United States v. Pugh: Limiting Sentencing Courts' Deference and Discretion Under Gall v. United States
In United States v. Pugh, No. 07-10183, 2008 WL 253040, *9, *12 (11th Cir., January 31, 2008), the Eleventh Circuit in a careful analysis ruled that a child pornographer would not get a probationary sentence. This decision could be summed up as follows: this guy is not getting probation.
Relying on its decisions in United States v. Martin, 455 F.3d 1227 (11th Cir.2006) and United States v. McBride, No. 06-16544, 2007 WL 4555205, at *3 (11th Cir. Dec.28, 2007) and the Supreme Court’s instruction in Booker and Gall to consider the § 3553(a) factors and the “totality of the circumstances,” has greatly reduced the discretion granted to sentencing courts by holding that a sentence may be “substantively unreasonable” where it is (1) grounded on one of the § 3553(a) factors, (2) relies on “impermissible” factors, or (3) fails to consider other “relevant” or “pertinent” § 3553(a) factors. Most importantly, “the district court must give some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that “achieve[s] the purposes of sentencing stated in § 3553(a).” Id. *21. Ergo—appellate courts can still second-guess a sentencing court and reverse where they disagree with the lower court regarding the factors or grounds considered in imposing sentence, or the weight given to any particular factor or ground. The Court rephrased the standard of review set forth in Gall, holding that remand is appropriate where the Court is “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. at *9. It referred to the failure to consider particular grounds or factors, or to give such grounds or factors the appropriate weight, as determined by the appellate court, as “symptoms” of an unreasonable sentence. Id. at *12.
Admittedly, Pugh was extremely bad case for examining reasonable variances from the Guidelines range under Gall—Pugh plead guilty to possessing extremely graphic images of child pornography, and the sentencing court varied downward from an advisory Guidelines range of 97 to 120 months to a non-custodial sentence based on the fact that Pugh had no significant criminal history, that his possession of child pornography was “passive,” that he had reported his receipt of child pornography, that he was not a pedophile, that he was addicted to adult pornography and not child pornography, and that he had entered into treatment. Id. at *5. However, the Eleventh Circuit, in reversing the sentence imposed by the district court as substantively unreasonable, further took the opportunity to minimize the importance of § 3553(a) factors heavily relied upon by defendants, namely “the nature and circumstances of the offense and the history and characteristics of the defendant,” pursuant to 18 U.S.C. § 3553(a)(1), while critiquing the failure of the sentence imposed by the district court to account for other § 3553(a) factors which would support a sentence within the range recommended by the Guidelines and by the government. Id. at *12-*18.
A warning in the wake of Pugh: failure to consider sentencing factors which the Court of Appeals would consider important, or to give those factors the weight which the Court of Appeals would, could be “symptoms” of a Pugh reversal.
Finally, for an excellent discussion of the effect of Gall and Kimbrough in future sentencings check out this new blog from Ohio State University.
