United States v. Rene Boucher

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0232p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellant, │
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> No. 18-5683
v. │
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RENE A. BOUCHER, │
Defendant-Appellee. │
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┘
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 1:18-cr-00004-1—Marianne O. Battani, District Judge.*
Argued: July 31, 2019
Decided and Filed: September 9, 2019
Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Bob Wood, UNITED STATES ATTORNEY’S OFFICE, Indianapolis, Indiana, for
Appellant. Matthew J. Baker, Bowling Green, Kentucky, for Appellee. ON BRIEF: Bob
Wood, UNITED STATES ATTORNEY’S OFFICE, Indianapolis, Indiana, for Appellant.
Matthew J. Baker, Bowling Green, Kentucky, for Appellee.
*The Honorable Marianne O. Battani, United States District Judge for the Eastern District of Michigan,
sitting by designation pursuant to 28 U.S.C. § 292(b).
No. 18-5683 United States v. Boucher Page 2
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Senator Rand Paul was mowing his lawn when he
stopped to gather a few limbs in his path. Without warning, Rene Boucher—Paul’s next-door
neighbor, whom he had not spoken with in years—raced toward Paul and attacked him from
behind. The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to
several bouts of pneumonia. Boucher later pleaded guilty to assaulting a member of Congress in
violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months
in prison, the district court sentenced him to 30 days’ imprisonment. On appeal, the Government
argues that Boucher’s sentence was substantively unreasonable. We agree and therefore
VACATE his sentence and REMAND for resentencing.
I. BACKGROUND
A. Factual Background
Paul and Boucher were neighbors. According to Paul, their relationship was
unremarkable—they had not directly spoken in years, though they might wave to one another if
they crossed paths on the street. From Boucher’s perspective, however, problems between them
began in the summer of 2017, when he decided to trim the branches of five maple trees in Paul’s
backyard that had grown over the Boucher/Paul property line. Sometime shortly thereafter, Paul
dropped a bundle of limbs and brush at the edge of his property, apparently in the sightline of
Boucher’s home. A few weeks passed and the bundle remained. Frustrated by the sight of yard
debris, Boucher crossed onto Paul’s property, removed the limbs and brush, and hauled them off
in dumpsters.
The following month, Boucher noticed another bundle of limbs and brush in roughly the
same location. He hauled it off again. A few days later, a bundle reappeared. This time
Boucher did not haul it away; he poured gasoline over the debris and lit a match. The ensuing
fireball caught him by surprise. The debris was burned, but so was Boucher—he suffered
second-degree burns on his arms, neck, and face.
No. 18-5683 United States v. Boucher Page 3
When Paul got on his lawnmower the next day, Boucher was watching him from the top
of a hill overlooking Paul’s property. According to Boucher, he saw Paul “blow all of the leaves
from his property onto Boucher’s yard.” Paul then got off his lawnmower, picked up a few more
limbs, and turned toward the site of the burned debris pile. While Paul had his back to the hill,
Boucher ran 60 yards downhill and hurled himself headfirst into Paul’s lower back. The impact
broke six of Paul’s ribs, including three that split completely in half. After a brief fracas, Paul
left the scene and called the police.
The Kentucky State Police were the first to respond. In an interview with officers,
Boucher admitted to tackling Paul but denied doing so because of Paul’s politics. Instead, he
described the assault as the culmination of “a property dispute that finally boiled over.”
B. Procedural History
The Warren County Attorney initially charged Boucher with Fourth Degree
Misdemeanor Assault under Kentucky law. He was taken into custody for a few days, after
which the FBI intervened and the state charges were dropped. The Government then indicted
Boucher on one count of assaulting a member of Congress in violation of 18 U.S.C. § 351(e).
Boucher pleaded guilty. His presentence report (PSR) recommended a five-level sentencing
enhancement because Paul had suffered “serious bodily injuries.” Boucher did not object. The
five-level increase was partially offset by a three-level reduction for acceptance of responsibility,
resulting in a Guidelines sentencing range of 21 to 27 months in prison.
