*1 455 yеars than two after his from fed- intended to release that the district court only sentence, custody, the heinous nature of his an alternative but also eral provide crimes, relatively on and his lenient previous alternative sentence based that the identifiable, sentences, given must correctly prior calculated that we an “under a United range.” review sentences deferential guidelines standard,” (8th Cir.2007). Icaza, 967, 128 971 abuse-of-discretion conclude the district S.Ct. we that Johnston, v. 533 F.3d impos- court did not abuse discretion Cir.2008) (alterations (8th omitted). ing imprison- sentence 48 months’ assuming court Even Therefore, we ment. conclude procedurally granting erred in this case district court’s sentence was not unreason- an upward motion for the Government’s able. such error departure, we conclude harmless, and we affirm John- would be III. CONCLUSION sentence based on the district court’s son’s we affirm convic- Accordingly, Johnson’s an impose upward decision to alternative tion and sentence. 3553(a) on factors.4 variance based had court it not explained The district
granted upward departure started undisputedly-correct with the advi-
instead to
sory guidelines range of 18 months’ it still would have
imprisonment, America, UNITED of 48 months based on the STATES Appellant, clearly factors. The court discussed the factors and con- thoroughly v. imprisonment that 48 months’ was cluded FEEMSTER, Appellee. Kendrix D. on sentence based John- appropriate No. 06-2059. history and and the characteristics son’s protect public for a sentence to need Appeals, United States Court of crimes, promote from Johnson’s future Eighth Circuit. law, deter future crimi- respect for Submitted: Jan. 2009. conduct, just punishment nal July Filed: offense, reflect the serious- for the and to in- Given Johnson’s ness of offense. and firearms less drugs
volvement analysis, capital By adopting a defendant convicted of three counts of harmless-error murder). suggest proce- argues do not that the district Johnson also that the dis- upward durally granting depar- erred improperly trict court "double counted” his argues example, For Johnson that the ture. history granting upward de- criminal departure improper upward because his parture, previously we have stated that but lenient, they juvenile sentences were not commentary guidelines "[n]either the nor the at the time. were the maximum allowable considering prohibit also used to convictions however, note, only that he served four We criminal-history points,” award United States capital years for five counts of murder Cir.2005). Yahnke, v. battery, first-degree which is ten counts Finally, the fact that Johnson was arrested compared unquestionably to the sen- lenient charges years after the current less than two comparable an adult tence convicted being his custody based on released would have received. Rankin crime Cf. high juvenile convictions demonstrates State, S.W.3d 365 Ark. 4Al.l(e). risk of See recidivism. U.S.S.G. (2006) (upholding adult death sentence for *3 Goodman, AUSA, argued,
Daniel Steven DC, Washington, appellant. for AFPD, Liggett, argued, Lucille Gardner MO, Louis, appellee. St. for LOKEN, Judge, Before Chief WOLLMAN, BEAM, BYE, MURPHY, RILEY, MELLOY, SMITH, COLLOTON, BENTON, SHEPHERD, and Circuit Judges.
SMITH,
Judge.
Circuit
D.
of
Kendrix
Feemster
convicted
intentionally
and
knowingly
counts
two
cocaine, in
distributing
crack
violation
841(a)(1)
(b)(l)(B)(iii).
§§
and
21 U.S.C.
sentencing,
court1
At
statutory mandatory minimum sen-
imprisonment
of 120 months’
and
tence
dоwn-
eight years
supervised release —a
ward variance from the Guidelines
The government
of 360 months’ to life.
sentence,
remanded
appealed
resentencing because the record did
permit
meaningfully analyze
us to
sentence.
reasonableness
Feemster,
States
435 F.3d
United
(“Feemster
”).
(8th Cir.2006)
I On re-
mand,
again
the district court
sentenced
imprisonment
months’
Shaw,
Charles A.
United
of Missouri.
1. The Honorable
Judge
District
District
Eastern
but
ing,
second-degree burglary.
buttressed
rationale for
sen-
Addi-
appealed,
tionally,
tence.
government again
following
Feemster had the
adult
(1)
and we
found that
district court abused
convictions and
at age
sentences:
United,
Feemster,
(crack
its discretion.
possession
of a controlled substance
(8th Cir.2007)
cocaine)
588-90
marijuana,
possession
re-
”).
