January 17, 2008
Potent Eighth Circuit opinion affirming below-guideline probation sentence
Another Eighth Circuit decision today, this time in US v. Lehmann, No. 06-3597 (8th Cir. Jan. 17, 2008) (available here), highlights the import and impact of the Supreme Court's work in Gall. Lehmann affirms a below-guideline sentence of probation on a record that seems surely to have led to a reversal before Gall. Here are excerpts from the ruling (with some cites omitted):
It is undisputed that the district court correctly calculated the advisory sentencing guidelines range, which provided for a sentencing range of 37 to 46 months’ imprisonment before any departure or variance. Lehmann urged the district court to depart downward under § 5H1.6 of the advisory guidelines, or to vary from the advisory guidelines under 18 U.S.C. § 3553(a), based on her family ties and responsibilities....
The district court was persuaded by Lehmann’s evidence concerning the welfare of her son, and pronounced a sentence for the firearms charge of five years’ probation with six months of community confinement as a condition of probation....
The district court imposed a sentence of probation, and the government argues that the sentence is substantively unreasonable. Our precedents prior to Gall “routinely” rejected as unreasonable those variances that resulted in a sentence of probation when the guidelines recommend a term of imprisonment, in part because “probation is not merely a reduced sentence, but a different type of sentence altogether.” The Supreme Court in Gall, however, emphasized that “[o]ffenders on probation are subject to several standard conditions that substantially restrict their liberty,” 128 S. Ct. at 595, and affirmed a sentence of probation for a drug trafficker with an advisory guidelines range of 30 to 37 months’ imprisonment. The Court also indicated that a sentence of probation would be permissible for a drug trafficking offense with a guidelines range of 30-37 months’ imprisonment, if there were “compelling family circumstances where individuals [would] be very badly hurt in the defendant’s family if no one is available to take care of them.” Id. at 602 (internal quotation omitted).
The district court here imposed the standard conditions of probation, which Gall described as a “substantial restriction of freedom,” id. at 595, and added a special condition requiring Lehmann to serve six months in community confinement. In explaining its decision not to impose a term of imprisonment, the district court accepted expert testimony that sending Lehmann to prison would have a very negative effect on the emotional development of her young son, which is not materially different from the sort of “compelling family circumstances” that the Supreme Court indicated would justify probation for a drug trafficker with a similar advisory guidelines range. Id. at 602. Given the impermissibility of “proportionality” review, and the requisite deference due to the district court, we cannot conclude that the sentence imposed was substantively unreasonable in light of § 3553(a) and Gall.
January 17, 2008 at 12:25 PM | Permalink
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Good news: Eighth Circuit coming around and seeing the light.
Posted by: Michael Levine | Jan 17, 2008 1:03:29 PM
Any female defendant with a child can make the same argument. I forsee structural gender differences in sentencing after Gall.
Posted by: anonymous | Jan 17, 2008 1:03:54 PM
Will someone think of the children?
Srangely, the Victims Rights' Industry never sees children of people in jail as a "victim" even though they will probably go on to a life of crime themselves.
Posted by: S.cotus | Jan 17, 2008 1:35:29 PM
This is probably the right result. To their credit, Prof. Berman and others appear to recognize that this deference applies equally to above-Guidelines sentences and seem to be ok with that.
I wonder, though, how this trend is going to play out. The courts of appeals may have "gotten the message" that they're supposed to rubber stamp sentences, but Rita and Gall say that there's still some role for substantive reasonableness review of sentences.
Justice Scalia's concurring opinions in those cases explained (convincingly, in my view) why that makes little sense, but substantive review is still part of the law.
Perhaps Prof. Berman or others could explain under what circumstances an appellate court would be justified in finding a sentence substantively unreasonable--that is, when the district court has considered all of the 3553(a) factors, calculated the Guidelines correctly, and explained its reasons for imposing the sentence it did (without running afould of any procedural requirements of any statutory upper and lower bounds on the sentence), when can a court of appeals say the the resulting sentence is nonetheless substantively unreasonable?
Posted by: | Jan 17, 2008 2:04:45 PM
How about: "My reason for departure is because I just don't like you?"
Posted by: Anon | Jan 17, 2008 2:53:05 PM
Anon: that would procedurally unreasonable, not substantively. See Justice Scalia's concurrence in Rita, footnote 6.
Posted by: | Jan 17, 2008 3:53:48 PM
So this woman unlawfully possesses a firearm based on the fact that she's a convicted felon - her 14 year old daughter gets a hold of the gun and ends up dead -- and she gets no jail time because she wants to care for her other child? And Marion Jones goes to prison despite her plea that her children need her?
Another question. "The court emphasized that Lehmann was “not on trial for the death of her daughter,” and found that the evidence regarding Jamie “clearly” took this case “outside the heartland of cases.”
Is this an outright refusal to consider uncharged conduct? If so, I wonder if the sentencing judge refuses to consider such conduct in every case or only in those cases in which he wants a downward departure.
Posted by: JustClerk | Jan 18, 2008 8:30:10 AM
The factual scenario laid out above makes this all the more outrageous from a number of standpoints. Gall has seemingly tied the hands of the Courts of Appeal.
Posted by: anonymous | Jan 19, 2008 3:49:56 PM