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April 25, 2016

Notable dissent from Eighth Circuit panel ruling affirming re-imposed stat-max 10-year sentence for possessing unregistered sawed-off shotgun

A helpful reader alerted me to an intriguing ruling by a split Eighth Circuit panel today in US v. Webster, No. 15-3020 (8th Cir. April 25, 2016) (available here). Here is the key substantive paragraph from the majority per curiam ruling in Webster:

Webster’s challenge to the substantive reasonableness of his sentence is reviewed under a deferential abuse-of-discretion standard.  See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).  As Webster notes, the district court imposed the same sentence on remand as Webster received in the first sentencing, and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error.  See Webster, 788 F.3d at 893.  However, the fact that this court “‘might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.’”  Feemster, 572 F.3d at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).  While “substantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions,” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quotation omitted), this court “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”  Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51).  In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver.  See U.S.S.G. § 5K2.6 (stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant “substantial sentence increase”).  In short, after careful review, this court cannot say that this is the “unusual case” where the district court’s sentence will be reversed as substantively unreasonable.  See Feemster, 572 F.3d at 464.

Judge Bright's dissent from this decision by the majority is what really makes Webster worth a full read by sentencing fans. Here are excerpts that provide a taste for why (with emphasis in the original and some cites omitted):

[O]ur reversal on the basis of substantive unreasonableness is often left to a district court’s decision to vary below the Guideline range.  Rarely, if ever, do we hold sentences above the Guideline range substantively unreasonable.  The pattern of failing to reverse above-Guideline sentences on the basis of substantive unreasonableness perpetuates our broken sentencing system.

As discussed by Former Attorney General Eric Holder, the problem with the federal sentencing system is the “outsized, unnecessarily large prison population.” See Eric Holder, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech- 130812 .html. As the Attorney General stated, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id.  Our sentencing policy has also resulted in “harsher punishments” for “people of color” throughout the United States.  Id. The White House recently highlighted the “decades of overly punitive sentencing policies” through the commutation of numerous prison terms....

Webster is an African-American man with a high school education.  At the time of the offense, Webster had no employment record and came from a broken home. In spite of his adverse life circumstances, Webster has a limited criminal record with the lowest category criminal history score.  At the resentencing hearing, Webster also informed the district court of his completion of a 14-hour drug treatment program, and attendance at both anger management and victim impact classes.  (Resent’g Tr. 11- 12). Thus,  in the year between Webster’s original sentence and the resentencing hearing, Webster showed the ability for successful rehabilitation....

Further, Webster was 20-years-old at the time of the offense. Since 2005, the Supreme Court, has consistently held young people are most likely to change during a period of incarceration. In fact, psychological research indicates the human brain does not reach its ultimate stage of development until adolescents reach their mid-twenties....

Based on the current move in this country to shorten federal sentences, coupled with Webster’s age [20], criminal history, education level, remorse, and efforts to rehabilitate himself, the district court’s punishment may well be excessive “under the totality of the circumstances in this case, judged in light of all of the § 3553(a) factors.” Kane, 639 F.3d at 1136.  Therefore, I would vacate Webster’s sentence and remand for reconsideration consistent with this opinion.

April 25, 2016 at 03:15 PM | Permalink


"In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver. See U.S.S.G. § 5K2.6
(stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant “substantial sentence increase”).

That's from the opinion. Can anyone really say that a 10-year sentence is out of line? Judge Bright seems not too bright.

Posted by: federalist | Apr 25, 2016 4:19:19 PM

I think you miss Judge Bright's point federalist. The Guidelines are just what they say they are, Guidelines. By robotically following them without a second thought, it renders the 3553(a) factors meaningless. Just because they are Guidelines does not mean they necessarily always capture the spirit or intent of 3553(a) (yes I know its vague and leaves much room for wiggle room but that's a discussion for a different day). If you read Judge Bright's dissent carefully you would see he is more or less faulting the district court for not explaining why this sentence is appropriate under the 3553(a) factors in light of the fact that the defendant was young, immature, and is going to possibly spend a lot more time than is necessary in jail at tax payer expense.

