U.S. v. Whitehead, No. 05-50458 (7-14-08). In an appropriate Bastille Day opinion, the 9th (per curiam -- Kozinski and O'Scannlain) affirm a variance sentence. Defendant was accused of pirating one million dollars of DirectTV access. He went to trial and was convicted. At sentencing, the court gave acceptance and then a variance from 3 years in prison under the guidelines to probation, 1000 hours of community service, and restitution. Defendant had presented evidence of rehabilitation (new life, new work), family responsibilities (ill mother, custody of his young daughter, plus a recent puppy), the offense was non-violent and not a threat, and restitution. The 9th in a per curiam stress that the Supremes have empowered district courts. Appellate courts, reviewing sentences, cannot just say that they would have given a different sentence. Here, the 9th affirmed the variance because the district court weighed and balanced 3553 factors, and justified its sentence appropriately. This opinion has a nice and useful formulation of the standard to be used, and the role of the district court, and that a non-guideline sentence was not presumed to be unreasonable. Bybee dissented, arguing that "abuse of discretion" was not a rubber stamp, but meant that the court had a definite and firm conviction that there was clear error. Here, to Bybee, the defendant showed no real acceptance, was situated like many other defendants (plus a puppy), supposedly got away with $400,000 in profit, and thwarted the guidelines.

Bybee also wrote that the appellate court had to enforce some sort of "Platonic equality" in sentencing. This ideal "Platonic equality" smacks of substantive due process, and that seems to have been a factor in sparking the Supremes sentencing revolution. Of course, if one uses Platonic equality, one also has an image of 3553 factors flickering in dark sentencing caves, and various policy revels at sentencing symposia.

In addition to Bastille Day (storming a prison to release inmates -- a form of supervised release?), today is also the anniversary of the Alien and Sedition Act. The chill in the air may not just be the summer AC.