UNITED STATES of America, Plaintiff-Appellee, v. Dejuan Martez COVINGTON, Defendant-Appellant.
No. 08-2086.
United States Court of Appeals, Tenth Circuit.
April 29, 2009.
698
PAUL J. KELLY, JR., Circuit Judge.
Defendant-Appellant Dejuan Martez Covington pled guilty to one count of knowingly and intentionally distributing 5 or more grams of cocaine base (crack cocaine) in violation of
Mr. Covington filed a petition for a writ of certiorari, and the Supreme Court granted the writ and vacated our judgment for further consideration of the case in light of Nelson v. United States, — U.S. —, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009). Covington v. United States, — U.S. —, 129 S.Ct. 1612, 173 L.Ed.2d 990 (2009) (mem.). Upon consideration thereof, the case is REMANDED to the district court to vacate its judgment and resentence Mr. Covington, treating the Sentencing Guidelines as advisory and not affording any presumption of reasonableness to the Guidelines range.
UNITED STATES of America, Plaintiff-Appellee, v. Camille Suzanne LENTE, Defendant-Appellant.
No. 07-2035.
United States Court of Appeals, Tenth Circuit.
April 29, 2009.
David N. Williams, Asst. U.S. Attorney, Office of the United States Attorney District of New Mexico, Albuquerque, NM, for Plaintiff-Appellee. Stephen P. McCue, Fed. Public Defender, Benjamin A. Gonzales, Asst. FPD, Office of the Federal Public Defender, Albuquerque, NM, for Defendant-Appellant. Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES, Circuit Judge.
PER CURIAM.
Defendant-Appellant Camille Suzanne Lente plеaded guilty to three counts of involuntary manslaughter in violation of
Judge Holmes would remand, holding that Ms. Lente‘s sentence is substantively unreasonable. Judge Hartz would remand, holding that the government breached the plea agreement.
Accordingly, we REMAND to the district court with instructions to VACATE Ms. Lente‘s sentence, and direct that Ms. Lente be resentenced by a different judge.
Judge McWILLIAMS dissents from the judgment and would affirm the sentence.
HARTZ, Circuit Judge, concurring:
In my view the government breached its plea agreement with Ms. Lente. The government cannot stipulate in the plea agreement that a defendant is entitled to a guidelines reduction in offense level for acceptance of responsibility and then endorse a presentence-report recommendation that the court vary upward because of the defendant‘s failure to accept responsibility. See United States v. Cachucha, 484 F.3d 1266, 1270 (10th Cir.2007). Although this breach by the government does not implicate the sentencing judge in any wrongdoing, we have recognized that the only relief that we can grant is resentencing by another judge. See id. at 1271 (“We intend no criticism of the district judge by this action, and none should be inferred.” (internal quotation marks omitted)).
HOLMES, Circuit Judge, concurring:
While I concur in the disposition, I write separately to explain why I believe Ms. Lente‘s sentence is substantively unreasonable.1
I. BACKGROUND
On the night of December 2, 2005, after consuming between 13 and 19 beers, Ms. Lente drove her mother‘s Chevrolet Suburban on the Isleta Indian Reservation, which is located in New Mexico. At approximately 10:40 p.m., her Suburban, which was northbound, crossed the center line of the highway into the southbound traffic lane, causing a head-on collision with a Ford Ranger truck, driven by Jessica Murillo. Ms. Lente‘s passenger in the Suburban, Anthony Tewahaftewa, and the two passengers in the Ford Ranger, Andres Murillo, and Joshua Romero, were declared dead at the scene. Ms. Murillo survived, but sustained fractures to her right femur, right shoulder, and right an
Two hours after the accident, a blood sample was taken from Ms. Lente. Ms. Lente‘s blood alcohol level (“BAL“) was 0.21—over two times the New Mexico legal limit of .08—and marijuana was present in her system.2 In the following days, Ms. Lente was interviewed twice at the hоspital. She admitted to drinking heavily before the accident, consuming between 13 and 19 beers.3 However, Ms. Lente blamed her passenger, Mr. Tewahaftewa, for the collision, claiming that he pushed the steering wheel into oncoming traffic. An accident reconstruction report discredited this account; the collision was not at a pronounced angle, which it would have been if the passenger suddenly had caused the vehicle to swerve.
