination not to grant the role reduction—a full opportunity to argue for the adjustment. U.S. v. Labbe, 588 F.3d 139 (2d Cir. 2009).

2nd Circuit remands to allow more flexible approach in applying money laundering guideline. (740) Defendant operated a fraudulent charity that illegally sent money to Iraq. He argued that the sentence for his money laundering charges should have been calculated under § 2S1.1(a)(1) because he used the proceeds of the fraud to conduct the money laundering. The Second Circuit found no error, but nonetheless remanded for the district court to consider whether a different sentence would result from the application of a more flexible approach. The district court was correct that choosing § 2S1.1(a)(2) rather than § 2S1.1(a)(1) would avoid the odd result that defendant would receive a lower sentence if the laundered money was criminally-derived than if it was “legally-obtained.” However, post-Booker, there was no need for the judge to pigeonhole the case into § 2S1.1(a)(2) to avoid an illogical result and run the risk of setting a bad precedent; there was no need to choose between the two at all. The district court was not bound in ambiguous circumstances such as these to choose one Guideline range in particular, and was free to take the more flexible approach of arriving at a more appropriate sentence outside the Guidelines. U.S. v. Dhafir, 577 F.3d 411 (2d Cir. 2009).

2nd Circuit says parsimony clause in § 3553(a) does not bar mandatory sentence under § 841(b). (740) The parsimony clause in 18 U.S.C. § 3553(a) directs the district court to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” Defendant argued that this conflicts with the mandatory sentencing provisions in § 841(b), because the balancing required by § 3553(a) is incompatible with a mandatory sentencing scheme. The Second Circuit disagreed, finding that § 3553(a) is not inconsistent with a sentencing floor. The introductory language in 18 U.S.C. § 3551(A) is qualified with the phrase “[e]xcept as otherwise specifically provided,” and § 841(b)(A) specifically provides for a mandatory minimum sentence of 20 years. Further, § 3553(e) and (f) provide limited circumstances in which a court may depart from a statutory minimum sentence. These provisions would be surplusage under defendant’s interpretation of § 3553(a). U.S. v. Samas, 561 F.3d 108 (2d Cir. 2009).

2nd Circuit rejects sentence reduction on one count to overcome consecutive sentence for second count. (740) Defendant was convicted of drug conspiracy charges with a mandatory minimum 20-year sentence, 21 U.S.C. §846, and firearms charges requiring a mandatory consecutive 30-year sentence, 18 U.S.C. §§924(c)(1)(A) and (c)(1)(B)(ii). Defendant argued that the total recommended sentence would overstate the sentence he should receive in light of the 18 U.S.C. §3553(a) factors, and suggested that the 30-year sentence on the gun count by itself was sufficient. The district court found that reducing the sentence on the drug count would “violate the spirit, and possibly the letter of the [firearm] statute.” The Second Circuit agreed that the district court could not impose a shorter prison sentence for the drug offense based on the mandatory consecutive sentence mandated by for the firearm offense. Such a reduction would effectively violate the statutory requirement that the firearm sentence be consecutive. U.S. v. Chavez, 549 F.3d 119 (2d Cir. 2008).

2nd Circuit remands where it was unclear that court knew it could consider crack/powder disparity. (740) In Kimbrough v. U.S., 128 S.Ct. 558 (2007), the Supreme Court held that a sentencing court could consider the disparity resulting from the 100:1 ratio of crack to powder cocaine in deciding whether to grant a variance from the guidelines. In U.S. v. Regalado, 518 F.3d 143 (2d Cir. 2008), the Second Circuit held that for cases pending on appeal when Kimbrough was decided, the case should be remanded to permit the district court to determine whether it would have imposed a different sentence. Here, the Second Circuit held that in order to avoid a Regalado remand, the record must unambiguously demonstrate that the district court was aware of its discretion to grant a variance based on the 100:1 ratio. In this case, there was some indication that the judge was aware of his “variance discretion,” but the judge’s statements did not overcome the fact that at the time defendant was sentenced, the Second Circuit had held that district courts could not grant a variance from the 100:1 ratio. U.S. v. Keller, 539 F.3d 97 (2d Cir. 2008).

2nd Circuit uses Crosby mechanism to remand crack cocaine case. (740) Defendant pled guilty to crack cocaine charges and was sentenced under the mandatory guideline scheme. After a Crosby remand, the district court imposed the same 262-month sentence it had previously imposed. In light of Kimbrough v. U.S., 128 S. Ct. 558 (2007), the Second Circuit again remanded. When a crack defendant is sentenced before Kimbrough, the panel cannot tell whether the court would have exercised its now clear discretion to mitigate the sentence range produced by the 100-1 ratio. Therefore, when a defendant has not preserved the argument that the crack cocaine sentencing range fails to serve the objectives of sentencing under § 3553(a), the Second Circuit will remand to give the district court an opportunity to indicate whether it would have imposed a non-Guidelines sentence if it had known that it had discretion to deviate from the Guidelines. U.S. v. Regalado, 518 F.3d 143 (2d Cir. 2008).

2nd Circuit remands to different judge where previous judge repeatedly imposed below-guideline sentence without giving reasons. (740) The PSRs found that each defendant had an offense level of 46 and a criminal history of VI, which yielded a range of life imprisonment under the guidelines. Because none of the individual offenses carried a life sentence, the PSR recommended stacking the sentences to achieve a 240-year sentence for one defendant and a 40-year sentence for the other. The judge accepted the PSR’s calculations, but departed downward, sentencing the first defendant to three-ten year terms (30 years total) and the other to 20 years. The judge provided no coherent explanation for the departures. The court also provided no advance notice to either party of its intent to depart. On remand, the judge did the same thing, although he did read a purported “notice” written by defense counsel and provided to the judge at sentencing, which provided a brief summary of several of the factors a sentencing judge is required to consider under § 3553. The Second Circuit again remanded for resentencing, this time to a different judge. The resentencings were perfunctory, and were not preceded by a notice of a possible deviation or accompanied by a statement of reasons. Moreover, this was the third time in two years that this particular judge failed to comply with the requirements of notice and an explanation for a non-guidelines sentence, and then on remand, failed to follow a direction of the appellate court to comply with those requirements. U.S. v. Hirliman, 503 F.3d 212 (2d Cir. 2007).

2nd Circuit finds judge’s statement on Crosby remand was sufficient. (740) On defendant’s first appeal, the Second Circuit remanded 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), for the district court to consider whether it would have sentenced differently had the Supreme Court already decided Booker. On remand, the court did not hold an in-court hearing, but issued a written ruling that, after reviewing the memos submitted by the parties, it concluded that “the sentence imposed [was] consistent with the facts of the offense and that a nontrivially different sentence should not and will not be imposed.” The Second Circuit rejected defendant’s claim that this statement was insufficient to demonstrate that the court gave requisite consideration to the § 3553(a) factors. Crosby specifically rejected the notion that a sentencing judge must make a “specific articulation” of the manner in which the § 3553(a) factors have been considered. As long as the judge is aware of both the statutory requirements and the applicable sentencing range, and nothing in the record indicated misunderstanding, the panel assumed the court understood and observed its obligations. U.S. v. Rose, 496 F.3d 209 (2d Cir. 2007).

2nd Circuit holds that Booker did not affect standard of proof for guideline calculations. (740) 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 remands where court suggested sentence was based in part on defendant’s identification with West African community. (740) 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).

3rd Circuit reverses where court failed to address disparity argument. (740) Defendant was convicted of charges related to sexual messages he sent a minor in order to persuade her to have sex with him. He was sentenced to 240 months, which represented a 30-month upward departure. On appeal, defendant argued that his sentence was unreasonable because the district court failed to consider his request for a downward variance based on the disparity between his sentence for attempted statutory rape, and the lower state and federal maximum sentences for actually committing statutory rape. The Third Circuit found that the disparity argument based on Pennsylvania’s 10-year maximum sentence for statutory rape lacked colorable legal merit. Section 3553(a)(6) addresses unwarranted sentence disparities among federal defendants who are similarly situated, not disparate federal and state sentences. However, the panel agreed that the court committed procedural error by failing to address defendant’s argument based on the disparity between his sentence and the 15-year maximum penalty under federal law for actually committing statutory rape. U.S. v. Begin, 696 F.3d 405 (3d Cir. 2012).

3rd Circuit remands where court did not follow correct order of steps for sentencing. (740) Defendant argued that his sentence was procedurally unreasonable because the district court did not follow the proper order of the steps outlined in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006). During the first step, a court must calculate a defendant’s guideline sentence precisely as they would have before Booker. During the second step, district courts must formally rule on motions by both parties and state on the record whether they are granting a departure and how that departure affects the guideline calculation. During the third step, district court must exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose, regardless of whether it varies from the sentence calculated under the guidelines. Here, the district court did not follow the correct order of the steps set forth in Gunter, did not compute a definitive loss calculation or offense level to reach its guideline range, nor did it meaningfully consider § 3553(a)(6), the need to avoid unwarranted disparities among similarly situated defendants. Accordingly, the Third Circuit remanded for the district court to correct these procedural errors. U.S. v. Friedman, 658 F.3d 342 (3d Cir. 2011).

3rd Circuit finds court improperly relied on defendant’s need for medical care in imposing sentence. (740) Defendant argued that the district court violated 18 U.S.C. § 3582(a), as well as U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007), when it determined the length of his imprisonment by taking into consideration his need for medical treatment for end-stage liver disease. Section 3582(a) directs a court to consider the § 3553(a) factors in imposing a term of imprisonment, but states that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” Manzella ruled that the district court erred in setting the length of defendant’s prison term solely for rehabilitative reasons. Based on the district court’s explanation of its sentence, it was clear that defendant’s need for medical care was a principal factor in his receiving a sentence of incarceration at the top of the Guidelines range. Given that, the Third Circuit found that the district court violated § 3582(a) and remanded for resentencing. Although defendant’s need for medical care was not the sole determining factor, (whereas in Manzella rehabilitative reasons were the sole determining factor), defendant’s sentence still violated § 3582 (a). U.S. v. Hoffa, 587 F.3d 610 (3d Cir. 2009).

3rd Circuit requires “departure” to be lower than low end of guideline range. (740) Defendant pled guilty to drug charges, resulting in a guideline range of 46-57 months. At sentencing, the district court stated that, pursuant to the government’s § 5K1.1 motion, it would grant a one-level downward departure because of defendant’s substantial assistance. A one-level departure resulted in a range of 41-51 months, which overlapped the original range. The district court sentenced defendant to 48 months. However, in granting a downward departure, a district court must follow the definition set out in the Sentencing Guidelines: a downward departure is a “departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence.” Note 1.E to § 1B1.1. By departing to a range that overlapped with the original range, and then imposing a sentence within both guideline ranges, the district court did not meet this requirement. Although defendant failed to object to the sentence or the sentencing procedure, the Third Circuit remanded for resentencing because the court’s decision constituted plain error. U.S. v. Vazquez-Lebron, 582 F.3d 443 (3d Cir. 2009).

3rd Circuit allows absence of fast-track option to be considered at sentencing. (740) Defendant pled guilty to illegal reentry into the U.S. after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). He challenged the district court’s rejection of a downward variance based on the disparity in sentencing among immigration defendants in fast-track district and non-fast-track districts. The district court had found that U.S. v. Vargas, 477 F.3d 94 (3d Cir. 2007), precluded consideration of a variance on this basis as a matter of law. The Third Circuit held that, under the logic of Kimbrough v. U.S., 552 U.S. 85 (2007), it is within a sentencing judge’s discretion to consider a variance from the Guidelines on the basis of a fast-track disparity. The fast-track issue should not be confined to subsection (a)(6), which concerns avoiding unwarranted sentencing disparities. Instead, a sentencing judge has discretion to consider a variance under the totality of the § 3553(a) factors. To justify a reasonable variance by the district court, a defendant must show at the outset that he would qualify for fast-track disposition in a fast-track district. Additionally, the defendant must demonstrate that he would have taken the fast-track guilty plea if offered. U.S. v. Arrelucea-Zamudio, 581 F.3d 142 (3d Cir. 2009).

3rd Circuit reverses upward departure for number of pornographic images. (740) Defendant was convicted of receiving child pornography. He received a five-level enhancement under § 2G2.2(b)(7) for an offense involving 600 or more images. Because defendant had over 6350 photos and 221 videos, the PSR suggested an upward departure under Note 4 to § 2G2.2. The district court imposed an above-guideline sentence, stating “I think this sentence satisfies the purposes set forth in Section 3553A.” The Third Circuit remanded for resentencing. It was unclear whether the court intended to grant an upward departure or an upward variance, and an upward departure under Note 4 to § 2G2.2 would have been improper. The plain meaning of the Note is that an upward departure in the number of images used to apply the sentencing enhancement at § 2G2.2(b)(7) may be warranted when those images cannot properly be tabulated by the counting procedures listed in § 2G2.2(b)(7). It does not address departures from Guideline sentencing ranges. Given the possibility that the court intended to formulate a departure, not a variance, the error was not harmless. U.S. v. Brown, 578 F.3d 221 (3d Cir. 2009).

3rd Circuit says court must consider departure motion separate from statutory sentencing factors. (740) Defendant moved for a downward departure under § 5K2.13 based on a diminished mental capacity. At sentencing, the district court denied the motion, stating in effect that it was not required to rule on the merits of departure motions. It noted that its general practice was to consider arguments for a Guidelines departure as part of its evaluation of the § 3553(a) sentencing factors. The Third Circuit remanded for resentencing, holding that the court erred in considering the departure motion as part of its consideration of the statutory sentencing factors. Post-Booker, there is a three-step process for incorporating consideration of the Guidelines into a court’s sentencing procedure. First, courts must calculate a defendant’s Guidelines sentence precisely as they would have before Booker. In so doing, they must formally rule on the motions for both parties and state on the record whether they are granting a departure. Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors. Here, the district court did not rule directly on the merits of defendant’s departure motion. U.S. v. Lofink, 564 F.3d 232 (3d Cir. 2009).

3rd Circuit allows court to categorically reject guidelines’ crack-powder cocaine ratio. (740) Defendant was convicted of crack cocaine charges, and sought a variance from the Guidelines’ powder to crack cocaine ratio. He argued that the 60-month mandatory minimum was appropriate because basing the offense levels on “varying crack-powder ratios” was not a rational way to treat the differences between crack and powder cocaine. The district court rejected defendant’s request for a variance, noting that in U.S. v. Ricks, 494 F.3d 394 (3d Cir. 2009), the Third Circuit held that district courts may not categorically reject the crack-powder cocaine differential. The Third Circuit agreed with defendant that the Supreme Court’s recent decisions in Kimbrough v. U.S., 128 S.Ct. 558 (2007) and Spears v. U.S., 555 U.S. 261, 129 S.Ct. 840 (2009) effectively overruled Ricks. Kimbrough and Spears held that a court may categorically reject the Guidelines’ crack-powder cocaine differential as a matter of policy. Moreover, Spears clearly held that district court also possesses the power to apply a different ratio which corrects the disparity. Because the district court erroneously found that it could not reject the crack-powder differential on policy grounds, remand was necessary. U.S. v. Russell, 564 F.3d 200 (3d Cir. 2009).

3rd Circuit finds district court’s explanation warranted remand. (740) In a sentencing memo and at sentencing, defendant raised several grounds for a variance under 18 U.S.C. §3553(a). The district court sentenced defendant within the advisory Guidelines range, and did not address his arguments relating to his childhood or the crack/powder cocaine disparity, other than to say it had “considered all of the §3553(a) factors.” Since a “rote statement of the §3553(a) factors should not suffice if at sentencing either the defendant or the prosecution properly raises a ground of recognized legal merit (provided it has a factual basis) and the court fails to address it,” the Third Circuit found that the omissions required remand. U.S. v. Sevilla, 541 F.3d 226 (3d Cir. 2008).

3rd Circuit says defendant’s failure to object to court’s omissions did not subject claim to plain error review. (740) In a sentencing memo and at sentencing, defendant raised several grounds for a variance under 18 U.S.C. §3553(a). In sentencing defendant within the recommended Guidelines range, the district court did not address defendant’s arguments relating to his childhood or the crack/powder cocaine disparity. The government argued that because defendant failed to object to the district court’s omissions at the close of sentencing, the appellate court should only review those omissions for plain error. The Third Circuit disagreed, finding its en banc decision in U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc) precluded this argument. Although other circuit cases have arguably suggested that plain error review applies where a defendant fails to object to a district court’s explanation of its sentence, these cases would conflict with Grier. Defendant squarely raised his difficult childhood and the crack/powder disparity, both in his sentencing memo and at his sentencing hearing. The district court’s failure to address those issues did not require defendant to re-raise them to avert plain error review. U.S. v. Sevilla, 541 F.3d 226 (3d Cir. 2008).

3rd Circuit says incorrect guidelines calculation typically requires remand after Booker. (740) The district court incorrectly calculated defendant’s criminal history, resulting in an incorrect sentencing range. The Third Circuit found that an incorrect Guidelines range will typically require reversal under 18 U.S.C. § 3742(f), even though the Guidelines are now advisory. The Supreme Court has made clear that sentencing courts are required to “consider” the Guidelines in crafting a sentence. The correct guideline calculation constitutes the “natural starting point” from which the sentencing court exercises its discretion under § 3553(a). Under certain circumstances, miscalculation of the Guidelines may be harmless. But the Third Circuit will remand unless it can “conclude on the record as a whole … that the error did not affect the district court’s selection of the sentence imposed.” An improperly calculated Guidelines range “can rarely be shown not to affect the sentence imposed.” An overlap of guideline ranges does not render an error harmless. Here, although the 46-month sentence was within the guideline range in either case, this was not that rare case where the court could be sure that the erroneous guideline calculation did not affect the sentencing process. U.S. v. Langford, 516 F.3d 205 (3d Cir. 2008).

3rd Circuit says even after Booker, court must apply Guidelines in effect on the date of sentencing. (740) Effective November 1, 2007, Amendment 706 modified the Guideline ranges for crack cocaine, decreasing by two the base offense levels. Defendants argued that because the district court used the Guidelines that were in effect on the day that they were sentenced, and because the Guidelines were amended during the pendency of their appeals, the district court’s sentencing calculation amounted to procedural error. The Third Circuit found no error. The Guidelines are no longer mandatory, but that did not render optional § 3553(a)(4)’s direction to consider the Guidelines that are in effect on the date of sentencing. U.S. v. Wise, 515 F.3d 207 (3d Cir. 2008).

3rd Circuit does not require notice of intent to impose guideline variance. (740) 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. (740) 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).

4th Circuit approves 84-month sentence for defendant who placed brother’s life in danger by faking his own death. (740) In order to avoid a probation violation hearing, defendant faked his own death by jumping off a boat and swimming to shore. He was convicted of causing, and conspiring to cause, a false distress call to be communicated to the U.S. Coast Guard, in violation of 14 U.S.C. § 88(c) and 18 U.S.C. § 371. There is no guideline for either offense. The court rejected the government’s suggestion that the fraud guideline, § 2B1.1, was closely analogous, but stated it was “looking to” that guideline and would take it “into consideration” when applying the statutory sentencing factors under § 3553(a). After describing an extensive list of aggravating circumstances, the court sentenced defendant to 48 months’ on the conspiracy count, and a consecutive 36 months on the substantive count. The Fourth Circuit held that the district court’s approach was not plainly unreasonable, and the sentence imposed was also not unreasonable. Defendant’s case was distinguishable from previous cases because there were two charges against him, and because he placed his legally blind brother’s life in danger by abandoning him on the boat in the bay at night. U.S. v. Deffenbaugh, 709 F.3d 266 (4th Cir. 2013).

4th Circuit upholds lower sentence imposed on remand. (740) Defendant was originally sentenced to concurrent sentences of 180 months for multiple fraud counts. He appealed, and on remand, the district court resentenced defendant to 160 months. He contended that his new sentence was substantively unreasonable because district court’s comments at sentencing showed that the length of his sentence was in part to punish him for exercising his right to trial and successfully appealing his first sentence. The Fourth Circuit held that defendant’s sentence was reasonable. The presumption of vindictiveness did not apply to defendant’s sentence because his sentence after remand (160 months) was less than his original sentence (180 months). Moreover, the district court’s references to defendant’s decision to go to trial were made in response to defendant’s request for a downward variance. It reflected the principle that defendants who plead guilty and cooperate can be given the benefit of that cooperation as part of their guidelines calculation, while those who go to trial have no entitlement to the same benefit. U.S. v. Susi, 674 F.3d 278 (4th Cir. 2012).

