Double Standard Basically Official for Sentencing Appeals

In the wake of the Bistline decision last week, the Sixth Circuit today vacated and remanded another below-guidelines sentence in United States v. Traxler, No. 10-1792 (6th Cir. Jan. 18, 2012). Panel of Judges Kennedy, Martin and Stranch (dissenting).
Cory Kent Traxler pled guilty to being a felon in possession of a firearm and had a guideline range of 151 to 188 months with a 180 month mandatory minimum. The government moved for a downward departure for substantial assistance and the district court sentenced Traxler to 60 months. The government appealed.

The government's arguments will sound all-too-familiar to Federal Defenders: the district court appeared to consider impermissible factors and the district court failed to adequately explain its sentence. Perhaps unaccustomed to losing, the government did not raise the objection at sentencing and so faced plain error review.

The descriptions of the sentencing transcript will also sound familiar. There were two motions pending before the court: the substantial assistance departure and a 3553(a) downward variance. The sentencing judge "engaged in a lengthy colloquy." It "would have been preferable for the court to specify how far it departed downward based on substantial assistance and how far it varied downward based on other appropriate considerations." The court did not explicitly consider any impermissible factors -- but it might have.

A lengthy colloquy without clear evidence of error? Plain error review? No chance this is getting reversed, right? Wrong. Over Judge Stranch's dissent, the Court vacated and remanded the sentence as substantively unreasonable because the sentencing transcript "makes it appear that" the district court relied on impermissible factors. The Court also found the sentence procedurally unreasonable for failure to give an adequate explanation.

This case epitomizes what is already a well-documented trend on this Blog: the Sixth Circuit's reading of a sentencing transcript -- especially the deference given to district court judges -- is wildly inconsistent depending upon whether the appellant is the government or the defendant.


Anonymous said…
This is terrible and happens far too often. Not standing by the Judge's original decision shows a total lack of respect and regard for our Justice System. Shameful that they can so easily strike down a sentence. They should show some intregity and abide with the Judge's original decision.
Bev said…
As the parent of Cory, (my only son), I well recall sitting in a full courtroom, filled with students, waiting for the Judges decision, two years ago.
We were jubilate at the Judges fair decision. A five year sentence for possession of a firearm seemed completely appropriate. In my opinion the other side was morally wrong to oppose the Judge's decision. Our family finds this recent appeal news devastating.
craig4945666 said…
Patrish said…
This is such a total miscarriage of justice that it seems surreal. It is just one more nail in the coffin of American civil rights. The five year sentence was appropriate, but God forbid that the punishment fit the crime when it concerns the Establishment. This is a frightening reversal, a horrible inequity that has negative implications for all of us, and a heartwrenching thing for our daughter-in-law's family.
Jill said…
I am the Aunt of Cory Traxler. I understand if you do the crime than you must do the time. Well, Cory is doing his time and the Judge made his decision. If it was one of their children or relatives wouldn't they fight for justice & fairness? When a Judge or a jury makes a decision, we must respect that. Has our nation become that greedy? What about humbleness?
Anonymous said…
I would like to know how much the Federal Government forked out to go through the whole appeal process after the judge had made his ruling? Do they not have bigger fish to fry?! I think they are making a joke of justice system and i agree that for the crime that this gentleman committed the judge made a fair decision. Shame on them!!!
Anthony said…
At the risk of placing myself into what seems like the government's barrel of fish, I cannot sit here and hush. This whole situation is an "impermissible factor". Knowing Cory, who is intelligent and full of life despite having "lived" very little of it due to juvenile-based incarceration, implying that he is a terrorist or politically dangerous is like saying that a promiscuous and confused girl is going to be a prostitute while at the same time failing to mention that you raped her as a child and made her the way she is. That being said, Cory did what he could to be himself and enjoy a life outside a cage, in a albeit spectacular and condensed manner. He loves music, taught himself to play a guitar, fished every chance he got, stayed social, fell in love, had children and loved it all to death. All the trials and tribulations of our youth he had to experience in a rockstar blaze of much less time. Mistakes were made, like all of us have on occasion, but not with malice. He doesn't "hate" like the government says he does and I would be willing to bet that the angst he does harbor is a result of feeling like he's backed into a corner.
I consider myself a REALLY laid back, passive person who likes to give the benefit of the doubt, but this really seems like Cory is being made an example. This is not permissible. The People do not give the government the right to make an example of anyone and if whoever is railroading this conviction feels that they do, they are grossly misinterpreting their privileges and abusing them. Not to mention that they will be making an example of a judge as well. What does that say? Are we supposed to trust the justice system as long as it isn't against the government? c'mon. I know there has to be some good people working with these prosecutors that know better and are willing to stand against this kind of overkill.
Perhaps I'm wrong. Perhaps they didn't find in the explanation of sentencing a definition of satisfactory specificity because they lack the vision required by a properly skilled person (like a judge) to vet all the criterion, and thus, cannot actually see or properly understand the "factors" which the judge fairly considered. Or maybe I was right and it just wasn't defined in a manner conducive to their ability to accept justice.
In any case, it hardly seems like the prosecution is using their leverage wisely. This is like crushing an ant with a bulldozer. It's not at all fair. He doesn't have the weight that they are lending him. He is nobody.
With all due respect to the institutions that govern the land that I love, Cory, like all of us, is nobody they need to fear, but also like everyone they should. Someone needs to remind them of this. period.
Jean said…
Armed Career Criminal