Ms. Lente was charged with three counts of involuntary manslaughter in violation of
Ms. Lente entered into a plea agreement, pleading guilty to all four counts in the indictment. In return, the government stipulated that Ms. Lente had accepted responsibility and was therefore entitled to a three-level reduction in her base offense level under the Sentencing Guidelines.
The Presentence Report (“PSR“) computed an advisory Guidelines range of 46 to 57 months.5 For each of the three involuntary manslaughter convictions, the PSR assigned a base offense level of 22 under
The Guidelines specific offense characteristics take into account the seriousness of the injuries suffered by an assault victim; specifically, additional offense levels are assigned to reflect more serious injuries. Operating with reference to the inju
The Guidelines grouping rules, which must be referenced when a defendant is convicted of multiple counts, expressly have made the policy judgment to exclude offenses under Chapter Two of Part A of the Guidelines, which covers Ms. Lente‘s crimes, from a grouping process that relates to aggregate harm and to treat such offenses as separate groups. See
Using her highest total offense level of 22 as the foundation for imposing this additional increment as the Guidelines dictate, the PSR elevated Ms. Lente‘s offense level by four, resulting in a combined offense level of 26. The PSR computed a three-level reduction for acceptance of responsibility, resulting in a total offense level of 23. As discussed further below, although Ms. Lente had several tribal convictions, none yielded criminal history points under the Guidelines. Accordingly, the PSR placed Ms. Lente in a criminal history Category I. With her total offense level of 23, Ms. Lente‘s Guidelines range was thus 46 to 57 months.
The PSR found no grounds for a departure. Specifically, it stated: “After assessing the defendant‘s criminal history and social history, she does not appear to have any circumstances that would take her away from the heartland of cases of similarly situated defendants.” PSR, supra, ¶ 101 at 33. The PSR did, however, recommend an upward variance. A Guidelines sentence, it stated, would not reflect the seriousness of Ms. Lente‘s crimes, provide just punishment, promote respect for the law, or deter Ms. Lente from committing further criminal acts.
In a pre-sentencing motion for an upward departure or an upward variance, the government stated, “the United States concurs with all [of the PSR‘s] recommendations and would urge the Court to adopt these as grounds for departure and or a variance from the Guidelines.” R., Vol. I, Doc. 34, at 9 (United States Mot. for Upward Departure Pursuant to
At sentencing, the district court considered the factors enumerated in
The defendant admitted to consuming large amounts of alcohol prior to causing a head-on collision that left three people dead and one person seriously injured. A blood sample drawn from the defendant two hours after the accident revealed her blood alcohol level to be .21 percent. The defendant also has five tribal court convictions and three additional arrests, most of which involved the excessive use of alcohol and violence.
Furthermore, the defendant has never been licensed to drive a vehicle in this state; therefore, intoxicated or not, she should not have been operating a motor vehicle.
The Edwina and Charles Salazar and Bruce Murillo families were severely impacted by this crime. Not only did they lose their 12-year-old son, but their 18-year-old daughter was severely injured.
The defendant knowingly risked the lives of all other citizens on the roadways. It is also noted the defendant did not accept full responsibility for her actions. She attempted to shift some of the blame to her passenger by reporting he tried to grab the steering wheel while they were traveling. The accident reconstruction report stated there was no evidence to suggest that this happened.
Pursuant to
18 United States Code Section 3553(a)(2) , the Court finds that a guideline sentence of 46 to 57 months would not reflect the seriousness of the offense, it would not promote respect for the law, and it would not provide a just punishment for this offense.In this district, defendants having committed similar crimes, like the illegal reentry of an aggravated felon or drug offenses, frequently receive sentences in similar ranges. In this case, the defendant is directly responsible for killing three people and injuring another.
Furthermore, the Court finds the guideline sentence inadequate to deter Camille Lente from committing further crimes. This Court notes the defendant has been on probation five times and still continues to abuse alcohol and break the laws of this country.
