The VLW Blog

The 4th U.S. Circuit Court of Appeals affirmed last week a downward departure for a sentence that it likely would have found unreasonable before the U.S. Supreme Court’s rulings in Gall v. U.S. and Kimbrough v. U.S. on Dec. 10.

Larry Pauley was convicted of one count of possessing child pornography and acknowledged that his guidelines’ sentencing range was 78 to 97 months in prison.

However, U.S. District Judge John T. Copenhaver Jr. of Charleston, W.Va., sentenced him to only 42 months and the government appealed. Pauley, who had been an arts teacher in St. Albans, W.Va., admitted that he had paid a student for nude photographs of herself after the girl had offered to sell them to him. She was in the eighth and ninth grades when the photos were taken.

Copenhaver cited several factors in justifying the departure: the girl instigated the transactions, fewer than two dozen photos were taken with a Polaroid camera and the victim’s face did not appear in any of them, and Pauley was extremely remorseful and otherwise a model citizen who lost his teaching certificate and state pension as a result of the conviction. A search of his home disclosed no other child pornography.

Writing for the 4th Circuit panel in U.S. v. Pauley, Chief Judge Karen J. Williams said Gall and Kimbrough required affirmance of the sentence. “[C]onsidering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward departure was supported by justifications necessary to uphold the sentence,” she said.

The U.S. Sentencing Commission decided this afternoon to make its reduction in the sentencing guidelines for crack cocaine retroactive.

That typically would mean a reduction of about five years for a 20-year sentence and about two years for a 10-year term, according to Rob Wagner, an assistant federal public defender in Richmond.

It also would have a greater impact on prisoners sentenced in the Eastern District of Virginia than anywhere else, he said. “We’ve consistently had the most crack cocaine cases of any district in the country.”

That is largely because many cases that typically would have been prosecuted in state court were handled in federal court under a program called Project Exile because of the harsher punishment available under federal law.

Under the old sentencing guidelines, a drug trafficker dealing crack cocaine was subject to the same sentence as one dealing in 100 times more powder cocaine. The commission lowered that disparity under regulations that took effect Nov. 1 by reducing the base offense level associated with each quantity of crack by two levels.

Congress could have intervened to maintain the disparity but did not do so.

Each of 19,500 defendants convicted of a crack cocaine offense would have to appear before a federal judge for a possible sentence reduction. The burden of so many hearings was one reason the U.S. Justice Department opposed retroactivity.

Opponents of the disparity between crack and powder cocaine long have pointed to its harsher effect on black defendants. Eighty-six percent of crack defendants are black, compared with just over a quarter of defendants convicted of powder cocaine.

The commission’s decision came a day after the U.S. Supreme Court ruled that a federal judge properly considered the disparity in sentencing a crack defendant to a term below the guidelines.

The U.S. Supreme Court yesterday ruled that federal judges are note required to follow sentencing guidelines that permit harsher penalties for crack cocaine crimes than powder cocaine. In a case from Norfolk, the court, 7-2, reinforced the view that the federal sentencing guidelines are merely advisory rather than mandatory. Lawyers USA has the story.

Maybe a defendant convicted of drug conspiracy deserves a break because most of his crack distribution occurred during the three-year period before he turned 19.

But what if the defendant, “K-Smooth,” was one of the few members of the 30-odd defendants from Petersburg’s “Third Ward Gang” to go to trial in Richmond federal district court? Criminal defendants usually get a break for taking a plea. Maybe Batts’s decision to go to trial should offset his youth as a basis for mercy.

Because the 4th U.S. Circuit Court of Appeals couldn’t get a clear picture of why Kevin Batts was sentenced to only 120 months in prison – a 54-percent deviation from the advisory federal sentencing guidelines range – it vacated Batts’s sentence for RICO and drug conspiracy offenses and sent the case by to Chief U.S. District Judge James R. Spencer.

In U.S. v. Batts, released yesterday, the appellate court said it had “never upheld such a significant variance,” and would only do so if presented with a sufficient explanation.

When he imposed the 120-month mandatory minimum sentence, Spencer said the sentence was “in line with” the defendant’s argument that the court should focus on Batts’s post-majority criminal conduct.

The district judge said he had “thought about this at great length before” and “considered all of the facts and circumstances.”

The 4th Circuit said the sentence was unreasonable.

It wasn’t clear whether the district court considered the need to avoid unwanted sentence disparities, the appellate panel said, especially in light of the fact that Batts’s sentence was lower than the sentences imposed on most of the gang members who pleaded guilty.

The district court also failed to give complete consideration to the defendant’s history, specifically, his age during the conspiracies.

“To the extent that much of Batts’s drug activity occurred while he was a minor, a variance of some sort might be considered,” the appellate court wrotein its unpublished opinion. “On the other hand, the fact that Batts continued the same illegal activity after he had reached the age of majority and spent time in juvenile detention may indicate that he should not be afforded such a significant break, since it is not clear that his coming of age has changed his unlawful conduct.”

“The task of reviewing a sentence’s reasonableness should not be akin to reading tea leaves,” the court said. Given the “significant deviation” in Batts, the need for an adequate explanation “is particularly important.”

A criminal defendant whose character and connections generated more fan mail than an Alexandria federal judge has seen in 25 years won a reduction of his guidelines sentence for obstruction of justice and lying to a grand jury and to an FBI agent about his activities in Pakistan and alleged contacts with a jihad training camp controlled by al-Qaeda affiliate Lashkar-e-Taiba.

