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December 4, 2021

Fourth Circuit panel finds probation sentence for abusive police officer procedurally and substantively unreasonable

I just saw a notable Fourth Circuit per curiam panel ruling which was handed down on Thanksgiving Eve.  The (unpublished) opinion in US v. George, No. 19-4841 (4th Cir. Nov. 24, 2021) (available here), gets started this way:

A jury convicted Robert Michael George, a former sergeant with the City of Hickory Police Department, of using objectively unreasonable force against a pretrial detainee, Chelsea Doolittle, depriving her of the constitutional right to due process of law, in violation of 18 U.S.C. § 242.  The presentence report calculated an advisory guidelines sentencing range for George’s crime of 70 to 87 months of imprisonment, but the district court sentenced him to a downward variance term of four years’ probation.  The Government appeals, arguing that George’s sentence is procedurally and substantively unreasonable. Because the district court grounded its reasoning for the chosen sentence in conclusions contrary to the evidence and the jury’s verdict, we cannot uphold the sentence as either procedurally or substantively reasonable.  Accordingly, we vacate the sentence and remand to a different judge for resentencing.

Here are some passages toward the end of a fairly lengthy opinion in George:

In its reasoning, the district court relied heavily on its view, counter to the weight of the evidence and George’s conviction, that the incident was “almost accidental.”  Through the prism of that impermissible belief, the district court determined that the Guidelines range, reflecting the appropriate sentence for an officer that willfully deprives someone of their constitutional rights, did not apply to George because he was not in that category of offender.  Other circuits have vacated sentences as substantively unreasonable in instances in which the trial court took an impermissible view of the facts, and that is the predominant reason for our holding as to substantive reasonableness today....

Further, the district court gave excessive weight to its favorable perceptions of George as a former police officer, and in turn the post-conviction consequences for George, dismissing other considerations set forth in the Guidelines.  However, “a defendant’s status as a law enforcement officer is more akin to an aggravating as opposed to a mitigating sentencing factor, as criminal conduct by a police officer constitutes an abuse of public position.”  United States v. Thames, 214 F.3d 608, 614 (5th Cir. 2000).  Rather than acknowledge an abuse of public trust, the court relied heavily on its positive perception of George as a former law enforcement officer in its discussion of the first and second § 3553(a) factors, failing to significantly weigh the seriousness of the crime.  As to the goals of the § 3553(a) factors to “promote respect for the law,” “provide just punishment,” “afford adequate deterrence”, and “protect the public,” the court spoke first and foremost of the “total life changes to Mr. George,” enumerating collateral consequences, including George’s loss of his job and pension, as sufficient deterrent to justify the variance. J.A. 512.  But such outcomes are common in § 242 cases and do not justify this significant variance to a probationary sentence.  Indeed, “it is not unusual for a public official who is convicted of using his governmental authority to violate a person’s rights to lose his or her job and to be barred from future work in that field.”  Koon, 518 U.S. at 110.  That reasoning does not provide the “significant justification” necessary for such a substantial departure.  Gall, 552 U.S. at 50.

December 4, 2021 at 01:31 PM | Permalink

Comments

One wonders what sentence Kamala Harris should get for violating the Furst Amendment rights of donors to charities while she was AG.

Posted by: Federalist | Dec 4, 2021 4:22:49 PM

Federalist,

Don't you realize? Those acts are praise-worthy, not criminal.

Posted by: Soronel Haetir | Dec 4, 2021 4:54:12 PM

Are these two responses above illustrations of "Fox News-Inspired 'What About-ism'"? If so..WELL DONE, SIR and MADAM...well done!!

Posted by: SG | Dec 6, 2021 3:19:42 AM

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