The Court also notes defendant is in need of vocational and educational training programs afforded by the Bureau of Prisons, given she has virtually no marketable job skills.
Given the factors noted, and when taken in combination, the Court concludes that the guideline imprisonment range in this case is not sufficient to satisfy the purposes of sentencing and does not provide a reasonable sentence in this matter.
R., Vol. III, Tr. at 42-44 (Sentencing Hearing, dated Dec. 14, 2006). The district court then imposed consecutive 72-month sentences for the three counts of involuntary manslaughter, which was the maximum sentence Ms. Lente could re
On appeal, Ms. Lente raises three issues. First, she argues that the length of her sentence is substantively unreasonable. Second, because her plea agreement required the government to support a three-level reduction for acceptance of responsibility, she contends that the government breached its plea agreement when it recommended an upward variance partly based upon her failure to initially accept responsibility. Third, she argues that the district court erroneously enhanced her sentence based upon facts that were not proven beyond a reasonable doubt. I conclude that Ms. Lente‘s sentence is substantively unreasonable and should be vacated.
II. DISCUSSION
When fashioning a sentence, the district court must take into account the factors enumerated in
the nature of the offense and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, to provide adequate deterrence, to protect the public, and to provide the defendant with needed training or treatment.
United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.2006). Overarching and guiding this determination is the “parsimony principle,” which requires the district court to craft a sentence that is “‘sufficient, but not greater than necessary, to comply with the purposes’ of criminal punishment, as expressed in
On appeal, “[w]e review a federal criminal sentence for reasonableness, giving deference to the district court under ‘the familiar abuse-of-discretion standard.‘” United States v. Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007)). Our appellate review “includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir.2008). Under substantive reasonableness review, we may not employ “‘a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.‘” Id. at 807 (quoting Gall, 128 S.Ct. at 595). Nor may we “examine the weight a district court assigns to various § 3553(a) factors, and its ultimate assessment of the balance between them, as a legal conclusion to be reviewed de novo.” Id. at 808. In other words, we will not vacate a sentence merely because we “disagree[] with the District Judge‘s conclusion that consideration of the § 3553(a)
Instеad, we must “give due deference to the district court‘s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597. Substantive reasonableness review “contemplates a range, not a point,” United States v. Omole, 523 F.3d 691, 698 (7th Cir.2008) (internal quotation marks omitted), and “we will defer to the district court‘s judgment so long as it falls within the realm of these rationally available choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.2007), cert. denied, — U.S. —, 128 S.Ct. 1917, 170 L.Ed.2d 778 (2008); see also United States v. Begay, 470 F.3d 964, 975 (10th Cir.2006) (“In any given case there could be a range of reasonable sentences that includes sentences both within and outside the Guidelines range.“), rev‘d on other grounds, — U.S. —, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). A non-Guidelines sentence falls outside this range of reasonableness only when the court‘s justification is not “sufficiently compelling to support the degree of the variance.” Gall, 128 S.Ct. at 597; see also United States v. Pinson, 542 F.3d 822, 837 (10th Cir.) (noting that a sentence is substantively reasonable only when the “district court‘s proffered rationale, on aggregate, justifies the magnitude of the sentence“), cert. denied, — U.S. —, 129 S.Ct. 657, 172 L.Ed.2d 634 (2008), cert. denied, — U.S. —, 129 S.Ct. 1369, 173 L.Ed.2d 627 (2009); United States v. Cavera, 550 F.3d 180, 198 (2d Cir.2008) (en banc) (Katzmann, J., concurring) (“Courts will have to determine in individual cases the line at which reasonableness ends and arbitrariness begins, with the twin hobgoblins of widely variant sentences and overbearing circuit-court review lurking in the shadows.“), petition for cert. filed, 77 U.S.L.W. 3516 (U.S. Feb. 23, 2009) (No. 08-1081).
