Bad News on CP Sentencing

US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (for publication).  Panel of Judges Gilman, Kethledge, and Ludington (E.D. Mich.).

CP case.  Recommended sentencing range under the GLs was 63 to 78 months.  Dist ct sentenced the defendant to one night in lockup + ten years of supervised release.  (Probation had recommended two years of custody.) 

Gov appealed, arguing substantive unreasonableness. 

COA agreed and vacated the sentence.

Background details:
* Defendant was 67 years old. 
* No criminal history.
* Had suffered two strokes and cared for his ailing wife. 
* Gov had argued for a GL sentence.
* Dist ct said the GLS were "seriously flawed" b/c of Congress's involvement in them.

Appellate Court's conclusions:
* GLs still initial benchmark.
* Justification for a variance must be "sufficiently compelling" to support the extent of the variance.  Cites Gall
* If a dist ct rejects the GLs, the COA "will 'scrutinize closely.'" 
* The Constitution "merely tolerates, rather than compels" Congress's delegation of power to the Sentencing Commission.  "Congress can marginalize the Commission all it wants . . . ."  Congressional involvement in the GLs (that may be politically motivated, rather than motivated by empirical study) is more a "constitutional virtue, rather than vice." 
* Congress's delegation of power to the Commission is a limited one.  The remainder is retained by Congress.
* The Court found that "it follows that a district court cannot reasonably reject [section] 2G2.2---or any other guidelines provision---merely on the ground that Congress exercised, rather than delegated, its power to set the policies reflected therein." 
* The district court need not agree with the GL with which Congress has played a role, but Congress's involvement "is not itself a valid reason to disagree with the guideline."
* To survive close scrutiny, a sentencing "court must explain its disagreement in terms that are persuasive on policy grounds, not political ones." 

Comparing Kimbrough:
* Yes, "the Commission did not act in its usual institutional role with respect to the relevant amendments to [section] 2G2.2.  But that is because Congress was the relevant actor with respect to those amendments; and that puts [section] 2G2.2 on stronger ground than the crack-cocaine guidelines were on in Kimbrough."
* Nothing in the Constitution "confines the exercise of Congress's sentencing power to empirical grounds alone." 
* CP GLs based on retribution and punishment, as well as other concerns.

3553(a) discussion:
* "Notably omitted" from the dist ct's discussion ("and virtually unpunished") was the offense of possessing CP.
* The Court concluded that collateral effects of a conviction/sentence like having to register as a sex offender do not satisfy the need for a sentence to reflect the seriousness of the offense. 
* Gov provided a victim statement to which the COA looked. 
* The mitigating factors present could not justify the sentence.  Court cited United States v. Christman, 607 F.3d 1110 (6th Cir. 2010).
* Court concluded that the defendant had not expressed remorse and that the sentence "validated" the defendant's perceptions. 
* Court distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009).  Stall involved only plain-error review.  And government in Stall did not pursue the matter strongly.

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