Probationary Sentence Affirmed in United States v. Anderson
Despite the apparent limitation in Pugh, No. 07-10183 (11th Cir. Jan. 31, 2008) of a sentencing courts' discretion to grant downward variances from the ranges recommended by the United States Sentencing Guidelines, we are happy to note that the Eleventh Circuit Court of Appeals continues to affirm downward variances in deference to sentencing courts’ determinations (albeit if only through unpublished opinions).
- In United States v. Anderson, the defendant pled guilty to one count of insider trading from which the defendant profited approximately $135,000. No. 07-11848, 2008 WL 525669, *1 (11th Cir., Feb. 28, 2008) (per curiam) (unpublished). Anderson promptly repaid the monies he had earned, and the sentencing court sentenced him to 3 years probation, despite the Guidelines’ and the government’s recommendation of a sentence from 18 to 24 months. Id. The government appealed, and the Eleventh Circuit vacated Anderson’s sentence, concluding that the sentence was unsupported by “extraordinary circumstances.” Id.
- Then, in the wake of Gall v. U.S., 128 S.Ct. 586 (2007), the Court granted Anderson’s petition for rehearing, reversed itself, and affirmed the probationary sentence imposed by the district court, which was based not only upon Anderson’s disgorgement of the profits of his trading, but also, under 18 U.S.C. § 3553(a), “[i]n recognition of the limitations on Anderson’s marketability and employment, the district court reasonably imposed a probationary sentence and home confinement to ‘allow [him] to continue working.’” Id. at *3.
- Anderson is an encouraging sign from the Court of Appeals for practitioners with clients with relatively less severe charges but with persuasive facts and circumstances on the 3553(a) side.
