In United States v. Denny, 09-6029 (August 10, 2011), the Sixth Circuit upheld an above-guidelines sentence. The key issue on appeal was whether the twenty-seven month increase was a departure or a variance. In order to affirm the sentence, the Sixth Circuit needed to find that it was a variance.
The oral sentencing was arguably ambiguous: the judge referred to the increase alternatively as "a departure" and "not a departure" and never used the word "variance." In the Statement of Reasons, however, the judge unambiguously checked the box marked "departure" and also cited to specific departure provisions under the Guidelines.
The Sixth Circuit first examined the oral sentencing transcript and determined that the judge had intended to impose a variance. As the Court noted, traditionally the Statement of Reasons can be used to divine the intent of the sentencing judge if the oral transcript has some ambiguity. In this case, however, the Court backpedaled significantly from that tradition.
The Court noted that the purpose of the Statement of Reasons is not to protect the defendant but to provide information to the Sentencing Commission. This, of course, has always been true, and the Court gave no explanation as to why this particular Statement of Reasons was so much more insignificant than those in prior cases. Attorneys should take note that this case significantly weakens the power of the Statement of Reasons.
Two more things to take away from this case : (1) in footnote 4, the Court noted that Congress is attempting to make the Statement of Reasons "a more formal document" and that, in the future, it may carry more weight; (2) going forward, watch for instances when the Statement of Reasons favors the government and see if the Sixth Circuit stays true to this holding.