Here's a joke for you: When is the abuse-of-discretion standard really impermissible de novo review? When the Sixth Circuit reviews a district court's downward variance! (*Pause for laughter*) But seriously folks, Bistline reared its ugly head again today in Judge Moore's surprising Peppel opinion, in which the Sixth Circuit once again appears willing to give the closest scrutiny to sentences that are "too low."
In Peppel, the defendant pleaded guilty to charges related to certain fraudulent conduct as the CEO of a publicly traded company. Although the sentencing guidelines suggested a range of 97-121 months' imprisonment, the district court instead imposed a sentence of seven days, three years of supervised release, and a $5 million fine. It did so based on a lengthy hearing and extensive findings regarding the defendant's role in the community, his support of dependents, the severity of the non-custodial elements of the sentence, the blow to Mr. Peppel's reputation caused by a conviction, the lack of any empirical basis in the fraud guidelines, etc.
In an opinion that regularly cites to Bistline, the Sixth Circuit found that this sentence was substantively unreasonable because it (1) did not sufficiently address the need for deterrence, (2) did not sufficiently address the need to avoid sentencing disparities, and (3) placed too much emphasis on the history and characteristics of the defendant. Despite the professed abuse-of-discretion standard, the opinion closely scrutinized the district court's decision-making in a manner resembling the de novo standard that the Eighth Circuit applied --- and that the Supreme Court rejected --- in Gall. For example, the district court examined the "history and characteristics" of the defendant in concluding that the combination of prison time, supervised release, and a harsh fine would deter future criminal conduct. The Sixth Circuit rejected that analysis, suggesting that such a focus on the individual defendant would potentially mean that white-collar criminals would benefit more from this than the typical drugs-and-guns defendant.
Likewise, the opinion rejected the district court's reliance on the defendant's support of his family and the community, noting that "we cannot agree that the circumstances identified by the district court justify varying downward in such a significant manner." In other words, the court of appeals has no disagreement with the district court's fact-finding, but it is closely scrutinizing the district court's opinions of how to weigh those facts in the sentencing in light of how far the ultimate sentence varied from the guidelines range. The court of appeals simply disagreed with the district court's conclusions: "Based on the record in this case, there is nothing to indicate that the support provided by Peppel to his family, friends, business associates, and the community is in any way unique or more substantial than any other defendant faces who faces a custodial sentence."
The silver lining of all of this quasi-de-novo review is that it may call the Supreme Court's attention to this disturbing trend (which apparently only applies in the Sixth Circuit). The Supreme Court took a pass on Bistline the first time around, but it may reconsider now that it is clear that Bistline is not only here to stay but is also influencing other decisions.