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A Surprise in the D.C. Circuit – Plain Error Justifies Overturning an Above-Guidelines Sentence: United States v. Brown, _ F.3d _ (D.C. Circuit, No. 13-3062, Dec. 15, 2015)

On December 15th the D.C. Circuit overturned for plain procedural error a severe sentence in another of those child pornography sting operation cases that appear with some frequency in this jurisdiction.

In a split opinion that is somewhat remarkable for its composition (Senior Circuit Judge Edwards and Circuit Judge Henderson comprising the majority with Senior Circuit Judge Sentelle dissenting) the Circuit reversed the conviction of James Brown, a defendant with a seeming penchant for sexual relations with underage females, including his daughter and at least one granddaughter. The Court found that the district court had plainly erred in sentencing Mr. Brown to a 144-month prison term, which was 47 months in excess of a jointly-requested low end of the Guidelines range and 23 months above the high end. In finding procedural error, the court sidestepped the appellant’s alternative claim of substantive unreasonableness. In particular, the panel found that the lower court’s explanation for an above-Guidelines sentence was inadequate under United States v. Akhigbe, 642 F.3d 1078, 1085-86 (D.C. Cir. 2011)).

Writing for the majority, Judge Edwards found that the district court had plainly failed to provide adequate in-court and written explanations for imposing a sentence that neither the prosecution nor the defendant had sought. Describing the Trial Judge’s in-court characterization of Brown’s conduct “spare and unparticularized,” the panel pointed out that the lower court’s explanation for the above-Guidelines sentence to have been a “‘mere recitation of . . . § 3553(a) factor[s] without application to the defendant being sentenced [which] does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.’” (slip op. at 12) (quoting Akhigbe, 642 F.3d at 1086). Nor did the trial judge’s “unparticularized references to “actual abuse of children’ and ‘predatory conduct’ provide [any] basis for suggesting why the conduct described was more harmful or egregious than that accounted for in the Guidelines calculation, let alone why that conduct merited a sentence 23 months in excess of the applicable Guidelines range.” (slip op. at 12-13). In a similar vein, the Court found “unenlightening” the trial judge’s comment that “the combination of behaviors to which Brown pled is ‘not conduct we normally get around here,’” for that comment failed to explain why Brow’s behavior “was more egregious or harmful than that accounted for by the applicable Guidelines calculation.” (Id. at 3-14).

The majority recognized that it isn’t error to vary upwards for factors taken into account by the Advisory Guidelines – provided a district judge offers sufficient justification for its decision. (Id. at 14-15) (citing United States v. Ransom, 756 F.3d 770, 774-75 (D.C. Cir. 2014). But here, unlike the “‘extensjve and individualized’” findings made in Ransom, the trial judge offered nothing of the sort, to the point where the Court of Appeals described the lower court’s entries in the Statement of Reasons form “very nearly devoid of individualization and analysis.” (slip op. at 16).

Dissenting, Judge Sentelle concluded that even if the trial judge’s decision was error, it was not plain error justifying relief. Of concern to the dissent was trial counsel’s failure to provide the district judge with the opportunity to correct its statements. In addition, Judge Sentelle did not perceive how the sentence affected “the fairness, integrity or public reputation of the proceedings. . . .” (slip op. at 1-2) (Sentelle, J., dissenting).

A year-end salute to Rockville, MD, attorney Barbara Kittay for an excellent result before as demanding a panel as one could encounter in the Circuit.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.