4th Circuit finds any error in applying aggravated felony enhancement was harmless. (740) Defendant pled guilty to illegal reentry after conviction of an aggravated felony. The court applied an eight-level aggravated felony enhancement under § 2L1.2(b)(1)(C) based on defendant’s second-degree assault conviction in Maryland. Defendant argued that the district court erred by looking to the charging documents in the Maryland case to determine that his second-degree assault conviction arose from his sexual abuse of a minor. The Fourth Circuit upheld defendant’s 36-month sentence as reasonable, ruling that any procedural error in applying the aggravated felony enhancement was harmless. In sentencing defendant, the district court made clear that a 36-month sentence was necessary under § 3553(a) to deter him and to punish his continued flouting of American law. Although the court did not specifically state that it would give the same sentence absent the 8-level enhancement, there is no requirement that it do so. U.S. v. Savillon-Matute, 636 F.3d 119 (4th Cir. 2011).

4th Circuit says court did not err by varying before considering applicable departures. (740) Defendant pled guilty to one count of being found in the U.S. after being deported, and one count of possessing a counterfeit U.S. Resident Alien card. At sentencing, the court decided to vary upward, based on defendant’s four prior convictions of obtaining property by false pretenses. The court also noted that these offenses were designed to deceive people who were very vulnerable, that defendant had acquired substantial amounts of money from these crimes, that he was on probation at the time of the current offense, and that he had a devoted family in the U.S., which gave him a strong motivation to illegally return to the U.S. The Fourth Circuit affirmed, rejecting defendant’s claim that the court erred by varying before considering any applicable departures. Language in U.S. v. Moreland, 437 F.3d 424 (4th Cir. 2006) does state that a court must first look to whether a departure is appropriate before electing to apply a variance. However, this recited language has been effectively overruled by the Supreme Court’s decisions in Gall and Rita, which make clear that the practical effects of applying either a departure or a variance are the same. U.S. v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011).

4th Circuit reverses where court may have given Guidelines a quasi-mandatory effect. (740) Defendant pled guilty to illegal entry into the U.S. following deportation. Defendant argued that a Guidelines sentence was excessive in light of various facts peculiar to his case. At the outset of its explanation, the court stated that while it did not agree with the Guidelines range, it was “obligated” to give a defendant a Guidelines sentence unless “a reason for a departure from those Guidelines, or a variance based on 18 U.S.C. § 3553” was present. The court sentenced defendant to the guidelines minimum of 46 months. Because prefacing a sentencing explanation with such obligatory terminology amounted to an impermissible presumption that a Guidelines sentence was appropriate, the Fourth Circuit remanded for resentencing. The comments to which defendant objected were not a “mere passing reference,” but came at the very outset, framing the entirety of the district court’s explanation. The language and the context of the court’s statements convinced the panel that defendant’s “objection could not be dismissed simply as hyper-sensitive second-guessing of the proceedings below.” U.S. v. Mendoza-Mendoza, 597 F.3d 212 (4th Cir. 2010).

4th Circuit reverses where court failed to recognize its discretion to sentence below crack guideline. (740) Defendant was convicted of possessing with intent to distribute five or more grams of crack cocaine. He argued that the district court failed to understand its authority to sentence below the applicable crack guideline range. In response to defense counsel’s comment that this was the type of case envisioned by Kimbrough v. U.S., 552 U.S. 85 (2007), the court noted that defendant’s sentence was calculated under new guidelines, which modified the discrepancy between the crack and powder guidelines. When counsel noted that the ratio was still 67-1, the court said that “Congress has decided that that’s an appropriate ratio to establish.” The Fourth Circuit agreed that the district court’s comments showed that it failed to recognize its discretion to sentence outside the crack cocaine guidelines. First, it was the Sentencing Commission, not Congress, that established the ratio for crack and powder cocaine. Second, the court expressed its view that a within-Guidelines sentence is appropriate even though the Supreme Court specifically forbids sentencing courts from presuming that such sentences are reasonable. U.S. v. Herder, 594 F.3d 352 (4th Cir. 2010).

4th Circuit remands where court failed to address defendant’s non-frivolous request for variance. (740) Defendant qualified as a career offender, which resulted in a guideline range of 360 month to life in prison. Defendant requested a downward variance based on the § 3553 sentencing factors. Without addressing any of defendant’s arguments, the district court sentenced him to 33 years, which was within the guideline range. The court offered scant explanation, stating only that the sentence was “fair and appropriate and consistent with …. § 3553(a).” Defendant preserved his objection to the sentence by arguing in his brief to the district court and again at sentencing, that the bottom of the career offender range was unreasonable, given his role in the current drug offense, and the age and sentences of his prior convictions. Because there was no indication that the district court considered defendant’s non-frivolous arguments prior to sentencing, the Fourth Circuit reversed, ruling that the government failed to show that the error was harmless. U.S. v. Lynn, 592 F.3d 572 (4th Cir. 2010).

4th Circuit says claim of error made before ruling is preserved despite failure to renew after ruling. (740) 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 rules district court cannot apply presumption of reasonableness to sentence within Guidelines range. (740) Defendant pled guilty to the receipt of child pornography. The district court was inclined to consider favorably defendant’s personal circumstances, but it found that it could not because of the limitations in the Sentencing Guidelines and the presumption of reasonableness that attached to Guidelines sentences. The district court sentenced him to 210 months, which fell at the bottom of his guideline range. The court expressed frustration with what it perceived as restrictions imposed on it by the Supreme Court and the Fourth Circuit, particularly the conclusion that a sentence within the Guidelines range may be taken as presumptively reasonable. The Fourth Circuit reversed. The district court sentenced defendant without the benefit of the holdings in Gall, Rita and Fourth Circuit cases interpreting those cases. Consideration of the Guidelines is but one of the factors listed in 18 U.S.C. § 3553(a), and is only the starting point and the initial benchmark. While the appellate court may presume that a sentence within the properly calculated Guideline range is reasonable, a district court’s application of a presumption of reasonableness to a guideline sentence is error. U.S. v. Raby, 575 F.3d 376 (4th Cir. 2009).

4th Circuit reverses where court improperly presumed that guideline sentence was reasonable. (740) After determining defendant’s advisory guideline range, the court stated: “That’s a range that shows the Court what might be a reasonable sentence, and it is viewed under the law as a presumptively reasonable sentence because that’s what this Court is supposed to do; it’s to sentence you to a reasonable amount of time.” The court then selected a sentence at the top of the guideline range. The Fourth Circuit vacated the sentence and remanded for resentencing. The district court’s statement suggested that the court improperly presumed that a sentence within the guideline range would be reasonable. However, while an appellate court reviewing a sentence may presume that the sentence within a properly calculated guideline range is reasonable, the sentencing court may not rely on this presumption. U.S. v. Smith, 566 F.3d 410 (4th Cir. 2009).

4th Circuit says it need not remand for defendant to seek relief from amended crack guideline. (740) Defendant was convicted of drug charges, and received a 70-month sentence, at the bottom of his advisory guideline range. While his appeal was pending, counsel submitted a letter to the appellate court contending that the recent crack amendments supported his contention that defendant’s sentence was unreasonable. Amendment 706, effective November 1, 2007, adjusts downward by two levels the base offense level assigned to each threshold quantity of crack listed in the Drug Quantity Table. The Sentencing Commission voted to make Amendment 706 retroactive, effective March 3, 2008. Although Amendment 706 was now potentially applicable to defendant’s sentence, the Fourth Circuit noted that it was for the district court to first assess whether and to what extent defendant’s sentence may be thereby affected, and that court was entitled to address this issue either sua sponte or in response to a motion by defendant or the Bureau of Prisons. See 18 U.S.C. § 3582(C0(2). Accordingly, the panel did not need to remand for resentencing in order for defendant to pursue relief in the district court under Amendment 706. U.S. v. Brewer, 520 F.3d 367 (4th Cir. 2008).

4th Circuit finds court properly considered statutory sentencing factors. (740) 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. (740) 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).

5th Circuit allows consideration of defendant’s cooperation under § 3553(a), despite lack of § 5K1.1 motion. (740) Defendant pled guilty to child pornography charges. At sentencing, he urged the district court to consider his cooperation with authorities when considering the factors in 18 U.S.C. § 3553(a)(2). The district court acknowledged his efforts, but found it could not consider his cooperation because the government had not filed a § 5K1.1 motion. The Fifth Circuit held that a sentencing court has the power to consider a defendant’s cooperation under § 3553(a), regardless of whether the government files a § 5K1.1 motion. The court’s failure to recognize its discretion to consider defendant’s cooperation under § 3553(a)(1) was a significant procedural error. The court here was quite explicit in rejecting its authority to consider defendant’s cooperation, so the error was not harmless. The court never addressed or weighed defendant’s cooperation in its conditional statements about what it might have done. U.S. v. Robinson, 741 F.3d 588 (5th Cir. 2014).

5th Circuit says 99-month downward variance did not make sentencing guideline errors harmless. (740) Defendant was convicted of fraud and conspiracy. The district court erroneously applied several enhancements to defendant’s offense level, resulting in an offense level of 38 and a guideline range of 235-293 months. In reality, his offense level should have been 32 with a guideline range of 121-151. The court found the 235-293 months range was unreasonable, and sentenced defendant to 136 months. The Fifth Circuit nonetheless reversed, holding that the district court’s granting of a 99-month downward variance did not render the court’s errors harmless. The record did not reflect whether the district court would have imposed a 136-month sentence had it departed from the correct 121-151 month range, instead of the incorrect 235-293 month range. U.S. v. Roussel, 705 F.3d 184 (5th Cir. 2013).

5th Circuit holds that any error in application of sentencing enhancements was harmless. (740) 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 does not require court to calculate departure before sentencing above guidelines. (740) Defendant pled guilty to escape from a halfway house, resulting in a guideline range of 15-21 months. He requested a 15-month sentence, in light of his two serious health conditions and drug addiction. The court noted defendant’s health issues and drug and alcohol abuse, but determined that the guideline range was not appropriate, and sentenced him to 50 months. Defendant argued that the district court was required to calculate a departure under § 4A1.3(a) before it imposed a non-guidelines sentence. The Fifth Circuit disagreed. In U.S. v. Mejiaa-Huerte, 480 F.3d 713 (5th Cir. 2007), it held that a district court is not required to use the methodology in § 4A1.3 before imposing a non-guidelines sentence. Other cases cited by defendant were not controlling or considered a slightly different issue. U.S. v. Gutierrez, 635 F.3d 148 (5th Cir. 2011).

5th Circuit says lack of remorse and acceptance of responsibility can be separate sentencing factors. (740) Defendant pled guilty to possession of ammunition by a convicted felon. After receiving a three-level reduction for acceptance of responsibility, defendant’s advisory guideline range was 18-24 months. The court varied upward to a 36-month sentence, citing defendant’s lack of remorse and his repeated statements to the judge that he should not have returned from Mexico, where he had been living to avoid arrest on other state charges. Defendant contended that “lack of remorse” is essentially the same as acceptance of responsibility, and the court committed procedural error when it did not first consider defendant’s lack of remorse in calculating the applicable guideline range before using that factor to justify a higher, non-Guidelines sentence. The Fifth Circuit held that lack of remorse and acceptance of responsibility can be separate factors and a court may consider each independently of the other. It was not inconsistent for the district court to have determined that defendant accepted and admitted his culpability for the crime but at the same time demonstrated a lack of remorse for his conduct. U.S. v. Douglas, 569 F.3d 523 (5th Cir. 2009).

5th Circuit allows court to consider defendant’s age in deciding whether to depart. (740) At defendant’s sentencing hearing, the district court imposed a 20-year below-Guidelines sentence, stating that it was sufficient for a 48-year old man. The case was remanded for resentencing because the court erroneously refused to apply a particular enhancement. After the enhancement was applied, defendant’s offense level was 43, which translated into life imprisonment under the Guidelines. The court imposed a sentence of life imprisonment, finding that age alone was not a sufficient reason to vary. The Fifth Circuit held that the court erred in finding that it lacked discretion to consider defendant’s age in deciding whether to depart or vary. Guideline § 5H1.1 does state that age is not ordinarily relevant in determining whether to depart, except when the defendant is elderly and infirm. The district court’s belief that its disagreement with § 5H1.1 was not an appropriate consideration was inconsistent with Kimbrough v. U.S., 128 S.Ct. 558 (2007) and other recent Supreme Court cases. U.S. v. Simmons, 568 F.3d 564 (5th Cir. 2009).

5th Circuit reverses incorrect calculation of criminal history. (740) The district court added two points to defendant’s criminal history for committing the current offense while on probation for a 2005 offense, even though the court had separately found that the government had not linked him to the 2005 offense. The government conceded the error, but contended that reversal was not warranted because defendant’s 30-month sentence still fell within the properly calculated guideline range of 24-30 months. The Fifth Circuit found that the improper calculation of the Guidelines range was a procedural error which was not harmless. The panel was not convinced that the district court would have imposed the same sentence absent the Guidelines error. The court specifically noted that it found “a fair and reasonable sentence to be at the bottom of the guidelines, 30 months incarceration.” Thus, it appeared that the court consciously selected from the low end of what it believed to be the available range. U.S. v. Delgado-Martinez, 564 F.3d 750 (5th Cir. 2009).

5th Circuit does not decide “crime of violence” issue where court would have imposed same sentence. (740) Defendant received a 16-level crime of violence enhancement under § 2L1.2(b) (1)(A) based on a previous conviction for statutory rape. The enhancement led to a guideline range of 46-57 months, and the court imposed a 46-month sentence. Defendant had argued that the enhancement was improper, and his proper guideline range was 10-16 months. The district court stated that in the event it was incorrect about the crime of violence enhancement, a “sentence at certainly something more than 10 to 16 months” was warranted, and that the 46 month sentence “would be reasonable.” The Fifth Circuit found it unnecessary to determine whether statutory rape constituted a crime of violence because the court would have imposed the same sentence even without the enhancement. Although defendant argued for the first time on appeal that his correct guideline range was actually 8-14 months, there was no plain error. The court already dismissed the possibility of sentencing defendant to anything less than 16 months. U.S. v. Ruiz-Arriaga, 565 F.3d 280 (5th Cir. 2009).

5th Circuit says court’s failure to adequately explain sentence did not warrant reversal. (740) Defendant argued that his sentence was procedurally unreasonable because the district court did not adequately explain it. Although defendant raised arguments before the district court concerning his family, his work history, and his prior convictions, all of which are relevant considerations under § 3553(a), the district court did not give any reasons for its sentence beyond a bare recitation of the Guidelines’ calculation. The Fifth Circuit agreed that the court’s explanation was inadequate. The court did not mention defendant’s arguments, and the court’s statement of reasons did not further illuminate its reasoning. However, defendant did not preserve this error for review, and therefore it could be reversed only for plain error. Under U.S. v. Mares, 402 F.3d 511 (5th Cir. 2005), to show substantial prejudice, the defendant must prove that the error affected the sentencing outcome. Here, defendant’s sentence was within the Guidelines, and he failed to show that an explanation would have changed his sentence. There was no reversible plain error. U.S. v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009).

5th Circuit says Kimbrough did not make non-empirically based Guidelines unreasonable. (740) Defendant was convicted of attempted unlawful reentry into the U.S. after deportation. He argued that § 2L1.2 was not empirically-based, and therefore should not be afforded the appellate presumption of reasonableness. He based this argument on the statement in Kimbrough v. U.S., 128 S.Ct. 558 (2007) that the Sentencing Commission “has the capacity courts lack to base its determinations on empirical data and national experience.” Defendant argued that the crack cocaine guideline was not based on such data, and therefore a district court could vary from it even in “mine-run” cases. The Fifth Circuit disagreed, stating that Kimbrough allows district courts to consider the policy decisions behind the guidelines, including the presence or absence of empirical data, as part of their § 3553(a) analyses. But Kimbrough did not question the appellate presumption of reasonableness of Guidelines sentences, and it does not require the presumption to be discarded for non-empirically-grounded Guidelines. U.S. v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009).

5th Circuit says error in refusing to apply enhancements did not warrant reversal. (740) Defendant was convicted of possessing child pornography. The district court incorrectly believed that under Booker, it could only apply enhancements using facts that defendant had admitted. Therefore, it refused to apply enhancements based on the age of the minors and the number of images involved in the offense. The district court also applied a downward variance to sentence defendant to 60 months’ probation. The Fifth Circuit originally reversed, but the Supreme Court remanded for reconsideration in light of Gall. On remand, the Fifth Circuit ruled that the error did not warrant reversal. The district court was aware of the correct guideline range because it was in the PSR, and the government had argued for the enhancements during the sentencing proceedings. Although the district court erred by failing to apply the enhancement, the district court declared that it would have sentenced defendant to 60 months of probation even if it miscalculated the guideline range. The error was not reversible. U.S. v. Duhon, 541 F.3d 391 (5th Cir. 2008).

5th Circuit says Kimbrough does not permit variance for fast-track disparity. (740) Defendant pled guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326. He argued that the fact that some districts have “fast-track” programs creates sentencing disparity. After defendant was sentenced, Kimbrough v. U.S., 128 S.Ct. 558 (2007) held that a court could grant a downward variance based on disagreement with the guidelines’ 100-1 ratio of crack to powder cocaine. On appeal, he argued that Kimbrough overruled the line of Fifth Circuit authority that limited the district court’s ability to consider fast-track disparity arguments. The Fifth Circuit rejected the argument, noting that Kimbrough concerned a district court’s ability to disagree with Guidelines policy, whereas this case concerned a district court’s ability disagree with Congressional policy. Congress gave the Attorney General discretion to establish fast-track programs, and the statute limits fast-track departures to early disposition programs authorized by the Attorney General. Because any disparity that results from fast-track programs was intended by Congress, it was not “unwarranted” within the meaning of § 3553(a)(6). U.S. v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008).

5th Circuit allows upward variance based on factors previously ruled improper for departure. (740) Defendant was convicted of fraud and the district court departed upward to 172 months based on the number of victims and the complexity of the scheme. The appeals court reversed, holding that these factors did not justify an upward departure. On remand, after Booker was decided, the district court relied on 18 U.S.C. 3553(a) factors to “vary” upward to 172 months. Defendant argued that this violated the “law of the case” because the factors the district court relied on were many of the same factors that the appeals court held did not justify an upward departure. The Fifth Circuit held that Booker was an intervening change in the law, justifying an exception to the “law of the case” doctrine. Booker made the Guidelines advisory. This dramatic shift in sentencing law permitted the district court to consider complexity and number of victims in selecting a sentence, even though it had previously ruled that those factors were improper in departing upward. U.S. v. Williams, 517 F.3d 801 (5th Cir. 2008).

5th Circuit holds guideline sentence was entitled to presumption of reasonableness. (740) 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 rules that sentencing court is not required to give notice of intent to impose non-guideline sentence. (740) 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. (740) 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).

6th Circuit remands for failure to specify any numbers or baselines in sentencing defendant. (740) Defendant and a co-conspirator sold expensive homes to straw buyers who had little income and insufficient cash to make down payments on the sales. They were convicted of making false statements to a lending institution. Defendant was a key witness against his co-conspirator, and the government filed a motion for a downward departure under § 5K1.1. The district court noted that the guidelines suggested a sentence between 51 and 63 months. However, the court’s “sense” was that a sentence of ten years would be appropriate, but that it would need to reduce that to seven or eight years in light of defendant’s cooperation. The court then sentenced defendant to 60 months. The Sixth Circuit held that the district court erred in not specifying any numbers or baselines when sentencing defendant. After determining defendant’s guideline range, the court should have granted (or denied) the § 5K1.1 motion, and, if granting the motion, should have stated the extent of the departure and the new guidelines range. Then the court should have decided whether to vary upwards. Here the court specified no numbers or baselines. Since the panel was unable to give defendant’s sentence meaningful appellate review, the court gave a limited remand for a new sentencing proceeding. U.S. v. Kurlemann, 736 F.3d 439 (6th Cir. 2013).

