XII. Appeal
A. Preserving Error
B. Standard of Review
C. Reasonableness of Sentence
D. Miscellaneous Appeal
Appeal
Supreme Court Decisions
• Reasonableness of Sentence
Rita v. U.S., 06-5754 (6/21/07)
> Defendant was convicted of perjury and at
sentencing his guideline range was calculated to be 33-41 months.
Defendant requested a sentence below the recommended guideline range
based upon (1) his vulnerability in prison, (2) his military
experience, and (3) his poor physical condition. The district court
listened to defendant’s arguments, briefly summarized them, and
denied his request for a below-guideline sentence. The court sentenced
defendant to 33 months in prison. The Fourth Circuit applied a
presumption of reasonableness to the within-guideline sentence, and
affirmed the district court’s ruling. The Supreme Court granted
certiorari.
* Holding: The Court held that federal appellate
courts may apply a presumption of reasonableness to a properly
calculated within-guideline sentence. The Court emphasized that such a
non-binding presumption did not offend the Sixth Amendment and that it
merely reflected the fact that both the sentencing judge and the
sentencing commission reached the same conclusion as to the appropriate
sentence in a particular case. The Court ruled that this “double
determination” significantly increases the likelihood that a
sentence is reasonable, and thus justifies the presumption. The Court
further held that defendant’s sentence was reasonable because the
district court had sufficiently expressed its consideration of the
relevant factors and the sentence was, in fact, reasonable under the
circumstances. Accordingly, the presumption of reasonableness was
upheld, and the sentence affirmed.
• Reasonableness of Sentence
Gall v. U.S., 06-7949 (12/10/07)
> During a period of seven months, and while in
college, defendant engaged in a conspiracy to distribute ecstacy.
Defendant then voluntarily withdrew from the conspiracy, stopped all
drug use and involvement, graduated college, moved to a new state, and
eventually obtained work as a master carpenter earning $18 per hour.
Three-and-a-half years after defendant withdrew from the conspiracy, he
was indicted. Defendant pled guilty and the district court calculated
his guideline range to be 30-37 months in prison. The court awarded a
downward variance from the guideline range and placed defendant on
probation based upon (1) his voluntary withdrawal from the conspiracy,
(2) his rehabilitation, (3) the fact that he obtained a college degree,
(4) the start of his own successful business, (5) his young age at the
time of the offense, (6) his lack of a criminal history, and (7) his
support from family and friends. The government appealed and the Eighth
Circuit reversed. In so holding, the Eighth Circuit applied
proportionality review, requiring the justification for the variance to
be proportionate to the extent of the departure. Defendant appealed to
the Supreme Court.
* Holding: The Court held that the standard of
review for all sentences, regardless of the extent of departure from
the guideline range, is the deferential abuse-of-discretion standard.
The extent of the departure is a factor that the courts may consider in
determining the overall reasonableness of the sentence. The Court
outlined the district court’s duty in fashioning a sentence. The
guidelines must be considered first as a “starting point.”
The district court must then consider all of the § 3553(a)
factors. In this regard, the Court emphasized that the district court
may not presume that the guideline range is reasonable. If the district
court determines that an outside-guideline sentence is warranted, it
must consider the extent of the deviation and ensure that the
justification is sufficiently compelling.
In
reviewing sentences, the Court held that courts must review under the
abuse-of- discretion standard. This requires courts to first review for
significant procedural error, such as improperly calculating the
guidelines, treating the guidelines as mandatory, failing to consider
the § 3553 factors, utilizing erroneous facts, or failing to
adequately explain the sentence. Second, reviewing courts must
determine that the sentence is substantively reasonable.
In
the case, the Court first held that the district court made no
procedural error. In this regard, the Court found that the district
court adequately considered the § 3553 factors, and addressed the
issues raised by the parties. Further, the Court ruled that the
sentence of probation was substantively reasonable based upon the
factors outlined by the district court that supported the downward
variance. The Court noted that a sentence of probation is not
necessarily a sentence of leniency. Instead, sentences of probation are
a “substantial restriction of freedom.” Accordingly, the
Eighth Circuit ruling was reversed and the sentence imposed by the
district court was affirmed.
• Reasonableness of Sentence
Kimbrough v. U.S., 06-6330 (12/10/07)
> Defendant was convicted of conspiracy to
distribute powder and crack cocaine, and possession of a firearm in
furtherance of a drug trafficking offense. At sentencing, defendant
faced a statutory mandatory 10 years for the crack and 5 years for the
gun. The district court determined that defendant’s guideline
range was 168-210 months for the crack, plus 60 months for the gun.
Based, in part, on the disparity in sentences between crack and powder
cocaine, the district court varied downward from the recommended
guideline range, and imposed the mandatory 10 years for the crack, plus
5 years for the gun. The government appealed and the Fourth Circuit
vacated the sentence based upon circuit precedent that a
below-guideline sentence is per se unreasonable if based upon the
crack/powder disparity. The Supreme Court granted certiorari.
* Holding: The Court held that the crack/powder
disparity is an appropriate consideration for a district court in
determining a sentence under 18 USC § 3553(a). The Court grounded
its finding on the fact that the Sentencing Commission did not
establish the 100:1 ratio between crack and powder punishments based on
empirical data, as it did with other guideline provisions, but instead
adopted the ratio based on the statutory, weight-driven, mandatory
minimum and maximum sentences. Further, after the establishment of the
100:1 ratio, the Sentencing Commission repeatedly reported on its
inequities, and encouraged Congress to act to change it. Thus, the
Court concluded that a district court may consider any
“unwarranted disparity created by the crack/powder ratio
itself” in fashioning an appropriate sentence based upon the
§ 3553 factors.
In
the case, the Court held that the district court imposed a reasonable
sentence. The district court properly considered the following factors:
defendant had no prior felony convictions; he served in combat during
Operation Desert Storm and received an honorable discharge; he had a
steady employment history; and the crack/powder disparity “drove
the offense level to a point higher than [was] necessary to do
justice.” Under these circumstances, the Court ruled that the
district court’s downward variance to a sentence of 15 years (4.5
years below the guideline range) was not an abuse of discretion.
Accordingly, the Fourth Circuit’s ruling was reversed, and
defendant’s sentence was affirmed.
• Reasonableness of Sentence
Moore v. U.S., 07-10689 (10/14/08)
> Defendant was convicted of possession of crack
with intent to distribute. At sentencing, defendant requested a
below-guideline sentence based on the crack-powder disparity. The
district court rejected defendant’s argument and stated that
“it isn’t the judges” but Congress that “looks
at the guidelines and decides whether or not they should be put in
force.” Defendant appealed and the Eighth Circuit affirmed. The
Supreme Court vacated the judgment and ordered the Eighth Circuit to
reconsider the Court’s ruling in light of Kimbrough (See P.V.,
Issue # 17), which held that courts may consider the crack-powder
disparity in determining a sentence. On remand, the Eighth Circuit
concluded that the district court realized its discretion, and affirmed
the sentence. The Supreme Court again granted certiorari.
* Holding: The Court held that the district
court’s statement regarding Congress and the guidelines clearly
demonstrated that it did not recognize its discretion to consider the
crack-powder disparity, which was later confirmed by Kimbrough.
Accordingly, the case was again remanded for resentencing.
•Reasonableness of Sentence-Crack Disparity
Spears v. U.S., 08-5721 (1/21/09)
> Defendant was convicted of conspiracy to
distribute crack and powder cocaine and at sentencing the district
court reduced defendant’s sentence from 324 months to the
statutory mandatory minimum of 240 months, based solely on the
crack-powder cocaine disparity. The Eighth Circuit reversed, but the
Supreme Court remanded to the Eighth Circuit for reconsideration in
light of Kimbrough. On remand, the Eighth Circuit again reversed
defendant’s sentence and held that the district court could not
categorically reject the crack sentencing guideline and replace the
crack-powder ratio with its own. The Supreme Court granted certiorari.
* Holding: The Court held that, pursuant to
Kimbrough, “district courts are entitled to reject and vary
categorically from the crack cocaine guidelines based on a policy
disagreement with those guidelines.” Accordingly, the Eight
Circuit’s decision was reversed.
• Reasonableness of Sentence
Nelson v. U.S., 08-5657 (1/26/09)
> Defendant was convicted of conspiracy to
distribute crack and the district court imposed a sentence at the
bottom end of the guideline range. The district court stated that the
guideline sentence was “presumptively reasonable,” and that
the guideline sentence was “a reasonable sentence” unless
the statutory factors provided a “good reason” for a
different sentence. The Fourth Circuit affirmed the sentence, and the
Supreme Court remanded for reconsideration based on Rita. On remand,
the Fourth Circuit again affirmed the sentence, and found that the
district court nonetheless understood that the guidelines were only
advisory. The Supreme Court granted certiorari.
* Holding: The Court held that the district court
impermissibly applied a presumption of reasonableness to the guidelines
at the sentencing hearing. The Court reiterated its holding from Rita:
“The sentencing court does not enjoy the benefit of a legal
presumption that the Guidelines sentence should apply.”
Accordingly, the defendant’s sentence was vacated.
Sixth Circuit
• Reasonableness of SentenceU.S. v. Williams, 05-5416 (1/31/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court, applying the guidelines as advisory, sentenced defendant to 64 months based upon a guideline range of 57 to 71 months. Defendant appealed claiming that the sentence was unreasonable.
* Holding: Deciding an open question in the Sixth Circuit, the court held that a sentence imposed within a properly calculated guideline range enjoys a rebuttable presumption of reasonableness. The court further held that a district court need not explicitly evidence its consideration of the factors under 18 U.S.C. § 3553. A district court has satisfied its obligation at sentencing if it articulates its reasoning sufficiently to permit reasonable appellate review. In the case, the court held that the district court had sufficiently considered the § 3553 factors, and that defendant had not rebutted the presumption of reasonableness, therefore the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Foreman, 04-2450 (2/8/06)
> Defendant was convicted of being a felon in possession a firearm and sentenced based upon the mandatory sentencing guideline regime. Defendant appealed.
* Holding: The court remanded the case for reconsideration of a sentencing guideline issue. (See supra, II. Sentencing Guidelines). In remanding the case, the court clarified its recent holding in Williams. (See supra). The court held that Williams does not mean that a sentence outside the guideline range is presumptively unreasonable. Further, the court held that Williams does not mean that a sentence within the guideline range is reasonable if there is no evidence that the district court followed the mandate to impose a sentence that is “sufficient, but not greater than necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2). Finally, the court held that Williams did not mean that the appellate court should abdicate any meaningful review; to the contrary, the court held that appellate review is more important under a non-mandatory guideline regime to insure uniformity and reduce sentence disparities across the board.
• Reasonableness of Sentence
U.S. v. Richardson, 05-1260 (2/13/06)
> Defendant was convicted of bank robbery and the district court calculated his sentencing guideline range to be 151-188 months. The court imposed a sentence of 180 months. Defendant appealed the reasonableness of the sentence.
* Holding: The court first confirmed the holding from Williams that a sentence within the guideline range is presumptively reasonably. The court further confirmed prior precedent that a district court is not required to specifically recite its consideration of the 18 U.S.C. § 3553 factors, but instead the district court must only sufficiently develop the record to allow “reasonable appellate review.” Finally, the court found the sentence to be reasonable. The court held that the district court had appropriately considered defendant’s history and characteristics, the need to protect the public, and defendant’s need for rehabilitative services. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Jones, 05-5657 (4/17/06)
> Defendant was convicted of bank fraud and identity theft and at sentencing he requested a below-guideline sentence based upon the fact that he had already served a state sentence for some of the conduct charged in the federal case. The district court sentenced defendant within the guideline range without specifically addressing defendant’s argument. Defendant appealed.
* Holding: Under USSG § 5K2.23, a district court may impose a downward departure from the guideline range based upon a state sentence that defendant served for a conviction that is relevant conduct to the federal offense. The court held, however, that the denial of downward departure is not reviewable on appeal, and thus, defendant’s sentence was reviewable only for reasonableness. The court ruled that the district court had appropriately considered the factors under 18 USC § 3553 and that the sentence it imposed was reasonable. The court noted that the district court’s failure to specifically rule on defendant’s below-guideline-sentence request did not render the sentence unreasonable given that the court had otherwise appropriately considered the § 3553 factors. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Ward, 05-5822 (5/12/06)
> Defendant was convicted of bank robbery and at sentencing the district court determined that the appropriate guideline range was 188-235 months. The court sentenced defendant to 220 months and defendant appealed the reasonableness of the sentence.
* Holding: After Booker, a district court need not mechanically recite the factors of 18 U.S.C. § 3553(a) in rendering a sentence, but it must only articulate its reasoning in order to permit “reasonable” appellate review. The court held that, although the district court had not specifically mentioned the § 3553(a) factors, it had appropriately articulated its analysis of the relevant considerations in imposing the sentence. The court also noted that a sentence within the applicable guideline range is presumptively reasonable, and that defendant had failed to show how the sentence was unreasonable. Thus, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Buchanan, 05-5544 (5/26/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court imposed a sentence at the bottom of the recommended guideline range. Defendant appealed.
* Holding: Relying on the presumption of reasonableness, the court held that the sentence at the bottom of the range was proper. In concurrence, Judge Sutton set forth the reasons why the presumption of reasonableness is the correct standard of appellate review for sentences within a properly calculated guideline range. Further, Judge Sutton emphasized that the presumption of reasonableness standard is not the gauge to be applied by the district court; instead, the district court must impose a sentence that is “sufficient, but not greater than necessary” to meet the statutory purposes of sentencing.
• Reasonableness of Sentence
U.S. v. Matheny, 05-6282 (6/16/06)
> Defendant was convicted of narcotics and firearm offenses and at sentencing the district court imposed a sixth month upward departure based upon the seriousness of defendant’s prior record. The district court indicated that it was also considering a prior dismissed charge on defendant’s record, and how defendant “got a break” in that case. Defendant failed to object to the court’s consideration of the dismissed charge. On appeal, defendant claimed that the sentence was unreasonable.