(“Feemster
Supreme
II
Court va-
sulting in a suspended
proba-
sentence and
judgment
cated the
(2)
remanded
us
tion, which
successfully completed;
he
light
for further consideration in
of Gall v.
first-degree burglary, resulting
U.S.
in a sentence of
years’ imprisonment
six
*4
(2007).
on 65
he
which
Background
I.
conditionally
was twice
released and both
times
conditional release was revoked
16, 2004,
On March
Feemster sold 11.2
(submitting
positive
a
urine test for mari-
grams of crack cocaine to an undercover
(3)
juana);
23,
age
first-degree robbery
at
(DEA)
Drug Enforcement Administration
(involving
handgun
carried
his co-
Then,
25, 2004,
agent.
on March
he sold
defendant), resulting
ten-year
in a
sus-
grams
6.8
crack
cocaine to the same
pended sentence
probation,
and
which he
Thereafter,
officer.
grand jury charged
violated;
(4)
24, possession
and
at age
knowingly
Feemster with two counts of
marijuana,
60-day
in a
resulting
suspend-
and intentionally
crack
distributing
co-
one-year
ed sentence and
unsupervised
caine,
841(a)(1)
in violation of 21
§§
U.S.C.
(b)(l)(B)(iii).2
trial,
and
gov-
Prior to
the
an
ernment
pursuant
filed
information
to
enhancements,
Without
Feemster’s base
that,
giving
U.S.C.
notice
if
offense
level was
see U.S.S.G.
convicted, Feemster faced a
man-
ten-year
2D1.1(c)(7),
history
and his criminal
cat-
datory minimum sentence because of his
IV,
egory
resulting
in аn advisory
prior
for a felony drug
conviction
offense.
Guidelines
to
of 92
im-
months’
trial,
jury
Feemster went to
and the
con- prisonment.
prior
conviction
victed him on both counts.
felony drug
for a
triggered
offense
a statu-
Prior
sentencing,
the United States
tory minimum
of 120
sentence
months’ im-
Probation
prepared
Office
presentence
prisonment.
See
U.S.C.
(PSR)
investigation report
set
841(b)(1)(B),
Also,
§§
forth
Feemster’s criminal history. According to adult status at
he
the time
the
committed
undisputed
PSR,3
the
sections of the
prior
instant offense and his
convictions
the following juvenile
had
con-
for two crimes of
first-degree
violence—
(1)
age
victions:
at
attempted stealing;
burglary
first-degree
and
robbery—
(2)
age
making a
report;
false bomb
prompted
office to recom-
(3)
and
at age
stealing, attempted
application
steal- mend
of the career offender
Although
originally charged
Feemster was
object
3. Because Feemster
did
to the
counts,
specific
allegations,
accept
with three
PSR’s
factual
district court dismissed
count,
as true
facts set
in the
forth
PSR. Seе
one
on a
based
March
2004 sale of
Jenners,
United States v.
grams
5.7
of crack cocaine to an undercover
(8th Cir.2007) (stating
although
PSR
''[a]
agent,
government’s
DEA
motion to
evidence,”
permitted
is not
protect
confidentiality
of one
its infor-
accept
PSR
facts in the
as true unless
mants.
objection
specific
the defendant files an
allegations).
factual
brought
Feemster was
before the
PSR. See U.S.S.G.
in the
enhancement
4Bl.l(a)
(“A
term
supervised
of- court
to correct
is a career
defendant
(1)
statutory
that it
mini-
release so
met
was at least
if
the defendant
fender
years.
eight
hearing,
mum of
At the
the time the defen-
years old at
eighteen
deviating
court reiterated its reasons for
of con-
the instant offense
dant committed
range, explaining:
from the Guidelines
(2)
viction;
convic-
the instant offense of
felony
inquiry
that is either a crime
And I know that there was some
tion is a
offense;
a controlled substance
to Mr. Feemster’s sentence of
violence or
relative
(3)
months,
has at least
two
I
him there
the defendant
and
sentenced
considering
of еither a crime of
prior felony convictions
because
defendant’s
age
of-
current
he
age,
controlled substance
at which
violence
fense.”).
including
enhance-
prior
career offender
committed the
offenses
years
at 37
when
17-16
Feemster’s offense level
offense
he was
and 17
ment set
VI,
old,
history
why
gave
I
him that
category
his criminal
that’s
range of
yielding
advisory
he received.
*5
imprisonment.
to life
360 months
government appealed,
The
and we re-
10, 2005,
to the district court for resentenc-
Feem- manded
sentencing
At
on March
concluding that “the
at this
ing,
court con-
record
requested that the district
ster
under-
permit
time does
our court to
than his Guidelines
sider a sentence lower
that,
meaningful analysis
a
of whether the
court
absent his
take
range, reminding the
violence,
is
unreasonable.”
of
he would sentence
qualifying crimes
two
1, 435
115 Feemster
F.3d at 884.
sentencing range
a
of 92 to
facing
be
The
court
imprisonment.
