Booker Variance Guidelines Range of 135 to 168 Months to Probation; Appeals Court Gives Sentencing Judge Another Chance to Explain (8/10/13)

In United States v. Cole, 721 F.3d 1016 (8th Cir. 2013), here, the Sentencing Court exercised its discretion under Booker to move below the indicated Guidelines range of 135 to 168 months and impose, instead, only probation.  That is a huge variance, considered alone but particularly relative to her co-conspirators who were hammered without mercy.  The Government was not happy and appealed, urging that it was substantively unreasonable under 18 USC 3553(a) and because the sentencing court failed to explain the variance adequately.  The Court of Appeals declined to consider the former (substantive unreasonableness) because it remanded for a better explanation of the variance so that it could properly fulfill its role of appellate review of the variance.  The key parts of the opinion are:

In Gall, the Supreme Court emphasized that appellate courts must play a deferential role when reviewing sentences and stated that "[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Id. at 51. The Court reasoned, in part, that a "sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case" because "[t]he judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts  [*18] and gains insights not conveyed by the record." Id. (internal quotation marks omitted). Moreover, because the Guidelines are only advisory, the Supreme Court made clear that appellate courts cannot "require[] 'extraordinary' circumstances to justify a sentence outside the Guidelines range" or use a "rigid mathematical formula . . . as the standard for determining the strength of the justification required for a specific sentence." Id. at 47. 

Although the Supreme Court in Gall emphasized the deferential nature of appellate review of sentences, it also highlighted the importance of having an adequate record on which to base that review, especially where a district court imposes a sentence outside the Guidelines range: 

If [a district court] decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, [a district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. 

Id. at 50. The principle that "a major departure should be supported by a more significant justification than a minor one," id., applies regardless of whether the district court is varying above or below the advisory Guideline sentence. See id. at 43 (explaining that the defendant had a Guideline range of 30 to 37 months imprisonment but that the district court varied downward and imposed a sentence of 36 months probation).

Here, the district court found that Cole was responsible for causing Best Buy a loss of nearly $33 million and of evading more than $3 million in taxes. Cole and the government agree that the district court correctly calculated Cole's advisory Guideline range to be 135 to 168 months imprisonment—in other words, between 11.25 and 14 years imprisonment. The district court varied downward and imposed a significantly lower sentence, sentencing Cole to three years probation and no term of imprisonment. Cole's co-conspirators received much harsher sentences—180 months (15 years) imprisonment for Russell and 90 months (7.5 years) imprisonment for Bossany. 

Given the magnitude of the downward variance, the district court offered very little explanation for Cole's sentence. Moreover, the relatively brief explanation that the court did offer is at times contradictory. For example, the court stated at sentencing that it was "taking a huge chance" on Cole by imposing only a term of probation, but then said in its statement of reasons that it was confident Cole would not re-offend. Similarly, the court's statement of reasons suggested Cole just "went along with her husband's scheme and practiced willful blindness." However, this seems inconsistent with the guilty verdict on the tax evasion charges, because the jury instructions required the jury to find beyond a reasonable doubt that Cole "voluntarily and intentionally violate[d] a known legal duty." 

Because Cole's probationary sentence represents a "major departure" from the advisory Guidelines range, the court's brief and contradictory explanation of Cole's sentence is not sufficient "to allow for meaningful appellate review and to promote the perception of fair sentencing." See Gall, 552 U.S. at 50. Consequently, we cannot evaluate the government's claim of substantive unreasonableness at this time, and we remand for the district court to more fully explain the defendant-specific facts and policy decisions upon which it relied in determining that the probationary sentence is "sufficient, but not greater than necessary," § 3553(a), to achieve the sentencing objectives set forth in section 3553(a). See United States v. Moore, 683 F.3d 927, 932 (8th Cir. 2012).

My read is that the appellate court is signaling the sentencing judge that he or she will have to present a better narrative to justify that significant a departure.