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‘I Did It Before and I’ll Do It Again’ – Update for February 6,2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

I SAY ‘TO-MA-TO,’ YOU SAY ‘TO-MAH-TO’… IT DOESN’T MATTER

The dark side of United States v. Booker – the 20-year-old Supreme Court case that held the Sentencing Guidelines must be advisory and not mandatory – is the untethering of federal district court judges to sentence as they see fit.

At first blush, that sounds like a feature and not a bug. However, a pair of cases handed down this week shows that it can lead to disparate and sometimes unreasonable results.

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Alexander Olson, a man easily led by others, was one of eight political wackadoodles who thought that setting fire to four Walmart stores would force the company to pay employees more, feed the homeless, limit executive pay and adopt an additional slate of progressive wish-list policies.

(In fairness, my wife was tempted to torch our local Walmart yesterday over $6.00-a-dozen eggs, but no jury of Walmart shoppers would ever convict her for that).

Alex and his fellow travelers were charged with conspiracy to commit arson in violation of 18 USC § 844(n). He pled guilty, with sentencing guidelines working out to 41-51 months, and a statutory sentencing mandatory minimum of 60 months (which by law, became the minimum and maximum of Alex’s Guidelines range). But at sentencing, the judge decided an upward variance to 180 months (15 years) was appropriate, despite the fact Alex was not the ringleader and evidence showed he suffered from prior psychological abuse that made him easily led by males from whom he craved validation.

The 180-month sentence was 60 months shy of that statute’s maximum 240 months, and the judge paid lip service to the 18 USC § 3553(a) sentencing factors even while discounting the mitigating evidence that didn’t fit with the court’s worldview.

judge160222The court called the sentence of three times Alex’s Guideline range an upward variance, but later in its written explanation of reasons, referred to it as a departure.

A variance and a departure both result in a sentence outside the advisory guidelines range but reach that result in different ways. A variance occurs when a court determines that a guidelines sentence will not adequately further the purposes reflected in 18 USC § 3553(a). A departure refers to non-Guidelines sentences imposed under the framework set out in the Guidelines departure provisions set out in USSG Chapter 5K. Advance notice to the parties is generally required for a departure but not for a variance.

Significantly, the court said, “I find the advisory guidelines range is not appropriate to the facts and circumstances of this case, and the sentence here, whether an upward departure or a variance, I find appropriate.”

The 11th Circuit this week said it may have been a variance, may have been a departure, but the distinction did not matter because the district court would have imposed the same sentence regardless of which it was and the sentence – which was well below the statutory maximum – was substantively reasonable. “Under those circumstances, any error in the court’s application of a guidelines issue,” the 11th said, “including a departure issue, is harmless.”

hobbsact200218In the 7th Circuit, a different take on the same issue: Chris Easterling tried to rob a Walgreens store by pulling a gun and telling the cashier, “Let’s get this going, babe.” She was uninterested in getting whatever he had in mind going, fleeing instead. Chris couldn’t open the register himself, so he left to enjoy a few more minutes of freedom before being charged with attempted 18 USC § 1951 Hobbs Act robbery and an 18 USC § 924(c) count for using the gun (among other offenses).

Chris pled guilty, with a Guidelines advisory range of 57 to 71 months in prison for the Hobbs Act violation and a consecutive mandatory 84 months’ imprisonment, to run consecutively to the Hobbs Act sentence (for a total range of 141-155 months).

At sentencing, the court sentenced Chris to 239 months, 155 months for the Hobbs Act robbery and a consecutive 84 months for the § 924(c), a sentence 54% higher than the high end of his advisory sentencing range just one month shy of the 240-month statutory maximum sentence for Hobbs Act robbery. The court said Chris’s conduct and his “persistent and repeated history of violence” called for a “significant sentence” to protect the public.

The Supreme Court then decided in United States v. Taylor that attempted Hobbs Act robbery – which is what Chris was convicted of – could not support a § 924(c) count because it was not categorically a crime of violence. But when Chris went back for resentencing without the consecutive 84-month sentence (new sentencing range of 84-105 months), the district court again slapped the 239-month sentence on him, saying that “nothing had changed” in Chris’s history or the nature of the offense.