At his sentencing hearing, Boucher called three witnesses. The first was Amy Milliken,
the Warren County Attorney. Milliken testified that “many times in assault fourth cases, where
. . . you’re looking at someone older, [] who has ties in the community, [] who has a job, [] who
is productive, [and] who has no criminal history, we have somewhat of a standard plea . . . and
that would generally be 30 days in the Warren County Regional Jail.” But she also clarified that
misdemeanor assault charges were appropriate for only “minor” injuries, and she did not know
“the extent of [Paul’s] injuries” when she charged Boucher with Fourth Degree Misdemeanor
Assault. Shortly after the attack, she had asked the Commonwealth Attorney (who is responsible
for filing felony charges) if he would prefer to charge Boucher with a felony. He told her that
No. 18-5683 United States v. Boucher Page 4
“until [they] had all the facts, . . . he wanted [her] to go ahead and issue the warrant for assault
fourth” so that they could “get the defendant picked up and get the case moving.” But before the
Commonwealth Attorney could make a determination about felony charges, “federal prosecutors
assumed [] jurisdiction” over the case.
Boucher’s second witness was Jim Skaggs, one of the developers of the gated community
where Boucher and Paul live. Skaggs testified that “we had absolutely no problems” with
Boucher, who “always paid his homeowner’s dues and kept a neat place.” He had “no
complaints” about Boucher as a neighbor but conceded that if he “had broken ribs, maybe [he
would] feel differently about it.” Boucher’s final witness was Father John Thomas, the priest at
his church. Thomas testified that Boucher was “a friendly, open, kind, faithful person.” He
recalled that Boucher had visited sick parishioners “a couple of times” and had “helped with
preparation for those who [were] interested in learning more about the Catholic faith.”
Boucher and his counsel also spoke. Boucher told the court that he was “sincerely sorry”
for the assault, apologized to Paul and his family, offered to pay for Paul’s medical expenses,
and assured the court that he would “never do . . . anything like this again.” He added that he
would “prefer not to go to jail for this situation” and “plead[ed] for the mercy of the court and
forgiveness.” Boucher’s counsel made a similar plea for leniency. Citing Milliken’s testimony,
he argued that “if anyone else in Warren County [had gotten] involved in a scuffle over yard
trash, . . . we would be in the Warren District Court” and “the resolution would be a 30-day jail
sentence . . . .” Counsel also emphasized Boucher’s status in the community:
A felony conviction carries with it, Judge, a very real stigma, and maybe to some
people a felony conviction isn’t that big of a deal, but for a person who has
become board certified in two specialties, who’s 60 years old, who is a devout
member of his church, who’s the father of two wonderful children, and who lives
in the nicest neighborhood in Warren County, by my evaluation, a felony
conviction is a very real punishment in and of itself.
In lieu of live testimony, the Government responded by introducing two victim impact
statements—one from Paul and another from his wife, Kelley. Paul described the extent of his
injuries. Because displaced ribs “heal in a crooked fashion,” “the free ends of [his] ribs grinded
over top of and into each other with any movement,” causing him “intense pain.” He “had
No. 18-5683 United States v. Boucher Page 5
trouble finishing sentences for lack of air to expel,” and “throughout the night [he] would pace
[while] suffering from involuntary spasmodic breathing.” After an attempted return to work 10
days after the assault, his “fever spiked to 102.6 F, despite being on medication to prevent
fevers.” He returned to the hospital for testing, and “[a] CAT scan showed pneumonia and fluid
around [his] lungs.” Antibiotics briefly resolved the illness, but a few weeks later “the fevers
and spasmodic breathing returned.” Another trip to the hospital revealed that Paul had “recurrent
pneumonia.” This second bout of pneumonia cleared after another round of antibiotics, but
additional scans “still show[ed] an area of damaged lung.” Paul wrote that he might “be at risk
for future pneumonias” and that he still suffered from “chronic lateral back pain over the ribs.”
