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United States v. Kristl,
No. 05-1067 (10th Cir., February 17, 2006) (Published): Guilty plea on a Possession of Firearm charge reversed for re-sentencing. This is the first case in which the Circuit conducted a post-Booker review for reasonableness. The Circuit held that a sentence within the Guidelines is subject to a rebuttable presumption of reasonableness. However, in this case the calculation by the District Court under the Guidelines was flawed and thus the remand.
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United States v. Givens,
No. 05-1711 (8th Cir., April 11, 2006): Federal Sentencing Guidelines and Unreasonable Sentences: This case is a sterling example of how Booker really did not accomplish much for the defense bar. Givens plead to bank fraud. The Guidelines range was 24-30 months. The trial court sentenced Givens to five years of supervised released (i.e., no prison time). The Government appealed and the Circuit reversed because the sentence was "wholly unreasonable." The Circuit provided a good thumbnail sketch of how federal sentences are determined now: 1) the District Court determines the advisory Guidelines range; 2) the District Court may then vary from the Guidelines range based on the factors set forth in "section 3553(a)" and; 3) any sentence outside of the Guidelines range must be reasonable. Thus on appeal, the Circuit determines whether the District calculated properly the Guidelines sentence, whether it erred in any departures, and then whether the ultimate sentence is reasonable. In this case, the Circuit determined that the sentence was unreasonable because it was such a dramatic departure from the Guidelines range without any compelling justification, even though there were some good facts operating on behalf of Givens such as it was a non-violent crime, he reported it to the bank himself and took responsibility, and he had no prior criminal history. BOTTOM LINE: based upon the cases I have been reading, there seems to be a strong policy among the Circuit Courts of Appeals to keep federal sentences within the properly calculated Guidelines range.
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United States v. Lopez-Flores,
No. 05-2274 (April 18, 2006) (Published): This is the third illegal re-entry case from last week and it raises an issue of the proper standard of review for "reasonableness" of a sentence under the Guidelines. The panel analyzed a case out of the Seventh Circuit that held a defendant does not need to object to the reasonableness regarding the length of the sentence in the District Court below in order to preserve the issue for appeal; however, the accused must make timely and specific objections to the method of calculation relied upon by the District Court or else plain error review is the only review to be had.
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United States v. Terrell,
No. 05-1231 (April 20, 2006) (Published): This is another Guidelines case in which Terrell received a sentence below the Guidelines range but nevertheless argued that the District Court gave too much weight to the Guidelines calculation and not enough to the factors found in 18 U.S.C. 3553(a). The panel described the issue in the case as whether the District Court erred in giving "heavy weight" to the Guidelines calculation and, not surprisingly, held that this was not error.
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United States v. Davenport,
No. 05-4304 (4th Cir., April 21, 2006): "Unreasonable" federal sentence! Sentencing Guidelines case where Davenport was convicted of "fraudulent use of an access device" (Davenport and several others were pickpockets who stole credit cards and used them to purchase goods), the District Court calculated the range at 30-37 months. The District Court imposed the maximum of ten years (the panel noted that the maximum was actually 15 years but the District Court thought it was 10). The panel vacated the sentence as unreasonable. Good discussion of the "reasonableness" analysis on appellate review and the process of federal sentencing post-Booker.
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United States v. Kendall,
No. 05-2836 (8th Cir., May 2, 2006): Federal Sentencing/unreasonableness. Kendall plead guilty to knowingly possessing equipment, chemicals, products, and materials used to manufacture methamphetamine. The Guidelines range was 27-33 months. He was sentenced to 84 months, which the panel noted was an increase of 155% or more than eight levels, from the maximum Guidelines range. The panel held that this departure was "extraordinary" and therefore, in the absence of extraordinary reasons for the sentence, the sentence was unreasonable and must be vacated and remanded for re-sentencing.
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United States v. Zapete-Garcia,
No. 05-1352 (1st Cir., May 8, 2006): Federal Sentencing--Reasonableness. Nice, tight opinion outlining the federal sentencing process post-Booker and remanding for re-sentencing in this case that involved a conviction for counterfeit immigration documents that carried a Guidelines range of 0-6 months but an imposed sentence of 48 months(!) Remand because there was no sufficient explanation of such a huge disparity.