months’
fur-
resentencing,
At
the district court
Feemster committed
acknowledged that
developed
reasoning
sentencing
for
ther
17
at
аnd the other
of these crimes
one
imprisonment,
to 120 months’
Feemster
Additionally, the court noted
age 23.
at
stating:
had al-
Now, at the
that Mr.
was
time
Feemster
92 to
months to
ready increased from
115
sentenced!,]
he was 27. At the time
man-
by
120
virtue of the
at least
months
offense,
Now, it’s
... he was 26....
government argued
datory minimum.
a
unquestioned that Mr. Feemster was
was
30-year
sentence
youth.
they
“Youth is
say,
troubled
As
criminal his-
given
reasonable
They just
on
need
young.”
wasted
disagreed, stating:
But
tory.
getting
he started
little wisdom. When
too
is
I think this
much. 360
years
...
these
... he
points!,]
was
you’re
much
too
because
offense
old.
ten-
counting
application
on
[for
event,
In
has looked
[t]he [c]ourt
mandatory minimum] is this 16-
year
3553(a)
factors and
the time
he
drug offense
one when
year-old
was committed the de-
instant offense
years
only
He’s
was
old.
age,
was
it involved
years
fendant
one at
alleged
violence were
crimes
grams
of 18
of cocaine
the distribution
23, the
the other at
burglary, and
weapon
No
was
agent.
to federal
base
robbery.
does
present. And while
defendant
signifi-
and much of it is
have
record
The comí then sentenced Feemster
being
troubled
because of his
sentences on each
cant
concurrent 120-month
it
violent
conviction,
youth, it would seem includes
to be followed
three
count of
convictions,
made
felony
and that’s what
release. On March
supervised
years
offender,
II,
him a
and many
career
ranted
punishment.
further
Feemster
—most
of those ...
483 F.3d at
prior
Supreme
convictions occurred
588-90. The
Court
judgment
vacated the
juvenile.
when he was a
and remanded for
further
in light
consideration
of Gall.
Now,
conviction[,]
his adult
[sic]
he’s
placed
probation.
He successfully
II. Discussion
Now,
completed that.
his second adult
According
government,
to the
Feem-
conviction
the burglary
involved
of a
ster’s
procedurally
120-month sentence is
home. And his third adult conviction
unreasonable
because
district court
for robbery
degree
was
first
which in-
failed to
adequate explanation
However,
a weapon.
volved
his codefen-
for the chosen
sentence.
the alterna-
dant,
Goddard,
Dean
who had the weap-
tive,
arguеs that Feem-
on and defendant did not. And his
substantively
ster’s sentence is
unreason-
fourth and final conviction was a misde-
able for a
who
lengthy
defendant
has a
meanor
possession marijuana.
He
history
serious criminal
and who has not
placed
on probation. He successful-
prior
shown that
sentences have deterred
ly completed
him from
activity.
criminal
So to me I think this 360 months to life
In response,
argues
that the
is excessive.
I
it pretty
think
much
Supreme Court’s decisions in Gall and
life,
away
takes
Mr. Feemster’s
so ...
Kimbrough
v. United
U.S.
light
factors,
of these
so I
(2007),
S.Ct.
“When we review the sentences, including from whether inside or outside the the extent variance range.” ‘a the Id. If the defen range, apply deferential Guidelines Guidelines ” United dant’s sentence is within the Guidelines abuse-of-discretion standard.’ “may, but not re Hayes, range, [are] then we 591). Cir.2008) to, Gall, (quoting quired apply presumption at a of reason S.Ct. permitted But we are first the district ableness.” Id. not We “must ensure apply of unreasonable significant procedural presumption to a court committed no if is at 597. ness the sentence outside the Guide S.Ct. “Procedur error.” (or Instead, we range. “may lines Id. consid “failing includes to calculate al error” deviation, must the er the extent of the but improperly calculating) Guidelines the give as due to district court’s treating mandato- deference range, the Guidelines 3553(a) factors, a appropriate particular decision that the on a fence is case whole, justify justifications.” the extent of the variance.” sufficient Id. at 594. “ require ‘extraordinary’ may parameters Id. We of these unusual devia- justify certainly surveyed to outside circumstances sentence tions have not been prohibited mapped.4 the Guidelines” are rigid “the mathematical formula use of Here, the government argues that departure that uses of a percentage court procedural district committed error determining strength for standard be government and should reversed. The justifications required specific for solely on allegation relies that the court sentence.” Id. at 595. Just because we “adequate explanation” failed an “might reasonably have concluded that a sentence, imposing a 120-month but it in- appropriate different sentence was is specifically any argument disclaims justify sufficient to reversal of the district court considered irrelevant fac- court.” at 597. Id. in fashioning Appel- tors the sentence. Post-GaZZ,appellate begun Supplemental courts have lant’s Brief 12. Ac- way legal cording to make their new government, across the factors such as landscape of abuse-of-discretion “Feemster’s at the time of the instant circuits, offense, review. Like our sister we are a weapon absence of in the endeavoring offense, to determine what constitutes instant allegedly and Feemster’s abuse of discretion court in completion’ district ‘successful ... of the terms of sentencing a defendant prior outside some of offenses” range. The Court in Gall ex- “appear are factors that to fall within the pressly prohibited appellate extremely 3553(a), courts from broad ambit of Section employing “rigid mathematical formulas” which includes ‘the nature and circum- circumstances” “extraordinary and an test stances of the history offense and the ” reviewing when the reasonableness of a characteristics the defendant.’ Id. at 12 3553(a)(1)). sentence. Id. 595. But the Court also (quoting 18 U.S.C. Further- expressly permitted appellate more, courts concedes that “be- extent “consider the of the deviation” from cause the various consider- Id. at Additionally, Guidelines. set forth in ations Section overlap required the Court that a to a degree, considerable fact that “give already serious consideration to the extent of taken into computa- account *8 from departure the Guidelines and advisory tion of Sentencing defendant’s must explain may [its] conclusion that an un- range ... also be relevant usually 3553(a).” lenient or an unusually harsh sen- to other subsections of Section hand, recently expressed 4. The Circuit Third propor- On one told we are that tionality frustration with the current between the extent of a re- variance justification extent of the gime, for the stating: pretend "We do not that the required, variance is not 128 S.Ct. at much, foregoing any, if observations (rejecting approach per- an "that uses Indeed, guidance. we give find it difficult to centage departure of a as the standard for endeavoring direction when we are ourselves determining strength justifica- reviewing to our understand role in sentences required specific sentence”), tions while, for a Rita, Booker, Kimbrough.” after hand, on the other are advised Levinson, major supported that a variance “should be (3d Cir.2008). gave The court then an exam- significant justification a more than a ple messages of the "mixed that can be drawn one,” minor id. at 597. Gall,” explaining: Id. at 197 n. 6. adequate of an ex- for want result, reasonable government As at 12-13. Id. planation. could court that the district acknowledges weap- of a 17-18.5 the absence Id. at “consider
properly
under
of the offense
circumstance
on as a
disagree. The record reflects
We.
3553(a)(1),
of a
if the absеnce
even
Section
our
provided,
as
that
the district
the defendant’s Guide-
“insight
also affects
weapon
requires,
substantial
precedent
reasons for its determination.”
at 13.
into the
range.” Id.
lines
that,
Kane,
(finding
apart
the Guidelines The district but ac- the defendant’s conduct eye un- procedurally ... life is excessive” (crack cocaine) that, pos- al- controlled substance Additionally, *9 argu- explanation, this district court’s of the "[¡Information adjust- regarding prоbation court's challenge the district seems to ment because the ment is unavailable Nevertheless, findings. we find that factual ¶ unsupervised.” Although 62 does not was findings that Feemster suc- court’s the district successfully definitively state that Feemster completed probation on his first cessfully completed probation, the this and final and his “fourth adult conviction Thus, presented evidence that he did not. no possession "misdemeanor for conviction” for permitted the was to draw the district court supported the PSR. marijuana” are successfully complet- that Feemster inference that Feemster Paragraph 46 of the PSR states ed his possession of a placed probation for on 464 and “vio- III. Conclusion Feemster’s “record”
knowledged United States felony lent convictions.” Cf. the Accordingly, judgment we affirm (8th Cir.2008) 933, 937 Shy, v. 538 F.3d the district court. that, in who sentencing defendant (holding RILEY, concurring. pseu- Judge, to Circuit pleaded guilty possession knowledge that it would doephedrine reaching of substantive Before the issue methamphetamine, be used to manufacture reasonableness, first wе “must ensure the ex- court failed to the district significant pro- court district committed no sentence because it plain the defendant’s error.” Gall v. cedural that not the “critical fact” did discuss 169 L.Ed.2d U.S. possessed methamphetamine defendant (2007). government’s If not for arrested, when which undermined she was position abandonment of its the dis- defendant the court’s conclusion gave significant weight trict to im- court who com- longer person was “no same and irrelevant in proper fashioning factors years two and was mitted the crime earlier sentence, I would conclude the cleaning up avoiding capable of her act significant proce- district court committed future”). Instead, criminal conduct dural error. court, acting its discre- within majority’s opinion leaves intact 3553(a) factors, tion and applying precedent court’s that an abuse of discre- concluding
was not unreasonable
“gives
tion occurs when a district court
justifications supported
three enunciated
significant weight
improper
to an
or irrele-
imprisonment.
sentence of 120 mоnths’
Majority Opinion
vant factor.”
