When is a Below-Guidelines Sentence Unreasonable? U.S. v. Pineda, Sixth Circuit Court of Appeals, Filed November 13, 2018
When is a below-guidelines sentence unreasonable? Can a below-guidelines sentence be unreasonable?
In U.S. v. Pineda, the Sixth Circuit Court of Appeals affirmed that Pineda’s guidelines range of 188 to 235 months was not unreasonable based on her career offender status, even though she was classified as a career offender based only on prior non-violent drug offenses.
But, was her below-guidelines sentence unreasonable based on the district court’s failure to consider the relevant 3553(a) sentencing factors? What if the district court fails to consider the 3553(a) factors or applies them unreasonably?
The Sixth Circuit Court of Appeals, in particular the concurring opinion, seemed to agree that the district court unfairly applied the sentencing factors in Pineda’s case, but still affirmed the sentence because the district court “considered” the factors.
When is a Below-Guidelines Sentence Unreasonable?
A sentence can be found “substantively unreasonable” if it was selected arbitrarily or if the district court failed to consider relevant sentencing factors:
A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008).
A sentence is substantively unreasonable when the length of the sentence is greater than necessary to achieve the sentencing goals that are set out in Section 3553(a):
The essence of a substantive-reasonableness claim is whether the length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. §3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010).
In most cases, challenges to the reasonableness of a sentence arise when the defendant is sentenced to an above-guidelines sentence, or when the district court fails to consider mitigating factors in applying a within-guidelines sentence. Although the Court does not foreclose a finding that a below-guidelines sentence is unreasonable, they point out that “defendants who seek to do so bear a heavy burden:”
Given “that a sentence within the applicable guidelines range is presumptively reasonable . . . [,] a defendant attacking the substantive reasonableness of a below-guidelines sentence has an even heavier burden to overcome.” United States v. Elmore, 743 F.3d 1068, 1076 (6th Cir. 2014); see also United States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013) (“Although it is not impossible to succeed on a substantive-reasonableness challenge to a below-guidelines sentence, defendants who seek to do so bear a heavy burden.”).
Was Pineda’s below-guidelines sentence unreasonable?
Pineda argued that “her mental condition, diminished capacity, and family ties and responsibilities warranted a lower sentence.”
The Sixth Circuit found that the district court considered the 3553(a) factors, including her minimal role in the offense, her family ties and responsibilities, her psychological issues, and potential for treatment, and, “[t]aking into account Pineda’s role in the offense as well as the other §3553(a) factors, the district court reasonably granted a 20-month downward variance from the career-offender range.”
There you have it – the district court considered the factors, granted a downward departure, and therefore Pineda’s 14-year sentence was reasonable.
Or was it?
U.S. v. Pineda’s Concurring Opinion
The concurring opinion also found that the district court did not abuse its discretion in sentencing, but points out that the district court treated Pineda’s mitigating factors as aggravating factors and speculated as to uncharged crimes for which there was no evidence…
The district court said it would only consider mitigating factors if they were “related to the offense,” and not if they were simply “an appeal to sympathy:”
…toward the beginning of the sentencing hearing, the district court indicated that information about the defendant’s background is only relevant if it is “somehow related to the commission of the offense” rather than an appeal to sympathy. The court summed up: “So those are the things I think about as I go through a person’s history and characteristics. Is it related to the offense, and what’s the affect [sic] going forward?
The concurring opinion notes that the district court was wrong about this:
This § 3553(a) factor should not be interpreted so narrowly. Instead, §3553(a)(1) issues a “broad command” to sentencing courts to consider the backgrounds of the individuals before them. Gall v. United States, 552 U.S. 38, 50 n.6 (2007)… we have repeatedly found information relating to an individual’s childhood trauma, mental health, and addiction issues, among other things, to be relevant to sentencing. See United States v. Banks, 722 F. App’x 505, 511–12 (6th Cir. 2018).
The concurring opinion also points out that, although the district court “considered” the 3553(a) factors, the court seemed to treat Pineda’s mitigating factors as aggravating factors.
Minimal role in the offense
For example, the district court “considered” Pineda’s minimal role in the offense – she was in a relationship with a drug dealer, and both the current offense and her prior convictions were a consequence of that abusive relationship.
