Life Plus 60-Month Sentence Substantively Unreasonable

US v. Howard: Howard sold PCP in North Carolina, as evidenced by a string of controlled buys made from him by police.  He was charged, tried, and convicted of conspiracy to distribute, substantive distribution (nine counts), and possession of  a firearm in furtherance of drug trafficking.  All while on supervised release for a prior federal conviction.  In the PSR, Howard's advisory Guideline range was calculated as 78 to 97 months, although he faced a mandatory minimum 120-month sentence due to his prior conviction.

But Howard's sentence only rose from there.  First, the district court attributed more PCP to Howard, bumping his Guideline range up to 120 to 121 months.  Next, the Government requested a variance based on the Guidelines' undrerepresentation of Howard's criminal history, up to a Criminal History Category VI, bumping the range to 140 to 175 months.  The district court, "not satisfied," decided sua sponte that Howard was a de facto career offender and, after applying that Guideline, bumped Howard's range up to 420 months to life.  The district court sentenced Howard to life in prison on the drug counts, followed by a consecutive 60-month sentence on the gun count.  He also received a consecutive 60-month sentence following the revocation of his supervised release.

Howard appealed, challenging the substantive reasonableness of his sentence when requested to do so by the court.*  The Fourth Circuit found that Howard's sentence - life plus 60 months - was substantively unreasonable.  The "extent of the upward departure is unwarranted and amounts to an abuse of discretion" and "is not justified by consideration of the 3553(a) factors as articulated by the district court."  Specifically, the district court "abused its discretion by focusing too heavily on Howard's juvenile criminal history."  That history showed that "most of his serious criminal convictions occurred when he was eighteen years old or younger."  Looking to the Supreme Court's recent cases dealing with juvenile death penalties, the court noted that "in the sentencing context, the diminished culpability of juvenile offenders, given their lack of maturity, vulnerability to social pressures, and malleable identities."  The district court failed to address those issues.  The court also rejected the district court's conclusion that Howard's chance of recidivism was "[a]bsolutely 100 percent" by looking to his age, the age at which he might be released, and noting that recidivism declines as a person ages.  Finally, the court noted that the sentence imposed by the district court was well above what the Government recommended.  While not controlling, the experience of AUSAs can help achieve one of the key goals of the Sentencing Reform Act - avoiding unwanted disparities.

The court vacated Howard's sentence and remanded for further proceedings.  In doing so, it pointed out that it "goes without saying, then, that our holding is limited to the facts of this case."

* Although he initially appealed the supervised release sentence as well, Howard withdrew that issue and that appeal was dismissed.  Howard also challenged the sufficiency of the evidence supporting his convictions, an argument the court rejected.