Reasonableness
Case Analysis
August
23, 2006
The
decision is significant for a number of reasons.
First,
a below-guideline sentence may never be based solely on the fact that intended
loss far exceeded actual loss. Just as the disparity between crack and powder
cocaine is not a permissible reason for giving a defendant convicted of a crack
cocaine offense a below-guideline sentence, a defendant may not be given lenience,
merely because he failed to steal the entire (or even much of the) intended loss.
Second
is the court’s express adoption of a rule that it had already been applying
in practice — facts that are common to all (or most) defendants cannot support
a non-guideline sentence.
Careful
attention needs to be paid to the court’s language, however.
The
court quotes the Second Circuit’s standard — that it calls compatible
with its own precedents — as follows: “we will view as inherently suspect
a non-guidelines sentence that rests primarily on factors that are not unique
or personal to a particular defendant, but instead reflects attributes common
to all defendants (emphasis added).”
Later,
the court wrote, “With the exception of the last factor [intended loss far
exceeds actual loss], which (in the Second Circuit’s sense) is something
that will be common to a great number of partially successful financial crimes,
these factors were all particular to Wallace (emphasis added).”
Thus,
it appears that a factor need not actually be common to all defendants to be an
impermissible basis for a below-guideline sentence; it need only be common to
a great number of of them.
The
irony is that, in the same breath, the court holds that an unfortunate childhood
is an acceptable consideration, even though it is indisputable that a great number
of defendants come from very troubled backgrounds.
A
third significant feature is that a court can grant a below-guideline sentence
if the defendant has no prior criminal history.
This
is somewhat inconsistent with the court’s standard as well. Admittedly, as
the court found, some defendants with a Category I criminal history will have
one prior conviction, and some will have convictions from long ago that are not
included in calculating criminal history.
Thus,
not all Category I defendants will share this characteristic. Nevertheless, a
great number of defendants who fall in Category I will. Thus, the court could
have reasonably applied its standard to hold that this is an impermissible reason
for a below-guideline sentence.
A
fourth significant feature of the case is its extensive agreement with precedents
from the Second Circuit. When considering issues of first impression that deal
with reasonableness of a sentence, attorneys would be well-advised to look first
to this jurisdiction for persuasive authority.
Finally,
the case is noteworthy because it vacates a white collar criminal sentence that
included no imprisonment, even though the guidelines called for some.
The
government branded this a “one-hundred percent reduction in sentence,”
and argued that such a drastic reduction requires substantial justification.
The
court dismissed this argument, noting (correctly) that looking to percentage in
this way is misleading, because the higher the guideline range, the greater the
percentage reduction will be.
Had
the court adopted the government’s position, taking the reasoning of that
position to its logical conclusion, it would be unreasonable for a sentencing
court to impose no jail time, even when the guideline range is only six to 12
months, and the amount of the reduction is small, merely because the reduction
is 100 percent.
Nevertheless,
the court vacated Wallace’s sentence, and in doing so, relied heavily on
an Eleventh Circuit case, U.S. v. Crisp, 454 F.3d 1285 (11th Cir. 2006), a case
that also struck down a “one-hundred percent reduction in sentence.”
It
is also noteworthy, that on the same day as the case at bar was decided, the Sixth
Circuit vacated a “one-hundred percent reduction in sentence.” U.S.
v. Davis, 2006 WL 2335240 (6th Cir., Aug. 14, 2006).
The court
in Davis based its decision on the “one-hundred percent reduction in sentence”
argument, while the Seventh Circuit in the case at bar disavows that reasoning.
Nevertheless,
the three cases have much in common.
All
three involved white collar criminals and substantial amount of loss, as calculated
pursuant to U.S.S.G. 2B1.1. Each defendant received no jail time (actually, Crisp
received five hours and Davis received one day), even though the guideline range
called for substantial imprisonment (24-30 months for Crisp and Wallace, and 30-37
months for Davis).
Despite
the Seventh Circuit’s disavowal of the reasoning in Davis, this decision
can be seen as part of a bigger trend — that it is unreasonable to impose
zero-jail time sentences on white collar criminals who steal hundreds of thousands
of dollars.
-
David Ziemer
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David
Ziemer can be reached by email.
