Alice Batchelder: Gall and Kimbrough didn't happen, Different ways to abuse your discretion announced

Sorry for the lack of posts but it has been hectic lately. Regardless, a new decision by the Sixths today prompted me to need to post again. On remand from the Supreme Court, a panel of the Sixth Circuit vacated and remanded a district court's below-guidelines sentence. In United States v. Funk, Judge Batchelder and District Court Judge Bell found that, regardless of the abuse of discretion standard announced in Funk's companion cases of Gall and Kimbrough, a below guideline sentence was unreasonable. In Mr. Funk's case, he was deemed a career offender by the Guidelines with a then mandatory range of 262 to 327 months. The district court initially imposed a sentence at the low end of this Guideline range, but that sentence was later reversed and remanded for consideration in light of Booker. At the resentencing, the district court determined that a sentence in line with that Guideline was too harsh, and it eventually sentenced the defendant to 150 months.

Even with the newly announced abuse of discretion standard from the Supremes, the majority in Funk today found "that the district court did not justify the variance in this case adequately, and therefore, the sentence is substantively unreasonable." Funk at *2. The majority identified three questions that appears to be some new formulation for the substantive reasonableness test derived from Gall's suggestion that variances in "mine-run" cases may be subject to closer review, "(1) Is this an atypical case, outside the Guidelines' 'heartland' of cases, that entitles the district court's decision the 'greatest respect'; or, is it--as the evidence suggest--a 'mine-run," case warranting some 'closer review'; (2) If this is a 'mine-run case,' what exactly is this 'closer review'?; and (2) Taking into account the appropriate standard of deference--greatest respect or closer review--did the district court abuse its discretion by imposing a sentence of only 150 months when the advisory Guidelines range was 262 to 327?" Id. at *5-6. According to the majority, "[t]hese are questions of law for this court to decide and we have determined that there is no need to remand this case to the district court for further development of the record." Id at *6. Finally, what appears to be the heart of the majority's opinion is that it rejects the district court's judge's determination that the career offender category was too harsh on the defendant. Batchelder writes, "[b]y stating that 'the career offender enhancement [is] excessive and unreasonable," the sentencing judge appears to have concluded that--because a controlled substance offense involving marijuana is not as serious as one involving 'cocaine, heroin, ecstasy, methamphetamine, or firearms'--Guideline S 4B1.1 (the career offender enhancement) should not include marijuana convictions." Id. at 7. The majority found that the district court's justification was an "improper judicial explanation for a departure, as it has nothing to do with S 3553(a) factors." Id. Finally, the majority found that the sentence was substantively unreasonable because, "the sentencing court clearly indicated that it would not sentence Funk as a career offender, despite the clear direction by Congress, see 28 U.S.C. S 994(h), that offenders such as Funk be sentenced as such." Id. at *8. So the district court abused it's newly found discretion by going down in the sentencing range.

In an intriguing occurrence, Chief Judge Boggs wrote a dissent from Judge Batchelder, finding that "[w]hile a more extensive, fact-laden, or lyrical exegesis might have been possible or preferable, what I take from the record is that the judge did consider thoughtfully the facts of this case and did enough that he did not abuse his discretion." Perhaps this conflict between Boggs and Batchelder could be remedied by a Petition for Rehearing.