Downward Variance to Probation in Child Pornography Case Affirmed

United States v. Rowan, No. 05-30536 (5th Cir. June 9, 2006) (Jolly, Garza, Prado)

UPDATE AND BUMP: This opinion originally issued on June 4th, and apparently incorrectly stated that the district court had sentenced Rowan to five years' supervised release. On June 9th, the court withdrew the original opinion and substituted a new one stating that Rowan was sentenced to probation, not supervised release. The new opinion otherwise appears identical to the first one (except for some updated and additional cites). I've updated the post to reflect the changes.

We've already seen that the Fifth Circuit is taking a very deferential approach to its post-Gall review of upward variances and departures. In light of the court's post-Booker/pre-Gall decisions, one could be forgiven for wondering whether the same would hold true for sentences below the advisory Guidelines range. Turns out that substantive reasonableness review is very deferential for all sentences in our circuit, regardless of the direction or magnitude of the departure or variance, as illustrated by Rowan.

Rowan faced an advisory Guidelines range of 46 to 57 months' imprisonment. The district court sentenced him to 60 months' probation. The Government appealed and the Fifth Circuit, following Duhon, vacated the sentence as unreasonable. Rowan petitioned for cert, and the Supreme Court vacated and remanded for reconsideration in light of Gall.

In a very brief opinion, the court now affirms Rowan's sentence. Here's the entire discussion:

We review District Court sentencing decisions for abuse of discretion. Gall, 128 S. Ct. at 597. Our review is bifurcated. Id. at 597-98; United States v. Rodriguez, 523 F.3d 519, 524-25 (5th Cir. 2008). First, we must determine whether the District Court committed any significant procedural error. Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525. The District Court commits a procedural error if: it miscalculates or fails to calculate the proper Guidelines range; it treats the Guidelines as mandatory; it imposes a sentence based on clearly erroneous facts; it fails to consider the factors set forth in 18 U.S.C. § 3553(a); or it fails adequately to explain its chosen sentence or any deviation from the Guidelines range. See Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525. Second, if the District Court has committed no significant procedural error, we review the sentence for substantive reasonableness. See Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525.

Sentences fall into three categories: (1) those within a properly calculated Guidelines range, (2) those outside a properly calculated Guidelines range that are based on an allowed upward or downward departure, and (3) those outside a properly calculated Guidelines range that are not based on an allowed departure. United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Rowan’s sentence is outside the applicable Guidelines range and was not based on an allowed departure. See U.S.S.G. 5B1.1. Therefore, Rowan’s sentence is a non-Guidelines sentence. See id.; Davis, 478 F.3d at 273.

When the District Court imposes a non-Guideline sentence, we “may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S. Ct. at 597. Even if we “might reasonably have concluded that a different sentence was appropriate, [this] is insufficient to justify reversal of the district court.” See id.

We find no significant procedural error in the District Court’s sentencing decision: the District Court properly calculated the Guideline range, heard arguments concerning appropriate sentences, and meticulously considered the § 3553(a) factors. Based on the foregoing, the District Court concluded that a non-Guidelines sentence of a sixty-month period of probation was appropriate. In light of the deferential standard set forth in Gall, 128 S. Ct. at 597-98, we AFFIRM.

As you can see, this sends a pretty bold message. We're talking about a variance to no prison time in a child pornography case, and the court is able to affirm in just a few paragraphs that doesn't even discuss the particular reasons the district court gave for the sentence. This works both ways, as we've already seen, but it should send a clear signal to district courts that they can exercise their reasoned discretion to impose sentences below the Guidelines range without fear of being second-guessed by the Court of Appeals.