*1 America, STATES UNITED
Plaintiff-Appellee, POYNTER, Avery Vinson Defendant-Appellant. 05-6508.
No. Appeals, Court States United Circuit. Sixth 4, 2007. April Argued: 26, 2007. July and Filed: Decided Gilbert, Coy, Gil- Jerry W.
ARGUED: Richmond, Gilbert, Kentucky, for bert & Grant, Assistant John Patrick Appellant. Lexington, Ken- Attorney, United Jerry BRIEF: ON Appellee. tucky, for Gilbert, Rich- Gilbert, & Coy, Gilbert W. Charles mond, Kentucky, Appellant. Jr., Wisdom, Assistant P. Appel- Kentucky, Lexington,
Attorney, lee. SUTTON, Circuit SILER and
Before: JORDAN, Judge.* District Judges; J., opinion SUTTON, delivered JORDAN, J., joined. D. court, in which 359-60), SILER, delivered (p. J. opinion. dissenting separate OPINION Judge.
SUTTON, Circuit old, pleaded years Poynter, 36 Avery interstate commerce traveling in guilty to in illicit sexual engaging purpose for the After calculat- two minors. conduct months ing 3553(a) factors, the considering the * Tennessee, designation. sitting by Jordan, Senior United R. Leon The Honorаble Judge Eastern District for the States District *2 imposed
district court a 720-month sen- The district court therefore increased (the maximum) tence statutory (includ- final Poynter’s offense level to 32 Poynter was a ing child sex adjustment offender. two-level acceptance for Unable conclude that this responsibility), variance re- see id. § sulted from a application 4B1.5(a)(l)(B)(ii), reasonable and increased his 3553, § we reverse. criminal history V, to category see id. 4B1.5(a)(2). § adjustments All of these
I. considered, Poynter was left guide- awith 4, 1989, May On lines Avery Poynter 188-235 months. pleaded guilty Kentucky state court to commit- At the sentencing hearing 18, August on ting four counts of sodomy in the second 2005, the district court heard testimony degree an eleven-year-old with male. The Poynter’s from victims and from the moth- Poynter sentenced to a 20-year term er of the second victim. The district court of imprisonment, but the State released acknowledged receiving a letter him parole on four years later after he Poynter’s parents, Poynter spoke on completed Kentucky’s sex offender treat- his own Poynter behalf. “apologize[d] to program ment in prison. victims, [his] as well as family”; [his] he
In October Poynter recognized that “this problem traveled has been Kentucky to for Tennessee to have for many years” [him] sex with a and that he had fourteen-year-old December, already male. In gone he “back into counseling with met the and, same counselors”; minor in Indiana after he welcomed “anything the two traveled Kentucky, again [the] Federal they has to [Government] had a offer”; sexual encounter. In April and he said that he did not “in- Poynter traveled to Indiana with tend” to “ever another hav[e] another victim.” JA fourteen-year-old male for 41-42. another sexual
foray. month, The next the two traveled In sentencing Poynter, the district court Florida the same purpose. acknowledged guidelines range of 188-
After police caught Poynter, he 235 months and the statutory maximum of pleaded guilty to four traveling counts of 720 months. 2423(b), §§ See 18 U.S.C. in interstate 2426(a). for the commerce purpose of The rеcognized that it must engaging illicit sexual conduct with a “impose a sentence ... is sufficient 2423(b). minor. § 18 U.S.C. Accounting greater but not than necessary to comply adjustments on his supervisory based purposes” of 18 U.S.C. control over victims, 3553(a)(2). § U.S.S.G. JA 46. It then analyzed the § 2A3.2(b)(2)(B), on his multiple § factors in exercising indepen- its conviction, counts of 3D1.4, § id. the dis- judgment dent about what an appropriate trict Poynter’s court set initial offense lev- sentence would be. Reflecting on the el at 28 and his history criminal category “seriousness offense,” see III, creating a guidelines range of 3553(a)(2)(A), § 97- the court that “[t]he said 121 months. Poynter Because was con- protection of children in our society de- victed of a sex crime and had previously highest serves the priority,” JA at least “sustain[ed] one sex con- offense observed that “used alcohol and viction,” the district court applied the drugs to seduce these victims” and mandatory minimums of the “Repeat and that he had “victimized multiple children,” Dangerous Sex Against Offender 3553(a)(1). Minors” see Reflecting on the sentencing guideline. 