Last week, in United States v. Musgrave, the Sixth Circuit held that a one-day sentence was unreasonable for a CPA convicted of fraud and conspiracy facing a 57-71 month Guidelines range. The panel explained why the district court was wrong to consider the defendant’s financial losses, the loss of his CPA license, and any harm stemming from the four years of litigation, noting that these things were not “his sentence” or “consequences of his sentence” and emphasized the importance of general deterrence in sentencing, especially for white collar crimes, “[b]ecause economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity.” (internal quotation marks and citation omitted).
This case is one of a long line of Sixth Circuit cases reversing and remanding for resentencing after a district courts grants an overly generous downward variance under Section 3553(a) in cases involving white collar crime or child pornography. The opinion cites several such cases, including United States v.Bistline, 720 F.3d 631 (6th Cir. 2013), a child pornography case in which the Court had to vacate the sentence twice. See also United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (reversing 1-day sentence where Guidelines range was 78-97 months); United States v. Christman, 607 F.3d 1110 (6th Cir. 2010) (reversing 5-day sentence where Guidelines range was 57-71 months). Although ostensibly unrelated, both of these offense categories have traditionally been a major source of sentencing disparities.
In 2005, then-Judge-now-Justice Alito expressed his skepticism that requiring district judges to explain their sentences would substantially alter sentencing behavior in these areas:
Back when I was an assistant U.S. Attorney before the Sentencing Reform Act and the guidelines took effect, the two areas where we saw the greatest sentencing disparity were child pornography . . . and white-collar cases. There were particular judges who thought that child pornography was not a crime that ever merited incarceration, that these people should be treated in other ways. And, likewise, there were judges who did not think that it was necessary–in most cases some of them probably in all cases–to send white-collar criminals to jail . . . . If you told them you have to justify your sentence by reference to the goals of sentencing that are set out in 3553(a) to (d), they could have done that and they would have done that. The judges sentencing the whitecollar cases, I think, would have said, you don’t need a lengthy term of incarceration, like you would now get under the sentencing guidelines to deter white-collar crime; even in cases with huge losses, I think that sending a defendant of this sort to jail for even five years is a huge deterrent for anybody else contemplating such a crime . . . . And similar arguments would be made with reference to child pornography. So, I am skeptical that enough sentencing disparity can be wrung out of the system simply by requiring judges to justify what they did by reference to the goals of sentencing in the Sentencing Reform Act . . . .
The Constitution Project’s Sentencing Initiative Panel Discussion, 18 Fed. Sent. R. 120 (Dec. 2005).
The Sixth Circuit has been skeptical of large downward variances in such cases, closely scrutinizing district courts’ Section 3553(a) analyses. See Douglas A. Berman, Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant,Sentencing Law & Policy Blog (July 31, 2014)(describing the Sixth Circuit in this case as reinforcing its “reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling”). However, it has occasionally affirmed them. See, e.g. United States v. Stall, 581 F.3d 276 (6th Cir. 2009). And in this opinion also, the Court did not draw any bright lines, saying that it would not “second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.” However, it seems that, contrary to Justice Alito’s prediction, it will take more than a token nod to Section 3553(a) to justify such a significant departure from the Guidelines in this Circuit.