6th Circuit says no notice was required where court varied, rather than departed, from guidelines. (740) Defendant argued that the district court erred by departing upward without giving him advance notice. The Sixth Circuit ruled that the district court’s deviation from the Sentencing Guidelines was a variance, not a departure, and thus did not require advance notice to defendant. Under Irizarry v. U.S., 553 U.S. 709 (2008), Rule 32(h)’s notice provision does not apply when the district court chooses to apply a variance from the Guidelines range based on the sentencing factors of 18 U.S.C. § 3553(a). Here, although the court repeatedly used the word “departure” during sentencing, there are “no specific magic words” necessary to render a sentence reasonable. The court clarified its use of the word “departure” while still at sentencing, noting that its decision was “not a departure under the guidelines.” The court’s central reason for deviating from the Guidelines was that it considered the “seriousness of the offense [to be] not properly reflected in the guideline calculation.” The seriousness of the offense is explicitly a § 3553(a) factor to be considered. U.S. v. Denny, 653 F.3d 6 (6th Cir. 2011).

6th Circuit holds judge had authority to reduce sentence based on fast-track disparity. (740) Defendant pled guilty to unlawful reentry into the US after deportation and was sentenced to 57 months. He sought a remand for the district court to consider whether to impose a lower sentence based on the disparities created by the existence of “fast-track” early disposition programs for illegal-entry cases in other jurisdictions. Because defendant was sentenced before Kimbrough v. U.S., 552 U.S. 85 (2007), and because Kimbrough permits district court judges to impose a variance based on disagreement with the policy underlying a guideline (here, the fast-track disparity), the Sixth Circuit vacated defendant’s sentence and remanded the case for resentencing. U.S. v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010).

6th Circuit remands where sentence was twice as long as more culpable co-conspirator. (740) Defendant and her boyfriend, White-Barber, shipped packages containing OxyContin to a co-conspirator in Michigan. She challenged the procedural reasonableness of her sentence based on the district court’s failure to consider her argument that she received a longer sentence than White-Barber, even though he played a much larger role in the conspiracy. The government pointed to several factors that could arguably explain the sentencing disparity, but could not point to any part of the sentencing transcript that showed that the district court ever considered these issues. Nowhere in the sentencing hearing did the judge discuss why sentencing defendant to twice as long as White-Barber was appropriate. It was uncontested that defendant was not the mastermind of the conspiracy and that White-Barber was more involved. While the government offered a reasonable explanation for the disparity, the district court cannot delegate its obligation to “state in open court” the reasons for its imposition of a particular sentence. U.S. v. Wallace, 597 F.3d 794 (6th Cir. 2010).

6th Circuit remands where court sentenced without calculating Guidelines range. (740) The PSR concluded that defendant’s guideline range, prior to any § 5K1.1 departure, was 120-125 months. The government moved for a departure pursuant to § 5K1.1 and 18 U.S.C. § 3553(e). The district court sentenced defendant to 110 months without any discussion of defendant’s guideline range. The Sixth Circuit held that the district court committed a clear procedural error by failing to calculate defendant’s proper guideline range. The court may have initially believed that 110-125 months was the guidelines range, but it was impossible to tell because the court never mentioned any specific range. U.S. v. Novales, 589 F.3d 310 (6th Cir. 2009).

6th Circuit says foreign sentence was properly considered by sentencing in middle of guideline range. (740) Defendant pled guilty to causing the foreign travel of a minor with the intent to engage in criminal sexual activity and to possessing child pornography. He argued that his 136-month sentence for the foreign travel charge was unreasonable because the district court failed to reduce his sentence to account for the term of incarceration that he had already served in England. Section 5G1.3 requires a court to account for an undischarged term of imprisonment when imposing sentence, but does not require the court to consider a fully discharged sentence. The Sixth Circuit held that the district court did not abuse its discretion in refusing to reduce defendant’s sentence below his guideline range to account for his prior incarceration. The district court considered his argument, and decided to factor it into his sentence by sentencing him in the middle of his guideline range, rather than the top. Defendant’s sentence was not procedurally unreasonable. U.S. v. Studabaker, 578 F.3d 423 (6th Cir. 2009).

6th Circuit does not require court to explain whether above-Guideline sentence was departure or variance. (740) Defendant argued that the court erred in failing to explain its methodology for calculating his sentence. In particular, he claimed the district court was required to specify whether its decision to impose an above-Guidelines sentence was a departure or a variance. The Sixth Circuit found this unnecessary. Unlike some other circuits, the Sixth Circuit does not require district courts to carefully distinguish between departures and variances from the Guidelines. Because the sentencing court has authority to deviate from the advisory Guidelines under either § 3553(a) or § 4A1.3, the failure to specify how each factors into the sentence does not affect the appellate court’s ability to review the reasonableness of the deviation. The only statutory requirement is that the district court impose a sentence that accords with, but is “not greater than necessary” to achieve the goals identified by Congress. 18 U.S.C. § 3553(a). U.S. v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009).

6th Circuit allows court to reject immigration guidelines based on policy disagreement. (740) Defendant pled guilty to illegally reentering the country after deportation and was sentenced to 48 months, a term significantly above the 24-30 month advisory guideline range. The court was “astonish[ed]” that the Guidelines recommended a sentence “so low,” and found that a harsher sentence was warranted in light of the “unique circumstances of this case.” The Sixth Circuit held that the district court acted within its discretion in rejecting the offense level in § 2L1.2 based on a policy disagreement with the severity of the sentencing range. The Supreme Court has recognized that district courts possess the authority to vary from the crack cocaine guidelines based on a policy disagreement with them. See Kimbrough v. U.S., 552 U.S. 85 (2007), and Spears v. U.S., 555 U.S. 261, 129 S.Ct. 840 (2009). This authority is not limited to the crack cocaine context. In Kimbrough, the court found that the district court rejection of the crack cocaine guidelines was reasonable “because those Guidelines do not exemplify the Commissions’ exercise of its characteristic institutional role.” This reasoning was sufficient to support the district court’s decision here. U.S. v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009).

6th Circuit remands for failure to properly calculate guideline range or explain sentence. (740) The PSR found that defendant’s guideline range was 37-46 months, based on a criminal history category of IV. Defendant argued that he fell within criminal history category III, making his guideline range 30-37 months. At sentencing, the district court stated that defendant had a criminal history level of “either III or IV, but I’m calling it a IV …” The court sentenced defendant to 48 months. Two months later, the court issued a written statement of reasons, revealing that the court found defendant’s criminal history category was III, his guideline range was 30-37 months, and that the court had departed upward based on underrepresented criminal history. The Sixth Circuit remanded, holding that the district court’s failure to properly calculate the guideline range or adequately explain its chosen sentence made the sentence procedurally unreasonable. The court’s oral sentence failed to calculate clearly the appropriate guideline range, and did not adequately explain its chosen sentence. The written statement of reasons issued months later failed to provide the necessary explanation of the sentence. U.S. v. Barahona-Montenegro, 565 F.3d 980 (6th Cir. 2009).

6th Circuit reverses where court may not have listened to defendant’s substantial assistance arguments. (740) Defendant was originally sentenced to 156 months. The case was remanded for resentencing in light of Booker, and the district court resentenced him to 120 months. Defendant argued that the sentence was procedurally unreasonable because the court did not consider his request for a downward departure or a variance. However, the district court did consider defendant’s argument that his criminal history and career offender status overstated the seriousness of his criminal history, and defendant’s argument for a variance based on his rehabilitative efforts while in prison was foreclosed by U.S. v. Worley, 453 F.3d 706 (6th Cir. 2006), abrogation recognized by U.S. v. Gapinski, 422 Fed. Appx. 513 (6th Cir. 2011) (unpublished), No. 09-2267. Nevertheless, the Sixth Circuit ultimately agreed that the sentence was procedurally unreasonable because it was unclear whether the judge listened to defendant’s argument for a lower sentence based upon substantial assistance. U.S. v. Gapinski, 561 F.3d 467 (6th Cir. 2009).

6th Circuit remands crack cocaine sentence in light of Spears. (740) In Spears v. U.S., 555 U.S. 261, 129 S.Ct. 840 (2009), the Supreme Court held that “district court are entitled to reject and vary from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Because the district court sentenced defendant without the benefit of Spears, the Sixth Circuit vacated and remanded for resentencing so that the court could impose a sentence with full awareness of this authority. Defendant was sentenced under the November 2007 amendments to the Guidelines, which retroactively reduced the base offense levels for crack cocaine. However, it was clear that Spears applies with equal force to sentencing decisions under the new crack cocaine guidelines. U.S. v. Johnson, 553 F.3d 990 (6th Cir. 2009).

6th Circuit remands where unclear if court considered discretion to vary from guideline range. (740) Defendant made multiple arguments for a downward departure, and at sentencing, defense counsel repeated these arguments, using the term “departure” in asserting that defendant should be sentenced below the applicable guideline range. On appeal, defendant argued that the court did not adequately address the sentencing factors listed in 18 U.S.C. §3553(a). The Sixth Circuit remanded for resentencing, finding the court did not provide an adequate explanation for its 270-month guideline sentence. Particularly troubling was that the court used the term “departure” exclusively in rejecting defendant’s arguments for a below-guideline sentence. The word “departure” is a term of art that “refers only to non-Guidelines sentences imposed in the framework set out in the Guidelines.” “[V]ariances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. §3553(a)” include a much broader range of discretionary decision-making. It was unclear whether the court fully considered its discretion to vary from the Guidelines. U.S. v. Stephens, 549 F.3d 459 (6th Cir. 2008).

6th Circuit refuses to consider length of mandatory minimum firearms sentences in considering whether other sentences were reasonable. (740) The district court sentenced defendant to a below-Guidelines sentence of 48 months for kidnapping, imposed mandatory consecutive terms of 84 and 300 months for two firearms convictions, and a consecutive 18-month sentence on an escape conviction, for a total sentence of 405 months. Defendant argued that the kidnapping and escape sentences were unreasonably high given the 384-month mandatory consecutive sentences for the firearms convictions. The Sixth Circuit disagreed. The kidnapping sentence was half the length recommended by the Guidelines, and the escape sentence was at the bottom of the advisory guideline range. It was proper for the court to determine the appropriate sentence for kidnapping and escape without considering the mandatory sentences for firearms offenses. The sentences were not arbitrary or based on impermissible factors, and the court considered pertinent 18 U.S.C. §3553(a) factors without giving unreasonable weight to any pertinent factor, so the sentence was reasonable. U.S. v. Simpson, 546 F.3d 394 (6th Cir. 2008).

6th Circuit says district court plainly erred by treating Guidelines as mandatory. (740) Defendant argued for the first time on appeal that the district court erred by effectively treating the Guidelines as mandatory. The Sixth Circuit agreed and remanded, finding that the error was plain and affected defendant’s substantial rights. The court commented that a lesser sentence “would be more consistent with justice, morality and all of the other considerations under 3553,” but that the heavier sentence was “commanded by the Sentencing Guidelines.” It also opined, just before announcing the sentence, that the sentence did not reflect “where justice or equity or morality would end us up.” U.S. v. High gate, 521 F.3d 590 (6th Cir. 2008).

6th Circuit holds that failure to provide notice of variance from Guidelines was plain error. (740) Defendant’s PSR calculated his guideline range as 18-24 months, and found no reason for any departure. The district court sentenced him to 42 months. Defendant did not object to the upward variance at the sentencing. The 6th Circuit held that the district court’s failure to provide notice of the variance was plain error. In U.S. v. Cousins, 469 F.3d 572 (6th Cir. 2006), overruling recognized by U.S. v. Grams, 566 F.3d 683 (6th Cir. 2009), the court held that Rule 32(h) applies to all sentences that deviate from the Guidelines. Cousins was controlling here. No notice of an intent to depart was present in the submission of the parties or the presentence report. The judge departed upward to allow sufficient time for defendant to take part in a rehabilitation program, but with advance notice, defendant could have presented evidence that 42 months was greater than required to meet that end. Evidence supporting the departure was not overwhelming, since defendant argued that rehabilitation programs requiring fewer than 42 months were available to him. U.S. v. Alexander, 517 F.3d 887 (6th Cir. 2008).

6th Circuit, en banc, applies plain error review to procedural reasonableness claim not raised below. (740) Defendant argued that the district court failed to explain in sufficient detail why it rejected some of his arguments for a downward variance. Under U.S. v. Bostic, 371 F.3d 865 (6th Cir. 2004), district courts must ask the parties whether they have any objections to the proposed sentence that had not previously been raised. If a party fails to raise an objection, plain error review applies on appeal. The Sixth Circuit, en banc, found that the Bostic rule applies to post-Booker challenges to procedural reasonableness. Here, defendant answered “No” to the district court’s Bostic question. Although “this answer did not undermine [defendant’s] right to appeal issues he had ‘previously raised,’ it did undermine his right to challenge the adequacy of the court’s explanation for the sentence.” The court’s explanation for denying defendant’s request for a below-guideline sentence was not plain error. While the explanation was brief, and did not specifically address all of defendant’s arguments, any potential error was not “plain.” Defendant’s arguments were “conceptually straightforward,” and the district court imposed a within-guideline sentence. Nothing in the record suggested that the court did not listen to, consider, and understand every argument that defendant made. U.S. v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc).

6th Circuit outlines post-Gall review procedure. (740) 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. (740) 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 holds it impermissible for court to consider defendant’s likely state sentence as factor in determining federal sentence. (740) 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 child pornography sentence reasonable. (740) 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 says mandatory consecutive sentence for brandishing firearm did not justify sentence reduction for underlying offense. (740) 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. (740) 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 reverses because court did not adequately state reasons for sentence. (740) 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 reviews impact of Rita. (740) 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 finds within-guidelines sentence was adequately explained. (740) 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 holds guideline drug sentence reasonable. (740) 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. (740) 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. (740) 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. (740) 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).

7th Circuit reverses for failure to consider disparities among similarly-situated defendants. (740) Defendant, a police officer, funneled towing business to certain tow truck companies in exchange for bribes. He was convicted of attempting to commit extortion. At sentencing, defendant asked the court to consider the sentence of Wodnicki, another former police officer whom defendant believed was similarly situated to him. The district court refused, believing it could only consider sentencing disparities if they were presented on a nationwide basis. The Seventh Circuit held that the district court erred by not understanding that it had discretion to consider defendant’s argument. Section 3553(a)(6) says a court may consider the need to avoid unwarranted disparities between similarly-situated defendants. While a district court does not have to discuss each of the § 3553(a) factors, it commits procedural error if it does not give “meaningful consideration” to the relevant factors in a defendant’s case. The error was not harmless because it was impossible to determine whether defendant would have received the same sentence absent the error. U.S. v. Prado, 743 F.3d 248 (7th Cir. 2014).

7th Circuit reverses for failure to provide sufficient, explanation for 97-month sentence. (740) Defendant pled guilty to drug charges, and was sentenced to 97 months. In imposing that sentence, the judge said only that he had “considered all the factors of 18 U.S.C. § 3553(a)” and that the crime was “serious.” The Seventh Circuit held that this truncated explanation was insufficient, and remanded. Because the judge imposed a sentence within a guidelines range exceeding 24 months, he was obligated to state “the reason for imposing a sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1). The district court did not meaningfully explain why 97 months was an appropriate sentence. The court’s summary assertion that it had “considered all the factors of 18 U.S.C. § 3553(a)” was procedurally insufficient. Less explanation is required for within-guidelines sentences, but the court may not simply presume that a within-guidelines sentence is reasonable, and must provide an “independent justification” in accordance with the § 3553(a) factors for the term of imprisonment imposed. U.S. v. Washington, 739 F.3d 1080 (7th Cir. 2014).

7th Circuit vacates for failure to explain denial of request for variance. (740) Defendant used false identities to buy at least 12 cars. In 2010, he was convicted in Ohio federal court of fraud with identification documents, and sentenced to six months. In 2011, after he was discharged from the Ohio sentence, defendant pled guilty in Illinois federal court to mail fraud. He moved for a downward variance under U.S.S.G. §§ 5G1.3(b) and 5K2.23 to account for the discharged six-month Ohio sentence. If the Ohio sentence had not been discharged, § 5G1.3(b) would have provided for an adjustment because the Ohio offense was treated as relevant conduct to the current offense. The Seventh Circuit held that the court erred in denying the motion for a variance without an explanation. In its denial of the motion for a variance, the court only stated generally that it considered the PSR, the submissions of the parties and the arguments and evidence introduced at sentencing. The record was silent about the district court’s reasoning for possibly using defendant’s conduct from the Ohio offense to enhance his sentence, but denying a sentence reduction based on that same Ohio sentence. U.S. v. Pietkiewicz, 712 F.3d 1057 (7th Cir. 2013).

7th Circuit allows court to treat diminished capacity as aggravating factor. (740) Defendant was convicted of child pornography charges, and sentenced to 480 months. He contended that the sentencing court impermissibly considered his diminished capacity an aggravating factor rather than a mitigating factor. He also argued that the court impermissibly used his need for treatment to support a longer sentence. The Seventh Circuit rejected both arguments, observing that the court acknowledged defendant’s mental disabilities, and noted that “in a moral sense” they might mitigate the offense. However, it also noted that his mental characteristics might make him less amenable to treatment and rehabilitation, which would leave him a continuing risk to children. The court considered its options and permissibly decided that treatment was unlikely to be effective. The court did not give defendant a longer prison sentence so that he could receive rehabilitative treatment. Rather, it determined that defendant could not be rehabilitated through treatment, so he needed to be incapacitated “until he reaches an age where it will be difficult for him to participate in child exploitation issues.” U.S. v. Annoreno, 713 F.3d 352 (7th Cir. 2013).

7th Circuit remands for court to look at defendant’s psychiatric issues. (740) Defendant pled guilty to counts related to a scheme to rob a cocaine stash house, and was sentenced within the recommended guideline range. The Seventh Circuit remanded so that the district court could take a closer look at defendant’s psychiatric issues. At sentencing, defendant had highlighted a forensic psychiatrist’s view that the combination of enforced sobriety, psychotropic medication, and the absence of antisocial personality disorder indicated a decreased likelihood that defendant would reoffend upon his release from prison. However, the district court made no reference to any of this in its fleeting comment about defendant’s “mental health issues.” The court’s statement gave no insight into the judge’s evaluation of defendant’s condition. Because the doctor’s report went beyond describing defendant’s mental disorders and predicted that he was less likely than the average person to recidivate, the district court needed to explain why it thought that the latter point did not justify a lighter sentence. It also would have been helpful for the court to explain why defendant’s particular mental-health history did not temper some of the court’s (valid) concerns about specific and general deterrence. U.S. v. Vidal, 705 F.3d 742 (7th Cir. 2013).

7th Circuit says court’s use of 18:1 crack to powder cocaine ratio did not make sentence unreasonable. (740) Defendant pled guilty to distributing crack, and was sentenced to the midpoint within his advisory guideline range. He argued that the district court committed procedural error by treating the guidelines’ 18:1 crack-to-powder sentencing ratio as binding. He also claimed that the court’s decision to adhere to that ratio created unwarranted sentence disparities, because other judges in the same district used a 1:1 ratio in similar cases. The Seventh Circuit found no error. The judge rejected defendant’s request to follow the lead of other judges in the district, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act and the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there was no indication that he misunderstood his discretion to use a different ratio. The judge’s decision to adhere to the ratio endorsed by Congress and the Commission did not make the resulting within-guidelines sentence unreasonable. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a) (6). U.S. v. Matthews, 701 F.3d 1199 (7th Cir. 2012).

7th Circuit finds failure to apply Fair Sentencing Act to crack defendant was harmless. (740) Defendant was convicted of crack cocaine offenses, and argued that the district court erred in failing to apply the Fair Sentencing Act (FSA) to him. The government acknowledged the error, because Dorsey v. U.S., 132 S.Ct. 2321 (2012) made the FSA applicable to all defendants. sentenced after August 3, 2010, and defendant was sentenced on August 1, 2011. However, it contended that the error was harmless, because the district court said it would have imposed the same sentence regardless of the applicability of the FSA. The Seventh Circuit agreed that the error was harmless. Where the district court indicates that it would have imposed the same sentence, regardless of any sentencing error, the error is harmless and a remand is not required. The court’s statement “was not just a conclusory comment tossed in for good measure,” but rather reflected a “detailed explanation of the basis for the parallel result.” U.S. v. Foster, 701 F.3d 1142 (7th Cir. 2012).

