April 13, 2010
Seventh Circuit reverses above-guideline sentence for female sex offender as unreasonableThe Seventh Circuit has a fasciating little reasonableness ruling today in US v. Miller, No. 09-2791 (7th Cir. Apr. 13, 2010) (available here). Here is how the opinion starts:
Catharine Miller pled guilty to one count of traveling in interstate commerce to engage in prohibited sexual conduct with a fourteen-year-old girl in violation of 18 U.S.C. § 2423(b). At her sentencing hearing, the district court overruled Miller’s objections to the presentence report and adopted the report’s recommended Guidelines sentencing range of seventy to eighty-seven months. The government argued for a sentence above the Guidelines range. The court sentenced Miller to a 120-month prison term. Miller has appealed her sentence. We vacate the sentence and remand for resentencing.
Because there are lots of elements to the Miller case and the Seventh Circuit's ruling, I am disinclined to assert that any single factor explains why this particular defendant prevailed on her sentencing appeal. But, as evidenced by the word I have emphasized in the title of this post, I do think it is worthwhile to ponder, at least briefly, whether this appeal obviously comes out the same way if the defendant's name was Charles Miller.
April 13, 2010 at 01:36 PM | Permalink
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Why do you even need to ponder it for one millisecond. Of course the outcome of this case would have been different if the name had been Charles Miller. It would have meant the DJ sentenced the wrong person.
Posted by: Daniel | Apr 13, 2010 2:57:16 PM
There has been great debate about the standard for reversing a sentence as substantively unreasonable. I refer to the comment’s section of the following post: http://sentencing.typepad.com/sentencing_law_and_policy/2010/03/new-scholarship-complaining-that-reasonableness-review-is-now-quite-unreasonable.html.
There, I commented that substantive reasonableness review should entail one question: Does the record support the sentence? I also asserted that such a standard would not be a "rubber stamp" on a district court's sentencing decision (citing several cases) and would provide standards for judges and practitioners at both the appellate and district court level.
This case is the perfect example of such a review, and also shows the standard is not a rubber stamp. The sentence here was reversed as substantively unreasonable because of “absence of support in the record” for the district court’s sentencing decision.
Post-Booker, all sentences must be thoroughly explained. That's part of the procedural component of review. And all sentences must be supported by the record. That's the substantive component of review.
Posted by: DEJ | Apr 13, 2010 3:24:48 PM
I think one other aspect of this opinion is worth highlighting (which is not as positive as my last comment), and it also requires me to cite to a previous post’s (Feb. 11, 2010) comments. See http://sentencing.typepad.com/sentencing_law_and_policy/2010/02/fourth-circuit-reverses-two-notable-sentences-as-procedurally-unreasonable.html.
There, I noted that even though Gall explicitly rejected a "proportionality" analysis to substantive reasonableness review, appellate courts are still giving great weight to the percentage of the variance.
In this case the panel states: “we conclude that the court failed to provide sufficient support for a sentence that was fifty percent above the high end of the advisory Guidelines range.” I find fault in this statement for two reasons.
First, the lack of explanation is a procedural error. In my view, procedural reasonableness should look towards the dist. ct’s explanation, while substantive reasonableness goes to whether the record can support that explanation. Second, and more to the point that I was making in the Feb. 11 post, the whole “50%” language is thinly veiled proportionality review. As I asked in the Feb. 11 post: how is that not proportionality review?!
In essence, I would have been entirely satisfied with the 7th Circuit's substantive reasonableness analysis, but for its discussion on “50%” and “insufficient explanation.”
Posted by: DEJ | Apr 13, 2010 3:44:00 PM
When the District Court basis its departure on a claim (high recidivism rate for sex offenders) that has no basis in the record, I would consider it an error of procedure, not substance.
Posted by: Marc Shepherd | Apr 13, 2010 5:37:21 PM
As to your suggestion that this might be a case where a female sexual offender received a more lenient sentence, I would hope not. At the end of the day the reversal hinges on a lack of evidentiary support for a) sex offense recidivism and b) any particularized finding that would justify an above-guidelines sentence based on the offense or offender characteristics. There should not be any different outcome in a case with the same facts involving a male defendant (whether the victim was male or female) or a female defendant with a male victim.
Posted by: Alec | Apr 13, 2010 10:59:30 PM
Abandon all reality ye who enter law school?
Apparently one must be a brilliant prosecutor, wise district- or appellate-court judge, gifted legislator or hysterical soccer mom to fully appreciate the extent of victimization of this particular teen-age girl by this particular young woman.
I'm sorry. Sincerely. I just don't get it. And I really hoped I would. I'd like to think our legal system is better than this.
Moreover, pushing for aggravating-circumstance enhancements in this case might be one of the more cynical, opportunistic, laugh-out-loud, wink-wink, nudge-nudge, know-what-I-mean, say-no-more, abuses of power and reason I've seen.
And that's saying a lot.
Posted by: John K | Apr 14, 2010 9:47:32 PM
This business of crossing state lines to commit a crime is nonesense. The crime occurred in a single state. Let that state prosecute or not. Sentencing some human being to 120 months (ten years) for having prohibited consensual sex is outrageous and vert expensive for the taxpayers.
ten days would be too much.
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