US v. Thurston, No. 05-2271, holds that a three-month sentence, when the guidelines recommended sixty was unreasonably low, so the government gets to keep a conspiring medicare fraudster in jail longer. The First explains how the judge expressed scepticism over the government case, and the only reason that the defendant didn’t plead out is because a guilty plea "would cause him to be shunned in the Mormon church." The other defendants got very light sentences. After conviction, the Court departed downward because of the disparity and his track record of good works via the Mormon church. But, the government wants a trial tax. After a GVR, the trial judge recuse himself, thinking because, he thought that the guidelines because “he could not impose the sentence ‘prescribed by the Court of Appeals.’” (Read: He didn’t want to be a government pawn.) The new judge essentially found the same thing, and added that any jail term would probably deter white-collar offenders. (Let’s face it: he is correct.)
So, in order to do the government’s bidding, the court describes its sliding scale of deference as such:
Thus, we consider the reasonableness of a below-guideline sentence on a sliding scale: "the farther the judge's sentence departs from the guidelines sentence the more compelling the justification based on the factors in [18 U.S.C. ] § 3553(a) that the judge must offer . . . ." Id. (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
The court then concludes that “based on the record the reason that the codefendants got the preferable plea offers is because of the relative weakness of the government’s case.
Now, just so the First doesn’t give the impression that it is doing the government’s bidding, it notes that sentencing is “primarily a judicial function” and, in a twisted way concludes that because the judge accepted the co-defendants plea offers, then the much greater post-trial sentence is okay, because once the prosecutor exercises his discretion to offer a plea bargain, the judge still has to conduct a § 3553(a) analysis, regardless of whether it looks like the prosecutor didn’t think that the crime was that serious. Got this?
Anyway, the court remands, and states that a below-guidelines sentence would still be possible, but not a 95% reduction. But, the First also concludes that 36 months is the minimum this guy will have to do.
Disclaimer: I am not a member of the Church of LDS.