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"Departure" or "Variance," That is the Question

District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion. The remand follows the Court’s construction of the application note in a manner favoring the defendant.

Reaffirming that punctilious care in Guidelines calculations is essential even under an advisory regime – an approach from which the Second Circuit recently endorsed exceptions (opinion here) – the Court reminded that it "expressly distinguish[es] between departures from the guidelines and variances from the guidelines." "Departures are enhancements of, or subtractions from, a guidelines calculation based on a specific Guidelines departure provision," Senior District Judge Pollak’s opinion explains. "Variances, in contrast, are discretionary changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors." The distinction is of note because an "appellate court reviewing a variance for reasonableness does so by evaluating the district court’s analysis of the § 3553(a) factors, whereas an appellate court reviewing a departure must consult the relevant guidelines provision to determine whether the departure was appropriate."

Here, the defendant was convicted of possessing 6,350 photographs and 221 videos depicting children engaging in sexually explicit conduct. Under the Guidelines, this quantity of material called for the addition of five offense levels. While the range resulting from these and other adjustments was 97 to 121 months, the district court sentenced the defendant to 180 months after the government filed a "Memorandum Recommending Upward Variance." The record became confused as to whether the court was "departing" or "varying" due to the district court's consideration of Application Note 4 to U.S.S.G. § 2G2.2, which concerns how the number of images possessed by a defendant is to be calculated. The note contemplates circumstances where, for example, a single photograph depicts four different children, or a video is of significant length. The district court had read the note to direct that an "upward departure may be warranted if the Court determines the number of images substantially under represents the number of minors depicted."

The Circuit rules that the district court erred as a matter of law in its interpretation of the application note. Although the note uses the word "departure," the Court explains that this phrasing refers not to the "guidelines as a whole" but to "a procedure for counting images … in order to calculate a defendant’s Guidelines sentence." Thus, the note "could not have justified" a sentence above the correctly calculated range.

Even though the record might be read to show that the district court exercised independent discretion to select the 180-month term of imprisonment in furtherance of the sentencing purposes at 18 U.S.C. § 3553(a) -- i.e., that it varied rather than departed -- the Circuit holds that the erroneous interpretation of the application note cannot be deemed harmless. In "view of the possibility that the court intended to formulate a departure, rather than a variance … and given the court’s invocation of its erroneous interpretation … we cannot be confident that the court would have arrived at the same conclusion had it properly construed the Application Note." The Court thus vacates the sentence and remands.

Implying that it finds some credence in a mitigation argument, the Court also takes care to ensure the district court does not mechanically reimpose the same sentence on remand. "[W]e have certain reservations," the panel says, "about whether the District Court adequately addressed Brown’s argument that his personal history and characteristics – his age, poor health, lack of criminal history, strong family support, and admission of guilt – make his likelihood of recidivism minimal."


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