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United States v. Mancillas,
No. 05-3328 (10th Cir., May 18, 2006) (unpublished): Federal sentencing. Short opinion setting forth the analysis for federal sentencing and the "reasonableness" inquiry now mandated on appeal. Noteworthy because the panel re-affirmed the legal proposition that a District Court must clearly state its reasons for sentencing in light of factors in section 3553(a) when a defendant provides facts and argument implicating such factors. Unfortunately for Mancillas, he did not articulate sufficiently any facts to make the District Court's job more difficult and force it to articulate its reasons for the sentence.
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United States v. Cage,
No. 05-2079 (10th Cir., June 8, 2006) (Published): Federal Sentencing Guidelines; Reasonableness: More refinement in federal sentencing where the District Court calculated properly a Guidelines range of 46-57 months in a drug case but sentenced Cage to six days. The Circuit held that this was an unreasonable sentence not justified under the facts of the case.
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United States v. A.B.,
No. 06-2164 (10th Cir., June 24, 2008) (Published): Federal Sentencing Guidelines; Reasonableness: Sentence AFFIRMED over an allegation of procedural unreasonableness that the District Court failed to consider the 18 U.S.C. sec. 3553(a) factors properly. This is a long opinion that contains a good discussion of the procedures in sentencing; and also seems to reaffirm that such issues must be raised in the District Court.
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United States v. Huckins,
No. 07-3220 (10th Cir., June 25, 2008) (Published): 1. Child Porn; 2. Federal Sentencing Guidelines; Reasonableness: Huckins plead guilty to one count of Possession of Child Porn and was sentenced to 18 months, even though the Guidelines range was 78 to 97 months. In this appeal by the Government, the panel AFFIRMED under the abuse of discretion standard.
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United States v. Pinson,
No. 07-6013 (10th Cir., September 17, 2008) (Published): Federal Sentencing Guidelines; Reasonableness: According to the panel, Pinson was "a mentally-ill inmate with a propensity for making grandiose threats." He was convicted of one count of threatening to harm the President of the United States. Following his conviction, but prior to sentencing, he falsely told the district court that another inmate intended to kill his sentencing judge. He also sent a letter to the Chief Judge for the Western District in which he threatened to injure a juror who had served on his trial. He was charged and plead on these counts as well. The sentencing court varied upward and imposed the statutory maximum on each of the three counts, to be served consecutively, for a sentence of 240 months. AFFIRMED "though not without some qualms about" the sentence. Of course, even though the forensic staff at the mental hospital in Fort Worth determined that Pinson "had not experienced any significant period of effective psychological functioning since early childhood" he was found competent to stand trial. As to the issues in this case, there was: 1) no plain error when the trial court reversed itself on the day of trial concerning the admission of certain evidence (since Pinson did not ask for a continuance or otherwise show that any evidence he had would have been material and favorable to his case); 2) no error in the jury instructions on the intent element of the crime; and 3) his above-the-Guidelines sentence was not unreasonable even though the upward variance was "unusually large, even by post-Gall standards."
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United States v. Sells,
No. 07-7047 (10th Cir., September 15, 2008) (Published): Federal Sentencing Guidelines; Reasonableness: Sells was convicted by jury of Conspiracy to Possess Meth w/Intent to Distribute, Knowingly Maintaining a Place for the Manufacture of Meth, and Felon in Possession of Ammunition. The sentence was vacated on appeal and the case remanded for re-sentencing where the trial court re-imposed the same 360 month sentence. AFFIRMED over his claims of procedural and substantive reasonableness. The trial court properly attributed to Sells the drug amounts produced by the conspiracy and the sentence was substantively reasonable because it is no longer than necessary to satisfy the purposes of 18 U.S.C. sec. 3553(a)(2).
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United States v. Mendoza,
No. 07-3181 (10th Cir., October 1, 2008) (Published): 1. Federal Sentencing Guidelines; Reasonableness; 2. Standards of Review: After being convicted of drug offenses, the District Court varied downward from the Guidelines minimum of 324 months to 240 months. The Government appealed, seeking a remand for re-sentencing. "Reviewing only for plain error, we affirm Mendoza's sentence." The panel re-affirmed that a party must raise challenges to the procedural reasonableness of a sentence in order to preserve the issue for review and the Government did not do so here.
