Eighth Circuit shows yet again that within-guideline sentences are essentially per se reasonable
I was hopeful — though not especially optimistic — that circuit courts would review within-guideline sentences with a bit more rigor after Rita. But today’s Eighth Circuit ruling in US v. Otterson, No. 06-3555 (8th Cir. Nov. 7, 2007) (available here), reveals yet again that some circuits view any within-guideline sentence as essentially per se reasonable.
In Otterson, the defendant was sentenced to just under 20 years’ imprisonment after pleading guilty to sending child porn to an undercover officer posing as a thirteen-year-old girl. At sentencing,
Otterson emphasized the fact that he came from a troubled home, he was the victim of sexual abuse, his father sexually abused his sisters, and his mother was committed for mental health issues while Otterson was still a minor. He discussed his own well-documented history of physical and mental disabilities, including the fact that he suffered from Bell’s palsy which, together with other conditions, Otterson claimed made social contact difficult and ensured he lived essentially as a hermit. Finally, he admitted that he had been using drugs at the time of the offense.
Otterson argued primarily that his social history and physical and mental infirmities provided justification for a lower sentence. He also argued that because he did not actually produce child pornography or physically touch any children related to the present offense, his sentence should not be at the top of the Guidelines range. Finally, he argued that his criminal history was overstated given his characterization of his prior property offenses as minor and his light sentence on the Missouri sex crime charge.
In response, “the district court imposed the sentence of 235 months [the top of the 188-235 guideline range] to be followed by supervised relief [sic] for life.” To justify this outcome,
the district court specifically stated its view as to the severity of the offense, referenced the sadistic and masochistic nature of the materials, and referenced Otterson’s online discussions with the undercover officer who posed as a thirteen-year-old girl. The district court stated the sentence was appropriate “to address the sentencing objectives of just punishment, general deterrence, and incapacitation.” The district court did not expressly address other factors under 18 U.S.C. § 3553(a) or discuss the issues Otterson raised as mitigating factors.
On this record, the Eighth Circuit panel rejects the defendant’s reasonableness challenge. It asserts simply that all the mitigating issues raised by Otterson “were clearly presented to the court in the PSR and at the sentencing hearing and are accounted for in the undisputed Guidelines range.”
As an initial matter, I do not quite understand the basis for the panel’s assertion that Otterson’s mental and physical condition and his social history “are accounted for” in the Guideline range. The guidelines do not provide any mitigating adjustments for any of these factors. Though a judge might reach a reasoned conclusion not to reduce a sentence based on these factors under § 3553(a), Rita stresses that, even when giving a guideline sentence, a judge should “explain why he has rejected those arguments” put forward by defendants for a different sentence. The district court’s silence in this case does not seem to me to be an adequate explanation in light of Rita.
Moreover, and perhaps even more disturbing, neither the district court or the Eighth Circuit panel explained why they view as “sufficient but not greater than necessary” for Otterson a prison sentence of 235 months (at the top of the applicable guideline range), instead of a sentence of, say, 188 months (at the bottom of the range). Despite making numerous non-frivolous mitigating argument, Otterson was given four more years in prison than the (presumptively reasonable) guideline range demands, and it is hard for him or anyone else to understand exactly why.