This case shows the GROSS misuse of this charge that is seen over and over again.
Breaking and entering and target practicing in the woods is a far cry from what this "label" would try to represent. They then turn around and use it as leverage to intimidate the charged.
This charge has some teeth and should be used ONLY on truly VIOLENT offenders.
To misuse this law as clearly seen here in this case is wrong and should be disallowed.
Anonymous said…
With all the comments that have been posted I have to feel somewhat let down with our Black & White Laws. There has to be alittle bit of Color in determining someones destination. Especially when one had already prepared himself for what was said to be, but yet overthrown because another may have had a bad day !! The Judge's original decision should stand otherwise we are just making a mockery of our Justice system. VM
Bonnie said…
I am so sorry that out Justice system has gone so far that they can not accept a Judges decision BASED on his help in court. This just shows how the prosecution can change peoples life with a stroke of a pen. Cory did not need this and for what carrer criminal. Please I have seen more people go free on much worse thatn anything that Cory did. We are letting our men that have raped and molested young people both young boys and girls. But they were up standing cicizen's and they never received what they should have LIFE they just got a few months and that was it. Also how can Wall Sterrt billionaries not receive any more than a slap on the hand or a few months in jail for taking OUR money. Yet Cory has to spend all this time in prison just because the prosection did not like the sentence. WHAT A SHAME THAT THEY ARE ALOUD TO CRY and get their way. Just more tax payer money for NOTHING> They should be going after the real bad guys but they can't becasue they are either stupid or afraid that they could not win unless it is some one who does not have the MONEY to pay OFF the JuSTICE SYSTEM. LU Cory
Anonymous said…
Felon in possession of a Firearm, yes. Career Armed Criminal? NO!
When the Government realized that there was no real malice involved on the part of these young men, anyone with an ounce of true morals would have dropped the Career Armed Criminal charge. This is like taking your dog in to be put to sleep because it has cancer, being told it doesn’t have cancer, and killing it anyway!
The law is suppose to be about just punishment, NOT vengeance. To then turn around
And not accept a fair sentence, deplorable.
Beth said…
I have known this wonderful family for over 25 years and Cory his entire life. Cory is not a violent man. He is a young man that has made mistakes and wrong choices in his life. Apparently courts can make wrong choices too. The original sentence should stand.
Bev Traxler said…
Two years ago, Cory’s father met me at the door with the grim news that our son had been arrested. I knew we were likely looking at a few years, but the actual charges took my breath away. I was dumbfounded, along with anyone else outside of Federal law circles.

It had been a decade since Cory had last been in trouble as a teenager and served his time and due in a private facility. Any reference to dialogue created and nourished by the young incarcerated in such places, should be not only addressed by the teenager, but also by the institution that originally fostered it.

It has been my experience and great disappointment to often witness wrongdoings on both sides of the aisle. However, my faith in our system was greatly restored, albeit for a short time, when the Judge handed down a good and just sentence.

That has now been taken away from Cory, from his children, friends and family. It was not an easy task, explaining to an 11-year old girl, that they have taken your daddy’s sentence from him. Cory, we will be there for you once again at sentencing. We simply refuse to believe they can take this from us. It simply would not be right.
Family said…

For those who have requested more information, along with photos, etc.
Doug Tjapkes said…
And this is the greatest judicial system in the world? Gimme a break!
It's time that we lean on legislators, state and national. If they need our votes, they also must get our opinions. Speak up!