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United States v. Rajwani,
No. 05-10648 (5th Cir., January 16, 2007): Federal Sentencing Guidelines; Reasonableness: In a rare reversal of an upward departure, the Fifth Circuit held that a sentence of 120 months -- nearly 3 times the maximum guidelines sentence -- imposed on a defendant convicted of defrauding elderly victims was unreasonable. The court remanded and commented that any sentence that was more than double the recommended guidelines range would be unreasonable under the facts of the case.
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United States v. Jarrillo-Luna,
No. 05-4262 (10th Cir., March 5, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: The District court did not err in failing to explain why it rejected arguments for a below-Guidelines sentence. A sentencing court is required merely to entertain the defendant's arguments and give reasons for the sentence
imposed. It need not explain why it decided a different sentence would have been unreasonable or why the sentence imposed is the best of all possible reasonable sentences. On appeal, the court must simply determine whether the chosen sentence is reasonable. With respect to Mr. Jarrillo's substantive argument, the COA says the disparity between fast-track districts and non-fast-track districts was created by Congress, so it can not be an "unwarranted" disparity under § 3553(a)(6).
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United States v. Mahan,
No. 05-1518 (10th Cir., May 16, 2007) (Unpublished): Federal Sentencing Guidelines; Reasonableness: Mahan plead guilty to felon-in-possession of a firearm and was sentenced 77-months. Mahan asserted that he was assaulted by three men in a parking lot. He obtained a shotgun and returned to the same parking. He was noticed, the police were called, and he was subsequently arrested. Defense counsel characterized Mahan's acquisition of the shotgun as an attempt to protect his wife. The District Court stated that such crimes are essentially strict liability offenses and that the court could not consider the reasons why Mahan had the weapon for purposes of sentencing. This view is in tension with the sentencing factors listed in 18 U.S.C. sec. 3553(a)(1) which require the court to consider the "nature and circumstances of the offense." In this appeal, Mahan challenged his sentence on grounds of reasonableness and the panel vacated and remanded for re-sentencing on the basis that his sentence was "procedurally unreasonable" because the District Court failed to consider the nature of the offense. NOTE: The Circuit perceives a difference between "procedural" reasonableness and "substantive" reasonableness in these sentencing cases and imposes no presumption of reasonableness upon "procedural" reasonableness claims.
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United States v. Hildreth,
No. 06-3070 (10th Cir., May 14, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: Hildreth was set-up in a sting when an undercover agent sold him some guns, one of which as an illegal machine-gun. He went to jury trial on two counts and was convicted on one and acquitted on the other. He was sentenced to three years of probation. He raised an entrapment defense at trial and ended up pro se on appeal where the panel addressed two issues: Hildreth's claim that the trial court erred in refusing to enter judgment of acquittal because he was entrapped as a matter of law; and the Government's claim that the sentence was unreasonable. HELD: Hildreth was not entrapped as a matter of law and the sentence was unreasonable (the Guidelines range was 27-33 months). Remanded for re-sentencing.
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United States v. Allen,
No. 06-6111 (10th Cir., May 31, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: This is an oddball case arising out of the Western District of Oklahoma. Allen plead guilty to a mundane count of Possession of Methamphetamine with Intent to Distribute. The statute sets the punishment range for this crime at 10-life. Judge Thompson sentenced Allen to 360 months which was more than two-and-a-half times the top end of the Guidelines range(!) Why did the court feel the need to impose such a harsh sentence? Well, because it seems Allen has a fixation on kidnapping, torturing, raping, and murdering young girls. This information came out during the investigation of Allen when he met a stripper in Oklahoma City. The stripper became alarmed at his fantasies and informed the police, but the only thing they could actually get him on was the drug charge. The circuit vacated the sentence and remanded for re-sentencing, holding: "In a case involving a variance of this magnitude, we hold that, whatever latitude a sentencing court may have to adjust a defendant's sentence in an exercise of Booker discretion, it may not discard the advisory Guideline range and impose a sentence, instead, on the basis of evidence of the defendant's uncharged, unrelated misconduct, whether actually committed or contemplated for the future."
