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December 4, 2014

Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable

Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here).  Here are excerpts from the start, middle and end of the lengthy opinion:

In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense.  The district court sentenced Howard to a term of life imprisonment plus 60 months....  For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....

The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure.  Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....

By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....

The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence.  It stated the need for individual and general deterrence, incapacitation, and just punishment.   There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina.  The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment.  Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).

December 4, 2014 at 04:07 PM | Permalink


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In other words the discretion to vary completely from the guidelines as a matter of sentencing philosophy really does really only run in one direction. I thought the court appeals court was not to reverse based on the fact that they would have put a different weight to the 3553(a) factors. I If the district court is actually free to vary from the sentencing guidelines it should be able to do so in either direction so long as the final sentence is lawful under the applicable convictions.

Posted by: Soronel Haetir | Dec 5, 2014 9:32:42 AM

Soronel, your claim is plainly false. See, e.g., U.S. v. Ressam, a Ninth Circuit substantive reasonableness reversal based on the district court's sentence being too low.

Posted by: Todd | Dec 7, 2014 7:35:02 PM

"the court imposed a consecutive sentence of 60 months for violation of supervised
release arising from the convictions"

Does that explain the 60 months?

Things like that seem silly, but when someone is charged with a range of things, I guess you have to tack on more years in part since you don't want them to get freebies of something. Also, this allows something to be reversed on appeal, e.g., with the remainder still possibly remaining. So, you can get 120 years, e.g., for 10 criminal acts, which is silly on some level, but you never know if let's say half of them drop away after appeal.

Posted by: Joe | Dec 13, 2014 9:32:19 PM

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