United States v. Hairston

ALICE M. BATCHELDER, Circuit Judge,

dissenting.

I agree with the majority that Hair-ston’s sentence is procedurally reasonable. In fact, this court cannot ask more of a district court, in terms of explaining the specific reasons for his sentence based on 18 U.S.C. § 3553(a), than the district court did in this case. I dissent from the majority’s opinion, however, because Hairston’s sentence is substantively unreasonable.

I. The SENTENCE Reduction Constituted a Departure, not a Variance

As a preliminary matter, I think it is useful to distinguish between a departure and a variance. The majority correctly points out that this case involves a departure, and not a variance. A departure occurs when a court lowers a defendant’s sentence based on Chapter 5 of the Guidelines. United States v. Cousins, 469 F.3d 572, 577 (6th Cir.2006). A variance, on the other hand, also known as a non-Guidelines departure, occurs when a court lowers a defendant’s sentence based on factors found in 18 U.S.C. § 3553(a). Id. We have emphasized the distinction between departures and variances in the past, United States v. Davis, 458 F.3d 491, 497 (6th Cir.2006), and — at least thus far— have simply assumed that the proportionality test at issue in this case applies to both departures and variances. United States v. Husein, 478 F.3d 318, 332 (6th Cir.2007).

ÍI. The District Court’s Sentence is Substantively Unreasonable

As the majority points out, the “farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section [18 U.S.C.] 3553(a) must be.” Davis, 458 F.3d at 496 (internal citations omitted). This court can still find a sentence substantively unreasonable even if the district court, properly applying the Guidelines, clearly considering the § 3553(a) factors, and explaining its reasoning, calculates that sentence properly. Id. (citing United States v. Cage, 451 F.3d 585, 591 (10th Cir.2006)). In Davis, we reversed and remanded the district court’s sentence because the court had imposed, essentially, the lowest possible prison sentence. We concluded that “the sentence represents the most extreme variance possible, leaving no room to make reasoned distinctions between Davis’s variance and the variance that other, more worthy defendants may deserve.” Id. at 499. That is, we refused to accept a sentence that would leave no room for a more lenient sentence for a more deserving defendant. In the case at bar, the majority is merely endorsing the same sentencing mistake we found objectionable in Davis.

The issue in this case -is not that the district court reduced Hairston’s sentence to 60 months in prison from a Sentencing Guidelines range of 121-151 months in prison, a 51% reduction. As the majority correctly points out, this court recently accepted as substantively reasonable a sentence in which the district court awarded the defendant a 99.91% reduction in sentence. Husein, 478 F.3d at 333. The difference, however, is that the court in Husein found it difficult to imagine “more worthy defendants,” short of those acquitted, which distinguishes that case from Davis. Id. at 334. The majority does not appear to contend that, in the case at bar, Hairston is the most worthy crack dealer.

Hairston was convicted of dealing five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). Moreover, Hairston had a criminal history category of IV, and he possessed a firearm at the time of his arrest. Hairston’s actions since his arrest are commendable, but he simply complied with the terms of his release. That does not entitle him to the minimum sentence. Furthermore, as the government correctly points out, the majority is rewarding Hairston for having a checkered criminal past, and now rehabilitating-himself by complying with the terms of his release. Although Hairston’s renewed determination to be a contributing member of society warrants some departure from the Guidelines, a departure down to the minimum sentence mandated by Congress is substantively unreasonable.

The problem in this case, as it was in Davis, is that the district court sentenced Hairston to the minimum possible prison sentence, “leaving no room to make a reasoned distinction” between Hairston and more worthy defendants. Davis, 458 F.3d at 499. The majority attempts to distinguish Davis by noting that the defendant in that case was not subject to a statutory minimum. Hairston, the majority claims, does not suffer from the same problem from which the defendant in Davis suffered, because Hairston was sentenced to the statutory minimum of 60 months, rather than essentially zero days in prison. Extrapolating the majority’s logic, then, Hairston is not Davis because Hairston at least received some prison time. Thus, the majority claims, this “is a tougher case, because it forces us to reconcile a statutory minimum with the so-called ‘parsimony provision’ of § 3553(a), which commands a sentencing judge to ‘impose a sentence sufficient, but no greater than necessary, to comply with the purposes set forth in [§-3553(a)(2) Difficult or not, Davis still requires a sentencing judge to leave “room to make reasoned distinctions” between less worthy and more worthy defendants. Husein, 478 F.3d at 333-34.¹

In deflecting the government’s well-reasoned argument that a hypothetically more worthy defendant cannot possibly get a lesser sentence than Hairston’s, the majority inexplicably exclaims that “an equally plausible view, under similar logic, is that the hypothetical defendant’s sentence is unreasonably high.” (emphasis original). That “plausible view” is not plausible here, because, in our system of governance, when Congress creates a mandatory minimum sentence in a statute, judges generally lack the “legal power to depart downward, no matter how unusual the special circumstances that call for leniency.” Harris v. United States, 536 U.S. 545, 570, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (Breyer, J., concurring).

Congress created the mandatory minimum of 60 months when it passed 21 U.S.C. § 841 (b)(1)(B)(iii). In so doing, Congress mandated that anyone who violates § 841(b)(l)(B)(iii) receives a baseline sentence of at least 5 years. Consequently, it matters not if a court believes that a defendant more worthy than Hairston is entitled to a prison sentence shorter than 60 months. Courts do not have the authority to make that determination; Congress has already made it for us. If Mother Teresa sold 5 grams of crack then she could not possibly get less prison time than the majority opinion approves for Hairston.² There are clearly “more worthy defendants” than Hairston. Therefore, Hairston’s sentence is not substantively reasonable. Davis, 458 F.3d at 499.

ill. ConClusion

Respectfully, I cannot concur in the majority’s holding that Hairston’s sentence is substantively reasonable.

1 . In footnote 1, the majority states that Hair-ston’s sentence is not the minimum because he will be subject to 5 years of supervised release, "a period at the upper end of the range.” (emphasis original). This, the majority says, leaves room for a more worthy defendant to get a lesser sentence, because the court could simply impose a shorter period of supervised release. Such logic merely serves as an end-run around the requirements of Davis. Certainly, most people would prefer a greater period of supervised release to even a minimal period of incarceration.

2 . Under the Sentencing Guidelines Manual § 5K.1, upon motion of the government the court can depart below the mandatory minimum in sentencing a defendant who provides substantial assistance in the investigation or prosecution of another. Melendez v. United States, 518 U.S. 120, 125-26, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996); United States v. McIntosh, 484 F.3d 832, 835 (6th Cir.2007). That provision is inapplicable here because the government did not make such a motion on Hairston's behalf.