18-year Sentence Reversed By Divided Panel
U.S. v. Lente, 2009 WL 1143167 (4/29/09) (unpub'd) - Reversal of 18-year sentence for 3 involuntary manslaughter convictions and one conviction for assault, for DWI, cross-the-center-line, crash. A majority did not agree on a rationale for the decision. In one paragraph, Judge Hartz rules that the government breached the plea agreement by endorsing a PSR recommendation of an upward variance for failure to accept responsibility when it had stipulated to a three-level acceptance of responsibility reduction.
For the sake of resolving what to do next, Judge Holmes goes along with the usual plea-breach remedy of remanding to a different judge. But Holmes apparently does not agree with the plea breach rationale. In a 41 page opinion he finds the upward variance from 46 to 57 months to 216 months was substantively unreasonable. Holmes finds that every one of the 7 variance grounds was a legitimate ground, but combined the grounds were not compelling enough to warrant the size of the variance, particularly in light of the "laconic" i.e., Judge Conway-style explanations, particularly with respect to the weight given each ground. The grounds were: (1) high BAL, .21, thus knowingly risking lives on the road; (2) the defendant did not have a driver's license [could not be significant factor]; (3) the defendant had tribal convictions and three arrests, most of which involved excessive alcohol and violence [none for DWI] and no counsel [noted by Holmes] [could not be significant factor]; (4) the defendant initially blamed a passenger for crash, but later accepted responsibility [could not have assigned great weight]; (5) the defendant needed vocational and educational training [of little weight]; (6) the accident caused particularly severe damage to victims' families; and (7) policy disagreement because involuntary manslaughter has a similar guideline range to less serious offenses like reentry or drug offenses [could it be those guidelines are too high?]. In the course of the opinion, Holmes stresses parsimony, compares the level of variance in this case to other lesser levels of variances in other cases, goes for pages without resolution on the question of whether "closer review" must be given to policy disagreement variances and explains why the involuntary manslaughter guidelines might actually be the result of the Sentencing Commission doing its job, i.e., doing empirical research, using task forces to study the issue, etc.. A definite must-read opinion if you're up against an upward variance possibility and also if policy disagreement is a possible variance ground.
Judge McWilliams dissents without explanation.
For the sake of resolving what to do next, Judge Holmes goes along with the usual plea-breach remedy of remanding to a different judge. But Holmes apparently does not agree with the plea breach rationale. In a 41 page opinion he finds the upward variance from 46 to 57 months to 216 months was substantively unreasonable. Holmes finds that every one of the 7 variance grounds was a legitimate ground, but combined the grounds were not compelling enough to warrant the size of the variance, particularly in light of the "laconic" i.e., Judge Conway-style explanations, particularly with respect to the weight given each ground. The grounds were: (1) high BAL, .21, thus knowingly risking lives on the road; (2) the defendant did not have a driver's license [could not be significant factor]; (3) the defendant had tribal convictions and three arrests, most of which involved excessive alcohol and violence [none for DWI] and no counsel [noted by Holmes] [could not be significant factor]; (4) the defendant initially blamed a passenger for crash, but later accepted responsibility [could not have assigned great weight]; (5) the defendant needed vocational and educational training [of little weight]; (6) the accident caused particularly severe damage to victims' families; and (7) policy disagreement because involuntary manslaughter has a similar guideline range to less serious offenses like reentry or drug offenses [could it be those guidelines are too high?]. In the course of the opinion, Holmes stresses parsimony, compares the level of variance in this case to other lesser levels of variances in other cases, goes for pages without resolution on the question of whether "closer review" must be given to policy disagreement variances and explains why the involuntary manslaughter guidelines might actually be the result of the Sentencing Commission doing its job, i.e., doing empirical research, using task forces to study the issue, etc.. A definite must-read opinion if you're up against an upward variance possibility and also if policy disagreement is a possible variance ground.
Judge McWilliams dissents without explanation.
posted by Anonymous at 11:47 AM
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