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January 14, 2009

Eighth Circuit reverses (again) reduced sentence in extreme sex offense case

The Eighth Circuit has yet another notable sentencing ruling today in a notable federal sex offense that has come before the circuit repeatedly.  The first few paragraphs and some of the concluding sentences of this new panel opinion provides the ugly basics of an ugly case (and I use the adjective ugly here without intending to opine in any way on the substantive merits of the ruling):

Ruth Kane (Kane) repeatedly restrained and compelled her nine-year-old daughter to submit to the sexual gratification of a pedophile in exchange for Kane’s receipt of $20.  This sexual abuse occurred approximately twice a week for more than 200 molestations.  A jury found Kane guilty of aggravated sexual abuse and conspiracy to commit aggravated sexual abuse.  The district court sentenced Kane to 210 months imprisonment.

Kane appealed.  We affirmed Kane’s conviction, but vacated her sentence and remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005).  See United States v. Kane, 148 Fed. Appx. 565, 568 (8th Cir. 2005) (unpublished).   The district court resentenced Kane to 120 months imprisonment. The government appealed. We reversed, holding Kane’s 120-month sentence was unreasonable.  See United States v. Kane, 470 F.3d 1277, 1282 (8th Cir. 2006) (Kane II).  The Supreme Court vacated and remanded for reconsideration in light of Gall v. United States, 128 S. Ct. 586 (2007).  Having considered Gall’s impact on Kane’s sentence, we again vacate the sentence of the district court and remand for resentencing....

Given the horrifying nature of Kane’s conduct, the fact Kane repeated her offense against her daughter over 200 times, and Kane’s refusal to accept responsibility for her role in her daughter’s abuse, we have serious concerns about the substantive reasonableness of Kane’s 120-month sentence. We doubt the district court’s remaining “justification is sufficiently compelling to support the degree of the variance” for the district court’s deviation below the Guidelines range.  Gall, 128 S. Ct. at 597. However, because the district court procedurally erred by substantially basing Kane’s sentence on clearly erroneous factual findings, relying on Kane’s postsentence rehabilitation, and otherwise failing adequately to explain Kane’s unusually lenient sentence with sufficient justifications, we do not reach the issue of whether Kane’s sentence was substantively reasonable.

January 14, 2009 at 06:26 PM | Permalink

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Comments

What is amazing is that the death penalty is not authorized for this crime. Ruth Kane deserves to be executed.

Posted by: federalist | Jan 14, 2009 7:17:16 PM

Is the 210 months in the first sentence a typo? To first say that 210 is too harsh and then say 120 is too lienient seems like insane micromanagement of sentencing by an appelate court.

OTOH, two 120 month sentences, with both reversed would make much more sense.

Posted by: Soronel Haetir | Jan 14, 2009 7:21:40 PM

I say we give the death penalty to federalist: I don't like his post. Seriously, is killing your first response to everything?

"Is the 210 months in the first sentence a typo? To first say that 210 is too harsh and then say 120 is too lienient seems like insane micromanagement of sentencing by an appelate court."

No, it's just insane micromanaging. Of course, we could just kill them and let god deal with problem. It certainly would make federalist's life easier.

Posted by: Daniel | Jan 14, 2009 11:29:40 PM

Well, I finally got around to reading the opinion and that's not a typo. And there you go, the first time round, a within guidelines sentence was overturned as unreasonable. Has the panel makeup changed since the first go-around? The posture of this case makes me shake my head.

Posted by: Soronel Haetir | Jan 14, 2009 11:31:26 PM

There really doesn't appear to be any appellate micromanaging going on. The circuit vacated and remanded in light of Booker, and specifically ended by saying: "We express no opinion as to what a reasonable sentence would be, and nothing in this opinion should be construed as an indication that we think a more lenient sentence is warranted." The only sentence reversed as unreasonable was the 120-month sentence.

Posted by: DM | Jan 15, 2009 12:05:34 AM

@DM. Not true. "we do not reach the issue of whether Kane’s sentence was substantively reasonable" refers to the 120 month sentence.

The reason I think this is insane micromanaging is because the court keeps over turning sentences on "procedural grounds" when that is nothing but a wink-and-a-nod.

"Given the horrifying nature of Kane’s conduct, the fact Kane repeated her offense against her daughter over 200 times, and Kane’s refusal to accept responsibility for her role in her daughter’s abuse, we have serious concerns about the substantive reasonableness of Kane’s 120-month sentence."

HINT HINT NUDGE NUDGE

It's sick and cowardly to do that.

