UNITED STATES of America, Plaintiff-Appellant, v. Dorothy MENYWEATHER, Defendant-Appellee.
No. 03-50496.
United States Court of Appeals, Ninth Circuit.
Argued Oct. 13, 2004. Resubmitted Dec. 7, 2005. Filed Dec. 16, 2005.
447 F.3d 692
We reverse the district court judgment and direct that the bankruptcy court order be reinstated, and we remand the case to the district court for its ruling on Omega‘s motions for attorneys’ fees and prejudgment interest.
Judgment REVERSED and REMANDED.
Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellee.
Before: KLEINFELD, HAWKINS, and GRABER, Circuit Judges.
GRABER, Circuit Judge:
For the third time, the United States appeals the sentence imposed upon Defendant Dorothy Menyweather‘s conviction by guilty plea to one count of mail fraud, in violation of
While this third appeal was pending, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), altering significantly the legal context in which we must decide this appeal. Before Booker, we reviewed de novo whether a departure was proper under the constraints set forth in the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines“). See
The district court, of course, did not have the benefit of Booker and sentenced Defendant under the assumption that the Guidelines were mandatory. We conclude that the district court did not abuse its discretion by downwardly departing from the Guidelines. Moreover, even if the district court strayed from the departure authority available under the Guidelines, any error was harmless in view of the sentencing factors listed in
FACTUAL AND PROCEDURAL BACKGROUND
Defendant began working as an administrative employee at the United States Attorney‘s office in Los Angeles in 1990. In 2000, she was indicted on 10 counts of theft of government funds, mail fraud, and wire fraud. She pleaded guilty to one count of mail fraud and admitted to having used government credit cards for unauthorized personal purchases of between $350,000 and $500,000.
At sentencing, the parties agreed with the probation office that Defendant‘s offense level was 16 and that her Criminal History Category was I, resulting in a sentencing range of 21 to 27 months. Defendant requested, and the government opposed, a six-level downward departure because of Defendant‘s family circumstances and mental and emotional condition. In support of her request, Defendant produced the evaluation of Dr. Barbara Cort Counter, a forensic psychologist.
Dr. Counter characterized Defendant as suffering from “severe symptoms of post-traumatic stress” occasioned by two events: her abandonment by her parents as a child and the violent murder of her fiance, the bloody aftermath of which she witnessed while five months pregnant with their child in 1989. Defendant‘s theft offense, according to Dr. Counter, was part of a “manic denial of psychic trauma accompanied by compulsive coping behaviors.” Dr. Counter had evaluated Defendant for three-and-one-half hours, administered and reviewed a psychological test, spoken with Defendant‘s counsel, and reviewed letters submitted by Defendant‘s family members. Defendant made Dr. Counter available for cross-examination,
Defendant also argued for a departure because of the unusually important role that she played in the life of her daughter, who was 11 years old at the time of the first sentencing hearing in 2001. Since the murder of her fiance, Defendant has been the sole parent and the primary source of financial support for her daughter.
After hearing argument, the district court departed downward by eight levels, resulting in a sentencing range of zero to 6 months. The court sentenced Defendant to five years of probation, upon the condition that she serve 40 days of her probation, on consecutive weekends, in “a jail-type institution.” The court also ordered restitution totaling $435,918, plus 3,000 hours of community service. In addition, Defendant was prohibited from applying for a loan or line of credit without the prior approval of the probation office.
The government appealed, and we vacated the sentence and remanded for resentencing because the district court had given no reasons for “the direction and the degree of the departure.” Menyweather I, 36 Fed.Appx. at 263. After that first remand, the district court denied the government‘s motions for an independent psychological evaluation of Defendant and additional investigation by the probation office, ruling that those procedures could have been, but were not, requested at the initial sentencing. After a hearing at which the government cross-examined Dr. Counter, the court reaffirmed its previous sentence. In support of the sentence, the court recited and adopted specific findings of fact and conclusions of law, as well as noting that it relied on Defendant‘s post-conviction rehabilitation.
