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"Impermissible Factors" Follow-up

As a follow-up to my recent blogpost about U.S. v. Davis, I did some research into what the Sixth Circuit had found to be "impermissible factors" outside of Davis. As a result, the list now includes:

? "defendant's behavior at trial" and prior arrests for which there were no known dispositions. United States v. Whitfield, 259 Fed.Appx. 830 (6th Cir. 01/15/08), 2008 WL 142782 (unpublished) (Per Curiam: Daughtrey & Cole, JJ., & Collier, D.J. (E.D.Tenn.)) (reversing upward variance as substantively unreasonable)

? the district court?s disagreement with Congress? penalties. United States v. Ortega-Rogel, ? Fed.Appx. ? (6th Cir. 6/16/08), 2008 WL 2415917 (unpublished) (Norris, Martin, JJ., & Stamp, D.J. (NDWVa.)) (possession of false identification) (reversing upward variance as substantively unreasonable); United States v. Franklin and Clarke, 499 F.3d 578 (6th Cir. 8/28/07), rehrg and rehrg en banc denied 1/25/08 (Forester, D.J. (EDKy) & Gilman, J; Moore, J., concurring in the judgment) (18 U.S.C. § 924(c)) (reversing downward variance as substantively unreasonable).

? defendant?s post-conviction behavior. United States v. Sutherlin, 498 F.3d 316 (6th Cir. 8/8/07), rehrg and rehrg en banc denied 12/13/07 (Cole, Guy, & McKeague, JJ.) (reversing downward variance as substantively unreasonable) (but, see, United States v. Ragland, 2007 WL 1028845 (6th Cir. 2007), allowing use of post-conviction bad conduct to justify upward variance.)

? a lack of extraordinary circumstances that would justify such an extreme downward variance. United States v. (Haywood) Johnson, 239 Fed.Appx. 986 (6th Cir. 9/4/07), 2007 WL 2492405 (unpublished) (reversing downward variance as substantively unreasonable). [Ed.: doesn't this sound like Guidelines departure language?]

? lack of a compelling explanation. United States v. Fink, 502 F.3d 585 (6th Cir. 9/7/07) (Gibbons, Suhrheinrich, JJ., & Heyburn, CDJ (WDKy.) (reversing downward variance as substantively unreasonable). [Ed.: wouldn't that really be procedural unreasonableness?]

? consideration of the defendant?s likely state court sentence. United States v. Malone, 503 F.3d 481 (6th Cir. 10/4/07) (McKeague, Sutton, JJ., & Forester, D.J. (EDKy.)) (reversing downward variance as substantively unreasonable).

? doubt by the district court that the defendant intended to commit fraud. United States v. Hunt, 521 F.3d 636 (6th Cir. 4/11/08) (Rogers & Siler, JJ.; Martin, J., concurring in part and dissenting in part) (reversing downward variance as substantively unreasonable).

? justifications give for variance not supported by the record. United States v. (William) Hughes, ? Fed.Appx. ? (6th Cir. 6/26/08), 2008 WL 2604249 (unpublished) (Moore & Clay, JJ; Rogers, J., concurring) (reversing downward variance as substantively unreasonable).

Is that clear now? Do you have a clear grasp on what is and is not an impermissible factor? Because you may have to explain it to your district judge, so make sure.

Full post as published by Sixth Circuit Blog on October 02, 2008 (boomark / email).