Below-Guidelines Sentence Reversed as Procedurally Unreasonable
U.S. v. Peña-Hermosilla, ___F.2d. ___, 2008 WL 1723664(10th Cir. April 15, 2008 )
Reversal of a below-guidelines sentence as procedurally unreasonable: “failure to provide proper explanation for the chosen sentence is reversible procedural error.” “Proper” in this case charts to a large extent Rule 32 requirements. The court refused an evidentiary hearing on whether managerial role and use of a minor in a drug offense enhancements applied, but took proffers. Its explanation for why the government’s proffers fell short for the managerial enhancement did not comply with Rule 32. Its failure to allow an evidentiary hearing on the use of a minor enhancement was error (the court did not apply the enhancement). The case was remanded for further fact finding, an evidentiary hearing, and explanation.
Court’s alternative sentence--same sentence even if it were determined that the enhancements applied–-was procedurally erroneous. Its cursory explanation that the “sentence is the most reasonable sentence upon consideration of all the factors . . . in . . 3553" fell short of the explanation necessary, especially for such a large variance. 3553(c)(2) requires the court to provide “the specific reason for the imposition of a sentence different from the GL range.”
Ebel’s concurrence argues that Rule 32 was never triggered because neither party challenged the historical facts underlying the enhancements, just the meaning of those facts. Ebel would, as we have all so often seen the 10th do, find that the historical facts in fact support the enhancements, and outright reverse the district court’s non-application, ordering it to apply the enhancements after remand.
Reversal of a below-guidelines sentence as procedurally unreasonable: “failure to provide proper explanation for the chosen sentence is reversible procedural error.” “Proper” in this case charts to a large extent Rule 32 requirements. The court refused an evidentiary hearing on whether managerial role and use of a minor in a drug offense enhancements applied, but took proffers. Its explanation for why the government’s proffers fell short for the managerial enhancement did not comply with Rule 32. Its failure to allow an evidentiary hearing on the use of a minor enhancement was error (the court did not apply the enhancement). The case was remanded for further fact finding, an evidentiary hearing, and explanation.
Court’s alternative sentence--same sentence even if it were determined that the enhancements applied–-was procedurally erroneous. Its cursory explanation that the “sentence is the most reasonable sentence upon consideration of all the factors . . . in . . 3553" fell short of the explanation necessary, especially for such a large variance. 3553(c)(2) requires the court to provide “the specific reason for the imposition of a sentence different from the GL range.”
Ebel’s concurrence argues that Rule 32 was never triggered because neither party challenged the historical facts underlying the enhancements, just the meaning of those facts. Ebel would, as we have all so often seen the 10th do, find that the historical facts in fact support the enhancements, and outright reverse the district court’s non-application, ordering it to apply the enhancements after remand.
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