In Menyweather II, we again vacated the district court‘s sentence and remanded, holding that the court (1) erred in relying on post-conviction rehabilitation without giving notice to the government, and (2) failed to explain the extent of the departure, as distinct from the bases for departure. 69 F. App‘x 874-75. On remand, the district court again denied the government‘s request for further development of the record and reaffirmed its sentence. In support of the sentence, the court adopted expanded findings of facts and conclusions of law that included citations to cases in which downward departures of comparable degree had been affirmed. The court eliminated its earlier reliance on post-conviction rehabilitation.
The government timely appealed the sentence.
LEGAL STANDARDS AND STANDARDS OF REVIEW
In the wake of Booker, federal sentencing is now governed by
- the nature and circumstances of the offense and the history and characteristics of the defendant;
- the need for the sentence imposed—
- to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- to afford adequate deterrence to criminal conduct;
- to protect the public from further crimes of the defendant; and
- to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- the kinds of sentences available;
the kinds of sentence and the tencing range established for— - the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
- issued by the Sentencing Commission pursuant to
section 994(a)(1) of title 28, United States Code . . . ; and - that, except as provided in
section 3742(g) , are in effect on the date the defendant is sentenced; or
- issued by the Sentencing Commission pursuant to
- in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to
section 994(a)(3) of title 28, United States Code . . . ;
- the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
- any pertinent policy statement—
- issued by the Sentencing Commission pursuant to
section 994(a)(2) of title 28, United States Code . . . ; and - that, except as provided in
section 3742(g) , is in effect on the date the defendant is sentenced.
- issued by the Sentencing Commission pursuant to
- the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- the need to provide restitution to any victims of the offense.
As the Supreme Court pointed out in Booker,
Like many other circuits, we have thus continued to address challenges to a district court‘s interpretation and application of the Guidelines because, although the district court is not bound by the Guidelines, it still should “consult them for advice as to the appropriate sentence.” United States v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir.2005) (citing Booker, 125 S.Ct. at 767). Several of our sister circuits have held that, to comply with Booker‘s mandate that district courts “take [the Guidelines] into account when sentencing,” 125 S.Ct. at 767, courts normally must determine and consider the correct Guidelines range. See, e.g., United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, U.S., 126 S.Ct. 276, 163 L.Ed.2d 246 (2005); United States v. Crosby, 397 F.3d 103, 111-12 (2d Cir.2005). Also, because
In this case, the first question is whether the district court began with the correct Guidelines sentence. With respect to that question, the usual standards of review apply: “[We] review[] the district court‘s interpretation of the Sentencing Guidelines de novo, the district court‘s application of the Sentencing Guidelines to the facts of this case for abuse of discretion, and the district court‘s factual findings for clear error.” Kimbrew, 406 F.3d at 1151. The parties agreed, and we see no error in their agreeing to, the Guidelines range of 21 to 27 months.
The second question is whether the district court properly understood its authority to depart downward under the then-mandatory Guidelines. Because Booker excised the de novo review of departures previously mandated by
We conclude that, under this standard of review, the district court did not abuse its discretion by departing downward for diminished capacity under
DISCUSSION
A. The district court did not abuse its discretion by departing downward for “diminished capacity” under U.S.S.G. § 5K2.13 .
The Sentencing Guidelines identify “diminished capacity” as a factor that may not have been considered adequately by the Sentencing Commission in promulgating the Guidelines—that is, as an encouraged factor for departure.2
a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
The district court found that Defendant suffers from post-traumatic stress disorder and concluded that, because that disorder contributed to her offense conduct, a departure was warranted under
In view of that finding of fact, which is not clearly erroneous, the court did not abuse its discretion by finding a departure appropriate under
B. Even if the court abused its discretion under U.S.S.G. § 5H1.6 , any error was harmless.
Unlike diminished capacity, family circumstance is a discouraged factor under the Guidelines, which state that “family ties and responsibilities and community ties are not ordinarily relevant” in determining whether a departure is warranted.
In United States v. Leon, 341 F.3d 928, 931 (9th Cir.2003), we commented that downward departures based on
By contrast, in United States v. Miller, 991 F.2d 552, 553 (9th Cir.1993), and United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir.1991), on de novo review, we held that downward departures were not appropriate because there was nothing unusual about the family situations presented. In each case, the children had another parent to care for them while the defendants were incarcerated. See Miller, 991 F.2d at 556 (Tang, C.J., concurring in part and dissenting in part); Berlier, 948 F.2d at 1096.