However, “appellate review continues to have an important role to play and must not be regarded as a rubber stamp.” Pinson, 542 F.3d at 836; see United States v. Pugh, 515 F.3d 1179, 1182-83, 1191 (11th Cir.2008) (noting that Gall‘s “directives leave no dоubt that an appellate court may still overturn a substantively unreasonable sentence, albeit only after examining it through the prism of abuse of discretion, and that appellate review has not been extinguished“); see also Cavera, 550 F.3d at 191 (“[W]e will continue to patrol the boundaries of reasonableness, while heeding the Supreme Court‘s renewed message that responsibility for sentencing is placed largely in the precincts of the district courts.“); cf. United States v. Whitehead, 559 F.3d 918, 918 (9th Cir.2009) (Gould, J., dissenting) (“The problem is simply that the desirable principle of deference to the sentencing judge, if taken too far, is transformed into an undesirable principle of no review in effect for substantive reasonableness of a sentence, contrary to what the Supreme Court declared as law.“); id. at 922 (Reinhardt, J., dissenting) (“The Supreme Court has ruled, and fairness demands, that we must conduct a serious review of the sentences imposed by district judges to ensure that they are reasonable. We abdicate our responsibility when we fail to do so—whoever the defendant may be, and whatever the crime.“).
Even after Gall, this court and our sister circuits have found sentences to be substantively unreasonable. See United States v. Friedman, 554 F.3d 1301, 1308 (10th Cir.2009) (concluding that a sentence of 57 months’ imprisonment, down from a Guidelines range of 151 to 188 months, was substantively unreasonable); Pugh, 515 F.3d at 1182-83 (finding the district court‘s sentence of five years’ probation, which was varied downward from а Guidelines range of 97 to 120 months’ imprisonment,
In this case, Ms. Lente was sentenced to 216 months’ imprisonment, which was 159 months above the high end of the Guidelines range or, stated differently, was almost four times the high end of that range.8 Because it imposed a variance that cannot be described as anything less than “major,” the district court needed to provide “significant justification” for Ms. Lente‘s sentence. See Gall, 128 S.Ct. at 597 (“We find it uncontroversial that a major [variance] should be supported by a more significant justification than a minor one.“); see also Pinson, 542 F.3d at 836-37 (noting that defendant‘s variance sentence, which was “135 months above what he would have received had he been sentenced within the applicable guidelines range,” was “unusually large, even by post-Gall standards“); Pugh, 515 F.3d at 1200-01 (noting that “[i]n the Supreme Court‘s parlance,” the district court‘s sentence that “amounted to a 97-month variance” was “undeniably ‘major‘” (quoting Gall, 128 S.Ct. at 597)); Abu Ali, 528 F.3d at 261 (“simply tak[ing] note” that a sentence amounting to a 40% downward variance was “major” (quoting Gall, 128 S.Ct. at 597)).
The court essentially gave seven reasons for the sentence: 1) Ms. Lente had a high BAL of 0.21 and, therefore, knowingly risked the lives of others on the road; 2) Ms. Lente drove without a license; 3) Ms. Lente had five Tribal Court convictions and three additional arrests—most of which involved the excessive use of alcohol and violence—and these convictions, along with her five separate probations, had failed to deter her from abusing alcohol and breaking the law; 4) Ms. Lente initially failed to accept responsibility for the accident; 5) Ms. Lente was in need of vocational and educational training; 6) Ms. Lente caused particularly severe damage to the Edwina and Charles Salazar and Bruce Murillo families; 7) at a policy level, offenders guilty of illegal reentry following conviction of an aggravated felony or a drug offense often receive sentences within Ms. Lente‘s Guidelines range, yet Ms. Lente killed three people and injured another.
