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.