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August 12, 2008

Sixth Circuit finds below-guideline sentence unreasonable for "inappropriate" factor

The Sixth Circuit this morning reverses a below-guideline sentence as unreasonable in US v. Davis, No. 05-3784 (6th Cir. Aug. 12, 2008) (available here), based on reliance on an "inappropriate sentencing factor." Here is how the Davis opinion starts:

A jury convicted William Davis of two counts of bank fraud, after which the district court calculated a sentencing-guidelines range of 30 to 37 months.  The court imposed a sentence of one day in prison because, among other reasons, Davis was 70 years old at the time of sentencing and because he had committed the underlying crimes 14 years earlier.  We reverse because the second explanation for the court’s sentence represents an inappropriate sentencing factor on this record.

August 12, 2008 at 10:16 AM | Permalink


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7 pages of law, procedure and brimstone, and not one word about common sense or justice. The beast must be fed.

Living and formerly practicing in the 6th Circuit, this is not surprising, just very disappointing.

Posted by: babalu | Aug 12, 2008 11:35:48 AM

Third Circuit Holds that Alternative Sentence Under § 3553(a) Renders Potential Guidelines Error “Harmless”.

And how is this really different from that. In this case we have one explanation that is good and another which is bad. So way not affirm on the good instead of overturning on the bad. How is his error here not harmless since he proposed an alternative way to get at the same sentence.


Posted by: Daniel | Aug 12, 2008 11:51:33 AM

Judge Sutton is a very smart and fair judge. He recognizes that this is "not an easy [case]," especially given the conflicting roles an appellate court is told they should have in reviewing sentences [deference vs. reasonableness review]. By remanding for re-sentencing, Judge Sutton errs on the side of reasonableness review, and leaves for another day (after the next re-sentencing, quite naturally) whether the district court's third(?) re-sentencing will be deferred to. The language of the opinion leaves open the possibility that the district court could impose the same sentence upon remand.

In my opinion, there is almost no such thing as an "improper" 3553(a) factor. Thus, my first reaction to this post was "of course the distance between crime and sentencing is relevant under 3553(a)." However, after reading the opinion, the panel seems to agree with this thought. See Slip Op. at 5 ("To be sure, an interval of years between a crime and the commencement of a sentence may affect the application of certain § 3553(a) factors."). Yet, the panel then concludes that "on this record" it was not clear how this factor justified the variance.

On remand, could the defendant introduce testimony as to WHY this factor is relevant? For example, explain how much turmoil and stress he gone through in the past 14 years to show that prision is not necessary to deter him. Show the collateral consequences he has suffered in the past 14 years due to this hanging over his head to show that prison is not necessary for the sentence to be just. Point out that due to the length of time between crime and sentence without an additional crime, there is no need to protect the public from further crime.

I believe there are a wide variety of reasons 3553(a) supports a 1 day sentence, and obviously so did the district court. I also believe that the length of time between crime and sentence can impact a 3553 analysis, and obviously so did the both the dist. ct. and appl. ct. On remand, the dist. ct. should impose the same sentence, but make sure that the record reflects HOW this otherwise "improper" factor was proper in this case.

Finally, I would point out that there is one point in the opinion that, IMO, is an error in logic: "If a lengthy delay between crime and punishment warrants a shorter prison term, as happened here, then it would seem to follow that a brief delay warrants a longer prison term." Slip at 5. This is wrong for two reasons. First, a long distance of time between crime and sentence fits nicely within many 3555 factors to mitigate the sentence. But a short distance of time between crime and sentence does not readily appear to impact any 3553 factors. Second, courts have often embrased the idea that you can receive a shorter sentence when x occurs without necessarily receiving an aggravated sentence when x does not occur. The most obvious example is the courts' reasoning in rejecting that "acceptance of responsibility" violates the right to trial.

