Wednesday, July 6, 2016

Downward variance based, in part, on judge's poll of jury as to appropriate sentence affirmed by the Sixth Circuit.

Good rule of thumb if you want a quick way to know if a case is going to be reversed for abuse of discretion: if the judge being reviewed has their law review article CITED in the opinion - pretty good bet that judge was affirmed. And we have a good example of that principle in a case out of the Sixth Circuit last week in United States v. Collins.

In Collins, the defendant was convicted at a jury trial of one count of receiving and distributing child pornography and one count of possessing child pornography. The statutory maximum for the offense was twenty years with a calculated guideline range of 262 to 327 months. After the verdict the judge polled the jury and asked "State what you believe an appropriate sentence is." The jurors gave a range from zero to sixty months incarceration.

At sentencing the district judge considered the jury poll as "one factor" in determining the sentence. The judge also mentioned lack of history, absence of use of drugs or alcohol, possession of a college degree, regular employment, close family ties and financial responsibility as other factors that were considered. The judge then varied downward, sentencing the defendant to the mandatory minimum of five years on each count and running  the counts concurrent. The government objected to using the jury poll as a factor in determining the sentence.

On appeal to the Sixth Circuit, the Court affirmed. They considered the "propriety of jury polling in imposing a sentence" as "an issue of first impression." After rejecting the governments objections (conflates roles of judge and jury and was simply not a permissible factor to consider), the Sixth Circuit noted, based on a law review written by the same judge, that part of the sentencing commission's task was to take "the community view of the gravity of the offense." The Sixth Circuit was "satisfied" with the district court's discussion of the sentencing factors under 3553(a) and found the sentence to be "not substantively unreasonable."

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