April 11, 2007
Fourth Circuit reverses significant downward variance
The Fourth Circuit today reverses a significant downward variance in US v. Pyles, No. 06-4522 (4th Cir. Apr. 11, 2007) (available here). I may pile on with commentary later, but for now I'll let the start of the opinion speak for itself:
Derry Drew Pyles pleaded guilty to one count of aiding and abetting the distribution of crack cocaine, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2000). Although the advisory guideline range called for 63-78 months' imprisonment, the district court imposed a variance sentence of 5 years' probation with 6 months' home confinement.
The district court viewed probation as an appropriate sentence in this case because of Pyles's extraordinary rehabilitation. The Government appeals this sentence, arguing that the extent of the variance is unreasonable. While we appreciate the thoughtfulness that went into the district court's decision not to impose a sentence of imprisonment, we agree with the Government that the variance sentence of probation does not reflect the seriousness of Pyles's offense or provide a just punishment. The sentence therefore failed to satisfy adequately the sentencing factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). Accordingly, we vacate Pyles's sentence and remand for resentencing.
April 11, 2007 at 04:34 PM | Permalink
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Sentencing Law and Policy and a commentator to his post have an interesting discussion on the Fourth Circuit's recent reversal of a significant downward departure in a federal guidelines case. The short version is that the Fourth Circuit didn't like [Read More]
Tracked on Apr 12, 2007 6:29:02 AM
How do the district courts resentence these guys? "Well, you know what sentence I think is reasonable, but the Fourth Circuit wants me to lock you up, so let's try 9 months imprisonment with 3 years' supervised release, and if the circuit court doesn't like it, I'll see you again in a few months."??
Posted by: what? | Apr 11, 2007 5:02:26 PM
If I were the district judge, I would throw up my hands on reading this opinion. Having written twenty-two pages with detailed findings of fact directly related to the 3553(a) factors, she gets vacated because she drew a panel less impressed by rehabilitation than she is.
The opinion starts with the erroneous premise that the substantive reasonableness of the sentence should be measured based on its distance from the Guidelines sentence. But the Guidelines sentence is of course based on facts not proved to the jury. Given that Claiborne and Rita are up right now, anchoring the reasonableness analysis on a sentence based on judicial factfinding--making substantive reasonableness dependent on facts not proved to a jury--is just asking for a GVR over the summer.
Just for argument's sake, let's say that's OK. The court says that the lowest offense level for any crack conspiracy is 12. The implication is that using this level would give enough of a nod to Congress's view (really the panel's) about the seriousnsess of crack crimes. Given a criminal history of II, and the two-level acceptance of responsibility reduction, that puts the defendant *barely* in Zone C, with a range of 8-14 months. He's literally in the lowest box not in Zone B, for which of course probation is authorized.
But since this is the lowest level authorized for crack crimes, let's say that the panel is saying that substantively this is as low as you can go without going so far from the Guidelines as to run afoul of 3553(a). So it's 8-14 months. *But this guy is in Zone C,* so he's eligible for a "split-sentence," that is, a sentence where half the term of imprisonment may be served by home confinement. See U.S.S.G. 5C1.1(d)(2).
So what the panel is saying is that five years' probation is not reasonable, but *four months* imprisonment followed by four months home confinement is? It's not even clear to me that the Guidelines sentence is more harsh. Sure, you go to jail, but four months later you're on your couch, and now you don't have to worry about a probation officer.
What *is* clear is that the split-sentence this guy will eventually get is really bad for society. As the twenty-two page order explained, the judge is concerned that incarceration might lead to more drug use; he needs, the judge says, the supervision that comes with probation. The judge made this finding based on a careful review of the defendant's situation. But because the Commission drew the line for Zone C just above level 10, he'll now serve a compeletely inappropriate sentence from any point of view.
To get this defendant to serve four months' prison that will probably be bad for him and society, (1) three circuit judges drafted and reviewed a 17-page opinion; (2) the United States paid its attorneys to appeal; and (3) a district judge, having spent untold hours on this case, will have to hold a resentencing hearing she wants nothing to do with. Nothing in the Guidelines or 3553(a) requires that absurd result.
This defendant should absolutely petition the Supreme Court for review in this case and ask it to be held for Claiborne and Rita. I would think a GVR would be promptly forthcoming. If this opinion doesn't demonstrate the absurdity of slavishly assigning decisive weight to Guidelines sentences after Booker, I don't know what does.
Posted by: Section 3553(a) | Apr 12, 2007 1:52:55 AM
Great posts. It's a tough call for defense counsel here. File a cert. petition, which, on remand after Rita and Claiborne, will go back to this panel, or go back to the district court and hope Rita and Claiborne are supportive enough of district-judge discretion to permit a comparable sentence to the original sentence? I'd take my luck with the district judge, but it's a close call either way.
Posted by: Mark | Apr 12, 2007 9:34:24 AM
Why is the federal system so against probation, where it is so common in the state system? In federal court probation is so rare and abnormal it's almost presumptively "unreasonable" in the minds of every AUSA and nearly all judges. But at the state court level, people get probation all the time for all sorts of crimes. I just got someone probation the other day for 2nd degree aggravated assault with a deadly weapon; he was looking at 20 years (or 240 months). For a first time offender, unless it is horrific and high profile crime, probation of some sort (plus other strings like fines and community service and possibly some house arrest) is almost the default sentence. Why, then, in federal court, is it so rare? I would suggest the answer is not that federal crimes are more serious (they're certainly not), but rather that the federal guidelines rarely permit probation, and courts still feel bound by them. Plus, with the DOJ's policy to maintain the guidelines as mandatory as possible, you don't see AUSAs negotiating plea deals with out of guideline range sentences like probation. They should, but they don't. For a first time offender, probation should always be on the table. People should be given one chance, and probation is the way to do that. If they screw up again, then prison.
Posted by: Bruce | Apr 13, 2007 7:44:02 AM
Absurdity to the nth degree. he may have
turned his life around now but this man has
a criminal past.Since when does getting
sober become a get out of jail free card?
He's a dangerous man who will strike again
Posted by: pyles ex-wife | Jun 25, 2007 11:07:37 AM
Where's S.cotus when you need him (or her)? Does my proposal to seize members of the family's property "work corruption of Blood"
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