Sentence Reversed Because District Court Underestimated Its Discretion

U.S. v. Garcia-Salas, 2007 WL 4553913 (12/27/07)(unpub'd) - The 10th reverses the district judge for thinking he had less discretion than he really had. The defendant's grounds for variance included: (1) his prosthetic leg made his prison conditions bad; (2) he was a good stay-at-home father with two kids and he worked devotedly in a group that tried to discourage teenagers from having children; and (3) he suffered lots of traumas as a child, e.g. train running over his leg, abandonment by his mom, the suicide of his stepmom on his 10th birthday. The judge, having been reversed for both a below-guideline range sentence in Cage and an above-guideline range sentence in Atencio, said he felt it would be "very difficult" to impose a sentence outside the guideline range under those decisions. He asked the government whether it would appeal if he imposed a below-range sentence. When the government said it would appeal, the judge said he felt "constrained" to impose a guideline sentence. The 10th held that Gall and Kimbrough made it clear the judge had greater discretion than he realized. The 10th said the d.ct. was not free to impose any sentence whatsoever on remand, but "there is undoubtedly some room below the Guidelines minimum for a 'reasonable' sentence." Judge McWilliams dissented without an opinion.