United States v. Denny
2011 U.S. App. LEXIS 16410
| 6th Cir. | 2011Background
- Denny pled guilty to one count of uttering a counterfeited security under 18 U.S.C. § 513(a) for the Corvette incident.
- He was charged with three counts initially and admitted to two other counterfeit checks tied to auto thefts in filings and during plea.
- The PSR calculated offense level 13 and CHC VI; district court later reduced CHC to V and offense level to 12, yielding guideline range 27–33 months.
- At sentencing, the district court imposed 60 months, stating the guideline range did not reflect the crime’s seriousness and victims’ harm.
- The court later described the sentence as above-guideline via § 3553(a) factors, while the Form 994(w) Statement of Reasons listed departures under 5K2.0 and 5K2.5.
- Denny objected to the sentence as an upward departure not properly notice, prompting appeal on departure/variance and reasonableness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentence was a departure or a variance | Denny contends the court departed from Guidelines. | Denny argues variance, not a departure, based on § 3553(a). | Variance, not a departure. |
| Effect of oral sentence vs written Statement of Reasons | Statement of Reasons indicates an improper departure. | Oral sentence controls; written form may clarify intent, but does not override oral intent. | Record shows variance; written SOS does not demonstrate a departure. |
| Procedural reasonableness of the sentence | Court failed to adequately explain its decision or mischaracterized standard. | Judge considered arguments, adjusted PSR, and cited § 3553(a) factors. | Procedurally reasonable. |
| Substantive reasonableness of the 60-month sentence | Sentence excessive; could have been lower with § 3A1.1(b) enhancement for vulnerable victims. | Variance based on crime’s nature and impact; § 3A1.1(b) inappropriate metric for § 3553(a) factors. | Substantively reasonable. |
Key Cases Cited
- Irizarry v. United States, 553 U.S. 708 (Supreme Court 2008) (notice under Rule 32(h) not required for a variance)
- United States v. Grams, 566 F.3d 683 (6th Cir. 2009) (distinguishes departure vs variance)
- United States v. Stewart, 628 F.3d 246 (6th Cir. 2010) (variance justified by § 3553(a) factors for victim impact)
- United States v. Penson, 526 F.3d 331 (6th Cir. 2008) (oral sentence governs when ambiguous; SOS aids resolution)
- Rita v. United States, 551 U.S. 338 (Supreme Court 2007) (need to explain basis for sentence; not always recite factors verbatim)
- United States v. Davis, 458 F.3d 505 (6th Cir. 2006) (no ritual incantation of § 3553 required to affirm)
- United States v. Moon, 513 F.3d 527 (6th Cir. 2008) (vulnerable victim consideration under § 3A1.1(b) described)