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United States v. Pruitt,
No. 06-3152 (10th Cir., June 4, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: The panel described Pruitt as a "42-year-old woman with three prior convictions for selling illegal drugs and a criminal history spanning two decades." In this case, she plead guilty to Distribution of Five or More Grams of Methamphetamine and was sentenced to 292 months (the low end of the Guidelines). The panel AFFIRMED this monstrous sentence over her claim that it was unreasonable. This is another example of how harsh federal criminal sentencing can be. A close examination of Pruitt's criminal history reveals that she is little more than a very small-time street dealer. The panel acknowledged this, but deferred to the District Court's imposition of sentence. NOTE: Judge McConnell, in a lengthy concurring opinion, noted quite explicitly that his review of the hundreds of appellate cases affirming sentences leaves little doubt that the "rebuttability" of the presumption of reasonableness of a within-the-Guidelines sentence is "more theoretical than real" and he thought that, in light of the resources devoted to such appeals, the Court should be "more candid in acknowledging this." In other words, a within-the-Guidelines sentence (like Pruitt's) is virtually impervious to being rebutted as unreasonable. He characterized the sentence in this case as one that "comes as close as a within-Guidelines sentence could come to being substantively unreasonable" and cited Pruitt's non-violent, petty drug conviction past criminal history. He also pointed out that a person convicted of second-degree murder, but with no priors, would face a range of 235-293 months. In the end, he likened the appellate process of attacking a within-Guideline sentence as being similar to the "snipe hunts" of his youth as a Boy Scout---a search for something that does not exist.
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Rita v. United States,
No. 06-5754 (U.S., June 21, 2007): Federal Sentencing Guidelines; Reasonableness: Rita sought a sentence below the Guidelines range (33 to 41 months) on the basis of his physical condition, likely vulnerability in prison, and military service. The District Court sentenced Rita to 33 months and the Fourth Circuit affirmed, holding that a sentence imposed within a properly calculated Guidelines range is presumptively reasonable. In this case, the Supreme Court held that a court of appeals may apply such a presumption of reasonableness. However, the Court characterized such a presumption as "non-binding" and applicable only on appellate review, not in the District Court. NOTE: as Barry D. observed on the OCDLA list-serv, this opinion is very nuanced and, like Chase's ending to The Sopranos, could be read to mean just about anything the reader would like. I get the feeling this issue will be litigated for years to come.
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United States v. Walters,
No. 05-51634 (5th Cir., June 21, 2007): Federal Sentencing Guidelines; Reasonableness: Walters was in the Air Force but was quickly found by his superiors to be mentally unstable and essentially forced out. This did not sit well with Walters, so he sent a mail-bomb Unabomber-style to one of his sergeants which did not kill the sergeant but inflicted some serious wounds. Walters was convicted of several federal offenses including Use of Destructive Device, Assault on a Federal Officer, and Causing Damage to a Federal Building. The Guidelines called for 30 years for use of the bomb. The District Court sentenced Walters to 262 months on the other counts and 720 months (60 years) on the bomb count. The District Court, in articulating the reasons for the sentence, simply stated that the offense was bomb-related and 60 years was needed for specific deterrence. HELD: the sentence is vacated because the District Court simply articulated factors inherent in all bomb-related crimes and not specific facts relating to this particular defendant and his actions. The panel stated that although the District Court had discretion to depart from the Guidelines, "the degree of departure in this case is substantial, and there must be more than mere lip service to the sec. 3553(a) factors to justify such a departure."
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United States v. Poynter,
No. 05-6508 (6th Cir., July 26, 2007): Federal Sentencing Guidelines; Reasonableness: Poynter pleaded guilty to Traveling in Interstate Commerce for the Purpose of Engaging in Illicit Sex With Two Minors. The guideline range was 188-235 months, but the District Court imposed a sentence equal to the statutory maximum of 720 months (a 206% upward variance from the Guidelines' upper range). The Circuit vacated this sentence because the reasons articulated by the District Court supporting this sentence could apply to any offender guilty of this crime.
