A downward variance to probation from a guideline range of 135 to 168 months in a  $33M fraud case has precipitated a remand for a fuller explanation in United States v. Cole, issued on August 6, 2013.   The government had appealed the sentence as substantively unreasonable, but the Eighth Circuit did not reach that issue, implicitly holding as Douglas Berman has suggested that the sentence was not per se unreasonable.  Rather, the Court remanded instead on procedural grounds because “given the magnitude of the downward variance, the district court offered very little explanation for Cole’s sentence.”

Quoting Gall v. United States, the Court of Appeals reiterated that while appellate courts must be “deferential” when reviewing sentences, a district court must nonetheless provide “an adequate record on which to base that review” and “a major departure should be supported by a more significant justification than a minor one.”  Here, not only was the explanation provided brief, it was also contradictory:

For example, the court stated at sentencing that it was “taking a huge chance” on Cole by imposing only a term of probation, but then said in its statement of reasons that it was confident Cole would not re-offend.  Similarly, the court’s statement of reasons suggested Cole just “went along with her husband’s scheme and practiced willful blindness.” However, this seems inconsistent with the guilty verdict on the tax evasion charges, because the jury instructions required the jury to find beyond a reasonable doubt that Cole “voluntarily and intentionally violate[d] a known legal duty.”

The case highlights the importance of a sentencing court’s explanation for a substantial variance from the guidelines (and the role the defense lawyer must play in providing the judge with the requisite raw material and roadmap for a downward one).  Here, Ms. Cole’s husband was separately sentenced to 15 years for the same offense, and it appears the couple has young children.  Accordingly, there are multiple downward variance grounds justifying this large variance, ranging from family circumstances (including the devastating effect on the children of both parents being incarcerated – a matter well-documented by social scientists), to Ms. Cole’s peripheral role in the fraud scheme (a factor that has motivated many judges to depart in similar cases to probation), to the well-known iniquities and disparities of the fraud guideline (now the reform target of an ABA taskforce), which can be fleshed out at the resentencing.