7th Circuit remands to ensure that defendant’s Cuban heritage was not sentencing factor. (740) At sentencing, the government pointed to defendant’s admission that he viewed fraud differently than violent crimes, arguing that his attitude might be because of his Cuban heritage. The court said that defendant’s “lifestyle” could not “be blamed on Cuba,” but said his record was reminiscent of “when the Mariel people came over here and created crime waves all over the place”; “When [Fidel] Castro emptied his prisons, and his psychiatric wards, and Jimmy Carter took them all in.” The court continued that, unlike in Cuba, “in America, private property is sacrosanct. It’s not the Government’s property…. And that’s the way we live in America. And that’s why it’s a serious offense when you do this.” Defendant argued for the first time on appeal that his Cuban heritage negatively affected his sentence. The Seventh Circuit agreed this was possible, finding the court’s statements crossed the “very fine line of demarcation separating presentencing statements regarding a defendant’s relationship with a country … and statements concerning the race or national origin of the defendant which would violate his due process guarantees.” The government should not have discussed defendant’s national origin. By lumping the defendant in with the Mariel people, the court arguably made defendant’s national origin a factor at sentencing. U.S. v. Trujllo-Castillon, 692 F.3d 575 (7th Cir. 2012).

7th Circuit affirms sentence at top of guideline range based on defendant’s 41 arrests. (740) Defendant pled guilty to being in the U.S. after deportation, and was sentenced to 71 months, the top of his advisory guideline range. His principal ground of appeal was that the judge should not have taken into account his 41 arrests that had not resulted in convictions. The Seventh Circuit found no error. Although a sentencing court may not rely on the prior arrest record itself in deciding on a sentence, the court may still consider the underlying conduct detailed in arrest records where there is a sufficient factual basis to conclude that the conduct actually occurred. Of the defendant’s 41 arrests, 26 listed merely the date, the defendant’s age, the charge, the agency making the arrest, and the disposition. With regard to each of the remaining 15 arrests, there was a summary either of a petition for an adjudication of wardship (4 arrests) or of the police department’s arrest report (11 arrests). Since defendant did not question the accuracy of any of the summaries, the judge was entitled to take account of the 15 arrests for which there were summaries in deciding whether to sentence defendant at the top of the guidelines range. Moreover, defendant did not suggest that the other 26 arrests were ungrounded in facts. In light of the defendant’s failure to challenge the accuracy of anything in his lengthy arrest record, the judge was entitled to assume that the 41 arrests considered as a whole, when coupled with the defendant’s five convictions, justified a sentence at the top of the guidelines range. U.S. v. Lopez-Hernandez, 687 F.3d 900 (7th Cir. 2012).

7th Circuit reverses error in calculating guidelines despite below-guideline sentence. (740) Defendant participated in an elaborate scheme to defraud mortgage lenders. The judge found that the loss affected more than 10 victims, and applied a two-level increase under § 2B1.1(b)(2)(A)(i). Defendant and the government agreed on appeal that there were only seven victims. Defendant’s offense level should have been 31, not 33, for a guideline range of 108-135 months, instead of 135-168 months. However, the court had imposed a sentence of 66 months, finding there were mitigating factors not considered by the guidelines. Although defendant received a sentence well below the suggested guideline range, the Seventh Circuit held that any error in the calculation of the number of victims was not harmless. It was impossible to know whether the district court would have imposed the same sentence had it not committed this procedural error. U.S. v. Love, 680 F.3d 994 (7th Cir. 2012).

7th Circuit remands where court relied on speculation about defendant’s beliefs. (740) Defendant was convicted of receiving and possessing child pornography, and was sentenced to a 240-month guidelines sentence. The Seventh Circuit remanded for resentencing. The panel rejected defendant’s claim that the court failed to consider the need to avoid unwarranted sentencing disparities among defendants with similar records and similar offenses, as required by § 3553(a)(6). Where a sentencing court correctly calculates and reviews the guideline range, it necessarily gives significant weight and consideration to the need to avoid unwarranted disparities. However, the judge here also relied on the assumption that defendant believed the crime was “victimless” and that he did not believe “any of this [was] criminal.” This assumption was pure speculation, because defendant never expressed this belief at trial or at sentencing. On remand, the district court was ordered to reassess the sentence without the erroneous assumption about defendant’s beliefs. U.S. v. Halliday, 672 F.3d 462 (7th Cir. 2012).

7th Circuit says modest variance should not be rejected merely because it was modest. (740) Defendant pled guilty to drug and firearms charges, resulting in a guideline range of 68-74 months. Defendant requested a downward variance to 64 months. The court imposed a 68-month sentence, stating that (1) defendant’s proposed reduction from the bottom of the guidelines range was “de minimis”; (2) defendant had time to serve, so the judge would not “get into the dichotomy” between 64 and 68 months; and (3) the guidelines, while not binding, “are to be followed.” The Seventh Circuit held that the sentence was procedurally unreasonable, since the judge appeared to have rejected defendant’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines. The judge’s reasoning conflicted with the so-called parsimony provision of § 3553(a), which directs judges to impose a sentence “sufficient, but not greater than necessary.” By characterizing the difference between the two sentences as “de minimis,” the judge implicitly accepted that a 64-month sentence was sufficient to serve the principles of sentencing. The judge’s comments also suggested that it applied an improper presumption that a within-guidelines sentence was reasonable. U.S. v. Pennington, 667 F.3d 953 (7th Cir. 2012).

7th Circuit makes limited remand to allow court to clarify if it understood full extent of discretion. (740) Defendant argued for the first time on appeal that the district court might not have understood its discretion to sentence outside the guideline range, pursuant to U.S. v. Cormer, 598 F.3d 411 (7th Cir. 2010). Because Cormer was decided after defendant was sentenced, the Seventh Circuit sent the case back to the district court on a limited remand to allow the court to indicate whether it might impose a different sentence if it knew the full extent of its discretion. The district court sentenced defendant below the career offender range, and defendant presented little evidence that the court felt constrained in its decision-making process. Nevertheless, the district court did suggest that defendant’s status as a career offender was a significant factor in its sentence, so the case was remanded for the district court to clarify this issue. However, the panel declined to remand the case of a co-defendant, who was sentenced almost nine months after Cormer. U.S. v. Redmond, 667 F.3d 863 (7th Cir. 2012).

7th Circuit reverses for failure to consider defendants’ unusually strong evidence of rehabilitation. (740) In the late 1990s, defendants were involved in a mortgage fraud scheme. After the scheme collapsed, defendants were not charged with any crimes. They rebuilt their life, were gainfully employed, raised their three children, volunteered in the community, and did not engage in any criminal activity from 1999 to 2010, other than a reckless driving offense. In 2010, the government charged defendants with several counts of fraud. They argued on appeal that the sentencing judge failed to adequately consider their unusually strong evidence of self-motivated rehabilitation. The Seventh Circuit agreed, and remanded for resentencing. Demonstrated self-motivated rehabilitation is direct and relevant evidence of the need for the sentence imposed “to afford adequate deterrence to criminal conduct” and “to protect the public from further crimes of the defendant.” Here, over a “relatively significant amount of time,” defendants had demonstrated “that they [could] stay out of trouble.” The court’s silence on this issue made it impossible to discern whether it appropriately balanced defendants’ rehabilitated lives against the seriousness of their offenses. U.S. v. Robertson, 648 F.3d 858 (7th Cir. 2011).

7th Circuit outlines showing defendant must make for fast-track disparity argument. (740) In U.S. v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010), the court held that sentencing courts may compensate for fast-track disparities, but emphasized that a court need not consider this mitigating argument until the defendant demonstrates that he would have been eligible to participate in a fast-track program. In this case, the Seventh Circuit held that a district court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district. That means a defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of right before or during the plea colloquy. The defendant must also establish that he would receive a fast-track sentence in at least one district offering the program and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well as a candid assessment of the number of programs for which he would not qualify. Until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over by the court in silence. U.S. v. Ramirez, 675 F.3d 634 (7th Cir. 2011).

7th Circuit says court’s reference to looking at child porn as an illness was not procedurally unreasonable. (740) Defendant pled guilty to using the Internet to traffic in child pornography, 18 U.S.C. § 2252A(a)(1) and (b)(1). He claimed that his 180-month sentence, which was below his guideline range of 210-240 months, was procedurally unreasonable because the judge believed that defendant suffered “from an uncontrollable illness … and uncontradicted studies establish[ed] that consumers of child pornography have low rates of recidivism and are not a high risk to commit contact offenses.” The Seventh Circuit held that defendant’s below-guidelines sentence was not procedurally unreasonable. There was nothing to suggest the judge was making a finding of mental illness. Instead, he was struggling with the severity of the crime and wondering why anyone would choose to view the images involved. Moreover, immediately after these comments, the judge said that he might need to “back off” on that belief because defendant had apparently controlled his desires since 2007. The judge imposed a sentence above defendant’s requested 60 months primarily because of the need to deter others from engaging in similar crimes. U.S. v. Adams, 646 F.3d 1008 (7th Cir. 2011).

7th Circuit remands where court relied on clearly erroneous fact at sentencing. (740) Defendant argued that the district court committed a significant procedural error in sentencing by relying on a clearly erroneous fact –that defendant had prior involvement with guns. In fact, defendant had no prior convictions involving the use of firearms. However, defendant failed to object to that error at sentencing. The Seventh Circuit remanded for resentencing. In selecting defendant’s sentence, the district court focused on the violent nature of the crime, the fact that defendant readily agreed to participate, despite having been paroled just nine months earlier, and defendant’s significant criminal history, which the judge apparently believed included the use of firearms. While the court mentioned guns only once, based on its reading of the transcript, the panel concluded that it was “not improbable that the trial judge was influenced by improper factors in imposing sentence.” U.S. v. Durham, 645 F.3d 883 (7th Cir. 2011).

7th Circuit reverses where court did not adequately explain sentence at bottom of range. (740) Defendant pled guilty to unlawful reentry into the United States. Defendant presented a number of reasons for a below-guideline sentence, including that his criminal history was overstated, and that his reasons for returning to the country (to care for his ailing father and support his family) mitigated his illegal reentry. The district court sentenced defendant to 46 months in prison, the bottom of his applicable Guidelines range. The court did not comment on his arguments in mitigation or give any explanation for the choice of sentence. The Seventh Circuit held that the district court committed procedural error by not adequately explaining its choice of a 46-month sentence. The facts offered here – economic hardship, family circumstances, and the severity of a 16-level increase under § 2L1.2(b)(1)(A)(i) – were not unusual. Even so, the district court was still required to explain why its choice of 46 months was appropriate in light of the factors in 18 U.S.C. § 3553(A). U.S. v. Garcia-Oliveros, 639 F.3d 380 (7th Cir. 2011).

7th Circuit affirms refusal to consider dismissal of charges against co-conspirator. (740) Defendant argued that the court erred at sentencing by ignoring the fact that his co-conspirator was never convicted. Subparagraph (a)(6) of § 3553 requires courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of the same conduct.” The Seventh Circuit held that in order for subparagraph (a)(6) to be applicable, there must be disparate sentences not among co-defendants or co-conspirators, but among judges or districts. There was no sentencing disparity in this case between defendant’s sentence and the co-conspirator’s sentence, because the latter did not even exist. The panel also rejected defendant’s claim that it could consider the co-conspirator’s lack of conviction under § 3553(a). Holding otherwise would deprive prosecutors of the opportunity to exercise any meaningful prosecutorial discretion in co-conspirator cases. U.S. v. Scott, 631 F.3d 401 (7th Cir. 2011).

7th Circuit affirms despite court’s comment that defendant might get better medical care in prison. (740) At sentencing, the defense argued that defendant was old enough and in such poor health that a guideline sentence (272-319 months) would amount to a life sentence. The judge responded by saying that he doubted defendant could receive medical care outside of prison as good as the care he could receive in prison. The judge further noted that there was no indication that defendant had independent means to obtain good and regular healthcare outside of a prison setting. Defendant argued that the judge relied on an impermissible factor—his socio-economic status—to justify his sentence. The Seventh Circuit disagreed. The court’s discussion of defendant’s access to health care came in the context of a broader discussion of defense arguments for a lower sentence and other relevant § 3553(a) factors. The court was addressing the effect that a sentence might have on the defendant’s access to medical care, which was an issue the defense had raised. U.S. v. West, 628 F.3d 425 (7th Cir. 2010).

7th Circuit allows non-fast-track court to consider disparities created by fast-track programs. (740) Both defendants pled guilty to illegally reentering the United States after deportation. In both cases, the district court refused to even consider imposing below-guidelines sentences, rejecting the argument that the court should vary based on the sentences of similarly situated individuals in “fast-track” districts. In a consolidated review, the Seventh Circuit abrogated its prior opinion in U.S. v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006), abrogated by U.S. v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010), and held that a non-fast-track district court may consider sentencing disparities created by fast-track programs. The circuits are divided on this question, with the First, Third and Sixth Circuits holding that after Kimbrough, consideration of fast-track sentencing disparity is not categorically barred as a sentencing factor. The Fifth, Ninth and Eleventh Circuits have ruled that Kimbrough did not overturn previous decisions holding that a sentencing court may not consider such disparities. The panel here sided with the First, Third and Sixth Circuits, holding that § 5K3.1 should be treated as any other guideline, thereby affording district court judges the ability to consider the absence of a fast-track program in crafting an individual sentence. U.S. v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010).

7th Circuit remands despite sentence at bottom of range where court made inflammatory remarks. (740) Defendant was convicted of drug charges, and received a 235-month sentence, which fell at the low end of his advisory guideline range. At the sentencing hearing, the judge digressed to discuss defendant’s native Mexico, the immigration status of defendant and his sisters, and the conditions and laws in half a dozen other countries, not to mention unnecessary references to Hugo Chavez, Iranian terrorists, and Adolph Hitler’s dog. The Seventh Circuit remanded to ensure that the district court’s choice of sentence was based only on criteria that Congress authorized in 18 U.S.C. § 3553. The fact that defendant received a within-guidelines sentence did not make-up for the court’s inflammatory comments. There was no way of knowing how, if at all, these extraneous considerations influenced defendant’s sentence. U.S. v. Figuero, 622 F.3d 739 (7th Cir. 2010).

7th Circuit presumes guideline sentence was reasonable despite court’s statement that it was throwing the guideline range “out the window.” (740) After calculating the guidelines’ range and before considering the factors under 18 U.S.C. § 3553(a), the court said it would give the same sentence regardless of whether it had ruled differently on the parties’ objections to the PSR. The judge then said he was “throw[ing] [the guidelines’ range] out the window because I think that the sentencing in this case can be uniquely tailored without resorting to a formulaic reliance on numbers.” The 180-month sentence was within the guidelines’ range. On appeal, the Seventh Circuit found no error, presuming that the sentence was correct because it fell within the correctly calculated advisory guidelines’ range. The district court acknowledged that it was using the guidelines as a “starting point” and the Seventh Circuit ruled that the district court’s “one stray remark” simply demonstrated that the court was not treating the guidelines as mandatory, but rather was making an individualized assessment. U.S. v. Nance, 611 F.3d 409 (7th Cir. 2010).

7th Circuit confirms that variance is allowed from career offender guideline range. (740) Defendant was convicted of trafficking in crack cocaine. At sentencing, the district court found that defendant was a career offender. As a result, defendant had a sentencing range of 360 months to life. Defendant sought a sentence below the range in part based on the disparity between the guidelines for crack offenses and those for powder cocaine offenses. Relying on prior Seventh Circuit law, the district court found that it could not vary from a career offender sentence. In U.S. v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc), the court held that all guidelines, including the career offender guideline, are advisory. Based on Corner, the Seventh Circuit remanded to allow the district court to determine whether defendant should receive a lower sentence based on the disparity between crack and powder offenses. U.S. v. Womack, 610 F.3d 427 (7th Cir. 2010).

7th Circuit says district court need only consider sentencing factors for within-Guidelines sentence. (740) Defendant received a sentence within the Guidelines range. On appeal, he argued that the district court failed to consider fully his criminal history, age, and family circumstances. The Seventh Circuit held that “as long as a sentencing court considers the arguments made in mitigation, even if implicitly and imprecisely, the sentence imposed will be found reasonable.” U.S. v. Diekemper, 604 F.3d 345 (7th Cir. 2010).

7th Circuit affirms below-guidelines incarceration rather than home confinement. (740) Defendant pled guilty to theft of government property, in violation of 18 U.S.C. § 641. Her advisory sentencing range was 24-30 months, and the district court sentenced her to imprisonment of one year and a day. She argued that the sentence was unreasonable because the judge did not adequately consider her medical problems or the impact of incarceration on her family, which in her view warranted a sentence of home confinement. The Seventh Circuit upheld the sentence as reasonable. The judge’s failure to specifically mention the impact of incarceration on defendant’s family did not require resentencing The judge took evidence and heard arguments on this point over the course of several sentencing hearings, and the totality of the record demonstrated that the judge implicitly considered and rejected it. The judge did not abuse his discretion by sentencing defendant to a below-guidelines period of incarceration instead of home detention. The judge explained that despite defendant’s medical issues, a period of incarceration was “fundamentally required” to promote respect for the law, provide for deterrence, and to hold defendant accountable for her breach of trust. U.S. v. Poetz, 582 F.3d 835 (7th Cir. 2009).

7th Circuit remands to decide if delay in prosecution merited below-guideline sentence. (740) After illegally reentering the country following deportation, defendant was arrested for domestic battery. He pled guilty and was sentenced to 30 months imprisonment. When he was paroled nine months later, he was charged in federal court with illegal reentry pursuant to 8 U.S.C. § 1326. At sentencing, defendant argued that the district court should effectively credit him with the time served in state prison on the battery charge. He contended that the government intentionally delayed charging him with illegal reentry while he was in state custody to deprive him of the opportunity to serve his federal sentence concurrently with the remainder of his state sentence. The district court did not address this argument. The Seventh Circuit remanded for resentencing. Because defendant’s argument had legal and factual merit, the district court was required to specifically address the issue. A district court has the authority to issue a below-guidelines sentence based on the delay between the time federal immigration officials discovered that a defendant illegally reentered the U.S. and the time that the government charged him with illegal reentry. U.S. v. Villegas-Miranda, 579 F.3d 798 (7th Cir. 2009).

7th Circuit reverses where court may have misunderstood its authority to vary from Guidelines. (740) Defendant argued that the district court improperly disregarded his arguments at sentencing for leniency based on his advanced age and health problems. The district court stated that it had considered all of the factors defendant brought to its attention, “but they are, of course, also taken into account by the guidelines themselves.” The Seventh Circuit reversed, finding that the district court may have misunderstood its authority under § 3553(a) to consider defendant’s arguments about his advanced age and infirm health. The court’s statement appeared to be a misstatement of law, since the Guidelines do not factor in a defendant’s age and health. The commentary to the Guidelines states that age and health are “not ordinarily relevant in determining whether a departure may be warranted,” but they may be a “reason to depart downward” when a defendant is either “elderly” or “seriously infirm.” U.S.S.G. §§ 5H1.1 and 5H1.4. Post-Booker, those departures are “obsolete.” While the district court still use them for guidance, it had the authority to consider defendant’s physical impairments and advanced age when determining the appropriate sentence under 18 U.S.C. § 3553(a). U.S. v. Powell, 576 F.3d 482 (7th Cir. 2009).

7th Circuit criticizes legal challenge purporting to be appeal of court’s exercise of discretion. (740) Defendant was convicted of being illegally in the U.S. after deportation, and received a 16-level enhancement under § 2L1.2 (b)(1) based on a prior conviction for a crime of violence. He argued that the enhancement was invalid because it was not based on empirical data, national experience or input from experts in the field. The Seventh Circuit rejected the argument, finding that defendant was, in essence, making a legal argument in the guise of an appeal of the court’s exercise of sentencing discretion. A sentencing judge is free to reject a guideline as inconsistent with his own penal theories, and rejecting a guideline as lacking a basis in data, experience or expertise would thus be proper. However, a judge is not required to consider an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation. A judge should not have to delve into the history of a guideline so that he can satisfy himself that the process that produced it was adequate. Finally, the district court was not required to explicitly address defendant’s argument that the probability that he would re-offend was slight since his family had moved to Mexico. U.S. v. Aguilar-Huerta, 576 F.3d 365 (7th Cir. 2009).