Chris appealed that sentence, too. While the appeal was pending, the Sentencing Commission changed its criminal history Guidelines in a way that would reduce Chris’s category by one level and drop his new sentencing range to 70-87 months. The government argued that the case should not be remanded for resentencing again, because the district court had checked a box on the Statement of Reasons form that every court must submit after a criminal sentence that says: “In the event the guideline determination(s) made in this case are found to be incorrect, the court would impose a sentence identical to that imposed in this case.”

Not good enough, the 7th said this week. “Putting aside the fact that the district court could not grapple with a Guidelines amendment that did not exist yet, this checked box is insufficient to prevent remand. We have previously held that a bare, boilerplate assertion – a conclusory comment tossed in for good measure – will not ordinarily suffice to hold a Guidelines error harmless.”

hammertime200818The Circuit ruled, “We require a district court to assure us that it would impose the same sentence again by specifically addressing the contested issue… Here, the court was unable to do so. We will not presume that a district court is so intransient that nothing the Commission does and no possible change to the Guidelines could sway its prior decision.”

United States v. Olson, Case No. 23-11939, 2025 U.S. App. LEXIS 2351 (11th Cir. Feb. 3, 2025)

United States v. Easterling, Case No. 23-1143, 2025 U.S. App. LEXIS 2376 (7th Cir. Feb. 3, 2025)

– Thomas L. Root

Quantifying The “Bad” In “Bad Boy” – Update for February 19, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

7TH CIRCUIT PUZZLED BY INCONSISTENT UPWARD SENTENCING VARIANCES

pecks200219Jesse Ballard was a bad boy, having compiled what his sentencing court called “probably one of the worst criminal histories I’ve seen in 30 years” of experience. From 1985 until 2017, he accrued over 30 convictions for attempted burglary, kidnapping, battery, and aggravated assault. He also committed a pile of parole violations, prison disciplinary infractions, and a few DUIs, just for good measure.

When Jesse was sentenced for being a felon in possession of a gun (in violation of 18 USC § 922(g)(1)), the court applied the Armed Career Criminal Act’s 15-year minimum mandatory sentence as a starting point, and then – considering Jesse’s extensive criminal history – went upward from there. The judge imposed a sentence of 232 months, a 10% upward variance from the high end of Jesse’s advisory Guidelines sentencing range.

badjudge171016But on appeal, Jesse proved that his prior attempted burglary convictions could not count as ACCA predicates. This dropped his Guidelines range dramatically. No more ACCA 15-to-life sentencing range – now, Jesse’s statutory maximum was 10 years, and his advisory Guidelines sentencing range was a mere 33-41 months. At Jesse’s resentencing, the judge – still citing our boy’s “extensive criminal history, which it found demonstrated a disrespect for the law and an inability to live a law-abiding life” – varied upward again by 67 months, imposing a 108-month sentence.

Naturally, this came as a shock to Jesse’s system. He headed back to the Court of Appeals. Last week, the 7th Circuit reversed Jesse’s sentence again.

The Circuit observed that when a district court fails to adequately explain a chosen sentence, including the reason for deviation from the range, it commits a procedural error. This makes sense: an appellate court can hardly review the reasonableness of a sentence if the district court has not provided an adequate explanation for why it did what it did.


badboy200219Here, the Circuit complained, the district court failed to justify the extreme difference between the second sentence’s upward variance and that of the original sentence. “To justify a sentence that was 67 months above the Guidelines range (a 160% upward departure),” the 7th held, “the court referred to… appropriate factors to consider under 18 USC § 3553. However, these were the same factors cited and discussed at the original sentencing, resulting in a sentence only 22 months above the original Guidelines range (a 10% upward departure)… The district court’s explanation of its departure from the Guidelines upon resentencing does not articulate and justify the magnitude of the variance where the explanation is essentially identical to the explanation provided for a much less extreme departure in the original sentence.”

The district court will now get a third whack at our mischievous Jesse. This is not to say that Jesse should expect much leniency – just more explanation.

