Court must address mitigating factors

By: dmc-admin//November 23, 2005//

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What the court held

Case: U.S. v. Cunningham, No. 05-1774

Issue: When a court imposes a sentence within the guidelines, is a statement by the court that it has considered the U.S.S.G. 3553(a) factors sufficient?

Holding: No. When the defendant makes a strong argument that a guideline sentence is unreasonable, the record must reflect actual consideration of the factors the defendant cited.

The Seventh Circuit held on Nov. 14 that, where the sentencing court failed to address good arguments by the defendant that a guideline sentence was unreasonable, the sentence must be vacated and remanded for consideration of those arguments.

Karl Cunningham was a 49-year-old veteran who had worked for the postal service for 24 years, and was a good family man with no criminal record, but who smoked marijuana habitually. Andre Means was his supplier.

A former co-worker of Cunningham became a government informant, and asked Cunningham to assist him in obtaining crack cocaine. Cunningham agreed and introduced the informant to Means, who on nine occasions, with Cunningham present but not participating in the transaction, sold crack to the informant.

Cunningham received a total of $100 from the informant in exchange for his assistance on the nine occasions.

In addition to his habitual marijuana use, Cunningham has a history of alcohol abuse and psychiatric illness.

Sentenced to 57 Months

Cunningham was charged in Illinois federal court with conspiring to possess, with intent to distribute, more than five grams of crack, and he pleaded guilty. The bottom of the guidelines range was 57 months.

At sentencing, the government requested a sentence within the guidelines range, noting that Cunningham did not timely cooperate against Means.

Cunningham’s attorney argued for a sentence below the guidelines, presenting documentation of his psychiatric history, and emphasizing how minor his role had been in the transactions. She also noted that, not only had the informant approached Cunningham in the first place, but asked him to be present during the transactions with Means because the transactions took place in a dangerous neighborhood.

The judge sentenced Cunningham to 57 months, stating as follows: “I understand that you’re a broker, but you’re a broker of crack cocaine transactions on nine separate offense — nine separate occasions. Despite strong submissions by [Cunningham’s lawyer], both in writing and here orally, I cannot see that a sentence within the guidelines is not appropriate, given all of the factors that I have to adhere to. Therefore, looking at you, knowing that you’re not all bad, knowing that you made tremendous mistakes in this case to get involved in this number of times, and I will tell you quite honestly, if you had done this once or maybe twice, I would rethink, using my sentencing discretion; but nine different times and the fact that you, out of loyalty, I think misguided[,] to Mr. Means, decided not to cooperate against him, and I will get to Mr. Means, taking all these things into consideration, I’m going to sentence you to a 57-month sentence within the Bureau of Prisons, and place you on five years of supervised release.”

Judge Must Explain Reasoning

Cunningham appealed, and the Seventh Circuit reversed in a decision by Judge Richard A. Posner.

The court framed the issue as follows: “what if any duty has the judge to explain his reasoning in imposing a guidelines sentence when the defendant contends that such a sentence would be unreasonable?”

The court rejected the government’s answer that there is no duty, and that the court need only state that it has considered the statutory factors.

Instead, the court stated that it had serious doubt whether the judge connected the statutory factors to the sentence, enumerating two problems.

First, the court noted the district court’s reference to Cunningham’s having decided not to cooperate against Means. Noting that the contention was made solely by the government at sentencing, and was not confirmed elsewhere in the record, the court concluded, “The judge should not have run with this particular ball without some inquiry into the cause and significance of Cunningham’s decision not to cooperate.”

Second, the court noted the district court’s failure to mention Cunningham’s psychiatric problems and substance abuse, even though Cunningham’s attorney “wove into a pattern suggestive of entrapment not as a defense but as a mitigating factor not reflected in the guidelines and also as a basis for Cunningham’s being given a sentence different from a straight prison sentence.”

The court wrote, “The two problems are related, undermining our confidence in the sentence. Cunningham possibly has a good argument that the judge ignored (the psychiatric history) and the government has a poor (vague, belated, unsubstantiated) argument to which the judge gave substantial weight (Cunningham’s alleged failure to cooperate).”

The court added, “So far as appears, the informant had picked on Cunningham only because he knew that as a user of marijuana Cunningham would know a drug dealer. The informant had no reason to think that Cunningham was engaged in, or likely without the informant’s prod to engage in, drug dealing; Cunningham had known Means for many years without ever moving from being a consumer of marijuana to becoming a dealer in any illegal drug, or even a user of crack. His psychiatric problems and substance abuse may have made him far more susceptible to the informant’s blandishments than the average person invited to commit serious crimes.”

Accordingly, the court vacated the sentence, concluding, “We cannot have much confidence in the judge’s considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument. Diminished mental capacity is a ground stated in the sentencing guidelines themselves for a lower sentence. U.S.S.G. 5K2.13. A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight.”

The court emphasized that it was not holding the sentence unreasonable, and that it may be reasonable to reimpose it after proper consideration to the factors raised by Cunningham, but the court concluded it must be remanded for such consideration.

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David Ziemer can be reached by email.