You be the federal judge: what sentence for Senator Rand Paul’s attacker at resentencing after 30 days deemed unreasonable?

July 22, 2020

Regular readers know that, more than 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, circuit courts still almost never find a sentence to be “substantively unreasonable” upon a defendant’s appeal claiming the sentence was too high. But last year, a Sixth Circuit panel decided, upon an appeal by the government, that a high-profile sentence was “substantively unreasonable” as too low. The ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), concerned the sentencing resulting from Senator Rand Paul’s neighbor attacking him while he was was mowing his lawn in 2017. Now, as this local article highlights, it is time for resentencing after the Sixth Circuit vacated Boucher’s sentence as substantively unreasonable:

Federal prosecutors have renewed a push for a 21-month sentence for the man who tackled and injured U.S. Sen. Rand Paul in November 2017.

Rene Boucher deserves to spend more time behind bars because of the serious injuries Paul sustained, including six broken ribs that left him in intense pain and led to bouts of pneumonia and damage that ultimately required removing part of Paul’s lung, Assistant U.S. Attorney Bradley P. Shepard said in a memorandum filed Monday.

Shepard also argued that the initial 30-day sentence against Boucher wasn’t enough to deter other potential assaults on members of Congress. “‘Aggressive’ rhetoric directed at our elected leaders is at a dangerously high level,” Shepard wrote. “Although this case is lacking in evidence of political motivation, it is still important, in this climate, to send a message to society as a whole that assaults and violence perpetrated against members of Congress will not be tolerated.”

Boucher’s attorney, however, has argued it would be unjust to send him back to prison after he’s already completed his initial sentence, and moved to dismiss the case.

U.S. District Judge Matthew F. Leitman scheduled a sentencing hearing for Boucher on July 27. Lietman, a judge in Michigan, is sitting as a special judge in Boucher’s case.

Paul, a doctor elected to the Senate in 2010, and Boucher, also a physician, lived next door to each other in a gated community in Bowling Green. In the summer of 2017, Boucher trimmed five maple trees that were on Paul’s property, but had limbs sticking over the property line onto Boucher’s side, according to a motion from Boucher’s attorney, Matthew J. Baker. In response, Paul piled up a large stack of limbs and brush near the property line in Boucher’s view, Baker said….

[On] Nov. 3, 2017, Boucher saw Paul mowing his yard. Paul blew leaves into Boucher’s lawn and then got off the mower, picked up some limbs and turned toward the place where Boucher had burned the debris the day before, Baker said. Boucher lost his temper, ran 60 yards and tackled Paul from behind….

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.

Paul, a Republican, suggested in a letter to the court that there was a political motive behind the attack, saying that Boucher’s anger toward him “comingles with his hatred of my political policies.” However, Boucher has said the attack was driven solely by his anger over the yard waste, and prosecutors have acknowledged there was no evidence of a political motivation.

Under advisory guidelines, Boucher faced a potential sentence from 21 to 27 months, though judges can impose sentences outside those guidelines. U.S. District Judge Marianne O. Battani sentenced Boucher to 30 days in prison, a $10,000 fine and 100 hours of community service, noting Boucher’s military service, career as a doctor and his involvement in his church.

Prosecutors appealed the sentence, arguing it was unreasonably short. The U.S. 6th Circuit Court of Appeals ordered a new sentencing hearing for Boucher, ruling last September that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

In arguing for more time for Boucher, Shepard cited cases in which two people received as much jail time as he did only for throwing eggs at a member of Congress, and others in which people who attacked federal employees received much longer sentences. The prosecutor also said that had Boucher’s case been handled in a Kentucky court, Paul’s injuries could have meant a charge of second-degree assault, punishable by five to 10 years in prison.

Baker, however, argued that Boucher’s initial sentence was legitimate and that putting him back in prison would amount to punishing him twice for the same crime…. Baker said it appears that the government is getting a do-over on Boucher’s sentencing because the victim is a U.S. senator.

Shepard, however, said it is not unusual for people to be re-sentenced after completing a sentence. What Boucher wants, the prosecutor said, “is for those who have received exceptionally low sentences to get further special treatment in the form of a bar to resentencing.”

There are so many interesting elements to this resentencing, including the fact that there is a distinct new “outside judge” in charge of this resentencing. I am inclined to predict Boucher will get a sentence somewhere between the 30 days originally imposed and the 21 months requested by the feds. But I am eager to hear what readers think the new sentence should be.

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