United States v. Duhon (Benavides, J.)
The Fifth Circuit reverses a below-guideline sentence as unreasonable. Duhon was convicted of possessing child porn. The district court gave him five years probation because it was a first offense, Duhon was doing well in treatment, he suffered from a mild back problem, his codefendant got only probation for the same offense due to a substantial assistance departure, the district court disagreed with the Guidelines assessment of the seriousness of the offense, and because the Guidelines in effect at the time did not take into account that Duhon had not molested any children.
The court vacates the sentence. Interestingly, the court holds that the district court clearly erred in its assessment of the seriousness of the possession of child pornography. Judge Garza concurs but avoids this thorny question.
The court also holds that disparity between codfendants produced by a substantial assistance departure is never "unwarranted" within the meaning of Section 3553(a).
Finally, the court holds that the district court should have considered the Guidelines policy statements which provide that a defendant's physical condition is ordinarily not relevant to a downward departure. What puzzles me is that the district court in this case did not grant a downward departure; it granted a nonGuidelines sentence. By its terms, then, the policy statement did not apply.
In sum, it appears the Fifth Circuit is not going to affirm many below Guidelines sentences