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In United States v. Blackie, Case No. 07-2002, a panel majority in the Sixth Circuit held a district court?s failure to comply with 18 U.S.C. § 3553(c)(2) constitutes plain error. (Section 3553(c)(2) requires district courts to give specific reasons for imposing a sentence that falls outside the Guidelines range).

There, defendant Blackie had pled guilty to possessing 22 images of child pornography. The PSR recommended an adjusted offense level of 25 and a criminal history category of I. The district court rejected the PSR?s proposal to enhance Blackie?s sentence for possession of masochistic materials (as the vast majority of the images were not masochistic) and also rejected the proposed enhancement for the number of images (as 22 images is not comparable to other cases where thousands of images are involved). With the district court?s revisions, Blackie?s adjusted offense level was 20, which corresponded to an incarceration term of 33 to 41 months. However, after consideration of the 18 U.S.C. § 3553(a) factors, the district court sentenced Blackie to 42 months of incarceration. The district court did not acknowledge whether the sentence imposed was in excess of the Guidelines range, did not identify the final offense level, and did not clarify whether it had rejected the specific enhancements or simply reduced their numerical levels.

The exact nature of the district court?s sentencing determination was not known until it issued its written judgment entry and indicated Blackie?s sentence was "above the advisory guideline range." The judgment entry also indicated the masochistic materials enhancement was reduced from four levels to one level, and the two-level enhancement for the number of images was rejected entirely. The judgment entry did not indicate the district court?s reasons for sentencing outside the Guidelines range and left blank the section of the judgment entry designated for setting out facts justifying the sentence.

The panel majority held the district court plainly erred when it did not refer to the applicable Guidelines range and failed to provide its specific reasons for an upward departure or variance at the time of sentencing or in the written judgment entry. In doing so, the panel majority joined the Sixth Circuit with the Second, Tenth, and District of Columbia Circuits on this issue. The majority added that, treating a violation of 18 U.S.C. § 3553(c) as a plain error will help maintain its requirements as mandatory and not merely some formality that can be ignored without consequence.

Judge Sutton notes in his partial concurrence that there is a split in the federal circuit courts on the issue of whether a violation of 18 U.S.C. § 3553(c) constitutes plain error.

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