holding that, for a within-guidelines sentence, because the district court specifically considered the mitigating evidence of a defendant and “enumerated the specific evidence and the § 3553(a) factors that led it to believe that the sentence[ ] it imposed w[as] appropriate,” the sentence was not substantively unreasonable
How later courts described this case
- holding that, for a within-guidelines sentence, because the district court specifically considered the mitigating evidence of a defendant and “enumerated the specific evidence and the § 3553(a) factors that led it to believe that the sentence[ ] it imposed w[as] appropriate,” the sentence was not substantively unreasonable
- holding that district court did not abuse its discretion in imposing within-Guidelines sentence where the court specifically considered mitigating evidence and “enumerated the specific evidence and the § 3553(a) factors that led it to believe that the sentences it imposed were appropriate”
- explaining that an appellate court must review a district court’s determination that a factual finding is supported by a preponderance of the evidence using the clear-error standard
- stating that “evidence of ‘conservative treatment’ is 17 sufficient to discount a claimant’s testimony regarding severity of an impairment.”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring in part and dissenting in part.
The two first offenders here grew and distributed marijuana off and on over several years and were sentenced to 17 years and 19 years respectively. In my view this sentence is too long and serves no rational penal purpose. It is much greater than necessary to adequately deter marijuana growing and distribution. I would reverse and remand for a further explanation of why such a long sentence is justified, especially in light of the great disparity in sentencing for such relatively minor marijuana crimes between the state and federal courts and among federal judges themselves. These defendants will be over 70 years old when they get out of jail, if they live that long. The cost of their incarceration, including health care, will be enormous. The sentences seem irrational to me — too irrational for me to defer. 1
For reasons stated in my dissenting opinion in United States v. White, 551 F.3d *1057 381 (6th Cir.2008 (en banc)), I do not agree with the holdings and reasonings of Sections II.D and II.E of the majority opinion upholding the use of acquitted conduct and the judge-found, offense-conduct facts regarding the leadership enhancement. These sentencing enhancements are unconstitutional in my view. Although I concur that we must defer to the majority opinion in United States v. White, it is not final for all purposes and is likely to be reversed by the Supreme Court. These two enhancements are the basis for the long sentences and are inconsistent with the right of trial by jury under the Sixth Amendment, as I explained in White . Counsel for the defendants should keep the cases open until we find out what happens to the White case in the Supreme Court.
. The just-released "Overview” of the U.S. Sentencing Commission for 2007 shows that "the average punishment for drug crimes ranged from a high of ... 40 months for marijuana offenders (with a median of 24 months).” The great disparity for the marijuana offenders in this case and in the normal case remains unexplained in the record.