4B1.5(a). U.S.S.G. impose “just need to punishment” - himself, the Court needs I think law,” see control respect “to promote will control impose him.” Poyn- 3553(a)(2)(A), court focused . a life imposed court also The JA 52-53 did once “You history: criminal ter’s release. supervised term of time your lesson. not learn did You before.... *3 just punishment the I think that
And so II. up- ratcheted hаs been of this component 3553(a)(1). Consis- 46; § see JA wards.” Booker, 543 U.S. United States Since public the “protect need to the tent with (2005), 738, 621 220, 160 L.Ed.2d 125 S.Ct. 3553(a)(2)(C), crimes,” § see further from procedural distinguished have we only that “[t]he stated court the district See reasonableness. and substantive pro- are that [children] sure way I can be Webb, States v. custody.” be [Poynter] to is for tected Cir.2005). (6th the dis- questions one No JA47. procedural to the adherence trict court’s It review: 3553(a)(2)(D), post-Booker requirements of rehabilitation, §see
forAs
range,
guidelines
the
calculated
properly
partici-
Poynter should
that
court said
the
advi-
were
guidelines
that
recognized
those
treatment
sex offender
in the federаl
pate
the factors
considered
sory
thoroughly
and
would
Poynter
that
doubted
program but
3553(a).
§in
See United
listed
“high-
crimes are
sex
because
ever recover
Cir.2006).
also
The court
JA 49.
ly recidivistic.”
specific
“the
court also stated
reason
pro- The
“statutory maximum”
that the
noted
outside
of a sentence”
imposition
sentencing
“unwarranted
against
tected
U.S.C.
range,
3553(a)(6),
guidelines
47;
§
see
JA
disparities,”
3553(c)(2)
[Poynter] either
§
[Poyn-
that
is no restitution
“[t]here
that
—“that
re-
prison or be
from
ever be released
make
that can
victims
pay to these
can
ter]
it
age that
at such an
3553(a)(7).
prison
leased
§
whole,”
see
them
that he will ever
highly,unlikely
be
would
(720
statutory
maximum
choosing
In
52.
again.” JA
this оffense
commit
emphasized
the court
years),
or 60
months
of this
reasonableness
deterrence,”
The substantive
see
“adequate
the need
that
point
matter —a
is another
crimes
3553(a)(2)(B),
that sex
explaining
§
contests
only contests but
Poynter not
“for-
recidivistic,”
that
“highly
whether
asking
In
some force.
counseling,” with
learned
got
[he]
the lessons
comports with
reasonably
many” and that
too
slip is
that
one
“[o]ne
§
we face
demands
it “out-
substantive
great
here is so
the harm
sets
competing
two
tug of war between
[Poynter’s]
judgment
in the Court’s
weighs
side,
face sev
one
we
On
considerations.
JA 48. The
compliance.”
ten-year
dis
second-guessing
eral limitations
guideline
“aware of the
it was
аdded
e
th
trial
Unlike
months,”
court’s decision.
trict
out at 235
range top capping
—
defendant, the
court,
not see
we did
3553(a)(4)
“chosen
had
see
—but
testify at the
family members
or
be- victims
[it]
statutory maximum
trial
hearing. And. unlike
sentencing
to chil-
Poynter is unsafe
that Mr.
lieve[d]
-
have little
judges
court,
most
JA 52. “It
aas
offender.
dren”
While
sentencing individuals.
concluded,
experience
“that
intention,”
my
face to
individuals
judges sentence
trial
prison
released from
not ever be
he either
transcripts for
living, we review
for a
age
face
at
prison
such
or
released
be
transcripts.
living.
No one
will
unlikely
he
highly
it would be
ac-
that we
suggests
of this
he can’t All
again.