The conclusions that we reached in Leon, Aguirre, Miller, and Berlier are consistent with the First Circuit‘s view that, when evaluating departures for family responsibilities under
This case does not simply involve a single mother and child. The facts and circumstances show unusual traumatic circumstances for this mother and child and an unusual relationship between the two. This mother has been the sole parent caring for the child at home and after school. The mother has been consistently employed since the child‘s birth and her primary source of financial sup-
port. The social security benefits the child receives monthly (less than $400) are minimal and insufficient to support a child. [Defendant] has a special relationship with this child who has already lost one parent and has never been without her sole surviving parent excluding absences during brief trips.
The court also relied on the fact that, although Defendant‘s grandmother and great-aunt live nearby, their housing situation is unsafe.
Were we reviewing de novo, we would conclude that Defendant did not prove that she provides care that is irreplaceable or that could not feasibly be provided by another. Under an abuse of discretion standard, however, we hesitate to “second guess” the district court‘s conclusion that Defendant‘s relationship with her daughter, and the care that Defendant provides, are unusual as compared with the situation of other single parents. As we did in Aguirre, 214 F.3d at 1127, we acknowledge that district courts are “particularly suited” to determine whether a factor makes a case unusual, because they are “informed by [their] vantage point and day-to-day experience in criminal sentencing,” Koon, 518 U.S. at 98. We therefore conclude that the district court did not abuse its discretion by downwardly departing under
Alternatively, even if we were to accept the government‘s argument that the district court erred by departing on this basis under the Guidelines, we can say confidently that any error would be harmless to the government in this case. This is because, under the unusual circumstances present in this third-time appeal, we recognize that the district court could—and would—impose the same sen-
In the “broader appraisal,”7 available to district courts after Booker, courts can justify consideration of family responsibilities, an aspect of the defendant‘s “history and characteristics,”
Furthermore, as we have said, we have no doubt that the district court would impose the same sentence under the advisory Guidelines regime, as the district court has imposed the identical sentence three times already. See Selioutsky, 409 F.3d at 118 n. 7 (noting court arguably could forego review of the correctness of the departure under the Guidelines if it had a “sufficient basis for believing that the same sentence would have been imposed as a non-Guidelines sentence,” because “any error in using departure authority to select the sentence that was imposed would be harmless“). The district court clearly believed that, in this case, the potential harm to the close relationship between this single parent and her child outweighed the benefits of a prolonged period of incarceration to achieve deterrence, protection of the public, and punishment. Indeed, the court stated that the conditions of Defendant‘s probation were “as strenuous as any other sentence I could impose.” Cf.
C. The length of the sentence was reasonable, considering the combination of factors.
Finally, we turn to the government‘s objections to the length of the sentence (or, more precisely, to the extent of the downward departure from the Guidelines offense level). In post-Booker parlance, this is essentially a challenge to the “reasonableness” of the ultimate sentence.
As a threshold matter, the government contends that the district court failed to give reasons for the extent of its departure from the Guidelines and, thereby, failed to comply with our mandate in Menyweather II. We agree that, after Booker, the district court still is “required to articulate the reasons for the extent of the departure in sufficiently specific language to allow appellate review.” United States v. Working, 224 F.3d 1093, 1102 (9th Cir.2000) (en banc) (internal quotation marks omitted); see
But we do not agree that the district court failed to explain the extent of its departure here. In response to our remand in Menyweather II, the district court explained the extent of its departure from the Guidelines by supplementing its factual findings and, for each factor on which it based its decision to depart, citing and describing several other cases in which courts had departed downward on similar facts. Although the court did not make express comparisons between Defendant‘s case and the cited cases, the cited cases are facially similar and their presence alone implies that a comparative analysis led the court to select an eight-level departure. More importantly, as this court required in Working, 224 F.3d at 1102, the supplemented factual findings and comparative citations provide a basis for us to review, on the merits, whether the length of the sentence was reasonable.