I am sure you can disagree with Judge Bright's reasoning. The defendant may also be a menace to society, who knows, but if judges robotically agree with the Guidelines, then why stop at Guidelines or statutory maximums? Once a menace, then always a menace, so life in prison. Or why doesn't he just follow the Guidelines because it directly or indirectly represents the will of Congress as implemented by the US Sentencing Commission? Many philosophical questions to ask but in short, the sentence does seem excessive where no one was hurt, despite the obvious risk (and if you come back and post about risks, life itself is also risky....the leading cause of death in the US is actually just living).

Posted by: Response to Federalist | Apr 25, 2016 4:47:13 PM

Kudos to Judge Bright, who recently turned 97! Substantive reasonableness review has truly become a rubberstamp, with the vanishingly small number of reversals primarily coming from government appeals, especially in the Eighth Circuit.

Also, I was also surprised that this case came to the court on the posture of defense counsel having filed an Anders brief. Clearly there was a non-frivolous issue for appeal in this case (given the dissent and prior remand), and defense counsel had no business filing an Anders brief.

Posted by: Anon | Apr 25, 2016 4:54:26 PM

fyi -- a new speech by retired Justice Stevens was posted on the USSC website and it contains some mterial relevant to this blog.


Posted by: Joe | Apr 25, 2016 5:15:56 PM

Um, what did I miss? If the idea is that facts matter--well, shooting into a car---that's a pretty big fact which a judge can take into consideration.

Bright's opinion is lawless.

Posted by: federalist | Apr 25, 2016 8:16:25 PM

Once again, federalist, you throw out the term "lawless" to just mean "I disagree." In various ways, the Bright opinion draws on much more law than does the majority.

And to answer your first posting, I will say that a 10 year stat max is very questionable for an offender with various mitigating factors. Stat max sentences should be given to the worst of the worst offenders convicted of the relevant offense. Shooting at a car makes this a very bad version of the offense, but other factors provide at least an arguable basis for the assertion that a stat max sentence is inappropriate based on an application of all the 3553(a) factors.

Posted by: Doug B. | Apr 25, 2016 11:15:10 PM

If the supreme court decisions rendering the guidelines advisory are to mean anything the discretion afforded to district court judges cannot serve only as a one-way ratchet downward.

I would be very interested to see the reaction to a district court judge who fundamentally disagrees with the guidelines as being too lenient.

Posted by: Soronel Haetir | Apr 25, 2016 11:43:54 PM

I'm not saying the ruling is wrong, but I do hear the complaint that there seems to be a lack of clarity between substantive reasonableness and procedural reasonableness. I do think it is possible for a sentence to be procedural unreasonable but not substantially unreasonable and I don't think the opinions to a goof job of making that clear.

Posted by: Daniel | Apr 26, 2016 12:33:18 AM

"and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error."

What bugs me about that sentence is I don't see what "reasonable probability" has to do with procedural reasonableness, unless this is supposed to be some backdoor way of applying a "harmless error" standard. Which I think is wrong. Conceptually, probability and harmfulness speak to substantive outcomes and not procedures. The majority opinion does a good job of confusing the two.

Posted by: Daniel | Apr 26, 2016 12:38:37 AM

I'm sympathetic to Soronel Haetir's point but "discretion" isn't "total" discretion.

Inclined to think the majority very well might have got it right here but probably reasonable grounds to disagree.

Posted by: Joe | Apr 26, 2016 10:31:13 AM

Soronel Haetir's point is the flip side of the very point being made by Judge Bright. The Eighth Circuit and a number of others have MUCH MORE commonly reversed sentences based on substantive reasonableness for being too lenient than for being too harsh. Judge Bright's opinion lists a number of such reversals.

Posted by: Doug B. | Apr 26, 2016 12:06:00 PM

Yes, discretion by district judges is not complete, and the dissent here thinks reversals are done too much in one direction. A majority of his dissent to me appears to be based on that general principle. As applied to this specific case, not sure if he was right.