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United States v. Chavez-Calderon,
No. 06-2313 (10th Cir., July 30, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: Chavez-Calderon pleaded guilty to illegal re-entry and was sentenced to 57-months (at the low end of the Guideline range). The panel found no plain error in the District Court's explanation of the 3553 factors; and no error at all in the District Court's consideration of prior domestic violence convictions.
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United States v. Arrevalo-Olvera,
No. 06-2291 (10th Cir., July 31, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: This appears to be the first post-Rita case out of the circuit. The panel re-affirmed the circuit rule that just because the District Court concludes that a within-the-Guidelines sentence is reasonable, it must still consider the 3553 factors and consider a sentence outside the range. However, in this case, the error was harmless. Judge Holloway dissented and would have remanded for re-sentencing.
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United States v. Garcia-Lara,
No. 06-3054 (10th Cir., August 22, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: Garcia-Lara plead guilty to one count of Possession with Intent to Distributre 500 grams or more of Methamphetamine. Because of his priors, he was sentenced as a career offender; however, the District Court held that the career offender enhancement overstated his criminal history and therefore sentenced him to a below-Guidelines 140 months (47% below the 262-month Guidelines minimum). The Government appealed the sentence as substantively unreasonable. HELD: Vacated and remanded for re-sentencing because the District Court did not justify such a variance with "compelling reasons." This appears to be an important decision because it discusses Rita, concluding ultimately that "the Supreme Court's reference in Rita to reasonableness review as an abuse-of-discretion standard does nothing to change the appellate reasonableness standard this Circuit has applied since Booker." NOTE: Judge Lucero authored a spirited dissent, criticizing the majority for failing to accord proper deference to the District Court. Judge Lucero described the "Newtonian pull of the Guidelines toward a near-mandatory center[.]"
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United States v. Conlan,
No. 06-1510 (10th Cir., September 6, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: Conlan was convicted of filing false tax returns and sentenced to fifteen (15) months. He was part of a multi-member scheme committing tax fraud. The probation office actually recommended a variance from the fifteen (15) to twenty-one (21) months based upon Conlan's involvement in the scheme (the probation office recommended three years of probation with the first six months in home detention). HELD: Reversed and remanded for re-sentencing because the District Court, at the urging of the Government, imposed a presumption of reasonableness to the Guidelines range (now we know this presumption applies on appeal; not in the District Court).
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United States v. Angel-Guzman,
No. 06-4303 (10th Cir., October 30, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: Angel-Guzman challenged his sentence (at the low end of the Guideline range) for substantive unreasonableness. In this opinion, the panel stated that this was the first case argued in the circuit post-Rita involving a within-Guidelines sentence challenge, "we take this occasion to discuss our understanding of the current state of the law applicable to such challenges." As you might have guessed, the panel concluded: "We therefore conclude that, with respect to within-Guidelines sentences, Rita 'does nothing to change the appellate reasonableness standard this Circuit has applied since Booker.'" The panel did, however, make it clear that Rita "portends a modest change in the practice of some judges within our Circuit" by dispensing with the presumption of reasonableness at the District Court level. Angel-Guzman was convicted (by guilty plea) of Knowingly Transporting Illegal Aliens (8 of them). The PSR showed that he had six prior misdemeanor convictions (four alcohol-related, assault w/deadly weapon, and infliction of corporal injury on a spouse). Although he argued that the PSR exaggerated the seriousness of his criminal history, neither the District Court nor the Circuit was impressed. AFFIRMED.
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United States v. Mumma,
No. 06-3163 (10th Cir., December 7, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: Mumma appealed her 48-month sentence for Bankruptcy Fraud and Making False Statement to a Financial Institution which represented a 300% and 36-month increase over the top of the Guidelines range. The high sentence was a result of her prior record and the fact that she had defrauded others while out on bond. AFFIRMED because the sentence was reasonable.