United States v. Ballard, 2020 U.S. App. LEXIS 4771 (7th Cir, Feb 14, 2020)

– Thomas L. Root

7th Circuit Sanctifies Judicial “Hunches” as Sentencing Tool – Update for January 10, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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HUH?

pecks170110Ryan Gibbs was just one of those perennial bad boys, with a record as long as your arm and a demonstrated lack of interest in conforming his conduct to the strictures of the law. In front of a district court for possession with Ryan faced a Guidelines-suggested 151-188 month sentencing range. The government asked for 216 months. The most Ryan could have gotten was a 240-month term.

The district judge, rambling “none too clearly” (as the Court of Appeals lamented), decided that Ryan was incorrigible:

When I look at the 3553(a) factors apart from the “nature and circumstances of the offense,” your “history and characteristics” of you as a defendant does [sic] not indicate that there should be any leniency at all; that they [anteced‐ent unclear] “reflect the seriousness of the offense,” “promote respect for the law,” which your history and characteristics indicate that you have no respect for the law; “provide just punishment.” Nothing — No previous sentence that this Court has imposed or other Courts have deterred you from your criminal conduct.

With this gibberish constituting the sum and substance of the district court’s application of the sentencing factors of 18 USC 3553(a), the judge slapped Ryan with 216 months.

Last week, the 7th Circuit affirmed the sentence. No surprise there – the government wins over 92% of the time in criminal appeals to begin with.

But the Court of Appeals upheld the decision primarily because it sensed it could trust the judge’s (and, to a lesser extent, the prosecutor’s) gut.

hunch170111The Circuit admitted that no one in the case “attempted a sophisticated analysis of the likely consequences… of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range… both the prosecution and the judge based the 216-month sentence (proposed by the government, imposed by the judge) on a hunch. As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable.”

The Court said that, after all, the government can suggest any sentence within the statutory range and the judge can impose any sentence within the statutory range. Plus, the panel argued, the “briefs and argument of defense counsel in this case bordered on the perfunctory.”

So the judge and the AUSA are “highly experienced” and their hunches are “reliable.” Defense counsel, on the other hand, is a legal klutz filing cookie-cutter motions and soulless briefs. It sounds as though imposition of a sentence after proper consideration of the Guidelines and sentencing factors in Sec. 3553(a) is a privilege reserved only for defendants who have good lawyers or face lousy prosecutors and a neophyte judge.

Judge Richard Posner, the author of the decision and an appellate jurist for whom we have great respect, said that “some consideration, however, should be given to the possibility of basing a prison sentence – at least a very long one (and an 18-year sentence is very long) – on something other than a hunch.” We agree wholeheartedly. But he then proceeded on a flight of impractical fancy by suggested that maybe the sentencing judge should have called the Sentencing Commission, which then would given the AUSA, court and defense counsel guidance on why it set the Guidelines where it did, and might even propose the right out-of-guidelines sentence in this particular case. The parties might find the Sentencing Commission “a valuable resource,” Judge Posner opined.

momscold170110What a capital idea! For that matter, the district courts might just want to call Congress for guidance on why the statutory penalties are as they are, or ring up the President for his view as to whether it should peremptorily commute the sentence, or even ask the defendant’s mother what punishment she found to be the most effective when Ryan was a mere lad. To be sure, the Sentencing Commission could not be so busy that it wouldn’t be willing to give a few minutes of time to arbitrate an individual sentence in Ryan’s case (or in any of the other 80,000 criminal sentences that occur in federal courts annually).

phonefriend170110In the days before the Guidelines, judges sentenced anywhere within the statutory range virtually without oversight or discretion. The Guidelines were to change all of that. In Gibbs, the 7th Circuit has handed down a decision that enshrines a judge’s “hunch” as a standard that trumps all others. What’s nearly as bad, the Court has suggested that maybe district courts should start using the U.S. Sentencing Commission as a “phone-a-friend” in troublesome sentencing cases, a development undoubtedly as unwelcome to the Commission is it would be for people like us who believe that judging is for judges.

United States v. Gibbs, Case No. 16-1747 (7th Cir., Jan. 6, 2017)

– Thomas L. Root

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