In United States v. Pugh, 937 F.3d 108 (2nd Cir. 2019), the defendant was convicted of attempting to provide material support to a foreign terrorist organization (by attempting to join ISIS) and obstruction of justice (by destroying USB drives and data). The guidelines range was 360 to 420 months. The district court imposed consecutive statutory-maximum sentences on each count, 180 months on the material support conviction and 240 months for obstruction, for a total of 420 months--a guidelines sentence. The 2nd Circuit affirmed the convictions but vacated the sentence, finding that the district court had not adequately explained it. A district court generally need not give a lengthy explanation for a guidelines sentence. And the court made two pages of comments prior to imposing the sentence. But, the 2nd Circuit says, most of the discussion was about the defendant's guilt, not the appropriate sentence. The panel emphasizes that the defendant was convicted of multiple counts and the sentencing judge did not articulate why an already lengthy statutory-maximum sentence on one count was not sufficient, before imposing consecutive statutory-maximum sentences. Because of the procedural error, the panel did not reach the issue of substantive reasonableness.
Judge Calabresi concurred, to highlight how the government was able to use an obstruction of justice conviction to more than double the available sentence. The concurrence explains that a sentence for obstruction must reflect the seriousness of the obstruction conduct. It should not be used to punish conduct underlying a different count, because the government or the court is dissatisfied with the statutory maximum on the other count. This discussion hints, if reimposed, the sentence may be substantively unreasonable as well. Or, at least, one judge may think so.