Improper to Sentence Defendant Convicted of PWID Meth As Though Convicted of More Serious Offenses; Upward Variance Reversed

U.S. v. Allen, 2007 WL 1560152 (5/31/07)(published) - An excellent victory for a defendant represented by our Oklahoma City AFPD colleague, Tony Lacy, where the 10th reverses an upward variance from 135 months at the top of the guideline range to 30 years on substantive unreasonableness grounds. The defendant was convicted of possession with intent to distribute meth. The d.ct. varied because of evidence that: (a) the defendant, who had a prior rape conviction of an underage girl, discussed in detail with someone else his desire and possible plan to kidnap, rape and murder a pre-teenage girl and (b) the defendant approached a ten-year-old girl at a Wal-Mart and asked her if she liked men in masks and professional wrestlers and told her not to look at Wal-Mart employees because "they'll kill you," [unlikely, unless it increased the profit margin]. The d.ct. sentenced the defendant, according to the guidelines, as though he had been convicted of solicitation to commit aggravated sexual abuse or first-degree murder.

The 10th (Judge McConnell) noted the guidelines' requirements that: conduct be counted for offense-level purposes only if it is related to the offense of conviction; only convictions establish the criminal history score; and upward departures for under-representation of criminal history are generally limited to unconvicted conduct similar to the offense of conviction and only result in an increase of the criminal history score, not the offense level. The 10th pointed out those requirements serve to protect the defendant from the imposition of a sentence that strays too far beyond the Sixth Amendment jury-trial protection. While acknowledging a d.ct. has some discretion to consider its own assessment of the risk of recidivism and to take into account conduct beyond what is permissible to consider under the guidelines, the 10th found excessive the weight the d.ct. gave to the evidence of dissimilar, unrelated conduct. It is one thing to conclude a defendant who committed uncharged crimes or presents a serious risk of committing future crimes deserves greater punishment than a similarly-situated defendant who committed no such crimes and presents no such risk, "it is quite another thing to conclude the proper measure of that increase is the sentence that would be imposed had the defendant actually been convicted of those uncharged, unrelated crimes." (Emphasis in original). "A sentencing judge may not sentence a defendant for an entirely different. and far more serious, crime [than the offense of conviction]." The 10th noted Blakely's concern that a defendant convicted of possessing a firearm could be sentenced for the murder committed with the gun. The 10th also disapproved of the d.ct.'s possible attempt to punish future crimes, as occurred in Minority Report. In closing, the 10th summarized: a d.ct. "may not discard the advisory Guideline range and impose sentence ... on the basis of evidence of the defendant's uncharged, unrelated misconduct, whether actually committed or contemplated for the future." Then, for the first time that I can recall, the 10th mentioned the parsimony clause, saying it was confident the d.ct. could fashion a sentence that took into account the defendant's dangerousness, that was "sufficient, but not greater than necessary, to achieve the purposes of sentencing."