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A dozen years ago, the Supreme Court held in Gall v. United States that district courts must sufficiently address the parties’ arguments and provide an explanation for sentences for good enough for “meaningful appellate review.” The 4th Circuit last week found that some district courts still don’t get it.

Carl Ross was convicted of receiving and possessing child porn. His Presentence Report that included a recommended term of confinement and recommended special conditions of supervised released. The PSR recommended a prison sentence 188-235 months and lifetime term of supervised release.

Carl was already serving a 120-month state sentence related to the same set of facts. He asked the district court to impose a 60-month mandatory minimum sentence to run concurrent with the state term. The government argued for a 120-month sentence stacked on top of the state sentence, whining that Carl’s proposed sentence would result in “essentially no sentence” and “absolutely zero impact, zero additional punishment as a result of the conduct in this case.” The prosecutor said Carl destroyed evidence, lacked remorse and had continued his criminal conduct even after the state had caught him.

Carl argued the government’s sentencing position was above the advisory Guidelines sentencing range, because it would result in two separate 120-month sentences to be served one after the other. His lawyer argued that “felony convictions relating to sexual offenses are already very punitive and that the lifelong social stigma” Carl would experience justified a 60-month concurrent sentence. Also, he offered a mental health report showing Carl’s apparent lack of remorse was nothing more than a symptom of his mental disorders, which among other things caused him to insist on trial instead of taking a plea. Defense counsel argued that Carl maintained gainful employment, cared for his aging mother and had only a relatively small amount of illicit material compared to the average child porn offender.

After hearing the arguments, district court imposed a 120-month, stacked on the state sentence and lifetime SR. The judge said he found Carl’s arguments unpersuasive and that “the government’s recommendation is appropriate.” This was too little explanation even for the government, which asked the court to explain its basis for the sentence. The court replied with gibberish, saying essentially that it was concerned about the lack of remorse, and it believed “it’s a specific deterrence, requires the sentence I’m imposing. I did not find that the guidelines are so flawed as to essentially have no sentence at all. And in terms of general deterrence, I think that the sentence I’m imposing is required.”

Last week, the 4th Circuit threw out the sentence as procedurally unreasonable. Noting that a “district court must address or consider all non-frivolous reasons presented for imposing a different sentence and explain why he has rejected those arguments,” the Circuit complained that “the district court did not address or consider any of the numerous non-frivolous arguments advanced by Ross’s counsel requesting a lower and concurrent sentence.” The appellate panel was particularly unhappy that “the district court did not provide an individualized assessment regarding important mitigation evidence related to Ross’s mental health,” care of his mother, gainful employment, and the fact that he possessed a relatively small amount of kiddie porn.

The Circuit said, “the district court could have conceivably given Ross a different sentence if it had considered his non-frivolous mitigation arguments. The district court had an obligation to specifically address Ross’s non-frivolous arguments. It did not do so here.” This was equally true for the district court’s failure to explain why Carl got lifetime SR. “It is the settled law of this circuit,” the panel wrote, “that Ross has a right to know why he faces special conditions that will forever modify the course of his life, and the district court’s silence violated his rights.”

United States v. Ross, 2019 U.S. App. LEXIS 1186 (4th Cir. Jan. 14)

– Thomas L. Root