* Holding: The court first held that the district court properly considered the factors under 18 U.S.C. § 3553 in imposing the upward departure. Second, the court found error in the district court’s consideration of a dismissed charge as part of its justification for the upward departure. Nonetheless, because defendant had not objected in the district court, the court applied plain error review. The court found no plain error because the district court’s upward departure was otherwise supported by the record and because defendant could show no actual prejudice from the district court’s consideration of the dismissed charge. Accordingly, the court found the sentence to be reasonable.
• Reasonableness of Sentence
U.S. v. Worley, 05-5951 (7/10/06)
> Defendant was convicted of a drug conspiracy and was sentenced in the middle of the guideline range. Booker was subsequently decided and defendant’s case was remanded for resentencing under a non-mandatory guideline range. At the resentencing, defendant submitted evidence to the district court regarding his rehabilitative efforts while incarcerated in the BOP. The district court refused to consider the post-sentencing rehabilitation because it found such evidence to be outside the scope of a Booker remand. The district court then reimposed the original sentence and defendant appealed.
* Holding: The court held that the district court correctly determined that post-sentence rehabilitation was outside the scope of a Booker remand. The purpose of Booker remands are for the district court to determine whether it would have imposed a different sentence under a non-mandatory guideline scheme at the time of sentencing. Accordingly, the district court ruling was affirmed.
• Reasonableness of Sentence
U.S. v. Caswell, 04-2280 (8/7/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court imposed an upward departure in the guideline range based upon the fact that defendant scored 29 criminal history points, more than twice the required amount for criminal history category VI. The court also issued an alternative sentence of the same amount in the event that the guidelines were found to be advisory. Defendant appealed and Booker was subsequently decided.
* Holding: The court first found no error in the sentence because the district court issued an alternative sentence (thus accounting for Booker) and had satisfactorily articulated its consideration of the 18 USC § 3553 factors. Further, the court found that the district court’s consideration of the circumstances of defendant’s prior convictions was proper. In the Supreme Court cases of Taylor and Shepard, the Court held that a district court must utilize a categorical approach to analyzing prior convictions in order to determine if a defendant qualifies as an Armed Career Criminal under the statute and guidelines. Distinguishing those cases, the court held that a district court may consider the facts of prior offenses where no ACCA determination is involved and the court is making no specific factual finding about the prior offenses. Accordingly, the upward departure based upon defendant’s prior convictions was appropriate.
• Reasonableness of Sentence
U.S. v. Ferguson, 05-3998 (8/9/06)
> Defendant was convicted of transporting a stolen motor vehicle across state lines and at sentencing the district court imposed a sentence that was 6 months above the guideline range of 0-6 months. Defendant appealed.
* Holding: First, the court held that the sentence met the procedural reasonableness requirements because the district court had properly considered the 18 USC § 3553 factors. Second, the court found that the sentence was substantively reasonable because the court properly considered that defendant abused a position of trust in the Air Force Museum in stealing the car and the particular car stolen was an irreplaceable item. Finally, the court noted that the district court had not improperly considered defendant’s socio-economic status in imposing sentence. Defendant requested no jail time at sentencing based, in large part, on his educational and employment history. The court held that the district court’s comments about defendant’s status and affluence were meant to emphasize that socio-economic status was not grounds for a lower sentence. Thus, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Cruz, 05-6746 (8/25/06)
> Defendant was convicted of interstate domestic violence and kidnaping, and the district court imposed a sentence at the middle of the applicable guideline range. During the course of the sentencing hearing, the district court mentioned a couple of times that it was trying to impose a reasonable sentence. Defendant appealed.
* Holding: Technically, a district court’s function is not to impose a “reasonable” sentence, but instead one that is “sufficient, but not greater than necessary” to meet the statutory purposes of sentencing. “Reasonableness” is the standard of review in the court of appeals. Nonetheless, it is not reversible error for the district court to mention reasonableness during the sentencing hearing. The court found that the district court had otherwise complied with § 3553 and Booker. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Collington, 05-4054 (8/31/06)
> Defendant was convicted of possession with intent to distribute in excess of 50 grams of crack, being a felon in possession of a firearm, and possession of a machine gun. At sentencing, the district court determined that the proper guideline range was 188-235 months, but imposed a downward variance from the range to a sentence of 120 months. The government appealed.
* Holding: The court held that the sentence was both procedurally and substantively reasonable. The court ruled that the district court appropriately considered all of the § 3553 factors and addressed both parties’ arguments at the time of sentencing. Further, the court held that the district court had properly relied on the fact that, although defendant was in criminal history category IV, he had never served a substantial jail sentence and was potentially amenable to rehabilitation. Additionally, the court found that the district court’s consideration of the murder of defendant’s father and the loss of his mother to cancer were appropriate. Finally, the court criticized the dissent for relying on the fact that the variance was a “36%” reduction from the recommended range. The court held that appellate review was not properly reduced to “such cold calculations.” Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Seymour, 05-1643 (10/27/06)
> Defendant was convicted of sexual assault and at sentencing the district court imposed the top end of the applicable guideline range. Defendant appealed and argued that the district court had failed to consider his “painful history
and emotional problems” in determining a sentence.
* Holding: The court held that the district court had appropriately considered defendant’s psychological impairments because it recommended him for “mental health sex offender treatment” and the intensive substance abuse program. Further, the court noted that “mental health issues, drugs, and an underprivileged upbringing” are not ordinarily relevant factors for a below-guideline sentence pursuant to the guidelines. Accordingly, the sentence was reasonable and the district court ruling was affirmed.
• Reasonableness of Sentence
U.S. v. Johnson, 05-6309 (10/31/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing defendant challenged his criminal history category based upon an alleged error in a prior state court judgment of conviction. Defendant requested a continuance in order to attempt to correct the state court error. The district court denied the request, stating that the sentence that it was imposing, 30 months, fell within the guideline range corresponding to both the lower and higher criminal history categories. The district court made no reference to the factors under 18 USC § 3553. Defendant appealed.
* Holding: The court held that the district court’s consideration of only the sentencing guideline range, and its complete failure to indicate on the record its evaluation of the § 3553 factors, rendered the sentence procedurally unreasonable. Further, the court ruled that the error was not harmless because the district court provided the court with no basis to determine whether the district court’s sentence would be the same had it properly considered the § 3553 factors. Finally, even though defendant did not either argue the § 3553 factors at sentencing or object to the district court’s failure to consider them, the court refused to apply the plain error standard because the district court did not afford the parties an opportunity to object to the sentence it pronounced, as required by Sixth Circuit precedent. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Cousins, 05-3228 (11/30/06)
> Defendant was convicted of threatening the President and at sentencing the district court imposed a 2 month upward variance from the guideline range. Defendant appealed the reasonableness of the sentence.
* Holding: After Booker, a sentence must be both procedurally and substantively reasonable. In the case, the court found that the district court’s sentence was procedurally unreasonable based upon the following: (1) the district court failed to consider defendant’s request for a concurrent sentence with a state term of imprisonment; (2) it failed to acknowledge the applicable guideline range; and (3) the court gave no reason for the variance, and failed to establish how the variance would serve to achieve the statutory purposes of sentencing. Thus, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Caver, 05-3295 (12/4/06)
> Defendant was convicted of a narcotics conspiracy and at sentencing requested a downward variance based, in part, on the disparate 100:1 crack to cocaine ratio under the guidelines. The district court denied defendant’s request and sentenced him to the bottom end of the applicable guideline range. Defendant appealed.
* Holding: The court held that the 100:1 crack to cocaine ratio is not per se unreasonable under all circumstances. The panel intimated that it may not agree with the rationale for the disparity, but nonetheless found that defendant had not presented any evidence to show that the disparity was unreasonable under the facts of his case. Accordingly, the court found that the sentence was reasonable and affirmed the district court ruling.
• Reasonableness of Sentence
U.S. Ahmed, 05-2319 (12/29/06)
> Defendant was convicted of making false statements on his application to be a baggage screener with the Transportation Security Administration (TSA). In the application, defendant lied about his prior service in the Air Force wherein he had his security clearance suspended, and ultimately agreed to a discharge, because of his extensive pro-terrorist rhetoric. At sentencing, the district court imposed an upward variance in the guideline range from 0-6 months up to a sentence of 18 months in prison. Defendant appealed.
* Holding: First, the court held that the sentence was procedurally reasonable because the district court had adequately considered the factors under 18 U.S.C. § 3553(a). Second, the court found that the sentence was substantively reasonable given the district court’s “clearly articulated, well-reasoned concerns about the seriousness of the crime and the need for deterrence.” Thus, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Wells, 05-6263 (1/9/07)
> Defendant was convicted of being a felon in possession of a firearm and being a felon in possession of ammunition based upon two separate shooting incidents. At sentencing, the district court imposed an upward variance in defendant’s guideline range from 175 to 200 months in prison. Defendant appealed.
* Holding: The court held that a 200 month sentence was reasonable given that defendant, in separate incidents, had shot and wounded one person at a night club, and had engaged in a shoot out with the police. Further, the court noted that defendant had a lengthy history of escalating violence on his record. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Smith, 05-4425 (1/26/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court imposed an upward departure in defendant’s sentencing range based upon the severity of defendant’s prior record. The court determined that criminal history category VI did not adequately reflect the seriousness of defendant’s record, and accordingly increased the range from 30-37 up to 46-57 months. Defendant appealed.
* Holding: In reviewing a sentence that is outside the recommended guideline range, the court applies a form of proportionality review: the greater the variance from the range, the more compelling its justification must be. The court held that, whether the district court chose to “depart” from the range under the guidelines or grant a “variance” from the range pursuant to § 3553, the appellate court’s analysis should be the same and reach the same result. Thus, the court applied the familiar framework of considering first procedural, then substantive, reasonableness. The court found that the district court had clearly articulated its reasons for the upward departure and that those reasons were factually supported in the record. Further, the court held that the sentence was substantively reasonable given defendant’s record and his likelihood of recidivism. Lastly, the court noted that defendant’s argument that he should receive a lower sentence because he would not be eligible (as a result of the firearm charge) for the residential drug treatment program was without merit. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Husein, 05-2548 (3/2/07)
> Defendant was convicted of conspiracy to distribute ecstacy and at sentencing the district court imposed a 37 month downward departure based upon the extraordinary family circumstance that she was caring for her dying father. The government appealed.
* Holding: A sentence must be both procedurally and substantively reasonable. First, the court found the sentence procedurally reasonable. Although the district court did not specifically mention any of the factors under 18 USC § 3553(a), the court held that the district court adequately considered facts that corresponded to five of the seven § 3553 factors. Second, the court found the sentence to be substantively reasonable. The court emphasized that defendant pled guilty to a drug offense carrying a statutory range of 0-20 years; thus, Congress specifically intended that certain defendants charged with this offense would receive no jail time. Considering the § 3553(a) factors, and in distinguishing the case from the court’s recent decision in U.S. v. Davis (See P.V., Issue # 9), the court ruled that defendant was among the most “deserving” of defendants for a minimum statutory sentence. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Bridgewater, 05-6950 (3/9/07)
> Defendant was convicted of possession of child pornography. Some of the pictures contained in the child pornographic images were of defendant molesting young girls in his care during a time period that he operated a children’s home for abused and neglected youth. At sentencing, the district court heard testimony from two character witnesses for defendant, as well as letters from defendant’s wife and son. The wife advocated for a sentence of probation, while the son requested that defendant receive the maximum term of imprisonment. The district court imposed the ten year maximum statutory penalty and a life- time term of supervised release. Defendant appealed and argued that the sentence was unreasonable.
* Holding: First, the court held that the district court satisfied the reasonableness requirements. The court found that, while the district court’s recitation of the factors under 18 USC § 3553 was not “model” or “perfect,” the district court nonetheless exhibited an adequate consideration of the relevant factors. Second, the court ruled that the district court had not improperly perceived its duty as being to impose a “reasonable” sentence. Specifically, the court found that appellate counsel’s assertion that the district court misunderstood its duty in this regard was meritless and completely lacked any support in the record. The court further warned appellate counsel generally that misrepresenting something a district court said in sentencing is potentially sanctionable attorney conduct. Finally, the court noted that, even if the district court used the word “reasonable” in attempting to fashion its sentence, that fact alone would not warrant reversal. The court emphasized that it focuses on the substance of the district court ruling and “not the ritual form of sentencing decisions.” Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Kosinski, 05-2664 (3/22/07)
> Defendant was sentenced for a tax fraud scheme and appealed his sentence. Based on the recently decided Booker decision, the Sixth Circuit held that enhancement of defendant’s sentence based upon tax loss that was not proven to the jury violated his Sixth Amendment rights. Upon remand and resentencing, the district court refused to consider any tax loss that was not part of the jury verdict. The court thus sentenced defendant to a term of probation. The government appealed.
* Holding: The court found that the district court erred in refusing to calculate the tax loss under the guidelines. After Booker, the district court must first correctly determine the applicable guideline range, applying sentencing enhancements only if proven by a preponderance of the evidence. Once the correct guideline range is determined, the court must then determine an appropriate sentence under 18 USC § 3553(a), treating the guidelines as merely advisory. The court held that the district court’s sentence was unreasonable because it failed to (1) calculate the guideline range, (2) treat the guidelines as advisory, and (3) consider the § 3553(a) factors. Thus, the case was again remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Cherry, 06-5579 (5/11/07)
> Defendant pled guilty to four counts of distributing child pornography, nine counts of receiving child pornography, and one count of possessing child pornography. At sentencing, the district court determined that the applicable range under the sentencing guidelines was 210 to 262 months, but that, based upon the sentencing factors in 18 USC § 3553(a), a below-guideline sentence of 120 months was appropriate. The government appealed.
