Potent Eighth Circuit opinion affirming below-guideline probation sentence

Another Eighth Circuit decision today, this time in US v. Lehmann, No. 06-3597 (8th Cir. Jan. 17, 2008) (available here), highlights the import and impact of the Supreme Court's work in Gall.  Lehmann affirms a below-guideline sentence of probation on a record that seems surely to have led to a reversal before Gall.  Here are excerpts from the ruling (with some cites omitted):

It is undisputed that the district court correctly calculated the advisory sentencing guidelines range, which provided for a sentencing range of 37 to 46 months’ imprisonment before any departure or variance. Lehmann urged the district court to depart downward under § 5H1.6 of the advisory guidelines, or to vary from the advisory guidelines under 18 U.S.C. § 3553(a), based on her family ties and responsibilities....

The district court was persuaded by Lehmann’s evidence concerning the welfare of her son, and pronounced a sentence for the firearms charge of five years’ probation with six months of community confinement as a condition of probation....

The district court imposed a sentence of probation, and the government argues that the sentence is substantively unreasonable.  Our precedents prior to Gall “routinely” rejected as unreasonable those variances that resulted in a sentence of probation when the guidelines recommend a term of imprisonment, in part because “probation is not merely a reduced sentence, but a different type of sentence altogether.”  The Supreme Court in Gall, however, emphasized that “[o]ffenders on probation are subject to several standard conditions that substantially restrict their liberty,” 128 S. Ct. at 595, and affirmed a sentence of probation for a drug trafficker with an advisory guidelines range of 30 to 37 months’ imprisonment. The Court also indicated that a sentence of probation would be permissible for a drug trafficking offense with a guidelines range of 30-37 months’ imprisonment, if there were “compelling family circumstances where individuals [would] be very badly hurt in the defendant’s family if no one is available to take care of them.” Id. at 602 (internal quotation omitted).

The district court here imposed the standard conditions of probation, which Gall described as a “substantial restriction of freedom,” id. at 595, and added a special condition requiring Lehmann to serve six months in community confinement.  In explaining its decision not to impose a term of imprisonment, the district court accepted expert testimony that sending Lehmann to prison would have a very negative effect on the emotional development of her young son, which is not materially different from the sort of “compelling family circumstances” that the Supreme Court indicated would justify probation for a drug trafficker with a similar advisory guidelines range.  Id. at 602.  Given the impermissibility of “proportionality” review, and the requisite deference due to the district court, we cannot conclude that the sentence imposed was substantively unreasonable in light of § 3553(a) and Gall.