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March 20, 2009

Notable Fourth Circuit (unpublished) vacating of downward variance

Thanks to this post at Fraud with Peril, I see that the Fourth Circuit has today vacated, via an unpublished per curiam opinion, a downward variance in US v. Gaskill, No. 04-4476 (4th Cir. March 20, 2009) (available here).  Here is how this opinion begins:

Appellee Jerry Gaskill was convicted and sentenced in the Eastern District of North Carolina for making materially false statements in connection with a matter within the jurisdiction of the Army Corps of Engineers, in violation of 18 U.S.C. § 1001.  At his sentencing hearing, the district court, over the Government’s objection, granted Gaskill a downward variance from the advisory Sentencing Guidelines range of fifteen to twenty-one months, and imposed a sentence of three years’ probation with six months’ home confinement.  The Government has appealed Gaskill’s sentence, asserting that the court erred in granting the downward variance. As explained below, we agree with the Government, and thus vacate and remand.

Intriguingly, the opinion in Gaskill suggests that the panel has a substantive problem with the sentence imposed, though it ultimately asserts that it is vacating and remainding for procedural unreasonableness:

In the absence of some indication that the sentencing court considered all the § 3553(a) factors, we are unable to conclude that it complied with its § 3553 mandate.... The court’s implicit consideration of only a part of a single § 3553(a) factor ... is insufficient to support the implication that it considered each of the § 3553(a) factors.... Because a sentencing court should provide a more substantial justification for a probationary sentence when the Advisory Guidelines call for an active sentence of imprisonment, such as in this case, we are unable to conclude that the award of a downward variance was procedurally sound.

March 20, 2009 at 04:59 PM | Permalink

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Comments

It definitely seems that the level of procedural scrutiny goes up when the court has worries on the substantive end. Of course, that makes some sense given that the review as a whole is basically an abuse of discretion test. The more worried we are that the result reached may be outside the range of acceptable outcomes, the more scrutiny we apply to the decision-making process. Makes sense.

Posted by: anon | Mar 20, 2009 6:31:46 PM

"The more worried we are that the result reached may be outside the range of acceptable outcomes, the more scrutiny we apply to the decision-making process. Makes sense."

It makes no sense to have one standard of procedural reasonableness for cases you are "worried" about and another standard for cases you are not worried about. Either the case was procedurally sound or it was not.

I agree that many courts are in fact rejecting cases for procedural reasons when in fact the concern is substantive. But I think that is because they are operating in a dishonest manner. Rather than biting the bullet and dealing with the substantive issues, they give a wink and a nod to the lower court.

Posted by: Daniel | Mar 20, 2009 11:49:06 PM

This shows the beginning of the Scalia Bounce. The criminal lover trial courts will loose a mass of vicious predators. The crime victimization rate will return to that of the 1970's, about 40% higher than today's. Why would trial courts do that? Criminals generate lawyer jobs and are good customers for the three lawyers, including the one on the bench.

One will have to appeal to get proper, safe sentencing, it seems. In most cases, I anticipate the appeal will fail. The appellate lawyer traitor on the appellate bench usually loves the criminal even more than the trial traitor.

The failure of future appeals will deter prosecutors from tough offers in their plea bargains. It is in that hidden effect, on the mind of the prosecution, that the biggest impact of the Scalia Bounce will take place. Plea bargains cover 97% of criminal sentences.

The Scalia Bounce will morally and intellectually justify direct action of crime victim groups in self-help against the internal lawyer traitors, including prosecutors offering shorter sentences and lighter charges.

Posted by: Supremacy Claus | Mar 21, 2009 9:23:39 AM

"Criminals generate lawyer jobs and are good customers for the three lawyers, including the one on the bench. . . . The appellate lawyer traitor on the appellate bench usually loves the criminal even more than the trial traitor."

This is either a parody or the dumbest comment I've ever read on this blog, which is saying something.

Posted by: anon | Mar 21, 2009 10:54:21 AM

Anon: I always appreciate thoughtful, lawyerly criticism. It is not parody. It is the Rent Seeking Theory, the Unified Theory of lawyer behavior, especially anomalous outcomes in appellate decisions. The Coase Theorem is almost irrelevant to lawyer practice.

How do you explain the 23 million FBI Index felonies every year, with 5 million being violent?

Posted by: Supremacy Claus | Mar 21, 2009 2:22:48 PM

Just in case you are wondering, SC, if I recall correctly, is a doctor that lost some lawsuit, and then got mocked for his pro se appeal.

He really doesn't like lawyers. That is a shame.

Posted by: S.cotus | Mar 21, 2009 8:01:32 PM

Though the line between procedural error and substantive reasonableness is sometimes blurred by appellate courts, this case does not appear to be such an instance.

In Gall, the Supreme Court held that "significant procedural error" includes "failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range." Gall v. United States, 128 S. Ct. 586, 597 (2007). Requiring district courts to "adequately explain the chosen sentence [] allow[s] for meaningful appellate review and [] promote[s] the perception of fair sentencing." Id. Because the sentencing judge in this case granted a downward variance, he not only had to explain the chosen sentence; he also had to explain why he varied from the Guidelines so that the Court of Appeals could have something to evaluate in deciding whether the judge abused his discretion.

On p. 12 of the unpublished opinion, the Fourth Circuit describes the deficiency in the sentencing judge's explaination: "The Statement of Reasons filed by the court with respect to the sentence did not explain the basis for the variance sentence, nor did it select or emphasize any of the [] 3553(a) factors as justifying such a variance. Instead, the Statement of Reasons provided that "[t]he defendant's motion for variance is granted by the court."

The sentencing judge's explanation, devoid of any reason for granting a downward variance, did not provide for meaningful appellate review and, therefore, constituted significant procedural error.

Posted by: Appellate Law Clerk | Mar 23, 2009 10:20:47 AM

Appellate Law Clerk says: "The sentencing judge's explanation, devoid of any reason for granting a downward variance, did not provide for meaningful appellate review and, therefore, constituted significant procedural error."

Too bad the judge couldn't have just explained to the bean-counter appellate court that it's patently absurd to send people to prison for lying (not under oath) to power-drunk federal bureaucrats.

Posted by: John K | Mar 23, 2009 12:41:12 PM

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