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January 17, 2012

Notable Second Circuit (unpublished) ruling finds way-below-guideline sentence procedurally unreasonable

A helpful reader alerted me to an interesting unpublished reasonableness ruling today from the Second Circuit in US v. LM, No. 10-371 (2d Cir. Jan. 17, 2012) (available here).   The background facts in LM alone make the case noteworthy:

The facts here are undisputed. L.M. began distributing marijuana in the 1980s.  He eventually came to the attention of law enforcement, who executed a search warrant on his home and confiscated ten pounds of marijuana.  That arrest was the genesis of a long and fruitful cooperation with authorities.  L.M. provided information that led to the arrests and successful prosecutions of a number of large-scale international drug dealers.  In addition, he recorded his conversations with various members of drug distribution organizations and made himself available as a trial witness.  Because of his extensive assistance to law enforcement, L.M. received a number of credible threats of violence; to ensure his safety, authorities installed a panic button in his home.  As the government conceded at oral argument, L.M. “uniquely earned” the government’s motion pursuant to Section 5K1.1 of the United States Sentencing Guidelines urging a downward departure.

Letters submitted on L.M.’s behalf, if credited, show that his arrest also marked the beginning of an admirable personal transformation.  In the nearly seventeen years that have elapsed since his arrest, he has built both a family and a business.  His wife of twenty-seven years describes him as a devoted husband and a loving father to their four children, and a colleague reports that L.M. is a widely-respected and fair boss who dramatically reduced his own salary in the economic downturn to avoid laying off employees.  Further, letters from L.M.’s father and sister describe L.M. as a compassionate son and brother, a man who cared for them through their long illnesses.

L.M. pleaded guilty to one count of conspiracy to distribute marijuana and one count of filing a false tax return.  The suggested Guidelines range was forty-six to fifty-seven months of incarceration.  With little explanation, the district court imposed an incarceratory sentence of one year and one day....  L.M. now appeals the district court’s sentence as procedurally and substantively unreasonable.

These facts (in addition to sounding like the first few pages of an alternative openning for the latest Marky Mark thriller) provide an amazing window into how aggravating offense factors rather than mitigating offender factors drive federal guideline calculations.  Though the defendant here likely was a major pot dealer back in the 1980s, a sensible sentencing system ought some way incorporate nearly two decades of law-abiding and law-enforcement helping behavior.  But the federal guidelines just spit out a recommended of roughly 4 years in prison and leave it up to the prosecutor and the sentencing judge to ensure this defendant gets any credit for his extraordinary efforts to make up for prior bad deeds.

The panel deciding upon LM's appeal was plainly moved by these facts; its ruling hints that the judges do not fully understand why LM should now serve any prison time.  But, as often happens in these kinds of quirky cases, the panel decides to remand on procedural (rather than substantive) unreasonableness grounds (while holding the case for potential further review):

The district court did not adequately explain its sentence. Particularly troubling, given the passage of fifteen years between L.M.’s arrest and sentencing, is the court’s failure to discuss the extent to which it considered evidence of L.M.’s rehabilitation in fashioning its sentence. Of course, the district court simply might not have credited L.M.’s claims of rehabilitation, or it might have believed the seriousness of L.M.’s crime outweighed even the most compelling evidence of rehabilitation. However, given the paucity of the district court’s explanation, we cannot be sure that the district court arrived at a reasoned decision over which we can meaningfully exercise appellate review.

For this reason, we vacate the sentence imposed by the district court as procedurally unreasonable. Because we determine that the sentence imposed on L.M. is procedurally unreasonable, we do not address the thorny issue of whether, under the unique circumstances of this case, an incarceratory sentence of one year and one day is substantively unreasonable. On remand, the district court shall have plenary authority to impose a sentence consistent with law.  We further elect to remand in accordance with the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).  Either party may restore jurisdiction to this Court to consider whatever arguments remain or arise relating to L.M.’s resentencing by sending a letter to the Clerk of the Court within 14 days of the district court’s decision.  Any such proceedings will be assigned to this panel.

January 17, 2012 at 05:56 PM | Permalink


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i think the judge and the DA were both idiots! After waiting FIFTEEN YEARS to issue a sentence all you have a right to do is say GOOD BYE and stay out of trouble! END OF SENTNECE!

that is even MORE imperiateve in a case like this where the individual risked both his and HIS FAMILIES LIFE'S to make the state's case for them!

if anyone serves a year and a day! in a fair world it would be these two idiots!

Posted by: rodsmith | Jan 17, 2012 9:49:00 PM

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