In United States v. (William) Davis, No. 05-3784 (6th Cir. 2008) (Sutton, J., Boggs, C.J., & Keith, J.) , the Sixth Circuit reversed, for the second time (see 458 F.3d 491), a sentence of 1-day imprisonment and 3 years of supervised release for bank fraud. [Davis’ first appeal ended in a remand for re-sentencing. 397 F.3d 340 (6th Cir. 2005).] This time, the court reversed the sentence as substantively unreasonable on the ground that the district court used an "impermissible factor" as well as a discouraged factor in order to support the downward variance. This case continues a pattern in post-Booker sentencing by which the court cherry-picks those parts of the Supreme Court’s recent sentencing cases that support how the court wants to rule, while ignoring the broader changes to the landscape of federal sentencing.
The concept of an "impermissible factor" as the basis for substantive unreasonableness is not new in this Circuit. It was first used by Judge Moore in United States v. Webb, 373 F.3d 385 (6th Cir. 2005) (the same case in which Judge Moore "declined to hold that a sentence within a proper Guidelines range is per-se reasonable" at footnote 9) in describing in general terms evidence that might indicate that a district judge had acted unreasonably as related to the substance (length) of the sentence, but the court has never delineated what those impermissible factors would be.
What is new, however, is that since the court’s decision in Webb, the Supreme Court decided Gall v. United States, 128 S. Ct. 586 (2007), in which it addressed how courts of appeals must review the sentencing decisions of district courts post-Booker. Nowhere in its discussion of the proper method of substantive review of a sentence does the Court in Gall endorse or even mention the concept of an "impermissible factor" that might be determined by the appellate court. In fact, one of the Eighth Circuit’s justification’s for reversing Gall’s sentence was that the district court had given significant weight to an "improper factor," the "‘impetuous and ill-considered’ actions of persons under the age of 18." 128 S. Ct. at 601. In reversing the Eighth Circuit, the Supreme Court noted that such a factor fit under "character of the defendant" -- a factor under § 3553(a) -- and was supported by studies which had been cited by the Supreme Court itself.
To support the concept of an "impermissible factor" in Davis, the Sixth Circuit was forced to reach beyond Gall and to cite United States v. Bailey, 488 F.3d 363 (6th Cir. 2007) (decided six months before Gall), and United States v. Hunt, 521 F.3d 636 (6th Cir. 2008) (relying on pre-Gall case law). [A petition for rehearing has been filed in Hunt and is still pending. The court has ordered the government to respond to the petition, which argues in part that § 3553(a) does not limit the factors the court can consider and that the only factors that might be categorically impermissible would be so because the Constitution or other statute prohibits it.]
In Davis, the court found that the 14-year delay between the commission of the crime and the sentencing hearing is an "impermissible factor" that the district court should not have considered. While not deciding whether such delay "might legitimately bear on a trial court’s exercise of sentencing discretion," the court would now require a showing "that the government bears unjustified responsibility for the delay and that the defendant suffered from the delay." (Slip Op. 5) (No authority is given in Davis for this standard, so it appears to have been made up for this case.) It states the issue as "whether the delay supplies an independent reason for a deviation from the" guidelines. Id. Judge Sutton notes, "Section 3553(a) does not list the amount of time that passed between the date of a defendant’s crime(s) and his sentencing as a basis for lowering or raising a sentence." Id.
By requiring a defendant to show suffering and unjustified responsibility on the part of the government, the court has curbed the discretion of district courts in a manner inconsistent with § 3553(a). Just as "delay" is not expressly listed in § 3553(a), neither is "delay caused by the government and resulting in suffering." In fact, it is not difficult to conceive of ways in which delay might fit into the factors in § 3553(a). In other cases it has been noted that delay between the offense and the sentence lessens deterrent and retributive value of any punishment. See, e.g., Knight v. Florida, 528 U.S. 990, 120 S. Ct. 459, 462 (1999) (Breyer, J. , dissenting) ("At the same time, the longer the delay, the weaker the justification for imposing the death penalty in terms of punishment's basic retributive or deterrent purposes."); Coleman v. Balkcom, 451 U.S. 949, 952 (1981) (Stevens, J., concurring in denial of cert.) ("The deterrent value of any punishment is, of course, related to the promptness with which it is inflicted."). In short, the court of appeals should not be putting its thumb on the scale by categorically prohibiting the consideration of delay unless certain conditions, seemingly created off-hand, are met.
