Notable Fourth Circuit (unpublished) vacating of downward variance

Thanks to this post at Fraud with Peril, I see that the Fourth Circuit has today vacated, via an unpublished per curiam opinion, a downward variance in US v. Gaskill, No. 04-4476 (4th Cir. March 20, 2009) (available here).  Here is how this opinion begins:

Appellee Jerry Gaskill was convicted and sentenced in the Eastern District of North Carolina for making materially false statements in connection with a matter within the jurisdiction of the Army Corps of Engineers, in violation of 18 U.S.C. § 1001.  At his sentencing hearing, the district court, over the Government’s objection, granted Gaskill a downward variance from the advisory Sentencing Guidelines range of fifteen to twenty-one months, and imposed a sentence of three years’ probation with six months’ home confinement.  The Government has appealed Gaskill’s sentence, asserting that the court erred in granting the downward variance. As explained below, we agree with the Government, and thus vacate and remand.

Intriguingly, the opinion in Gaskill suggests that the panel has a substantive problem with the sentence imposed, though it ultimately asserts that it is vacating and remainding for procedural unreasonableness:

In the absence of some indication that the sentencing court considered all the § 3553(a) factors, we are unable to conclude that it complied with its § 3553 mandate…. The court’s implicit consideration of only a part of a single § 3553(a) factor … is insufficient to support the implication that it considered each of the § 3553(a) factors…. Because a sentencing court should provide a more substantial justification for a probationary sentence when the Advisory Guidelines call for an active sentence of imprisonment, such as in this case, we are unable to conclude that the award of a downward variance was procedurally sound.