Third Circuit strikes down below-Guidelines sentence as unreasonably harsh
The Third Circuit recently vacated a six-year sentence imposed by Judge Chesler in a child pornography case, even though the sentence was substantially below Guidelines, because the trial court failed to adequately consider and give weight to all of the 18 U.S.C. § 3553(a) factors. United States v. Olhovsky, 2009 U.S. App. LEXIS 7895 (3rd Cir., Apr. 16, 2009).
In an evidentiary ruling prior to sentencing, the sentencing judge had denied a defense motion to subpoena Olhovsky's treating psychologist, in part because the court held that it was improper to subpoena a witness to give expert testimony. Id. at *33-34. The Third Circuit held this ruling to be incorrect, finding no rule, civil or criminal, which prohibits compelling expert testimony by subpoena. Ibid. Moving to the sentencing phase, the appeals court held that a sentencing court must give meaningful consideration to all of the 3553(a) factors; although they need not each be discussed by the court, they must each be taken into account at sentencing. Id. at *44-45. Nor did the below-Guidelines nature of the sentence render it immune to substantive reasonableness review. Id. at *51.
In taking into account the individual 3553(a) factors, the sentencing court must abide by the "parsimony provision" in that statute, which requires the court to impose a sentence which is sufficient but not greater than necessary to comply with the purposes of sentencing. Id. at *45. This sentencing court, so focused on the nature of the crime, failed to obey these precepts; "it is exceedingly difficult to review this sentencing transcript without becoming convinced that the district court was so appalled by the offense that it lost sight of the offender." Id. at *50.
Finding the sentence substantively unreasonable and vacating it, the appeals court noted, in words sure to become popular in sentencing memoranda throughout the Circuit:
[I]t is not severe punishment that promotes respect for the law, it is appropriate punishment … unduly severe punishment can negatively affect the public's attitude toward the law and toward the criminal justice system.
Id. at *56-57.