Kelley likewise testified that Boucher’s assault began “a long odyssey of severe pain and
limited mobility for” Paul. “A cough or hiccup would literally drive him to his knees, his face in
a white grimace,” and “[t]he trauma to his body caused him to suffer night sweats accompanied
by uncontrollable shivering and shaking.” Because Boucher remained the Pauls’ next-door
neighbor after the attack, Kelley said “the home and backyard [she had] loved for 23 years no
longer fe[lt] like my safe sanctuary.” Every time she walked in their backyard she “wonder[ed]
if he [was] watching out the windows of his house.”
In its closing remarks, the Government argued that Boucher’s sentence should not be
“about who the victim is” but should reflect “what was done to him, the physical harm, the being
placed in continued fear to even be in his own backyard, [and] the apprehension of every time he
sees Dr. Boucher in the neighborhood [wondering] what is going to happen.” The Government
also disputed Boucher’s claim that he would have served only a 30-day jail sentence if the case
had been prosecuted under Kentucky law, maintaining that Boucher’s charge “would have been a
felony” given the severity of Paul’s injuries.
The district court nevertheless sentenced Boucher to 30 days in prison. The court’s
rationale rested primarily on two observations. First, it found that the confrontation was “strictly
[] a dispute between neighbors.” Although Paul said he had not spoken with Boucher in years
and was aware of no tension between them, the court reasoned that “actions speak louder than
words, and . . . one would know by [Boucher’s] removal that [he] did not like those—that debris
in [his] sightline.” The court described the attack as an “isolated,” “first-time action,” and felt
No. 18-5683 United States v. Boucher Page 6
there was a “spontaneity about when it happened” that suggested Boucher would not “get
[himself] involved in anything like this” again.
Second, the court announced that Boucher had an “excellent background.” He was “an
educated person” who had “gone by 60 years of . . . a good life from the letters that the court
ha[d] reviewed” and “from the witnesses who testified,” including his pastor and the developer
of the gated community. The court also mentioned that Boucher had no criminal history, had
served in the military, had “raised two children who [were] doing very well,” and had
“participated in the community in [his medical] practice and in [his] church.”
After weighing these factors, the court decided that a within-Guidelines sentence would
not “serve any purpose.” It sentenced Boucher to 30 days in prison along with 100 hours of
community service, one year of supervised release, and a $10,000 fine. On appeal, the
Government argues that this sentence was substantively unreasonable.
II. ANALYSIS
A. Substantive Reasonableness
“Substantive reasonableness focuses on whether a ‘sentence is too long (if a defendant
appeals) or too short (if the government appeals).’” United States v. Parrish, 915 F.3d 1043,
1047 (6th Cir. 2019) (quoting United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)).
A substantive reasonableness challenge is not defeated by a showing of procedural
reasonableness—for example, by confirming that the district court addressed each relevant factor
under 18 U.S.C. § 3553(a), or even that it discussed those factors at length. See Rayyan, 885
F.3d at 442 (“The point is not that the district court failed to consider a factor . . . that’s the job of
procedural unreasonableness.”); see also Gall v. United States, 552 U.S. 38, 51 (2007)
(describing this error as procedural). Rather, in gauging the substantive reasonableness of a
sentence, we ask whether the sentencing court gave reasonable weight to each relevant factor. If
“the court placed too much weight on some of the § 3553(a) factors and too little on others,” the
sentence is substantively unreasonable regardless of whether the court checked every procedural
box before imposing sentence. Parrish, 915 F.3d at 1047 (quoting Rayyan, 885 F.3d at 442); see
also United States v. Warren, 771 F. App’x 637, 641–42 (6th Cir. 2019) (reversing upward
No. 18-5683 United States v. Boucher Page 7
variance, even though “the district court engaged in a thorough discussion of several factors set
forth in” § 3553(a), because the district court placed too much weight on a single factor).
The district court’s decision to assign more or less weight to a given factor is “a matter of
reasoned discretion, not math, and our highly deferential review of a district court’s sentencing
decisions reflects as much.” Rayyan, 885 F.3d at 442. If a sentence falls within a defendant’s
Guidelines range, for example, it “is presumed reasonable.” United States v. Christman,
607 F.3d 1110, 1118 (6th Cir. 2010). And even if a sentence falls outside that range, it “is not
per se or even presumptively unreasonable.” United States v. Borho, 485 F.3d 904, 912 (6th Cir.