* Holding: The court held that the sentence imposed by the district court was reasonable. The district court properly considered all of the factors under § 3553(a) and appropriately based its downward adjustment from the recommended guideline range on defendant’s low likelihood of recidivism, the fact that the sentence imposed (120 months) was two times the five year mandatory minimum, the need for treatment, and the seriousness of the offense. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Borho, 06-5288 (5/15/07)
> Defendant was convicted of three counts of possession of child pornography and at sentencing the district court reduced defendant’s sentence from 210-262 months to 72 months incarceration based on the factors under 18 USC § 3553(a). The district court relied on the facts that (1) having over 5000 images is not uncommon in the internet age, (2) although images were sadistic, all sex with adults and minors is sadistic, (3) defendant had no criminal record, (4) defendant was a decorated war veteran with a stable employment history, (5) defendant had diabetes, depression, and a back injury, and (6) defendant was a low risk to children and had committed the offense in the least “personally engaged” way possible. The government appealed.
* Holding: In assessing the reasonableness of a variance from the guideline range, the court applies a form of proportionality review: the greater the departure, the more compelling the justification must be. In the case, the court held that the extremely low sentence imposed by the district court was not justified by the factors the court considered. First, regarding the amount of images and the sadistic nature of the images, the court held that these were matters that the Sentencing Commission considered and determined were appropriate factors for guideline enhancements. Thus, the district court erred in discounting the importance of these issues in determining the sentence. Second, the court found that the fact that defendant had no criminal history was a consideration already taken into account by defendant’s criminal history category of I. Third, the court held that defendant’s health issues were discouraged factors under the guidelines at USSG § 5H1.4. Lastly, the court ruled that the fact that defendant had not offended against children was not a proper consideration because, if he had, he would have been charged under a more serious statute and guideline. In sum, the court found that the district court’s justifications, taken in the aggregate, did not provide the extraordinary circumstances required to support the variance. Thus, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v Johnson, 05-4277 (5/25/07)
> Defendant was convicted after trial of drug trafficking and at sentencing the district court determined that defendant was a career offender. Defendant objected to the guideline range, but ultimately conceded that he qualified as a career offender. The district court imposed a sentence at the bottom end of the guideline range, but provided no discussion at all regarding its reason for the sentence it chose or its analysis of the 18 USC § 3553(a) factors. Defendant appealed the reasonableness of the sentence.
* Holding: The court held that the sentence was procedurally unreasonable because the district court had articulated no basis for the court to review the sentence. Accordingly, the sentence was vacated and the case remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Bailey, 05-6218 (6/15/07)
> Defendant was convicted of participating in a drug conspiracy and he was sentenced to 70 months incarceration, the middle of the guideline range. At the sentencing hearing, the district court did not mention that the guidelines were advisory. Defendant appealed.
* Holding: The court held that a district court is not required to specifically state that the sentencing guidelines are advisory during the course of the sentencing hearing, as long as it is clear from the record that the district court has not applied them as mandatory. Further, the court held that defendant’s sentence was both procedurally and substantively reasonable. Finally, the court noted that defendant did not object to the sentence imposed by the district court, and thus, the sentence was subject to plain error review. Finding no plain error, the court affirmed the sentence.
• Reasonableness of Sentence
U.S. v. Kathman, 06-5669 (6/20/07)
> Defendant was convicted of involuntary manslaughter for driving while intoxicated in a national park and wrecking his car, causing the deaths of two passengers. At sentencing, the district court granted a downward variance in the guideline range from 41 to 51 months to 20 months incarceration. The government appealed.
* Holding: In analyzing a variance from the recommended guideline range, the court applies a form of proportionality review: the greater the deviation from the range, the greater the justification required. In the case, the court ruled that the district court had properly considered (1) the degree of recklessness involved in defendant’s conduct, which was comparatively low, (2) defendant’s lack of a criminal record, (3) defendant’s good character, as evidenced by numerous letters from friends and family, (4) the fact that incarceration would not provide defendant with needed training or treatment, and (5) defendant’s relatively good work and academic history. The court also noted that the district court had imposed 250 hours of community service related to alcohol awareness, and restitution. Under these circumstances, the court found that the variance was reasonable and affirmed the sentence.
• Reasonableness of Sentence
U.S. v. McGee, 06-1554 (7/11/07)
> Defendant was convicted of cocaine trafficking, being a felon in possession of a firearm, and carrying a firearm in relation to drug trafficking. Defendant requested a sentence below the guideline range based upon his alleged drug addiction and mental problems. The district court sentenced defendant within the applicable guideline range without addressing defendant’s claims for a lower sentence. Defendant appealed.
* Holding: First, the court noted that its prior decision in U.S. v. Vonner was vacated pending rehearing en banc. In Vonner, the court held that a district court errs when it fails to adequately address a defendant’s claim to a downward variance from the guideline range. In the present case, the court found that defendant’s claims of mental health and substance abuse problems were completely unsupported by evidence and were amorphous. The court held that a district court does not err in declining to address a defendant’s arguments when there is no factual basis for them in the record. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Liou, 06-4405 (7/20/07)
> Defendant was convicted of bribing an IRS agent. At sentencing, the district court calculated his guideline range to be 10-16 months in prison. Defendant requested a downward variance from the guideline range to a sentence of house arrest based upon the fact that his business would fail if he were locked up and that he was the sole source of support for his family. The district court imposed a sentence of 12 months and a day in prison, and the only reference it made to defendant’s argument about his family circumstances and business was that the court was giving defendant 60 days to surrender “in light of his family circumstances and in light of his business.” Defendant appealed.
* Holding: The court first held that defendant’s sentence was procedurally reasonable because the court adequately considered the factors under 18 USC § 3553(a). The court noted that a district court must consider any non-frivolous argument raised by a defendant in support of a downward variance. In this regard, the court held that the district court had adequately reflected its consideration of defendant’s family-circumstances argument by mentioning it in awarding the voluntary surrender. Second, the court found that the sentence was substantively reasonable. Thus, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Wilms, 06-1896 (7/23/07)
> Defendant pled guilty to four bank robberies and one attempted bank robbery and at sentencing requested a substantial downward variance from the guideline range. Defendant’s request was based upon the fact that the robberies were driven by a gambling addiction that he had overcome, he had engaged in substantial post-offense rehabilitation, and his psychologists recommended that a lengthy prison term would disrupt his rehabilitation. The district court indicated that defendant’s argument had not overcome the presumption of reasonableness that adheres to the applicable guideline range, and granted defendant a small downward variance, instead of the substantial reduction requested by defendant. Defendant appealed.
* Holding: The court held that after the Supreme Court’s decision in Rita v. U.S. (See P.V., Issue # 13), a district court may not rely on the presumption of reasonableness in determining a sentence. The court emphasized language from Rita that the presumption of reasonableness “is not binding.” “It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case.” Because the district court had articulated that it did rely on the presumption of reasonableness in determining the sentence, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Poynter, 05-6508 (7/26/07)
> Defendant was convicted of traveling in interstate commerce for the purpose of engaging in sex with two minors. At sentencing, the district court determined that defendant qualified as a “Repeat Dangerous Sex Offender Against Minors” under USSG § 4B1.5(a) because he had a prior state conviction for sodomy against an eleven year old for which he received a 20 year prison term. Thus, the court calculated a guideline range of 188-235 months. The court then imposed an upward variance to the statutory maximum sentence of 60 years. Defendant appealed.
* Holding: First, the court held that the sentence was procedurally reasonable. The court found that the district court had properly considered the guideline range and the factors under 18 USC § 3553. Second, the court ruled that the sentence was substantively unreasonable. Applying proportionality review, the court concluded that the extreme upward variance – which amounted to a 206% increase above the top of the guideline range – was not supported by the findings of the district court. The court provided a detailed analysis of the court’s prior rulings on upward and downward variances and concluded that the increase in this case was unreasonable. The court emphasized that the primary considerations upon which the district court relied – defendant unsafe to children, crime is highly recidivistic, defendant can’t control himself – were common to all repeat sex offenders. Thus, the court determined that the level of generality in the district court’s rationale did not support the extraordinary increase. Finally, the court held that the Supreme Court’s decision in Rita v. U.S. (See P.V., Issue # 13) did not overrule the circuit precedent for proportionality review of beyond-guideline sentences. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Keller, 05-6562 (8/8/07)
> Defendants were convicted of fraud and money laundering for their scheme to buy and sell fraudulent life insurance policies. Both defendants originally received guideline sentences, but were resentenced after Booker and obtained substantially lower sentences. Defendant Sutherlin was 17 at the time he was hired by Defendant Keller to sell the fraudulent policies. Based on Sutherlin’s age and susceptibility at the time he was hired, and his substantial post-offense rehabilitation between his first and second sentencing, the district court reduced his sentence from 151 months to 36 months. Keller’s sentence was reduced from 168 months to 120 months. The government appealed the reasonableness of Sutherlin’s sentence, and Keller appealed the reasonableness of his own sentence.
* Holding: Regarding Sutherlin, the court held that consideration of his age and susceptibility to Keller’s influence were appropriate considerations post-Booker. However, relying on the court’s prior decision in Worley (See P.V., Issue #___), the court held that post-offense rehabilitation was not an appropriate consideration on a Booker remand for resentencing. Instead, the district court may only consider factors that were present at the original sentencing. Accordingly, Sutherlin’s case was remanded for resentencing. Regarding Keller, the court held that the district court had properly considered the factors under 18 USC § 3553(a), and that the sentence was substantively reasonable. Accordingly, Keller’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Thomas, 06-1290 (8/10/07)
> Defendant was convicted of bank robbery and sentenced to 240 months, the statutory maximum. This sentence was within the recommended guideline range. Defendant appealed and the case was remanded for resentencing in light of Booker. At the resentencing, defendant requested a lower sentence based upon factors relating to several of the factors under 18 USC § 3553(a). The district court stated that it received defendant’s sentencing memorandum, read it, and understood its presentations. The court then imposed the same 240 month sentence. Before concluding the hearing, the court asked whether defendant had “anything more for the record,” and defendant entered no objection to the district court’s reasoning. Defendant appealed.
* Holding: First, the court determined that plain error review was not appropriate. Under current law, a district court must offer a defendant the opportunity to object to a sentence just imposed. When given this opportunity, a defendant has waived any argument not raised and will face plain error review on appeal. The court found that the district court’s question as to whether defendant had “anything more for the record” was not a sufficient inquiry to require plain error review. Second, the court held that the sentence imposed by the district court was procedurally unreasonable. Distinguishing the case from the recently decided Supreme Court decision in Rita v. U.S. (See P.V., Issue # 14), the court found that the district court’s statement that it had reviewed the sentencing memorandum and understood it was insufficient to allow reasonable appellate review of the sentence. According to the court, the district court’s statement left the court “unsure as to whether the district court adequately considered and rejected” defendant’s § 3553 arguments. Thus, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Presto, 05-6888 (8/14/07)
> Defendant was convicted of being a felon in possession of a firearm and receiving child pornography, and as a part of his sentence he received life-time supervised release. Defendant appealed.
* Holding: First, the court held that the life-time period of supervised release was procedurally reasonable. The court ruled that, in determining an appropriate period of supervised release, the district court must consider 18 USC § 3583(c), which, in turn, requires consideration of many of the factors listed in § 3553(a). The court found that the district court had properly articulated its consideration of the applicable § 3553(a) factors determining the period of incarceration, and that a separate consideration of the factors for purposes of the supervised release term was unnecessary. Second, the court held that the sentence of life-time supervision was substantively reasonable, noting that defendant had not only received numerous images of child pornography, but had also molested a fifteen year old. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Franklin, 05-2539 (8/28/07)
> Defendant was convicted of bank robbery and brandishing a firearm in relation to the bank robbery. Defendant’s first appeal resulted in a Booker remand. At the resentencing, the district court imposed a downward variance from the guideline range. The basis for the variance was the district court’s view that the seven-year mandatory sentence for the firearm, under 18 USC § 924(c), in addition to the guideline range, inflated defendant’s sentence beyond what the court perceived as necessary. The government appealed.
* Holding: The court held that the district court’s downward variance in the guideline range based upon the total aggregate sentence defendant was facing was improper. In essence, the district court’s variance had the effect of negating the mandatory sentence set by the Legislature. Thus, the court ruled that a district court must determine an appropriate sentence for the underlying crimes without consideration of the § 924(c) sentence. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Simmons, 06-6173 (8/29/07)
> Defendant was convicted of health care fraud and sentenced to 23 months in prison. On appeal, defendant claimed that the district court had failed to adequately consider 18 U.S.C. § 3553(a)(6), which requires uniformity in sentencing. In particular, defendant claimed that his sentence was disproportionate to his codefendant’s sentence, and disparate considering national uniformity.
* Holding: First, the court held that the § 3553(a)(6) factor refers only to national uniformity, not uniformity with a codefendant on the same case. Thus, a request for a lower sentence based upon the sentence received by a codefendant is not a required consideration under § 3553(a)(6), but may be granted purely as a matter of district court discretion. Because this issue was not raised before the district court, the court deemed it waived. (See supra, Issue First Raised on Appeal).
Second, the court found that the only § 3553(a) factor not specifically addressed by the district court was (a)(6), the national uniformity requirement. Where a defendant does not specifically raise a § 3553(a)(6) factor in the district court, the defendant may only fault a district court’s failure to consider it where (1) the factor is particularly relevant, or (2) the district court, in fact, ignored the factor. In the case, defendant had not raised subsection (a)(6) in the district court. The court ruled that defendant had not shown that the factor was particularly relevant, thus the first exception did not apply. Further, the court found that lack of discussion on a topic in the district court does not indicate that the court “ignored” the factor. Because the court adequately considered the guideline range, a range established by the Sentencing Commission based on notions of national uniformity, the court clearly had not ignored the factor. Finally, the court ruled that the sentence, which was below the recommended guideline range, was substantively reasonable. Thus, the district court’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Brock, 05-6621 (9/6/07)
> Defendant was convicted of illegally distributing information about an incendiary device. At sentencing, the district court calculated defendant’s guideline range to be 27-33 months. The district court imposed an upward variance from the guideline range and sentenced defendant to 48 months in prison. Defendant appealed.
