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September 18, 2008

Notable split decisions from Third Circuit in government appeals of probationary sentences

I suspect that everyone interested in federal sentencing jurisprudence will find something they like and something they don't like in two big rulings today from the Third Circuit.  Here are basics of the two  decisions, drawn from their openning paragraphs:

US v. Howe, No. 07-1404 (3d Cir. Sept. 18, 2008) (available here):

In this appeal we review the sentence imposed on a defendant who was convicted of two counts of wire fraud.  The sentence consisted of two years’ probation (including three months’ home confinement), despite an advisory Sentencing Guidelines range of 18 to 24 months’ imprisonment.  The District Court imposed no fine and no forfeiture (other than the special assessment of $200).  The Government appeals from the District Court’s judgment of sentence.  We will affirm.

US v. Levinson, No. 07-1544 (3d Cir. Sept. 18, 2008) (available here):

Adam Levinson pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of filing a false income tax return, in violation of 26 U.S.C. § 7206(1). During his sentencing hearing, the United States District Court for the District of Delaware granted him a variance from the recommended United States Sentencing Guidelines (“Guidelines”) range of 24 to 30 months of imprisonment and sentenced him to two concurrent 24-month terms of probation, in addition to supervised release, restitution, and a special assessment. The government appeals and argues that the District Court failed to adequately explain the chosen sentence. We agree and will vacate Levinson’s sentence and remand for resentencing.

September 18, 2008 at 01:13 PM | Permalink


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Levinson. "In general, however, when we are reviewing
a sentence and find ourselves unable to see how the reasons articulated lead to the punishment imposed, we will be focused on trying to obtain a better understanding of the district court’s reasoning."

But why? Where does this end? How many chances does the TJ get to explain his reasoning again and again?

This really goes to the heart of my argument that you need to evaluate the substantive reasonableness of the sentence first, and then look at procedural error.

Indeed, the TJ in this case specifically says "he just doesn't see" the connection between the guideline sentence and the actual crime. If the 3rd "just does see" then they should over turn it on substantive reasonableness grounds. TJ know what their responsibilities are. If they refuse to do them, allowing them another bite at the apple is just another waste of judicial resources, especially if the end result is the same.

Posted by: Daniel | Sep 18, 2008 2:48:48 PM

Howe: The two main points relied on by the Court to impose a probationary sentence are vitiated as follows: Assuming the defendant did not lie about the offense and engage in a two year campaign of falsehoods to throw the government off track and had, in fact pled guilty, he would have received at most a 2-3 level departure that would not have taken him into a range of probationary sentences. Further,his 20 year term of military service is severely discredited by the facts of the offense--he arguably used insider knowledge from his military service to target his past employer and facilitate the offense. Most Courts know to look at a defendant's actions and not the show put on at the bar of the Court. More often than not in such situations, justice takes a back seat.

Posted by: mjs | Sep 18, 2008 5:25:32 PM

The second case seems to be wrong. It appears that the Government did not object below on the basis they bring up now; if that's right, the plain error standard should have applied. Neither alleged defect in the sentencing process could meet the plain error standard.

Posted by: Vonner | Sep 19, 2008 4:45:20 PM

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