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An upward departure sentence from a range of 78-98 months to 210 months was upheld as a reasonable

In U.S. v. Glover, the defendant pled guilty to two bank robbery counts. In exchange for his plea the remaining counts were dismissed and the government agreed to recommend a sentence at the low end of the sentencing guideline range. At sentencing the district court determined the range to be 78-98 months. Though the government stuck to its agreement to recommend the low end, the district judge sentenced the defendant to 210 months in prison. The 11th Circuit applies a deferential abuse of discretion standard to this sentence. The court held that a district court making an upward departure must have a justification compelling enough to support the degree of the variance and complete enough to allow meaningful appellate review. The 11th Circuit will vacate the sentence only if “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”

The 11th Circuit reviewed facts of the case and reasons given by the federal criminal court for imposing the sentence. Early went on a bank robbery “spree” robbing 3 banks in 11 days, each time threatening the teller with a fake bomb. He was arrested on his 4th attempt. He has spent nearly his entire adult life in prison for a long list of offenses. Many offenses were committed while he was on probation. The bank robberies were committed while he was on bond pending sentencing in an unrelated case. The district court rejected the government’s recommendation for a low end sentence stating the guidelines did not adequately account for Early’s criminal history and that the range did not adequately account for the number of bank robberies he had committed. The range for one was 57-71 and only increased to 79-97 as a result of three robberies. The district court also found the use of fake bombs was extremely serious because it created terror in the tellers, customers and induced the use of bomb squads and caused commerce to shut down. Finally, the sentencing court found that Early by his own conduct demonstrated that the public needs to be protected from him and the only way he is deterred is when he is in custody.

The 11th Circuit found the sentence imposed was not substantively unreasonable. It was still well below the maximum 900 months he could have received under the statute. Many of the §3553(a) factors support an upward departure: Early has shown an inability to conform his conduct to the requirements of the law, when he is out of prison he commits more crimes, he shows disrespect for the law, he is a recidivist, society needs protection from him, and there is a need to promote respect for the law. Absent a clear error of judgment, the 11th Circuit will not substitute its judgment for that of the district court in weighing the relevant sentencing factors. The district court did not abuse its discretion in fashioning a sentence that was warranted in view of all the relevant sentencing factors.

Concurring opinion highlights the dichotomy between upward departure review and downward departure review.

Judge Martin in the concurring opinion agreed with the majority opinion based on 11th Circuit precedent giving sentencing courts deference when varying above the guidelines so long as the court addressed factors set out in 18 U.S.C. §3553(a). She notes that the 11th Circuit has always given deference to a sentence imposed above the guideline range no matter how large, and since Booker, the 11th Circuit has never vacated an upward variance from the sentencing guidelines on reasonableness grounds. Her concurring opinion points out the dichotomy between the 11th Circuit’s review of variances above the guidelines versus variances below the guidelines. The 11th Circuit has never exercised the same type of deference to a sentencing court’s decision to impose a downward departure. Judge Martin found that when considering sentences above the range, the 11th Circuit only looks at whether the sentencing court considered 3553(a) factors and ignores whether the court might have disregarded one of the factors or weighed the factors in an unreasonable way. In contrast, for downward variances, the 11th Circuit shows no such deference. Instead, the court “scrutinizes” how a sentencing court applied each and every 3553(a) factor.

While the concurring opinion in Early upholds the sentence, it does criticize the majority for overlooking many aspects of the manner that the district court arrived at the sentence, including the sentencing court’s decision to disregard the guidelines based on a disagreement with the guideline’s policy and the fact that the sentence was triple what the government had asked for.