In a case decided Friday, United States v. Brinley, 10-5829, the Court seemed to add some confusion to the already perplexing world of variance appellate review. In Brinley, the defendant received a sentence of 108 months, despite: (1) a Guidelines range of 63-78 months, (2) a Government request for a sentence of 63 months, and (3) the defendant's request for a downward variance based upon mitigating circumstances. In holding that the 45 month upward variance from the Government's suggested sentence was substantively reasonable, the Court noted that although there must be a "correlation" between the extent of variance and the reasons for the variance, that this was accomplished in the present case, because the district court cited to 3553(a) factors, and "never lost sight" of the Guidelines range. ?????? It is difficult to determine how the analysis of this case falls in line with other variance reviews.
As a side note, the Court noted that the district court had violated its own local rule, in that the court failed to give pre-sentence notice of its intent to consider an upward variance. The Court noted that because the defendant was aware of the facts that the district court utilized to impose the upward variance, that the defendant could not prove prejudice under a plain error standard of review.
This case is worth a read, but seems to really confuse the issue of standard of review for an upward variance. There is no discussion of the axiom "the greater the variance, the greater the explanation required" that seemed to be running through upward variance cases.
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