As noted, Ms. Lente challenges the substantive—not procedural—reasonableness of her sentence. Accordingly, the propriety of the district court‘s reasons for imposing the upward variance arе not at issue here. See Smart, 518 F.3d at 803-04 (“We agree that if a district court bases a
After reviewing Ms. Lente‘s sentence, “giv[ing] due deference to the district court‘s decision that the § 3553(a) factors, on a whole, justif[ied] the extent of the variance,” Gall, 128 S.Ct. at 597, I conclude that her sentence is substantively unreasonable. See Friedman, 554 F.3d at 1308 (concluding that “even given the highly deferential abuse-of-discretion standard of review,” the sentence imposed by the district court was substantively unreasonable). The district court created a “sparse record” in justifying the major-variance sentence that it gave to Ms. Lente and that must necessarily “bear[] on the question” of whether that sentence is substantively reasonable. Id. at 1308 n. 10 (“We note the undeniably sparse record in this case certainly bears on the question whether Friedman‘s sentence is substantively reasonable.“). In most instances, it is difficult to determine the precise weight the court accorded to the seven reasons that it articulated. While, as noted below, the district court‘s reasons might well justify some upward variance, I simply cannot conclude on this record that they justify the major variance that Ms. Lente received. See Cavera, 550 F.3d at 201 n. 6 (Raggi, J., concurring) (“While this [substantive reasonableness] review is deferential, it nevertheless follows that a factor or justification that could support a 24-month sentence might not bear the weight of a 24-year sentence.” (emphasis added)); Omole, 523 F.3d at 700 (holding a downward variance to be substantively unreasonable, but noting that “[w]e are not saying that any below-guidelines sentence for [defendant] would have been unreasonable” (emphasis added)). I see no indication that the court fashioned a parsimonious sentence—one that is sufficient, but not greater than necessary to effectuate the statutory objectives of sentencing expressed in
First, the district court‘s finding that Ms. Lente knowingly risked the lives of others on the road certainly finds support in the evidence, given Ms. Lente‘s consumption of a large amount of alcohol on the day of the accident and her resulting BAL of 0.21. However, the record is completely devoid of evidence to indicate that Ms. Lente‘s case falls so far afield from the heartland of cases involving similar crimes to justify the district court‘s major variance—almost four times the high end of the Guidelines range.9 See Martinez-Barragan, 545 F.3d at 900 (“[H]eartland analysis is also а legitimate part of the district court‘s analysis of whether to vary from the Guidelines.“).
While obviously a BAL of 0.21 is significantly above the legal limit, the court made no finding that Ms. Lente‘s BAL was so extraordinarily high relative to most
I do not for one moment discount the seriousness of Ms. Lente‘s conduct. Finding some guidance (albeit limited) in our prior cases that have upheld Guidelines upward departures in circumstances involving motor vehicle accidents caused by intoxicated drivers,12 I do not gainsay the
For example, in the upward departure context, district courts have granted sentencing increases of a considerably more modest nature—apparently not more than twice the Guidelines range—based upon conduct that, in certain instances, was at least arguably more reckless than Ms. Lente‘s. See, e.g., Pettigrew, 468 F.3d at 641 (upholding upward departure of two offense levels for excessive recklessness, where defendant was “driving while intoxicated with a blood-alcohol level of approximately three times the legal limit and crossing the highway against traffic“); United States v. Zunie, 444 F.3d 1230, 1236 (10th Cir.2006) (upholding upward departure of two offense levels for signifi
Second, as for the district court‘s consideration of Ms. Lente‘s operation of a motor vehicle without a license as an apparent factor in its upward variance decision, the court offers us little by way of explanation to allow us to discern what weight the court assigns to the factor, and whether it can reasonably “bear the weight,” Cavera, 550 F.3d at 191. The court simply stated that Ms. Lente legally “should not have been opеrating a motor vehicle.” R., Vol. III, Tr. at 42. That laconic approach leads me, in assessing the substantive reasonableness of the sentence, to significantly discount the weight the court reasonably could have attributed to this factor. See Friedman, 554 F.3d at 1308 n. 10.13 Furthermore, I note that there was no evidence indicating that there were any aggravating circumstances associated with Ms. Lente‘s lack of a driver‘s license: for example, she did not lose her license due to alcohol-related misconduct. Accordingly, I conclude that this factor could not have reasonably contributed to any significant extent to the district court‘s decision to impose the major variance at issue here.
Third, Ms. Lente had five Tribal Court convictions and three additional arrests, most of which involved the excessive use of alcohol and violence in the nature of assaults and batteries. Although the district court does not specify the weight it attrib
Thus, Ms. Lente‘s previous criminal history and subsequent failure to reform, while relevant, do not seem to indicate “a commitment to a criminal lifestyle,” United States v. Mateo, 471 F.3d 1162, 1170 (10th Cir.2006), especially one involving unlawful conduct of a comparable level of seriousness as that giving rise to her involuntary manslaughter conviction. See, e.g., Jones, 332 F.3d at 1302 (five previous drunk driving convictions); Pettigrew, 468 F.3d at 641 (previous alcohol abuse resulted in the death of another person). Therefore, this factor could not reasonably provide a substantial foundation for the district court‘s major-variance sentence.
