Eighth Circuit reverses (again) reduced sentence in extreme sex offense case

The Eighth Circuit has yet another notable sentencing ruling today in a notable federal sex offense that has come before the circuit repeatedly.  The first few paragraphs and some of the concluding sentences of this new panel opinion provides the ugly basics of an ugly case (and I use the adjective ugly here without intending to opine in any way on the substantive merits of the ruling):

Ruth Kane (Kane) repeatedly restrained and compelled her nine-year-old daughter to submit to the sexual gratification of a pedophile in exchange for Kane’s receipt of $20.  This sexual abuse occurred approximately twice a week for more than 200 molestations.  A jury found Kane guilty of aggravated sexual abuse and conspiracy to commit aggravated sexual abuse.  The district court sentenced Kane to 210 months imprisonment.

Kane appealed.  We affirmed Kane’s conviction, but vacated her sentence and remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005).  See United States v. Kane, 148 Fed. Appx. 565, 568 (8th Cir. 2005) (unpublished).   The district court resentenced Kane to 120 months imprisonment. The government appealed. We reversed, holding Kane’s 120-month sentence was unreasonable.  See United States v. Kane, 470 F.3d 1277, 1282 (8th Cir. 2006) (Kane II).  The Supreme Court vacated and remanded for reconsideration in light of Gall v. United States, 128 S. Ct. 586 (2007).  Having considered Gall’s impact on Kane’s sentence, we again vacate the sentence of the district court and remand for resentencing….

Given the horrifying nature of Kane’s conduct, the fact Kane repeated her offense against her daughter over 200 times, and Kane’s refusal to accept responsibility for her role in her daughter’s abuse, we have serious concerns about the substantive reasonableness of Kane’s 120-month sentence. We doubt the district court’s remaining “justification is sufficiently compelling to support the degree of the variance” for the district court’s deviation below the Guidelines range.  Gall, 128 S. Ct. at 597. However, because the district court procedurally erred by substantially basing Kane’s sentence on clearly erroneous factual findings, relying on Kane’s postsentence rehabilitation, and otherwise failing adequately to explain Kane’s unusually lenient sentence with sufficient justifications, we do not reach the issue of whether Kane’s sentence was substantively reasonable.