United States v. David Zobel
2012 U.S. App. LEXIS 21036
| 6th Cir. | 2012Background
- Zobel pled guilty to 18 U.S.C. § 2422(b) and was sentenced to 150 months, above the Guidelines range of 120-135 months.
- District court imposed life-style + supervised release conditions including contact restrictions with minors, loitering near minors, and a broad ban on pornography or sexually explicit materials.
- Offense involved online chats with minors, sexual activity with two underage girls, and possession of child pornography; victim ages 13 and 12 were involved.
- District court relied on expert testimony (Roush) adding two risk factors to Static-99, concluding a moderate risk to the community and upward variance was warranted.
- PSR calculated adjusted offense level 31 with Criminal History I; guideline range was 120-135 months; variance produced 150 months.
- Moore, J. dissented, arguing § 3553(c)(2) procedures were not satisfied due to lack of specific reasons for the variance in open court and in the written statement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural reasonableness of the variance | Zobel argues variance not adequately explained. | Zobel asserts district court failed to state specific reasons for variance. | Procedural error not plain; oral rationale sufficient; variance upheld |
| Substantive reasonableness of the 150-month sentence | Sentence is disproportionate given offense and offender factors. | Sentence supported by 3553(a) factors, especially public safety and recidivism risk. | Sentence substantively reasonable; modest eleven percent above-Guidelines variance upheld |
| Rationale and validity of special conditions of supervised release | Challenge to no-contact, anti-loitering, and pornography restrictions as overbroad/unnecessary. | Conditions reasonably relate to rehabilitation and public safety. | Special conditions largely upheld; one provision vacated (sexually suggestive materials) |
| Ripeness of challenge to mandatory conditions | Challenge to supervised-release conditions ripe immediately after sentencing. | Challenged conditions not ripe if not mandatory or speculative. | Challenge deemed ripe for review as conditions were mandatory |
| Plain error for written reasons | District court failed to provide specific written reasons for variance. | Oral discussion suffices; written form minor defect. | Plain error; but the remedy in this case was remand for resentencing |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (Sup. Ct. 2007) (requires explanation of variance under 3553(a))
- Brogdon, 503 F.3d 555 (6th Cir. 2007) (explains sufficiency of reasoning for procedural reasonableness)
- Blackie, 548 F.3d 395 (6th Cir. 2008) (warning on written statement of reasons and variance explanations)
- Klups, 514 F.3d 532 (6th Cir. 2008) (above-Guidelines sentence may be procedurally reasonable with factors cited)
- Denny, 653 F.3d 415 (6th Cir. 2011) (variance explanation context for procedural sufficiency)