2007). In all cases, this circuit gives sentencing courts broad discretion to fashion
individualized, fact-driven sentences without interference from appellate courts.
That discretion is not, however, without limit. When a defendant’s sentence falls above
or below the Guidelines range, we “must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at
50. That is true in part because variances from the Guidelines risk creating unwarranted
disparities among similarly situated defendants nationwide. In fact, the Sentencing Reform Act
of 1984—which created the Sentencing Commission and the Guidelines it promulgates—was
designed to guard against those very disparities. See Dorsey v. United States, 567 U.S. 260, 265
(2012). One role of appellate courts is to balance these competing goals—to honor the discretion
afforded to sentencing courts on the one hand, and to avoid unjustified disparities on the other.
The Supreme Court has told us how to strike that balance. To avoid sentence disparities,
the Guidelines provide a transparent and predictable sentencing range for defendants who fall
within the “heartland” of average cases “to which the Commission intends individual Guidelines
to apply.” Kimbrough v. United States, 552 U.S. 85, 109 (2007) (quoting Rita v. United States,
551 U.S. 338, 351 (2007)). When a district court varies outside the guideline range, then, we
expect the court to explain what distinguishes that defendant’s case from a typical one. If the
district court reasonably explains why the defendant’s unique circumstances fall outside the
“heartland” of cases affected by the relevant guideline, then the “court’s decision to vary . . . may
attract greatest respect.” Id. But if the district court fails to distinguish the defendant’s
circumstances from a “mine-run case” under the applicable guideline, then “closer review may
No. 18-5683 United States v. Boucher Page 8
be in order.” Id. The reason for this “closer review” is simple—the more a sentencing court
strays from the Guidelines in a mine-run case, the greater the risk that the defendant’s sentence
will create unfair disparities.
We have applied this lesson in our own caselaw. In United States v. Aleo, for example,
we reversed an upward variance because the district court “did not reasonably distinguish [the
defendant’s case] from other[s]” involving similar crimes. 681 F.3d 290, 302 (6th Cir. 2012).
More recently, in Warren, we vacated an above-Guidelines sentence where “the only reason the
court gave for [the sentence] disparity was [the defendant’s] criminal record.” 771 F. App’x at
641. Because “his criminal history was already incorporated into the Guidelines-recommended
sentence,” the variance was “inconsistent with the need to avoid unwarranted sentence
disparities.” Id. at 642 (citation and internal quotation marks omitted).
The Supreme Court’s guidance and our own precedents offer two principal takeaways.
First, when a district court varies above or below the Guidelines, we “must consider the extent of
the deviation and ensure that the justification is sufficiently compelling to support the degree of
the variance.” Gall, 552 U.S. at 50. “The farther the judge’s sentence [varies] from the
guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)
must be.” Aleo, 681 F.3d at 302 (citation and internal quotation marks omitted). Second, in
looking for that compelling justification, a key question is whether the defendant’s case falls
within “the ‘heartland’ to which the Commission intends individual Guidelines to apply.”
Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351). If the district court reasonably
explains why the defendant’s case falls outside the heartland, then the sentence “may attract
greatest respect.” Id. But “a sentence that [varies] from the advisory range in a ‘mine-run case’
warrants ‘closer review.’” United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir. 2009)
(quoting Kimbrough, 552 U.S. at 109).
Here, the district court sentenced Boucher to 30 days’ imprisonment, though his
Guidelines range was 21 to 27 months. That represented an eight-step decrease in Boucher’s
No. 18-5683 United States v. Boucher Page 9
total offense level1 and a 95% reduction from the lowest end of his recommended sentence.
Although we do not reduce substantive reasonableness review to “a rigid mathematical formula,”
Gall, 552 U.S. at 47, the size of the variance remains relevant to our analysis. See id. at 50
(“We find it uncontroversial that a major [variance] should be supported by a more significant
justification than a minor one.”). The question, then, is whether the district court gave a
“sufficiently compelling” reason for the dramatic downward variance in this case. Id.