Even before Booker, our task was to determine whether the extent of a departure was reasonable, so our cases applying abuse of discretion review to that question remain relevant after Booker. See United States v. Alfaro, 336 F.3d 876, 881 (9th Cir.2003) (citing
Our cases show that downward departures for diminished capacity generally range between one and four levels. See, e.g., United States v. Malley, 307 F.3d 1032, 1033-34 (9th Cir.2002) (five-level departure; combination of diminished capacity and extraordinary acceptance of responsibility); United States v. Garza-Juarez, 992 F.2d 896, 913 (9th Cir.1993) (four-level departure; combination of the defendant‘s panic disorder with agoraphobia and coercion under
Considering those cases, and the sentencing factors in
Although we are unlikely to have selected this particular sentence if we were doing the sentencing, that is not our function. In these circumstances, we find no abuse of discretion in the sentence (upon Defendant‘s conviction for a single count of mail fraud) consisting of five years of probation, on the condition that Defendant serve 40 days in jail on consecutive weekends; plus $435,918 in restitution, to be paid first to the individual victim; plus 3,000 hours of community service; plus a prohibition from applying for a loan or line of credit without the prior approval of the probation office.
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. The new sentencing regime does not justify this abdication of our duty of review. The majority‘s application of review for abuse of discretion equates it with no review.
For many years, Menyweather worked in administration for the United States Attorney‘s office in Los Angeles. During this period, she used her government credit card and other peoples‘s cards for almost three years to steal over $435,000—that the government has been able to verify—and faked certifications and computer entries to cover up her thefts. Yet she has not been sent to prison.
Menyweather went to work for the United States Attorney in 1990 as a clerical employee, so she was a long trusted member of the office when she got promoted to procurement in 1997. Almost immediate-
In addition to stealing for herself, Menyweather used stolen money to dramatize herself as a Lady Bountiful. She bought her sister-in-law in Tacoma a computer, printer, monitor and software. And she bought a dozen computers for the needy. About $20,000 of the stolen money was contributed to charitable organizations. She took numerous children to Las Vegas, twice, and to a church conference in New Mexico, all on the government nickel. She took eight people to a church conference in Atlanta. She even bought eight plane tickets to Israel. Her and her friends‘s and beneficiaries‘s travel cost the government about $150,000. And she showered her friends and relatives with such gifts as lawnmowers, computers, cell phones and service, video games, and televisions. Nordstrom‘s alone got $53,800 of Menyweather‘s bounty. The government found over a thousand crooked transactions when her thievery was finally discovered.
The government caught up to her and managed to stop payments on some of the more recent transactions after she had stolen $419,521. This left a travel agency stuck for $16,397. A lady at the travel agency, Ms. Kenichi Kimura, who had thought she was dealing with the government—a reasonable assumption since she was selling travel to a United States Attorney‘s procurement agent on a government credit card—wrote a victim impact statement explaining that she was required to pay back the loss to her company with monthly deductions from her salary, amounting to a fifteen to twenty percent pay cut that she could not afford. The violation of trust had driven her to seek counseling. She wrote, “[t]o me, working for the Government itself is the steady, fair and irresistible reason to believe. Maybe, I am Japanese and don‘t know much about the America. What else can people, including American believe if they can‘t believe the Government.”
Menyweather had suffered two severe misfortunes in her life. When she was a child, her father deserted her family and her mother gave her to her grandparents to raise. When she was a young adult, the year before she went to work for the United States Attorney (eight years before the crimes), her fiance was shot dead when she was five months pregnant with his child. She had been visiting friends nearby, and found his body as he lay bleeding to death.
