Monday, August 04, 2014

Upward Variance to 16 Years (From 57 Months) Affirmed in Involuntary Manslaughter Case

U.S. v. Lente, 2014 WL 3537830 (7/18/14) (N.M.) (Published) - In the 3rd sentencing appeal in this case, the 10th affirms the district court's 16 year sentence---an upward variance from 57 months--- for a young woman who, while driving drunk, drove head-on into a pickup after her passenger tried to pull the steering wheel from her and she jerked it. Three people - two kids and an 18-year-old - died and another young adult was seriously injured.

First, the 10th declared the procedural-error arguments were really challenges to the substantive reasonableness of the sentence. The claim that it was irrational to refuse to consider the mitigating fact of the passenger's actions causing the accident was really a challenge to the weight given. The claim that the district court didn't consider the Sentencing Commission's careful consideration of the multi-victim circumstance was considered by the court and so the complaint was really substantive.

Next the 10th found permissible the district court's primary reason for the variance: a policy disagreement with the Commission regarding how much extra punishment should be associated with multiple victims of involuntary manslaughter. The Guidelines say use the grouping rules. The 10th says the court's disagreement was specifically attached to the "rare" facts of this case: multiple involuntary manslaughter convictions involving people who just happened to be in the wrong place at the wrong time, rather than passengers of the drunk defendant . So the "closer review" that Kimbrough suggested might be needed for pure policy disagreements was not necessary. The 10th noted Commission Groups and courts have expressed dissatisfaction with the involuntary manslaughter guidelines and in particular, the grouping rule application. The 10th was unimpressed by the notion that it was unfair to punish so severely for consequences that were substantially the result of happenstance. The 10th was unwilling to look at how unlikely the consequences were of Ms. Lente's conduct. Instead it said Ms. Lente's extreme recklessness justified disregarding the happenstance factor. The 10th found permissible the district court's finding of extreme recklessness based on: (1) a .21 BAC two hours after the accident where the average BAC in a fatality is .16; (2) State Road 47 was a well-traveled road that was designated as unusually significant to its metropolitan area with 500-600 vehicles per hour at the time of Ms. Lente's drive; (3) Ms. Lente had no driver's license. The 10th acknowledged (2) & (3) didn't show extraordinary recklessness. But together with the BAC it was okay to find Ms. Lente extra reckless. It was permissible to vary due to Ms. Lente's tribal criminal history of two disorderly conducts and an assault and battery over the course of 3 or 4 years. The court could conclude these showed a repeated willingness to abuse alcohol and engage in violent and reckless behavior. The 10th noted less than 10 % of vehicular homicide defendants had assault & battery priors. Zero criminal history points "clearly" understated her criminal history, the 10th says. The 10th found Ms. Lente's prison conduct, which included use of controlled substances,a statement she wanted to get drunk when she got out and refusal to take her headphones off during drug education class, supported the district court's conclusion Ms. Lente was a high risk for recidivism. Pepper not only allows post-sentence rehabilitation evidence but also post-sentence evidence showing the defendant was not rehabilitated.

There was no unwarranted disparity. The 10th found Ms. Lente's mitigating evidence unconvincing. Her horrible childhood, her youth, and mental health issues were counteracted by the fact she hadn't rehabilitated herself. And such mitigating evidence is a "double-edged sword" because it means she's dangerous. The 10th consoled Ms. Lente with its opinion that she is not beyond hope of recovery. The 10th expressed its "sincere hope" she obtains the treatment she needs. Ms. Lente's passenger's role in the accident meant nothing. As the district court said, the going into the wrong lane was just a small action that could be ignored. She and the passenger together caused the crash and in her guilty plea she acknowledged she acted with the reasonable foreseeabilty she was imperiling the lives of others. "There is nothing irrational about considering the harm caused by that decision, even if other factors contributed to the result.

The 10th affirms the sentence "not without some pause." The 10th worried sentences could be widely divergent if one judge thinks harm is the most important and another thinks the lack of bad mens rea is important. The 10th stressed the role of the "extensive record" in this case that helped justify the extreme variance. It ended the opinion by assuring us "appellate review continues to have an important role to play and must not be regarded as a rubber stamp." On the bright side for those other than Ms. Lente, this case will make it all the harder for the government to overturn a substantial downward variance.