I recently posted a blog entry about the review on appeal of federal criminal sentences by the the 11th Circuit Court of Appeals, a court that covers Georgia, Florida and Alabama. Now comes another case, United States v. Pugh, which seems to show that this is still an unresolved issue for federal criminal cases in these three states.
Readers will remember the basic question. After the recent Supreme Court decision in Gall v. United States, federal appeals courts are supposed to give “great deference” to a sentencing judge who decides to give a more lenient, or more severe sentence than otherwise called for by the Sentencing Guidelines. Shortly after the Gall case was issued, the Eleventh Circuit issued a couple of rulings that seemed to indicate some level of dissension among the judges as to how much deference should be given to lenient sentences. The bottom line from those cases, and virtually every other case issued after the Supreme Court decision, is that a sentencing judge will be affirmed when he or she decides to give a sentence either below or above what is called for by the Sentencing Guidelines.
All of this was true until last week, when the Pugh case was issued. That was a possession of child pornography case, where the Public Defender from the Southern District of Alabama convinced the sentencing judge that probation was a good sentence. The government appealed, and the 11th Circuit reversed. In a lengthy and strident opinion written by Judge Stanley Marcus, the Court of Appeals basically said that probation can never be a reasonable sentence for such a case. Judge Marcus essentially inserted his own opinion of reasonableness for that of the judge who sat eye-to-eye with the defendant.
Here at Kish & Lietz, we have a somewhat similar case pending in the 11th Circuit. Our client pled guilty to insider trading, the sentencing judge imposed six months home confinement and probation, and the government appealed. The Panel of three judges from the 11th Circuit reversed, but this happened just shortly before the Supreme Court decision in Gall. We have asked them to rehear the case, or for all of the judges on the 11th Circuit to re-consider the matter.