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July 22, 2020

You be the federal judge: what sentence for Senator Rand Paul's attacker at resentencing after 30 days deemed unreasonable?

Regular readers know that, more than 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, circuit courts still almost never find a sentence to be "substantively unreasonable" upon a defendant's appeal claiming the sentence was too high.  But last year, a Sixth Circuit panel decided, upon an appeal by the government, that a high-profile sentence was "substantively unreasonable" as too low.  The ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), concerned the sentencing resulting from Senator Rand Paul's neighbor attacking him while he was was mowing his lawn in 2017.  Now, as this local article highlights, it is time for resentencing after the Sixth Circuit vacated Boucher’s sentence as substantively unreasonable:

Federal prosecutors have renewed a push for a 21-month sentence for the man who tackled and injured U.S. Sen. Rand Paul in November 2017.

Rene Boucher deserves to spend more time behind bars because of the serious injuries Paul sustained, including six broken ribs that left him in intense pain and led to bouts of pneumonia and damage that ultimately required removing part of Paul’s lung, Assistant U.S. Attorney Bradley P. Shepard said in a memorandum filed Monday.

Shepard also argued that the initial 30-day sentence against Boucher wasn’t enough to deter other potential assaults on members of Congress.  “‘Aggressive’ rhetoric directed at our elected leaders is at a dangerously high level,” Shepard wrote.  “Although this case is lacking in evidence of political motivation, it is still important, in this climate, to send a message to society as a whole that assaults and violence perpetrated against members of Congress will not be tolerated.”

Boucher’s attorney, however, has argued it would be unjust to send him back to prison after he’s already completed his initial sentence, and moved to dismiss the case.

U.S. District Judge Matthew F. Leitman scheduled a sentencing hearing for Boucher on July 27.  Lietman, a judge in Michigan, is sitting as a special judge in Boucher’s case.

Paul, a doctor elected to the Senate in 2010, and Boucher, also a physician, lived next door to each other in a gated community in Bowling Green.  In the summer of 2017, Boucher trimmed five maple trees that were on Paul’s property, but had limbs sticking over the property line onto Boucher’s side, according to a motion from Boucher’s attorney, Matthew J. Baker. In response, Paul piled up a large stack of limbs and brush near the property line in Boucher’s view, Baker said....

[On] Nov. 3, 2017, Boucher saw Paul mowing his yard. Paul blew leaves into Boucher’s lawn and then got off the mower, picked up some limbs and turned toward the place where Boucher had burned the debris the day before, Baker said. Boucher lost his temper, ran 60 yards and tackled Paul from behind....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.

Paul, a Republican, suggested in a letter to the court that there was a political motive behind the attack, saying that Boucher’s anger toward him “comingles with his hatred of my political policies.”  However, Boucher has said the attack was driven solely by his anger over the yard waste, and prosecutors have acknowledged there was no evidence of a political motivation.

Under advisory guidelines, Boucher faced a potential sentence from 21 to 27 months, though judges can impose sentences outside those guidelines.  U.S. District Judge Marianne O. Battani sentenced Boucher to 30 days in prison, a $10,000 fine and 100 hours of community service, noting Boucher’s military service, career as a doctor and his involvement in his church.

Prosecutors appealed the sentence, arguing it was unreasonably short.  The U.S. 6th Circuit Court of Appeals ordered a new sentencing hearing for Boucher, ruling last September that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

In arguing for more time for Boucher, Shepard cited cases in which two people received as much jail time as he did only for throwing eggs at a member of Congress, and others in which people who attacked federal employees received much longer sentences.  The prosecutor also said that had Boucher’s case been handled in a Kentucky court, Paul’s injuries could have meant a charge of second-degree assault, punishable by five to 10 years in prison.

Baker, however, argued that Boucher’s initial sentence was legitimate and that putting him back in prison would amount to punishing him twice for the same crime....  Baker said it appears that the government is getting a do-over on Boucher’s sentencing because the victim is a U.S. senator.

