The 8th Circuit speaks on reasonableness!

The Eighth Circuit is keeping the Booker cases coming fast and furious (prior rulings here and here and here).  Today the court broke at least a little new ground with US v. Yahnke, No. 04-1098 (Feb. 1, 2005) (available here).  The Yahnke case involves an upward departure based on the defendant’s criminal history, and the decision is a doodle dandy primarily because it seems to be the first case to address the appellate standard of “reasonableness.”

Because of the posture of the case (it is not clear Yahnke raised or briefed a Blakely issue), as well as the substantive issues involved (arguably there was no Blakely problem because of the prior conviction exception and/or the defendant’s admissions), it would not be wise to draw too many conclusions from the Eighth Circuit’s (relatively brief) Yahnke ruling.  Nevertheless, this defendant has struck out because the Eighth Circuit found the sentencing reasonable through these key passages:

In this case, the district court followed U.S.S.G. § 4A1.3(a), finding Yahnke’s criminal-history category substantially underrepresented the seriousness of his criminal history and the likelihood of recidivism. After Booker, this court determines whether a sentence is unreasonable based on the factors in section 3553(a).  Two of those factors are “the history and characteristics of the defendant” and the “need . . . to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (a)(2)(C).  Although the district court labeled its reasons in terms of the sentencing guidelines, the sentence is based on a consideration of the factors in section 3553(a)….

The district court’s interpretation of section 4A1.3 is reasonable. Neither the guidelines nor the commentary prohibit considering convictions also used to award criminal-history points. Treating alike defendants with similar criminal histories (or likelihood to recidivate) is based on the factors in section 3553(a).  See 18 U.S.C. § 3553(a)(2)(C), (a)(6).  Thus, some categories of crimes, such as murder, would be underrepresented by an inflexible 3-point addition for any sentence over one year and one month.  See U.S.S.G. § 4A1.1(a).

Yahnke was previously sentenced to 50 years for murder, and paroled after serving only about 7 years. The violent nature of the murder conviction, the length of the sentence, and the time actually served support a finding that Yahnke’s criminal history category substantially underrepresented the seriousness of his criminal history.  See 18 U.S.C. § 3553(a)(1), (a)(2)(C).

The district court also found that Yahnke’s parole violations and other uncharged criminal conduct justified an increase in his criminal history. The guidelines suggest that a district court increase a defendant’s criminal history based upon information of uncharged criminal conduct similar to the instant offense — which a district court would now consider as part of the “defendant’s history” and “recidivism” factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(C); U.S.S.G. § 4A1.3(a)(2)(E).

The district court found that Yahnke had four parole violations, including three failed urinalysis tests. Yahnke also admitted numerous other incidents of criminal conduct — all drug-related but not charged — for which he originally received no criminal-history points. The district court reasonably considered Yahnke’s continued drug-related, uncharged conduct as proof that his criminal-history category substantially underrepresented the seriousness of his criminal history and potential for recidivism.  See 18 U.S.C. § 3553(a)(1), (a)(2)(C)….

Based on the record, the district court’s sentence is reasonable and not an abuse of discretion.