Posted by: DEJ | Aug 12, 2008 2:11:57 PM

Let me be more direct in my criticism of this opinion. The issue is not the district court's failure to explain how two of the factors listed (age and time lapse) impacted on the judge's sentence. The issue is the appellate court's failure to articulate why the lower court's failure is not simply harmless error. The two factors that Judge Sutton focused on are only two of a series of factors listed by the district judge to justify the sentence. I would argue that if there is a legitimate grounds to uphold the sentence, it should be upheld, even if the judge fails to fully explain his reasoning on one or two points that do not materially impact on the outcome. There is no merit to attacking the substance of an opinion by quibbling over the form the opinion takes. There is a very good case that was also decided this week *Sealed Plaintiff v. Sealed Defendant #1* that represents this viewpoint extremely well.

What Judge Sutton has done with this opinion is not "smart" but merely pedantic. It does not honor the spirit of Gall and related cases and reduces the role of the appeals court to nitpicking. if the court felt that there was a substantial problem with the underlying sentence, it had a duty to overturn. If it felt that there was no problem with the underlying sentence, it had a duty to affirm. Instead, it released a hash of an opinion that overturn the lower court's ruling without any direct guidance to the lower court about the substance of the it's opinion. It drags the case on, wastes judicial and other legal resources, and accomplishes nothing in the process.

Posted by: Daniel | Aug 12, 2008 5:40:01 PM

The appellate decision seems to put immense weight on the notion that the trial court chose to make variances rather than guideline adjustments, when the evidence in the record would have supported guideline adjustments had the court choose to treat them that way.

Incarceration is ultimately about protecting the public, rehabilitiation and punishment. A man who has been convicted of two crimes in his life, many decades apart, who has behaved well long after the most recent crime was committed, and who is at a point in life where his future threat is nil, doesn't need to be added to the geriatric ward of some federal prison. He is neither a threat to the public, nor someone who needs to be rehabilitated further through incarceration. Punishment is not the only consideration.

Posted by: ohwilleke | Aug 12, 2008 7:47:03 PM

I am Mr. Davis' attorney, and I'm a longtime fan of this blog. As I consider a petition for rehearing (for a number of reasons) as well as another cert. petition, I'd appreciate any serious thoughts about the existence of "inappropriate sentencing factors." DEJ writes that there is "almost" no such thing. I'm curious what s/he and others think about this -- are there impermissible factors (or facts) that may not be examined at sentencing? If so, specifically, what are they? Race? Gender? Religion? What else? What cases establish them and explain their role post-Gall?

At first blush, this opinion looks to me like a semantic way to get around Gall's heightened standard of appellate review ("We disagree with the sentence that you, the district court, imposed, but we can't say that you abused your discretion after Gall so we're going to say that you looked at something that was 'impermissible' even if that fact is entirely relevant to many 'permissible' factors under 3553.")

Also, please note that Mr. Davis was sentenced to a year of home confinement as well as the one-day prison sentence referenced by the panel. He did not just get one day and then supervised release. (There are several other important factual errors and omissions in the opinion as well.)

Also, any thoughts about the "minimality" requirement post-Gall would be appreciated.

WTH, any other helpful thoughts would be appreciated.

Mark Pickrell
Nashville, TN

Posted by: Mark Pickrell | Aug 13, 2008 12:40:03 PM

18 U.S.C. 3661 Use of information for sentencing.
No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the Unitd States may receive and consider for the purpose of imposing an appropriate sentence.

Posted by: Def. Atty. | Aug 13, 2008 3:22:04 PM

To be clear, my citation of 3661 was a response to Mr. Pickrell's call for suggestions, not a comment on Judge Sutton's opinion, which I have not yet read.

I believe there is a small but significant body of case law for the proposition that after Booker, etc., 3661, combined with 3553(a)(1), now requires courts to consider factors that previously were prohibited or discouraged under the Guidelines.

It's not clear to me why 3661, which as a statute should trump the guidelines and policy statements, did not have that effect before Booker. I guess I'd have to go all the way back to Mistretta, etc., for interpretation of how 3661 squared with 3553(b). But that's all water under the bridge now.

Posted by: Def. Atty. | Aug 13, 2008 3:27:17 PM

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