255 pages of en banc fun

The 11th Circuit issued United States v. Irey today, with 255 pages of opinions, which are a must read for any criminal practitioner in this Circuit. The question presented is whether a lengthy variance (from 30 years to 17) was reasonable in a horrific case involving multiple acts of child rape. The majority, written by Carnes and joined by Dubina, Black, Hull, Marcus, Wilson and Pryor, found the variance substantively unreasonable. Lots of interesting questions addressed, like how much deference is due to trial courts at sentencing.

Here are some highlights from Carnes' opinion:

The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children.


The 17 ½-year sentence, if all of it were to be served, would amount to only 4 months and a week for each of the 50 distinguishable victims that Irey raped, sodomized, or sexually tortured.


In light of 18 U.S.C. § 3624, Irey will likely serve only 15 years and 3 months of his sentence, which works out to less than four months for each of those 50 victims who can be distinguished from each other in the images that show some of Irey’s crimes. And that calculation does not include any time for Irey’s additional criminal behavior of producing and distributing the massive amount of extremely graphic child pornography. Four months per child raped, sodomized, and tortured is grossly unreasonable. In sentencing there should be no quantity discount for the sexual abuse of children.


We realize that 17 ½ years, even when reduced to 15 ¼ years to serve is, as the panel stated, “a substantial portion of a human life—and no serious person should regard it as a trifle.” … Irey, after all, sentenced the children he raped, sodomized, and sexually tortured to a lifetime of harm, and the egregious child pornography he created and distributed will, because he uploaded it to the internet, continue causing harm for far longer than 17 ½ years. Irey’s pink wall series will last longer than his own lifetime or ours, inciting and encouraging the sexual abuse of multitudes of children yet unborn.


Because of the substantial deference district courts are due in sentencing, we give their decisions about what is reasonable wide berth and almost always let them pass. There is a difference, though, between recognizing that another usually has the right of way and abandoning one’s post. We will not quit the post that we have been ordered to hold in sentencing review and the responsibility that goes with it. The Supreme Court has instructed us that “[i]n sentencing, as in other areas, district judges at times make mistakes that are substantive,” and that it is our duty “to correct such mistakes when they occur.” Rita, 551 U.S. at 354, 127. In this case the district court made a substantive mistake, a clear error in judgment, by unreasonably varying downward from the advisory guidelines sentence when no sentence less than it is sufficient to fulfill the purposes set forth in the Sentencing Reform Act. To do our duty to correct that mistake, we vacate the sentence the district court imposed and remand with instructions that the defendant is to be resentenced within the guidelines range.

Judge Tjoflat concurs that the amount of variance is unreasonable but dissents, arguing that the case should be remanded for the district judge to find what is reasonable. He argues that it is not the job of the 11th Circuit to sentence Irey:

In sum, when placed on a balance sheet, the grave institutional harm caused by the court’s approach significantly outweighs any benefit the approach might yield. Resentencing defendants on appeal diminishes the role of the district court in the eyes of the legal profession, and it diminishes the public’s confidence in the district courts as an institution for administering criminal justice. It misallocates and gobbles up judicial resources. None of this is necessary. If a sentence constitutes an abuse of discretion, we should simply say so and return the case to the district court, the appropriate forum for the main event.

The first dissent is written by Judge Edmonson, and joined by Birch Barkett and Martin:

The limit that the law places on the right use of appellate court power to interfere with the sentencing decisions of United States District Judges (who, of course, have -- under the law -- powers of their own) is, for me, what this appeal is about. The specific case before us involves a serious crime and ghastly conduct -- “horrific” in the District Judge’s words -- on the part of Defendant. And, no party
has contended that the District Judge, in imposing the sentence, made a significant procedural error. The government prosecutors (who bear the 1 burden of showing reversible error) contend that the sentence imposed in district court is too lenient and that no sentence would be lawful except the maximum sentence of imprisonment that the pertinent criminal statute will allow: 30 years.

The issue is not whether federal appellate judges ought to do their duty. They must. And the issue is not whether appellate courts can review sentences and sometimes correctly set them aside, even when the sentence was imposed without procedural errors. They can. Appellate judges do have some legitimate power to review the substance of sentences: that is, to determine whether a District Judge has imposed a sentence that is either too lenient or too harsh as a matter of law. The general question presented here is what is the limit, under the law, on the power of appellate judges in deciding such reviews.

Next up is Judge Birch, who says (I think quite rightly):

The time-worn adage in jurisprudence that hard facts often lead to bad law is certainly applicable to this case. I have little doubt that had I been the sentencing judge I might well have fashioned a different and harsher sentence for this defendant. But the decision at play here is the respective roles of the appellate court and the sentencing court. Our appellate role is properly constrained by the standard of review to which we are required to adhere. As Judge Edmondson persuasively describes the application of that standard to the record, it compels an affirmance of the sentencing court’s judgment in this case. Accordingly, I respectfully dissent and join in the dissenting opinions of Judge Edmondson and Judge Barkett.

Judge Barkett also dissents, joined by Birch and Martin:

I agree with just about everything in Judge Edmondson’s dissent. If there is any point of departure, it is the addition (or clarification, in my view), that the district judge must articulate the reasons for the sentence imposed based on the evidence in the record. Because the record may support a number of reasonable sentences, this articulation is necessary so that the appellate court can be satisfied that the district judge actually considered how all of the § 3553 factors relate to the defendant’s individual case.