UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AVERY VINSON POYNTER, Defendant-Appellant.
No. 05-6508
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 26, 2007
07a0284p.06
SILER and SUTTON, Circuit Judges; JORDAN, District Judge.*
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 05-00023—Jennifer B. Coffman, District Judge. Argued: April 4, 2007.
ARGUED: Jerry W. Gilbert, COY, GILBERT & GILBERT, Richmond, Kentucky, for Appellant. John Patrick Grant, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Jerry W. Gilbert, COY, GILBERT & GILBERT, Richmond, Kentucky, for Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee.
SUTTON, J., delivered the opinion of the court, in which JORDAN, D. J., joined. SILER, J. (p. 10), delivered a separate dissenting opinion.
OPINION
SUTTON, Circuit Judge. Avery Poynter, 36 years old, pleaded guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with two minors. After calculating a guidelines range of 188–235 months and considering the
On May 4, 1989, Avery Poynter pleaded guilty in Kentucky state court to committing four counts of sodomy in the second degree with an eleven-year-old male. The court sentenced Poynter to a 20-year term of imprisonment, but the State released him on parole four years later after he completed Kentucky‘s sex offender treatment program in prison.
In October 2003, Poynter traveled from Kentucky to Tennessee to have sex with a fourteen-year-old male. In December, he met the same minor in Indiana and, after the two traveled to Kentucky, they again had a sexual encounter. In April 2004, Poynter traveled to Indiana with another fourteen-year-old male for another sexual foray. The next month, the two traveled to Florida for the same purpose.
After the police caught Poynter, he pleaded guilty to four counts of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor.
At the sentencing hearing on August 18, 2005, the district court heard testimony from Poynter‘s victims and from the mother of the second victim. The district court acknowledged receiving a letter from Poynter‘s parents, and Poynter spoke on his own behalf. Poynter “apologize[d] to [his] victims, as well as [his] family“; he recognized that “this has been a problem for [him] for many years” and that he had already gone “back into counseling with the counselors“; he welcomed “anything that [the] Federal [Government] has to offer“; and he said that he did not “intend” to “ever hav[e] another victim.” JA 41–42.
In sentencing Poynter, the district court acknowledged the guidelines range of 188–235 months and the statutory maximum of 720 months. See
As for rehabilitation, see
In choosing the statutory maximum (720 months or 60 years), the court emphasized the need for “adequate deterrence,” see
II.
Since United States v. Booker, 543 U.S. 220 (2005), we have distinguished between procedural and substantive reasonableness. See United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). No one questions the district court‘s adherence to the procedural requirements of post-Booker review: It properly calculated the guidelines range, recognized that those guidelines were advisory and thoroughly considered the factors listed in
The substantive reasonableness of this sentence is another matter—a point that Poynter not only contests but contests with some force. In asking whether a sentence reasonably comports with the substantive demands of
On the other side, one of the principal functions of the Sentencing Reform Act of 1984 was to eliminate “unwarranted sentenc[ing] disparities among defendants with similar records who have been found guilty of similar conduct.”
In trying to account for these competing considerations and in trying to identify principled reasons for upholding some sentences but not others, our circuit has applied a proportionality principle based on at least two of the
We have applied this principle in several cases over the last year—both to downward and upward variances. Compare, e.g., United States v. Kathman, 490 F.3d 520, 2007 WL 1754492, at *5–6 (6th Cir. June 20, 2007) (upholding 61% downward variance based on assessment that defendant was “a law abiding fine young man” who merely used “poor judgment” one evening and was less culpable than similar defendants) (internal quotation marks omitted); United States v. Cherry, 487 F.3d 366, 370–72 (6th Cir. 2007) (upholding 43% downward variance because defendant had a “low risk for reoffending,” had taken “extensive” efforts to rehabilitate himself and was not “a run-of-the-mill offender“); United States v. Husein, 478 F.3d 318, 333 (6th Cir. 2007) (upholding 99.91% downward variance as reasonable in light of defendant‘s “extraordinary family circumstances“); United States v. Wells, 473 F.3d 640, 644 (6th Cir. 2007) (upholding 14% upward variance based on defendant‘s “egregious actions” and “lengthy history of escalating violent behavior“); United States v. Collington, 461 F.3d 805, 809–10 (6th Cir. 2006) (upholding 36% downward variance as reasonable in light of defendant‘s peculiar criminal history and unique family circumstances); United States v. Fuson, 215 F. App‘x 468, 475 (6th Cir. Feb. 8, 2007) (upholding sentence of probation rather than two years’ imprisonment because felon-in-possession charge arose from incidental possession of an antique handgun); United States v. Williams, 214 F. App‘x 552, 556 (6th Cir. Jan. 23, 2007) (upholding 177% upward variance because sentencing range underrepresented defendant‘s “continuing propensity for violence“), with United States v. Borho, 485 F.3d 904, 916 (6th Cir. 2007) (vacating 66% downward variance because “the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence“) (emphasis omitted); United States v. Funk, 477 F.3d 421, 431 (6th Cir. 2007) (vacating 43% downward variance when district court unduly discounted defendant‘s criminal history); Davis, 458 F.3d at 499–500 (vacating 99.89% downward variance because “most extreme variance” “leav[es] no room to make reasoned distinctions” between defendant and other “more worthy defendants“).