B. The § 3553(a) Factors
1. The Nature and Circumstances of the Offense
The nature and circumstances of Boucher’s crime do not lift this case “outside the
‘heartland’ to which the Commission intends [the assault guideline] to apply.” Kimbrough,
552 U.S. at 109 (quoting Rita, 551 U.S. at 351). After summarizing the history of this yard-
debris controversy, the district court reasoned that the conflict between Paul and Boucher was
simply an apolitical “dispute between neighbors.” Although a defendant’s motive is a relevant—
and often important—factor under the Guidelines, Boucher’s lack of political motivation does
not meaningfully distinguish his offense from a mine-run assault case under federal law. The
relevant guideline, USSG § 2A2.2, covers a range of assault crimes, not just those involving
political figures. This guideline also applies, for example, to certain assaults “within the special
maritime and territorial jurisdiction of the United States,” 18 U.S.C. § 113, and to “assaulting,
resisting, or impeding” federal officers, 18 U.S.C. § 111. Assault cases under either of those
statutes will rarely involve a political motive, but they will frequently fall within the heartland of
§ 2A2.2. Apart from Boucher’s apolitical motivation, the district court never differentiated his
attack from a garden variety assault case under the Guidelines. See Herrera-Zuniga, 571 F.3d at
582.
While the district court focused heavily on the isolated, apolitical nature of the dispute, it
gave little weight to “the need for the sentence imposed . . . to reflect the seriousness of
[Boucher’s] offense.” See 18 U.S.C. § 3553(a)(2)(A). The court did not address Paul’s six
1
Boucher’s total offense level was 16. The highest offense level to include a one-month sentence is an
offense level of 8, which has a recommended sentencing range of zero to six months’ imprisonment. See USSG ch.
5, pt. A, Sentencing Table.
No. 18-5683 United States v. Boucher Page 10
broken ribs, his damaged lung, his bouts of pneumonia, or his chronic pain.2 And although the
court briefly recognized that Boucher’s “sentence should not . . . diminish the seriousness of the
harm that was caused to the senator,” it did not explain why Boucher’s 30-day sentence
accounted for the severity of Paul’s injuries. Summary reference to “the seriousness of the
harm,” without tying that harm to the 30-day sentence imposed, was not enough. See, e.g.,
United States v. Peppel, 707 F.3d 627, 635–36 (6th Cir. 2013) (noting “that a district court must
explain how a sentence comports with the level of seriousness of the crime committed,” and
faulting the court for merely “acknowledg[ing] the seriousness of the offense in broad terms”
without “explain[ing] why the [defendant’s sentence] was sufficient to reflect the seriousness of
[his] crimes”).
2. Deterrence
Closely related to the seriousness of Boucher’s assault is “the need to afford adequate
deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). This factor includes two
components—specific deterrence and general deterrence. Specific deterrence looks to dissuade
an individual defendant from committing future crimes, while general deterrence aims to have
the same effect on “the population at large.” United States v. Camiscione, 591 F.3d 823, 834
(6th Cir. 2010).
The district court fairly weighed the need (or lack thereof) to deter Boucher from
committing other crimes. As explained, the court found that Boucher’s attack was an “isolated,”
“first-time action,” and considered it unlikely that he would “get [himself] involved in anything
like this” again. On the other hand, the court gave little weight to the need to promote general
deterrence—even though “[c]onsideration of general deterrence is particularly important where
the district court varies substantially [downward] from the Guidelines.” United States v.
Musgrave, 761 F.3d 602, 609 (6th Cir. 2014). Accepting that Boucher’s attack did not appear to
be politically motivated, Paul’s status as a national political figure is still relevant to the broader
“goals of societal deterrence” served by Boucher’s sentence. United States v. Davis, 537 F.3d
611, 617 (6th Cir. 2008). Congress saw fit to make § 351(e) a strict liability crime in the interest
2
The court did allude to Paul’s “five or six broken ribs” when questioning Milliken earlier in the sentencing
hearing. But it did not discuss Paul’s injuries during its application of the § 3553(a) factors.
