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August 23, 2011

Peculiar(?) concurrence in Eighth Circuit panel's affirmance of top-of-guideline sentence

The Eighth Circuit has an intriguing little reasonableness ruling today in US v. Wohlman, No.10-2967 (8th Cir. Aug. 23, 2011) (available here), which gets started this way:

Thomas Wohlman pleaded guilty to one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b).  The district court sentenced Wohlman to 121 months' imprisonment, the top of the Guidelines range.  On appeal, Wohlman argues that the district court committed several procedural errors and imposed an unreasonable sentence.  He also argues that his sentencing counsel was ineffective for failing to object to an upward departure under U.S.S.G. § 2G1.3(b)(2)(A).  We affirm Wohlman's sentence and decline to reach the merits of Wohlman's ineffective-assistance-of-counsel claim.

The opinion covers a lot of modern sentencing review ground, but the ruling seemed to me especially blog-worthy because of Judge Bright's brief concurrence.  Here is the full text of that concurrence:

I can find no error in the sentencing process or the actual sentence of ten years and one month, the top of the guidelines.  Accordingly, I concur.

Yet, I write to note that no molestation of any young person actually occurred. The conversations Wohlman had about sex with minor females took place with government agents who posed as minor females.

Wohlman has no felony convictions and operates an apparently successful business.  A qualified expert witness testified that Wohlman was unlikely to reoffend and that he was not a predator.  The district judge, however, gave little weight to testimony.  Although the sentence at the top of the guidelines stands approved, this judge suggests that this sentence is harsh considering the entire record and defendant’s background.

Notwithstanding Judge Bright's initial assertion that he could find no error in the sentence, he seems to be saying with the rest of his brief opinion that he views the top-of-guideline prison term to be "greater than necessary to comply with the purposes set forth" in federal sentencing law in 18 USC 3553(a)(2).  To me that amounts to a judgment, in Judge Bright's view, that there is error in the sentence as being substantively unreasonable.  

To the extent that the Supreme Court has indicated that substantive reasonableness review remains important and distinct from procedural reasonableness review after Booker, this form of review would seem to be precisely about circuit judges making judgments that district court imposed too harsh (or too lenient) a sentence in light of congressional sentencing purposes.  In other words, I see Judge Bright's concurrence to be peculiar because he seems to be expressing a strong substantive disagreement with the sentence below and yet also seems of the view that this substantive judgment is not a proper part of reasonableness review.

August 23, 2011 at 12:31 PM | Permalink


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10 years for attempted enticement? I do not know the facts, but that seems excessive to me as a taxpayer paying for his prison stay. Had he shaken the child and caused it permanent brain damage, he might have received less.

The real defense argument should be that the sentence represents an improper motive, a rampage by feminists and these male running dogs against the productive male. What damage took place that justifies such a long prison sentence? And if incapacitation is the sole mature aim of the criminal law, is it necessary to protect the public?

Oh, for Pete's sake, I just read the decision. The victim was 15 and fictitious. No physical crime took place. I plan to rape Emma Bovary, Lolita, and Minnie Mouse. Arrest me you feminist lawyer vermin. Feminism is to 2011 what the KKK was to 1911, a total disgrace. This case makes the law look cuckoo, and brings deserved disrespect on the feminist biased court.

Posted by: Supremacy Claus | Aug 23, 2011 1:37:32 PM

I think what Judge Bright is saying is that, although the sentence seems harsh to him, he cannot say that no reasonable jurist would have reached the conclusion that the trial judge did. It is not clear to me what purpose is served by such a concurrence.

Unfortunately, the Supreme Court never stated definitively whether the Guidelines are presumptively reasonable. It said that an appellate court may adopt that presumption, but isn’t required to. The Eighth Circuit adopted this rule, making it awfully difficult for the appellant to prevail in this type of case.

I certainly agree that 10 years seems awfully high for a previously law-abiding citizen with no known propensity to re-offend, and who never came near an actual child.

Posted by: Marc Shepherd | Aug 23, 2011 2:53:13 PM

I see your point, Marc, but I do not believe the standard for substantive reasonableness review after Booker is --- or should be --- merely "could any reasonable jurist have reached the conclusion below." I believe substantive reasonableness review after Booker calls upon a circuit judge to decided whether the sentence imposed below was a reasonable assessment of what, in light of the statutory purposes and the other instructions of 3553(a), amounts to a punishment that is sufficient, but not great than necessary, to achieve those purposes.

Put slightly differently, I do not think reasonablenss review is to be extremely deferential akin to review of a jury verdict or even akin agency review. Of course, because SCOTUS after Booker has never found a district court's sentence unreasonable --- and has often reversed circuit determinations that a sentence was unreasonable --- it is understandable that circuit court judges now consider reasonableness review to be extremely deferential.

