Friday, January 18, 2019

Failure to Explain Sentence In Face of Defense Arguments Not Harmless Error

USv. Ross: Ross was convicted of three counts involving child pornography. At sentencing, Ross asked for a 60-month sentence (the applicable mandatory minimum), to be run concurrently to his 120-month state sentence, while the Government argued for a 120-month sentence to run consecutively to the state sentence. The district court adopted the Government’s requested sentence. The district court also imposed a lifetime term of supervised release.

The Fourth Circuit vacated Ross’ sentence because it was procedurally unreasonable. Specifically, the district court failed to adequately explain its reasoning for imposing the sentence it did and, in the process, failed to respond to Ross’ non-frivolous arguments for a lower sentence regarding “mental health issues” that “caused him to appear to lack remorse.” Nor did it address his history of employment, caretaking role for his aging mother, and the “relatively small amount of illicit material” involved in the case. Nor was the error harmless. The court also concluded that the district court failed to explain why it imposed the conditions of supervised release it did, particularly given the lifetime term of supervised release.

Congrats to the Defender office in Maryland for the win!

Credibility Determinations Supported Murder Cross Reference

USv. Slager: Slager was a police officer in Charleston, South Carolina, who stopped a motorist, Walter Scott. Scott fled on foot, was caught by Slager, and then, as he began to run away again, was shot in the back five times by Slager. Scott died. Slager pleaded guilty to violating Scott’s civil rights. At sentencing, the parties contested whether the proper Guideline cross reference was to second-degree murder or voluntary manslaughter. Slager argued that Scott provoked him and thus he did not act with malice. After hearing testimony from witnesses, Slager, and viewing video of the incident, the district court imposed the murder cross-reference and sentenced Slager to 240 months in prison.

The Fourth Circuit affirmed Slager’s sentence on appeal. Slager reiterated his argument that when he shot Scott he had been provoked because Scott had punched him and was “on top of me at some point.” The court rejected that argument, finding that the district court had not abused its discretion by concluding that Slager’s version of the incident was not credible (he had, by the time of sentencing, given several different versions of what happened). “The record,” the court concluded, “amply supports that credibility determination.” Nor did the district court “reversibly err” by not crediting the testimony of Slager’s expert witnesses. Based on those credibility determinations there was no error in the district court finding malice and imposing the murder cross reference. The court also held that the district court had not plainly erred by enhancing Slager’s sentence for obstruction of justice based on unsworn false statements he made to state investigators.

Sentencing Court Can Decided Not to Decide Concurrency With State Sentence

USv. Lynn: Lynn was involved in a traffic stop that ended with a police officer landing on top of him and being shot. He was charged in state court with, among other things, attempted first-degree murder and, while he was in state custody, indicted federally for being a felon in possession of a firearm. He pleaded guilty to the federal charge. At sentencing the district court imposed the maximum sentence of 120 months in prison. After hearing arguments about how that sentence should interact with any sentence imposed at the conclusion of the state proceedings, the district court said it was “‘terribly difficult’ for it to calculate what portion, if any, of Lynn’s sentence should run concurrently with his anticipated state sentence.” The district court eventually decided it was “no able to make a determination” and therefore “decline[d] to make a finding with respect to that issue. The state court later imposed a sentence of 104 to 137 months in prison.

After affirming the use of the murder cross reference, the Fourth Circuit also affirmed the district court’s decision not to decide on the concurrency of the federal and state sentences. The court noted that statutory law “allows” judges to impose concurrent and consecutive sentences. And while the Guidelines purport to require a concurrent sentence in the face of a pending state sentence for the same conduct, the court noted that they’re advisory and so cannot require the district court to do anything. Instead, the district court’s only duty is to consider the relevant sentencing factors in determining whether to make a concurrent/consecutive decision. In this case the district court “provided a thorough explanation of its sentence” and was fully aware of its discretion to impose a concurrent sentence “but simply declined to exercise its discretion.”* While it most routine cases courts should make such a determination, it is not a requirement in every case.

Judge Floyd dissented, arguing that while the Guideline provision was not binding it was still the advice of the Commission which the district court was required to either adopt or reject, but it “did not have the discretion to make no decision on concurrency at all.”

* (see also – “If you choose not to decide, you still have made a choice”)