Thursday, December 4, 2014

Life + 5 years = Unreasonable

Today, the Fourth Circuit did something rarely done: it declared a sentence substantively unreasonable because it was too long. The case is United States v. Howard, and it is available here.
This is truly remarkable in that the only sentences typically declared unreasonable are the short ones appealed by the government. Indeed, the case principally relied on by the Fourth Circuit to reverse Mr. Howard's conviction was just such a case.
A jury convicted the defendant of distributing PCP in Wilson, North Carolina. The evidence was strong, including audio and video surveillance of controlled buys and testimony from four confidential informants. At sentencing, the advisory Guidelines range was manageable. In fact, it hovered at the mandatory minimum 10 years. The government initially thought a 175-month sentence was reasonable, but, upon prodding by a clearly upset district court judge, ultimately asked for a 30-year sentence. The district court was not buying it, finding the defendant to be a "de facto" career offender based on three prior convictions committed when the defendant was a juvenile (the defendant had one prior qualifying conviction: a federal drug offense). The sentence imposed: life (plus 5 on a 18 U.S.C. 924(c) count).
In vacating the sentence as substantively unreasonable, the Fourth Circuit noted, inter alia:
  • Mr. Howard was not a drug kingpin, but instead a "run-of-the-mill drug dealer" (trial testimony revealed a number of other PCP dealers in Wilson);
  • he did not deal around schools or children and never resorted to violence;
  • he committed the prior convictions relied on by the district court to vary upward between the ages of 16 and 18, and noted that youth is a mitigating factor, not an aggravating one;
  • codefendants received much shorter sentences;
  • the court's belief that Mr. Howard would "100%" commit a new crime was belied by reduced recidivism raters for elderly people; and
  • not even the government asked for a life sentence (warning: there is some unfortunate language in the decision about how the government's recommendation is an "important pillar" to something or other).
The decision is worth the read. And after having done so, one wonders whether the life sentence was part of a trial tax. This tax is real (see USSG 3E1.1). The case was admittedly strong. Did Mr. Howard receive a life sentence because he refused to plead guilty? Well, a life sentence isn't right anymore. But he likely awaits a lengthy sentence on remand. Just not as lengthy as life.

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