So here's what happened. The defendant embezzled $366,000 from her employer, the National Iron Bank. She was convicted, and her Guidelines range was 24-30 months. The district court departed downward for a variety of reasons. Among them, sort of, was that the Bank had incredibly lax security procedures that failed to detect her crime. Thus, the extent of the crime -- although not the fact of it -- was exacerbated by the Bank itself. But the district court explicitly stated that this was not one of its grounds for departure. Anyway, the court sentenced defendant to one day in prison and five years supervised release. The government appealed.
Then came Booker, and with it the government's request for a limited remand (pursuant to Crosby). That remand came in today's opinion, but not until the CA2 could hear oral argument and offer a little advice to the district court:
We are most troubled by the district court’s mention of the bank’s failure to detect and prevent the embezzlement. While the court expressly stated that it did not rely on this factor in sentencing, we note that consideration of such a factor and the conclusion that it, and not the defendant’s volitional acts, rendered the sum embezzled in this case more significant than it otherwise would have been, would lead us to question the reasonableness of a non-guidelines sentence. Godding embezzled a significant sum and we do not think a district court could properly discount Godding’s responsibility for the amount by referring to the bank’s failure to check the crime. Furthermore, we are more broadly concerned that the brevity of the term of imprisonment imposed by this sentence does not reflect the magnitude of the theft of nearly $366,000 over a five-year period.
The court then strongly intimated that if, on remand, the district court insisted on the same sentence, it might likely fail a review for reasonableness. (United States v. Godding).