10th Circuit Reverses Sentence as Too Lenient – Update for January 6, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Doesn’t every guilty defendant long for a district judge like the one who sentenced Johnny Walker?

The defendant was well named...
                                      The defendant was well named…

Mr. Walker, who ironically enough was an alcoholic and drug user, had robbed a couple of banks. In fact, he had apparently robbed an even dozen in his past, and this offense was hardly his first rodeo. He pled guilty and faced a Guidelines advisory sentencing range of 151-188 months.

Nevertheless, his public defender – a guy whose chutzpah and persuasive skills should make him a thousand dollar-an-hour defense attorney – convinced the district court to hold off sentencing so Johnny could go to an in-patient rehab clinic for 12 weeks. Then, after Johnny successfully graduated from that program, the public defender talked the district court into sentencing his client to time served (which amounted to 33 days that Johnny had spent in jail before being bonded out). The judge was impressed that Johnny had overcome his addition, joined a church, gotten a job and lived with a supportive family.

soft170106Two days ago, the 10th Circuit reversed. Noting that the sentence was less than 1% of the bottom of the Guidelines range, the appellate panel held that the sentence was substantively unreasonable. The Court conceded that the district judge had tried to craft a fair sentence individualized to the defendant, but held that in so doing, ignored the seven sentencing factors listed in 18 U.S.C. 3553(a).

Of the seven sentencing factors, three factors weigh against a time-served sentence, one points both ways, and three are inapplicable. We recognize that these factors do not necessarily bear equal weight, and the district court bore the delicate task of balancing these factors.

* * *

In balancing these factors, the district court focused almost exclusively on Mr. Walker’s newfound sobriety. We do not question the materiality of this factor. But by declining to impose any prison time, the district court effectively failed to give any weight to the congressional values of punishment, general deterrence, incapacitation, respect for the law, and avoidance of unwarranted sentencing disparities…

The Court of Appeals was especially troubled by Johnny’s inability to cite a single bank robbery case nationwide where such a light sentence was imposed.

Of course every perp thinks he'll get away with it...
Of course every perp thinks he’ll get away with it…

It didn’t help matters that the district judge publicly expressed his disdain for the sentencing standard of general deterrence, where the court is to consider whether the sentence imposed will deter others from contemplating a similar crime. The district court reasonably thought this standard was nonsense, because hardly anyone sets out to commit a crime thinking he or she will be caught. If you figure you’re going to get away with it, you hardly contemplate the possible punishment if you do. And this, of course, presupposes that the criminal element reads the newspapers, consults the Guidelines, and generally knows what happens in the halls of justice.

The Court of Appeals was unswayed by the district court’s commonsense rejection of the deterrence value of a sentence. The 10th complained that the judge “gave inadequate attention to this purpose. The court reasonably concluded that no further prison time would be necessary to deter Mr. Walker, but did not ‘give much stock’ in the importance of general deterrence. Federal law required the court to put its skepticism aside.”

jump170106As our sainted mother would have asked, “if federal law told you to go jump off a bridge, would you do it?” Mom and the district court employed a little too much common sense to satisfy the 10th Circuit.

The 10th Circuit has thus held that all seven sentencing factors count, but only as much as the court wants them to count. Johnny could have gone 6-1 in favor of probation and a medal, and the Court of Appeals would have still said that the seventh factor tipped him into prison anyway.  

Johnny will now head back to court, where he’ll undoubtedly get the real prison time that the Court of Appeals wants him to have.

United States v. Walker, Case No. 15-4171 (10th Cir., Jan. 4, 2017)

– Thomas L. Root

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