Monday, November 28, 2011

Judges Disagree Over Substantive Reasonableness Claims, but Affirm Anyway

The Sixth Circuit decided United States v. Jowers today (disclosure: this case came out of our office). In Jowers, the defendant was convicted for being a felon in possession of a firearm and received a 2 level enhancement under U.S.S.G. § 2K2.1(b)(1), which applies when the offense involves 3 to 7 firearms. The defendant’s mother purchased two firearms “in his presence and with his assistance,” after he became a felon. However, before the defendant became a felon, his father owned 2 firearms which his father stored in the defendant’s room. After the defendant became a felon and his father passed away, the defendant negligently failed to remove the firearms from his room.

Jowers argued that his sentence was substantively unreasonable due to the unwarranted sentencing disparity between himself and others who received the 2K2.1(b)(1) enhancement: i.e., in the mine run case, a defendant who receives this enhancement will intentionally possess 3 to 7 firearms but this defendant intentionally possessed 2 firearms and negligently possessed 2 firearms. Defendants should not receive the same punishment for such disparate offenses and Jowers was therefore entitled to a downward variance.

The majority opinion was about 1 page long and did not engage in any analysis of the merit of Jowers’s argument. Instead, the court took issue with the defendant’s failure to cite other cases in which a defendant had won a substantive reasonableness appeal due to application of 2K2.1(b)(1) to a defendant who negligently possessed enough firearms to qualify for that enhancement. The opinion concluded that Jowers, “makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.”

The concurrence agreed that Jowers argument should fail (for many of the same reasons substantive reasonableness arguments of defendants usually fail), but disagreed with the short shrift given to the defendant’s argument by the majority. “I disagree with the assertion in the majority opinion that Defendant ‘makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.’ I believe that Defendant does make such an argument.” The concurrence also took the majority to task for discouraging defendants from making novel arguments:

“I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to ‘explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.’ Although Defendant did not cite to any cases where a defendant received a downward variance because he only ‘negligently’ possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.”

The moral of the story? Defense attorneys should not give up raising new arguments that their clients’ sentences are substantively unreasonable. At least some Judges will consider your arguments.

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