7th Circuit says lack of empirical study did not render child-exploitation guidelines invalid. (740) Defendant pled guilty to producing child pornography, 18 U.S.C. §2251(a), and the district court calculated his guideline range under §2G2.1. The court imposed an above-guideline sentence of 450 months. Defendant argued that the guidelines for crimes involving sexual exploitation of a minor, §2G2.1-.2, were crafted without the benefit of the Sentencing Commission’s usual empirical study and were invalid. He noted that Kimbrough v. United States, 552 U.S. 85 (2007), allows district courts to disagree on policy grounds with sentencing guidelines that exhibit methodological flaws. The Seventh Circuit found it unnecessary to decide whether Kimbrough gave the court discretion to disagree with the child-exploitation guidelines. Defendant was not arguing that the district court had discretion to disagree with the child-exploitation guidelines and sentence below them, he was arguing that §2G2.1-.2 were invalid and that a court must sentence below them. His argument was based on analogy to the crack guidelines, yet those guidelines remained valid even after Kimbrough. Judges are not required to disagree with the crack guidelines, and they are not required to disagree with the child-exploitation guidelines. U.S. v. Huffstatler, 571 F.3d 620 (7th Cir. 2009).

7th Circuit finds court did not deny defendant right of allocution. (740) The government argued in favor of an obstruction of justice increase based on false statements defendant allegedly made during a plea hearing. The court told the government that it was not going to apply the enhancement, but would be “taking into account [defendant’s] testimony when it issues his sentence, which will be within the advisory guideline range….” The district court then imposed a guideline sentence. Defendant argued that the district court denied him his right of allocution, contending that the court foreclosed any possibility of a below-guideline sentence, prior to his opportunity to address the court, when it stated that his sentence would be “within the advisory guideline range.” The Seventh Circuit disagreed. When read in context, the court was merely communicating that it would use the Guidelines as its baseline, as opposed to the elevated sentencing range that the government sought. In its colloquy with counsel, the court stated that it had not reached a conclusive decision regarding defendant’s sentence and that it would consider the relevant sentencing factors and the advisory nature of the Guidelines. U.S. v. Hoke, 569 F.3d 718 (7th Cir. 2009).

7th Circuit suggests judges make clear that § 3553(a) factors drive sentence to avoid “nit-picking review” of guideline issues. (740) In one case, defendant challenged the court’s finding that a prior conviction for false imprisonment was a crime of violence, thus warranting a 16-level enhancement. In a separate bank robbery case, the issue was whether the amount properly included as loss was the value of a stolen car or just the amount of damage done to the car while it was in the robbers’ possession. The Seventh Circuit consolidated these unrelated cases to “illustrate how guideline calculations can sometimes bog a case down and generate an appeal – even if the end result has little importance in the big picture.” For the first defendant, the issue of whether his false imprisonment offense was a crime of violence did not have to be decided – the judge could have applied the crime of violence enhancement based on a battery conviction. The judge also could have increased his sentence pursuant to the § 3553(a) factors, regardless of whether the crime technically qualified as a crime of violence. If the judge makes clear that the § 3553(a) factors drive the sentence, this can “make the often nit-picking review of issues like this under our now advisory guideline scheme unnecessary.” Similarly, with the second defendant, the judge could have considered the § 3553(a) factors and imposed the same sentence. U.S. v. Sanner, 565 F.3d 400 (7th Cir. 2009).

7th Circuit reverses where court failed to consider defendant’s mental disabilities. (740) Defendant and his younger brother were part of a group of men convicted of committing a series of robberies. Defendant had an estimated IQ of 72, and had been receiving disability benefits since the age of 10 because of “autistic disorders and other pervasive developmental disorders.” Defendant’s attorney argued for a sentence on the low end of the guideline range due to defendant’s mental state. The district court relied on a report by a court-appointed doctor who concluded that defendant was exaggerating his disability, and sentenced him to 552 months, the top of his 519-552 month range. The Seventh Circuit remanded. The district court focused solely on the doctor’s report that defendant was exaggerating his mental state, which was not dispositive on whether he was mentally disabled or whether his actual disability justified a lower sentence. The evidence was undisputed that defendant suffered from some form of mental disability and the doctor himself noted that defendant had an estimated IQ of 72. In addition, the doctor did not take into account the combination of defendant’s diminished capacity along with the fact that his brother was the ringleader, and the exacerbating effect that might have on defendant’s ability to think for himself. U.S. v. Williams, 553 F.3d 1073 (7th Cir. 2009).

7th Circuit affirms 88-month consecutive sentence as not an abuse of discretion. (740) Defendant pled guilty to a conspiracy that included four armed bank robberies. The district court sentenced him to 88 months, to run consecutively to a state sentence. Most of the state time reflected conduct during an attempted escape from the fourth robbery. Defendant argued that the consecutive sentence violated §5G1.3(b), but the Seventh Circuit found no abuse of discretion. The federal judge concluded that Illinois was likely to release defendant after he had served 12 years. Adding 88 months for the bank robberies took the total to 230 months. The district court could have imposed a 230-month federal sentence, running concurrently with the state sentence, and so produced the same result as the 88-month consecutive sentence. Although a concurrent federal sentence might be preferable (to avoid guesswork as to the state sentence), after Booker the choice belongs to the district judge. A 230-month sentence for four armed bank robberies in which the robbers terrorized tellers and customers, endangered drivers and pedestrians, and tried to kill police, would not have been an abuse of discretion. U.S. v. Bangsengthong, 550 F.3d 681 (7th Cir. 2008).

7th Circuit remands for resentencing in light of Kimbrough. (740) Defendant was convicted of crack cocaine charges and sentenced to 360 months’ imprisonment. After sentencing, the Supreme Court decided Kimbrough v. U.S., 128 S.Ct. 558 (2007), which held that a district court may sentence crack offenders below the advisory Guidelines range if it finds that the 100:1 crack to powder cocaine sentencing ratio in the Guidelines leads to a sentence that exceeds “the purposes of sentencing” in 18 U.S.C. §3553(a). The Seventh Circuit found that defendant sufficiently raised the crack-powder disparity at sentencing to be entitled to a full remand for resentencing. Although defendant did not cite the 100:1 ratio specifically as a basis for the trial court to give him a shorter sentence, to do so would have been fruitless under then-current law of the Seventh Circuit. However, defense counsel did invite the court’s attention to the planned change in the 2007 Guidelines that reduced crack sentences by two levels. Counsel told the court: “[I]t makes no difference to the sentencing range but I do want to preserve the crack issue simply to allow further review if that becomes necessary.” U.S. v. Bruce, 550 F.3d 668 (7th Cir. 2008).

7th Circuit holds sentence below guideline range was presumptively reasonable. (740) Defendant pled guilty to two counts of possession of crack cocaine and was sentenced to 240 months. He argued that his sentence was unreasonable, even though it was 22 months below the career offender guideline range of 262-327 months. The Seventh Circuit found the below-guideline sentence reasonable. A sentence within a properly calculated guideline range is presumptively reasonable, so it follows that a below-guideline sentence is also presumptively reasonable against an attack by a defendant claiming that the sentence is too high. Defendant did not come close to rebutting that presumption here. U.S. v. Liddell, 543 F.3d 877 (7th Cir. 2008).

7th Circuit reverses where court failed to consider family circumstances. (740) Defendant argued that his incarceration imposed an extraordinary hardship on his family. His wife testified that the couple’s adopted daughter had a compromised immune system and was particularly vulnerable to illness, making daycare implausible. Because defendant worked from home, he had been able to look after their daughter, and she described her attempt to find suitable care since defendant’s incarceration. The district court stated that this was unfortunate, but defendant’s absence was “based on conduct [he] chose to commit. And I expressly reject that as a consideration that should somehow mitigate his sentence.” The Seventh Circuit reversed, noting that family hardship is always the result of the defendant’s criminal conduct, so that cannot be dispositive. When a defendant seeks a lower sentence based on extraordinary family circumstances, the relevant inquiry is the effect of the defendant’s absence on his family members. The court was required to consider defendant’s family circumstances and provide an adequate analysis of how much weight, if any, it should command. The fact that the consequences of incarceration were attributable to his own misconduct is not dispositive. U.S. v. Schroeder, 536 F.3d 746 (7th Cir. 2008).

7th Circuit rules court placed too much weight on Guidelines. (740) At sentencing, defense counsel requested that the district court consider defendant’s lengthy career in public service as a reason for a reduced sentence. The judge declined, noting that at a conference he attended the judges were “put on notice by the Congress that if we departed from them on a regular basis for no valid reason – I say valid, because I was looking to see if there is authority for doing that – that what Congress was going to do is come back and have mandatory minimums and everything…. So I don’t have a problem with the departure, but I have to find some authority, some basis for it before I’m going to do it. Otherwise, I’m going to have some reluctance to go through with it.” The judge later commented that he “looked for public officials doing their jobs for a basis of departure, and was not able to find anything that gave me a basis by itself to come down.” The Seventh Circuit held that the district court placed too much weight on the Sentencing Guidelines. The Guidelines are but one factor among those listed in 18 U.S.C. § 3553(a). The panel remanded for resentencing so the court could make this determination with the Guidelines being given their appropriate post-Booker weight. U.S. v. Carter, 530 F.3d 565 (7th Cir. 2008).

7th Circuit remands crack case for court to consider variance from 100:1 cocaine ratio. (740) Defendant pled guilty to distributing crack cocaine and was sentenced under the 100:1 crack/powder cocaine ratio in the Sentencing Guidelines. His appeal was pending when Kimbrough v. U.S., 128 U.S. 558 (2007), held that a court may grant a downward variance based on disagreement with the guidelines’ 100:1 ratio of crack to powder cocaine. The government argued that resentencing was not necessary because defendant did not object to the use of the ratio below, and the district court expressed no unhappiness with the guideline range. The Seventh Circuit remanded for the district court to indicate whether it would have imposed a non-Guidelines sentence had it known it could vary from the 100:1 ratio. When a district court does not consider an argument because it is unaware of its power to do so, a remand is appropriate. On remand, if defendant does not make a proper motion for relief under the new guideline and the judge does not want to grant such relief on her own, then the judge should advise the appellate court whether she would be inclined to reduce defendant sentence under the discretion recognized by Kimbrough. U.S. v. Taylor, 520 F.3d 746 (7th Cir. 2008).

7th Circuit remands for court to decide if it would have imposed same sentence for crack cocaine. (740) Defendant pled guilty to distributing a substance containing cocaine base. After finding the substance was crack, the court sentenced defendant to 327 months, a sentence above the guideline sentence of 240 months. The Seventh Circuit vacated and remanded for resentencing in light of the Supreme Court’s decision in Kimbrough v. U.S., 128 S.Ct. 558 (2007). Defendant did not specifically ask the district court to consider the 100:1 disparity when determining his sentence for an offense involving crack, and he would not have had a sound legal footing for doing so prior to Kimbrough. However, defendant did contest before the district court and again on appeal whether the drugs in question were crack. Then panel presumed that his primary purpose for doing so was to avoid the harsh effects of the crack sentencing disparity. The district court did not address the 100:1 ratio, and there was no way of knowing if it would have imposed the same above-guideline sentence had it known it had the discretion to consider that disparity when deciding upon a sentence under § 3553(a). Therefore, remand was appropriate. U.S. v. Padilla, 520 F.3d 766 (7th Cir. 2008).

7th Circuit says sentence 10 years below advisory guideline range is not excessive. (740) 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. (740) 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 allows consideration of dismissed firearm conduct in setting sentence. (740) The district court sentenced defendant to 18 months for his firearm conviction, in the middle of his 15-21 month guideline range. Defendant argued that the court penalized him because he sold the gun to Eller in front of an elementary school. Defendant was originally charged with possessing a firearm near a school zone, 18 U.S.C. § 922, a charge that was later dismissed. The fact that the charge was dismissed did not erase the facts surrounding the sale. Defendant admitted the facts in the PSR, which detailed the sale. As such, defendant’s proximity to the school was a part of the “nature and circumstances of the offense” that the district court was obligated to consider under 18 U.S.C. § 3553(a)(1). It did not render the resulting sentence unreasonable. The panel also rejected defendant’s claim that the court improperly weighed the § 3553(a) factors. The court noted defendant’s family situation and explicitly stated that it was taking into account the difficulty of raising a child alone. U.S. v. Haskins, 511 F.3d 688 (7th Cir. 2007).

7th Circuit remands to permit court to address defendant’s arguments about his mental illness. (740) 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. (740) 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 finds court erroneously presumed within guidelines sentence was proper. (740) 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. (740) 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 explanation for guideline sentence adequate. (740) 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 within guideline range reasonable. (740) 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 reverses where court did not address need to avoid unwarranted sentencing disparities. (740) 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 holds defendant’s status as deportable alien did not make guidelines sentence unreasonable. (740) 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).

8th Circuit finds error in rejecting variance based on finding that defendant had sold drugs for 10 years. (740) Defendant pled guilty to drug charges, and qualified as a career offender, resulting in a guideline range of 188-235 months. The court found that the guidelines overstated defendant’s criminal history, and reduced his criminal history level, resulting in a new guideline range of 168-210 months. However, the court rejected defendant’s request for a downward variance, concluding, based on his drug history and lack of employment, that he had sold drugs for a living over the previous 10 years. The Eighth Circuit held that the district court erred in denying the variance based on its conclusion that defendant had sold drugs for 10 years. The PSR contained no factual allegations to support this conclusion. Long-term unemployment might be consistent with drug sales, but it did not establish such sales. Defendant admitted to long-term abuse of marijuana. But drug abuse was not enough to infer that the user was also selling drugs. U.S. v. Stokes, __ F.3d __ (8th Cir. Apr. 29, 2014) No. 13-1779.

8th Circuit finds any error in applying dangerous weapon increase was harmless. (740) Defendant bit a federal agent, and pled guilty to assaulting a federal officer under 18 U.S.C. § 111. The district court applied a four-level increase under § 2A2.2(b)(2)(B) for use of a dangerous weapon, i.e., defendant’s teeth. The Eighth Circuit ruled that any error was harmless, because the district court made clear that it would impose the 60-month sentence whether or not it applied the dangerous weapon increase. Defendant’s advisory guideline range with the enhancement was 63-78 months, and without the enhancement, it would have been 41-51 months. The court observed that the 60-month term was “three months below the bottom end of the guideline range with the dangerous weapon enhancement,” but “nine months above the top end of the guideline range, if the Court had ruled that teeth are not a dangerous weapon.” The court emphasized that the sentence it selected was “not a matter of compromise,” saying: “It’s what the Court thinks is sufficient, but not more than necessary, to serve the purposes of § 3553(a).” The record demonstrated that any error in calculating the advisory guideline range did not substantially influence the sentence. U.S. v. LaRoche, 700 F.3d 363 (8th Cir. 2012).

8th Circuit finds error in increasing sentence for destructive device was harmless. (740) Defendant pled guilty to six counts of assaulting a federal employee, and one count of possessing an unregistered firearm. The court sentenced defendant to 102 months. Defendant contended, and the government conceded, that the district court committed procedural error when it applied a two-level increase for possession of a destructive device under § 2K2.1(b)(3)(B). The Eighth Circuit ruled that the error was harmless, since the record clearly indicated the district court intended to sentence defendant to 102 months – 12 months for each assault and 30 months for the firearm offense – regardless what the guidelines recommended. This was apparent in light of the court’s repeated references to a 102-month sentence, not only in the first hearing, in which the court understood the guidelines to recommend a 46-57 month custody range, but also in the second hearing, in which the court believed the guidelines recommended a 63-78 month range. U.S. v. Woods, 670 F.3d 883 (8th Cir. 2012).

8th Circuit says court in non-fast track district may consider disparities created by fast track programs. (740) Defendant pled guilty to illegal reentry into the U.S. after being deported, in violation of 8 U.S.C. § 1326(a). He moved for a downward departure to compensate for the sentencing disparity based on the unavailability of a “fast track” early disposition program in the district. Previous Eighth Circuit cases have concluded that variances based on the absence of fast track programs were impermissible. Here, the Eighth Circuit held that Kimbrough v. U.S, 552 U.S. 85 (2007), undermined the rationale of its prior decisions that disallowed variances based on the unavailability of fast track in a particular district. The focus is not on whether Congress, through the PROTECT Act, blessed a sentencing disparity, making it warranted and thereby consistent with 18 U.S.C. § 33553(a)(6). Rather, the question was whether Congress, through the PROTECT Act, expressly curtailed a district court’s sentencing discretion under the entire array of § 3553(a). Congress did not. Nowhere in the PROTECT Act does Congress purport to limit a district court’s sentencing discretion under all the § 3553(a) factors. U.S. v. Jimenez-Perez, 659 F.3d 704 (8th Cir. 2011).

8th Circuit says appeal waiver barred claim that sentence was substantively unreasonable. (740) Defendant argued on appeal that his sentence was substantively unreasonable because it failed to accomplish the goals set forth in 18 U.S.C. § 3553(a). The Eighth Circuit held that defendant’s appeal waiver barred consideration of this argument. First, defendant’s claim fell within the scope of his appeal waiver, which prohibited an appeal regarding “all sentencing issues” except the calculation of defendant’s criminal history category. Second, the plea agreement and appeal waiver were entered into knowingly and voluntarily. Finally, applying the appeal waiver to dismiss defendant’s appeal of the substantive reasonableness would not result in a miscarriage of justice. U.S. v. Boroughf, 649 F.3d 887 (8th Cir. 2011).

8th Circuit affirms partially concurrent sentence as reasonable. (740) Defendant was convicted of three counts of bank robbery, and the district court sentenced him to 216 months’ imprisonment. It also ordered that the first 36 months of the sentence run concurrently with an undischarged West Virginia robbery sentence. Defendant argued that the court abused its discretion by ordering only 36 months to run concurrently to his state sentence. The Eighth Circuit disagreed, rejecting defendant’s claim that the there is a preference in the Guidelines for sentences to run concurrently to undischarged sentences. Section 5G13(b), which directs a court to apply concurrent sentences, applies only where the undischarged sentence is for another offense that is “relevant conduct to the instant offense of conviction … and that was the basis for an increase in the offense level for the instant offense.” Defendant’s West Virginia offense occurred almost one year after the current robberies and was not considered relevant conduct by the district court. Thus, § 5G1.3(b) did not apply. Instead, § 5G1.3 applied, and this section gave the court discretion to order the sentence to run concurrently, partially concurrently, or consecutively to the prior undischarged sentence. U.S. v. Young, 644 F.3d 757 (8th Cir. 2011).

8th Circuit says court may consider criminal history in sentencing at top of guidelines range. (740) Defendant argued that the district court abused its discretion in considering his criminal history when determining his sentence under 18 U.S.C. § 3553(a). The Eighth Circuit disagreed. Defendant did not cite any authority for his assertion that a court may not consider a defendant’s criminal history separately from the calculation of the applicable Guidelines range. The language of § 3553(a) requires a sentencing court to consider, among other things, “the history and characteristics of the defendant” and the need “to protect the public from further crimes of the defendant” along with the applicable sentence recommended by the Guidelines. Here, the court considered defendant’s criminal history as one of several factors justifying a sentence at the top of the applicable Guidelines range. The court made an individualized assessment of defendant. U.S. v. Hubbard, 638 F.3d 866 (8th Cir. 2011).

8th Circuit says classifying terrorist threats as crime of violence was error, but harmless. (740) The PSR recommended a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on defendant’s prior conviction for terroristic threats under Minnesota Statutes § 609.713. The district court agreed that the terrorist threat conviction was a crime of violence, but only increased the sentence by 12 levels, thus declining the full 16-level increase for a crime of violence. The Eighth Circuit held that the Minnesota terrorist threat conviction was not categorically a crime of violence because the crime includes some offenses that do not have as an element the use of physical force against another, including the sale of more than 10 grams of cocaine in a 90-day period and manufacturing meth in the presence of a child. The error was harmless, however, because the district court clearly indicated that it intended to impose the same sentence under 18 U.S.C. § 3553(a), regardless of whether the appropriate increase under § 2L1.2(b)(1) was eight, 12, or 16. U.S. v. Sanchez-Martinez, 633 F.3d 658 (8th Cir. 2011).

