8th Circuit affirms 20-year downward variance in sentencing

A federal appeals court upheld a trial judge’s decision to impose a 10-year, rather than 30-year, sentence for the sale of crack cocaine.

The vote was 10-1, but the court was far from unified.

The decision, issued Monday by the full 8th U.S. Circuit Court of Appeals, resulted in four separate opinions and led the dissenting judge to charge his colleagues with failing to conduct a meaningful review of the case before it.

But Lee Lawless, the federal public defender in the Eastern District of Missouri, said the decision is consistent with Supreme Court precedent.

“I think the courts, so long as they base their decisions on appropriate factors and explain their decisions, should no longer feel bound to impose Guideline sentences,” he said in a telephone interview.

Kendrix D. Feemster was convicted for selling 18 grams of crack cocaine on two separate occasions to the same undercover Drug Enforcement Administration Agent.

His public defender was on vacation and unavailable for comment. Acting U.S. Attorney Mike Reap did not return a telephone call seeking comment.

The majority said the sentencing judge, Charles A. Shaw, of the U.S. District Court in St. Louis, adequately explained his reasons for departing from the sentence recommended for Feemster under the U.S. Sentencing Guidelines. The U.S. Probation Office recommended that Feemster be sentenced as a career offender, which resulted in a Guideline range of 30 years to life in prison.

Shaw imposed a 10-year sentence followed by eight years of supervised release, citing as reasons for the downward departure that Feemster was 26, and still relatively young, when he committed the crack cocaine offense, that he didn’t carry a weapon when he committed this crime or others that preceded it and that he completed two terms of probation.

The majority said Shaw’s decision was procedurally and substantively reasonable, adding that it agreed with the D.C. Circuit that “substantive appellate review in sentencing cases is narrow and deferential” and that “it will be the unusual case when we reverse a district court sentence … as substantively unreasonable.”

In a concurring opinion, which sentencing expert Doug Berman characterized on his Sentencing Law and Policy blog as “tantamount to a dissent,” Judge William Jay Riley said Shaw committed “significant procedural error” by considering factors that have no relevance for sentencing purposes. The 8th Circuit, however, was bound to affirm Shaw’s decision because the government abandoned this argument, he said.

Feemster’s age “no more provides a basis for a downward variance than other irrelevant sentencing characteristics such as Feemster’s height (5′ 9″), weight (175 lbs), eye color (brown), or hair color (black),” Riley argued.

The fact that Feemster didn’t use a weapon is also irrelevant, he argued, rattling off a list of other crimes Feemster did not commit while he was selling crack to undercover agents.

In another concurring opinion, Judge Steven M. Colloton said the U.S. Supreme Court’s decisions in United States v. Booker, Gall v. United States and Kimbrough v. United States restored judicial discretion almost to the point of where it was before Congress passed the Sentencing Reform Act of 1984.

“One consequence of these recent developments is likely to be substantial sentencing disparity in federal criminal cases. District judges are supposed to ‘take account of sentencing practices in other courts,’ but there is now no basis in law to declare that one sentencing practice is preferred over another, and no authority for a court of appeals to enforce such a preference,” Colloton wrote, quoting Kimbrough.

Lawless countered, “I don’t think anyone envisioned the amount of review that had been taking place up until recently, either. It’s not as loose as what you had pre-Guidelines when, so long as you didn’t express on the record something inappropriate, sentences were usually affirmed.”

Until barred from doing so by Gall, the 8th Circuit had been requiring the existence of extraordinary circumstances to justify below-Guideline sentences.

Colloton quoted now-retired Justice David Souter, who, in Gall, called on Congress to re-establish mandatory sentencing but provide “for jury findings of all facts necessary to set the upper range of sentencing discretion.”

An 8th Circuit panel had twice rejected Feemster’s 10-year sentence. In the final panel opinion, the court said Shaw gave too much weight to Feemster’s age at the time of his prior offenses, based the variance on Feemster’s age at the time of the current offense and sentencing and considered factors already accounted for in the Sentencing Guidelines.

But before the full 8th Circuit the government only argued that Shaw did not explain his reasons for the downward departure adequately, so the appellate court restricted its review to that issue.

In the majority opinion, Judge Lavenski Smith said the government conceded that the justifications Shaw relied on were relevant factors. The majority also said Shaw acknowledged that he considered the factors outlined in the federal statute. The majority also said Shaw acknowledged Feemster had a record, including some violent felony convictions.

Smith said Shaw’s justifications for the 10-year sentence rested on “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts, as the Supreme Court has repeatedly emphasized.”

That review wasn’t sufficient, according to Judge C. Arlen Beam, who dissented.

“The practical result of this court’s affirmance of Feemster’s sentence establishes, effectively, a standard of no appellate review at all,” he wrote. “We adopt a posture today that is so deferential that, so long as the district court gives lip service and a bit of discussion to the relevant 18 U.S.C. [Section] 3553(a) factors, a sentence will almost never be reversed, procedurally or otherwise. This approach is not supported by Supreme Court precedent.” Beam said the government’s concessions do not bar reversal in this case.

The decision “is not just a panacea for the defense bar because it cuts both ways,” Lawless said. “Judges have now the freedom to impose sentences both below and above the guidelines.”

The case is United States v. Feemster, 06-2059.