See
Kane,
(quoting United States v.
552 F.3d
regard
With
to substantive rea
(8th Cir.2009)).
748, 752
See also United
3553(a),
under
agree
sonableness
Haack,
403 F.3d
with the D.C. Circuit
that because the Cir.2005).
“[[logi-
“Relevant”
as
is defined
advisory only,
are now
“sub
Guidelines
cally
tending
prove
connected and
or
appellate
sentencing
stantive
review in
issue;
disprove
having appreci-
matter
cases is narrow and deferential. As the
is,
probative
rationally
able
value—that
case law in the courts of
since
appeals
Gall
tending
persuade
probabil-
people
demonstrates,
it will be the unusual case
ity
possibility
alleged
of some
fact.”
when we
sen
reverse
district court
(8th ed.2004).
Law Dictionary
Black’s
within, above,
tence—whether
or below the
Rules of
relevancy
Evidence define
as
applicable
substan
“tendency
to make the existence of
—as
tively
unreasonable.” United
...
fact that is of consequence
prob-
more
(D.C.Cir.
Gardellini,
probable.”
less
able or
Fed.R.Evid. 401.
2008). Here,
justifica
the district court’s
explaining its reasons
the dramatic
imposing
tions for
120-month sentence
ease,
downward variance in Feemster’s
precisely
on
the kind of
“rest[ ]
defendant-
gave
significant weight
specific
(1)
determinations that are within the
three factors:
at the
courts,
special
competence
of the instant
and sentencing,
time
offense
(2)
the Supreme
repeatedly empha
Court has
fact
carry
Feemster did not
a weap-
result,
(3)
sized.”
at 1095.
we can
crimes,
Id.
As
he
when
committed his
say
district court abused its
completion
Feemster’s successful
of two
*10
sentencing
discretion in
Feemster
to 120
terms
These three factors
imprisonment.
months’
appreciable probative
had no
value and
Feemster,
any particular consequence to
States v.
531 F.3d
were not of
United
(8th Cir.2008), reh’g granted,
619-20
vacat-
sentencing
specifically to
Feemster’s
(8th
1, 2008) (Feemster III).
ed
Cir. Oct.
variance,
court’s substantial
district
is, they were not relevant.
concedes Feem-
now
age
part
“history
is
and char-
ster’s
panel opinion,
In
reasoned the
we
3553(a)(1),
under 18
acteristics”
U.S.C.
basing
district court’s
the downward vari-
therefore,
аnd,
properly
the district court
substantially
at
age
ance
on Feemster’s
twenty-something
considered Feemster’s
(26)
the time of the instant offense
fashioning
in
sentence.
age
Feemster’s
(27)6
was an
of discre-
abuse
However,
part
the fact
age
is
tion because:
“history and
of his
characteristics” does
(includ-
provide, “[a]ge
The Guidelines
necessarily mean
age
not
is a
in
ing youth)
ordinarily
is
relevant
“characteristic”
is relevant for sen-
determining
departure
tencing purposes
potentially
sup-
whether a
is
port
5H1.1,
significant
variance. Feemster’s
warranted.” U.S.S.G.
As
p.s.
distinguish
in
age
does not
him
mean-
Feemster,
noted
States v.
[United
fact,
way from other
ingful
defendants.
(8th Cir.2007) (Feemster
F.3d 583
34.1 % of all males arrested in the United
II) ], “[although the
are no
Guidelines
ages
in 2007
of 20
were between
mandatory,
policy
longer
narrowly,
29.7 In
more
even
ac-
still must
taken into
statements
be
ages
males between
of 25 and 29 made
fashioning
sen-
count
reasonable
up
largest demographic group
es-—an
II,
at 590
tence.” Feemster
483 F.3d
all
timated 17.24%—of
state and federal
3553(a)(5)).
A vari-
(citing 18 U.S.C.
prisoners in the
Feem-
United States.8
resulting
“unusually
in an
lenient”
ance
age
ster’s
“characteristic[ ]
largely
should not
be based
provides
no more
a basis for a
defendant”
twenty-something age of the defen-
variance than other irrelevant
downward
dant,
a factor
youth
because relative
is
sentencing characteristics such as Feem-
many
it
applies
defendants and
(5' 9"),
(175 lbs),
height
eye
weight
ster’s
uniformly
unlikely
is
district courts will
(black).
(brown), or hair color
As
color
the view that
in their
adopt
defendants
panel
explained
opinion,
dra-
“[a]
deserve
mid-twenties
more lenient sen-
for Feemster
matic downward variance
middle-aged
tences than
or older defen-
(26
27)
youth
relative
based on his
(citing
dants. See id.
manifestly
because
would
inappropriate
it
Cir.2006)
Plaza,
(8th
sentencing dispari-
in unwarranted
result
Maloney, 466
(quoting United States v.
similarly
among
ties
situated defendants.”