8th Circuit holds that sentence was not impermissibly tainted by court’s personal sense of religion. (740) Defendant was convicted of ten counts of transporting five minor females across state lines for purposes of illegal sexual activity. After imposing a sentence of life imprisonment, the court told the defendant that “one day you will face a higher and greater judge than me. May he have mercy on your soul.” The Eighth Circuit rejected defendant’s claim that his sentence was impermissibly tainted by the judge’s personal sense of religion. Reviewing the entire sentencing transcript and placing the challenged comments in context, it was clear that the judge based its sentence on its analysis of appropriate factors. While the judge’s comments were religious in nature, they did not appear to have been an inappropriate driving force or improper consideration during the court’s sentencing. Indeed, religion was a pervasive theme underlying the trial (defendant abused his power as the girls’ pastor and frightened them into believing that they risked a loss of their salvation if they didn’t surrender to him). U.S. v. Hoffman, 626 F.3d 993 (8th Cir. 2010).

8th Circuit says court did not improperly presume that Guidelines sentence was reasonable. (740) Defendant pled guilty to drug charges, resulting in a guideline range of 262-327 months. In rejecting defendant’s request for a below-Guidelines sentence, the court stated that “a guideline sentence is generally appropriate unless the court can articulate specific reasons why it would not be in this particular case.” The court sentenced defendant to 262 months, finding that the “guideline sentencing system” adequately addressed defendant’s circumstances. The Eighth Circuit held that these comments did not mean that the sentencing court improperly presumed that a sentence within the Sentencing Guidelines range would be reasonable. The court did not state that it presumed the Guidelines were reasonable; rather, it gave “serious consideration” to the Guidelines range “without regard to whether or not it is presumed to be reasonable.” The record as a whole indicated the court was aware of its discretion to vary from the Guidelines range and it did not commit Rita error. U.S. v. Espinoza Bravo, 624 F.3d 921 (8th Cir. 2010).

8th Circuit says court may consider defendants’ status as illegal aliens in sentencing . (740) Defendants pled guilty to methamphetamine charges. After determining that a sentence within the advisory range of 168-210 months was appropriate, it imposed a sentence above the bottom of the range because each defendant committed his offenses while in the country illegally. Defendants argued on appeal that “alienage” is an improper sentencing factor. The Eighth Circuit held that defendant’s illegal alien status was part of the history and characteristics that the district court had to consider when imposing the appropriate sentence. A defendant’s illegal entry into this country was a voluntary act. It was also criminal misconduct. Like other prior criminal conduct, whether or not related to the offense of conviction, it is part of “the history and characteristics of the defendant’ that the district court “shall consider” in imposing an appropriate sentence, 18 U.S.C. § 3553(a)(1), and it may be relevant in a particular case to the factors enumerated in § 3553(a)(2). Judge Bright dissented. U.S. v. Loaiza-Sanchez, 622 F.3d 939 (8th Cir. 2010).

8th Circuit says court was not required to give notice of intent to vary upward. (740) The district court gave notice at the beginning of defendant’s sentencing hearing that it intended to vary upwardly from the guidelines. Defendant argued that the court gave insufficient notice. The Eighth Circuit noted that under existing law, the district court was not required to provide advance notice of its intent to vary upwardly. However, the court said there are some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the government, and in those cases, the more appropriate response is for the district court to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial. U.S. v. Foy, 617 F.3d 1029 (8th Cir. 2010).

8th Circuit concludes that district court did not consider itself bound by Guidelines. (740) Defendant pleaded guilty to second-degree murder, and the district court imposed a within-Guidelines sentence of 121 months. At sentencing, the district court noted that it was “required to impose [the] guidelines that were in effect” when she committed her offense. On appeal, defendant argued that the district court improperly treated the Guidelines as mandatory. The Eighth Circuit held that the district court “evidently misspoke” and that the record as a whole made clear that the court understood its discretion to sentence outside the Guidelines. U.S. v. Deegan, 605 F.3d 625 (8th Cir. 2010).

8th Circuit says court did not improperly assume guideline was based on empirical data. (740) The district court imposed a sentence within the advisory Guidelines range. At sentencing, the court noted that the purpose of the Guidelines is to “ensure that sentences are consistent and uniform throughout the country” and that the Guidelines are based on an analysis of hundreds of thousands of cases. On appeal, defendant argued that the district court improperly assumed that the guideline that provided her sentencing range “was the product of empirical data and national experience.” The Eighth Circuit held that the district court’s statement of the Guidelines’ purpose was accurate and that defendant had failed to show that the district court erred in concluding that the Guideline applicable to defendant was based on empirical data and national experience. U.S. v. Deegan, 605 F.3d 625 (8th Cir. 2010).

8th Circuit presumes court knew it could vary based on disagreement with crack/powder ratio. (740) Defendant was convicted of trafficking in crack cocaine. Based on the amount of crack involved in the offense, defendant’s sentencing range was 97 to 121 months. At sentencing, defendant argued that the district court should vary downward based on the 100-to-1 ratio of crack to powder cocaine. The district court acknowledged its ability to impose a below-Guidelines sentence but did not explicitly state that it could impose a lower sentence if it disagreed with the difference in offense levels for crack and powder cocaine. The Eighth Circuit presumed that the district court knew of its authority and decided not to vary on that ground. U.S. v. Parish, 606 F.3d 480 (8th Cir. 2010).

8th Circuit says error did not affect sentence that was tailored to unique circumstances. (740) Defendant contended that the court erred in giving her a two-level, rather than a three-level, reduction for acceptance of responsibility. Had she received a three-level reduction, the sentencing range would have been 151-188 months, rather than the 168-210 months stated by the district court. Defendant did not raise this argument below, so the appellate court reviewed for plain error. The Eighth Circuit ruled that the error did not affect defendant’s substantial rights because she did not show a reasonable probability of a different sentence. Defendant was sentenced to 124 months. This sentence was based largely on the fact that she supplied the second-most pseudoephedrine of anyone in the conspiracy. The person who supplied the most was sentenced to 151 months, and the person who supplied the third most was sentenced to 100 months. Thus, the sentence was tailored to the unique circumstances of the case. Moreover, the sentence imposed was significantly below the bottom of the miscalculated advisory range, and would also be significantly below the bottom of the properly calculated advisory range. U.S. v. Ault, 598 F.3d 1039 (8th Cir. 2010).

8th Circuit affirms despite error in requiring extraordinary circumstances to justify variance. (740) In rejecting defendant’s request for a below-Guidelines sentence, the district court stated: “In order to go below the Guidelines pursuant to 3553 which are viewed in the Eighth Circuit now as affirmed by the United States Supreme Court as presumptively reasonable, there’s got to be a ground for a variance.” The Eighth Circuit ruled that the sentencing judge’s statements did not indicate that he presumed the Guidelines range was reasonable. The court’s statement merely recognized that a sentence within the Guidelines range is presumed reasonable on the appellate level. However, the court committed Gall error by requiring extraordinary circumstances to justify the requested non-guideline sentence. When defendant asked for the statutory minimum, the court said “I can’t do that,” noting that when the district court gives reductions of “more than 45 or 50 percent off … the Court of Appeals reverses.” However, defendant did not preserve this objection below, and did not show a reasonable probability that he would have received a lower sentence but for the error. Thus, the error did not affect a substantial right and did not meet the plain error test. U.S. v. Bain, 586 F.3d 634 (8th Cir. 2009).

8th Circuit rules court did not err in considering whether requested departure would “stand up” on appeal. (740) Defendant’s advisory guideline range was 360 months to life. He requested a downward variance to the statutory minimum sentence of 240 months, but the district court said it did not believe such a sentence would “stand up” on appeal, and sentenced him instead to 300 months. Defendant argued that in light of the Supreme Court’s decision in Gall v. U.S., 552 U.S. 38 (2007), a district court’s judgment about the appropriate sentence should not be influenced by concerns regarding how the sentence will be viewed on appeal. The Eighth Circuit concluded that it was not error for the district court to consider whether a particular sentence would be reversed on appeal. A district court must consider all of the § 3553(a) factors, to determine whether they support the sentence requested by a party, and if the court concludes that a sentence outside the advisory range is warranted, then the court must ensure that the justification is sufficiently compelling to support the degree of variance. In determining whether a justification is sufficiently compelling, it is permissible for the court to consult appellate decisions as a guide to the range of reasonableness in a particular case. U.S. v. Beane, 584 F.3d 767 (8th Cir. 2009).

8th Circuit says court properly limited its departure analysis to substantial assistance. (740) Defendant was subject to a mandatory life sentence on one drug count, and a 10-mandatory minimum on the second. Recognizing defendant’s lengthy and substantial cooperation, the government moved for downward departures under § 3553(e) and U.S.S.G. § 5K1.1. The district court found that defendant’s assistance was extraordinary. Starting from a baseline sentence of 406 months, the court granted a 60 percent departure and sentenced defendant to 162 months in prison. The court said it would have granted a greater departure based on § 3553(e) sentencing factors but lacked authority to do so under U.S. v. Williams, 474 F.3d 1130 (8th Cir. 2007). Defendant argued that Gall v. U.S., 552 U.S. 38 (2007) overruled Williams, and that the district court erred in not granting a greater departure. The Eighth Circuit held that the district court properly limited its § 3553(e) departure analysis to a consideration of defendant’s substantial assistance, declining to consider the § 3553(a) factors. Gall did not expand the limited departure authority granted by § 3553(e). The court also did not err in selecting 406 months (one month above the highest non-life sentence in the Guidelines table) as the starting point for the 60 percent departure. The resulting sentence was reasonable. U.S. v. Christensen, 582 F.3d 860 (8th Cir. 2009).

8th Circuit reverses where court misunderstood its decretion to vary downward. (740) The district court sentenced defendant to 360 months in August 2007, four months before the Supreme Court’s decision in Gall v. U.S., 552 U.S. 38 (2007). At sentencing, defendant sought a downward variance to the statutory minimum of 240 months. The court refused, noting that the circuit almost always reversed variances unless the government agreed. In response to defendant’s argument about sentencing disparity, the court noted that such variances were usually reversed, and that a variance to the 20-year mandatory minimum would be “automatic reversal.” The Eighth Circuit agreed that the court committed procedural error by doubting its discretion to vary downward to the statutory minimum. The error was not harmless. The court indicated that defendant’s claim for a variance had “some merit,” but it seemed to feel constrained by Eighth Circuit practice. On remand, the district court may find that the sentence it originally imposed was appropriate, but the court should have the chance to make that decision in the first instance. U.S. v. Smith, 573 F.3d 639 (8th Cir. 2009).

8th Circuit holds 480-month sentence for drug dealer was reasonable. (740) A jury convicted defendant of methamphetamine charges. Although the Guidelines called for a life sentence, the court sentenced defendant to 480 months. Defendant argued that the court did not specifically apply all of the § 3553(a) sentencing factors to him, did not adequately explain the rationale for the sentence, and improperly likened defendant’s case to that of another drug trafficker The Eighth Circuit held that the 480-month sentence was reasonable. The district court expressly considered a number of the relevant § 3553(a) factors and explained how each factor weighed for or against defendant. The court did state that it was imposing its 480-month sentence because it likened defendant to “a substantial heroin dealer” the court previously sentenced to 420 months’ imprisonment. Defendant complained that the court should have given defendant an even more dramatic downward variance because the heroin dealer was involved with weapons and defendant was not. The panel found no basis for concluding that the district court’s comparison was in any way improper or an abuse of discretion. U.S. v. Cruz-Zuniga, 571 F.3d 721 (8th Cir. 2009).

8th Circuit holds that remand did not require court to grant 40% downward departure for substantial assistance. (740) Defendant’s guideline range was 97-121 months. Based on the government’s § 5K1.1 motion, the district court originally sentenced defendant to 24 months, but the Eighth Circuit reversed because the court considered matters unrelated to defendant’s assistance. On remand, the district court first granted a 40% downward departure to 58 months based on defendant’s substantial assistance, and then granted a downward variance to 24 months. The Eighth Circuit again reversed and remanded for resentencing by a different judge. The district court abused its discretion in granting the downward variance because the court considered improper factors such as defendant’s post-sentencing rehabilitation. The new court found that it was not bound by the 40% substantial assistance departure, and granted defendant only a 20% substantial assistance departure. The Eighth Circuit agreed that its previous remand did not require the district court to grant the 40% departure. The remand was a general remand for resentencing. The opinion did not place any limitations on the discretion of the newly assigned district judge in resentencing defendant. U.S. v. Pepper, 570 F.3d 958 (8th Cir. 2009), affirmed in part, vacated in part, Pepper v. U.S., 131 S.Ct. 1229 (2011).

8th Circuit remands to resolve confusion between variances and departures. (740) The district court denied defendant’s motion for a downward variance, finding no factual basis for a departure, and noting that a departure would “run afoul of the statutory factors under 18 U.S.C. § 3553(a).” After the prosecutor noted that the court had referred to the terms “departure” and “variance” interchangeably; the court clarified that it was referring to a “variance.” Nonetheless, the Eighth Circuit ruled that the court’s comments supported defendant’s claim that the court improperly equated a downward variance with a downward departure, and suggested the district court did not properly exercise its discretion in considering defendant’s motion for a downward departure. Because the record was unclear, the court remanded the case for resentencing. Although the court has applied departure precedent when addressing a variance, the panel held that departure precedent does not bind district courts with respect to variance decisions, it is merely persuasive authority. U.S. v. Chase, 560 F.3d 828 (8th Cir. 2009).

8th Circuit finds court plainly erred in applying presumption of reasonableness to guidelines. (740) Although the district court was clearly troubled about sentencing defendants within the guideline range, the court imposed sentences at the low end of the guidelines range. The court noted that it could either “throw the guidelines away or … apply the guidelines…. However, the Eighth Circuit has stressed the importance of applying the guidelines unless there are just circumstances which take the case completely away from the guidelines….” The Eighth Circuit held that the district court committed a plain procedural error in applying a presumption of reasonableness to the Sentencing Guidelines. A rule that the guidelines must be applied “unless there are just circumstances which takes the case completely away from the guidelines” or unless the guideline sentence is “totally unreasonable,” is the functional equivalent of an impermissible presumption of reasonableness. U.S. v. Alexander, 556 F.3d 890 (8th Cir. 2009).

8th Circuit holds that application of presumption of reasonableness was harmless error. (740) At sentencing, the district court stated its belief that it was “obligated under 8th Circuit law to find the sentencing guidelines presumptively reasonable.” Under Rita v. U.S., 551 U.S. 338 (2007), an appellate court may apply a presumption of reasonableness when conducting a substantive review of a sentence within the advisory range, but the sentencing court may not. The court’s error is described in Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586 (2007) as a “significant procedural error.” The Eighth Circuit ruled that harmless error review was applicable to the procedural sentencing error. The panel further concluded that that government met its burden of showing that the procedural error did not substantially influence the outcome of the sentencing proceeding. The court’s statement made clear that whether or not it felt constrained by a presumption of reasonableness, it would have imposed the same sentence. U.S. v. Henson, 550 F.3d 739 (8th Cir. 2008).

8th Circuit finds no error in court’s discussion of departure and variance factors. (740) Defendant argued that at sentencing the district court conflated the analyses for a departure from the Guidelines versus a variance from the Guidelines. A departure occurs within the context of the Guidelines themselves which prescribe that the sentencing court should depart from the Guidelines range in certain situations, as when important considerations of a particular case are not adequately taken into account by the Guidelines. A variance, on the other hand, results from a separate analysis of whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to §3553(a). The Eighth Circuit has urged courts to consider the departure and variance questions sequentially in order to facilitate appellate review. Here, the district court did distinguish between circumstances that would justify a departure and those that would justify a variance, but since some of the same factors were urged as relevant in both regards, occasionally the court’s discussion related to both analyses at the same time. The Eighth Circuit found no error. U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008).

8th Circuit holds that application of presumption of reasonableness was harmless error. (740) At sentencing, the district court stated its belief that it was “obligated under Eighth Circuit law to find the sentencing guidelines presumptively reasonable.” Under Rita v. United States, 127 S.Ct. 2456 (2007), an appellate court may apply a presumption of reasonableness when conducting a substantive review of a sentence within the advisory range, but the sentencing court may not. The court’s error is described in Gall v. United States, 128 S.Ct. 586 (2007) as a “significant procedural error.” The Eighth Circuit ruled that harmless error review was applicable to the procedural sentencing error. The panel further concluded that that government met its burden of proof by showing that the procedural error did not substantially influence the outcome of the sentencing proceeding. The court’s statement made clear that whether or not it felt constrained by a presumption of reasonableness, it would have imposed the same sentence. U.S. v. Henson, __ F.3d __ (8th Cir. Nov. 24, 2008) No. 07-1993.

8th Circuit reverses where court gave improper weight to Guidelines’ 100:1 crack sentencing ratio. (740) Defendant pled guilty to crack cocaine charges. At the time he was sentenced, the law in the Eighth Circuit was that a sentencing court could not sentence outside the Guidelines based on its disagreement with the crack/powder sentencing disparity. At sentencing, the judge commented that “Congress still recognizes [crack] as being substantially more serious than powder cocaine. So I have to take a look at the seriousness of the offense.” A month after defendant was sentenced, the Supreme Court decided Kimbrough v. U.S., 128 S.Ct. 558 (2007), which held that a sentencing judge may consider the crack/powder disparity at sentencing. The Eighth Circuit found that the judge’s comments, when understood in the context of the law at the time that it sentenced defendant, referred to the fact that Congress had not amended the 100:1 ratio in §841(b). In light of Kimbrough, the district court plainly erred by giving undue weight to the congressional policy reflected in §841(b) when it determined the seriousness of defendant’s offense. U.S. v. Davis, 538 F.3d 914 (8th Cir. 2008).

8th Circuit says firearms sentence at top of guideline range properly considered §3553 factors. (740) Defendant pled guilty to receipt of firearms while under indictment, and received an 18-month prison sentence. The sentence fell at the top of his 12-18 month guideline range, and the Eighth Circuit held that the district court adequately considered the §3553(a) factors. The court need not give a mechanical recitation of the §3553(a) factors, “particularly when a judge elects simply to apply the advisory guideline range to a particular case.” The judge acknowledged its consideration of the PSR, argument of counsel, and defendant’s statement to the court. Further, the court made a particular note of defendant’s youth, his history, the seriousness and circumstances of the instant offense, and its belief that defendant would benefit from programs offered by the Bureau of Prisons, all relevant factors listed in §3553(a). U.S. v. Hayes, 535 F.3d 907 (8th Cir. 2008).

8th Circuit says Kimbrough did not authorize a sentence below mandatory minimum. (740) Defendant was convicted of crack cocaine charges. He faced a mandatory minimum sentence of 60 months, see 21 U.S.C. § 841(b)(1)(B), and was originally sentenced to 70 months in prison. In a motion to reduce his sentence under § 3582(c)(2), based on Amendment 706 (which reduced the offense levels for crack offenses), the district court sentenced defendant to a new sentence of 60 months. Defendant appealed, but the Eighth Circuit affirmed, holding that the district court properly set the bottom of the amended guideline range at 60 months, the statutory mandatory minimum sentence. The district court lacked the authority to reduce defendant’s sentence any further, even after Kimbrough, which does not authorize district courts to sentence below the congressionally mandated statutory minimum sentences. U.S. v. Black, 523 F.3d 892 (8th Cir. 2008).

8th Circuit finds no prejudice from erroneous presumption of reasonableness. (740) At sentencing, in response to defense counsel’s argument that the guideline range was unreasonable high, the district court stated that the “guideline range is presumptively a reasonable range.” After considering the other § 3553(a) factors, including defendant’s violent criminal history, the court stated that this was a typical illegal re-entry case, and that a sentence within the guideline range was a reasonable sentence. The court then sentenced defendant to 46 months, the low end of the applicable guideline range. Defendant did not object to the district court’s presumption that the Guidelines were reasonable. Reviewing for plain error, the Eighth Circuit held that the error did not affect defendant’s substantial rights. The district court considered the factors in 18 U.S.C. §3553(a), and said enough to satisfy the appellate court that it had considered the defendant’s arguments and had a reasonable basis for exercising its own legal decision-making authority. Defendant did not point to any evidence that the district court was inclined to impose a lighter sentence. U.S. v. Alvizo-Trujillo, 521 F.3d 1015 (8th Cir. 2008).