Doug Tjapkes, President
Sumter Camp said…
The suggestion that the district court cannot consider anything but the substantial assistance in making its sentencing decision conflates the two decisions that a district court must make: 1) the Guidelines range, and 2) the application of the 3553(a) factors. Before a district court can get to the 3553(a) factors it must first correctly compute the applicable guidelines range. As 5K1.1 is a guidelines section it should be applied at this point. Having reached a decision of what the range would be after taking into account a defendant's substantial assistance, the district court must then go on to consider the 3553(a) factors. That consideration could lead a sentencing court to determine that the guidelines range (which includes the 5K1.1 reduction) is still greater than necessary to achieve the sentencing goals of 3553(a). If that is the court's decision, then it must, under the parsimony provision of 3553(a), impose a sentence lower than that range. On this point, the dissent would seem to have the better position.
Anonymous said…
When did they stop allowing Judges the freedom to pass a fair sentence? Last I knew Judges had the right to use their influence to encourage rehabilitation and education. Inequitable sentencing for a crime and endless appeals, aren’t fair to the accused, their families or the taxpayer footing the bill.
Another injustice from the hands of MDOC. Why do we still continue to lock people up when they don't need to be when we're trying to save money on prisons...another $35,000 when one could have a chance to return to be a productive member of society? and Cory are in our prayers!
Anonymous said…
Eight years loss of freedom and this isn’t enough, for a victim-less crime?
It would seem that often the crimes of the accused pale in comparison to the actions of the other side. What does the other side hope to accomplish here? Why exactly do they feel eight years isn’t enough? Decade and longer sentences should be reserved for killers, robbers and sick sex offenders. Why aren't they spending our tax dollars there instead?
Vicki Smith said…
I can't believe that our system is doing this to a young man who made a mistake. Cory is not a violent person, and there was no victim in this crime. 8 years? In the mean time we have animal abusers, sex offenders, etc. who just get a little slap on the hand and are returned to live among society. Cory needs to be released, he has two children and a family who desperately love him and miss him.
Anonymous said…
This young man and his family have been through enough. I am hoping fairness will prevail at the upcoming sentencing. It sickens me to have a convicted sex offender living across the street from me. A man who along with two of his friends, raped a 13-year old girl. He did less than 3 months in jail, and now he, his wife, and three children live off the government. Where is the fairness? Cory did not commit a violent crime. He needs to return home to his family!
Anonymous said…
"The guidelines and mandatory minimums put the vast majority of discretion in the hands of the prosecution. ... I'm not against a reasonable amount of prosecutorial discretion, but there's an overload of it now."

All over the internet you find evidence of a Federal system that is no longer allowing just and fair sentences ; outlandish punishments that do not fit the crime.
It is appalling to realize what is happening in our Federal Court System. Until something draws your attention to it... it is like so many things in life. Until it affects you, you are not aware of it. This man was given a fair sentence and we will all be watching. This man does not deserve to be just another one swept under the rug. We will all be watching to see that this just and responsible sentence stands.
Anonymous said…
"Voices are the catalyst for change; unless we give voice to the issues that concern us, no change will ever occur."
Tammyvk said…
My husband and I had a chance to read all the documents available here regarding the appeal that the government has decided to bring to the court of MI.
We are astonished that such an appeal would be considered regarding this case against Cory, based on the facts of the trial where he was given his original sentencing.

I, personally, have known Cory and the family for well over 25 years and Cory is a good person with a supportive family!

I would ask the court to follow through with the original decision based on the assistance by Cory and the plea bargain that was accepted, which seems to me a very appropriate sentence.
He has served his time accordingly.

I could go on and on about how there are such felons out on the streets that have committed more severe crimes, even those against children, and yet walk free! The fact is; Cory IS a good man, a good father and just wants to live out the rest of his life to the best of his ability as a citizen in his community.
I am looking forward to seeing him as a free man once again! You (the court) can make that happen for him and his devoted family!
Jennifer said…
I agree with everything everyone has said here. It's amazing to me to see so many people committing such serious crimes getting so much less of a sentence than Cory. I think it's disappointing and heartbreaking. And "you" wonder why people don't have faith in the justice system???? What also amazes me is that he may be punished severely for taking advantage of a right that this country was founded on!! Would the same thing happen to someone who didn't have a record? Someone who wasn't part of a group? He did what, I'm sure, many, many people have done.
But, putting that aside: He was sentenced on his parole violation only; and he served that sentence. He should be home now! How can it be okay to decide later to charge him with an additional crime? It's not right. Let him go. Let him be with his family. He comes from an upstanding family. One that is full of love, kindness, loyalty, trust, and caring. And, Cory has learned these could he not? Please, let him get back to being a son, a brother, and a father!! He deserves this WAY more than the many others that have gone and are free!!
Thank you.
Anonymous said…
The Judge exercised a quintessential judicial power, the power to sentence. Suggestions and recommendations should be just that, they should not bind a Judge to give up the right to do his job.

It would seem a basic right for a Judge to determine a fair and just sentence and to have the ability to stray from unjust harsh sentencing. The Prosecution should also conduct their side with the graciousness to accept a Judge’s decision.

What happened to that old law that trusted in a Judge's wisdom to do what is right, and allow him to use his wisdom, discretion and skills?
amanda said…
I am writing in support of my brother and am praying for another fair sentence. Going through this is so hard on his family so i can only imagine how hard it is on Cory himself. Cory is NOT the person he is being portrayed as but has made mistakes that he should be held accountable for. He knows this. Which i believe the original sentence held true to that. I am hoping and praying that he is able to come home to us sooner than later.
Patty said…
I've known Cory for a long time and everyone makes mistakes. I've witnessed Cory with his children, playing his guitar, and in my eyes I feel he is a good dad and a good person.
I don't feel like Cory was out to harm anyone at all, I feel like he's being made an example. I don't feel prison is the place for Cory, he could be an asset to society and should be with his children.

Popular Posts