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Kimbrough v. United States,
No. 06-6330 (U.S., December 10, 2007): Federal Sentencing Guidelines; Reasonableness: This is the crack/powder cocaine case. Kimbrough was looking at 15-life under the statute. Since this was a "crack" case, the Guidelines called for 19-22.5 years. The District Court, noting the unfairness of the crack/powder rule and that in a "powder" case the Guideline range would be 97-106 months, held that the statutory minimum (15 years) was long enough to accomplish the objectives of section 3553(a). The Fourth Circuit vacated, finding that the outside the Guidelines sentence was per se unreasonable when it is based upon a disagreement with the sentencing disparity for crack and powder offenses. The Supreme Court REVERSED, holding that the Guidelines are advisory and the Fourth Circuit erred in holding them effectively mandatory; and a district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in a particular case, a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing. NOTE: Justices Thomas and Alito dissented.
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Gall v. United States,
No. 06-7949 (U.S., December 10, 2007): Federal Sentencing Guidelines; Reasonableness: The Syllabus of the Court sums up this case nicely. Gall joined an ongoing enterprise distributing "ecstasy" while he was in college. However, he withdrew from the conspiracy after seven months, sold no illegal drugs since, used no illegal drugs since and worked steadily since graduation. Three and half years after withdrawing from the conspiracy, Gall pleaded guilty. The PSR recommended 30-37 months, but the District Court sentenced Gall to 36 months probation, finding that probation reflected the seriousness of his offense and that imprisonment was unnecessary because Gall voluntarily withdrew from the conspiracy and his post-offense conduct showed that he would not return to a life of criminal behavior. The Eighth Circuit reversed (as the Tenth Circuit would surely have done), holding that a sentence outside the Guidelines range must be supported by extraordinary circumstances. The Supreme Court REVERSED, holding that "While the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences---whether inside, just outside, or significantly outside the Guidelines range---under a deferential abuse-of-discretion standard; and the sentence in this case was reasonable. NOTE: Justices Thomas and Alito dissented.
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United States v. McComb,
No. 07-5003 (10th Cir., December 18, 2007) (Published): Federal Sentencing Guidelines; Reasonableness: Prior to his sentencing on drug charges, McComb suffered a stroke which left him mentally and physically debilitated. Nevertheless, the District Court refused his request for a variance and sentenced him to the bottom of the Guidelines range of 135 months. The circuit found no abuse of discretion (applying the presumption of reasonableness under Rita). NOTE: The panel discusses briefly the new Supreme Court cases of Gall and Kimbrough, but those cases appear to not have much force on the facts of this case and the discussion of them is limited.
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United States v. Grossman,
No. 06-2310 (6th Cir., January 18, 2008): Federal Sentencing Guidelines; Reasonableness: A split panel upheld a below-Guidelines sentence for Possession of Images of Minors Engaged in Sexual Activity. This is an interesting application of Gall and Kimbrough. The Guidelines range was calculated at 135-168 months, but the statutory maximum was 120 months. The District Court sentenced Grossman to 66 months followed by 10 years of supervised release. The sentencing judge was "shocked" and "troubled" by the Guidelines enhancements and stated that in his view "the Guidelines produced a calculation that was 'not fair' and 'not reflective of what [Grossman] did.'" The judge stated further: "This is what happens when you take judging, which is a judge's job, and you give it to a commission and say, add mathematical calculations and come up with a presumed sentence from that."
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United States v. McGhee,
No. 07-1064 (8th Cir., January 16, 2008): Federal Sentencing Guidelines; Reasonableness: Another application of Gall in a case where McGhee plead guilty to Possession w/Intent to Distribute More Than 50 Grams of Crack and Possession of a Firearm in Furtherance of a Drug-Trafficking Offense. The Guidelines calculation was 235-293 months, but the District Court imposed sentence of 132 months on the drug charge and 60 months on the gun charge. The Government appealed, arguing that this "extraordinary variance" must have "extraordinary circumstances" justifying it. The panel disagreed, stating that Gall held otherwise.
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United States v. Pugh,
No. 07-10183 (11th Cir., January 31, 2008): Federal Sentencing Guidelines; Reasonableness: This is an interesting opinion on a Government appeal of a sentence imposed in a Possession of Child Porn case. The Guidelines called for 97-120 months, but the District Court imposed a sentence of five years probation. The Circuit panel concluded that this sentence was an abuse of discretion, even in light of the recent Supreme Court cases of Kimbrough and Gall. The panel held that the District Court failed to articulate sufficiently compelling justification to support the variance, and did not give any apparent weight to many other important statutory factors in 18 U.S.C. 3553(a).