Posted by: Doug B. | Aug 23, 2011 3:19:06 PM


SCOTUS has stated that sentencing review is to be deferential, under an abuse of discretion standard. What you propose would seem to put the district court under quite a bit more scrutiny than that.

Posted by: Soronel Haetir | Aug 23, 2011 3:31:36 PM

And indeed, the Fumo majority quotes language indicating that sentencing decisions are to be reviewed under an abuse of discretion standard. I don't think that can go both ways, searching review has been rejected, as I understand it that is pretty much what every circuit chose immediately after Booker, but the SCOTUS said no.

Posted by: Soronel Haetir | Aug 23, 2011 6:37:00 PM

"I do not believe the standard for substantive reasonableness review after Booker is --- or should be --- merely "could any reasonable jurist have reached the conclusion below." I believe substantive reasonableness review after Booker calls upon a circuit judge to decided whether the sentence imposed below was a reasonable assessment of what, in light of the statutory purposes and the other instructions of 3553(a), amounts to a punishment that is sufficient, but not great than necessary, to achieve those purposes."

Lawyer gibberish with tiny distinctions, so small they cannot be seen with the naked eye should be criminalized. They are in bad faith because they seek to induce the hiring of a lawyer to understand them, let alone use them in a trial.

The victim is fictitious. No actus reus on earth took place. The court looks stupid. A fictitious actus reus violates procedural due process to a fair hearing on earth, and not in a fictitious realm.

Posted by: Supremacy Claus | Aug 23, 2011 6:51:45 PM

Prof. B,

The Fumo majority even quoted language that is very close to the standard you say should not be used. So at least in the 3rd circuit that is in fact the bar to be met.

Posted by: Soronel Haetir | Aug 23, 2011 6:58:04 PM

There is too much wrong with this sentence. First the charges were stacked to extort a guilty plea (points off for acceptance of responsibility is merely bribery). The uncharged and unconvicted conduct ruled the sentence rather than the convictions ruling the judge. And from the beginning of the investigation, did LE emulate Perverted Justice? It is far too likely there was entrapment. See Acquittal In Dateline ‘To Catch A Predator’ Case

A sailor caught in the web of Dateline‘s “To Catch a Predator” was just acquitted of all charges, after the judge ruled NBC engaged in entrapment.

Posted by: Anon | Aug 23, 2011 8:00:25 PM

The real problem is Congress. As of July 27, 2006, thanks to the Adam Walsh Act, this offense carries a mandatory minimum sentence of 10 years. This defendant apparently negotiated a deal to limit his offense conduct to dates earlier than July 26, but the sentencing judge obviously knew that conduct occurred after that date, which would influence the judge's perception of the reasonableness of a 120 month sentence. For the feminist-basher above, try voicing your rage to your (feminist?) Congressman.

Posted by: feministdefender | Aug 23, 2011 8:34:56 PM

Your points, Soronel, are generally correct as to how the concept of substantive reasonableness has mostly be unpacked at the circuit level (in part because SCOTUS has reversed district courts that have not been deferential enough). But, most fundamentally, I think the whole enterprise has been misguided because of a failure to seek to put a common law gloss on the substantive provisions of 3553(a). In some other settings, even deferential abuse of discretion review has developed at least a few substantive guiding principles, but circuit courts have been generally unwilling to add teeth here (though largely as a reaction to the USSC knocking down the Eighth Circuit repeatedly when its lack of deference was always in a form that was pro-guidelines and pro-prosecution).

Posted by: Doug B. | Aug 23, 2011 10:23:20 PM

Well, there are simply way more below guideline cases than above, and even more so where the judge varies without prosecutorial urging or agreement. The cases where such an above guideline sentence is imposed are unlikely to get a sympathetic hearing from much of anyone. Unlike, say, Gall for example who is one of very few felons I would agree is actually unworthy of execution. Because a judge is so much more unlikely to vary upward where the offender is not incredibly deserving of such a sentence we are not going to get many chances for appeals panels to question such sentences the way they did with below guideline sentences. And even were a panel to do so such a case would be more likely to draw SCOTUS review and once again reinforce not only that an abuse of discretion standard applies but that enormous weight is to be given to the sentencing judge in such matters. SCOTUS has said several times that this is because the district court is in the best position to judge the facts as they apply to any particular offender. I don't see that changing unless Congress enacts a new binding sentencing regime. And I don't think they are going to do that, instead they are going to stick with more and more mandatory minimums.

Posted by: Soronel Haetir | Aug 23, 2011 11:17:04 PM

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