US v. Heath: Heath pleaded guilty to interference with commerce by robbery and being a felon in possession of a firearm. The facts underlying the conviction included the robbery of a convenience store and a burglary during which Heath stole 10 shotguns and rifles. Heath's advisory Guideline ranges were 100-125 months on the robbery and 100-120 months on the gun charge. The PSR laid out Heath's extensive criminal history, including prior convictions for stabbing someone in the chest and shooting a police officer. It also detailed his disciplinary problems during previous terms of imprisonment. The Government sought an upward departure due to the under representation of Heath's criminal history. The district court agreed and imposed a statutory maximum term of 240 months on the robbery charge, to be served concurrently with a 120-month sentence on the gun charge.
Heath appealed, arguing that his sentence was unreasonable. The Fourth Circuit, 2-1, disagreed and affirmed. The court found no procedural error in the district court's application of sentence. Emphasizing the deference which appellate courts much accord a district court's sentence in a post-Booker world, the court also concluded that the sentence was substantively reasonable. It probably didn't help that defense counsel admitted that heath "has the proverbial record as long as your arm and has acted violently, possessed weapons and, in common parlance, has been a bad actor all his life."
Judge Gregory dissented, arguing that the district court did not sufficiently explain why the statutory maximum sentence was needed in this case. It was another assertion of his "position that substantive reasonableness must encompass more than the rote recitation of 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today."