Gauged by this proportionality principle and by our application of it in these cases, this 60-year sentence, a 206% upward variance from the top of the guidelines range, cannot be sustained. The primary ground for the variance—that the court wanted to prevent Poynter from ever committing this crime again—does not distinguish Poynter from other repeat sex offenders. True enough: “Poynter is unsafe to children,” JA 52; “[o]ne slip is one too many,” JA 48; his crime is “highly recidivistic,” id.; and “[i]f [Poynter] can‘t control himself, . . . the Court needs to impose a sentence that will control him,” JA 52–53. But, at this level of generality, the same could be said of all repeat sex offenders.
In view of his offense and of this guideline, Poynter faced the following enhancements. The underlying crime, together with other adjustments for criminal history, acceptance of responsibility and the like, called for an advisory sentencing range of 97–121 months. The “Repeat and Dangerous Sex Offender Against Minors” guideline increased that range to 188–235 months. And the district court sentenced Poynter to 720 months. What started as a top-end range of roughly 10 years became a top-end range of roughly 20 years and ended as a 60-year sentence—all because he had been convicted once before as a sex offender and all of this even though the increase in the advisory range from roughly 10 to 20 years was meant to account for the problem of recidivism. Absent some explanation for why Poynter‘s risk of recidivism differs from that of other repeat sex offenders, we are hard-pressed to understand why Poynter, but apparently not other repeat offenders, needs what amounts to a life sentence—Poynter will be 96 when (or if) he is released from prison.
The other aspects of Poynter‘s crimes mentioned by the district court—his multiple counts of conviction, his relationship of trust with the victims, the fact that prior treatment did not prevent these crimes—may well justify an upward variance (even a significant upward variance) but they do not support a 60-year sentence. In explaining why it sentenced Poynter at the top of the statutory range, the district court did not rely on these factors, and it did not explain why a sentence of 60 years was “no greater than necessary” despite the Sentencing Commission‘s considered judgment to the contrary—a judgment the government does not contend is generally “unsound” as to repeat offenders, cf. Rita, 127 S. Ct. at 2468.
By relying on a problem common to all repeat sex offenders (recidivism) in increasing Poynter‘s sentence and by failing to offer meaningful distinctions between the risk that Poynter posed to the public and the risk that other sex offenders posed to the public, the district court left us little room to distinguish between Poynter and other sex offenders. See Husein, 478 F.3d at 334 (affirming substantial variance and noting that “more worthy defendants than Husein are difficult to imagine, short of those found to be not guilty“) (internal quotation marks omitted); accord Davis, 458 F.3d at 499; United States v. Goldberg, 491 F.3d 668, No. 07-1393, 2007 WL 1827645, at *5 (7th Cir. June 27, 2007); Moreland, 437 F.3d at 437; United States v. Haack, 403 F.3d 997, 1005–06 (8th Cir. 2005). As utterly depraved as this crime is and as forever scarring as it must be to be victimized by it, not all repeat sex offenders deserve what amounts to a life sentence; otherwise, Congress would not have set a statutory range of 0–60 years. See
Neither can we agree with the district court that its invocation of the 60-year statutory maximum by itself answers
While Booker empowered district courts, not appellate courts and not the Sentencing Commission, the only way to “avoid unwarranted sentencing disparities” is for appellate courts to preserve reasoned distinctions among offenders. In attempting to satisfy the worthy goal of “be[ing] sure that [children] are protected” from sex offenses, we thus do not have available the solution adopted by the district court of simply placing the offender in permanent custody, JA 47, a solution that sweeps all repeat sex offenders within its net. Not only does the 0–60 year range suggest that Congress thought that courts should draw distinctions among sex offenders, but incarceration also is not the sole method Congress prescribed for protecting the public in this area. Life-time supervised release—authorized by Congress,
All of these considerations are for the district court to ponder in the first instance. It is not for us to impose a sentence. It is for us only to say that the justifications offered for this sentence do not support it and do not meaningfully distinguish Poynter from other repeat sex offenders. See Davis, 458 F.3d at 500.
That leaves one issue: Does the Supreme Court‘s recent decision in Rita v. United States require us to abandon the proportionality principle that we have applied in this case? The answer would seem to be “no,” on the one hand, because Rita concerned the presumption of reasonableness for within-guidelines sentences, not the proportionality principle, and the Court will consider the validity of proportionality review during its next Term. See United States v. Gall, No. 06-7949. Yet, at the same time, the Court said two things in upholding the presumption of reasonableness that are in some tension with proportionality review: (1) there is no “presumption of unreasonableness” for outside-guidelines sentences, Rita, 127 S. Ct. at 2467; and (2) the legitimacy of an appellate presumption of reasonableness for within-guidelines sentences turns in part on the “double determination” that “both the sentencing judge and the Sentencing Commission . . . reached the same conclusion as to the proper sentence in the particular case,” id. at 2463.
