Monday, June 23, 2008

Fives Affirm 548-Month Sentence for First-Time Offender, But Criticize Government for Jacking Sentence So High By Stacking 924(c)'s

United States v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (per curiam) (Reavley, Jolly, Garza)

Five-hundred forty-eight months. That's the sentence fifty-three year-old, first-time offender Mary Beth Looney received after a jury found her guilty of conspiracy and substantive meth crimes, as well as a couple of 924(c)'s. Why so high? As the court explains,

(The extra sixty-eight months were evidently the result of various Guidelines calculations, as the court refers to this as a within-Guidelines sentence.)

Looney appealed her sentence, raising three arguments. First, she argued that the sentence was procedurally unreasonable, because the district court treated the Guidelines as mandatory and failed to provide an adequate statement of reasons for the sentence. The court of appeals disagreed. It pointed to the written statement of reasons, which recited "that the Guidelines were 'advisory only.'" It also found the district court's apparently minimal statement of reasons sufficient, citing the passage from Rita opining that little explanation is required for a within-Guidelines sentence. "And since Ms. Looney did not make any argument [that hers was an atypical case warranting a below-Guidelines sentence], the district court did not need to explain why it did not find a non-Guideline sentence necessary."

Second, Looney argued that her sentence violated the Eighth Amendment because it was grossly disproportionate to her crimes. The court rejected this argument as well, which is not surprising given the Supreme Court's Eighth Amendment jurisprudence. The court nevertheless added that "although we consider Ms. Looney’s sentence to be unduly harsh for someone who has no previous conviction of any sort, [i]t is for Congress to ameliorate the result of application of[statutory mandatory minimum sentences] if it deems it too harsh." (quotation marks and citation omitted).

Third, Looney argued that one of the 924(c)'s should have been dismissed. One count was based on possession of two guns in furtherance of the conspiracy to PWID meth, and the other was based on possession of the same two guns in furtherance of the PWID. Looney argued that "she cannot be sentenced for two § 924(c) gun offenses when one of the predicate offenses is conspiracy to commit crime X and the other offense is just crime X." Unfortunately, the Fifth Circuit held otherwise in United States v. Privette, 947 F.2d 1259 (1991).

Having decided to affirm Looney's sentence, the court took the opportunity to editorialize on a particularly heavy-handed exercise of prosecutorial discretion:



The opinion also includes the court's rejection of Mr. Looney's appeal of the denial of his suppression motion. That discussion doesn't break any new ground, so I won't summarize it here. But keep it in mind if you're looking for a quick summary on the law concerning challenges to search warrants based on false statements in the supporting affidavits.

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Anonymous Anonymous said...

Interesting read. That woman is my mother...


10/14/2008 11:14:00 PM  

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