No. 18-5683 United States v. Boucher Page 11
of protecting our elected representatives from harm. It was the district court’s responsibility to
explain why those interests did not warrant a within-Guidelines sentence; but it never gave that
explanation here. See Musgrave, 761 F.3d at 609 (“Where a district court’s view of a particular
crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we
expect that it will explain how its sentence nevertheless affords adequate general deterrence.”).
3. History and Characteristics
The district court also commended Boucher’s “excellent background.” It spotlighted his
education, medical practice, reputation in the community, involvement in his church, lack of
criminal history, military background, and two children who “are doing very well.” In its
“Statement of Reasons” submitted after sentencing, the court repeated that Boucher was “a
60 year old highly educated medical doctor, Army veteran, father, church member, and good
standing community member with no criminal history.”
While these factors might distinguish Boucher from a mine-run defendant convicted of
assault, they are almost all disfavored as grounds for a below-Guidelines sentence.3 Congress
has instructed the Sentencing Commission to “assure that the guidelines and policy statements, in
recommending a term of imprisonment . . . reflect the general inappropriateness of considering
the education, vocational skills, employment record, family ties and responsibilities, and
community ties of the defendant.” 28 U.S.C. § 994(e). The Guidelines’ policy statements do
just that. See USSG § 5H1.2 (“Education and vocational skills are not ordinarily relevant [to a
defendant’s sentence.]”); id. § 5H1.5 (“Employment record is not ordinarily relevant.”); id.
§ 5H1.6 (“[F]amily ties and responsibilities are not ordinarily relevant.”); id. § 5H1.11 (“Civic,
charitable, or public service . . . and similar good works are not ordinarily relevant.”); id. § 5H1.1
(noting age “may be relevant” only if “present to an unusual degree”). And although a
defendant’s criminal record is relevant to “determining the applicable criminal history category,”
id. § 5H1.8, it is usually not a proper reason for a variance precisely because the Guidelines
already take it into account. See Warren, 771 F. App’x at 642 (explaining that a variance based
3
The lone exception is Boucher’s military service, which “may be relevant” under the Guidelines if it is
“present to an unusual degree.” USSG § 5H1.11. That was arguably the case here—Boucher served in the Army
for eight years and achieved the rank of Major.
No. 18-5683 United States v. Boucher Page 12
on the defendant’s criminal history risks creating “unwarranted sentence disparities” between the
defendant and “other offenders in the same criminal history category” (citation and internal
quotation marks omitted)); see also United States v. Kirchhof, 505 F.3d 409, 415 (6th Cir. 2007)
(“[The defendant’s] lack of prior criminal history was already taken into account in calculating
his guidelines range, and according to the advisory policy statements contained in the guidelines,
his other personal characteristics are ‘not ordinarily relevant.’” (citation omitted)).
These factors are disfavored for good reason. To prioritize a defendant’s education,
professional success, and standing in the community would give an additional leg up to
defendants who are already in a privileged position. Indigent defendants are less likely to
impress a sentencing court with their education, employment record, or local reputation. But
they are no less deserving of a reasonable and compassionate sentence. That is why Congress
and the Guidelines oppose a class-based system where accumulated wealth, education, and status
serve as credits against a criminal sentence. See, e.g., Musgrave, 761 F.3d at 608 (cautioning
district courts not to rely on factors that “would tend to support shorter sentences in cases with
defendants from privileged backgrounds” (citation omitted)); Peppel, 707 F.3d at 641 (“[W]e do
not believe criminals with privileged backgrounds are more entitled to leniency than those who
have nothing left to lose.” (citation and internal quotation marks omitted)).
This is not to say that sentencing courts are prohibited from weighing factors disfavored
under the Guidelines. These factors may, for example, still “be relevant insofar as they bear
some connection to permissible considerations.” United States v. Stall, 581 F.3d 276, 289 (6th
Cir. 2009). A defendant’s personal or professional success after his last incarceration, while not
always relevant in isolation, might demonstrate an honest effort to turn his life around. Cf.