Based on three and a half hours of interviews and tests, discussions with Menyweather‘s lawyer, and examination of discovery materials and letters from relatives, a psychologist, Barbara Counter, Ph.D., told the court that in her opinion, Menyweather‘s thefts were caused by post-traumatic stress from these misfortunes. She was, Dr. Counter opined, “filling the social and emotional voids created by her unacknowledged and untreated retraumatization, depression and despair with whatever external objects she could collect. She self-medicated” with shopping and trips. However, Dr. Counter had never seen Menyweather before Menyweather‘s lawyer brought her in. Dr. Counter conceded that meeting Menyweather after she got
The presentence report for Menyweather‘s 2001 sentencing recommended a guideline range of 21 to 27 months, $16,397 restitution to Ms. Kimura, the travel agent, and $419,521 restitution to the U.S. Attorney‘s office. The defense urged a downward departure to twelve months in custody (two over the summer, the rest on weekends) because of Menyweather‘s psychological condition as described by Dr. Counter and because Menyweather was solely responsible for her eleven year old daughter. The government opposed the departure, pointing out that the trauma of her fiance‘s murder preceded the beginning of her thefts by almost eight years and, in between, she had completed college, completed a successful internship, won awards, and generally done very well. The government also pointed out that
Moreover, the government highlighted the fact that there is nothing extraordinary about being a single mother and that Menyweather had chosen to leave her daughter without her supervision when she went on ten trips to Alaska, Australia, Israel, and numerous other destinations during her travels on stolen money. She had not even bought a ticket for her daughter (though she had for numerous other people) for the planned Carribean cruise that the government discovered and stopped.
The district judge, without explanation, departed downward eight levels. He gave Menyweather an even more lenient sentence than her attorney had asked for. The district court put Menyweather on probation for five years with conditions of restitution, community service and 40 days of jail to be served on weekends. The judge did nothing to see that the travel agent got paid back before the government.
We vacated and remanded for resentencing, because the court had not provided reasons for the downward departure and had failed to order that the travel agent be paid her restitution first, pursuant to
On remand, the government moved for leave to have its own psychiatrist evaluate Menyweather and for time to do an independent investigation of child care resources for Menyweather‘s daughter if Menyweather was sent to prison. The district court denied the motions. At the sentencing hearing, the judge would not allow the prosecution to show that all of the letters Dr. Counter relied on were from relatives upon whom Menyweather had showered her stolen largesse. The judge then imposed the same sentence he had the first time. The only change was that this time he explained why he was departing. He listed several “justifications“: Menyweather “is a single mother;” her thirteen year old daughter was entirely dependent on her; Menyweather and her daughter lived in a gated apartment community and her daughter attended private school, but if she were imprisoned her daughter would live in an unsafe neighborhood with her great aunt and grandmother; Menyweather had been traumatized, as Dr. Counter had said, yet had never received psychiatric care; and, finally, “post-conviction rehabilitation.”
In the district court again after this second remand, the government once more sought an opportunity to have its own psychiatrist evaluate the post-traumatic, self-medication explanation for Menyweather‘s crimes, and to investigate Menyweather‘s ability to provide for suitable child care among her extended family in the Los Angeles area if she was imprisoned. The government also sought an opportunity to investigate and contest the “post-sentencing rehabilitation” issue. Again, the judge denied the motions. By this time the daughter was 14 years old. The judge told the prosecutor “No second bites at the apple, counsel,” even though our mandate vacating the sentence in effect required a second bite. The judge then reimposed the same sentence saying, “there‘s nothing that‘s changed in the matters in which I am departing.” The only additional justification was the judge‘s signature on findings defense counsel submitted to protect the sentence from further appeal. In it he adopted the post-traumatic stress theory, compared the gated community and private school with the bad neighborhood, and justified the eight level departure by the “combination of circumstances under 5K2.0” showing “diminished capacity, extraordinary mental and emotional condition and extraordinary family circumstances.” The findings submitted by defense counsel omitted the “post-conviction rehabilitation” reason that we rejected previously.
Faced with the district judge‘s obdurate refusal to comply in any serious way with our mandates, we have given up. United States v. Booker3 gives us our excuse, but it is no more than an excuse, because a serious reading of the facts and the law of sentencing still requires that this sentence be vacated.
United States v. Booker “excised” the statutory provisions making the sentencing guidelines mandatory and providing for de novo review of departures, but held that “the remainder of the Act” imposing the guidelines is constitutional.4 The Act “requires judges to take account of the guidelines together with other sentencing goals. See
Does the sentence “afford adequate deterrence“? Far from deterring crime, the sentence invites it. $435,000 is a substantial amount of money, a life-changing amount of money for most people. Many people would eagerly volunteer to spend 40 days in jail on weekends to become that rich. They would earn almost $11,000 per night. A lot of jails count any portion of a day as a day, so a person can “serve two days” by arriving at 11:30 Friday night, leaving enough time for booking before midnight, and check out just after midnight to go home to sleep. “Protect the public“? There is nothing in the record to suggest that Menyweather will not steal again, if given the opportunity. Even the one member of the public personally and individually suffering from the crime, the travel agent, was not protected until we ordered the district judge to insure that she got her restitution first.