8th Circuit remands crack sentence for court to consider effect of Kimbrough. (740) Defendant was convicted of crack conspiracy charges and appealed in part on the ground that his 262-month sentence was unreasonable. At sentencing, the district court expressed its personal dissatisfaction with the crack cocaine guidelines, stating that if it could, it would use a different ratio than 100-to-1. The Eighth Circuit remanded to give the district court an opportunity to indicate whether it would have imposed the same sentence if it had known it had discretion to deviate from the 100-to-1 crack to cocaine sentencing ratio. See Kimbrough v. U.S., 128 S. Ct. 558 (2007). The statements made by the district court demonstrated that it was very concerned about the crack/powder sentencing disparity, but felt it could not vary from the Guidelines on that basis. U.S. v. Lee, 521 F.3d 911 (8th Cir. 2008).

8th Circuit finds plain error in applying presumption of reasonableness did not affect substantial rights. (740) Defendant argued for the first time on appeal that the district court erred at sentencing by applying a presumption of reasonableness to the Guidelines, and also erred by assuming that its duty was to impose a reasonable sentence. The Eighth Circuit agreed that the court applied a presumption of reasonableness when it said “I cannot find . . . that the presumptively reasonable guidelines in this case are not reasonable.” This was plain error. However, defendant could not establish prejudice. There was no indication that the district court would have sentenced defendant more favorably had it not presumed the guidelines were reasonable. As to defendant’s claim that the court erred by assuming its duty was to impose a reasonable sentence, the court followed the proper procedure. It first calculated the guidelines range, asked for departures, considered the § 3553(a) factors, and imposed a sentence. There was no plain error. U.S. v. Vaughn, 519 F.3d 802 (8th Cir. 2008).

8th Circuit holds that error in applying presumption of reasonableness did not prejudice defendant. (740) At sentencing, the district court noted that the Court of Appeals was “very tough” on variances, that a sentence with the Guidelines is presumed to be reasonable, and sentences below the guideline ranges were “not easily accomplished.” The Eighth Circuit noted that in light of the Supreme Court’s recent opinions in Rita v. United States, 127 S. Ct. 2456 (2007) and Gall v. United States, 128 S. Ct. 586 (2007), this was error, and the error was plain. However, the error did not affect defendant’s substantial rights. The court made comments indicating that defendant was one of the big time drug dealers in town, and that it found no reason to sentence outside the Guidelines. Given the court’s view of defendant’s actions, defendant did not meet his burden of proving a reasonable probability that he would have received a lighter sentence. U.S. v. Burnette, 518 F.3d 942 (8th Cir. 2008).

8th Circuit affirms despite error in treating Guideline sentence as presumptively reasonable. (740) 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 holds that court lacked authority to impose suspended sentence. (740) Defendant pled guilty to drug charges, resulting in an advisory guideline range of 46-57 months’ imprisonment. The district court sentenced defendant to 24 months, but then “suspended the execution” of that sentence, and placed her on three years’ probation. The Eighth Circuit reversed. The statutory authority to “suspend” the imposition or execution of a sentence in order to impose a term of probation was abolished upon implementation of the Sentencing Guidelines. Although the Guidelines have been declared effectively advisory as a remedy for Sixth Amendment violations caused by the mandatory nature of the Guidelines, that remedial action did not restore a district court’s authority to “suspend” terms of imprisonment. U.S. v. Wysong, 516 F.3d 666 (8th Cir. 2008).

8th Circuit reverses where district court applied presumption of reasonableness to Guidelines. (740) Defendant pled guilty to being a felon in possession of a firearm, and received a 37-month sentence. He argued that the district court improperly interpreted circuit precedent to apply a presumption of reasonableness to the applicable guideline range and to preclude a variance in the absence of extraordinary circumstances. However, as the Supreme Court made clear in Rita v. U.S., 127 U.S. (2007), the presumption of reasonableness is an appellate presumption and the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. The record here made clear that the district court did not believe it had the discretion to vary from the applicable guideline range. Accordingly, the Eighth Circuit reversed and remanded for resentencing. U.S. v. Huff, 514 F.3d 818 (8th Cir. 2008) No. 04-41323.

8th Circuit says Booker does not allow sentence below mandatory minimum, absent substantial assistance. (740) 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 finds no improper government motive for refusal to make § 5K1.1 motion. (740) 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 (8th Cir. 2008).

8th Circuit says objection after sentence not necessary to preserve claim that sentence is unreasonably long. (740) 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 under-represented criminal history did not justify doubling sentence. (740) 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 finds guideline sentence for second-degree murder reasonable. (740) 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 finds no abuse of discretion in sentence at bottom of guideline range. (740) 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 holds record did not permit meaningful review of variance sentence. (740) 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 upward variance based on criminal history consistent with decision not to depart. (740) 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 finds error in considering post-sentencing rehabilitation was not harmless. (740) 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 upholds sentence at bottom of guideline range absent showing that court failed to consider statutory sentencing factors. (740) 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 finds career offender sentence reasonable. (740) Defendant was convicted of possessing about four grams of cocaine base, and was sentenced to 151 months’ imprisonment, which was at the bottom of his advisory range of 151-188 months. He had been classified as a career offender, and defendant argued that his sentence was unreasonable because a Sentencing Commission study indicated that the career offender provision resulted in harsher sentences for black defendants. The Eighth Circuit held that the sentence was reasonable. The court properly determined that defendant qualified as a career offender, properly calculated the advisory guideline range, specifically reviewed the § 3553(a) factors, considered whether to grant a variance, and imposed a sentence at the bottom of the guideline range. The district court’s thorough consideration of defendant’s case convinced the court that the sentence imposed was reasonable. U.S. v. Moore, 481 F.3d 1113 (8th Cir. 2007).

8th Circuit finds 30 months unreasonable for defendant who traveled to have sex with minor. (740) Defendant, a 21-year-old man, twice traveled from California to Iowa to have sex with a 14-year-old girl he met on the Internet. He pleaded guilty to two counts of traveling in interstate commerce to have sex with a minor, in violation of 18 U.S.C. § 2423(b). Defendant’s guideline range was 57-71 months, but the district court relied on the 18 U.S.C. § 3553(a) factors to impose a sentence of 30 months, reasoning that defendant was young, had a supportive family, had otherwise lived a responsible life, and would be unlikely to re-offend. The court also noted that residential restrictions and the requirement to register as a sex offender would be a serious punishment. On the government’s appeal, the Eighth Circuit held that the 30-month sentence was unreasonable. The court found that the district court gave undue weight to defendant’s age and lack of criminal history and failed to give sufficient weight to the age difference between defendant and the victim and the injury caused to the victim and her parents. The court of appeals also found that the collateral consequences of conviction did not make defendant’s case unusual or merit significant weight. U.S. v. Garate, 482 F.3d 1013 (8th Cir. 2007).

8th Circuit holds court did not abuse discretion in imposing higher sentence than one given to co-defendant. (740) Defendant pled guilty to methamphetamine conspiracy charges. He received a 168-month sentence, which was at the bottom of the advisory sentencing range. He argued that the sentence was unreasonable because his co-conspirator, who was equally culpable, had received a sentence of 70 months’ imprisonment. Under 18 U.S.C. § 3553(a)(6), a sentencing court must consider the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. The Eighth Circuit found any sentencing disparity was not “unwaranted.” The co-conspirator cooperated, and received a § 5K1.1 downward departure. Disparity in sentences between a defendant who provided substantial assistance and one who provided no assistance is not “unwarranted.” In addition, the co-conspirator was in a lower criminal history category, which resulted in a lower advisory guideline range than defendant despite being charged with the same offense. U.S. v. Gallegos, 480 F.3d 856 (8th Cir. 2007).

9th Circuit, en banc, reverses Millennium Bomber’s 22-year sentence as too short. (740) 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 says variance from child porn Guidelines may be based on policy disagreement. (740) Since the Sentencing Commission first promulgated Guidelines for child pornography offenses, they have been revised nine times. Most of the revisions resulted from congressional directives to the Commission, and in one case Congress directly enacted amendments to the Guidelines. Because the child porn Guidelines are not the result of empirical study by the Commission and instead reflect congressional mandates, the Ninth Circuit held that district courts may vary from the child pornography Guidelines in § 2G2.2 based on a policy disagreement with them, and not simply based on an individualized determination that the Guidelines yield an excessive sentence in a particular case. U.S. v. Henderson, 649 F.3d 955 (9th Cir. 2011).

9th Circuit finds sentencing court properly used Guidelines range as starting point for sentence. (740) At defendant’s sentencing for bank robbery, the district court calculated the Guidelines range at 108 to 135 months. In imposing sentence, the court stated that its starting point was the Guidelines range, but it mentioned that “in normal circumstances,” its sentence might involve “working down” from the statutory maximum of 180 months. After noting “very troubling, aggravating factors,” the court imposed a sentence of 180 months. The Ninth Circuit held that the district court properly used the Guidelines range as the initial benchmark and remained cognizant of that range throughout sentencing. U.S. v. Burgum, 633 F.3d 810 (9th Cir. 2011).

9th Circuit rejects claim that guidelines were treated as mandatory in civil rights case. (740) At defendant’s sentencing for civil rights offenses, the district court stated that it had reviewed and considered the factors set forth in 18 U.S.C. § 3553(a) and that it understood that the guidelines were not binding on the court. The court also discussed several of the § 3553(a) factors, before imposing a within-guidelines sentence of 46 months. The Ninth Circuit held that the district court had not treated the guidelines as mandatory and that the court had given an adequate explanation for the sentence imposed. U.S. v. Armstrong, 620 F.3d 1172 (9th Cir. 2010).

9th Circuit holds § 3553(a) does not authorize sentence below mandatory minimum. (740) Defendant pleaded guilty to a drug-trafficking offense carrying a ten-year mandatory minimum. Her guidelines range was 78 to 97 months. Defendant argued that there was a conflict between 18 U.S.C. § 3553(a), which requires a court to impose the lowest sentence necessary to achieve Congress’s sentencing goals, and the mandatory minimum, and that § 3553(a) gave the court authority to impose a sentence below the mandatory minimum. The Ninth Circuit held that § 3553(a) does not allow a district court to impose a sentence below the mandatory minimum. U.S. v. Wipf, 620 F.3d 1168 (9th Cir. 2010).

9th Circuit allows identity theft sentence to be reduced to offset mandatory minimum. (740) Under 18 U.S.C. § 1028A, a defendant who commits aggravated identity theft is subject to a two-year mandatory sentence that must be imposed consecutively to the underlying “predicate” identity theft offense. Defendant pleaded guilty to mail fraud, theft of government property, tax evasion, and aggravated identity theft. At sentencing, the district court imposed the two-year mandatory minimum required by § 1028A and a consecutive 108-month within-Guidelines sentence for defendant’s remaining offenses. Defendant argued that the district court failed to recognize that it had the authority to impose a sentence below the Guidelines range in light of the two-year mandatory minimum required by § 1028A. The Ninth Circuit agreed, holding that a court has discretion to reduce defendant’s sentence for a non-predicate offense to offset the two-year mandatory minimum. U.S. v. Wahid, 614 F.3d 1009 (9th Cir. 2010).

9th Circuit finds no error in failing to announce extent of departure before varying upward. (740) Based on his conviction for sexual exploitation of a minor, defendant was subject to a 120-month minimum mandatory sentence. The government moved for a downward departure based on defendant’s substantial assistance to the government. The district court granted that motion, but did not state the amount that it would depart downward. Instead, the court announced that it was varying upward because of the heinous nature of defendant’s offense and imposed a sentence of 160 months. On appeal, defendant argued that the district court was required to state the amount that it was departing downward based on defendant’s substantial assistance before it varied upward. The Ninth Circuit rejected this argument and held that a district court need not announce its post-departure sentence before varying upward. U.S. v. Evans-Martinez, 611 F.3d 635 (9th Cir. 2010).

9th Circuit rejects use of “parsimony clause” to set statutory maximum. (740) Defendant pleaded guilty to bringing marijuana across the border into the U.S. Her Guidelines range was 15 to 21 months. At sentencing, defendant asked for a sentence of probation, arguing that a probationary sentence was required by the “parsimony clause” of 18 U.S.C. § 3553(a), which states that a court “shall impose” a sentence sufficient, but no greater than necessary, to comply with the factors set forth in § 3553(a)(2). Defendant asserted that a sentence that is sufficient to comply with the § 3553(a) factors is the statutory maximum and that a higher sentence would violate Apprendi. The Ninth Circuit held that the offense of conviction, not § 3553, sets the statutory maximum. Because defendant pleaded guilty to an offense carrying a five-year maximum, Apprendi did not limit the court’s ability to impose a 15-month sentence. U.S. v. Chavez, 611 F.3d 1006 (9th Cir. 2010).

9th Circuit says court adequately explained within-Guidelines sentence for illegal reentry. (740) Defendant pleaded guilty to illegal reentry after deportation. At sentencing, the district court calculated defendant’s sentencing range as 41 to 51 months. The court imposed a sentence of 41 months, explaining that it had reviewed the factors set forth in 18 U.S.C. § 3553(a) and that it believed a sentence at the low end of the Guidelines range was appropriate. The Ninth Circuit rejected defendant’s argument that the district court had failed to adequately explain the sentence. The court stated that it was sufficient that the district court had listened to defendant’s arguments and stated that it reviewed the § 3553(a) factors. U.S. v. Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010).

9th Circuit finds no plain error in refusal to consider disparity with state sentence. (740) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court imposed a 77-month sentence. The court noted that the sentence was higher than defendant might have received in state court for the same offense, but said that it was not permitted to consider the state court sentence. Defendant did not object to the district court’s ruling. Sitting en banc, the Ninth Circuit held that the district court did not commit plain error by refusing to consider the disparity between the Guidelines sentence and the sentence defendant would have received in state court. U.S. v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en banc).

9th Circuit says sentencing court not required to address mitigation arguments. (740) Defendant was convicted after a trial of running a fraudulent investment scheme. At sentencing, he asked the district court to impose a sentence below the Guidelines range based on his background and family circumstances, among other factors. The district court rejected two of defendant’s grounds for a variance from the Guidelines range, but it nevertheless imposed a below-Guidelines sentence. On appeal, defendant argued that the district court committed procedural error by failing to address all the mitigating circumstances that he advanced. The Ninth Circuit rejected this argument, holding that the district court was not required to provide additional explanation for its sentence. U.S. v. Treadwell, 593 F.3d 990 (9th Cir. 2010).

9th Circuit says high restitution order does not justify lower prison sentence. (740) Defendant executed a Ponzi scheme that defrauded about 1,700 investors or about $38 million. At sentencing, the district court imposed a sentence of 300 months and ordered defendant to pay a large amount of restitution. On appeal, defendant argued that the district court abused its discretion by imposing a prison sentence that assured that restitution would never be paid. The Ninth Circuit held that defendant’s argument “borders on the frivolous,” because it would result in the lowest sentences for the offenses causing the greatest loss. U.S. v. Treadwell, 593 F.3d 990 (9th Cir. 2010).

9th Circuit says district court failed to justify variance in tax prosecution. (740) Defendant pleaded guilty to filing false tax returns. Under the Guidelines, he faced a minimum sentence of 27 months, and the presentence report calculated that he owed $1.2 million in restitution to the IRS. At sentencing, defendant stated that he could pay $600,000 in restitution immediately and that he could pay the remainder in the next 12 months by borrowing money from his father’s companies. The district court imposed a combination of probation and supervised release. The court reasoned that prison sentences do not deter tax offenders, defendant had promised to pay half the restitution immediately and the remainder in a year, and defendant’s offenses had occurred seven years earlier. On the government’s appeal, the Ninth Circuit held that the district court had failed to adequately explain its sentence. The court noted that the district court record was ambiguous on whether defendant’s ability to pay restitution would be affected by his incarceration, the offenses were “old” only because of the time it took to discover them, under the Guidelines a district court must consider the deterrent effect of a sentence, defendant had not agreed to pay the interest and penalties owed to the IRS, and defendant’s payment of restitution was required by law and should not be a basis to reduce his sentence. U.S. v. Bragg, 582 F.3d 965 (9th Cir. 2009).

9th Circuit finds district court properly considered arguments for lenient sentence. (740) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. That conviction arose out of defendant’s attempt to reenter the U.S. when he was deported after living in the same U.S. community for 50 years. At sentencing, he argued that the district court should impose a lenient sentence because of defendant’s assimilation into the U.S. and his difficulty in adjusting to life in Mexico after living in the U.S. for 50 years. In imposing sentence, the district court stated that it had considered all of the factors set forth in 18 U.S.C. § 3553(a) and that it recognized that the facts of the case were not particularly aggravating. The court then imposed a sentence within the Guidelines range. The Ninth Circuit held that the district court had adequately considered defendant’s arguments and fulfilled its procedural obligations in imposing sentence. U.S. v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009).

9th Circuit issues new opinion reversing three-year-old decision that vacated sentence. (740) In U.S. v. Diaz-Argueta, 446 F.3d 1167 (9th Cir. 2006), the Ninth Circuit vacated the sentence of a defendant convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, because the district court failed to explicitly address the factors set forth in 18 U.S.C. § 3553(a) or give any reason for the sentence it imposed. Nearly three years later, the court withdrew that opinion and issued an amended opinion that upheld the sentence. The amended opinion noted that in imposing sentence the district court had stated that it had considered the PSR, the comments of counsel, and the memorandum filed on defendant’s behalf. The panel concluded that the district court had “properly considered the § 3553(a) factors.” U.S. v. Diaz-Argueta, 564 F.3d 1047 (9th Cir. 2009).

9th Circuit finds unreasonable one-month reduction in sentence after finding of unreasonableness. (740) Defendant was convicted of misappropriation of federal program funds, in violation of 18 U.S.C. § 666(a)(1)(A). The district court sentenced defendant to 16 months’ imprisonment. On appeal, the Ninth Circuit held that defendant’s sentence was substantively unreasonable because the district court failed to take into account her lack of criminal record, prompt return of the funds, remorse prior to the filing of criminal charges, and belief that the stolen funds represented compensation for work she had performed. On remand, the district court stated that it believed its original sentence was reasonable and imposed a 15-month sentence. A divided panel of the Ninth Circuit held that the district court’s imposition of sentence violated “both the spirit and express instructions” of its mandate. The court ordered the case reassigned to a different judge on remand. U.S. v. Paul, 561 F.3d 970 (9th Cir. 2009).

9th Circuit finds that judge’s comments did not show it was ignoring Guidelines. (740) At defendant’s sentencing on fraud charges, the district court calculated the Guideline range, but then immediately told defendant that a reasonable sentence would be above the Guideline range. The court then said, “I have set the guidelines aside because we are outside the heartland.” On appeal, defendant argued that the district court had committed procedural error by failing to use the Guidelines to determine the sentence imposed. The Ninth Circuit held that taken as a whole the district court’s explanation made clear that it believed a departure from the Guidelines was appropriate, not that it was ignoring the Guidelines. U.S. v. Hilgers, 560 F.3d 944 (9th Cir. 2009).

9th Circuit reviews reasonableness for abuse of discretion despite failure to object at sentencing. (740) 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 finds plain error in failure to explain reasons for sentence. (740) Defendant pleaded guilty pursuant to an agreement that obligated the government to recommend a 108-month sentence. The government recommended that sentence in its sentencing memoranda, but at sentencing, the court imposed a 121-month sentence without giving the government an opportunity to speak, and without explaining its reasons for the sentence. Defendant did not object to the district court’s failure to explain its sentence in light of the factors set forth in 18 U.S.C. § 3553(a). Nevertheless, the Ninth Circuit held that the district court committed plain error that must have affected the outcome of the proceedings. Accordingly, the court remanded for resentencing. U.S. v. Waknine, 543 F.3d 546 (9th Cir. 2008).

9th Circuit reiterates that departures are now subject only to reasonableness review. (740) The district court departed upward in sentencing defendant for eco-terrorism arson offenses. On appeal, defendant argued that the departure was unwarranted under § 5K2.0 because there were no aggravating circumstances not adequately taken into account by the Sentencing Commission. Reiterating its ruling in earlier decisions, the Ninth Circuit held that it would treat the “so-called departure” as an exercise of the court’s post-Booker discretion to impose a sentence outside the Guidelines range. The court explained that the “old departure scheme is relevant today only insofar as factors that might have supported (or not supported) a departure may tend to show that a non-guidelines sentence is (or is not) reasonable.” U.S. v. Tankersley, 537 F.3d 1100 (9th Cir. 2008).