Fourth, while hospitalized and before she was indicted, Ms. Lente initially failed to accept full responsibility, claiming that her passenger, Mr. Tewahaftewa, pushed the steering wheel into oncoming traffic. A failure to accept responsibility certainly could be deemed by the district court tо be a relevant sentencing consideration. The court, however, did not specify the weight it attached to this factor in its upward variance analysis. However, I conclude with little difficulty that the court reasonably could have given an appreciable amount of weight to it. Nonetheless, I note that Ms. Lente ultimately did accept full responsibility for her actions. Indeed, the PSR specified that she should receive a three-level reduction to her base offense level for acceptance of responsibility and, significantly, the district court did not rebuff that recommendation and, in fact, adopted it.15 See R., Vol. II, at 1 (Statement of Reasons, dated Dec. 28, 2006) (“The court adopts the presentence investigation report without change.“). In other words, this was not an “eleventh hour attempt to accept responsibility [which would bring] into question whether [she] manifested a true remorse for [her] criminal conduct.” United States v. Ochoa-Fabian, 935 F.2d 1139, 1143 (10th Cir.1991). Thus, I conclude that the district court could not have reasonably assigned great weight in its major-variance determination to Ms. Lente‘s failure to accept full responsibility.
Fifth, I do not question that the district court could assign some weight in its vari
Sixth, the district court could reasonably attribute weight in its variance decisions to the impact that Ms. Lente‘s actions had on the victims’ families. In particular, at the sentencing hearing, family members of Andres and Jessica Murillo, Anthony Tewahaftewa, and Joshua Romero offered poignant testimony concerning the emotional pain and suffering inflicted upon them by Ms. Lente‘s conduct. Most of them implored the court to impose the harshest sentence permissible under the law on Ms. Lente. In seeking “to provide just punishment,”
Seventh, the district court apparently disagreed at a policy level with the Guidelines. The court found: “In this district, defendants having committed similar crimes, like the illegal reentry of an aggravated felon or drug offenses, frequently receive sentences in similar ranges. In this case, the defendant is directly responsible for killing three people and injuring another.” R., Vol. III, Tr. at 42-44. I conclude that, although the district court could disagree with the policy judgment of the Guidelines, the court‘s rationale cannot bear the weight of the major-variance sentence it gave to Ms. Lente.
In Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007), the Supreme Court held that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)‘s purpose, even in a mine-run case.” The Court clarified the meaning of Kimbrough in Spears v. United States, — U.S. —, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009). In Spears, the Eighth Circuit had concluded that a district court “may not categorically reject the [crack-to-powder] ratio set forth by the Guidelines,” but instead must make an “individualized, case-specific” determination. Id. at 842-43. The Spears Court disagreed. Kimbrough, the Court held, recognized “district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. at 843. The latter, the Court held, had already been established pre-Kimbrough. Id. (citing United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Instead, Kimbrough held that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”17 Id. at 843-44 (emphasis added). A contrary conclusion, the Spears Court believed, would cause district courts either to treat the crack-to-powder ratio as mandatory or to “continue to vary, masking their categorical policy disagreements as ‘individualized determinations‘—an outcome the Court labeled ‘institutionalized subterfuge.‘” Id. at 844.
