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July 7, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 at 10:52 AM | Permalink

Comments

Can anyone explain to me why, in the name of everything holy and federal, there is an assimilative crime act? And why these people weren't tried by the State of New Jersey?

I can't help but think that New Jersey sentencing law/guidelines affected this.

Posted by: Fat Bastard | Jul 7, 2017 1:22:18 PM

The opinion notes that such laws go back to the early part of the 19th Century to fill in gaps in federal law involving acts that might occur in federal enclaves and such.

Here, the father was a member of the army & "these offenses occurred (at least in part) within the special maritime and territorial jurisdiction of the United States."

Posted by: Joe | Jul 7, 2017 2:05:07 PM

This seems like another acquitted conduct case. Defendants are bad people and so they should be given harsh sentences even though the government couldn't actually prove most of the alleged crimes but hey the crimes they could prove were bad crimes and bad people deserve harsh sentences.

Honestly, if I were the district judge I would be depressed. To wade through all the BS, come up with a sentence, and then have the appeals court whine that you weren't cruel enough to cruel people is enough to make me depressed just reading about it.

Posted by: Daniel | Jul 7, 2017 7:07:23 PM

Federal abstention is a seriously underused doctrine. Was there actually anything preventing the State of New Jersey from prosecuting these people? Trying to apply the sentencing guidelnes to a state crime is folly.

Posted by: Fat Bastard | Jul 7, 2017 9:27:02 PM

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