Two takes on “substantive reasonableness” sentencing review

The Sixth Circuit issued two decisions this week that show both the promise and limits of appellate review of sentencing decisions.

1. The standard outcome

The first decision, United States v. Muchow, shows the usual limits that apply in a sentencing appeal.

Wesley Muchow pleaded guilty to child-pornography charges (he had 129 images and 4 videos) and faced a sentencing range of 135 to 168 months. He received 135 months. He argued on appeal that this sentence was substantively unreasonable, noting his other law-abiding conduct and that the district court held against him uncharged viewing of child pornography in the past.

In affirming, as is typical, the Sixth Circuit emphasized the “significant latitude” afforded to sentencing courts. It explained: "Where a district court acted reasonably in imposing a sentence, this Court must affirm its decision."

As an aside, two notables: (1) This is Judge Readler’s first authored opinion. (2) It is unusual to see this type of sentencing-review decision published.

2. When substantive-reasonableness review has teeth

In contrast, the second decision, United States v. Warren, shows when appellate review can make a difference. 

In the district court, the parties both agreed that a guidelines sentence of 51 to 63 months was appropriate for Davian Warren’s possession of a firearm. But N.D. Ohio Judge Adams varied upward to 120 months, the statutory maximum.

The Sixth Circuit reversed the sentence as substantively unreasonable.

In doing so, the court explained that sentences above the guidelines range are not given a presumption of reasonableness, and a sentencing court must adequately justify its variance from the range. The court then noted that Judge Adams had recognized his disparately harsh treatment of Warren but cited only Warren's criminal history as a reason for the disparity. The Sixth Circuit found this justification not "sufficiently compelling" to justify "the greatest possible upward variance under the statute." It explained:

"[B]ecause the Guidelines already account for a defendant's criminal history, imposing an extreme variance based on that same criminal history is inconsistent with 'the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct' under 18 U.S.C. § 3553(a)(6)."

Unfortunately, this decision is unpublished (at least for now). But it shows that there is still some hope of appellate courts reining in unusually harsh sentencing decisions.