December 28, 2007
Fourth Circuit affirms below-guideline sentence in first big post-Gall ruling
A decision just released by the Fourth Circuit today in US v. Pauley, No. 07-4270 (4th Cir. Dec. 28, 2007) (available here), suggests that at least one circuit got the back-off message that the Supreme Court seemed eager to send to the courts of appeals in Gall and Kimbrough. Here is the opening paragraph in Pauley:
Larry Pauley pled guilty to one count of possessing photographs that contained images of child pornography, 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district court determined that Pauley’s Guidelines range was 78 to 97 months’ imprisonment. After considering this range in conjunction with the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Pauley to forty-two months’ imprisonment. Finding no abuse of discretion, we affirm the sentence imposed by the district court.
The decision goes on to discuss sentencing review and Gall at some length. And this passage discussing the particulars of the district court's sentencing decision provides a sense of the overall tone of the opinion:
In its consideration of the § 3553(a) factors, the district court correctly found in the exercise of its discretion that other facts warranted a sentence lower than that recommended by the Guidelines range. The district court found that Pauley warranted a lower sentence because he was deeply remorseful and, besides the criminal conduct at issue, he was a good father and teacher. Such considerations were appropriate because they are directly tied to § 3553(a)(1)’s directive that the court consider the history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1). The district court also found that Pauley warranted a lower sentence because he lost his teaching certificate and his state pension as a result of his conduct. Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for "just punishment," id. § 3553(a)(2)(A), and "adequate deterrence," id. § 3553(a)(2)(B). The district court further explained that a lower sentence would allow Pauley to be rehabilitated through the counseling he will receive during incarceration, and the court noted that a lifetime of supervised release would reduce the risk of Pauley becoming a repeat offender and would deter him from future criminal conduct. These are also valid considerations under § 3553(a). In sum, considering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward variance was supported by the justifications necessary to uphold the sentence.
December 28, 2007 at 04:10 PM | Permalink
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Now I seriously hope to see:
warranted a lower sentence because he was deeply remorseful and, besides the criminal conduct at issue, he was a good father and teacher,
apply in, particulary crack cocaine, cases as I know many, many defendants who are remorseful, a good father and so on, but most attorneys (I know)say that this in not extraordinary circumstances that can be used to argue downward departure.
So I hope this is the start of something new...
Posted by: | Dec 28, 2007 4:43:38 PM
is a lifetime of supervised released, constitutional?
Posted by: EJ | Dec 28, 2007 5:17:39 PM
These are two big blows for the DOJ my bet is post gall this would have not be affirmed. Do you agree pre gall they send these back to the district?
I think other judges will see this and start going below the guidelines on a reg basis.
Which is some not all cases is a good thing. Lets stop spending money on keeping people in jail and putting thise dollars to a productive use.
Posted by: | Dec 28, 2007 5:37:37 PM
“I think other judges will see this and start going below the guidelines on a reg basis.”
Yes. And some will see this and go ABOVE the guidelines even more. Perhaps – and this is just a guess – Gall is going to be a kind of back-door Blakely. Issues that would cause a judge to depart will be more intensely litigated by both sides, and, absent a guilty plea, there will be added incentive to bring these issues in at trial to try and do an end-run around whatever might be raised during sentencing. (Alright, if I was a US Attorney, that is what I would be demanding that my people do. They wouldn’t like it. But I would win awards for my insight.)
Posted by: S.cotus | Dec 31, 2007 10:53:09 AM