* Holding: First, the court found that the sentence was procedurally reasonable. Defendant failed to object to the district court’s consideration of the factors under 18 USC § 3553, and the court found no plain error in their application. Second, the court held that the sentence was substantively reasonable. The court noted that defendant made statements that he was a “criminal,” that he had broken a lot of laws, that he admitted to committing arson in the past, and that he attempted to bribe a state official. Accordingly, the court found that a 45% upward variance, which was substantially lower than the 240 month statutory maximum, was reasonable under the circumstances.
• Reasonableness of Sentence
U.S. v. Fink, 06-3436 (9/7/07)
> Defendant was convicted of distribution of child pornography and at sentencing the district court calculated his guideline range to be 188-235 months. Applying the factors under 18 USC § 3553, the district court determined that an appropriate sentence was 70 months based upon (1) the fact that defendant did not intend to engage in sexual contact with minors, (2) the fact that defendant was himself molested as a child, and (3) the court’s consideration of other similarly situated defendants who received substantially lower sentences. The government appealed.
* Holding: In reviewing the substantive reasonableness of a downward variance from the guideline range, the court must apply a form of proportionality review: the greater the departure, the more compelling the justification must be. First, the court found unpersuasive the fact that defendant had not intended to offend against minors because, if he had, he would have been charged with a more serious offense. Second, the court ruled that, although the district court considered that defendant was a prior sex abuse victim, it failed to consider the fact that defendant had previously sexually abused his own daughter. Third, the court held that the other “similarly situated” defendants considered by the district court were either charged with a different offense than defendant, or were sentenced before the passage of the Protect Act, which substantially increased a defendant’s jail time exposure for child pornography offenses. Finally, the court held that the 70 month sentence was roughly one-third the recommended guideline sentence and was only ten months above the statutory mandatory minimum. The court found that defendant’s case did not warrant a sentence near the mandatory minimum, which should be reserved for the least culpable of defendants. Thus, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Hairston, 06-4072 (9/10/07)
> Defendant was convicted of distributing 38.6 grams of crack, and was at the time, on supervised release for a prior drug offense. The district court calculated defendant’s guideline range to be 121-151 months in prison. Primarily relying on defendant’s substantial rehabilitative efforts prior to sentencing, the court granted a downward variance in defendant’s sentence to 60 months incarceration, the statutory minimum sentence. The government appealed.
* Holding: The court analyzed prior circuit case law both affirming and vacating substantial downward variances, and concluded that defendant’s sentence was reasonable. Specifically, the court reasoned that the below-guideline sentence was justified by the significant efforts defendant made prior to sentencing to change his life and abandon his drug lifestyle. The court found unpersuasive the government’s arguments that the sentence imposed was lower than a defendant would receive under the guidelines if he had no prior criminal record, and that the sentence at the statutory minimum left no room for future panels to provide a lower sentence for more deserving defendants convicted of the same offense. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Baker, 05-6874 (9/17/07)
> Defendant was convicted of possessing an unregistered firearm with a barrel length of less than eighteen inches. Defendant’s guideline range for the offense was 27 to 33 months, but the district court imposed a sentence of 5 years probation, with one year of house arrest. The government appealed.
* Holding: The court held that the sentence was both procedurally and substantively reasonable. Regarding procedural reasonableness, the court found that the district court adequately expressed its consideration of the factors under 18 USC § 3553. The court noted that the district court was not required to resolve the conflict as to whether defendant used the firearm in a domestic dispute; it was sufficient that the district court noted that the firearm may have been used. Regarding substantive reasonableness, the court held that the substantial variance was supported by defendant’s need to be available to care for his son, who had a heart transplant, and because of his remorse for the crime. Thus, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Story, 05-6422 (10/1/07)
> Defendant was convicted of drug trafficking and sentenced to 360 months incarceration. On appeal, defendant’s case was remanded for reconsideration in light of Booker. At the resentencing hearing, the district court mistakenly indicated that the applicable guideline range was 346-405 months, when the correct range was 324-405. After considering the misstated range, and the factors under 18 USC § 3553, the court imposed a sentence of 300 months. The downward variance was based upon defendant’s extraordinary rehabilitative efforts while in prison and the sentences received by other codefendants. Defendant did not object to the miscalculated guideline range. Defendant appealed.
* Holding: Because defendant failed to object in the district court to the incorrect guideline range being utilized, the court applied plain error review. The court found that the district court application of the incorrect guideline range in fashioning defendant’s sentence amounted to plain error requiring a remand. The court could not determine from the record whether the district court would have further reduced defendant’s sentence below the 300-month term if it had realized the correct starting point under the guidelines. Accordingly, the court vacated defendant’s sentence and remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Kirchhof, 06-5203 (10/2/07)
> Defendant was convicted of transporting and receiving child pornography over the internet. At sentencing the district court determined that the applicable guideline range was 210-262 months of incarceration, but instead imposed a downward variance to a sentence of 180 months. The variance was based upon the fact that defendant was a college student with no prior record, a steady work history, and a diagnosis of Obsessive Compulsive Disorder (OCD). The court balanced these factors against its concerns that the offense conduct tended to “desensitize” people to child pornography and that a significant sentence was important to deter others from committing such conduct. Defendant appealed the substantive reasonableness of the sentence.
* Holding: The court held that the 14% downward variance was substantively reasonable. The court held that the district court did not place undue weight on certain factors over others and that none of the information offered by defendant was so compelling as to justify a sentence lower than the 14% variance awarded by the district court. Finally, the court ruled that defendant’s sentence was not disproportionate to others sentenced in the same district during that time period. The court pointed out that each defendant is sentenced based upon the “individual facts of their cases.” In contrasting defendant’s case with another defendant sentenced for a similar offense, the court noted that the other defendant had accepted responsibility for his conduct while defendant had blamed his conduct on an “uncontrolled impulse” (referencing his OCD). Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Malone, 06-2099 (10/4/07)
> Defendant was charged with possession of marijuana with intent to distribute, being a felon in possession of firearm, and possession of a firearm in furtherance of drug trafficking. Defendant was convicted at trial of the marijuana charge, but acquitted on the two firearms charges. At sentencing, the district court determined that defendant was a career offender and thus qualified for a guideline range of 51-63 months. The court indicated that the firearm charges were likely the reason defendant was charged in federal court in the first place, and that the acquittal on those charges “mooted the reasons for the federal prosecution.” The court accordingly considered what defendant would have received for the marijuana in state court and sentenced defendant to 24 months in prison. The government appealed.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the district court may not consider what sentence a defendant would have received in state court in fashioning an appropriate federal sentence. The court emphasized that 18 USC § 3553(a)(6), requiring uniformity in sentences, refers only to uniformity between federal sentences, not federal and state sentences. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Smith, 06-5681 (10/11/07)
> Defendant was convicted of bank robbery. At the time he committed the crime, he was on supervised release for two prior felonies. At sentencing, the district court determined that the applicable guideline range was 46-57, but imposed an upward variance to a sentence of 132 months in prison. The upward variance was based largely on defendant’s extensive criminal record. Defendant appealed.
* Holding: The court first held that the sentence was procedurally reasonable. The district court adequately considered defendant’s arguments for a lower sentence, and sufficiently expressed its consideration of the factors under 18 USC § 3553. Second, the court found that the sentence was substantively reasonable. The court rejected defendant’s claim that a sentence outside the guideline range was presumptively unreasonable, but instead, consistent with circuit precedent, applied proportionality review. Although the court noted that the upward variance was significant, the court ruled that it was supported by the fact that defendant was already on supervised release for two prior federal convictions, defendant had 22 prior state convictions starting at age 17, and during the instant federal offense defendant robbed a bank, stole a car, fled to Arkansas, and engaged in a high speed chase with police, eventually crashing the car. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Carter, 07-5551 (12/17/07)
> Defendant was convicted after jury trial of filing false tax returns. At sentencing, the district court imposed a sentence of 15 months incarceration, the bottom end of the guideline range. On appeal, defendant argued that the sentence was unreasonable because the court failed to award a downward variance based upon his family circumstances and the disparity with the sentence of a codefendant.
* Holding: First, the court held that the sentence was procedurally reasonable. The district court correctly computed the guideline range, treated the guidelines as advisory, considered the factors under 18 USC § 3553, did not rely on erroneous facts, and adequately explained its sentence. Second, the court ruled that the sentence was substantively reasonable. The court found that the district court considered defendant’s family circumstances and that defendant’s family, given their medical conditions, would not be unduly harmed by the 15 month sentence. Further, the court ruled that the codefendant’s circumstances were sufficiently distinguishable to justify the difference in sentences. The codefendant received a sentence of probation, but she pled guilty (defendant went to trial), had no criminal record (defendant was criminal history category IV), and the codefendant was not the “prime mover” in the criminal enterprise, but instead acted based on defendant’s suggestions. Thus, defendant’s sentence was substantively reasonable and his sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Smith, 06-6458 (12/17/07)
> Defendant was convicted after trial of armed bank robbery and bank robbery by forced accompaniment for his role in the kidnaping of a bank manager and her family, and the robbing of the manager’s bank. The district court calculated the guideline range to be 324-405 months incarceration, and sentenced defendant to 396 months. Defendant appealed and argued that the district court erred by (1) failing to consider defendant’s argument that the government wrongfully dropped a charge under 18 USC § 924(c) in order to pursue a six-level guideline enhancement, and (2) failing to grant a downward variance based upon disparity with a sentence received by another defendant in a different district.
* Holding: First, the court held that a district court is not required to address arguments made by a defendant at sentencing where the arguments are clearly lacking in merit. The court ruled that a prosecutor has broad discretion in deciding whether to pursue a substantive charge or a sentence enhancement, and there was no merit to defendant’s argument that the prosecutor’s choice in his case was somehow unconstitutional. Second, the court held that defendant’s disparity argument with respect to a defendant from a separate district was unavailing. The court emphasized that “a sample size of two defendants” was not sufficient to show the kind of disparity warranting a reversal, particularly where the defendants were sentenced in different districts. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Lane, 07-5129 (12/20/07)
> Defendant was sentenced to 51 months in prison for a wire fraud scheme. The government subsequently learned that defendant had engaged in additional, but related, wire fraud conduct with another conspirator. The government brought a new wire fraud indictment against defendant. At the sentencing on the new indictment, the district court determined that defendant’s guideline range was 41-51 months, but decided that a sentence of 68 months was appropriate based on defendant’s criminal history. The court imposed the sentence to run concurrently with defendant’s 51 month sentence. During the hearing, the probation officer pointed out to the court that defendant had already served nine months on the prior sentence, and that the court should reduce the 68 month sentence for the time defendant had already served, pursuant to USSG § 5G1.3. The court declined to make the reduction. Defendant appealed and his sole argument on appeal was that the court erred in failing to grant the nine month reduction for the time defendant already served.
* Holding: The court held that defendant’s sentence was reasonable. The court found that the district court correctly determined the applicable guideline range and considered the possibility that it could give defendant credit for the time already served. Based upon its analysis of the factors under 18 USC § 3553, the court concluded, however, that the 68 month term was the appropriate sentence. The court ruled that the district court’s approach violated neither 18 USC § 3742(f)(requiring a remand if the district court incorrectly applies the sentencing guidelines), nor Booker. Therefore, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Sexton, 05-6412 (1/11/08)
> Defendant was convicted of drug trafficking and at sentencing he requested a sentence below the recommended guideline range. Defendant’s argument was based on his community standing, as exhibited by the number of people “attending his bond hearing.” The district court rejected defendant’s argument and sentenced him to 238 months in prison. Defendant appealed.
* Holding: The court first held that defendant’s sentence was procedurally reasonable. The district court calculated the correct guideline range, treated the guidelines as advisory, considered the factors under 18 USC § 3553, explained its sentence, and acknowledged defendant’s argument for a lower sentence. Although the court found that the district court could have provided a more thorough explanation of its reason for rejecting defendant’s argument, it was not required given that the issue was “conceptually simple,” and the record made clear that the court “considered the evidence and arguments.” Further, the court found that defendant had not rebutted the presumption that the within-guideline sentence was substantively reasonable. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Peters, 05-6101 (1/14/08)
> Defendant was convicted of presenting false claims to the IRS and at sentencing he requested a sentence below the recommended guideline range based upon his difficult childhood, his family ties, and “other mitigating factors.” The district court imposed a sentence within the guideline without addressing defendant’s request for a lower sentence. Defendant appealed.
* Holding: The court held that the sentence was procedurally unreasonable. Where a defendant raises non-frivolous reasons for imposing a below-guideline sentence, the district court must address the arguments and explain why it has rejected those arguments. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Klups, 06-1931 (1/10/08)
> Defendant was convicted of traveling with the intent to engage in criminal sexual activity. At sentencing, the district court heard testimony of the child victim and the victim’s counselor, and reviewed the PSR which reflected that defendant repeatedly abused the victim for years. Based on this information, the district court imposed an upward variance from a guideline range of 24-30 month to a sentence of 60 months in prison. Defendant appealed.
