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Sixth Circuit Vacates Sentence Where Upward Variance Based on Criminal History Had Little Bearing on Instant Offense

 

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the Western District of Michigan’s sentence where the sentence imposed was an upward variance from the Guidelines range based on the defendant’s criminal history, but that history had little bearing on the instant offense.

In 2003, 21-year-old Manndrell Lee was sentenced to 12 months in prison after pleading guilty to second degree Criminal Sexual Conduct (“CSC”). He completed his sentence. Then from 2004 to 2018, Lee consistently violated the conditions of his parole – usually by failing to comply with sex offender registration laws and the terms of his location monitoring. He was punished with incarceration for each of those violations.

In 2018, Lee pleaded guilty to possession of a stolen firearm in violation of 18 U.S.C. § 922(j). His advisory Guidelines range, based on his criminal history score of 11, was 30 to 37 months’ imprisonment. But the district court decided an upward variance was necessary because of: (1) Lee’s “long and serious criminal history,” (2) his parole violations and disciplinary violations while in custody, and (3) his 2003 CSC offense. The district court imposed a sentence of 60 months in prison. Lee appealed, arguing the upward variance of 23 months was substantively unreasonable.

The Sixth Circuit observed that a sentence is substantively unreasonable if it is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a)(2). Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020). Those goals include the need for a sentence (1) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (2) to afford adequate deterrence to criminal conduct; (3) to protect the public from further crimes of the defendant; and (4) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2)(A-D). 

When determining a sentence, district courts must begin with the Guidelines because the Sentencing Commission calculates its Guidelines ranges in an effort to carry out § 3553(a) objectives. Rita v. United States, 551 U.S. 338 (2007). If a district court reasons that a defendant’s Guidelines range fails to satisfy § 3553’s factors, it must provide a sufficiently compelling reason for any variance. Gall v. United States, 552 U.S. 38 (2007). The greater the variance, the more compelling the reason must be. Id.

In the instant case, Lee’s criminal history score of 11 factored in his initial CSC offense and his parole violations, i.e., those were already considered when calculating his range at 30 to 37 months. But Sixth Circuit jurisprudence permits a district court to vary upward from a Guidelines range based on a defendant’s criminal history even though that history was included in the initial calculation of the Guidelines range. United States v. Trejo, 729 F. App’x 396 (6th Cir. 2018). However, the Court explained, “Importantly, in each of the cases in which we have upheld a district court’s decision to vary upward based on a defendant’s criminal history – a history which is already captured by the advisory guidelines range – we have emphasized the relationship between the instant offense and the defendant’s prior offenses.... Where ... no uniquely problematic criminal history demonstrates a specific need for deterrence beyond that already captured by the guidelines, then some meaningful relationship between the offense of conviction and the defendant’s alleged likelihood of reoffending is needed.” 

The Court then cited numerous precedents supporting its discussion, e.g., United States v. Johnson, 934 F.3d 498 (6th Cir. 2019) (14-month upward variance upheld because instant offense was fifth firearm conviction); United States v. Lanning, 633 F.3d 469 (6th Cir. 2011) (18-month upward variance upheld where instant offense was a theft conviction and defendant had numerous prior theft convictions); United States v. Dunnjcan, 961 F.3d 859 (6th Cir. 2020) (upward variance for firearm conviction where defendant had two previous violent convictions committed with firearms).

In the instant case, this was Lee’s first and only conviction involving a firearm. Further, the district court indicated that it imposed the variance out of concern that Lee might at some point in the future violate his parole again and be reincarcerated based on his history of parole violations. While an understandable concern, the Court concluded it was not sufficiently compelling to support an upward variance of 23 months (almost doubling the Guidelines range) because his risk of recidivism was already captured in his Guidelines range. 

Accordingly, the Court vacated Lee’s sentence and remanded for resentencing. See: United States v. Lee, 974 F.3d 670 (6th Cir. 2020). 

Related legal case

United States v. Lee

 

 

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