These are good questions, but they do not compel us to abandon the proportionality principle. First, that is not all Rita said, and the rest of its reasoning remains consistent with permitting courts to engage in some form of proportionality review. In upholding a presumption of reasonableness for within-guidelines sentences, the Court also reasoned that Congress directed the Sentencing Commission to develop sentencing recommendations based on the same
Second, it is not proportionality review, but a congressional directive, that initially requires district courts to treat the explanations they give for outside-guidelines sentences differently from the explanations they give for within-guidelines sentences. While Congress requires sentencing courts to give a statement of reasons for all sentences, it requires courts to give “the specific reason for the imposition of a sentence different from” the guidelines-recommended sentence,
Third, two of the
Any lingering doubt about the point ought to be relieved by subsection (a)(6), which commands courts to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” What would an “unwarranted” sentencing disparity be if not a sentence lacking sufficient justification for its disparity from the sentences of other similarly situated defendants? How else can a district court judge, or for that matter an appellate judge, tell when such disparities are occurring without consulting the guidelines range? And how
Fourth, proportionality considerations do not forsake the other
Fifth, this principle not only respects all of the
Sixth, with respect to substantial variances, the proportionality principle would seem to be an indispensable tool of appellate review—if for no other reason than that there is no other benchmark to measure the reasonableness of a sentence at the high or low ends of the sentencing range authorized by Congress. Where else would an appellate court start in gauging the reasonableness of such a sentence? We know that the sentencing court must start with the probation department‘s presentence report as to an appropriate guidelines’ sentencing range, and the court must subject that report to the adversarial process. See Rita, 127 S. Ct. at 2465. We know that the sentencing court may grant downward or upward departures to individuals deserving of them. See
But reasonableness review still amounts to review, and without rough proportionality as an available guide it is difficult to imagine how to conduct it in the setting of extreme variances. Take our task in this case. Congress set a 0–60 year sentencing range for this offense, and the district court gave Poynter a 60-year sentence. Without proportionality review, without the option of measuring the force of the district court‘s explanations for exceeding the roughly 20-year guidelines-recommended sentence against the length of that variance, what principle would guide us? The other
By contrast, it is difficult to see any great risk of harm arising from applying the proportionality principle to extreme variances. Again, take this case. The key reasonableness-review question is why the same factors underlying the “Repeat and Dangerous Sex Offender Against Minors” sentencing guideline,
III.
For these reasons, we vacate the sentence imposed below and remand the case to the district court for resentencing.
SILER, Circuit Judge, dissenting. I respectfully dissent, not because I think that my colleagues do not know the law, but because this is such a discretionary matter that I believe when the district court correctly calculates the Guidelines range and then considers the
Obviously, the decision in United States v. Davis, 458 F.3d 491 (6th Cir. 2006), is the law of this circuit. From that decision, we get the quotation which the majority uses in this case: “‘[T]he farther the judge‘s sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in Section 3553(a)’ must be.” Id. at 496 (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)). In Davis, we found that a downward variance of 99.89% was unreasonable under the circumstances. The primary circumstances used by the court in the variance in Davis were the long time interval between his crimes and his sentence and the defendant‘s advanced age, 70 years old.
Compared to the decision in Davis, we upheld a downward variance of 99.91% as reasonable in light of extraordinary family circumstances in United States v. Husein, 478 F.3d 318, 333 (6th Cir. 2007). There we distinguished Davis by discussing the fact that the court should consider the “worthiness” of each individual defendant. Id. at 333. Thus, Husein was a worthy defendant who had no prior criminal history, was very remorseful, and had a difficult family situation at home.
As the majority opinion recites, this case represents a 206% upward variance from the top of the Guidelines range. However, to adopt the reasoning in Husein, Poynter here was a repeat sex offender who is about as unworthy as any defendant can be. The district court was highly offended by the fact that Poynter had previously been involved in sexual abuse with minors, that he gave alcohol and other drugs to the children, and that he did not learn anything from his counseling after the first offense. The district court saw the families of the victims and was no doubt distressed because Poynter had continued in his prior conduct of sexually abusing juveniles. At the time of these present offenses, he was on parole from his previous offenses of sodomy with a minor. Although the upward variance in this case is double what the downward variance was in Husein, there is no set figure beyond which a sentencing court may vary, and Poynter here is as unworthy as Husein was worthy of a downward variance.
In United States v. Bridgewater, 479 F.3d 439 (6th Cir. 2007), we found that the maximum sentence of 120 months for the defendant under a charge of possession of child pornography was not substantively unreasonable. In Bridgewater, the district court considered the horrible nature of the crime and emphasized the destructive effect the child pornography had on the lives of children. The court opined that “it would not take a chance on him victimizing anybody else.” Id. at 442. Although that decision does not indicate what the sentencing range was, still it shows that the court could render a maximum statutory sentence to protect children. Therefore, I would find that in this case, the district court did not abuse its discretion in rendering the sentence against Poynter. Thus, I would affirm.