Sentence Affirmed in Mann Act Case
United States v. Scott, ___F.3d___, 2008 WL 2502524 (10th Cir. 2008)
The district court’s calling and examining a witness in support of the higher sentence did not violate Due Process and show judicial partiality, and did not entail the judge acting as an advocate. The court has the power to call witnesses at sentencing and did not abuse its discretion in so doing in this case.
Procedural reasonableness: No error in applying vulnerable victim guideline enhancement in Mann Act conviction. Defendant did not contest the girl’s characteristics of fragility, use of meth, immaturity, runaway status, and was aware of at least some, though not all, of them after first encountering her and during the commission of the offense. No error in applying guidelines' organizer enhancement–one of Defendant’s prostitutes assisted him in the business and was a participant in the offense, and not merely just another of his prostitutes.
Substantive reasonableness: The 120 month sentence–greater than the 87 month GL sentence–was reasonable (SHORT discussion, a post-Gall brevity we might see more often).
No ex post facto violation in imposing an upward variant sentence for pre-Booker crime. Avoiding any decision regarding whether Defendant had fair warning that his sentence could be so far above the guidelines, the court held that he did have fair warning under the guidelines. It reached this decision by engaging in a series of re-calculations–what if he did not receive an acceptance reduction, for example–which would bring the guidelines calculation within the range of the 120 month sentence he received.
The district court’s calling and examining a witness in support of the higher sentence did not violate Due Process and show judicial partiality, and did not entail the judge acting as an advocate. The court has the power to call witnesses at sentencing and did not abuse its discretion in so doing in this case.
Procedural reasonableness: No error in applying vulnerable victim guideline enhancement in Mann Act conviction. Defendant did not contest the girl’s characteristics of fragility, use of meth, immaturity, runaway status, and was aware of at least some, though not all, of them after first encountering her and during the commission of the offense. No error in applying guidelines' organizer enhancement–one of Defendant’s prostitutes assisted him in the business and was a participant in the offense, and not merely just another of his prostitutes.
Substantive reasonableness: The 120 month sentence–greater than the 87 month GL sentence–was reasonable (SHORT discussion, a post-Gall brevity we might see more often).
No ex post facto violation in imposing an upward variant sentence for pre-Booker crime. Avoiding any decision regarding whether Defendant had fair warning that his sentence could be so far above the guidelines, the court held that he did have fair warning under the guidelines. It reached this decision by engaging in a series of re-calculations–what if he did not receive an acceptance reduction, for example–which would bring the guidelines calculation within the range of the 120 month sentence he received.
posted by Anonymous at 9:25 AM
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