Monday, April 11, 2011

Considering a sentencing memo requires more than just reading it

There have been few published opinions of note lately, but there is one unpublished opinion of interest issued today.

In United States v. Pizzino, No. 09-2146 (6th Cir. April 11, 2011), the Sixth Circuit vacates and remands a within-guidelines sentence of 180 months for distributing CP because the district court did not address non-frivolous arguments for lenience. For a district court to merely state it “received and understood a defendant’s sentencing memorandum” is insufficient and “does not fulfill its duty" under § 3553(a). The failure to consider the supporting evidence and the defendant’s circumstances was procedural error, particularly when the district court responded in detail to the prosecution’s arguments, but failed to address arguments of defense counsel.

In the sentencing memorandum, defense counsel presented several arguments for a lower sentence, including limited criminal history, low risk of recidivism, and the alternate sentences available, a statement from the defendant’s therapist, as well as the therapist’s notes, all of which highlighted progress and low risk of recidivism.

CP Guidelines are Presumptively Reasonable

In footnote seven, the Sixth Circuit notes many district court have expressed reservations about the child-pornography sections of the Guidelines being based solely on congressional mandates rather than empirical studies. However, the Sixth Circuit states the “presumption of reasonableness [of the Guidelines] attaches to all sentences within the Guidelines range; there is no ‘empirical evidence’ prerequisite.”

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