Although Kimbrough arose in the crack-powder cocaine context, we have not ques
Among those that have taken a definitive position, our sister circuits appear to be uniformly in accord with this view. See Cavera, 550 F.3d at 196-97 (upholding a district court‘s variance based on its finding that the Guidelines failed to take into account “the greater need for deterrence in New York” for firearms offenses because its strict firearms laws had produced a comparatively “more profitable black market in firearms“); United States v. Tankersley, 537 F.3d 1100, 1113 (9th Cir.2008) (concluding that the district court‘s “decision to depart—based on its desire to punish terrorist activities directed at private conduct in a manner similar to how it punished terrorist activities direct [sic] at government conduct—did not render [the defendant‘s] sentence per se unreasonable“), petition for cert. filed, 77 U.S.L.W. 3517 (U.S. Mar. 2, 2009) (No. 08-1104); United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th Cir.2008) (in discussing the defendant‘s argument that the district court imposed a non-Guidelines sentence primarily because it disagreed with how “drug trafficking offenses” are defined under
The district court‘s policy disagreement in Ms. Lente‘s case, although less than pellucid, appears to reflect a belief that the Guidelines categorically under-punish involuntary mаnslaughter offenses. In the district court‘s opinion, the Guidelines improperly equate the seriousness of involuntary manslaughter, a crime that can result in multiple deaths and injuries, with aggravated-felony illegal reentry offenses and drug crimes. The district court, however, also referred to Ms. Lente and the specific circumstances of her offense (e.g., the number of deaths resulting from the accident),18 allowing for the arguable contention that the district court‘s analysis involved “an individualized determination” that the involuntary manslaughter Guidelines in the “particular case” of Ms. Lente simply yielded an excessively low sentence. See Spears, 129 S.Ct. at 843. However, we need not decide whether the district court fashioned an individualized, case-specific sentence, or whether it adopted a categorical policy disagreement with the Guidelines; either way, in light of Spears, the
When we “examine a district court‘s justification for differing from the Guidelines recommendation, our review must be informed by the ‘discrete institutional strengths’ of the Sentencing Commission and the district courts.” Cavera, 550 F.3d at 191-92 (quoting Kimbrough, 128 S.Ct. at 574). ”Kimbrough distinguishes between cases where a district court disagrees with Guidelines that were formulated based on special expertise, study, and national experience and those that were not and therefore ‘do not exemplify the Commission‘s exercise of its characteristic institutional role.‘” Id. at 192 n. 9 (quoting Kimbrough, 128 S.Ct. at 575). Kimbrough‘s analysis indicates that ordinarily district court‘s will be afforded greater leeway to engage in policy disagreements with the latter set of Guidelines, which are not the product of the Commission acting in its traditional institutional role. See Friedman, 554 F.3d at 1311 n. 13 (discussing Kimbrough‘s reasoning and noting that the Court “concluded that it did not need to definitively resolve that question” of whether a more rigorous, closer review should be applied to certain policy disagreements by sentencing courts with the Guidelines because the crack-powder cocaine Guidelines did not involve the Commission acting in its traditional institutional role); Cavera, 550 F.3d at 192 (“[I]n Kimbrough itself, the Supreme Court found that no ‘closer review’ was warranted where a district court based its sentence on a policy disagreement with the 100-to-1 crack cocaine vs. powder cocaine weight ratio, because the crack cocaine Guidelines are not based on empirical data and national experience ....“); Beiermann, 599 F.Supp.2d at 1100 (“Even before Spears, numerous district courts had read Kimbrough to permit a sentencing court to give little deference to the guideline for child pornography cases on the ground that the guideline did not exemplify the Sеntencing Commission‘s exercise of its characteristic institutional role and empirical analysis, but was the result of congressional mandates, often passed by Congress with little debate or analysis.“).
The Guidelines applied to Ms. Lente were carefully fashioned by the Commission while engaged in its traditional work. In other words, the Commission “‘base[d] its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.‘” Kimbrough, 128 S.Ct. at 574 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir.2007) (McConnell, J., concurring), vacated for reconsideration, — U.S. —, 128 S.Ct. 1869, 170 L.Ed.2d 741 (2008)). In particular, Ms. Lente was sentenced under the 2005 version of
Specifically, the Department of Justice, some members of Congress, and an ad hoc advisory group formed by the Commission to address Native American sentencing guideline issues expressed concern that most federal involuntary manslaughter cases involve vehicular homicides, which analysis of Commission data confirmed. These commentators also indicated that these offenses appear to be underpunished, particularly when compared to comparable cases arising under state law. This disparity with state punishments has been confirmed by studies undertaken by the Commission. In addition, Congress increased the maximum statutory penalty for involuntary manslaughter from three to six years’ imprisonment in 1994.
