In United States v. Marcus Odom, No. 23-6105 (2d Cir. May 8, 2024) (summary order), the Second Circuit upheld the defendant’s challenged prison sentence, while also opining that a sentencing court may not increase a prison sentence based on its disagreement with the so-called “categorical” approach.
Odom’s case was before the district court for resentencing as a result of United States v. Taylor, 596 U.S. 845 (2022). Taylor held that attempted Hobbs Act robbery does not qualify as a “crime of violence” for purposes of 18 U.S.C. § 924(c), applying the well-established “categorical” approach. Odom had originally pled guilty to attempted Hobbs Act robbery and a violation of § 924(c) but, following Taylor, his § 924(c) conviction was vacated. He was resentenced on the attempted Hobbs Act robbery alone.
Some judges have complained about the categorical approach and Odom’s district judge is apparently among them. At the resentencing he stated, “I’m not a big fan of the Supreme Court’s jurisprudence that led us to be back here. … I think it has led to some perverse and odd results, including the one here.” And in the statement of reasons filed after sentencing, the judge wrote that the reasons for the sentence included “[d]isagreement with categorical approach that rendered prior conviction and sentence unlawful.” The judge resentenced Odom to 156 months in prison—a reduction from his prior sentence of 300 months, but an upward variance from his new Sentencing Guidelines range.
The Second Circuit ultimately affirms this sentence. But the Circuit makes clear that, while a district court may base a sentence on its disagreement with the advisory Guidelines, it may not base a sentence on its disagreement with binding Supreme Court precedent: “If the district court had, in fact, increased Odom’s sentence based on its disagreement with Taylor, we might well find that it had committed procedural error.”
However, from its review of the entire record, the Circuit concludes that this was not the basis for the sentence. According to the Circuit, the district court actually based its sentence on the “circumstances of the offense” and Odom’s violent conduct.
And so long as district courts are actually following the law, they can gripe a little in the process. Per the Circuit, “[a] court is free to express disagreement with binding law even as it applies it, and a court may reference or discuss an issue without it becoming part of the calculation of the sentence.”
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