United States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006) (citing with approval the
sentencing court’s discussion of the defendant’s “desire to reform”). But while “the fact that a
factor is discouraged or forbidden under the guidelines does not automatically make it irrelevant
when a court is weighing statutory factors apart from the guidelines,” Section 3553(a)(5) still
“requires that the district court consider applicable policy statements issued by the Sentencing
Commission, and the Guidelines’ disfavored view toward [these factors] is, therefore, relevant to
our reasonableness review.” Christman, 607 F.3d at 1119 (citations omitted). The district court
No. 18-5683 United States v. Boucher Page 13
did not acknowledge that Congress and the Guidelines view these factors with suspicion or
explain what unusual circumstances justified relying on them here. These simple markers of
privilege did not warrant an extreme variance in Boucher’s case. See id. (holding that the district
court erred by citing the defendant’s “educational background and skill” as mitigating factors
without identifying what “unusual circumstances” warranted reliance on those factors); Kirchhof,
505 F.3d at 415 (“Kirchhof offers no reason why these [disfavored] characteristics . . . are
unusually relevant in his case.”).
4. Unwarranted Sentence Disparities
The last key factor is the need to avoid unwarranted sentence disparities. See 18 U.S.C.
§ 3553(a)(6). This consideration touches on all of the § 3553(a) factors discussed above—the
better the district court’s explanation for its individualized, fact-driven sentence, the lesser the
risk that the sentence will create unjustified disparities. But if the district court gives
unreasonable weight to one or more of these factors, the danger of unwarranted disparity
increases in tandem. See Peppel, 707 F.3d at 639–40; see also United States v. Henry, 545 F.3d
367, 386–87 (6th Cir. 2008) (“In sum, there is no means for judges [to] avoid such disparities in
the first instance, or correct them on review, without demanding that substantial variances be
supported by substantial reasons.” (citation and internal quotation marks omitted)).
We first distinguish between disparities that matter and those that do not. At sentencing,
Boucher urged the court to consider the 30-day sentence that first-time offenders may receive
when they plead guilty to Fourth Degree Misdemeanor Assault under Kentucky law. Although
the court gave Boucher a 30-day sentence, it did not say that it had calculated Boucher’s prison
term by reference to the sentence he might have received under Kentucky law. At any rate, “it is
impermissible for a district court to consider the defendant’s likely state court sentence as a
factor in determining his federal sentence.” United States v. Malone, 503 F.3d 481, 486 (6th Cir.
2007). Because state courts may sentence defendants according to their own criteria without
reference to the Guidelines, permitting federal courts to rely on state-court criteria would
“enhance, rather than diminish, disparities” among similarly situated federal defendants. Id.
And even if consideration of Boucher’s potential Kentucky sentence were proper, the Warren
County Attorney testified that misdemeanor assault charges are appropriate for only “minor”
No. 18-5683 United States v. Boucher Page 14
injuries, and she did not know “the extent of [Paul’s] injuries” when she initially charged
Boucher with Fourth Degree Misdemeanor Assault. The Commonwealth Attorney’s review of
the case was incomplete when federal agents intervened. It is clear that Paul’s injuries—which
included six broken ribs, a damaged lung, bouts of pneumonia, and chronic back pain—were
more than minor.
The only disparities relevant in this case are those among federal defendants on a national
scale. In its submission to the district court before sentencing, the Government cited over a
dozen examples of defendants sentenced for assault under federal law. Only three of those cases
involved violations of the statute at issue here, 18 U.S.C. § 351(e). In the first two, each
defendant received a 30-day sentence for throwing eggs at a congressman during a campaign
event (the eggs missed). See United States v. Guerrero, 667 F.2d 862, 864–65 (10th Cir. 1981);
United States v. Calderon, 655 F.2d 1037, 1038 (10th Cir. 1981). In the third, the defendant
received a 15-day sentence for spitting on a senator at an airport. See United States v. Masel,
563 F.2d 322, 322–23 (7th Cir. 1977). These prison terms were similar to Boucher’s, but the
offense conduct was quite different—as the Government argues, “it is difficult to understand
why a tackle resulting in long-term serious injuries warrants the same sentence as an egg toss or
spit in the face.” While that is true, those three cases occurred roughly 40 years ago, before the
Sentencing Commission or the Guidelines even existed. Their age and limited number make
them less helpful to our analysis.
