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Sixth Circuit reverses extreme upward variance in sex offender case

By Douglas Berman

Adding to its impressive corpus of post-Booker jurisprudence, a split panel of the Sixth Circuit today in US v. Poynter, No. 05-6508 (6th Cir. July 25, 2007) (available here), reverses a large upward variance in a sex offense case.  Here is how the opinion begins and one of  many strong passages from the majority’s analysis (per Judge Jeff Sutton and cites omitted):

Avery Poynter, 36 years old, pleaded guilty to traveling ininterstate commerce for the purpose of engaging in illicit sexual conduct with two minors.  Aftercalculating a guidelines range of 188–235 months and considering the § 3553(a) factors, the districtcourt imposed a 720-month sentence (the statutory maximum) because Poynter was a repeat childsex offender.  Unable to conclude that this variance resulted from a reasonable application of § 3553,we reverse….

By relying on a problem common to all repeat sex offenders (recidivism) in increasingPoynter’s sentence and by failing to offer meaningful distinctions between the risk that Poynterposed to the public and the risk that other sex offenders posed to the public, the district court left uslittle room to distinguish between Poynter and other sex offenders…. As utterly depraved as this crime is and as forever scarring as it must be to be victimized by it, not all repeat sex offenders deserve what amounts toa life sentence; otherwise, Congress would not have set a statutory range of 0–60 years.   While there is no yardstick perfectly calibrated to measure one crimeand one criminal from the next crime and the next criminal, there are certainly measurabledifferences between Poynter’s situation and the situation of offenders who might warrant thestatutory maximum or something approaching it.

Here is how Judge Siler’s brief dissent begins:

I respectfully dissent, not because I think that mycolleagues do not know the law, but because this is such a discretionary matter that I believe whenthe district court correctly calculates the Guidelines range and then considers the § 3553(a) factors,the sentence should be upheld, unless the court adds a factor which should not have been consideredunder § 3553(a) or unless the circumstances of the crime or the offender were such that no variancefrom the Guidelines could be justified.