Substantial Upward Variance Vacated Because District Court Failed to Identify Case-Specific Reasons for the Variance

United States v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (Garwood, Smith, DeMoss)

Walters was convicted of several counts relating to a mail-bombing, including a § 924(c)(1) use-of-destructive-device-in-crime-of-violence count that required a 30-year mandatory minimum to be served consecutively to the sentences on the other counts. The Guidelines recommended the minimum 30-year consecutive sentence on the § 924(c)(1). However, the district court, "primarily focus[ing] on the fact that his crime involved the use of a bomb[,]" imposed a non-guideline sentence of 60 years (720 months). When combined with the 262 months for the other counts, Walters' overall sentence was 982 months.

Walters appealed, challenging the reasonabless of his sentence. The court of appeals reversed, "conclud[ing] that the [district] court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence." In particular, the district court "only articulated factors that are inherent in all bomb-related crimes, and not specific facts relating to this particular defendant and his actions." Under the Smith framework, that won't fly. The court also said, somewhat confusingly, that

we do not believe that the court abused its discretion in deciding to depart. However, the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure.

The court's analysis is pretty brief, so it's hard to tease out any broader implications from the opinion. But the more-than-mere-lip-service-to-3553(a) language could be helpful to defendants challenging upward variances on appeal. It also shows that there's some limit on the magnitude of upward variances, even if it that limit may be pretty high.

Note also that one aspect of the Smith framework is at issue in a case the Supreme Court will decide next term. Smith holds, among other things, that "[t]he farther a sentence varies from the applicable Guideline sentence, the more compelling the justification based on factors in section 3553(a) must be.” In Gall v. United States, the Supreme Court will decide

[w]hether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.

Will Smith survive? We'll have to wait and see.