If
commit this offense
ever
knowledge the trial courts’ comparative
In
trying
account for these competing
advantages
ring-side perspective on considerations and in trying
identify
—its
the sentencing hearing
principled
experience
and its
reasons for upholding some sen
over
others,
time in sentencing other
tences but not
individuals—
our circuit has ap
plied
give
proportionality
considerable
principle
deference to their
based on
least
sentencing
two of the
decisions. See Rita v. United
factors —the
—
States,
,
range,
3553(a)(4),
U.S.
2456, 2469,
—
need to
(2007)
avoid
(“The
unwarranted sentencing
168 L.Ed.2d
dis
3553(a)(6).
parities, §
judge
to,
“[T]he farther
has
greater
access
familiarity
judge’s sentence
with,
departs from
guide
the individual ease and thе individual
sentence,”
lines
said,
we have
“the more
defendant before him
Commission
*4
compelling
justification
based on fac
court.”);
or the appeals
Koon v. United
tors in
section
must be.”
States,
81, 98,
2035,
518 U.S.
116 S.Ct.
135
(internal
By relying average on a problem common offender: to defendant took (recidivism) “photographs of sex offenders [himself] in molesting young in- girls who creasing Poynter’s were care” [his] sentence while by running and failing a home to for offer abused and meaningful neglected children; distinctions between he successfully the risk that concealed Poynter these posed to offenses public and his past criminal from and the “despite that others risk other sex posed offenders [his] continued proximity youth to public, to the the district court left us little church programs”; and his own son room “con distinguish to Poynter and demned” “questioned him and his other remorse sex Husein, offenders. See court). sincerity” a letter to the at 334 (affirming substantial variance and noting worthy that “more defendants than Neither agree can we with district Husein are difficult to imagine, short of court that its invocation 60-year (internal those found to be not guilty”) statutory by maximum itself answers quotation omitted); marks Davis, 3553(a)’s accord § concern about “avoiding] un- 458 F.3d at United States v. warranted sentence disparities.” 18 draw that courts should (“I thought Congress think 3553(a)(6); see JA 47 § U.S.C. offenders, but in among sex take[s] ... distinctions maximum statutory method is not the sole sentence also [avoiding unwarranted carceration care of protecting maxi- statutory prescribed Congress disparities].”). While disparity supervised Life-time risk of in this area. any public eliminates mum years, by Congress, above by sentences caused release —authorized . disparities 3583(k), diminish by to § does little recommended U.S.C maximum (or re- Commission, receive who U.S.S.G. individuals Sentencing to a ceive) below what amounts 5D1.2(b), adopted by the district § convicted individuals for most life court, option. Su see 50—remains repre- Poynter’s sentence crime. If of this the district permits release pervised 3553(a), § application of a reasonable sents “associating un from Poynter prohibit why any sen- to understand difficult it is children, 18 U.S.C. necessarily with” months, a near- tence between 188 youth 3563(b)(6), volunteering as § be reasonable not 45-year span, would ly engag leader, a teacher or becoming such district courts giving But well. as might any profession ing in other not does range of discretion sweeping chil with him in a of trust place position Booker, goal of to have seem been 3563(b)(5), residing drеn, and from id. the Sen- continuing goal of less the much center, school, day-care church or any near Booker, 543 U.S. See tencing Commission. 3563(b)(13), things. See among §id. goal basic (“Congress’ 3583(d). §id. to move Sentencing Act was passing the are for these All of considerations in the system direction in- in the first ponder 28 U.S.C. uniformity.”); increased a sen- impose for us to It is not stance. (One 991(b)(1)(B) of the Com- purpose only say It is for us tence. sen- unwarranted “avoid[] is to mission justifications offered among defendants disparities tencing meaningfully do not support guilty have been found records who similar repeat sex from other distinguish 994(f) condüct.”); id. criminal similar at 500. See offenders. Commission (instructing the Does the Su- issue: attempt That leaves one *7 particularly should guidelines Rita dispari- recent decision sentence Court’s preme “reduc[e] unwarranted 3553(a)(6). the us to abandon ties”); require U.S.C. see also 18 United ap- we have that principle proportionality courts, empowered Booker While would The answer in this case? plied and not the Sentenc- courts appellate not hand, “no,” one on the to be seem way to “avoid Commission, only the ing of reason- presumption