Wednesday, August 09, 2006

Reasonableness Review: The "Paradigm" and the "Peacekeeper"

Today a panel of the Sixth Circuit affirmed a 100% upward "variance" from an advisory Guideline range of 0 - 6 months to 12 months for (1) transporting in interstate commerce a motor vehicle that the defendant knew was stolen, in violation of 18 U.S.C. § 2312; and (2) selling a motor vehicle that the defendant knew was stolen and that had crossed state lines after the theft, in violation of 18 U.S.C. § 2313. United States v. Scott A. Ferguson, --F.3d--, No. 05-3998 (6th Cir. August 9, 2006)(opinion available here). While not an extraordinarilyly onerous sentence, this case is notable for the panel's use of what I call the "reasonableness review paradigm."

Mr. Ferguson was the Chief of Collections at the United States Air Force Museum located at Wright-Patterson AFB, Dayton, Ohio. Between 1994 and 1996, Mr. Ferguson acquired for the Museum, a Peacekeeper, (see picture above), from an Air Force Base in Plattsburg, New York, fraudulently removed it from the Museum's books, obtained a phony Ohio title, and proceeded to showed it at two Military Preservation Association shows. Mr. Ferguson then sold the Peacekeeper to an acquaintance for $18,000 in June of 1999. The acquaintance made some repairs and sold the Peacekeeper to the Eastern Band of Cherokee Indians for $38,000 in May of 2000.

The district court conducted a series of hearings and, after calculating the amount of loss caused by Ferguson's offenses, agreed to credit Ferguson with a two-level reduction for acceptance of responsibility. These calculations resulted in a total offense level of 8, which yielded a Guidelines range of 0-6 months.

The district court then "proceeded seriatim through most of the factors contained in 18 U.S.C. § 3553(a)." The judge weighed the factors and sentenced Ferguson to 12 months in prison and 3 years of supervised release, and ordered him to pay $29,000 in restitution. The district court stated that Ferguson had "taken advantage of his position at the museum to acquire a vehicle that 'while not on everyone's wish list, is a national treasure.'"

Ferguson made three arguments on appeal. First, he argued that the judge engaged in impermissible fact-finding. He then argued that the judge improperly sentenced him based in part on his socio-economic status. Finally, he argued that the sentence was unreasonable. The panel summarily rejected Ferguson's first two arguments.

Turning to the last argument, the panel spends a paragraph apparently adopting the term "variance" with respect to sentences that exceed the Guideline maximum. The court cites United States v. Barton, -- F.3d --, 2006 WL 2164260 (6th Cir. Aug. 3, 2006) and United States v. Matheny, 450 F.3d 633 (6th Cir. 2006). The panel also cites the Fourth Circuit Court of Appeals' opinion in United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006) which differentiated between "variances" from the Guidelines' range and traditional "departures" made pursuant to Guidelines' provisions.

The panel's opinion in Ferguson is mostly important for how it distinguishes between, and utilizes the concepts, of "substantive reasonableness" and "procedural reasonableness" -- the "reasonablness review paradigm." The panel essentially adopts the concepts that were fully explicated in Judge Sutton's concurrence in United States v. Buchanan, 449 F.3d 731, 735 - 741 (6th Cir. 2006).

Under this paradigm, the panel affirmed the 100% increase in Mr. Ferguson's sentence, stating:

The district court therefore did what it was obligated to do by both this court's caselaw and the governing statute -- it followed a congressional command and then "exercis[ed] independent judgment in sentencing [a] criminal defendant[] within statutory limits." See id.; Douglas A. Berman, Reasoning Through Reasonableness, 115 Yale L.J. Pocket Part 142 (2006), http://www.thepocketpart.org/2006/07/berman.html (reading Booker as requiring "district courts to exercise independent reasoned judgment when imposing a sentence"). Under these circumstances, we cannot say that the court's decision to impose a sentence six months above the advisory Guidelines range was unreasonable.
Whether this vehicle is indeed, a "national treasure," is questionable. What probably is not questionable is that the "reasonableness review paradigm" is alive, well, and should be carefully studied by the federal criminal practitioner to have a hope of defeating this type of upward "variance" in future cases.

UPDATE: Professor Berman, as always, has a thoughtful, (and perhaps slightly biased), critique of this opinion, (far better than mine, of course). His post is available here. Click and learn!

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