* Holding: First, the court held that the sentence was procedurally reasonable. The district court adequately considered the factors under 18 USC § 3553 and articulated its reasons for the sentence. Further, the court found that the sentence was substantively reasonable. Applying the abuse of discretion standard mandated by the Supreme Court in Gall, the court ruled that the 30 month variance was reasonable given the seriousness of the offense and the extreme psychological injury suffered by the victim. The court found proper the district judge’s apparent reliance on defendant’s repeated abuse of the victim over a period of time because, even though the district court did not specifically make the finding, the truth of the allegations was proven by a preponderance of the evidence at sentencing. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was a doctor who was convicted for health care fraud and making false statements to government agents. The health care fraud was based upon defendant’s scheme to provide partial doses of cancer treatment to patients, but bill the federal health program for full doses. At sentencing, the district court heard testimony from family members of defendant’s cancer patients who died. The district court imposed a sentence of 188 months in prison, which was within the guideline range. Defendant appealed the reasonableness of the sentence and argued that it was improper for the court to hear the testimony from deceased patient family members.
* Holding: The court held that consideration of the statements of the deceased patients family members was relevant to the “nature and circumstances of the offense,” (18 USC § 3553(a)(1)), and the need to “reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” (§ 3553(a)(2)(A)). The court emphasized that the treatment provided to defendant’s patients was “part and parcel” to the health care fraud. Thus, the proximity of the patient care to the fraud was an appropriate consideration in sentencing. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Grossman, 06-2310 (1/18/08)
> Defendant was convicted of possession of child pornography. At sentencing, the district court determined that the applicable guideline range was 135-168, but that the statutory maximum was 120 months. After considering the factors under 18 USC § 3553, the court imposed a sentence of 66 months incarceration and 10 years of supervised release. The government appealed.
* Holding: First, the court found that the sentence was procedurally reasonable. The district court correctly calculated the guideline range, treated the guidelines as advisory, considered the § 3553 factors, and adequately explained the basis for the downward variance. Second, the court held that the sentence was substantively reasonable. Specifically, the court ruled that the district court’s decision to award a downward variance was supported by (1) the district court’s findings that defendant was an “educated man” who was amenable to rehabilitation, (2) defendant appreciated the magnitude of his offense and showed empathy for the child victims of offense, (3) the need to deter further criminal conduct and protect the public, which weighed in favor of a substantial reduction, and (4) the ten year period of supervised release, with continued psychological counseling, would provide adequate correctional treatment. Finally, the court dismissed the government’s claims that the district court merely disagreed with the guidelines in relation to the offense because the court found that the district court adequately grounded its consideration of an appropriate sentence in the § 3553 factors. Thus, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Vicol, 06-2605 (1/24/08)
> Defendant was convicted of kidnapping and at sentencing the district court mistakenly believed that an earlier version of the guidelines applied. Accordingly, the court sentenced defendant to 188 months incarceration instead of the applicable guideline range of 360-life. After sentencing, the government filed a motion to correct the sentence. The district court granted the motion and increased defendant’s sentence to 360 months. Defendant appealed and the Sixth Circuit vacated the sentence because the district court had not corrected the sentence within seven days as required by Fed. R. Crim. P. 35. On remand, the district court reimposed the 188 month sentence, and the government appealed.
* Holding: The court held that the district court’s sentence was procedurally unreasonable because it relied on the wrong version of the guideline manual in determining the applicable guideline range. The court found that the error was not harmless because the district court would have imposed a 360 month sentence under the correct guideline range. Thus, the sentence was again vacated. Acknowledging the “terrible judicial inefficiency” of the case, the court indicated that the proper course of action for the government when the seven days expired under Rule 35 was to petition the court of appeals “seeking an immediate remand to the district court so that the mistake could be corrected.”
• Reasonableness of Sentence
U.S. v. Madden, 05-4304 (1/25/08)
> Defendant was convicted for a drug conspiracy and she absconded from pretrial supervision for a year before being sentenced. At sentencing, defendant requested a below-guideline sentence based upon her mental conditions, family responsibilities, aberrant behavior, and minimal role in the offense. The district court touched upon some of these issues, discussed the factors under 18 USC § 3553, and during the course of the hearing exhibited a general familiarity with defendant’s circumstances, but ultimately sentenced defendant within the applicable guideline range. Defendant appealed.
* Holding: The court first found defendant’s sentence to be procedurally reasonable. Although the district court did not specifically discuss and reject each of defendant’s arguments for a below-guideline sentence, the court did provide a fairly detailed analysis and touched on the factors under 18 USC § 3553 that were underlying each of defendant’s arguments for a variance. Regarding substantive reasonableness, the court held that defendant failed to overcome the presumption of reasonableness for a within-guideline sentence. The court noted the facts that defendant rejected mental health treatment for herself and was an absconder from pretrial supervision for a year as factors weighing against the appropriateness of a downward variance. Therefore, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Vowell, 06-5742 (1/29/08)
> Defendants Pratt and Vowell were a mother and her boyfriend who were convicted of (1) coercing a minor (Pratt’s daughter) to engage in sexually explicit conduct and (2) possession of child pornography. Defendants Pratt and Vowell received sentences of 20 years and 45 years respectively. Both defendants’ sentences were above the recommended guideline range, and both defendants appealed the reasonableness of their sentence.
* Holding: The court first held that the sentences were procedurally reasonable. The court ruled that the district court properly calculated and considered the guideline range, considered the factors under 18 USC § 3553(a), and adequately explained its reasoning. Second, the court found that the sentences were substantively reasonable by applying the Gall abuse of discretion standard. Regarding Pratt, the court held that the sentence was reasonable because Pratt completely disregarded her parental responsibility to protect her daughter, and substantially impacted her daughter’s mental health over the long term. The court found unpersuasive defendant’s arguments that she had limited intelligence and was particularly susceptible to Vowell’s influence. Regarding Vowell, the court held that the sentence was reasonable based upon the continuing nature and egregiousness of the abuse, and the fact that defendant had a prior conviction for rape. The court was unpersuaded by defendant’s argument that the guidelines called for a lower sentence than the statutory maximum, and that Pratt received a substantially lower sentence than the 45 year sentence that Vowell received. Accordingly, the sentences were affirmed.
• Reasonableness of Sentence
U.S. v. Conatser, 06-5694 (2/4/08)
> Defendants Conaster and Marlowe were jail guards who participated in a conspiracy to violate the rights of inmates, one of whom died. Defendant Conaster was convicted only of the conspiracy count and received 70 months in prison, and Defendant Marlowe was convicted of conspiracy and six substantive counts, including denying medical attention that resulted in the inmate’s death, and received a life sentence. Defendants both appealed the reasonableness of their sentences.
* Holding: Because both defendants’ sentences were within a correctly calculated guideline range, the court held that both sentences were presumed reasonable. Further, the court found that the district court met the procedural reasonableness requirements for imposing both sentences. Regarding Conaster, the court held that his sentence was substantively reasonable because the district court adequately considered that he had no criminal record, had 135 letters indicating his good character, and that he was a pillar in his community, and concluded that these factors did not warrant a below-guideline sentence. Further, any disparity between defendant’s sentence and that of other codefendants was justified because (1) district courts are not required to consider disparity among codefendants, but only “national disparity,” and (2) the sentencing disparity with codefendants was justified based upon the fact that the codefendants pled guilty, were sentenced for lesser offenses, and they received reductions for cooperating and testifying against Conatser at trial. Thus, Conaster’s 70 month sentence was justified.
Regarding Marlowe, the court found his sentence to be substantively reasonable because the district court properly balanced defendant’s youth, his lack of training, and the overcrowded nature of the jail against the seriousness of the offense and loss to the victims’ families, in fashioning the life sentence. The court noted that the district court extensively elaborated on the difficulty of the determination to impose a life sentence, and held that the court adequately considered all of the relevant factors. Finally, the court found that the sentencing disparity with a codefendant, who received 108 months in prison but was arguably more culpable than Marlowe, was justified because of the codefendant’s decision to plead guilty to a lesser offense, cooperate with the government, and testify against defendant at trial. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Vonner, 05-5295 (2/7/08)
> Defendant was convicted of drug trafficking and at sentencing the district court determined that the applicable guideline range was 108-135 months. Defendant requested a downward variance from the range based upon his neglected and abusive childhood, his 14-month presentence confinement, his assistance to the government, and the mitigating circumstances surrounding his cocaine sales. The district court denied the request without much explanation, and sentenced defendant to 117 months. Before adjourning, the court asked defendant’s counsel if he had any objection to the sentence pronounced, and counsel replied in the negative. Defendant appealed. The original Sixth Circuit panel found that the sentence was procedurally unreasonable because the district court failed to adequately respond to defendant’s requests for a downward variance. Upon the government’s request, the court agreed to rehear the case en banc.
* Holding: Relying on the court’s prior ruling in United States v. Bostic, the en banc court held that defendant’s failure to object to the district court’s refusal to consider his arguments for a downward variance, when afforded the opportunity to do so by the district court, subjected defendant’s appeal to plain error review. Applying plain error review, the court held that, although the district court’s sentencing findings were not “ideal,” the court committed no plain error in its determinations. The court found that the district court did not specifically address each of defendant’s requests for a downward variance, but it did mention the factors under 18 USC § 3553(a) generally and showed that it “understood” defendant’s arguments. As such, the district court’s sentencing procedure did not constitute plain error requiring reversal of the sentence.
Additionally, because the sentence fell within a correctly computed guideline range, the court applied the presumption of reasonableness and concluded that defendant’s sentence was not unreasonably long. The court found that the record offered ample reasons to establish that defendant’s case was a “typical” one and thus deserving the sentence imposed by the district court. Therefore, the original panel ruling was vacated, and defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Phillips, 06-6191 (2/19/08)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing he requested a downward variance from the recommended guideline range based upon the facts that (1) he possessed guns in self defense and (2) his mother was in poor health. In response, the district court specifically ruled that defendant was more of an aggressor with guns, as opposed to one acting in defense, and the court discussed the factors under 18 USC § 3553 generally. The court did not specifically mention defendant’s mother’s ill health. The court sentenced defendant to the top end of the guideline range. At the end of the sentencing hearing, the court asked if defendant had any objections not previously raised, and defendant answered in the negative. Defendant appealed and challenged the procedural reasonableness of the sentence.
* Holding: The court held that, pursuant to Vonner, defendant subjected his procedural reasonableness argument to plain error by failing to raise an objection to the district court’s sentencing procedure. The court found no plain error because the district court addressed defendant’s self-defense argument, and dealt with the considerations underlying defendant’s mother in its general analysis of the § 3553 factors. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Highgate, 06-1447 (4/7/08)
> Defendant was convicted after trial of drug and firearm offenses and at sentencing the district court determined that the applicable guideline range was 360 months to life in prison. The court stated several times on the record that the guidelines “commanded” the sentence, that the sentence did not reflect “where justice or equity or morality would end us up,” and that the sentence was too “heavy,” but it was “the law.” After receiving a sentence of 360 months, defendant appealed.
* Holding: The court held that, given the district court’s comments, it was not clear that the court understood that the sentencing guidelines were not binding in the case. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Hunt, 06-6300 (4/11/08)
> Defendant was a doctor who was convicted of health care fraud. At sentencing, the district court reduced defendant’s sentence from a guideline range of 27-33 months incarceration to a sentence of probation. The court’s decision was based, in part, on its conclusion that defendant may not have had the requisite intent to defraud. The government appealed.
* Holding: The court held that a district court may not rely on a consideration in sentencing that is contrary to a fact found by the jury beyond a reasonable doubt. Thus, because the jury necessarily determined that defendant acted with the intent to defraud, the district court could not reduce defendant’s sentence based on its belief that defendant did not intend to defraud the insurance companies. This was true even though the district court articulated other reasons for the lower sentence. Accordingly, defendant’s case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Penson, 06-3419 (5/27/08)
> Defendant was convicted of three counts of bank robbery. Each count carried a maximum of 240 months in prison. After a Booker remand, the district court orally pronounced a sentence of 310 months on each count, to run concurrently. Thirteen days later, the court issued its written judgment, and imposed sentence as 240 months on two counts, to run concurrently, and 70 months on the third count, to run consecutively. Defendant appealed.
* Holding: First, the court held that the district court’s oral pronouncement controlled as the sentence of the court. The written judgment could not qualify as a correction of the sentence under Fed. R. Crim. P. 35 because it occurred more than seven days after sentencing. Further, the written judgment could not be a correction of a clerical error under Rule 36 because the error was not properly classified as clerical. Thus, because the district court imposed a sentence that was above the statutory maximum, the sentence had to be vacated. Additionally, the court ruled that the district court did not fulfill its procedural reasonableness obligations by permitting defense counsel to adequately advocate for a lower sentence, and the district court did not sufficiently explain its reasons for the sentence. Thus, the case was remanded.
• Reasonableness of Sentence
U.S. v. Erpenbeck, 06-4247 (7/2/08)
> Defendant was convicted of bank fraud and sentenced to 360 months in prison. On appeal, the court remanded the case due to the decision in Booker. At the resentencing hearing before a different judge, the district court recalculated the guidelines in a fashion more favorable to defendant, and instead imposed a sentence of 300 months. The district court declined to reduce the loss amount further based upon alleged collateral received by the victim lender banks since the time of defendant’s original sentencing. Defendant appealed.
* Holding: Relying on the court’s prior decision in U.S. v. Worley (See P.V., Issue #9), the court held that a Booker remand requires the court to impose sentence based on the facts determined at the original sentencing, not on subsequently developed facts. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Curry, 07-6459 (8/5/08)
> Defendant was convicted of participated in a drug conspiracy and at sentencing the district court determined that his guideline range was 324-405 months. The government filed a motion to reduce defendant’s sentence below the recommended guideline range based upon his cooperation, and the court imposed a sentence of 240 months. Defendant appealed, and his appellate counsel moved to withdraw and filed an Anders brief.
* Holding: The court determined that the withdrawal of counsel was appropriate because it found no merit to defendant’s appeal. The court held that a court of appeals may apply a “more demanding” standard than the “presumption of reasonableness” to a defendant’s appeal where the defendant received a below guideline sentence. Applying this “more demanding” standard, the court ruled that defendant’s sentence was reasonable and affirmed the sentence.