the concerned Rita is for disparities” unwarranted sentences, within-guidelines for ableness dis- reasoned preserve courts appellate the principle, proportionality the attempting In amоng offenders. tinctions validity propor- the will consider Court “be[ing] sure worthy goal of satisfy the See next Term. during its tionality review from sex protected” are [children] that Yet, Gall, No. 06-7949. the offenses, not have available we thus do two time, said the Court the same at by the district adopted solution presumption the things upholding in permanent offender simply placing the tension are some that reasonableness sweeps that custody, solution (1) no there is review: proportionality net. Not with offenders within its repeat sex for unreasonableness” suggest “presumption year only does the outside-guidelines sentences, Rita, 127 consider in sentencing an individual. Id. (2) legitimacy of an at 2463-64. explained And it appellate presumption of guidelines’ reasonableness recommendations are based within-guidelines sentences “empirical” turns in on data reflecting the aggre- part on the “double determination” gate experiences of sentencing judges “both the sentencing judge and the Sen- across the country and input of di- tencing Commission ... reached the same verse members of the “law enforcement conclusion proper as to the sentence in the If, Id. at community.” 2464. given particular case,” id. at 2463. case, a sentencing court comes to a sub- (more stantially later) on that adverb dif- If, says, as Rita there is no presump- ferent conclusion from the Cоmmission tion of unreasonableness outside- about an appropriate sentencing range, it guidelines sentences, that suggests a dis- quite seems expect reasonable trict court has no less discretion to sen- court’s explanation to be commensurate tence within than to sen- with its variance from the Commission’s tence so, outside them. ifAnd that is grounded empirically expert advice why should a sentencing court have any about apply how to same greater duty to justify a within-guidelines factors to a given crime and given outside-guidelines sen- criminal. tence, much less to strengthen the expla- nation for its sentence the Second, further it is not proportionality review, sentence varies from guidelines’ congressional rec- but a directive, initially Likewise, ommendation? appellate if an requires district courts to treat the expla- presumption of reasonableness for within- they give nations for outside-guidelines guidelines sentences turns at least in part differently from the explana- alignment views the Sen- they tions give for within-guidelines sen- tencing Commission with the views of the tences. Congress requires While sentenc- sentencing court, why ing courts to give a statement of reasons give courts force to the Commission’s rec- sentences, for all it requires courts to give through ommendations proportionality re- “the specific reason for impositiоn aof view when no such “double determination” sentence different from” guidelines- exists, when in other words the sentencing sentence, recommended 18 U.S.C. judge chose not 3553(c)(2) follow added). Commis- (emphasis If it ap- sion’s advice? propriate to ask sentencing courts to give “specific reason” variances, but not These good questions, they but within-guidelines sentences, it is a modest not compel us to propor- abandon the additional step certainly an extra tionality First, —and principle. is not all *8 step that bewill useful to the Sentencing said, Rita and the rest of its reasoning Commission in formulating future recom- remains consistent with permitting courts mendations —to ask that “specific thоse engage to in some form proportionali- have reason[s]” more force the further the ty review. In upholding a presumption varies the recommended range. of reasonableness for within-guidelines sentences, the Court Third, also reasoned 3553(a) that two the provisions Congress directed the Sentencing Com- that Congress requires district courts to mission to develop sentencing (a)(4) recommen- and (a)(6) suggest that consider — — dations based the same courts must factor proportionality consid- that considerations district courts must erations outside-guidelines into sentences. 