Senior U.S. District Judge James C. Cacheris said in his Aug. 3 opinion in U.S. v. Benkahla that defendant Sabri Benkahla, an American citizen born and educated in Northern Virginia, has “strong, positive relationships with friends, family and the community.” According to Cacheris, correspondence addressed to the court attested to Benkahla’s “honor, integrity, moral character, opposition to extremism and devotion to civic duty.”

But the government’s evidence showed that eight persons to whom Benkahla was connected went to foreign jihad training camps, one was convicted of soliciting treason, and the government was able to get cooperative testimony leading to convictions for specific terrorist acts in Australia, France and England.

Although Benkahla’s convictions made him eligible for a sentence up to 21 years under a special enhancement for felonies involving terrorism, Cacheris said Benkahla was the “quintessential candidate for a downward departure,” and ruled that a 10-year sentence would satisfy federal sentencing policy.

Rep. Bobby Scott, D-Va., has vowed to abolish federal mandatory sentencing guidelines, reports The Daily Press.

Scott, chair of the House Judiciary subcommittee on crime, held hearings in Washington this past week. The leading witness was a federal judge from Utah who noted that he was compelled by the guidelines to give a first-time offender who carried but didn’t use or display a gun during a drug deal a total of 55 years; later that same day he sentenced a murderer to 22 years.

Scott’s Republican colleague, Rep. Randy Forbes of Chesapeake, countered that while the sentencing system may have problems, it can be fine-tuned instead of scrapped.

A Richmond federal judge didn’t follow a stair-step approach in sentencing a felon with a firearm, so the defendant gets a second shot at sentencing.

Earlier this week, the 4th Circuit released an unpublished opinion in U.S. v. Tinsley, vacating the statutory maximum sentence of 10 years that Zachary Tinsley got for the .25 caliber pistol found in his glove compartment.

Even assuming that Tinsley should been assigned a criminal history score of category VI, the appellate court said, “the district court’s failure to move incrementally down the sentencing table and to explain why the intervening offense levels did not yield a sufficient sentence” supported Tinsley’s claim that U.S. District Judge Henry Hudson did not adequately explain the sentence.

Tinsley’s 10-year sentence was nearly three times the high-end of his advisory sentencing range, the 4th Circuit panel said in a per curiam opinion. The judge’s reference to Tinsley’s “terrible” criminal record – including five prior firearms convictions – did little to distinguish him from the run-of-the-mill category VI offender.

Saying it needed a better explanation in order to perform the necessary post-Booker reasonableness review, the court remanded for “a more rigorous sentencing analysis.”

Since federal sentencing guidelines became “advisory,” defense lawyers may be trying to track even unpublished 4th Circuit cases, just to see how a particular federal judge applies the guidelines to a given defendant.

The defendant in U.S. v. Trent will get another shot at sentencing. A Newport News cop pulled Hakim Trent’s purple Ford Escort because Trent was wanted in Portsmouth for attempted capital murder of a police officer. After his state court trial for attempted murder ended in a hung jury, Trent pleaded guilty to a federal charge of being a felon in possession of the .38 caliber revolver found in the Escort.

Eastern District Judge Walter D. Kelley Jr. said Trent’s guideline range of 30 to 37 months in prison was not enough time. Among other factors, Kelley pointed to Trent’s “guns.” But he wasn’t talking about built-up biceps earned with extra gym time. Trent had “pictures of guns tattooed on each forearm.” The judge sentenced Trent to 108 months in prison.

The 4th Circuit vacated Trent’s sentence on March 28, saying a lot had happened since the sentencing and the district court should take another look, in light of more recent law on the advisory guidelines.

Jamal Crump is stuck with his sentence. On March 27, the 4th Circuit upheld Western District Judge Samuel G. Wilson’s 320-month sentence for Crump, who pleaded guilty to distributing five or more grams of cocaine base. The guidelines range was 292-360 months, and the 26-year-old Crump, who said he had been dealing since age 17, cited his plea, his kids and his cooperation, in mitigation. The appellate court said in U.S. v. Crump that the sentence, which registered in the bottom half of the guidelines range, was reasonable.

Maybe the 4th Circuit panel thought the appellate court already had given enough guidance on how district judges should sentence criminal defendants in light of U.S. v. Booker.
Or maybe it decided that it’s not a good time to be disparaging military veterans.
In any event, the panel took the “Unpublished” route last week to order a new sentencing hearing for Jose Medina Jr.
U.S. District Judge William D. Quarles Jr. in Baltimore decided that the now-advisory federal sentencing guidelines gave him enough leeway for a nine-level downward departure for Medina’s sentence for possession of child pornography. The guidelines called for a minimum term of 41 months, but Quarles reduced it by 70 percent to 12 months and a day.
The reason: “I start with the understanding that vets should get a break,” Quarles told Medina from the bench. “Your service to your country, your being a fine father … indicates that you are a person who certainly has more good than bad.”
The 4th Circuit panel—Judges J. Harvie Wilkinson III, Paul V. Niemeyer and Karen J. Williams—concluded in their per curiam opinion that Quarles had ignored the court’s earlier decisions that substantial departures from the guidelines must be justified under the factors in U.S.C. § 3553(a).
Quarles failed to follow earlier decisions interpreting Booker that said he should not give “excessive weight” to a single factor, especially one that the guidelines explicitly discourage, the panel said.
Moreover, his conclusion that lowering the sentence would “promote respect for the law” by recognizing good words stands the guidelines on their head. “Instead of sufficiently punishing criminal behavior, and thereby promoting respect for the law, Medina’s sentence demotes the law criminalizing the possession of child pornography in favor of rewarding and encouraging military service,” the panel said.