Tenth Affirms Sentence, Concluding Judge's Potentially Discriminatory Statements Were Comments on Government's Recommendations

U.S. v. Reed, 2014 WL 7375604 (12/30/14) (Colo.) (unpub'd) - The 10th avoids deciding what standard to apply to potentially discriminatory comments by a sentencing judge and affirms the sentence. In this case the government agreed to probation for a cooperating Ms. Reed for being a straw firearm buyer for her abusive felon boyfriend, down from a 46-57 month guideline range. At the sentencing hearing, the district court expressed dismay that the recommended sentence might not reflect the seriousness of aiding the "arming to the teeth" of a crafty bad guy. The court thought the government was recommending the largest departure it had ever seen the government recommend. The court then observed: "over the course of my 3 years doing criminal cases I see a very big difference between how female defendants are treated by the prosecution, the defense and the probation office, particularly Anglo female defendants, and that, just from that status they should somehow receive a more lenient sentence." The court imposed a 6-month prison term to be followed by six months home confinement. Ms. Reed argued the 10th should apply the 2d Circuit test in these types of circumstances that requires reversal and resentencing before a different judge for "even the appearance that the sentence reflects a defendant's race or nationality." U.S. v. Leung, 40 F.3d 577, 586-87 (2d Cir. 1994). The 10th refuses to decide whether to adopt that test. Instead it says it doesn't matter because Ms. Reed does not satisfy the appearance-of-justice standard in this case. The 10th finds that the court was actually showing a legitimate concern for equal treatment of all criminal defendants and a reasonable observer would not think otherwise. As support for its decision, the 10th relies on: Ms. Reed's failure to argue the sentence actually was based on her gender or race and the judge's proper reasons for the sentence the judge chose, including the seriousness of the offense and the danger of an unfair disparity with similarly-situated defendants. Simply mentioning perceived biases in the government's recommendations do not rise to the appearance of the intrusion of improper factors into the sentencing decision. In a footnote the 10th assures us that "in the unlikely event any district court did sentence using irrelevant factors of race, sex, national origin, religion or socio-economic status" in violation of USSG § 5H1.10, the 10th would reverse the sentence.