What about the sentencing guidelines? After Booker, they are not dead, just “advisory” instead of mandatory. The guidelines are contrary to the sentence imposed. That is why the judge departed from them. Review for unreasonableness is still review. We may not properly defer to an unreasonable sentencing decision. Unless and until Congress returns sentencing to what it used to be before the guidelines, a totally unreviewable discretionary trial court decision, we are supposed to assure that sentences are reasonable.
The primary justification for the strikingly lenient sentence was the post-traumatic self-medication by shopping theory that Dr. Counter articulated. Under the guidelines manual the district court used for sentencing, “mental and emotional conditions are not ordinarily relevant” to departures10 where the defendant does not suffer from “significantly reduced mental capacity,”11 though a mental or emotional condition may justify departure if present to such an “unusual degree” to distinguish the case from “heartland cases.”12 Because Menyweather‘s sentence flies in the face of all the other sentencing considerations the statute imposes, it can be justified on this ground only if the ground is strong indeed. It is not.
The other rationale for letting Menyweather go with 40 days of weekend time was that she was a single mother whose child would live with relatives in a bad neighborhood, instead of the gated community and private school Menyweather provided, if Menyweather went to prison. It is hard to see how Menyweather could continue to provide this superior standard of living after getting fired for stealing. The district judge repeatedly denied the government‘s motion to investigate the child care situation, thereby preventing the record from being further developed. The guidelines advise that “family ties and responsibilities” are not ordinarily relevant to departures,13 though like mental health they can be in extraordinary cases.14 We,15 like other circuits,16 have held that family circumstances should ordinarily be considered only when extraordinary harm to family dependents exceeds the normal disruption caused by imprisonment. But there is nothing “extraordinary” or “unusual” as those terms are used in the sentencing guidelines about single mothers. Nor is there anything extraordinary or the slightest bit unusual about a criminal‘s family suffering from loss of companionship and lowered income when the criminal is caught and sent to prison. Indeed, peoples‘s concern about avoiding this harm to their families is among the most important deterrents to crime.
That leaves us with the last and most important of the statutory criteria emphasized by Booker, whether the 40 days to be served on weekends “provide[s] just punishment.”17 Where is the justice in Menyweather avoiding prison and getting 40 days to serve on weekends for stealing $435,000, when others steal a VCR and face 25-years to life in prison?18 Does drawing a district judge whose sentencing philosophy is idiosyncratic make so idiosyncratic a sentence “just“? An excessively lenient sentence like this causes cynicism, not only among people in prison, where the luck-of-the-draw sentencing interferes with rehabilitation, but among the law-abiding public. People have second thoughts about doing the right thing when those who do the wrong thing prosper and avoid punishment.19 Injustice is corrosive.
Some people think defendants who have themselves suffered misfortunes should not go to prison, or defendants who commit nonviolent crimes, or women, or mothers, or single mothers. But none of these theories has been adopted by Congress or by the sentencing guidelines. I am able to explain, really explain, what the district judge has insisted on doing in the face of repeated remands only on the basis of some rejected theory such as this.
Some judges, such as the district judge in this case,20 are known for strongly held views. And there was strong resistance among some district judges, particularly those with long pre-guidelines experience, to the restrictions on their sentencing discretion when the guidelines came into force eighteen years ago. Now that the guidelines have been reduced from mandatory to advisory status, our review authority may be more rather than less important than it was before, to prevent idiosyncracy from altogether overtaking sentencing consistency. A sentence like the one in this case is just the sort of red flag that makes legislators wonder whether the courts need mandatory minimum sentences to assure protection of the public. The sentence in this case, imposed the third time after two remands, should be vacated again and the district court should be instructed to assign the case to another judge.21