(He notes, e.g., "the district court’s punishment may well be excessive" ... if even he says that, discretion might warrant the holding of the majority.)

Posted by: Joe | Apr 26, 2016 12:20:43 PM

Doug, the opinion is lawless--but you are right to criticize me for not setting forth why. Basically, Bright references a bunch of political whines about over-incarceration, makes a big deal about this guy being African-American (as if that should matter) and that his low-level criminal history is somehow laudatory given his disadvantageous background. That's lawlessness. If he wanted to make the technical argument that 120 months cannot, as a matter of law, be ok because of this guy's age and disadvantaged background, well maybe, but it would seem to me that the seriousness of the offense here can overwhelm the mitigating factors.

Remember too, the guy has a criminal history--even though low, it seems that's aggravating or could be. So we have a very serious crime--firing a weapon into a car, coupled with a criminal history--is 120 months really substantively unreasonable? Obviously, it passes the eyeball test of being a fair sentence. Like I said, I can see a technical argument here that a judge should look at the stat. max as the outside limit and only those crimes that are absolutely the worst can get those--but then, what's the reduction here? Six months? And is a six-month error a real issue in a discretionary system?

Posted by: federalist | Apr 26, 2016 3:03:42 PM

Couple of quick points about the federal sentencing law, federalist:

1. Title 18 USC sec. 3553(a)(1) requires judges to consider the "history and characteristics" of the defendant and 3553(a)(2)(b) speaks about not giving a sentence "greater than necessary ... to protect the public from further crimes of the defendant." Thus, the point you reference are consideration that Congress wrote into the applicable sentencing law, and thus discussing these matters is not "lawless." (Indeed, it was arguably "lawless" for the district judge and the panel majority not to talk about these legal mandate from Congress when it upheld a stat-max sentence here).

2. The defendant was only convicted of "possessing an unregistered sawed-off shotgun," he was not convicted of "a very serious crime [of] firing a weapon into a car." Arguably it is lawless to sentence a defendant not based on the crime of conviction, but rather based on prosecutorial allegations distinct from the crime of conviction. That said, 3553(a)(1) does instruct/require consideration of the "nature and circumstance" of the offense, so I am not asserting it is wrong to take this factor into consideration. But I continue to believe that the LAW that defines sentencing decision-making after Booker --- not your "eyeball test of being a fair sentence" --- raises real concerns about the substantive reasonableness of a stat-max sentence in a case with a number of mitigating circumstances (and a guideline range that was much lower and likely incorporated the risk from the gun's firing).

Posted by: Doug B. | Apr 26, 2016 4:57:07 PM

Doug, you didn't respond to my post--your "response" basically sets it up like I didn't know what I was talking about. Interesting tactic (if intentional).

Point 1: First of all, I didn't say that Bright's arguments that are tied to statutory language were lawless, rather I pointed out specific parts of the opinion (which informed Bright's position) that were lawless (in my view, that taints the whole opinion, and if you think about it, that's correct). You don't defend Bright's turning criminal history into a positive or his invocation of Holder, so you pivot and criticize the sentencing judge and lecture me about stuff I already know. (By the way, we've been down the path of you selectively quoting sentencing statutes.) Second, shouldn't his criminal history be aggravating?

Point 2: This is totally annoying. As should be clear from the context, I wasn't advocating the eyeball test, just pointing out that the sentence really doesn't smack of a great injustice. This should have been clear from the context because in the very next sentence I was stating that there was an argument. Plus, I also set forth the reasoning and ask what sort of reduction would be warranted and whether the law cut that finely. Of course, you don't answer that. I think, as a practical matter, if the standard is "unreasonableness", you are swimming upstream if something meets an eyeball test. I assume you know that--so really your snide remark makes you look silly.

And yes, I get that he was convicted of gun possession--but in my first post, I quoted the per curiam majority which noted that the USSG said shooting a gun can get a big increase. So I get it, and that should be f'in obvious.

