U.S. v. Smith, 2013 WL 5751748 (10/24/13) (Kan.) (unpub'd) - The d. ct. reversibly erred when it ignored USSG § 5G1.3(b). The defendant was convicted of federal wire fraud for selling stolen items on Craigslist. He received a 9-year sentence in state court for the burglaries and thefts that supplied the items sold on Craigslist. The d. ct. upwardly varied from the range of 46-57 months to 15 years for wire fraud to run consecutively to the state sentence. The defendant kept objecting that § 5G1.3(b) required the sentence to run concurrently because the underlying state offenses were relevant conduct that enhanced the loss amount for offense-level purposes for the wire fraud. The d. ct. never acknowledged § 5G1.3(b). Instead the court said: it was not required to ignore the defendant's conduct that is part of the federal crimes; there was no double punishment because wire fraud is a federal crime, not a state crime; the defendant wouldn't have to serve his full state sentence; and concurrent sentences would not be sufficiently severe. The court seemed "perplexed" by the defense objection, asking: "You think wire fraud is part of the state crime?" The 10th considered the defendant's issue as a procedural one even though the defense characterized it as substantive. Luckily the 10th found the issue preserved nonetheless. The 10th found § 5G1.3(b) applied, but that the d. ct. mistakenly believed it inapplicable. The error was not harmless given that the judge's starting point was "measurably" wrong. The d. ct. thought it was upwardly varying by 123 months, but it really was varying more than 220 months [123 months plus the length of the state sentence]. That could have made a difference in the sentence. And, while it was okay to consider the differences between the defendant and his co-defendant, the d. ct. committed plain error by relying on their differences alone without considering sentencing disparities nationwide. The defendant had not waived the issue by saying the differences between him and the co-defendant were neutral factors. He just failed to recognize the error.
The majority refused to consider the substantive reasonableness of the sentence, leaving it up to the d. ct. to reconsider in light of the 10th pointing out its errors. Judge Ebel in concurrence flat out finds the sentence to be substantively unreasonable. He notes the sentence was more than triple the range, He concludes the defendant was not necessarily incorrigible since he was only 23. He also finds significant the fact that the defendant so far had spent very little time incarcerated despite a long criminal record, meaning a lower sentence might be enough to convince the defendant to reform his ways. The defendant's record consisted mostly of petty crimes and the crimes were not the same ones over and over. He questioned imposing an extreme variance based on likelihood of recidivism rather than the seriousness of the crime.
U.S. v. Griffin, 2013 WL 5751431 (10/24/13) (Kan.) (unpub'd) - Mr. Smith's co-defendant did not fare so well. The majority gave a terse review of an upward variance and seemed to approve a Tapia violation to boot. The d. ct. varied from the top end of the range of 33 months to 5 years for wire fraud due to (1) the defendant's criminal history, (2) the need to protect the public and (3) the defendant's need for substance abuse counseling plus his lack of interest in counseling. The majority rejected the defense argument that the d. ct. failed to address his mitigation arguments. The d. ct. said it reviewed the evidence and the defendant's sentencing memo and said it would not rely exclusively on the PSR. That was enough. The majority seems to ignore the fact that an upward variance requires a more explicit consideration of the defense arguments than when a within-range sentence is imposed, as Lente says. Oddly the majority says there might be more need for an explanation for an upward departure, rather than a variance. It was not clear error to find the defendant was not interested in counseling since he did not research treatment programs before concluding he had no time while on pretrial release to engage in treatment. The d. ct.'s listing 3 specific reasons for an upward variance [2 of which are redundant and the other of which violated Tapia] was sufficient to allow for meaningful appellate review. The d. ct. didn't have to say why it didn't impose a lower sentence. Lente, which found error in a failure to address the danger of a variance creating unwarranted disparities did not apply here because, unlike in Lente, the defendant failed to raise disparity as an issue below. And a d. ct. necessarily considers the disparity factor when it mentions the guideline range.
The majority says the sentence was substantively reasonable in large part because it was less than 3 times the low end of the range---27 months---and about one-fourth of the 20-year stat max and the variance was less than in an unpublished 5th Circuit case. Judge Ebel dissented. He did not believe the defendant was incorrigible, given that he was 21 years old. And the defendant did not commit the same offenses over and over, had never before served any time incarcerated, and was less complicit in the offense than Mr. Smith. Some variance might be justified, but not such a big variance, Judge Ebel concluded.
U.S. v. Davis, 2013 WL 5716583 (10/22/13) (Kan.) (unpub'd) - Another affirmance of an upward variance that does not place a particularly demanding explanation burden on the d. ct. The d. ct. varied up 10 years to 25 years and 8 months due to the seriousness of the meth offense and the defendant's "extensive" criminal record. The defendant argued the proposed variance was unnecessary because application of the actual-meth, rather than meth mixture, guidelines already multiplied by 10 the quantity calculation. The d. ct. never explicitly addressed that argument, but did say the 93% pure meth was of a very high purity and could be cut many times. That was enough for the 10th to determine the d. ct. adequately considered the defense's actual-meth/meth-mixture argument. The court "could have given a more elaborate explication of its reasoning . . . but a reviewing court should be reluctant to read too much into a failure to explicitly respond. . . . We should just look at the record as a whole to gauge the judge's thought process." The d. ct.'s purity views mirrored those of the guidelines.
U.S. v. Baum, 2013 WL 5685786 (10/21/13) (Wyo.) (unpub'd) - An anti-Lake decision. As I'm sure you remember, in the Lake case the 10th implied that Alleyne meant any judicial fact-finding increasing the guideline range would violate due process and the right to a jury trial. In Baum the 10th says Alleyne does not require that the number of child porn images be proven to a jury beyond a reasonable doubt. Alleyne doesn't mean any fact that influences judicial discretion must be found by a jury.
Cheatham v. Cline, 2013 WL 5737055 (10/23/13) (Kan.) (unpub'd) - The petitioner's habeas complaining that his state court appeal took too long was mooted by the appellate court's eventual reversal of his convictions. This was so even if the delay was prejudicial with respect to the new trial in that an alibi witness had died during the pendency of the appeal.
Tijerina v. Patterson, 2013 WL 5718464 (10/22/13) (Utah) (unpub'd) - The 10th rules there is no constitutional right to writing paper. The prisoner's right to access to the court was not infringed by the prison's restrictions on how much paper he could get - initially 5 sheets per week and then 25 sheets per - where he borrowed paper from other inmates and the d. ct. observed that he had used 99 pieces of paper to argue he had too little paper.