United States v. Douglas, 713 F.3d 694

Question whether a significantly above-guidelines sentence may be justified when earlier leniency proved unjustified after the fact.
Douglas distributed methamphetamine and cocaine (2006–2009), was addicted to heroin, cooperated against Escalera suppliers, and was released on house arrest but then concealed heroin.
Douglas pled guilty to conspiracy to distribute and a misdemeanor heroin possession; guidelines range for that conduct was 151–188 months; government sought possible §3553(e)/§5K1.1 departure.
Initial sentencing (April 20, 2010) imposed 60 months; court noted last-chance rationale and considered letters from family and supporters.
New misconduct discovered during/after cooperation: Xanax in prison, Suboxone/heroin possession; information filed Oct 20, 2011; Douglas pled guilty to possession of a prohibited object.
Sentencing on December 21, 2011: district court applied obstruction enhancement, denied acceptance credit, set guidelines range 24–30 months, and imposed 54 months plus three years of supervised release as an above-guidelines variance based on a pattern of reckless conduct and failure to rehabilitate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the above-guidelines sentence substantively reasonable?	Douglas argues the sentence is shockingly high given similar cases.	Court justified variance by unique facts and offender's conduct and history.	Yes; not abuse of discretion; reasons support variance.
Did the district court properly consider leniency from the first sentence in light of later misconduct?	First sentence reflected leniency for cooperation and rehabilitation; later misconduct undermines that.	District court could consider post-sentence conduct and unrevealed facts to justify variance.	Yes; court properly weighed post-sentence conduct and undisclosed facts.
Do comparisons to other §1791 cases support an above-guidelines sentence?	Douglas cites Mills and other circuits’ longer-term pranks, showing atypical harshness.	Facts here are sufficiently unusual and more serious, justifying departure.	Yes; district court did not abuse discretion given unique circumstances.
Was the obstruction-of-justice enhancement properly applied?	Government sought 3C1.1; argued for greater punishment due to deceit.	Court appropriately applied the enhancement given conduct and deception.	Yes; district court correctly applied obstruction enhancement.

Cavera v. United States, 550 F.3d 180 (2d Cir. 2008) (advisory nature of guidelines; importance of articulating reasons for variance)
Gall v. United States, 552 U.S. 38 (U.S. 2007) (reasonableness review especially regarding variance from guidelines)
Dorvee v. United States, 616 F.3d 174 (2d Cir. 2010) (parsimony principle and §3553(a) factors guiding proportional sentencing)
Mills v. United States, 66 Fed.Appx. 273 (2d Cir. 2003) (longest sentence among similar §1791 cases; cases show varying factors)
Verkhoglyad v. United States, 516 F.3d 122 (2d Cir. 2008) (upholding above-guidelines sentence given numerous probation violations)
Pelensky v. United States, 129 F.3d 63 (2d Cir. 1997) (upholding long sentence due to dismal track record on supervised release)