Posted by: Daniel | Jan 15, 2009 12:17:33 AM

This decision is another, bolder example of the Eighth Circuit violating Gall's mandate that the Eighth Circuit grant great deference to the district court's superior vantage point to assess the individual capacities of the defendant (i.e., the sentence sufficient but not greater than necessary to punish, deter, and rehabilitate a defendant without throwing her away as John and Jane Q Federalist citizens might), and the district court's ultimate determination of the sentence Sufficient but not greater than necessary to acheive all the Section 3553(a)goals.

The Eighth Circuit does this by exploiting the "chameleon-like" nature of the labels "procedural error" and "substantive error" (as Justice Scalia's Rita dissent termed it). For example, the Eighth Circuit declares that the district court's determination that Ms. Kane's risk of recidivism was low is "a clearly erroneous fact." The Eighth Circuit panel has never seen, let alone questioned Ms. Kane to have any basis to second guess the district court's judgment, but by couching the issue as a “procedural error,” the Eighth Circuit does an end run around the strong deference it owes the district court’s determination. Same thing as to the judge’s perception that Kane’s drug abuse mitigated her culpability: the Eighth Circuit doesn't have the same experience in sentencing individuals that led this district court judge when it comes to the impact of drug abuse and addiction on a person's behavior that this district court judge had, so rather than respect the district court's experience as it relates to his evaluation of Kane, the panel says there's no evidence for the district court’s conclusion and it's a "procedural error". In fact, the Eighth Circuit is substituting its opinion of the facts and the weight those facts deserve in reaching a parsimonious sentence.

The Eighth Circuit is trying to outdo the Fifth Circuit when it comes to refusing to follow SCOTUS mandates.

Posted by: dh | Jan 15, 2009 8:54:18 AM

I would figure the low likelyhood of reoffending would stem from the fact that no matter how long she is imprisoned, she's never going to be allowed near a child again. Hers or otherwise.

Posted by: Soronel Haetir | Jan 15, 2009 9:49:22 AM

@DH. One thing that I dislike about Scalia is that he always likes to trot out a "parade of horribles" about the consequences of not doing what he wants. But alas, I fear that in this case he was right.

There is a real difference between procedural and substantive reasonableness. The problem isn't Rita. It's that some of the lower courts are not *honoring* what the SC is saying. They could have, under Gall, overturned this sentence based upon substantive reasonableness grounds. But instead of doing their duty and taking moral responsibility for their actions, they kick it back to the TJ based upon a bunch of legal BS.

Its unfair to the SC, unfair to the defendant, a waste of judicial resources, and an abandonment of their ethical responsibilities as judges.

/but then, welcome to the law.

Posted by: Daniel | Jan 15, 2009 2:46:25 PM

This woman should be executed for this crime. Subjecting your own daughter to the monstrous pawing of a pedophile for money over 200 times simply cries out for the death penalty. Even with a 200 month sentence, that's under a month for each separate act of molestation. Inadequate, simply inadequate. And this is not micromanagement. Under what set of facts could 10 years be enough for this monstrous crime repeated hundreds of times? I think the 8th Circuit was simply recognizing this reality, so the "insanity" comment is simply out of bounds.

Posted by: federalist | Jan 15, 2009 3:15:29 PM

An aside about the Eighth Circuit. When the court affirms wholly the lower court they drop a footnote and state the name of the judge below. If ANYTHING is reversed (even something trivial) they do not. I have always found it to be the most childish and bizarre appellate practice. Can the district judges not handle the shame if they get named when they are reversed?

Do other circuits do this?

New Year's Resolution for the Eighth - tell us the name of the district judge no matter the result of the appeal.

Posted by: AlanO | Jan 15, 2009 10:44:06 PM

[I apologize if this is a dupe.]

I did not read the history the same as one person here.

Checking Lexis, I read the 2005 ruling. The appellate court there noted that the district court judge wrongly assumed lack of discretion and implied if further discretion was available, a lower sentence would have been granted.

The appellate court held this was a Booker violation but did not judge the length of said sentence itself. The DC then dropped it to 120 months, a significant drop-off. We are talking 7.5 years here.

Likewise, they focused on why it was reduced this time. Though I don't necessarily think a ten year sentence (with mitigating factors a district court judge might better be able to judge) is too lenient, I also don't think we are talking "micromanaging" or bad appellate pool.

The court was dealing with different things each time.

Posted by: Joe | Jan 16, 2009 6:41:36 PM

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