The court also objected to the district court’s reliance on Davis’ age (70) at the time of sentencing in granting a variance, which it referred to as a "discouraged factor." While acknowledging that age might factor into sentencing considerations, the court found that it certainly would not warrant a sentence of 1 day in a white-collar case. The court added the unsupported opinion that age would not even have been a mitigating factor had the defendant been sentenced at the time of the offense: "When he committed the crime, he was of an age  that would not likely bear on a guidelines range of 30 to 37 months." (Slip Op. at 6.) Yet, the Commission’s own empirical studies show that recidivism rates fall from 35.5% for offenders under age 21 to 9.5% for offenders over 50. Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines, at 12, 28 (2004) www.ussc.gov/publicat/Recidivism_General.pdf. (emphasis added.)
Furthermore, by the very terms of § 5H1.1, age is discouraged only for purposes of departure, not variances. Indeed, a number of courts have acknowledged age as an appropriate sentencing consideration. See, e.g., United States v. Wadena, 470 F.3d 735 (8th Cir. 2006) (where 67 year old defendant convicted of mail fraud and guidelines 18-24 months, proper for district court to impose below guideline sentence of probation, in part, because "Wadena’s age and recent deterioration in his health reduce the risk of re-offending, however, as do the terms of his probation"); United States v. Lucania, 379 F. Supp. 2d 288, 297 (E.D.N.Y. 2005) ("Post-Booker courts have noted that recidivism is markedly lower for older defendants."); United States v. Carmona-Rodriguez, 2005 WL 840464, *4 (S.D.N.Y. Apr. 11, 2005) (unpublished)( where 55-year-old woman pled guilty to distribution of drugs sentence of 30 months [below guideline range] proper in part "in view of the low probability that Carmona-Rodriguez will recidivate"); United States v. Carvajal, 2005 WL 476125 (S.D.N.Y. Feb. 22, 2005)(unpublished) (in drug case, career offender guideline of 262 months too great; client will be 48 when he emerges from prison; the goal of rehabilitation "cannot be served if a defendant can look forward to nothing beyond imprisonment. Hope is the necessary condition of mankind, for we are all created in the image of God. A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life. Punishment should not be more severe than that necessary to satisfy the goals of punishment." ); United States v. Nellum, 2005 WL 300073 (N.D. Ind. Feb. 3, 2005) (unpublished) (where 57-year old defendant convicted of distributing crack cocaine facing guideline sentencing range of 168-210 months, sentence of 108 months because court had also to consider the need to deter Nellum and others from committing further crime under § 3553(a)(2); the court’s sentence will result in release at 65 and "[t]he likelihood of recidivism by a 65 year old is very low").
Age would therefore be relevant to at least four of the § 3553(a) factors: characteristics of the defendant, deterrence, recidivism (protecting the public from further crimes), and the need for rehabilitation. While Judge Sutton acknowledged that a district judge post-Booker can consider more than under the mandatory Guidelines, he refused to support the extent of the variance in this case.
The irony (or worse) is that judges who have affirmed district courts that clearly failed to even address a defendant’s mitigation arguments here reversed a district court because it did not explain in detail the justification for the downward variance it gave. See, e.g., United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc) (Judge Sutton writing for the majority, which included Chief Judge Boggs, affirming a district court’s rote recitation of the 3553(a) factors in the face of very specifically offered mitigation as not "plain error") This would seem to continue the difference in treatment on appeal of downward variances from either within-the-range sentences or upward variances noted by Judge Keith in (continuing the irony) the previous opinion in Davis, 458 F.3d 491 (6th Cir. 2006), in which he noted in his dissent, "the current trend across the circuits is to afford less deference to district court sentences that depart below the advisory guideline range over sentences that depart upward from the advisory guideline range." 458 F.3d at 501.
One concern is that this is but a back-door way of giving more force to the now-advisory-only specific offender characteristics in Part H of Chapter 5 of the Guidelines. As it stands now, the court has set forth a vague standard, alluding to a category of factors that are impermissible, but whose content we can only guess at because there was never such a thing as an impermissible factor except those that the Sentencing Commission says are impermissible. In the § 3553(a) context, independent of the Commission, we just won't know what the "impermissible factors" are until the court of appeals tells us, on an ad hoc basis. Stay tuned.
[with assistance from (and thanks to) Jennifer Coffin]