(8th Cir.2006))).
III,
F.3d
bative value” and is precedent our circuit ... “overrule^] irrelevant, government’s absent con- grounds justify absence of ‘[t]he fur- cession. punishment ground ther is not a ”9 III, downward variance.’ Feemster rehearing government On acknowl- II, at 620 (citing F.3d edges the district court did not commit 589). procedural by error considering the ab- offense, weapon sence of a in the instant or Finally, government’s but for the con- fact Feemster’s co-defendant carried a cession, I would conclude Feemster’s
weapon
during
prior
robbery while
completion
probation,
of two terms of
on
Feemster did not. Thе
now balance, was not a significantly relevant
concedes the district court properly con-
consideration or a proper ground for a
sidered the
of a weapon
part
absence
of downward variance in this case when
the “nature and circumstances of the of-
compared to
history
of re-
3553(a)(1).
fense” under
18 U.S.C.
peated probation and conditional release
However,
carry
the fact Feemster did not
revocations, and numerous citations for
a weapon during the instant offense is not
prison conduct violations.10 See Feemster
“circumstance[ ]
offense” that is
II,
also
(explaining
467
review, in which we re-
majority’s
proportionality
conclusion
with the
agree
justifica-
explained
judge’s
that
the district
quired
the district
that
defer-
light
guideline
In
the
the chosen sentеnce.
tions for a sentence outside
Gall,
in
com-
announced
standard
range
“proportional
ential
be
to the extent of the
concessions
government’s
with the
bined
advisory range
the
and
difference between
view,
agree
I also
with
majority’s
imposed.”
the sentence
United States v.
Feemster’s sen-
majority’s conclusion
(in-
(8th Cir.2006)
Gall,
884,
889
substantively
unreasonable.
tence was
omitted), rev’d,
quotations
ternal
552 U.S.
(2007).
586,
L.Ed.2d 445
128 S.Ct.
COLLOTON,
concurring.
Judge,
Circuit
Gall, however,
Supreme
In
Court
Congress
what
portends
Our decision
review of sen-
proportionality
held that
in
disparity
once considered unwarranted
3553(a)
§
tences
under
was con-
criminal defen-
sentencing
of federal
trary
interpretation
to Booker and its
of
dants,
the result follows
agree
but I
Gall, 128
at
the Sixth Amendment.
S.Ct.
Supreme
Court’s decisions
from
Presumably
594.
to avoid Sixth Amend-
Booker,
220, 125
543 U.S.
United States
ment violations that would result
(2005),
L.Ed.2d 621
Gall
S.Ct.
review,
appellate
see id. at
rigorous
more
552 U.S.
v. United
(Scalia, J., concurring), the Court em-
(2007). Therefore,
586,
Substantive reasonableness review en-
dures, so there must be at least a “shocks mum sentence. Other reasonable federal
sort of
conscience”
constraint on dis-
judges will
that
Sentencing
believe
judges,
trict
but this case is not in that Commission
policy
was correct to declare a
States,
category.
Rita v. United
551
age,
youth,
Cf.
including
ordinarily
is
338, 365,
2456,
U.S.
168 L.Ed.2d
5H1.1,
sentencing,
§
relevant to
USSG
and
(2007) (Stevens, J.,
(reject-
203
concurring)
a relatively youthful drug
trafficking
ing “purely procedural
contrary
review” as
history
offender with a serious criminal
“[ajfter
Booker,
all,
because
a district
should be sentenced at or near the statuto
judge
gives
who
harsh
Yan-
sentences to
ry
in
maximum aсcordance with the career
kees fans and lenient sentences to Red Sox
guideline.
offender
See United States v.
fans
acting reasonably
would not be
even if
Jackson,
(7th
428,
Fed.Appx.
300
429-31
procedural rulings
her
impeccable”).
were
Cir.2008) (affirming sentence within advi
We now must
range
defer
the wide
sory range for career offender who com
personal sentencing philosophies that are
mitted offense of conviction at age twenty-
reflected
the ranks
judges,
of district
two);
States,
Marion v. United
No. 04-94-
and
past,
even
Feemster’s checkered
P-H,
(D.Me.
