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Reasonableness Case Analysis

The decision is significant for a number of reasons.

First, a below-guideline sentence may never be based solely on the fact that intended loss far exceeded actual loss. Just as the disparity between crack and powder cocaine is not a permissible reason for giving a defendant convicted of a crack cocaine offense a below-guideline sentence, a defendant may not be given lenience, merely because he failed to steal the entire (or even much of the) intended loss.

Second is the court’s express adoption of a rule that it had already been applying in practice — facts that are common to all (or most) defendants cannot support a non-guideline sentence.

Careful attention needs to be paid to the court’s language, however.

The court quotes the Second Circuit’s standard — that it calls compatible with its own precedents — as follows: “we will view as inherently suspect a non-guidelines sentence that rests primarily on factors that are not unique or personal to a particular defendant, but instead reflects attributes common to all defendants (emphasis added).”

Later, the court wrote, “With the exception of the last factor [intended loss far exceeds actual loss], which (in the Second Circuit’s sense) is something that will be common to a great number of partially successful financial crimes, these factors were all particular to Wallace (emphasis added).”

Thus, it appears that a factor need not actually be common to all defendants to be an impermissible basis for a below-guideline sentence; it need only be common to a great number of of them.

The irony is that, in the same breath, the court holds that an unfortunate childhood is an acceptable consideration, even though it is indisputable that a great number of defendants come from very troubled backgrounds.

A third significant feature is that a court can grant a below-guideline sentence if the defendant has no prior criminal history.

This is somewhat inconsistent with the court’s standard as well. Admittedly, as the court found, some defendants with a Category I criminal history will have one prior conviction, and some will have convictions from long ago that are not included in calculating criminal history.

Thus, not all Category I defendants will share this characteristic. Nevertheless, a great number of defendants who fall in Category I will. Thus, the court could have reasonably applied its standard to hold that this is an impermissible reason for a below-guideline sentence.

A fourth significant feature of the case is its extensive agreement with precedents from the Second Circuit. When considering issues of first impression that deal with reasonableness of a sentence, attorneys would be well-advised to look first to this jurisdiction for persuasive authority.

Finally, the case is noteworthy because it vacates a white collar criminal sentence that included no imprisonment, even though the guidelines called for some.

The government branded this a “one-hundred percent reduction in sentence,” and argued that such a drastic reduction requires substantial justification.

The court dismissed this argument, noting (correctly) that looking to percentage in this way is misleading, because the higher the guideline range, the greater the percentage reduction will be.

Had the court adopted the government’s position, taking the reasoning of that position to its logical conclusion, it would be unreasonable for a sentencing court to impose no jail time, even when the guideline range is only six to 12 months, and the amount of the reduction is small, merely because the reduction is 100 percent.

Nevertheless, the court vacated Wallace’s sentence, and in doing so, relied heavily on an Eleventh Circuit case, U.S. v. Crisp, 454 F.3d 1285 (11th Cir. 2006), a case that also struck down a “one-hundred percent reduction in sentence.”

It is also noteworthy, that on the same day as the case at bar was decided, the Sixth Circuit vacated a “one-hundred percent reduction in sentence.” U.S. v. Davis, 2006 WL 2335240 (6th Cir., Aug. 14, 2006).

Related Links

7th Circuit Court of Appeals

Related Article

Court vacates non-guideline sentence

The court in Davis based its decision on the “one-hundred percent reduction in sentence” argument, while the Seventh Circuit in the case at bar disavows that reasoning.

Nevertheless, the three cases have much in common.

All three involved white collar criminals and substantial amount of loss, as calculated pursuant to U.S.S.G. 2B1.1. Each defendant received no jail time (actually, Crisp received five hours and Davis received one day), even though the guideline range called for substantial imprisonment (24-30 months for Crisp and Wallace, and 30-37 months for Davis).

Despite the Seventh Circuit’s disavowal of the reasoning in Davis, this decision can be seen as part of a bigger trend — that it is unreasonable to i
mpose zero-jail time sentences on white collar criminals who steal hundreds of thousands of dollars.

– David Ziemer

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David Ziemer can be reached by email.

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