Sunday, December 20, 2015
Last week in U.S. v. James Wendell Brown the United States Court of Appeals for the D.C. Circuit reversed a Booker upward variance in a child pornography case. The majority found Judge Richard Leon's sentence procedurally unreasonable, even under the plain error standard. The problem? Judge Leon was too general, and generic, in explaining how the four (out of seven) 3553(a) factors that he referenced applied to the defendant and justified an upward variance. As a white collar practitioner I always get nervous when a variance of any kind is sent back. Case law supporting upward and downward variances is substantial, and generally very favorable to the defense, and any chink in the armor of broad district court sentencing discretion is worrisome. Here there should be no great cause for concern. While talismanic recitation of all Booker factors is not required in any federal circuit to justify an upward or downward variance, there has to be some specific effort to link the factors relied upon to the individual conduct or character of the defendant standing before the sentencing court. Making sure that the court performs this linkage is the practitioner's job. Here, Judge Leon was simply too vague in reciting the 3553(a) factors and explaining why they justified a significant upward variance, and no practitioner chose to fill in the details, because the variance was opposed by both the prosecution and defense. In the mine run case, where defense counsel is arguing for a downward variance, it is his or her job to convince the trier of fact and, if necessary, help the court articulate, on the record, the reasons for the variance, such that the sentence will stand up on appeal. To fail is to screw your own case up and create a bad precedent for your peers.
Judge Edwards, writing for the majority, distinguished U.S v. Ransom. In writing about Ransom here last year, I noted that the DC Circuit "rejected appellants' argument that the sentencing court improperly relied on factors in varying upward that the Guidelines had already accounted for. Joining some sister circuits the Court held (internal quotes and citations omitted) that:
It is not error for a district court to enter sentencing variances based on factors already taken into account by the Advisory Guidelines, in a case in which the Guidelines do not fully account for those factors or when a district court applies broader [Section] 3553(a) considerations in granting the variance.
Notice that there are two alternative prongs to this portion of Ransom. The Brown court seems to indicate that the failure of the Guidelines to fully account for certain factors will only occur when the sentencing court sees and identifies special additional factors that exist in a specific defendant's particular circumstance. Thus, in Ransom, although the Guidelines already assessed two points for committing the offense while on probation, the sentencing court stated on the record that the offense of conviction (embezzlement) and the identity of the co-defendant were identical to the violated probationary offense and that this (and other things) justified an upward variance. Contrat this with Brown, where Judge Leon failed to articulate anything about Brown's particular offense/conduct/background that was not fully accounted for in the applicable Guidelines provisions.
The other prong of Ransom is completely undisturbed. A sentencing court can apply broader Section 3553(a) considerations, that is, broader considerations than those contained in the Guidelines, in granting an upward or downward variance. Again, there must be an explanation by the sentencing court. The sentencing court is always free to articulate its disagreement with the Guidelines' approach, and as long as that disagreement is rational and reasonable, the sentence cannot be disturbed. Two classic examples of this are family circumstances and aberrant conduct, both of which are nearly impossible to achieve as grounds for downward departure, but which regularly enter in to downward variance judgments in the post-Booker-Gall-Kimbrough world.
Judge Sentelle, who wrote the majority opinion in Ransom, dissented in Brown, because he did not see plain error.