Downward Variance Vacated for Want of Explanation

US v. Provance: Provance pleaded guilty to assault causing bodily injury on a person under the age of 16 (this happened on a military base). The victim was his newborn son for whom Provance was the primary caretaker once his wife returned to work. Provance admitted to causing the injuries to his son, but could not remember inflicting them (nor could his wife, although she admitted she had “noticed” him “being rough with their son”). At sentencing, Provance sought a downward variance to probation, from an advisory Guideline range of 33 to 41 months, on the grounds that he had no criminal history, was employed, and was taking various classes and counseling programs to help with the issues raised by parenthood. The Government argued for a Guideline sentence. The district court, after making several references to why “the mother” was not before it and questioning how long it was before she returned to work, gave Provance probation. Aside from stating the sentence (including various conditions of probation), all the district court said was “[y]ou can appeal that if you want.”

The Government did appeal and the Fourth Circuit vacated Provance’s sentence. In doing so, it articulated a rigid protocol for examining sentences. The Government argued only that the sentence was substantively unreasonable – it was too short – not that the district court had procedurally erred when applying it (Provance, obviously, argued it was both procedurally and substantively reasonable). The court held that it was required, before reviewing any sentence for substantive reasonableness, to review it for procedural reasonableness. In this case, the sentence was procedurally unreasonable (and it was “inexplicable” that the Government didn’t argue such) because the district court “failed to provide any sentencing rationale at all,” which prevented review for substantive reasonableness.