United States v. Kane
2011 U.S. App. LEXIS 8905
| 8th Cir. | 2011Background
- Kane repeatedly assisted Champion to molest her nine-year-old daughter for about two years, totaling over 200 assaults, with Kane receiving $20 per episode.
- Champion pled guilty and testified against Kane; Kane was convicted on related counts after trial.
- District court originally sentenced Champion to 180 months and Kane to 210 months under the pre-Bookermandatory Guidelines.
- This court vacated and remanded Kane’s sentence twice, first for Booker-based advisory Guidelines, then for re-sentencing.
- On remand, the district court sentenced Kane to 120 months, citing post-sentencing rehabilitation and other factors, a variance from the bottom of her Guidelines range.
- Supreme Court decisions in Pepper v. United States and later rulings prompted reconsideration of whether the 120-month sentence remains reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pepper requires or permits considering post-sentencing rehabilitation at resentencing | Kane (prosecution) argues Pepper allows considering rehabilitation to justify variance | Kane argues Pepper supports accommodating rehabilitation post-sentencing | Yes; Pepper permits considering rehabilitation when appropriate |
| Whether Kane's risk of recidivism was clearly erroneous and unlawful to base the variance on | Kane should not be deemed low-risk; evidence shows repeated abuse | Kane's low recidivism risk supports leniency | The risk finding remained clearly erroneous; improper as a basis for the variance |
| Whether reliance on substance abuse/mental health history to lessen responsibility was appropriate post-Pepper | Kane II/III erred in linking past issues to crimes against her daughter | Past issues can be relevant to defendant's background under §3553(a) | Procedural error to base variance on those linked factors; Pepper abrogates prior bar on rehabilitation evidence but requires adequate justification |
| Whether the district court adequately explained the 90-month downward variance so as to avoid unwarranted disparity | Champion's greater culpability justified some leniency for Kane | Disparity within the conspiracy allowed balancing factors | The court failed to provide sufficient justification for the extent of variance; violated Gall/§3553(a) |
| Whether post-Pepper, Kane III’s substantive unreasonable-ness finding governs the outcome | Substantive reasonableness warranted given facts; deference due | If procedural errors are cured, substantiveness should be reviewed with deference | Sentence is substantively unreasonable; remand for resentencing consistent with Pepper and Gall |
Key Cases Cited
- Pepper v. United States, 131 S. Ct. 1229 (Supreme Court 2011) (post-sentencing rehabilitation may support a downward variance when appropriate)
- Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (abandoned mandatory guidelines; requires meaningful justification for departures)
- Rita v. United States, 551 U.S. 338 (Supreme Court 2007) (limits of reviewing court’s consideration of sentencing decisions)
- United States v. Haack, 403 F.3d 997 (8th Cir. 2005) (standard for abuse of discretion in sentencing decisions)
- United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (substantive review exists to correct unreasonable weighing decisions)
- United States v. Pepper, 470 F.3d 958 (8th Cir. 2009) (circuit-based post-Booker rules on post-sentencing rehabilitation (overruled by Pepper))
- United States v. Kane, 470 F.3d 1277, 470 F.3d 1277 (8th Cir. 2006) (Kane II; prior holding that Kane’s sentence was unreasonable for multiple factors)