June 24, 2009
Long split Sixth Circuit opinion discussing lots of modern federal sentencing issues
The Sixth Circuit issued a long split opinion this morning in US v. O’Georgia, No. 05-2598 (6th Cir. June 24, 2009) (available here). The start of the majority's ruling provides some flavor of the many issues covered:
Mark Arhebamen, also known as McMaine Allen O’Georgia, pled guilty in 2001 to one count of aiding and assisting in the preparation of a false federal income tax return. He received a sentence of 21 months of imprisonment plus one year of supervised release. This court affirmed his conviction and sentence, but the Supreme Court remanded the case in 2005 for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). The district court reimposed the same sentence.
While the appeal of his conviction and sentence was pending, Arhebamen was prosecuted separately for conduct that occurred during the false-tax-return proceedings. The new charges were for failure to appear at sentencing, making false claims of United States citizenship, corruptly endeavoring to obstruct justice by lying to the Probation Office, and making false statements to judicial officials. Arhebamen was tried before a jury in 2003 on these new charges and was convicted on all counts. After applying six different upward departures under the United States Sentencing Guidelines, the district court sentenced Arhebamen to 152 months of imprisonment and to four years of supervised release. This court affirmed Arhebamen’s conviction, but remanded for resentencing pursuant to Booker. The district court again imposed the 152-month sentence and the four-year term of supervised release.
Arhebamen now appeals both sentences. For the reasons set forth below, we VACATE the sentences and REMAND the cases to the district court for resentencing consistent with this opinion.
Among many sensible follow-up questions to this case is why the defendant did not pick a state name for his middle name when he started calling himself McMaine Allen O’Georgia. Indeed, I cannot help but wonder if the defendants only had the good sense to call himself McMaine von Alabama O’Georgia, perhaps he would have gotten a lower sentence.
June 24, 2009 at 10:23 AM | Permalink
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In May, at the NACDL's FSG conference in Clearwater, FL, there was a discussion about the usefulness of departures in a post-Booker world. I believe it was Judge Block (E.D.N.Y.) who said that he didn't see the benefit in engaging in a departure analysis and risking appeal under pre-Booker departure law, when you can reach the same result under a variance analysis, which (unlike departure law) is entitled to great deference on appeal. In essence, why go through the departure exercise, which is largely academic post-Booker? I wasn't sure if I agreed with him, but this case may just prove his point.
Assuming that the majority is correct about the inappropriate use of several departures in this case, I agree with the majority that they cannot affirm under harmless error analysis. This is because an appellate court "cannot review the reasonableness of [a non-GL sentence] without the district court providing the necessary § 3553(a) analysis to support a variance in the first instance."
That being said, I don't think it's too much of a stretch to believe that on remand the district court can (and should?), and likely will, re-impose the same sentence under a 3553 variance analysis. So long as he adequately explains his 3553 analysis (which is what prevented the Circuit from affirming in this case under harmless error review), the sentence is likely to be affirmed. If that happens, then the district court's initial attempt at a departure analysis was pointless, resulting in an unnecessary round of litigation.
Posted by: DEJ | Jun 24, 2009 12:39:31 PM