The more telling comparators are in cases drawn from other federal assault statutes. The
Government cites, for example, several cases involving “assault resulting in serious bodily injury
within U.S. territorial jurisdiction,” 18 U.S.C. § 113(a)(6), and others involving “assaulting,
resisting, or impeding” federal officers, 18 U.S.C. § 111. Some of these defendants had lengthy
criminal records, making their sentences irrelevant. See 18 U.S.C. § 3553(a)(6) (noting that
courts should “avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct”). But others involved defendants who, like
Boucher, had a criminal history category of I. Three occurred on Native American reservations
and resulted in sentences of 48 months, 41 months, and 43 months, respectively. See United
States v. Barrera, 628 F.3d 1004, 1006 (8th Cir. 2011); United States v. Ravensborg, 776 F.3d
No. 18-5683 United States v. Boucher Page 15
587, 587–88 (8th Cir. 2015); United States v. Sayers, 580 F. App’x 497, 498 (8th Cir. 2014). In
the remaining two, one defendant received a 24-month sentence for pushing a door into the arm
of a government doctor, see United States v. Clayton, 615 F. App’x 587, 588–91 (11th Cir.
2015), and the other received a 21-month sentence for giving a customs officer a bloody nose
and ear during a “brief melee” on a cruise ship. United States v. Gutierrez, 745 F.3d 463, 466–
69 (11th Cir. 2014).
National statistics tell a similar story. Cf. United States v. Stock, 685 F.3d 621, 629 n.6
(6th Cir. 2012) (explaining that national sentencing data released by the Commission should
serve as “a starting point for district judges in their efforts to avoid unwarranted sentence
disparities”) (citation and internal quotation marks omitted). The most recent Commission data
shows that federal defendants with a criminal history category of I who were convicted of assault
received an average sentence of 26 months’ imprisonment and a median sentence of 21 months.
See U.S. Sentencing Commission, Length of Imprisonment for Offender in Each Criminal
History Category by Primary Offense Category, Table 14 (2017),
https://isb.ussc.gov/api/repos/:USSC:table_xx.xcdf/generatedContent?table_num=Table14. And
those with the lowest criminal history category who were sentenced under the guideline at issue
here, § 2A2.2, received an average sentence of 37 months’ imprisonment and a median sentence
of 27 months. See U.S. Sentencing Commission, Length of Imprisonment for Offender in Each
Criminal History Category by Primary Sentencing Guideline, Table 14G (2017),
https://isb.ussc.gov/api/repos/:USSC:table_xx.xcdf/generatedContent?table_num=Table14G.
Despite these comparators, the district court failed to address the risk of sentence
disparities. Of course, a sentence may be substantively reasonable even when the court does not
squarely address this factor. See Gall, 552 U.S. at 54 (suggesting we may infer that the court
considered this factor if the record otherwise shows that it “carefully reviewed the Guidelines
range”). But the risk of disparity is more acute in mine-run cases like this one. And that risk
intensifies when the defendant receives a sentence well outside the Guidelines range. The
unremarkable nature of this case—coupled with the court’s substantial variance from the
Guidelines—warranted a more careful discussion about the relationship between Boucher’s
sentence and the danger of unjustified disparities.
No. 18-5683 United States v. Boucher Page 16
III. CONCLUSION
In a mine-run case like this one, we apply “closer review” to any variance from the
Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351). And our review here
reveals no compelling justification for Boucher’s well-below-Guidelines sentence. Gall,
552 U.S. at 50. Boucher may or may not be entitled to a downward variance after the district
court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that
decision in the first instance. See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir.
2007) (“This Court takes no position on what an appropriate sentence in this case might be and
notes that on remand the district court still retains ample discretion to grant a variance. . . . The
narrow reason for remand here is that the extreme nature of the deviation, without a
correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).
We therefore VACATE Boucher’s sentence and REMAND for resentencing.