Furthermore, the two drug sales that she was convicted of amounted to just over one gram for two transactions. The district court “considered” this, but then went on to speculate that her involvement was greater than it appeared and that she must have committed other crimes although there was no evidence that was true:
At the sentencing hearing, the court stated that it viewed defense counsel’s argument about the amount of drugs attributed to Pineda as a “little disingenuous.” The court noted that though “[t]here’s only a small amount attributed to her, a little over a gram for two transactions…, for eight months there’s some indication that there was drug trafficking going on… So if I accept your argument at face value, I have to assume that she didn’t do anything else from December until August.”
Yes – if there is no evidence of other criminal activity, you do have to assume that “that she didn’t do anything else…”
Family ties and responsibilities
Pineda had seven children, her husband is going to be deported after he completes his sentence, and she will lose her parental rights because of her prison sentence. The district court “considered” her family ties and responsibilities, but treated it as an aggravating factor rather than mitigation:
…the district court recognized the best interest of the children as an important factor and questioned whether it would be in their best interest to place them with a parent who has substance abuse and psychological issues and remains in an abusive relationship. Remarking on the potential damage to children in situations where their parents are dealing drugs, the district court stated, “Children are not toys. They are not for one person’s benefit. They can suffer tremendously by being put in a situation like this, individuals that are engaged in drug trafficking activities…” The district judge expressed sympathy for Pineda but had “more sympathy for [her] children” because it was Pineda’s criminal conduct that put the children in their current situation.
Isn’t that the case with every parent who is convicted of a drug offense, though? Can the fact that you have seven children to provide for ever be a mitigating factor?
Pineda suffered from post-traumatic stress disorder, was subjected to severe abuse as a child, and was diagnosed with “dependent personality disorder” – a condition that contributed to her remaining in a relationship with an abusive drug dealer who was most likely the reason for her legal troubles.
Although a psychologist gave an opinion that intensive treatment, “coupled with Ms. Pineda avoiding any contact with Mr. Pineda and other negative influences, will significantly reduce the likelihood of future criminal behavior,” the district court took issue with the psychologist’s analysis, “noting that Pineda had repeatedly returned to her husband and that ‘if she follows the same pattern in the future as she’s followed in the past, then that same activity will reoccur in the future.’”
The concurrence noted that the district court seemed to treat Pineda’s psychological condition as an aggravating circumstance:
I am concerned that rather than viewing Pineda’s mental-health conditions as mitigating, the district court’s comments suggest it viewed her PTSD and dependent personality disorder as purely aggravating factors because they made her more likely to reoffend.
Despite this, both the majority and concurring opinions said that the district court had “considered” the mitigating factors, and therefore there was no abuse of discretion.
Speculation About Uncharged Crimes
The district court’s speculation, without evidence, about uncharged crimes could have been grounds for reversal, but the concurring opinion finds that it did not warrant reversal in this case because Pineda’s attorney did not raise the issue on appeal:
We have reversed sentences as substantively unreasonable when the district court relied on improper speculation about uncharged crimes. See United States v. Van, 541 F. App’x 592, 597–98 (6th Cir. 2013); United States v. Wright, 426 F. App’x 412, 415–17 (6th Cir. 2011); United States v. Worex, 420 F. App’x 546, 549–51 (6th Cir. 2011). Indeed, under our binding precedent, “it does not matter that the district court relied on a number, even a large number, of relevant facts in its sentencing, if it also relied on facts that it could not properly consider.” United States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008). But the record does not indicate that the court relied on such speculation in determining Pineda’s sentence. More importantly, Pineda has not raised this issue on appeal.
Similarly, in footnote 1, the concurring opinion suggests that the district court’s treatment of Pineda’s mitigation as aggravating circumstances may have been grounds for reversal, but the court does not address “whether this sentence was procedurally unreasonable because Pineda raises only a substantive unreasonableness argument on appeal.”
Would Pineda have gotten some relief from her 14-year sentence if her appellate counsel had raised the issues of 1) the district court’s speculation on uncharged crimes, and 2) whether the sentence was procedurally reasonable, as opposed to substantively reasonable, under the circumstances?
Maybe not, given the difficulty of appealing a below-guidelines sentence, but it underscores the importance of details in appellate practice – any claim that could be supported on appeal (and that was preserved at trial) must be alleged and argued to the appellate court…
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