Checks and Balances Are Alive and Well

The governmnet can appeal sentences it thinks are too lenient.
The government can appeal sentences it thinks are too lenient.
The government can appeal sentences it thinks are too lenient.

Keep saying that until your brain moves something useless out to make room for it. And then every time someone tells you that we need mandatory minimums or mandatory sentencing guidelines to stop certain judges from letting criminals go with just a slap on the wrist, take a deep breath and say: But the government can appeal sentences it thinks are too lenient.

Doug Berman highlighted two decisions yesterday that highlight this power. In both cases, appeals courts found that the judges issued sentences far below the lower end of the range set forth by the federal sentencing guidelines.

In the first, a district judge sentenced a man who pleaded guilty to distributing five grams of crack to 120 months in prison - far short of what the guidelines recommended for the man who had a prior drug conviction and two previous assault convictions - the appeals court stated:

In its terse explanation of the sentence, the district court mentioned only [Rodney] Brown’s age (40 years old), the short length of his previous state sentences, and the conditions of his upbringing.

The government has appealed the sentence. Although a sentence so far below the recommended guidelines range lies within the court’s power, and may even have been justified in this case, the record is too spare to support that conclusion at this point. We therefore vacate Brown’s sentence and remand for resentencing.

In the second case Professor Berman highlighted, a different court of appeals agreed with the government's objections to a sentence of just 5 days for a man who pleaded guilty to two counts of possessing child pornography. The appeals court was clearly not pleased with the factors the district judge considered in formulating the short sentence:

The court found that this sentence was warranted because [Richard] Christman had severe back pain, he was his elderly, ailing mother’s primary caregiver, his family believed that he was remorseful, he was a musician and composer, and he had complied with the restrictions of his release on bail. The government appeals, arguing that the district court’s imposition of the nominal prison term cannot reasonably be justified by the factors identified at re-sentencing.

For the reasons set forth below, we find that the sentence was substantively unreasonable, VACATE the new sentence, and REMAND for re-sentencing in light of this opinion. We also direct that this case be assigned to a different judge for resentencing. 

Notice that in both cases the government appealed the district judges' sentences and prevailed. Even in a post-Booker world (non-sentencing nerds can bone up on the Booker here), judges are not running wild. The guidelines matter. The judges' decision-making process matters.

Checks and balances are alive and in place. And why? That's right...

Because the government can appeal sentences it thinks are too lenient.

- Ingersoll