Gall's Reasonableness Standard Invalidates Another Below - Guidelines Sentence
As many practitioners are all too keenly aware, the Sentencing Guidelines remain alive and well. Gall instructed district judges that reasonableness and abuse of discretion review freed them from the structures of the Guidelines. But, to paraphrase Al Pacino in Godfather III, the courts of appeals just keep pulling the Guidelines back in.
The Seventh Circuit became only the latest to upend a sentence as too lenient and too far below the Guidelines minimum. In United States v. Omole, 523 F.3d 691 (7th Cir. 2008), the “lead architect” of an identity theft scheme – a brazen one in which the defendants used 120 stolen identities to buy cell phones and clothing, then had 300 auctions on eBay to sell the merchandise – faced a sentencing range of 87-102 months. However, noting that Omole was only 20 years old and that this was his “first substantial involvement with the law” (although he had a prior record of one felony and three motor vehicle convictions, and was in Criminal History category II), the district judge departed downwards and imposed a 36 month sentence.
The Seventh Circuit could find no procedural error in the sentence, as the trial judge had properly calculated the Guidelines range and considered the § 3593(a) factors. But as a mater of substantive reasonableness, the circuit court observed that Omole’s sentence was a full 81% lower than the Guidelines minimum. Although the court of appeals would not in the abstract venture a view as to the precise point below a Guidelines minimum that a sentence turns from reasonable to unreasonable, it noted that in this case the sentencing judge had disparaged Omole’s arrogance and contempt for others, was “scathing” in his comments, and identified no unusual rehabilitative potential. In short, Omole seemed to deserve the punishment prescribed by the Guidelines.
The moral of the story: if you’re lucky enough to get a below-Guidelines sentence for your client in a non-cooperation sentencing, try to get the sentencing judge to say some nice things about your client on the record. Or, at least, to stop yelling at him while giving him a tremendous break.