"Impermissible Factors" Follow-up

As a follow-up to my recent blogpost about U.S. v. Davis, I did some research into what the Sixth Circuit had found to be "impermissible factors" outside of Davis. As a result, the list now includes:

– "defendant's behavior at trial" and prior arrests for which there were no known dispositions. United States v. Whitfield, 259 Fed.Appx. 830 (6th Cir. 01/15/08), 2008 WL 142782 (unpublished) (Per Curiam: Daughtrey & Cole, JJ., & Collier, D.J. (E.D.Tenn.)) (reversing upward variance as substantively unreasonable)

– the district court’s disagreement with Congress’ penalties. United States v. Ortega-Rogel, – Fed.Appx. – (6th Cir. 6/16/08), 2008 WL 2415917 (unpublished) (Norris, Martin, JJ., & Stamp, D.J. (NDWVa.)) (possession of false identification) (reversing upward variance as substantively unreasonable); United States v. Franklin and Clarke, 499 F.3d 578 (6th Cir. 8/28/07), rehrg and rehrg en banc denied 1/25/08 (Forester, D.J. (EDKy) & Gilman, J; Moore, J., concurring in the judgment) (18 U.S.C. § 924(c)) (reversing downward variance as substantively unreasonable).

– defendant’s post-conviction behavior. United States v. Sutherlin, 498 F.3d 316 (6th Cir. 8/8/07), rehrg and rehrg en banc denied 12/13/07 (Cole, Guy, & McKeague, JJ.) (reversing downward variance as substantively unreasonable) (but, see, United States v. Ragland, 2007 WL 1028845 (6th Cir. 2007), allowing use of post-conviction bad conduct to justify upward variance.)

– a lack of extraordinary circumstances that would justify such an extreme downward variance. United States v. (Haywood) Johnson, 239 Fed.Appx. 986 (6th Cir. 9/4/07), 2007 WL 2492405 (unpublished) (reversing downward variance as substantively unreasonable). [Ed.: doesn't this sound like Guidelines departure language?]

– lack of a compelling explanation. United States v. Fink, 502 F.3d 585 (6th Cir. 9/7/07) (Gibbons, Suhrheinrich, JJ., & Heyburn, CDJ (WDKy.) (reversing downward variance as substantively unreasonable). [Ed.: wouldn't that really be procedural unreasonableness?]

– consideration of the defendant’s likely state court sentence. United States v. Malone, 503 F.3d 481 (6th Cir. 10/4/07) (McKeague, Sutton, JJ., & Forester, D.J. (EDKy.)) (reversing downward variance as substantively unreasonable).

– doubt by the district court that the defendant intended to commit fraud. United States v. Hunt, 521 F.3d 636 (6th Cir. 4/11/08) (Rogers & Siler, JJ.; Martin, J., concurring in part and dissenting in part) (reversing downward variance as substantively unreasonable).

– justifications give for variance not supported by the record. United States v. (William) Hughes, – Fed.Appx. – (6th Cir. 6/26/08), 2008 WL 2604249 (unpublished) (Moore & Clay, JJ; Rogers, J., concurring) (reversing downward variance as substantively unreasonable).

Is that clear now? Do you have a clear grasp on what is and is not an impermissible factor? Because you may have to explain it to your district judge, so make sure.