McBride & Other Post-Gall Eleventh Circuit Decisions
The Eleventh Circuit’s decision in United States v. Pugh, No. 07-10183, 2008 WL 253040 (11th Cir., January 31, 2008) is interestingly at odds with the result in its decision in United States v. McBride, 511 F.3d 1293, 1296 (11th Cir. 2007), decided about a month before Pugh.
In McBride, in which the Court of Appeals affirmed the district court’s downward departure from a recommended Sentencing Guidelines range of 151 to 188 months to impose an 84-month sentence on the defendant, who pled guilty to distributing child pornography, because the defendant’s father had been murdered, the defendant had been physically and sexually abused as a child, suffered from various health problems and had enrolled in a sexual treatment program.
Although the Court did not cite Gall, it rejected the government’s argument on appeal that “although the district court discussed many of the [18 U.S.C.] § 3553(a) factors, it failed to give proper weight to some while overemphasizing others,” id. at 1297, holding that the Court:
[W]ill only reverse a procedurally proper sentence if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case,”
id. Similarly, a string of post-Gall, unpublished, decisions of the Court of Appeals prior to Pugh accorded substantial deference to sentencing courts’ decisions as to which factors under § 3553(a) to base a sentence upon, and the weight to be given a particular factor. See United States v. Mole, No. 07-12266, 2008 WL 216082, *2 (11th Cir., January 28, 2008) (unpublished) (“[N]othing in Bookeror elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors”); United States v. Kivett, No. 07-10202, 2008 WL 185502, *6 (11th Cir., January 23, 2008) (unpublished) (“The district court need not recite a laundry list of the § 3553(a) factors; rather, some indication in the record that the court adequately and properly considered the applicable advisory Guidelines range and the § 3533(a) sentencing factors is sufficient”); United States v. Ramirez, No. 07-13060, 2008 WL 185509, *2 (11th Cir., January 23, 2008) (unpublished) (“‘The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court[,]’ and we ‘will not substitute our judgment in weighing the relevant factors because ‘our review is not de novo’”); United States v. Arneto-Anaya, No. 07-12427, 2008 WL 142022, *2 (11th Cir., January 16, 2008) (unpublished) (same); United States v. Caisano-Guapi, No. 07-13520, 2008 WL 114878, (11th Cir., January 14, 2008) (unpublished). However, unlike McBride or Pugh, these cases involved sentences within the recommended Guidelines ranges, or upward departures or variances.