Generally, we will review policy disagreements with the Guidelines with the recognition that when the Commission has acted in its traditional institutional role, district courts should act with caution when electing to deviate from the Guidelines based upon policy disagreements with them. See United States v. Higdon, 531 F.3d 561, 562 (7th Cir.2008) (“As a matter of prudence ... in recognition of the Commission‘s knowledge, experience, and staff resources, an individual judge should think long and hard before substituting his personal penal philosophy for that of the Commission.“). In some instances, as Kimbrough and Spears suggest, those decisions of sentencing courts to deviate from the Guidelines based upon policy disagreements will be subject to a heightened level of review. See Kimbrough, 128 S.Ct. at 574 (“[W]hile the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge‘s view that the Guidelines range ‘fails properly to reflect § 3553(a) considerations’ even in a mine-run case.“) (quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)); Spears, 129 S.Ct. at 843 (“The implication [of Kimbrough] was that an ‘inside the heartland’ [variance] (which is necessarily based on a policy disagreement with the Guidelines and necessarily disagrees on a ‘categorical basis‘) may be entitled to less respect.“).19
However, at the very least, district court decisions to vary based upon policy dis
With regard to the district court‘s policy disagreement, its comments merely indicate its general dissatisfaction with the severity of the range of punishments prescribed by the involuntary manslaughter Guidelines because they are comparable to punishments provided for aggravated-felony illegal reentry offenses and drug crimes. The district court does not begin to explain how that general dissatisfaction provides the basis for the major-variance sentence that it imposed on Ms. Lente. Cf. Tankersley, 537 F.3d at 1107-09 (upholding the district court‘s policy decision to impose a twelve-level upward departure in order to achieve sentencing parity be
Finally, even when I review the district court‘s reasons for Ms. Lente‘s sentence “on a whole,” Gall, 128 S.Ct. at 597, I do not believe they can justify the major-variance sentence that Ms. Lente received. In this regard, my principal concern is not that the district court “did not specifically address each § 3553(a) factor in terms of why each factor justified the extent of the variance“; rather, the central point is that it is not “clear from reading the district court‘s ... explanation that it fully and adequately explained why it varied as it did.” United States v. Yanez-Rodriguez, 555 F.3d 931, 948 (10th Cir.2009); cf. id. at 949 (“In this case, the district court painstakingly went through each § 3553(a) factor, stating, where applicable, how the factor supported an upward variance.“).
My analysis should not be construed in any way to minimize the seriousness of Ms. Lente‘s conduct. Because of her reckless acts, three people are dead. And Ms. Lente has inflicted untold, life-long suffering on the grieving families of her victims. However, at the same time, “an absolutely central feature of criminal justice [is that] for each offense there is an upper limit on the severity of just punishment.” See Lawrence Crocker, The Upper Limit of Just Punishment, 41 Emory L.J. 1059, 1060 (1992). Part of reasonableness review is ensuring some rational relationship between the reasons for punishment and the ultimate sentence imposed. See Cavera, 550 F.3d at 201 n. 6 (Raggi, J., concurring) (“While this [substantive reasonableness] review is deferential, it nevertheless follows that a factor or justification that could support a 24-month sentence might not bear the weight of a 24-year sentence.“).
In sum, I recognize the lessons of Gall and Kimbrough: the district court has meaningful and broad sentencing discretion, and we may reverse only when the sentence imposed represents a clear abuse of discretion. However, the Supreme Court still instructs us to determine whether a district court‘s justification is “sufficiently compelling to support the degree of the variance.” Gall, 128 S.Ct. at 597. In this case, when I review Ms. Lente‘s sentence, “tak[ing] into account the totality of the circumstances, including the extent of [the] variance,” id., I can only conclude that the district court abused its discretion. The court did not sufficiently justify why Ms. Lente‘s 216 month sentence—159 months above the upper end of the Guidelines range—was a reasonable sentence, one that was “sufficient but not greater than necessary” to effectuate the stаtutory purposes of sentencing. Accordingly, I would hold that Ms. Lente‘s sentence is substantively unreasonable.