Tag Archives: variance

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

Seamy Case, Fascinating Holding – Update for November 6, 2019

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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.

CHILD SEX CASE YIELDS FASCINATING CONSPIRACY HOLDING

pornA160829Maurice and Tonya, a couple of mutts in Oklahoma City, forced two 15-year old girls into prostitution for three weeks before law enforcement shut them down. A local businessman named Charles Anthony called the escort service the pair were using to sell the girls’ services, and he lined up a single meeting with the girls (not knowing their ages when he phoned).

When the government freed the girls and arrested Maurice and Tonya, it found records of several customers’ sordid night. Three customers, including Chuck, were indicted along with Maurice and Tonya for conspiracy to engage in sex trafficking. Chuck was convicted, and sentenced to the statutory mandatory-minimum 10 years’ imprisonment and ordered to pay restitution to the two teen-aged victims in the amount of $327,000 and $308,000.

A normal reaction to this kind of prosecution is that the defendants get whatever is coming to them. Still, that’s a pretty high price for one night, especially where Chuck did not know the girls’ ages when he lined them up.  Last week, the 10th Circuit expressed grave doubts that Chuck’s conduct, however disgusting, made him a co-conspirator in the entire venture.

Chuck’s appeal, strangely enough, focused on restitution. Last week, 10th Circuit agreed that the district court should have separated the harm Chuck’s one-night assignation with the two girls had caused from the broader harm caused by weeks and weeks of sexual slavery by the two who ran the sex trafficking ring. But the more interesting discussion, because it applies generally to criminal conspiracies, was the Court’s discussion of whether Chuck’s single night made him a co-conspirator.

childpros191107Chuck claimed a variance between the indictment, which charged him with conspiring with the two who rang the ring and two other customers to operate a child-prostitution enterprise for three weeks. Chuck argued that the evidence showed that all he did was to hire the girls for one night, and that was a subset of the larger conspiracy.

The 10th Circuit agreed. The evidence, it said, proved that for three weeks Maurice and Tonya conspired to operate a prostitution enterprise, which included two minor females. Maurice and Tonya played interdependent roles to ensure the success of the enterprise: Maurice recruited and controlled the girls, while Tonya advertised the girls’ services and connected them with customers. “The government offered no evidence,” the Circuit said, that Chuck ever joined the broad conspiracy. Instead, it proved only that Chuck and Tonya agreed to arrange a single commercial sex transaction on one night.

“The main deficiency in proof,” the Court said, “concerns the second and third conspiracy elements, i.e., knowledge of the conspiracy’s objective and knowing participation in it. To demonstrate knowing participation, the evidence must show that the defendant shared a common purpose or design with his alleged coconspirators. Though the defendant need not know the existence or identity of all conspirators or the full extent of the conspiracy, he must have a general awareness of both the scope and the objective of the enterprise to be regarded as a coconspirator.”

Here, the 10th said, nothing suggests that Chuck shared his alleged coconspirators’ purpose to operate a child-prostitution enterprise throughout October 2014. From his perspective, Chuck sought to obtain the girls from Tonya to have sex with on a single night. In fact, in its closing argument, the government described the purpose of the agreement from Chuck’s perspective as ‘having sex,’ not as running a prostitution enterprise.”

Plain error - alas, Chuck's was not.
Plain error – alas, Chuck’s was not.

The sad thing is that, had his lawyers properly preserved this issue with a timely objection at trial, Chuck could have won his conspiracy count on appeal, let alone the limited argument he made that restitution liability was not appropriate. But because they did not, Chuck could only raise the matter as plain error, and on plain-error review, he could cite no other cases that had limited restitution to a smaller conspiracy.

Nonetheless, the discussion of variances and conspiracies as subsets of larger conspiracies has great applicability to drug and white-collar conspiracies, and worth the reading.

United States v. Anthony, 2019 U.S. App. LEXIS 32605 (10th Cir. 2019)

– Thomas L. Root

A Good Idea is Not Necessarily the Law – Update for December 8, 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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‘MAY’ DOES NOT MEAN ‘MUST’

There’s the old public service tagline about seat belts not just being a good idea, but being the law as well. It spawned more than one parody. But one kiddie-porn possession defendant learned last week that the meme does not have legs.

gravity171208The Circuits are strongly split over how to treat defendants subject to child porn Guidelines, which in the past 14 years have become draconian even by the normally harsh advisory Sentencing Guidelines. The 2nd Circuit started off the principled opposition to the stratospheric child porn sentencing ranges mandated by Congress in the 2010 case of United States v. Dorvee, holding that courts could pay little deference to child porn Guidelines because they were not set by the reasoned professional judgment of the Sentencing Commission, but instead by the political hacks in Congress. Two years later, the 6th Circuit ruled in United States v. Bistline that the fact that Congress told the Commission to set the ranges high meant the child porn guidelines were entitled to even more deference than the normal Guidelines.

anarchy171208In 2014, the 7th Circuit held in United States v. Price that it agreed with Dorvee, and said a sentencing judge could vary downward because of policy differences with Congress. But last week, the Circuit reminded defendants that “while district courts may disagree with the Guidelines’ policies and impose a lower sentence, it is not true that they must” do so.

bereasonable171208Terry Obetz questioned the usefulness of the Guidelines in child pornography cases, because the Guidelines were shaped by Congress instead of sentencing experts, and thus lack a basis in empirical data. He argued that Price requires sentences in child pornography cases to fall below the Guidelines’ range in order to be reasonable.

The judge listened to Terry’s policy argument but was not convinced: after all, the judge said, Congress created the Sentencing Commission, and it was free to give the USSC “some direction” when it wanted to. After all, what is a sentence but a political expression of appropriate punishment.

The sentencing court knew it was not bound by the Guidelines, but the judge said he believed the Guidelines’ recommendation – even if it was authored by Congress (or maybe especially because it was authored by Congress) – was appropriate.

judges171208On appeal, the 7th observed that the exercise of discretion shown by Terry’s judge  was “exactly what the judge was supposed to do.” Just as the judge in Price exercised her discretion when she reasonably deviated down from the Guidelines on policy grounds, Terry’s judge exercised his discretion, too, when he reasonably chose not to do so.

Judges judge, the Circuit said. That’s what they do, and as long as they are reasonable about it, the Court of Appeals was not going to tell them differently.

United States v. Oberg, Case No. 17-1546 (7th Cir. Dec. 1, 2017)

– Thomas L. Root

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