Unrequested Variance to Probation Vacated

US v. Morace: Morace pleaded guilty to one count of possessing child pornography, after an investigation showed that he was sharing child porn files across an Internet peer-to-peer network. The parties agreed that the advisory Guideline range was 41 to 51 months and, at sentencing, further agreed that a sentence of 41 months in prison was appropriate. Without explanation, the district court continued the hearing. When the hearing resumed two months later, the district court varied from the Guidelines and imposed a sentence of five years probation. The Government objected and appealed.

On appeal, the Fourth Circuit vacated Morace's sentence. Although the Government conceded that some variance might be warranted in this case, and that a variance to probation could be appropriate in some child porn cases, it nonetheless argued that the variance in this case was too great. Morace, the court concluded, was a "mine-run" defendant, as demonstrated by his agreement that a 41-month sentence was appropriate and the district court's "commonplace reasons" for imposing a sentence of probation. Without request, the district court had "imposed the most extreme downward variance possible." Thus, the court vacated Morace's sentence and remanded for further proceedings, without concluding that a new sentence of probation would necessarily be unreasonable.