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United States v. Langford,
No. 06-2774 (3rd Cir., February 22, 2008): Federal Sentencing Guidelines; Reasonableness: Langford argued that the District Court calculated improperly his criminal history score (by counting a juvenile conviction that should not have been counted) and thus applied an erroneous Guidelines range as the first step in the sentencing process. The Government argued that any error was harmless because the applicable Guidelines range overlaps with the correct range. In this case, the split panel stated: "We will join our sister courts of appeals who have decided this issue and hold that the error is not harmless."
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United States v. Smart,
No. 06-6120 (10th Cir., March 4, 2008) (Published): Federal Sentencing Guidelines; Reasonableness: Smart was convicted of Inducing a Minor to Engage in Sexually Explicit Conduct for the purpose of producing videotapes. The Guideline range was 168 to 210 months. However, the District Court found that the Guidelines overstated the seriousness of the offense and varied downward, imposing a 120 month sentence. The Government appealed. Applying the deferential abuse of discretion standard in Gall, the panel affirmed. NOTE: This was a 2-1 split decision with Judges Henry and Lucero in the majority and Judge Hartz dissenting (finding procedural error when the District Court took into account two improper considerations in arriving at the sentence).
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United States v. Carty,
No. 05-10200 (9th. Cir., March 24, 2008) (en banc): Federal Sentencing Guidelines; Reasonableness: In an opinion that could operate as a primer on the procedures of federal sentencing, the en banc Ninth Circuit declined to adopt an appellate presumption of reasonableness for sentences imposed within the Guidelines. NOTE: The Tenth Circuit has adopted such a presumption.
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United States v. Pena-Hermosillo,
No. 06-8075 (10th Cir., April 15, 2008) (Published): Federal Sentencing Guidelines; Reasonableness: This is a Government appeal of a 121 sentence for drug charges (the statutory minimum was 10 years and the maximum was life). The District Court rejected two enhancements recommended by the PSR and urged by the Government. It also stated that the 121 month sentence "would be imposed even if the advisory guideline range was determined to be improperly calculated." REVERSED AND REMANDED to vacate the sentence since the District Court's decision was procedurally unreasonable because it did not provide a sufficient explanation for its denial of the enhancements. Judge Ebel concurred and would hold that, based upon the undisputed facts, the District Court erred (rather than simply failed to explain adequately) in not applying the enhancements for using a minor and for being a manager or supervisor.
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United States v. Zamora-Solorzano,
No. 07-3205 (10th Cir., May 13, 2008) (Published): Federal Sentencing Guidelines; Reasonableness: Zamora-Solorzano received a sentence of 270 months which was at the low end of the Guidelines range for drug and firearms offenses. He attacks the sentence in this appeal based upon comments made by the trial court to the effect that the court gave the Guidelines "considerable weight" in refusing a downward variance. The issue here is whether the statements of the trial court amounted to an impermissible presumption of correctness accorded to the Guidelines range. The panel held that they did not. AFFIRMED.
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United States v. Munoz-Nava,
No. 06-2247 (10th Cir., May 6, 2008) (Published): 1. Searches and Seizures; Warrantless; 2. Federal Sentencing Guidelines; Reasonableness: Munoz-Nava traveled by bus from El Paso, Texas, to Albuquerque, New Mexico. When he debarked, he was noticed by a DEA agent who approached, identified himself and asked to speak with him. Munoz-Nava agreed. The DEA agent eventually became suspicious of the boots Munoz-Nava was wearing. The boots were confiscated and Munoz-Nava was detained. Although a drug dog did not fully alert at the scene, it alerted at the DEA station and heroin was found in the boots. Although the Guidelines calculation shook out to 46-57 months, the District Court sentenced Munoz-Nava to one year and one day, home confinement of twelve months, and supervised release of five years. HELD: The detention was supported by probable cause and the District Court did not abuse its discretion in imposing sentence.
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