3553(a)(2)(A)-(D). These are tence,” §id. sentencing judge (a)(4) says a Subsection courts that district the factors precisely Sentencing Commis- the consider” “shall “specific reason” giving in a will invoke certain how to sentence advice about sion’s rea- asking that this And a variance. types of for certain of criminals types when the forceful soning particularly fol- be not to chooses a court When crimes. large particularly a imposes district way to indicate advice, the best that low variance, proportionality principle the guidelines the considered the court that Congress that merely respects fact consid- merely say to so—“I is not these to consider directed Commission to show range” guidelines ered —but sen- recommending the factors same rеason” that “specific by giving is so that permit To it tencing ranges did. of the degree commensurate is vary factors to rely on these courts to' system re- sentencing A variance. asking substantially without sentences guidelines consider judges to quires explanations is' give to commensurate them reason” “specific give to range and (a)(2) (a)(1) and respect subsections not to this range, yet permits deviating from process to them—and but to exalt the size of relation to to no reasoning bear sen- unwarranted avoidance of make the respect variance, not one destined is impossible. disparities all but tencing in the recommendations Commission’s long run. all only respеcts Fifth, principle 3553(a) factors, in the but also point about lingering doubt
Any un- is principle, one that (a)(6), modest end is a by subsection ought to be relieved cases. most make a difference likely unwar- “avoid courts to commands which the review of sen- to affect unlikely It is among defen- disparities sentence ranted moderate- vary slightly or even tences who have been records with similar dants recommenda- ly from Commission’s conduct.” What similar guilty of found terms, proportionality By its tions. dis- “unwarranted” an would way of ex- in the ask little would principle lacking suffi- a sentence if not be parity little that varies planation from the disparity for its justification cient And the mandate guidelines. from the similаrly defen- situated of other dispari- unwarranted “avoid[ing] , district court can a else How dants? 3553(a)(6), weight have little ties,” § will an that matter or for judge, variances. moderate or even with modest disparities are occur- such tell when judge, only and the principle, The value consulting the ring without on the an effect have seem to time it would judges avoid how else can And range? sentence, trial is when the instance, validity of a or in the first disparities such guide- substantially from the court varies review, demand- without them on correct lines. supported be variances ing substantial are several reasons? There
by substantial
vari-
respect
to substantial
Sixth, with
here,
answer
practical
questions
principle would
ances,
proportionality
to factor
allow
is to
courts
of them
appel-
tool of
indispensable
be
seem to
equation.
into the
proportionality
rough
other reason
for no
late review—if
meas-
benchmark
no other
there
Fourth,
considerations
proportionality
*9
at the
of a sentence
3553(a)
ure the
§
reasonableness
fac-
the other
not forsake
do
sentencing range
ends
high or low
the of-
notably,
the nature
tors —most
else
Congress. Where
by
defendant,
id.
authorized
fense
gauging
in
start
appellate court
would an
3553(a)(1),
“the
sen-
need
§
reasonableness
such a
say,
sentence?
recidivist sex offenders because that
We know that the sentencing court must would
generate
never
nationwide consis-
start with the probation department’s pre-
The
tency.
Supreme
perhaps
Court
could
report
as to an appropriate
gather nationwide information about sen-
guidelines’ sentencing range, and the court
tencing ranges
crimes,
for different
but
subject
must
report
to
adversarial
that prospect,
not,
workable or
seems un-
Rita,
process. See
Id. at difficult to any 2465. see great risk of hаrm arising from applying But reasonableness review still amounts the proportionality principle to extreme review, rough without proportionali- Again, variances. take this case. key The ty as an guide it available is difficult to question reasonableness-review why is imagine how to conduct it in the setting of same factors underlying the “Repeat and extreme variances. Take our in task Dangerous Sex Against Offender Minors” case. Congress year set a 0-60 sentencing sentencing guideline, 4B1.5(a), U.S.S.G. offense, for this and the district which Poynter’s increased guidelines range gave court 60-year sentence. from 97-121 months months, to 188-235 Without proportionality review, without not account for the same concerns that the the option of measuring the force of the district expressed.in raising his sen- district explanations court’s for exceeding tence to 720 Everything months. roughly 20-year guidelines-recom- said imposing 720-month mended sen- against the length of that tence could have been variance, said about what an indi- principle would guide us? vidual The sentenced within the considerations, 188-235 month all im- range. portant What is sure, missing, short, to be tell us nothing by addi- reasoning, themselves tional about the