9th Circuit amends opinion to delete holding that departure Guidelines remain “operative” and that refusal to depart is unreviewable. (740) In U.S. v. Dallman, 526 F.3d 551 (9th Cir. 2008), the court rejected defendant’s claim that the district court erred in refusing to depart downward based on aberrant behavior. In that opinion, the court held that the departure guidelines remain “operative” and that the denial of a motion for a downward departure remains unreviewable. In an amended opinion, the court deleted those two statements. Instead, the court held that it could consider defendant’s contention that the district court erred in failing to depart on aberrant-behavior grounds as part of its review of the overall reasonableness of the sentence. U.S. v. Dallman, 533 F.3d 755 (9th Cir. 2008).

9th Circuit amends 2006 opinion holding that notice requirement survives Booker. (740) Federal Rule of Criminal Procedure 32(h) requires a district court to give a defendant notice before it departs upward from the guideline range on a ground not identified in the presentence report or the government’s sentencing memorandum. In June 2006, the Ninth Circuit held that Rule 32(h) survives the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), and requires a district court to give notice of its intent to depart from the range suggested by the Sentencing Guidelines. On July 2, 2008, the court issued a new opinion finding that its decision was not inconsistent with Irizarry v. U.S., 128 S.Ct. 271 (2008), which held that a court need not give notice before it relies on the factors set forth in 18 U.S.C. § 3553(a) to vary from the Guideline range. U.S. v. Evans-Martinez, 530 F.3d 1164 (9th Cir. 2008).

9th Circuit says cost of incarceration may not be considered under § 3553(a) factors. (740) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, he argued that the court should impose a shorter sentence because of the cost of incarcerating him. The district court held that the cost of incarceration was not a proper consideration under 18 U.S.C. § 3553(a). The Ninth Circuit agreed that none of the factors enumerated in § 3553(a) allows a court to consider the cost of incarcerating the defendant. U.S. v. Tapia-Romero, 523 F.3d 1125 (9th Cir. 2008).

9th Circuit declines presumption of reasonableness but says guidelines sentence will usually be reasonable. (740) The en banc Ninth Circuit rejected a presumption of reasonableness for guideline sentences, but said that such a presumption was “more linguistic than practical” in any event because “in the overwhelming majority of cases, a guideline sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” The opinion went on to describe, in a series of bullet points, the procedure that the district court must follow in imposing a sentence after the Supreme Court’s recent opinions in Rita, Gall, and Kimbrough. Chief Judge Kozinski concurred, joined by Judge Kleinfeld, stating that despite the opinion’s “quixotic” claim that it was not applying a presumption of reasonableness, “its clear that this is precisely what the opinion does.” Judge Silverman concurred separately, arguing that the Supreme Court in Gall v. U.S., 552 U.S. 38, 120 S.Ct. 586, 597 (2007) held that each panel was entitled to decide whether to apply a presumption of reasonableness. It did not invite the circuits to split over whether to apply a presumption of reasonableness. U.S. v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc).

9th Circuit does not assess reasonableness of each step of Guideline application. (740) 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, 517 F.3d 1154 (9th Cir. 2008).

9th Circuit finds 18-year drug-trafficking sentence did not cause an unreasonably disparity. (740) 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 says 262-months for child porn offense was reasonable. (740) 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).

10th Circuit says generalized argument not sufficient to warrant variance based on fast-track disparity. (740) In U.S. v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011), the Tenth Circuit held that “where the circumstances warrant, a district court in a non-fast-track district has discretion to vary from the applicable guideline range based on fast-track sentence disparities…” However, a “generalized argument” in which a defendant simply points to the disparity created by fast-track programs “is alone not sufficient to justify such a variance.” Here, the Tenth Circuit found that defendant presented only such a “generalized argument,” and thus, found no error in the district court’s refusal to grant the variance. U.S. v. Lopez-Avila, 665 F.3d 1216 (10th Cir. 2011).

10th Circuit allows courts to vary based on fast-track sentencing disparities. (740) Defendant, convicted of illegal reentry after deportation, moved for a below-guidelines sentence based on the sentencing disparity created by the absence of a fast-track program in the district. Such variances were barred by the Tenth Circuit in U.S. v. Martinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006). Here, the Tenth Circuit overruled Martinez-Trujillo, holding that (1) where the circumstances warrant, a district court in a non-fast-track district has discretion to vary from a defendant’s guideline range based on fast-track disparities, but (2) a defendant bears the initial burden of showing entitlement to a variance based on fast-track sentencing disparities. Here, the defendant provided no evidence to warrant a variance. At a minimum, a defendant must show that if he were charged with the same crime in a fast-track district, he would qualify for fast-track treatment. The panel found it unnecessary to determine the exact showing a defendant must make. A “generalized argument” in which a defendant simply points to the disparity created by fast-track programs is not sufficient by itself to justify a variance. U.S. v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011).

10th Circuit allows judicial notice of road where drunk driving accident occurred. (740) Defendant killed three young men and seriously injured a young woman in a car accident that occurred while she was driving drunk. In determining that defendant’s actions were extraordinarily reckless, the district court took judicial notice of the fact that the highway was a well-traveled road, and as a long-time resident, defendant would know this. The Tenth Circuit found no procedural error in the court’s consideration of the general nature of the road in it recklessness analysis. The court’s findings combined with the drunk driver’s choice to drive on this road were relevant to recklessness and related, under § 3553(a)(1), to the nature and circumstances of the offense. U.S. v. Lente, 647 F.3d 1021 (10th Cir. 2011).

10th Circuit says sentence manipulation claim is not governed by pre-Booker standard for departure. (740) Defendant sought a variance based on alleged sentencing factor manipulation by government agents and application of the § 3553(a) factors. He contended that the court had discretion to consider sentencing factor manipulation or entrapment as a basis for a variance under 18 U.S.C. § 3553(a). Before Booker, the court analyzed claims of sentencing entrapment or manipulation under the rubric of “outrageous government conduct.” The Tenth Circuit, agreeing with the Eighth Circuit’s holding in U.S. v. Torres, 563 F.3d 731 (8th Cir. 2009), ruled that Booker did not alter the standard for defendant to succeed on a claim of outrageous governmental conduct, but a defendant’s claim of sentencing factor manipulation may also be considered as a request for a variance under the § 3553(a) factors. Defendant requested a variance rather than a departure, and there was no indication that the court applied the stricter standard for a departure to defendant’s request. The court here did not abuse its discretion by denying defendant’s request for a variance. U.S. v. Beltran, 571 F.3d 1013 (10th Cir. 2009).

10th Circuit reverses increase for being “prohibited person” as plain error. (740) 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. (740) 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 holds lack of written statement of reasons did not require reversal. (740) The district court imposed a downward variance but did not, as required by §3553(c)(2), include a written statement in the order of judgment and commitment that explained its specific reasons for the variance. The government did not raise this issue prior to filing its appeal. The district court committed plain error by neglecting to enter a written statement of reasons, which satisfied the first two prongs of the plain error test. However, the Tenth Circuit held that the government did not meet its burden of showing that its substantial rights were affected by the error. It is the verbal act of sentencing, not its later confirmation in the written order, that formally imposes a sentence. Although a 2003 amendment specifically added the writing requirement to §3553(c)(2), and gave appellate courts the power to remand upon a district court’s failure to comply, this does not require the appellate court to presume that substantial rights are affected. U.S. v. Mendoza, 543 F.3d 1186 (10th Cir. 2008).

10th Circuit affirms downward variance despite court’s inadequate explanation. (740) The government argued that defendant’s sentence was procedurally unreasonable because the court failed to give an adequate explanation for its downward variance and failed to record those reasons in a written statement. However, at sentencing, the government objected to the downward variance solely on substantive grounds. The Tenth Circuit reviewed for plain error the court’s failure to give specific verbal reasons for its variance. To satisfy §3553(c)(2), a district court must describe the salient facts of the individual case, including particular features of the defendant or of his crime, and must explain how these facts relate to the §3553(a) factors. The court failed to do that, doing little more than reciting the §3553(a) factors, without specifically connecting them to the facts of the case. Although the error was plain, it was not reversible because the government did not show how the error affected substantial rights. There was nothing in the record to indicate that the district court would have imposed a higher sentence had it fully satisfied the requirements of §3553(c)(2). U.S. v. Mendoza, 543 F.3d 1186 (10th Cir. 2008).

10th Circuit says crack amendment did not reduce sentence for career offender. (740) Defendant filed a motion under 18 U.S.C. §3582(c)(2) to reduce his sentence based on Amendment 706, which retroactively was reduced by two levels, the base offense level for crack cocaine. Defendant also asked the district court, when resentencing him based on Amendment 706, to further reduce his sentence using the 18 U.S.C. §3553(a) factors and the recent Supreme Court cases of Booker and Kimbrough. The Tenth Circuit held that Amendment 706 did not entitle defendant to relief, because his sentence was based on the career offender guideline, §4B1.1, which was not affected by the reduction in the crack cocaine guidelines. In addition, the Booker line of cases did not provide any separate basis for relief under §3583(c)(2). U.S. v. Sharkey, 543 F.3d 1236 (10th Cir. 2008).

10th Circuit says court’s articulation of presumption of reasonableness was harmless. (740) A district court errs when it applies a presumption of reasonableness to a guideline sentence when considering the defendant’s request for a variance. Here, the district court erroneously articulated a presumption of reasonableness in its sentencing memorandum and imposed a sentence at the bottom of the Guideline range. The Tenth Circuit held that the error, if any, was harmless, and defendant’s sentence was procedurally reasonable. First, defendant himself conceded the error was harmless. Second, the record of the sentencing proceedings showed that the district court understood its discretion to grant a variance below the guideline range. Defendant’s attorney reminded the court that the presumption applies only to cases that are on appeal, and that it retained the discretion to grant a variance. The judge responded “I know that.” U.S. v. Gambino-Zavala, 539 F.3d 1221 (10th Cir. 2008).

10th Circuit holds that court erred by refusing to consider amount of force defendant used in assault. (740) Defendant was convicted of five counts of aggravated sexual abuse against his 16-year old niece, in violation of 18 U.S.C. § 2241(a). At sentencing, the district court refused to consider the degree of force defendant used to perpetrate the assaults, stating that it was “not permitted to use a comparative analysis to say, well, this is not as great a force as many other sex abuse cases include.” The Tenth Circuit held that the court committed procedural error by refusing as a matter of law to consider the relative amount of force defendant used to commit the assaults. While the court’s statement correctly reflected what the statute of conviction requires, sentencing law does not foreclose a court’s consideration of the specific nature and circumstances of the offense conduct. In fact, § 3553(a) mandates that a court consider the “nature and circumstances of the offense” in fashioning a sentence. U.S. v. Cerno, 529 F.3d 926 (10th Cir. 2008).

10th Circuit rejects its previous standard of review of non-Guidelines sentences. (740) 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. (740) 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 refusal to vary below guidelines for armed career criminal was reasonable. (740) 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 finds guideline sentence procedurally reasonable despite lack of direct response to departure request. (740) 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 error in applying presumption of reasonableness to guidelines was not harmless. (740) 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 career offender sentence reasonable. (740) 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. (740) 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. (740) 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 says court is not required to refer to every § 3553(a) factor. (740) 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. (740) 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 holds court was not required to explain why it rejected below-guidelines sentence. (740) 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).

11th Circuit says resisting officer with violence was crime of violence. (340) Defendant was convicted of illegal reentry after a felony, and received a 16-level crime of violence enhancement based on his Florida conviction for resisting an officer with violence. The Eleventh Circuit upheld the enhancement, ruling that the district court did not err in finding that the Florida conviction was a crime of violence. Florida Statute § 843.01 applies to a defendant who “resists, obstructs, or opposes any officer … in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ….” Florida courts have held that violence is a necessary element of the offense. Moreover, Florida’s courts have held that “doing violence” in this context “plainly involves the use … of physical force or violence.” While the Supreme Court has proscribed federal courts from relying on state case law to determine whether a crime requires “violent force,” it does direct the court to look to state cases to determine the elements of the state offense. See Johnson v. U.S., 130 S.Ct. 1265 (2010). Thus, because Florida’s courts have concluded that violence is a necessary element of § 843.01, the panel concluded that it constituted a “crime of violence” for purposes of § 2L1.2(b)(1)(A)(ii). U.S. v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012).

11th Circuit upholds reasonableness of sentence despite lack of fast-track sentencing program. (340) Defendant was convicted of illegal reentry after deportation. He argued that his 37-month sentence was unreasonable because the district court failed to grant him a variance based on sentencing disparities caused by the district’s lack of a fast-track program. The Eleventh Circuit rejected this argument. Previous circuit cases have rejected arguments based on sentencing disparities created by fast-track programs. See U.S. v. Vega–Castillo, 540 F.3d 1235 (11th Cir. 2008). Moreover, even if the court were to reconsider its prior precedent, defendant would not qualify for the fast-track program. At the time of defendant’s sentencing, the Attorney General’s guidance on fast-track programs provided that they were not available for any case involving an offense designated as a crime of violence. In addition, the defendant was required to enter into a written plea agreement that included certain provisions. Because defendant had a prior conviction for a crime of violence, and because he did not enter into a written plea agreement, defendant did not meet the Attorney General’s requirements for a fast-track program. U.S. v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012).

11th Circuit finds judge did not apply presumption of reasonableness to guideline sentence. (740) Defendants contended that their sentences were unreasonable because the district court applied a presumption in favor of the range of sentences recommended by the guidelines. They based their contention not just on comments at sentencing in 2007, but also on the same judge’s remarks in three unrelated cases from 2005 that purportedly indicated he considered the guidelines either binding or presumptively reasonable. The Eleventh Circuit acknowledged that the statements from the three earlier cases were problematic. However, these statements were made only months after Booker was decided, and two years before Rita was issued. By the time defendants were sentenced, the post-Booker sentencing law on this point had been clarified by the Rita decision. The district court said nothing here that indicated a lack of awareness of Rita, or suggested that it was treating the Guidelines as anything other than advisory. U.S. v. Hill, 643 F.3d 807 (11th Cir. 2011).

11th Circuit says comments by court after announcing sentence provided adequate explanation. (740) The district court found that defendant’s advisory guideline range was 151-188 months, and sentenced him to 185 months. Defendant argued that the sentence was procedurally unreasonable because the district court did not offer an adequate explanation for it, as required by 18 U.S.C. § 3553(c)(1). The Eleventh Circuit disagreed. In imposing the sentence, the court expressly referred to defendant’s significant criminal history, the fact that he had continued to make fraudulent calls while incarcerated, that he admitted he was impulsive and that he “could not stop” offending, and the fact that defendant had skills and talents that could have been put to productive use. Although these statements were made after the sentence was imposed, they were clearly part of the court’s closing remarks regarding the propriety of the sentence imposed. U.S. v. Ghertler, 605 F.3d 1256 (11th Cir. 2010).

11th Circuit says codefendant placed in pretrial diversion was not similarly situated. (740) Four men, including defendant and Kramer, were stopped by police in a car carrying burglary tools and homemade pipe bombs. Defendant and Kramer were indicted on charges related to the explosive devices. Kramer was placed in a pretrial diversion program; defendant proceeded to trial, was convicted, and sentenced to 44 months’ imprisonment. Defendant argued that his sentence was substantively unreasonable because of unwarranted disparities between his sentence of 44 months and Kramer’s enrollment in a pretrial diversion program. The Eleventh Circuit found no error, since defendant and Kramer were not similarly situated. Kramer was never prosecuted or convicted of any conduct, he was not sentenced, and he was not similarly situated to defendant. No unwarranted disparity existed. U.S. v. Spoerke, 568 F.3d 1236 (11th Cir. 2009).

11th Circuit holds that courts still cannot consider disparity caused by fast-track sentencing. (740) In U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2008), the Eleventh Circuit held that §3553(a)(6) does not require the district court to depart based on the availability of the fast-track departure in only some districts. Defendant argued that this decision was overruled by Kimbrough v. U.S., 128 S.Ct. 558 (2007). The Eleventh Circuit disagreed, and held that the court could not consider the disparity caused by the availability of fast-track sentencing. Kimbrough and Castro are distinguishable. Kimbrough addressed only a district court’s discretion to vary from the Guidelines based on a disagreement with a Guideline, not Congressional, policy. The most that could possibly be argued was that Kimbrough overruled prior precedent holding that a district court cannot vary from the advisory Guidelines based on a disagreement with a guideline, even where Sentencing Commission policy judgment, not congressional direction, underlies the guideline at issue. Judge Barklett dissented. U.S. v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008).

11th Circuit remands where court failed to follow procedure for departure or variance. (740) 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).

D.C. Circuit reverses where court required “compelling reasons” for below-guidelines sentence. (740) Defendant pled guilty to possession of crack with intent to distribute, and was sentenced to 210 months. He argued on appeal that the district court had an erroneously limited view of its discretion to impose a below-guideline sentence after U.S. v. Booker, 543 U.S. 220 (2005). The D.C. Circuit agreed that the court erred in requiring “compelling reasons” for a below-guidelines sentence. Less than three months before defendant was sentenced, the circuit rejected the idea that the guideline range should be considered presumptively reasonable. U.S. v. Pickett, 475 F.3d 1347 (D.C. Cir. 2007). The district court’s statements suggested that, notwithstanding Pickett, it would sentence defendant below the applicable guidelines range only if it found “compelling reasons” to do so. This was functionally equivalent to an improper presumption that the guidelines range was reasonable. The error affected defendant’s substantial rights. He established a reasonable likelihood that he received a longer sentence as a result of the court’s error. U.S. v. Terrell, 696 F.3d 1257 (D.C. Cir. 2012).

D.C. Circuit finds no error in failing to consider effect of pending crack legislation. (740) Defendant argued that the district court likely would have imposed a lower sentence if it had considered the effect of pending legislation to eliminate the disparity between crack and powder cocaine on his career offender sentencing range. The D.C. Circuit found no error. Pending legislation is far too removed to compel a district court to consider at sentencing. That was well-illustrated here, where the legislation was never enacted. Moreover, the district court did grant defendant’s request for a variance from the guideline career offender sentencing range because of the district court’s policy disagreement with the 100-1 crack-powder disparity. Defendant could not show error, much less plain error. U.S. v. Lawrence, 662 F.3d 551 (D.C. Cir. 2011).

D.C. Circuit orders full resentencing where original judge was unavailable. (740) Defendant was sentenced in 2004 when the guidelines were mandatory. On appeal, in light of Booker, the parties agreed that the court erred in imposing a mandatory sentence. Under U.S. v. Coles, 403 F.3d 764 (D.C. Cir. 2005), the question is whether the sentence would have been more favorable to the defendant if it had been imposed after Booker. Where the record is insufficient, the proper disposition is to grant a limited remand for the district court to determine whether it would have imposed a different sentence. Here, there was nothing in the record that indicated how the court would have sentenced defendant in a post-Booker world, and the original judge had retired. The D.C. Circuit found that the rationale for a limited remand in a case like this was weak. Where a defendant did not raise a Booker-like objection at his original sentencing, and the record does not reveal whether the now-unavailable sentencing judge would have imposed a materially different sentence under a post-Booker regime, the appropriate disposition is to vacate the sentence and remand the case for a full resentencing. U.S. v. Branham, 515 F.3d 1268 (D.C. Cir. 2008).

D.C. Circuit notes that reasonableness is standard of review, not an objection that must be made at sentencing. (740) 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 remands where court failed to explain how it calculated sentence. (740) 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).

Commission requires courts to consider departures before granting a variance. (740) The Commission noted that most circuits already agree on a three-step approach, in which the court first computes the guideline range and then considers whether to depart from the guidelines before determining whether the applicable factors in 18 U.S.C. § 3553(a) justify a Booker “variance” from the guidelines. Nevertheless, to resolve a circuit conflict on this issue, the Commission amended guideline § 1B1.1 (application instructions) specifically to adopt the three-step approach, and to make it clear that departures are not “obsolete” as the Seventh Circuit has stated. Amendment 741, effective November 1, 2010).

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’