Upward Variance Reversed as Procedurally Unreasonable!

U.S. v. Lente, 2011 WL 3211506 (7/29/11) (N.M.) (Published) - Reversal of an upward variance on procedural unreasonableness grounds. Judge Matheson wrote the opinion, joined by Judges Holloway and Gorsuch (!!!). The principle the 10th announced that applies to other cases is that a d. ct. must address all of a defendant's nonfrivolous arguments when imposing an upward variance. In this case, the d. ct. erred when it did not address the defendant's argument, supported by sentencing data and case examples, that the government's proposed sentence of 18 years for 3 involuntary manslaughters and an assault resulting from a DWI accident created unwarranted disparities with sentences of similar offenses and offenders. The d. ct. also was wrong not to address the mitigating circumstances surrounding the DWI, including that the defendant's mother asked her to drive an obnoxious guy home. The disparity error was not harmless because the d. ct.'s consideration of the argument might have convinced the court to impose a sentence different than 16 years [where the range was 46-57 months], and the d. ct.'s lack of explanation prevented meaningful appellate review.. The court concluded: "The need to avoid unwarranted disparities is a critical sentencing factor. Equal justice is a core goal of our system. When justification of a sentence is not forthcoming, the credibility of the sentence suffers." The 10th made it clear it was not making a judgment as to whether the sentence was too high.

On the bad news side, the 10th found it was okay for the d. ct. to take judicial notice of the supposedly well-traveled nature of the road the defendant drove on in determining she was extremely reckless. The defendant received enough notice of that ground for variance because a hearing was held on the subject. The 10th attempted to clarify the difference between procedural and substantive challenges. Procedural challenges focus on the sentencing methods and substantive challenges focus on the d. ct.'s consideration of § 3553(a) factors and the sufficiency of justifications for the sentence. The 10th recharacterized as substantive some of the arguments the defendant labeled as procedural. The 10th did not consider the substantive-reasonableness arguments. The defendant's complaints about using her BAC and lack of license to show extreme recklessness really attacked the weight the d. ct. gave to those factors. The defendant's contention that the d. ct. did not give a persuasive reason for disagreeing with the policy of the guidelines was a substantive argument as well. The 10th found the defendant was really making a substantive complaint that the d. ct. did not give enough weight to her terrible upbringing and amenability to treatment.. Otherwise, the d. ct. did address those issues in a procedurally reasonable way.