• Reasonableness of Sentence
U.S. v. Davis, 05-3784 (8/12/08)
> Defendant was convicted of bank fraud and his first sentence was vacated on appeal due to the intervening decision in Booker and an incorrect guideline computation. At the second sentencing, the district court granted a downward variance from the guideline range of 30-37 months to a sentence of one day in jail. The Sixth Circuit vacated this sentence because the 99.89% variance did not comport with the court’s then prevailing proportionality review. (See P.V., Issue #9). At the third sentencing, the district court again imposed a sentence of one day in jail, concluding that the downward variance was warranted by the fact that it had been 14 years since defendant committed the offense, and he was 70 years old. The government appealed.
* Holding: The court held that the district court’s reliance on the time period between the commission of the offense and the sentencing was improper. The court ruled that a delay in sentencing will not favor a variance unless there has been a finding of government misconduct or prejudice to the defendant. Thus, the court determined that the case had to again be remanded in order for the district court to determine whether the defendant’s age, combined with any other permissible factors, warranted the substantial downward variance. The court noted that, although age is a discouraged factor under the guidelines, it “may well be an appropriate factor in choosing to grant a downward variance.” Nonetheless, the court determined that it was not “self-evident” that defendant’s age alone justified a sentence of one day in a case involving a $900,000 fraud loss. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Obi, 07-1400 (9/5/08)
> Defendant was convicted of drug trafficking and at sentencing the district court imposed an obstruction of justice enhancement. On appeal, the Sixth Circuit held that the obstruction of justice enhancement should not apply and remanded the case for resentencing.
On remand, the district court conducted a de novo resentencing, and considered additional evidence supporting the obstruction enhancement. The court made new findings supporting the obstruction enhancement, and reimposed the same sentence. The court further held that it would impose the same sentence, even absent the obstruction enhancement, based on its assessment of the factors under 18 USC § 3553. Defendant appealed.
* Holding: The court held that, even if the district court erred by imposing the obstruction of justice enhancement on remand, the error was harmless. The district court clearly stated on the record that, even without the obstruction enhancement, it would have imposed an upward variance under § 3553 and sentenced defendant to the same sentence. Thus, the court found that the error did not affect the district court’s selection of the sentence imposed. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Alexander, 07-1758 (10/7/08)
> Defendant was convicted of trafficking crack cocaine, and he committed another drug offense while awaiting sentencing. Defendant argued at sentencing that he was entitled to a below-guideline sentence based upon the fact that his record was relatively non-serious, his serious health problems, and the crack-powder cocaine disparity. The district court determined that defendant was a career offender, declined to award acceptance of responsibility, and sentenced defendant to 360 months in prison. Defendant appealed the reasonableness of the sentence.
* Holding: The court held that defendant’s sentence was both procedurally and substantively reasonable. The court found that the district court adequately considered defendant’s arguments, and analyzed the factors under 18 USC § 3553. Further, the court noted that the district court sentenced defendant to the bottom end of the guideline range. Additionally, the court ruled that the crack guideline amendment, which reduced the penalty for crack cocaine by two-levels, would not affect defendant’s sentence because he was sentenced as a career offender. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Henry, 05-2084 (10/17/08)
> Defendant went to trial and was convicted of drug trafficking. Defendant was proven to be a leader in a large scale cocaine enterprise that distributed 800 kilograms of cocaine. At sentencing, the district court determined that the proper guideline range was 324-405 months, but sentenced defendant to 180 months in prison. Both the government and defendant appealed.
* Holding: The court held that the sentence was procedurally unreasonable. Although defendant argued that a lower sentence was warranted based on his exemplary life, family circumstances, and the disparity with the codefendants’ sentences, the court found that the only information discussed by the district court that was “specific” to defendant was defendant’s “leadership role in the conspiracy, his decision not to plead guilty, and his strong family and community support.” In the end, this analysis by the district court did not provide the “substantial reasons” necessary to justify such a “substantial variance.” Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Blackie, 07-2002 (11/21/08)
> Defendant was convicted of possession of child porn. At sentencing, the district court determined that certain guideline enhancements would not apply as recommended in the PSR. The district court then imposed a sentence without stating the reduced guideline range that it was applying. The sentence turned out to be one month higher than the adjusted guideline range. In the district court’s written judgment it acknowledged that the sentence was above the guideline range. Defendant appealed.
* Holding: Because defendant failed to object to the above-guideline sentence, the court applied plain error. The court found plain error where the district court failed, at the sentencing hearing, to provide any acknowledgment of the guideline range it was applying or any explanation for the one month upward variance. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Presley, 07-1147 (11/24/08)
> Defendant and his codefendant were convicted of a large scale drug trafficking conspiracy. On appeal, both cases were remanded for resentencing in light of Booker. The codefendant’s case was also reversed based upon a suppression issue. On remand, the government determined that its case against the codefendant was weakened, and it decided to work out a plea agreement with the codefendant, reducing his original sentence from 360 months to 96 months incarceration. The government, however, pursued the same 360 month sentence against defendant. The district court, relying on the disparity between defendants, reduced defendant’s sentence to 120 months, the mandatory minimum. The government appealed.
* Holding: The court held that defendant’s reduced sentence was reasonable. Although 18 USC § 3553(a)(6) is concerned with national sentencing disparities, a district court may choose to consider disparities among codefendants in fashioning an appropriate sentence. The court held that the district court properly considered the two defendants criminal history categories and their relative culpability in the offense in assessing an appropriate downward variance in defendant’s sentence. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Stephens, 07-1907 (11/25/08)
> Defendant was convicted of drug offenses and at sentencing the district court determined that he was a career offender. Defendant requested a downward “departure” from the guideline range based upon the age and minor nature of his prior convictions, his lack of parental support, and his mental and emotional condition. The district court denied the downward “departure,” briefly acknowledged defendant’s lack of parental guidance and his family responsibilities, and sentenced him to 270 months incarceration. Defendant appealed.
* Holding: The court held that the sentence was procedurally unreasonable. Although both defendant and the district court referred only to a downward “departure,” the district court was nonetheless required to justify its sentence based on the factors under 18 USC § 3553(a), particularly where the guideline range exceeded 24 months. The court found that the district court’s lack of analysis of the § 3553(a) factors required a remand for resentencing.
• Reasonableness of Sentence
U.S. v. Johnson, 07-2447 (1/26/09)
> Defendant was convicted of conspiracy and distribution of crack. At sentencing, defendant argued for a downward variance from the guideline range based on numerous factors. The district court reduced defendant’s offense level by two levels based on the crack amendment, which had become effective a few weeks before sentencing, but denied defendant’s request for a downward departure. Defendant appealed and during the pendency of the appeal, the Supreme Court rendered it decision in Spears v. U.S.. (See supra).
* Holding: Relying on Spears, the court held that the case had to be remanded for the district court to consider in the first instance whether it would choose to categorically vary downward from the crack sentencing guideline. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Guthrie, 07-6215 (3/2/09)
• Defendant was convicted of car-jacking and firearm offenses. At sentencing, the district court determined that defendant’s guideline range for the car-jacking was 360-life, and that a 10 year mandatory consecutive sentence was applicable for defendant’s firearm conviction. The district court concluded: “And that brings us up to the possibility of 40 years. But I’m not going to go that high. I just think that’s too long. And where I’m looking at is 25 years.” The district court indicated that it had considered all of the sentencing factors, and it imposed a sentence of 180 months under the guidelines, and 10 years consecutive for the firearm conviction, yielding a total of 25 years. The government appealed.
* Holding: In U.S. v. Franklin (See P.V., Issue #15), the Sixth Circuit reversed a defendant’s sentence where the district court admitted that it reduced a guideline sentence because the defendant was also facing a 7 year consecutive sentence for a firearm charge. Distinguishing Franklin, the court held that the district court in this case gave no such “explicit improper explanation.” The court found that the district court’s decision merely reflected its opinion that the 40 year total advisory sentence was too long. The court noted that it was “possible” that the district court considered the effect of the mandatory 10 year sentence, but the court stated that it was unwilling to reverse absent more explicit evidence in the record. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Blue, 07-5296 (3/9/09)
> Defendant cooperated with the government regarding others involved in drug trafficking, and such cooperation led to the prosecution of another drug dealer. During plea discussions, the government insisted that defendant plead guilty to the crime related to her cooperation, as well as a previous drug offense for which she had not been prosecuted. Defendant declined this offer, and ultimately the government allowed her to plead only to the latter conduct. As a result, however, the government declined to file a motion pursuant to USSG § 5K1.1. Instead, defendant filed a motion under § 5K1.1 requesting a departure based on her cooperation. The district court denied the motion, and defendant appealed.
* Holding: The court held that, after Booker, a district court may consider a defendant’s cooperation with the government as part of its analysis in determining an appropriate sentence pursuant to the factors under 18 USC § 3553. However, the sole discretion on whether to file a motion for downward departure under § 5K1.1 rests with the government. Because defendant assigned error only to the failure to grant the § 5K1.1 motion, and not the reasonableness of the sentence pursuant to § 3553, the court declined to review the district court’s ruling. Thus, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Recla, 07-1252 (3/25/09)
> Defendant was convicted of conspiracy to distribute oxycodone. At sentencing, defendant argued for a downward variance from the guideline range based on defendant’s health and substance abuse issues, his cooperation (although no substantial assistance motion was filed by the government), and the time he spent in state custody prior to the federal charges. The district court rejected the health and substance abuse issues, declined the argument based on cooperation because of the possibility of a Rule 35 motion in the future, and did not discuss defendant’s argument about the time he had spent in state custody. The district court imposed a sentence at the top end of the guideline range and defendant appealed.
* Holding: The court held first held that the district court’s consideration of the possibility of a future Rule 35 sentence reduction was not a proper consideration under 18 USC § 3553(a). Thus, to the extent that the district court may have considered this possibility in imposing a higher sentence, the district court erred and a remand was required. Second, the court held that a district court should articulate the reasons, even if brief, for any nonfrivolous argument raised by a defendant for a reduced sentence. Because the district court failed to mention the time defendant spent in state custody – which was a “valid basis for reducing his sentence” – the court instructed the district court to consider the issue on remand.
• Reasonableness of Sentence
U.S. v. Carson, 05-1812 (3/30/09)
> Defendant Carson was a police officer who severely beat a motorist. He was charged with deprivation of civil rights under color of law, conspiracy to obstruct justice, and obstruction of justice. The district court imposed a sentence of 33-months imprisonment, the bottom end of the guideline range, while all of the other officer-defendants received probation. Defendant appealed and argued that the disparity among codefendants required vacation of the sentence.
Defendant Jacquemain was an officer convicted of conspiracy to obstruct justice in relation to the same incident. At sentencing, the district court determined that the appropriate guideline range was 15-21 months, but it imposed a downward variance and imposed a sentence of probation with six months of home confinement. The government appealed.
* Holding: Regarding Defendant Carson, the court first held that the sentencing-disparity factor under 18 USC § 3553(a)(6) relates to national disparity rather than disparity in an individual case. Even so, the court found that codefendant disparities may result from “differences in criminal histories, the offenses of conviction, or one coconspirator’s decision to plead guilty and cooperate with the government.” The court ruled that only one other codefendant was found guilty of actually committing an assault, and thus violating the victim’s civil rights, and that codefendant pled guilty and cooperated with the government. Thus, the disparities among codefendants was justified by the plea and cooperation, or based upon the offenses of conviction. Accordingly, Defendant Carson’s sentence was affirmed.
Regarding Defendant Jacquemain, the court held that the downward variance was justified by the spontaneous nature of the beating and the cover up, defendant’s otherwise exemplary record as an officer, and the “impetuous” nature of the obstruction of justice – a single line in a police report. Relying on Gall, the court emphasized that a sentence of probation was a substantial restriction of a defendant’s liberty, and that it was not substantively unreasonable under the circumstances. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Gapinski, 08-1193 (4/2/09)
> Defendant was convicted in a conspiracy to manufacture marijuana. At sentencing, the government moved for a sentence reduction based on defendant substantial assistance, but the district court only granted the reduction in part, holding that future cooperation may be awarded by a Rule 35 motion. On appeal, the Sixth Circuit remanded based on Booker. At the resentencing, defendant requested a downward variance based, in part, on his continued cooperation after sentencing, including his availability to testify against a codefendant who pled guilty. The district court awarded an additional downward variance from the guidelines, but did not acknowledge defendant’s argument regarding his continued cooperation. Prior to completion of the hearing, the district court asked counsel if she had “anything else for the record.” Counsel responded in the negative. Defendant appealed his sentence and argued that it was procedurally unreasonable because the district court failed to consider his argument for a downward variance based on his cooperation.
* Holding: First, the court held that Bostic did not preclude the defendant’s argument because the district court did not clearly ask counsel at the end of the hearing whether she had objections that had not been previously raised. Second, the court ruled that the district court committed procedural error by not satisfactorily addressing defendant’s argument regarding his further cooperation. The court acknowledged that the extent of a departure under USSG § 5K1.1 was not appealable, but held that a court must consider a defendant’s non-frivolous argument under § 3553(a) that his or her cooperation warranted a downward variance. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Perez-Vasquez, 07-6390 (4/30/09)
> Defendant was convicted of illegal reentry and the district court imposed a sentence at the top end of the guideline range, to run consecutively to a state sentence defendant was serving for burglary. Defendant argued for a downward variance based on the fact that the district did not have a fast-track program for illegal reentry cases, and requested that the federal sentence run concurrently with the state sentence. The district court declined defendant’s requests and defendant appealed.
