Note
Judge Treated the Guidelines as Mandatory: Sentence Vacated
The sentencing guidelines are advice, not law, so a judge who says he has no choice but to follow them makes an error, as the Fourth Circuit held in Perry.
Written by Brandon Sample · Updated · Filed under Sentencing articles
The federal sentencing guidelines are advisory. A judge who acts as if they are mandatory makes a legal error that can lead to a new sentencing. The Fourth Circuit applied that rule on January 18, 2017, in a child pornography case.
What happened
Roy Perry pleaded guilty to receiving child pornography. His guideline range was 151 to 188 months.
At sentencing, the judge said a 120-month sentence would be "just and fair" under the factors in 18 U.S.C. § 3553(a). But he also said: "I'm probably going to give him a Guideline sentence because it would be really an act of, I don't know what you call it, defiance, maybe not, to give him a variant sentence." He then said that "given the case law and the Sentencing Guidelines, I have to sentence him to the low end," and imposed 151 months.
What the Fourth Circuit held
The Fourth Circuit vacated the sentence. Since United States v. Booker, 543 U.S. 220 (2005), the guidelines are only advice. A judge must weigh all the § 3553(a) factors and may sentence outside the range.
The court pointed to three things together: the judge said he "had to" give a guideline sentence, suggested going lower would be defiant, and said a lower sentence was fair. In the court's words, "Taken together, the district court's statement that it had to sentence Perry to a Guidelines sentence, its suggestion that it might be defiant if it did otherwise, and its indication that a variant sentence was warranted based on the 3553(a) factors, support Perry's view that the district court accorded too much weight to the Guidelines." The case was sent back for resentencing.
United States v. Perry, No. 15-4260 (4th Cir. Jan. 18, 2017) (unpublished).
What to watch for
Listen closely to what the judge says at sentencing, and order the transcript. Statements like "I have to" or "my hands are tied" about the guidelines can matter on appeal. The notice of appeal in a federal criminal case is usually due within 14 days after the judgment is entered. Fed. R. App. P. 4(b)(1)(A).
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