2008 WL
at *5-8
a
years’ imprisonment
term of ten
for his
2008)
Oct.15,
(recounting district court’s
drug
most recent
trafficking is not so le-
vary
refusal to
downward in career offend
nient that it
beyond
must be declared
er case based on
argument
counsel’s
realm of what a
judge
reasonable federal
worth,
young
“this is a
man that has
he
3553(a).
might select under
I therefore
potential
rehabilitation;
has
he is ex
agree that
judgment
court’s
tremely young”
product
is a
“[h]e
must be
affirmed.
large degree
adolescence”);
of troubled
see
consequence
One
of these recent devel-
994(h).
also 28 U.S.C.
Reasonable
opments
likely
is
to be substantial sentenc-
can
minds
differ. The
punish
offender’s
ing disparity in federal criminal cases.
inment
these career
rang
offender
judges
District
are supposed to “take ac-
cases—
ing from
statutory
minimum term to a
count
sentencing practices
in other
courts,”
sentence at or
statutory
near the
maxi
Kimbrough, 128
S.Ct.
but
depend
there is now no
mum—will
substantially
basis
law to declare that
on the
one
practice
preferred
judicial
over
luck of the
draw. See United
States,
Kimbrough
(internal
v. United
experience.”
552 U.S.
quotation
Id. at 575
(2007),
128 S.Ct
169 L.Ed.2d
omitted).
Supreme
Court has reserved
-
-,
Spears v. United
U.S.
decision on whether "closer review” is war-
(2009)
S.Ct.
(per
L.Ed.2d 596
cu-
sentencing judge
ranted
when
varies from
riam),
judges
also settled that district
need
guidelines
guide-
other than the crack cocaine
give
weight
guide-
no
to the crack cocaine
solely
judge’s
lines "based
on the
view that
lines,
they
embody
policy
because
neither
properly
fails
to reflect
by Congress,
dеcision directed
Kimbrough,
considerations even in a mine-run
570-73,
exemplify
128 S.Ct. at
nor
the Sen-
case,”
(internal
omitted),
quotation
id.
tencing Commission's "exercise of its charac-
question
directly presented
is not
in this
guide-
teristic institutional role” to formulate
case.
light
"empirical
lines in
data and national
(1983) (internal
98-225, at 41
Maloney,
S.Rep.
669-70
No.
omitted),
reprinted
footnotes
Cir.2006).1
U.S.C.C.A.N.
1980s,
majority in
bipartisan
In the
found that much
Committee
state of affairs
Congress viewed similar
in sentencing
“directly
variation
at-
unacceptable,
opted
to remove a
judges
tributable to the fact that some
degree of discretion from sen-
substantial
give generally tough
generally
tend to
*14
judges in the interest of uniformi-
tencing
sentences,”
44,
lenient
at
id.
and that
Judiciary
ex-
ty. The Senate
Committee
“variation
offense and offender charac-
way:
plained
problem
the
teristics does not account for
most
45;
disparity.”
at
Id.
Because the Com-
comprehensive
The absence of a
Federal
mittee believed that “[sjentencing dispari-
statutory
sentencing
guidance
law and of
justified by
ties that are not
differences
appropriate
on how to select the
sen-
among offenses or offenders are unfair
option
dispari-
creates inevitable
tencing
id.,
public,”
both
offenders and to the
it
ty
impose
in the sentences which courts
“[fjederal
recommended
statutes
This
similarly
situated defendants.
guidance
should
clear
to Federal
by
handed down
occurs
sentences
judges
among
on how to select from
by
same
and
judges
appropriate
available alternatives an
sen-
judges from different districts and cir-
to impose upon
particular
tence
defen-
system.
judge
in the Federal
One
cuits
dants before them.” Id. at 49. These
relatively long prison
may impose a
observations led to the Sentencing Reform
incapacitate
or
term to rehabilitate
the mandatory guidelines.
Act of 1984 and
judge,
Another
under similar
offender.
Thoughtful critics of
Sentencing
Re-
circumstances, may
the defen-
sentence
mandatory
form Act have referred to the
simply
prison
dant to a shorter
term
to guidelines
experiment,” e.cj.,
as a “failed
him,
mаy
punish
judge
opt
or the
for the
Canania,
764,
v.
United States
532 F.3d
(8th Cir.2008)
in or-
imposition
of a term of
J.,
(Bright,
concurring),
778
fact
der to rehabilitate him.
but
remains
the elected
(N.D.Iowa 2009).
Kimbrough
Gully,
F.Supp.2d
Early
after
and
619
633
results
Gall
aggravated
disparities
are
show
judges
apply
Some district
decline
the full
by policy disagreements among
further
sen
penalties
by
measure of
recommended
tencing judges
best re
about what sentence
congressionally
advisory guideline
directed
in mine-run
flects the
factors
cases.
possession
pornography,
of child
see Unit
example,
judges
agree
For
some district
now
Stern,
945,
F.Supp.2d
ed States v.