I'll note that if the DJ thought that this guy is dangerous based on the conduct, a very strong argument from the statute you quote would justify the sentence. People who deliberately shoot at cars with people in them are serious criminals and the public needs to be protected from them. You seem to think that mitigation must necessarily translate into a reduced sentence--don't think that's the case.

Posted by: federalist | Apr 26, 2016 8:29:12 PM


1. You twice said that Bright's "opinion is lawless." I appeciate you now seemingly walking this back by saying that only certain parts of his opinion trouble you. But I still do not see what is "lawless" about quoting a major speech by the US Attorney General, and in the context of reviewing a stat-max sentence, the fact that the defendant is in the lowest criminal history category seems to me a very relevant fact that, given applicable law, cuts against the appropriateness of a stat-max sentence.

You are, of course, welcome to argue that you find the approach to sentencing law embraced by the majority more compelling than Judge Bright's. But at the core of my concern/response is that you throw around the term "lawless" just as a way to describe your disagreements with how others apply law.

2. I am not tying to annoy you, federalist, but rather trying to highlight that you seem at limes quite sloppy about "the law" when criticizing others. I am not asserting your criticisms are "lawless," but rather seeking a more clear and precise understanding of your criticisms. And yes, I do think the law can and should cut finely --- at least to find that a stat-max sentence is unreasonable where there are numerous mitigating factors unless and until the district judge explains her reasons for concluding that the mitigating factors are outweighed by aggravating factors. And that is, I think, Bright's main point: the district judge needed to do a much better job justifying the stat-max sentence in this case before he would feel comfortable affirming it as reasonable.

Critically, nobody disputes that those who "deliberately shoot at cars with people in them are serious criminals and the public needs to be protected from them." But at issue, due to the sentencing laws passed by Congress, is whether it was unreasonable to conclude a stat-max sentence of 10 years (rather than the guideline-recommended sentence of 6-7 years or even 8 or 9 years) would have been "sufficient but not greater than necessary" to achieve this public protection need. And I am not saying that "mitigation must necessarily translate into a reduced sentence," but I am saying I find more convincing the view that a district judge should be held to a heightened burden to explain its reasons for giving a stat max sentence in light of the sentencing law Congress has enacted.

3. Ultimately, this discussion is a variation of many others we have in this space: you want to read the law as supporting government punishment/power in nearly all contested cases, I tend to read the law as limiting government punishment/power in many contested cases. I do not think either approach is "lawless."

Posted by: Doug B. | Apr 27, 2016 9:23:15 AM

I am not walking back the statement at all. Not in the slightest. Bright's opinion--which overtly leveraged Holder's politicized statements about the justice system and the race of the defendant to paint a picture of a disadvantaged black youth caught in the maw of the institutionally racist criminal justice system. This is lawless crap, and, in my view, infects the whole opinion--note I stated that so saying that I am walking back is nonsense--Bright's opinion is contemptible, but I wasn't really interested in getting that deep into it--the problems should be obvious to anyone who cares about neutral justice and courts. Whatever the shortcomings of the federal sentencing system, certainly, the sentencing of someone who intentionally fired an illegal gun into an occupied car to 120 months in prison isn't evidence of a broken sentencing system.

Now I grant that the eyeball test (which I NEVER advocated, and you should know better than to say I did) isn't dispositive (although, you have to concede that you are swimming upstream when a sentence on its face doesn't scream "this is horribly unfair"). What I think you're trying to argue, but won't say so out loud is that there is really a mismatch between the federal crime and the conduct and that gives an opening for mitigation because he was only convicted of possession. Fine--but the USSG that I quoted seems to bar that door. Second, it seems to me that possession shown by someone shooting into a car with people in it is clearly at the far range of bad, and it's at the far range of dangerousness. And this guy has a criminal history too.

If you look closely at the "sufficient, but not greater than necessary" standard, you need to look at both ends. It's hard to make the argument that judges have to be really careful that they don't blow past the greater than necessary, but less so about "sufficient." Almost by definition, there is judgment involved. And that means that really fine grinding is almost certainly not required.

Posted by: federalist | Apr 27, 2016 10:17:48 AM

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