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September 9, 2019

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

September 9, 2019 at 02:51 PM | Permalink


Fascinating that an effective mandatory minimum popped up here based on judicial factfinding.

Posted by: Avi | Sep 9, 2019 6:14:01 PM

an unprovoked attack from behind thate causes serious damage--18 months minimum.

Posted by: anon1 | Sep 9, 2019 6:51:42 PM

Agreed that courts too often treat upward and downward variances differently. But this case doesn't strike me as the best vehicle to make that point--this looks to have been a huge downward variance without much explanation/justification from the d.ct. And the opinion itself probably deserves a more thoughtful discussion. Some good language here about substantive reasonableness that could be used in the upward variance context in the future

Posted by: Jack R | Sep 9, 2019 8:19:29 PM

Even under Kentucky state criminal law, the extent of Rand Paul's injuries and the surgeries he has had to have since the initial sentencing occurred are making this situation look more like 2nd degree felony assault than 4th degree misdemeanor assault. For those of you who are implicitly wondering about 3rd degree assault in Kentucky, that is a felony assault upon a law enforcement officer or a fireman or paramedic, which doesn't apply here. I say this even though a defendant can have serious damage under Kentucky law (such as broken bones not requiring surgical repair) and the crime is misdemeanor 4th degree assault. My favorite Kentucky case overturning a 2nd degree assault conviction involved a woman who shot a bullet thru the center of her husband's hand, as he held it out, begging her not to shoot. The Court pointed out that the hole healed in a month and no surgery was necessary. The victim merely had to squeeze a rubber ball to regain strength in his hand, so the conviction should only have been for 4th degree assault. By contrast, Senator Paul has had two surgeries since the first sentencing, one for hernia repair arising from the attack's injuries and the second to remove part of his lung damaged by the assault and broken ribs. The Kentucky state law distinction is that if this is really a 2nd degree felony assault type case, the neighbor would be looking at 5 years or more (but paroleable after 2.5 years) even under state law. I think the Sixth Circuit panel clearly got this one right, particularly in light of the two surgeries that have occurred since the initial sentencing occurred. I am sure the Federral prosecutors will emphasize those surgeries in now arguing for a much longer sentence of 2 to 3 years in prison.

Posted by: James Gormley | Sep 10, 2019 10:00:55 AM

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