Shepard, however, said it is not unusual for people to be re-sentenced after completing a sentence.  What Boucher wants, the prosecutor said, “is for those who have received exceptionally low sentences to get further special treatment in the form of a bar to resentencing.”

There are so many interesting elements to this resentencing, including the fact that there is a distinct new "outside judge" in charge of this resentencing.  I am inclined to predict Boucher will get a sentence somewhere between the 30 days originally imposed and the 21 months requested by the feds.  But I am eager to hear what readers think the new sentence should be. 

Prior related posts:

July 22, 2020 at 12:53 PM | Permalink

Comments

Lawyer Private Practice, mostly civil, but have assisted on CJA defense.

8 months total

My premise is that I am required to apply the 6th Circuit's instructions in good-faith and not engage in defiance, open or otherwise. I think the sentencing range is absurd. Boucher got struck by lightening in how this constitutes a federal crime subject to federal sentencing ranges. I think the general deterrence re-examination is easy to address. It was widely reported in media cover that Boucher's assault was based on a personal dispute with Paul rather than based on his position as a Congressman. I think the trial court can find that the purposes of general deterrence are substantially similar to the analysis of specific deterrence where. I will accept the 6th Circuit's comments regarding education, employment, family ties and age being effectively irrelevant.

The place I have difficulty is explaining why this case is different then a mine-run assault where someone else is struck by lightening by turning a normal state assault case into a federal case. Unfortunately, Westlaw is aware that I am not on-task and is refusing to let me research the cases cited by the opinion or my theory for downward departure. I was able to find United States v. Barrera, 628 F.3d 1004, 1006 (8th Cir. 2011) and United States v. Clayton, 615 F. App’x 587, 588–91 (11th Cir. 2015) and on Google and think its a hard case to distinguish, other than the fact that the case went to trial. I don't know why Clayton's sentencing range is lower than Bouchers. However, if possible I would base my departure on diminished capacity under 5K2.13 and find that the facts and circumstances do not indicate a need to protect the public because of actual violence (again, Westlaw isn't letting me test my thoughts, but I read that to say that engaging in violence doesn't per se render you inelligible for this depature). Here, the opinion indicates that Boucher had seriously burned himself the day before lighting the debris on fire which probably significantly impaired his ability to control conduct he knows is wrongful, to-wit, tackling Paul. I chose a 5 level departure because the Defendant in Clayton received 21 months and appeared to be in severe pain as well, but as his sentence was after a trial Clayton would not have received the reduction for acceptance of responsibility (2 points). I would drop the other 3 points distinguishing the cases from Clayton and Gutierrez based on the fact that those assaults appeared to be against federal officials acting within the course of their official duties. I would distinguish Ravensborg on the basis that the Defendant used a weapon (wooden board)and appears to have caused more permanent injuries.

I probably just committed reversible error, but that's my thoughts.

Posted by: Rhett | Jul 22, 2020 2:45:58 PM

That's obvious: 21 months.

Posted by: restless94110 | Jul 22, 2020 3:16:18 PM

How much should be get? Probably 12-18 months depending on what the judge found concerning whether the defendant intended to cause serious bodily harm or just minor harm.

Posted by: Jason | Jul 22, 2020 11:36:42 PM

I think this comes down to an expose' of our punitive justice system. Both parties were acting childishly. Of course, that doesn't excuse Boucher from the bodily harm he caused Rand. However, the feds involvement in this personal hatred of each other is simply an overreach. The state has a duty to ensure all citizens act respectfully to one another regardless of how infantile we may perceive someone. So, a modified sentence of 4-6 months would, in my opinion send a message to all concerned, (including the feds), that this sentence enhancement sufficiently satisfied our society's need for justice with or without the feds unwarranted pursuit of justice.

Posted by: tommyc | Jul 23, 2020 11:07:21 AM

Were I the judge I would vary upward as much as I thought I could get away with but that is my general approach to sentencing decisions and nothing particular to this case.

Posted by: Soronel Haetir | Jul 23, 2020 11:08:47 AM

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