A Look at Substantive And Procedural Reasonableness: United States vs. Ewing
All, the 6th Circuit’s decision on Ewing gives a good explanation on Substantive Unreasonableness. This may be important to you if your case is on federal criminal appeal.
The Procedural History
Ewing was indicted in the Eastern District of Kentucky for distributing a mixture or substance containing heroin and fentanyl. It was alleged that this resulted in the overdose death of another person, Deaton. Ewing went to trial and the jury found him guilty. The district court gave him a mandatory life sentence under 841(b)(1)(C).
On appeal, the 6th circuit held that the government failed to show that Ewing sold the drugs that caused the death of Deaton. The court stated ““the absence of heroin or heroin metabolites in Deaton's blood and the lack of any evidence or testimony to explain its absence leaves us unable to conclude that the jury's verdict as to the death results [provision] is supported by sufficient evidence.” The 6th circuit remanded the case back down to the Eastern District of Kentucky.
On remand, Ewing’s offense level was 12 and his criminal history category was 6. This lead to a guideline range of 30-37 months. The government requested an 18-level upward departure under USSG 5K2.1 for cases where “death resulted.” The government presented an agent and another witness to demonstrate that Ewing sold the drugs to Deaton that led to his death. The government also indicated that if the court declined to depart that a variance would be appropriate after considering the 3553(a) factors. The court sentenced Ewing to 15 years of incarceration and 6 years of supervised release, reasoning:
“I have found that 30 to 37 months, in my view, does not properly reflect the seriousness of this offense. I think 5K2.1 says I can increase the matter. The question is, is it a variance … or would it be a departure….I'm not sure what the difference is. They said I may go up is what it says in the book. But I look at 3553(a) and there's some seriousness of the offense, people died, a person died.” Ewing filed a federal criminal appeal as to the sentence.
A criminal sentence can be appealed and reviewed for Substantive and Procedural Unreasonableness.
Procedural Unreasonableness, among other things, is a challenge to a defendant’s legal eligibility for a sentencing departure. Procedural reasonableness is an inquiry into whether the “trial court follow[ed]proper procedures and gives adequate consideration to [the § 3553(a)] and other listed factors[.]”
Substantive Reasonableness is a question of whether a sentence is “greater than necessary.” Even if the court followed the proper procedures, the case can still be substantively unreasonable if the district court imposed a sentence that is “greater than necessary.”
The court went on to note that ““[T]he substantive reasonableness inquiry determines if the length of a sentence conforms with the sentencing goals set forth in 18 U.S.C. § 3553(a) and asks whether the district judge ‘abused his discretion in determining that the § 3553(a) factors supported the sentence imposed.’
The court went on to note that Within the substantive reasonableness inquiry,
we must consider “the ‘extent of the deviation’” from the guidelines range and “make sure that ‘the justification is sufficiently compelling to support the degree of’ ” divergence. “The ‘farther the judge's sentence departs [or varies] from the guidelines sentence … the more compelling the justification based on factors in section 3553(a) must be…Imposing a sentence of arbitrary length is substantively unreasonable.
Ewing argued that the court failed to consider the 3553(a) factors and that his prison sentence was arbitrarily imposed without consideration. This he argued, made his sentence unreasonable. The court determined that its task was to determine if the district court provided a “sufficiently compelling” rationale to support the sentence.
The court determined that the record revealed that “the government failed to establish a causal link beyond a reasonable doubt between the drugs sold and Deaton’s death.” The court also noted that the district court assumed without deciding that Ewing caused Deaton’s death. In addition the court did not give enough consideration to the routine circumstances of the transaction, Ewing’s own life history and drug addiction, and the uncertainty as to whether the drugs Deaton procured from Ewing caused the death. The sixth circuit also noted that the district court failed to address Ding’s warning to Deaton that the drugs were unusually potent (apparently, Ewing warned Deaton to only use half of the regular dose).
Because the district court did not consider these factors, it failed to provide a sufficiently compelling rational for the sentence imposed, regardless of whether the sentence was predicated on a departure, a variance or both. Although the court could not determine whether the the district court departed upward based on USSG 5k2.1 or engaged in an upward variance, the court determined that the sentence was substantively unreasonable either way.
The district court vacated the sentence and remanded the case back to the district court for resentencing. 18-6318