types of additional factfinding. individuals If appellate be court may sentenced at the not ask a extreme ends of congressional court to explain why the most extreme range. They qualitative guides, variance justified -justified available is — quantitative without the rough relation to recommendations the extent of the vari- of the Sentencing Commission, ance—it is difficult see why appellate courts would principled have no way to courts would not be required uphold distinguish one appealed sentence from an- such variances. And if one takes the par- other. Neither district courts simony nor courts principle seriously, what better appeals can- their experiences use own way is there to that a ensure sentence is determining appropriate for, (in “sufficient” the context of a proposed *10 Davis, in variance) to the decision we Cоmpared “no downward substantial 99.91% as (in a variance of upheld downward the context of necessary” than greater variance) extraordinary family light in of reasonable upward substantial proposed a Husein, v. in United States ex- circumstances courts the district to insist that (6th Cir.2007). There F.3d Sentencing from the such variances plain by discussing the distinguished Davis only we recommendations—-the Commission’s the the court should consider fact to whether sentences guide empirical defendant. of each individual than neces- “worthiness” greater “no “sufficient” Thus, worthy Husein Id. at 333. was sary”? histo- prior no criminal who had defendant III. remorseful, and had a difficult ry, very was home. family situation at reasons, the sen- we vаcate For these the case and remand recites, below imposed this case majority opinion tence theAs resentencing. the district court upward a 206% variance represents However, range. the top the of Guidelines dissenting. SILER, Judge, Circuit Husein, Poynter in reasoning adopt the who was a sex offender dissent, here I not because respectfully I can any unworthy as defendant about as the do not know my colleagues think highly offended court was The district be. a discretion- law, this is such but because previously had fact by the when the district that I believe ary matter minors, involved in sexual abuse with been the Guidelines correctly calculates court drugs and other 3553(a) gave that he alcohol and then considers the children, any- not learn and that he did upheld, factors, should be the sentence counseling the first from his after thing a factor which adds unless court fami- The court saw offense. under considered have been not no doubt dis- and was lies of the victims or of the crime unless the circumstances or in Poynter had continued tressed that no variance such offender were juve- sexually abusing prior conduct his justified. could be the Guidelines present these of- At the time niles. in Obviously, decision United fenses, previous from his parole he onwas (6th Cir.2006), Davis, is the v. Al- sodomy with minor. offenses of decision, we From of this circuit. law case is variance though upward majority uses quоtation which get the was in variance “ the downward what double judge’s farther the ‘[T]he this case: Husein, figure beyond no set there is sen- departs from vary, and may court which justifi- compelling the ... the more tence unworthy as Husein as Poynter here is 3553(a)’ on factors Section based cation variance. worthy of a downward was (quoting at 496 Id. must be.” Bridgewater, 479 In Dean, United States (6th Cir.2007), we found Cir.2005)). that a F.3d In we found for the months of 120 unrea- maximum 99.89% was variance downward possession charge under pri- The defendant circumstances. under the sonable substantively was pornography child by used circumstances mary the district Bridgewater, In time unreasonable. long in Davis were the variance the horrible nature considered his sen- his crimes and interval ef- emphasized the destructive age, 70 crime advanced and the defendant’s tence the lives had on pornography child fect years old. *11 opined children. The court that “it would not take a chance on him victimizing
anybody Id. at 442. Although else.”
decision does not indicate what the sen- was, tencing range still it shows that the court could render a maximum statutory protect Therefore, sentence to children. I case, would find that in this the district court did not abuse its discretion in ren-
dering Poynter. the sentence against Thus, I would affirm. ALCALA,
Isidro Plaintiff-Appellant, INDUSTRIES, EMHART INCORPORATED, Defendant-Appellee.
No. 06-3153. Appeals, Court of Seventh Circuit. Argued Feb. 2007. July
Decided 2007. July Published 2007.* * This tion, originally decision was released as being it is published reissued opin- as a unpublished By order. the court’s own mo- ion.