590
960-61
advisory
guidelines
with the
crack cocaine
Baird,
(N.D.Ohio 2008); United States v.
580
(which apply
crack-powder
ranging
ratio
889,
(D.Neb.2008);
F.Supp.2d
894-95
United
80-to-l),
apply
25-to-l
and
and
between
739,
Shipley,
F.Supp.2d
744
States v.
560
3553(a).
them under
See United States v.
2008),
(S.D.Iowa
judges
while other
believe
08-3165,
1228264,
Haigler,
WL
No.
2009
rejection
guideline’s policy
under
6,
2009);
May
*2
Cir.
United States v.
pornography
child
states
seriousness of
Gibbons,
40,
(1st Cir.2009).
44
Oth
553
promote respect
offenses and fails to
for law
judges vary
advisory guidelines
er
frоm the
provide just punishment.
and to
See United
policy disagreement,
apply
on a
based
Fiorella,
1057,
F.Supp.2d
States v.
1074-
20-to-l,
crack-powder
ratio of
see
(N.D.Iowa 2009).
Sentencing
Com
Dozier,
108CR08-02,
v.
No. S
2009 WL
presumably
catalog
mission
will
these
1286486,
8, 2009),
(S.D.N.Y. May
at *6
or 10-
by the
Edwards,
other variations
for consideration
1,
No. 04-
see United
to—
Booker,
CR-1090-5,
(N.D.Ill.
Congress.
courts and
See
543 U.S.
at *3
2009 WL
1-to-1,
2009),
v.
I that the dis- significant procedur- trict cation and concern at Fur- sentencing. court committed ther, by substantially basing al error the district court’s articulation that unusually sentence on three irrele- lenient “successfully completed ... youth, ab- insignificant vant and probation” justification huge as for this factors — weapon, completion sence of and successful disingenuous deviation is both and coun- repeated and redundant accepts ter-factual. That this court such a use of these factors does not justification difficult to is understand. We explain great nor variance in support sixty-five ignore separate con- And, willingly I credit this case. do so during prior duct violations received (which government’s “concessions” is a imprisonment, two conditional release rev- misnomer, it, I government’s as see for the ocations, probation and at least one argument) mere articulation of its as a And, add, certainly might was violated. I barrier in this case. to reversal considering the existence of an unsu- probation pervised comple- directives leave no doubt as “successful
Gall’s
in-
tion”
“meaningful appellate review” remains
when there is no clear indication
change
govern-
sentencing, pre-Guidelines,
14. Without substantive
in the
and the
of at least
Guidelines,
ing
felons,
statutes and the
our current
"disparity princi-
500 federal
that the
180-degree
review is a
turnaround from our
ple,"
by
advanced
advocates as the founda-
days
micro-management.
of near
United
underlying
guideline
tion and bedrock
federal
Robinson,
tion, obligated existing under this court the record on its own.
precedent to review it, almost I
As see “successfully completed” certainly not America, UNITED STATES of support such deviation. such as to Appellee, however, court, justifi- framed its way to receive a free cation such
pass appeal. Ray GAMBLE, Appellant. Michael though the district bolstered Even No. 08-2800. justification departure for the men- Appeals, States Court of tioning Feemstеr’s “record” and “violent convictions,” Eighth felony repeated use of Feem- Circuit. driving remained the obvious ster’s April 2009. Submitted: fashioning
force behind the of this sen- July Filed: tence. should not allow such circumlo- We By guide appellate cution to our review. Rehearing Rehearing En Banc giving this sort of action free rein without Aug. Denied review, sentencing meaningful courts upon mention a few words based
requirements have obtained license for
capriciousness. Merely acknowledging a
consideration of factors is not
enough. Ante 463-64. The court does seriously attempt analyze
not the dis- end,
trict reasoning court’s does how address justifications “sufficiently”
court’s three
support resulting 240-month deviation. vaguely at 594. S.Ct. While justifications
plausible, barely, but these
do not convincing explanation support
needed to the deviation made
here. Review for abuse of discretion must
be more than a review of thin recitations
already meaningfully considered in Guide-
line calculations. bottom,
At I am left with a “definite and
firm conviction” that this sentence is out-
side the realm of reasonableness dictated the case. United States v.
by the facts (9th Cir.2009)
Autery,
(Tashima, J., dissenting); United States v. notes marijuana. Paragraph states though court "found that Feem- session of successfully completed two terms any proba- had ster not reflect records do "[c]ourt does not reveal probation, the record to Feemster’s fourth con- violations.” As tion successfully completed term.” either ¶ marijuana, 59 of possession of viction for government has con- While the Id. “placed proba- he was the PSR states that adequacy only challenging the it is ceded that Paragraph year.” 62 states tion for one