* Holding: The court held that the district court was not required to reduce a sentence under the factors set forth in 18 USC § 3553(a) because other districts had fast track programs. Further, the court held that the matter of whether a federal sentence runs consecutively with a state sentence is left to the sound discretion of the district court and is only reviewed for abuse of discretion. Finding no such abuse, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Garcia-Robles, 07-2209 (4/0/09)
> Defendant was convicted of illegal reentry and his sentencing guideline range was determined to be 30-37 months. At sentencing, defendant requested a sentence of 24 months, and the government requested a sentence in the guideline range. Instead, the district court imposed an upward variance from the sentencing guideline range to a sentence of 96 months imprisonment. The variance was based on the fact that defendant had previously received a sentence of 46 months for illegal reentry and had not learned his lesson, and because the court found him to be very dangerous to society. The court did not afford the parties the opportunity to object to the variance at the hearing, but allowed a period of time for the parties to object in writing to the sentence. The district court imposed its written judgment before the parties’ time period to object had expired. Defendant appealed.
* Holding: The court held that, pursuant to the Supreme Court’s decision in Irizarry (See P.V. Issue #20), a district court is not required to give the parties notice prior to imposing an upward variance from the guideline range. Nonetheless, the district court must provide adequate opportunity for the parties to object and state reasons for opposition to an upward variance before it is imposed. The court held that the district court’s sentence was procedurally unreasonable because defendant was not afforded adequate opportunity to voice objections to the district court’s upward variance prior to imposition of the sentence. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Guest, 07-1922 (5/4/09)
> An undercover agent posed on the internet as a mother willing to allow others to have sex with her minor children. Defendant took the bait and traveled from Indiana to Michigan, where he was arrested by agents. Defendant was convicted and at sentencing he argued sentencing entrapment and sentence manipulation. The district court rejected these arguments, but sentenced defendant to 31 months below the guidelines. Defendant appealed.
* Holding: The court held that the intervening Supreme Court decisions in Gall and Kimbrough did not overrule the Sixth Circuit’s long standing refusal to recognize either sentencing entrapment or sentencing manipulation as a defense. The court alternatively held that, even if the court did recognize the defenses, they were inapplicable on the facts of defendant’s case. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S.v. Barahona-Montenegro,08-1345(5/14/09)
> Defendant was convicted of being a previously deported immigrant in possession of a firearm. At sentencing, defendant pursued an objection that his criminal history category should be one level lower than indicated in the PSR. The district court did not specifically rule on the objection, but instead stated that, whether or not it sustained defendant’s objection, it would consider defendant to be in the higher category because of aggravating factors in the case. The court then imposed a sentence that was two months higher than the guideline range applicable to the higher criminal history category. Two months later, the district court issued its written judgment, and justified the sentence based on an upward departure. Defendant appealed.
* Holding: The court held that the sentence was procedurally unreasonable. The court ruled that the district court is required to make rulings on objections at the sentencing hearing, and to state any reasons for a sentence above the guideline range on the record. The court found that the district court’s explanation at the sentencing hearing was inadequate, and the statements in its written order, issued two months later, did not sufficiently explain its reasons for the sentence it chose. Accordingly, defendant’s case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Grams, 08-1697 (5/29/09)
> Defendant was convicted of bank robbery and the probation officer determined that defendant’s guideline range was 46-57 months. The probation officer recommended either an upward departure under the guidelines or an upward variance pursuant to the factors under 18 USC § 3553, both of which would have yielded a guideline range of 57-71 months. At sentencing, the district court made reference to an upward departure based on the criteria listed by the probation officer, but imposed a sentence of 72 months. The government pointed out that the sentence was one month higher that the suggested range, but the district court indicated that “one month is negligible.” In its written order, the court justified the sentence as an upward variance under the § 3553 factors. Defendant appealed.
* Holding: The court found that the sentence was procedurally unreasonable. The court emphasized that a district court is required to state its reasons for sentence in open court, and state with specificity its reasons for going outside a suggested guideline range. Further, the court noted that any amount of jail time, even one month, has constitutional significance. The court ruled that, given the district court’s statement about the additional one month, and its failure to accurately account for how it reached its sentencing determination (departure vs. variance), the case had to be remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Herrera-Zuniga, 08-1540 (7/8/09)
> Defendant was convicted of illegal reentry and the district court determined that the applicable guideline range was 24-30 months imprisonment. Defendant’s criminal history category was VI, based in large part on defendant’s repeated DUI offenses. The district court determined at sentencing that the guideline range was not sufficient punishment, and imposed a sentence of 48 months. The district court expressed a policy disagreement with USSG § 2L1.2(a), the illegal reentry guideline, and also justified the higher sentence based on defendant’s extensive criminal history, likelihood of recidivism, and repeated immigration violations. The court failed to specify whether the higher sentence was based on an upward departure or variance, and never identified the final sentencing range it was applying. Defendant appealed.
* Holding: The court held that the sentence was both procedurally and substantively reasonable. First, the court ruled that, after the Supreme Court’s decisions in Kimbrough and Spears, the district court possessed the authority to make a “categorical, policy-based rejection of the guidelines.” Thus, the court found that the district court’s finding that § 2L2.1 was “arbitrary and out of balance” was appropriate in the case.
Second, the court held that the district court’s failure to delineate whether the higher sentence was based on a departure under the guidelines, or a variance under the § 3553 factors was not fatal. The court found that the district court gave an adequate explanation of its reasoning, and provided justification for the sentence both as a departure and a variance. Further, the court held that the district court was not required to mechanically consider each guideline range higher than 24-30 months in arriving at the final sentence of 48 months.
Third, the court ruled that the sentence was substantively reasonable based on the district court’s findings that defendant had a significant criminal history, was a recidivist, the seriousness of his offenses, the nature and circumstances of the current charge, defendant’s repeated failure to comply with treatment programs, and the need to protect the public from further DUIs. Accordingly, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Michael, 07-2187 (8/11/09)
> Defendant was convicted of crack and firearm charges and the district court determined that defendant was a career offender. Because the sentencing range under the statute for the crack was 10 years to life, defendant’s sentencing guideline range under the career offender provision of USSG § 4B1.1 was level 37. Defendant was sentenced to 420 months incarceration and he appealed. Defendant argued for the first time on appeal that the district court failed to recognize its discretion to reject the 100:1 crack to powder ratio.
* Holding: The court held that, under the circumstances of the case, the district court could have considered the crack-powder disparity in sentencing defendant as a career offender. If crack and powder were punished on a 1:1 ratio, defendant’s statutory maximum penalty would have been 30 years, instead of life. Thus, his guideline range under USSG § 4B1.1 would have been 34, instead of 37. The district court could have considered this disparity in assessing the factors under 18 USC § 3553. However, because defendant did not object to the sentence in the district court, the court applied plain error. The court found no plain error in the district court’s imposition of a 420 month sentence, and affirmed the district court’s ruling.
• Reasonableness of Sentence
U.S. v. Brown, 07-4197 (8/26/09)
> Defendant was convicted of production of sexually explicit pictures of his infant, twin daughters, and for receipt of child pornography over the internet. At sentencing, defendant advocated for a sentence below the recommended guideline range based on the facts that defendant had only a ninth-grade education, was borderline mentally retarded, was himself abused as a child, and was ever previously accused of improper sexual conduct with a child. The district court denied the request, and sentenced defendant to 327 months imprisonment, the top end of the applicable guideline range. Defendant appealed.
* Holding: The court held that the district court properly considered the factors under 18 USC § 3553, and considered and rejected defendant’s arguments for a reduced sentence. The court noted that defendant’s arguments on appeal indicated that, given his history and characteristics, a different sentence may be “justified,” but the court found that, because of the district court’s thorough analysis of the factors, a different sentence was not “required.” Accordingly, the court held that the sentence was reasonable and affirmed the district court’s ruling.
• Reasonableness of Sentence
U.S. v. Stall, 08-4064 (9/11/09)
> Defendant was convicted of two counts of possession of child pornography for 18 images found on his computer. At sentencing, the district court determined that the applicable guideline range was 57-71 months. Defendant requested a downward variance based on his remorse, rehabilitative efforts, family support, education and work history, lack of criminal record, and low likelihood of reoffending. The government put forward almost no evidence to support a sentence within the guideline range. The district court imposed a sentence of 1 day in jail and 10 years of supervised release. The government appealed.
* Holding: The court held that the sentence was procedurally and substantively reasonable. The court commented that the record was extremely one-sided because the government did not develop any arguments in the district court as to why a lower sentence was improper. Thus, based on the state of the record, and the grounds provided by defendant for a downward variance, the court found that the district court’s sentence was not an abuse of discretion.
• Reasonableness of Sentence
U.S. v. Maye, 07-4311 (10/5/09)
> Defendant was convicted of distribution of crack and at sentencing the district court imposed a sentence at the bottom end of the applicable guideline range. Shortly thereafter, the district court resentenced defendant based on the impending crack amendment, reduced defendant’s guideline range by two levels, and imposed a sentence at the low end of the reduced range. Defendant appealed.
* Holding: The court held that the district court failed to demonstrate on the record that it recognized its discretion to deviate from the crack cocaine guideline based solely on a policy disagreement with the guideline, pursuant to Kimbrough and Spears. Accordingly, the district court was instructed on remand to provide the appropriate consideration for the record.
• Reasonableness of Sentence
U.S. v. Rosenbaum, 08-1339 (11/3/09)
> Defendant was charged with conspiracy and harboring illegal aliens. After one attempt to flee the country, defendant pled guilty and cooperated with the government. Prior to sentencing, the government moved for a sentence reduction, pursuant to USSG § 5K1.1. Additionally, defendant requested a below-guideline sentence based on his age, poor health, lack of criminal record, mentally disabled son, and cooperation. The district court denied the sentence reduction and sentenced defendant at the statutory maximum, which was within the guideline range. In denying, the § 5K1.1 motion, the court stated that it did not believe that defendant had provided substantial assistance to the government as of the time of sentencing, however, it would consider a Rule 35 motion if further cooperation was provided in the future. Defendant appealed.
* Holding: Distinguishing the court’s previous decision in Recla (See P.V., Issue #25), the court held that the district court did not impermissibly base its decision to deny the § 5K1.1 motion on the possibility of a future Rule 35 motion. The court found that the district court properly considered defendant’s level of cooperation and simply concluded that it did not rise to the level of substantial assistance required by § 5K1.1. The court noted, however, that district courts should use an “appropriate level of care when discussing Rule 35, if at all, at sentencing.” Further, the court ruled that defendant’s sentence was substantively reasonable. Accordingly, the district court’s ruling was affirmed.
• Reasonableness of Sentence
U.S. v. Simmons, 07-3449 (11/23/09)
> Defendant was convicted of possession of crack with intent to distribute and being a felon in possession of a firearm. At sentencing, defendant requested a downward variance from the sentencing guideline range based on the disparity between crack and powder cocaine. The district court did not specifically address defendant’s argument regarding the disparity, and sentenced defendant within the guideline range. The district court asked defendant whether he had any additional objections, to which defendant’s counsel responded that defendant objected “on both procedural and substantive grounds.” Defendant appealed.
* Holding: First, the court held that defense counsel’s response to the district court’s inquiry regarding objections to the sentence was too general to preserve defendant’s argument regarding the procedural reasonableness of the sentence. Specifically, the court found that “where a party answers the Bostic question in the affirmative, but at such a high degree of generality that the district court has no opportunity to correct its purported error,” plain error review applies to a claim of procedural unreasonableness.
Second, the court held that the district court’s failure to address defendant’s argument regarding the crack-powder disparity was not plain error. The court ruled that the argument was a “conceptually straightforward legal argument” with which “the sentencing judge was no doubt familiar.” Because the district court said nothing in the record to suggest that the district court did not understand the argument, and the district court repeatedly acknowledged that the guidelines were advisory, the court found no plain error.
Finally, the court ruled that the district court otherwise adequately addressed the factors under 18 USC § 3553, the district court did not misunderstand its authority to deviate categorically from the guidelines, and the sentence was substantively reasonable. Accordingly, the court found no error in the district court’s sentencing determinations. Nonetheless, the court remanded the case for resentencing based on the intervening crack amendment which lowered defendant’s guideline range by two levels.
• Reasonableness of Sentence
U.S. v. Petrus, 08-1706 (11/23/09)
> Defendant was convicted of conspiring to distribute meth. At sentencing, defendant advocated for a sentence below the guideline range because he was a first-time offender, would face severe deportation consequences in returning to Iraq, took care of his family from a young age, and was willing to cooperate with the government even though his cooperation was not needed. The district court reviewed defendant’s arguments, discussed the factors under 18 USC § 3553, and imposed a sentence at the bottom end of the guideline range. Defendant appealed.
* Holding: The court first ruled that the best practice for district courts is to “explicitly address all of the nonfrivolous arguments that a defendant raised in support of a lower sentence.” The court found that the district court indicated on the record that it considered each of defendant’s arguments for a lower sentence, and that the district court adequately considered the factors under § 3553. Thus, although the district court did not elaborate on its reasons for rejecting each of defendant’s arguments, its sentencing findings were adequate to support the sentence. Additionally, the court held that the sentence was substantively reasonable. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Novales, 07-3663 (12/16/09)
> Defendant was convicted of participating in a drug conspiracy, and the parties agreed to a joint recommendation for a 105 month sentence. This recommendation was below the statutory mandatory minimum 10 year sentence and was based on defendant’s cooperation. At sentencing, the district court imposed a sentence of 110 months without explanation or discussing the guideline range. In its written judgment that followed, however, the court imposed a sentence of 100 months, with no further explanation. Defendant appealed and his counsel (who also represented him in the district court) filed an Anders brief. The Sixth Circuit ruled that there were colorable issues on appeal, and appointed defendant new counsel.
* Holding: The court ruled that the sentence imposed by the district court was procedurally unreasonable because the district court failed to adequately determine and discuss the appropriate sentencing guideline range in imposing sentence. Accordingly, the case was remanded for resentencing.
