Monday, June 02, 2008

Court Upholds 316% Upward Variance

US v. Evans: Evans committed a series of fraud and identity theft offenses, starting when he bought some personal information of Wachovia Bank account holders from a friend who worked at the bank. Eventually, he passed $13,600 in bad checks on the accounts of two individuals. Based on that loss, Evans's advisory Guideline range at sentencing was 24-30 months. In addition, the Government moved for a downward departure for Evans's substantial assistance in going after the friend who sold him the information. The district court saw things quite differently, concluding that the Guidelines grossly understated Evans's criminal history and the seriousness of his offense. It imposed a sentence of 125 months in prison.

On appeal, Evans argued that his sentence was unreasonable. After holding the case in abeyance pending the outcome of Gall, the Fourth Circuit affirmed the sentence. The court reviewed the record and concluded that the district court "carefully and thoroughly applied the prescribed sentencing factors" when imposing sentence. Affirmance was necessary, given "the requisite deference we must accord to the considered judgment of the district court." The court then specifically rejected Evans's argument that the Guidelines prohibited a departure on the grounds relied upon by the district court (the district court cited some Guideline provisions during the sentencing), concluding that if the sentence is reasonable and the district court was applying the 3553(a) factors the Guideline analysis was irrelevant. The court also rejected Evans's argument that the scope of the variance was too great. Judge Gregory concurred in the judgment, but wrote separately to "encourage a more tempered overall approach to the substantive reasonableness analysis."

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