Upward Variance Presumed Reasonable

US v. Limon, No. 07-1297, 4/3/08 - Upward variance for defendant who went on a bank robbing spree in which he used firearms affirmed. Lots of bad sentencing facts (multiple priors, increasingly violent crimes, substance abuse and gambling addition issues, scared people, etc.). The government had nevertheless moved for a downward departure based on substantial assistance and requested a 240-month sentence. The court granted the motion, but still varied upward and imposed a sentence of 279 months. The defendant challenged his sentence, mainly on the basis that the court was impermissibly using imprisonment as a method of rehabilitating him, in violation of 18 US Sec. 3582(a) and 28 USC Sec. 994(k). This argument was rejected because it confuses the decision of whether to impose a term of imprisonment with the separate question of how long a term to impose, and Sec. 3553(a)(2)(D) expressly requires district courts to consider the need for the sentence imposed to provide the defendant with needed medical care. Following its recent decision in US v. Smart, 2008 WL 570804, the 10th applied a presumption of reasonableness to an upward variance, giving "due deference to the district court's decision that the 3553(a) factors, on a whole, justify the extent of the variance."