• Reasonableness of Sentence
U.S. v. Camiscione, 08-4294 (1/13/10)
> Defendant was convicted of possession of child pornography and at sentencing the district court determined that the applicable guideline range was 27-33 months. Based on the fact that defendant acknowledged having a problem, had no prior record, had not ever abused a child, had made efforts to rehabilitate, and received a good prognosis from his doctor, the district court imposed a downward variance to one day in jail, three years of supervised release, and 180 hours of community service. On appeal, the Sixth Circuit reversed the sentence because the district court had not adequately considered the factors under 18 USC § 3553. On remand, the district court expanded on the record, and imposed the same sentence. The government appealed.
* Holding: The court again found the district court’s sentence to be substantively unreasonable. Specifically, the court held that the district court failed to consider “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to avoid unwarranted sentence disparities.” The court noted that, although the district court did consider many appropriate factors, the court failed to address the above-listed factors and also considered an improper sentencing consideration, namely defendant’s vulnerability “to what happens to people accused of these kinds of criminal matters in the general population” in prison. Additionally, in distinguishing two prior cases where the court upheld more significant downward variances, the court noted that the district court did not impose house arrest, a lengthy period of supervised release, or a significant fine. Finally, the court indicated that it was influenced by the fact that, after defendant’s conviction, Congress increased the penalty for receipt of child pornography to a mandatory five years. Although this increased penalty did not apply to defendant, the court stated that it had “serious questions about the reasonableness of the district court’s sentence,” given the large discrepancy. Accordingly, defendant’s sentence was again vacated.
• Reasonableness of Sentence
U.S. v. Gillis, 07-3754 (1/19/10)
> Defendant was convicted of possession of crack with intent to distribute in a school zone. At sentencing, the district court determined that defendant was a career offender. Relying on the then-prevailing law in the Sixth Circuit, the district court indicated that it did not have the discretion to reject Congress’ intent behind the career offender provision and impose a lower sentence. Defendant appealed, and the government confessed error on appeal, but argued that the error was harmless because the district court would have imposed the same sentence. Additionally, defendant appealed the district court’s denial of his subsequent motion, pursuant to 18 USC § 3582, for reduction of sentence based on the crack amendment.
* Holding: The court first held that a district may impose a downward variance from the guideline range based on a categorical policy disagreement with the career offender provision. Second, the court held that the error was not harmless. The court found that, although the district court impliedly indicated that it may have imposed the same sentence even if it believed it could categorically depart, the district court imposed a sentence at the bottom end of the guideline range. Thus, the court ruled that the district court may have imposed a lower sentence had it realized its error. Accordingly, defendant’s sentence was vacated.
Additionally, the court held that the district court’s denial of defendant’s § 3582 motion was proper because defendant was a career offender. Accordingly, the denial of the § 3582 motion was affirmed.
• Reasonableness - Consecutive Sentences
U.S. v. Watford, 05-6184 (11/14/06)
> Defendant was convicted of drug trafficking and firearm offenses and at the time of sentencing, he was also facing several life sentences from the State of Illinois. The district court imposed a 240 month sentence to run consecutively to the life sentences. Defendant appealed.
* Holding: As with the determination of the length of a jail sentence, the decision as to whether a sentence runs concurrently with an undischarged term of imprisonment is in the discretion of the district court and is reviewed for reasonableness. In order to be reasonable, the district court must display on the record its assessment of the relevant guideline and statutory considerations, and must reach a reasonable sentence. In the case, the court found that the district court had considered the appropriate guideline and statutory provisions and that its decision to run its sentence consecutively to the Illinois sentences was reasonable. Thus, the sentence was affirmed.
• Reasonableness - Consecutive Sentences
U.S. v. Gibbs, 06-1916 (10/29/07)
> Defendant was convicted of being a felon in possession of a firearm and at the time was facing a revocation of his state parole. At sentencing, the district court indicated that defendant’s sentence on the firearm charge “must be consecutive” to the state sentence on the parole violation, and imposed sentence accordingly. Defendant appealed.
* Holding: The court held that USSG § 5G1.3(c) specifically provides discretion to the district court in determining whether a federal sentence should be consecutive to a state parole revocation sentence. The court ruled that, because the district court failed to recognize that it had discretion to impose a concurrent sentence, the case had to be remanded for resentencing. Remand was further necessary because a district court’s assumption that any aspect of the sentencing guidelines is mandatory creates a presumption of prejudice to defendant’s substantial rights. Accordingly, the sentence was vacated and the case remanded for resentencing.
• Reasonableness - Consecutive Sentences
U.S. v. Berry, 08-1048 (5/14/09)
> Defendant was convicted after trial for narcotics and firearm offenses. At sentencing, the district court determined that the applicable guideline range was 360-life, and the mandatory minimum sentence was 15 years. Based on his age, lack of serious criminal record, and low culpability, defendant moved for a downward variance and requested that the sentence run concurrent to his state probation violation The district court imposed a sentence of 360 months to be served consecutively to the state sentence. Defendant appealed.
* Holding: The court held that the sentence was both procedurally and substantively reasonable. Specifically, in relation to the consecutive nature of the sentence, the court ruled that a district court must consider the following: (1) the factors under 18 USC § 3553; (2) the type and length of the prior undischarged sentence; (3) the time served and the time remaining on the prior sentence; (4) the fact that the prior sentence may have been imposed in state rather than federal court, or at a different time before another federal court; and (5) any other relevant factor. In the case, the court held that the district court adequately expressed its consideration of factors relevant to the inquiry, and that the determination for a consecutive sentence was reasonable. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence-Harmlessness
U.S. v. Anderson, 07-5037 (5/27/08)
> Defendant was convicted of money laundering. At sentencing, the district court improperly calculated the guideline range by failing to credit defendant with a two-level reduction under the safety valve, and by awarding defendant a four-level reduction for playing a minimal role. The government argued on appeal that any guideline computation errors were harmless because the district court indicated that it would impose the same sentence as recommended by the guidelines based on the factors under 18 USC § 3553.
* Holding: The court held that, after the Supreme Court’s decision in Gall (See P.V. Issue #17), it will be a rare occasion where the court finds an improper guideline calculation by the district court to be harmless error. A guideline error is a “significant procedural error” which “rarely, if ever” can be considered harmless because the guidelines are the “benchmark” and “starting point” for all sentencing determinations. Accordingly, the court held that the district court’s incorrect application of the guidelines was not harmless error, and remanded the case for resentencing.
• Reasonableness - Crack Amendment
U.S. v. Vandewege, 07-2250 (4/8/09)
> Defendant was convicted of distribution of cocaine and during the pendency of his appeal, the Sentencing Commission reduced the crack penalty by two levels. Defendant argued on appeal that his case had to be remanded for resentencing.
* Holding: The court held that remand was appropriate under 18 USC § 3582(c)(2) because the crack guideline had been amended to reduce defendant’s guideline range. Further, the court noted that the district court affirmatively stated that it could not reduce defendant’s sentence based on a policy disagreement with the crack guideline, contrary to the Supreme Court’s recent decision in Spears. (See P.V. Issue #24). Thus, resentencing was appropriate based on “the factors set forth in section 3553.”
• Reasonableness - Crack Amendment
U.S. v. Perdue, 08-4358 (7/14/09)
> Defendant was convicted of possession of crack with intent to distribute and at sentencing the district court determined that he was a career offender. After passage of the crack amendment, defendant moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion, and defendant appealed.
* Holding: The court held that defendant’s status as a career offender made him ineligible for the two-level reduction authorized by the crack amendment. Accordingly, defendant’s sentence was affirmed.
• Reasonableness - Crack Amendment
U.S. v. Quinn, 08-6217 (8/6/09)
> Defendant was convicted of possession of crack and being a felon in possession of a firearm. After defendant was sentenced, he moved to modify his sentence based on the crack amendment, and the district court granted the motion. Because of the way the court applied the grouping rules for the two offenses, however, defendant received only a one-level reduction. Defendant appealed.
* Holding: The court held that the district court correctly calculated and applied the sentencing guidelines and the grouping rules. The court emphasized that a district court must always first determine the correct guideline calculation in reaching an appropriate sentence. The court noted that there is a circuit split over whether Booker applies to a modification of sentence based on the crack amendment, but the court chose not to resolve the split because defendant had not requested a downward variance from the guideline range in either the district court or the Sixth Circuit. Accordingly, the sentence was affirmed.
• Reasonableness - Crack Amendment
U.S. v. Metcalfe, 08-1812 (9/28/09)
> Defendant was convicted of conspiracy to distribute cocaine and was sentenced to 32 months imprisonment. Defendant did not appeal his sentence, but subsequently moved to reduce his sentence based on the crack amendment, pursuant to 18 USC § 3582. Defendant argued in his motion that 3.81 grams of crack were improperly attributed to him at his original sentencing, but that defendant did not object to it because it was not relevant at the time. The district court ruled that defendant could not litigate an issue on a § 3582 motion that should have been raised at the original sentencing, and denied defendant’s motion. Defendant appealed.
* Holding: The court held that defendant waived the dispute over the crack cocaine issue by not objecting to it at the original sentencing. The court ruled that a § 3582 motion is not a proper vehicle for litigating such an issue. Accordingly, the district court’s ruling was affirmed.
• Reasonableness - Crack Amendment
U.S. v. Moore, 08-1699 (10/5/09)
> Defendant was convicted of distributing crack. At sentencing, the PSR determined, “for computational purposes,” that defendant was responsible for at least 1.5 kilograms of crack. Defendant was sentenced accordingly. The crack cocaine penalties were subsequently lowered by the crack amendment, and defendant filed a motion for reduction pursuant to 18 USC § 3582. In response to the motion, the probation department determined that defendant was actually responsible for in excess of 4.5 kilograms of crack, and that the two-level reduction under the crack amendment would not benefit him. At the hearing on the motion, the district court noted that additional amounts of drugs were referenced in the original PSR, although they were not specific as to whether the amounts were crack or powder cocaine, and because defendant did not object to amounts listed in the PSR at sentencing, defendant was precluded from arguing the drug amount on the § 3582 motion. Defendant appealed.
* Holding: The court held that, although a defendant may not ordinarily challenge an issue in a § 3582 motion to which she did not object at sentencing, the PSR and district court record were not clear that defendant actually possessed more than 4.5 kilograms of crack. Because the district court did not make a finding by a preponderance of the evidence at sentencing that the facts supported such a finding, defendant did not admit to 4.5 kilograms of crack by failing to object to the PSR. Accordingly, the case was remanded for the district court to determine whether a reduction of defendant’s sentence based on the crack amendment was appropriate.
• Reasonableness - Crack Amendment
U.S. v. Washington, 09-5110 (10/27/09)
> Defendant was convicted of participating in a conspiracy to distribute crack and was sentenced. The crack amendment subsequently passed and defendant moved, pursuant to 18 USC § 3582, for a reduced sentence. Defendant requested that the court consider imposing a sentence below the two-level reduction recommended by the crack amendment. The district court granted the two-level reduction, but held that it was without authority to reduce the sentence further. Defendant appealed.
* Holding: The court held that the district court, in a § 3582 motion, had no authority to reduce defendant’s sentence below the two-levels recommended by the crack amendment. Accordingly, the district court’s ruling was affirmed.
• Reasonableness - Release Conditions
U.S. v. Lay, 07-4062 (10/13/09)
> Defendant was convicted of traveling with intent to engage in sexual conduct with a minor. The district court sentenced defendant to 84 months imprisonment, and 20 years of supervised release with the conditions that he not access an online computer service without his probation officer’s permission, that he allow unannounced searches and monitoring software regarding his computer, and that he submit to warrantless searches of his place of business based on evidence of a violation of supervised release. Defendant appealed.
* Holding: Conditions of supervised release will be upheld where they are “reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public.” The court found that the probation term and conditions were reasonably related to protecting the public from recidivism and preventing opportunities to commit such crimes again. Accordingly, defendant’s sentence was affirmed.
• Reasonableness of Sentence-Rule 35 Motion
U.S. v. Grant, 07-3831 (6/9/09)
> Defendant was convicted of narcotics and firearm offenses and was sentenced to a statutory mandatory minimum 25 year sentence. After sentencing, defendant provided cooperation to the government which resulted in a motion for a sentence reduction pursuant to Fed. R. Crim. P. 35. At the hearing on the Rule 35 motion, defendant advocated that the district court should consider the factors under 18 USC § 3553 in addition to his cooperation because such factors were not considered at the original sentencing due to the mandatory minimum 25 year sentence. The district court declined to consider defendant’s arguments, and imposed the 16 year sentence recommended by the government. Defendant appealed.
* Holding: The court held that, where the district court had not been able to consider the § 3553 factors at the original sentencing due to a mandatory minimum sentence, it was appropriate for the district court to consider such factors at a Rule 35 hearing. Accordingly, the case was remanded for resentencing. The court did not decide the question of whether the district court was required to consider § 3553 factors, although it opined that consideration such factors may be mandatory based on the language of §§ 3553 and 3742.
• 18USC § 3742(a) - Appeal by Defendant
U.S. v. Parker, 06-4506 (10/3/08)
> Defendant was convicted of drug trafficking and sentenced to the mandatory minimum 10 years in prison. The government subsequently filed a motion to reduce defendant’s sentence based on his substantial cooperation pursuant to Rule 35(b). The district court accordingly reduced defendant’s sentence to 5 years. Defendant appealed the reasonableness of the sentence.
* Holding: Pursuant to 18 USC § 3742(a), a defendant may only appeal a sentence if it (1) was imposed in violation of law, (2) was imposed as the result of an incorrect application of the sentencing guidelines, (3) was greater than the applicable guideline range, or (4) was imposed for an offense for which there is no guideline range and was plainly unreasonable. The court held that Booker did not abrogate the requirements of § 3742(a). Since defendant’s appeal of the Rule 35(b) motion did not meet any of the requirements of § 3742(a), the appeal was properly dismissed.