Tuesday, January 21st, 2014

Ten-Year Prison Sentence Was a “Variance,” Not a “Departure” Requiring Notice

United States v. Moore, Nos. 12-1644-cr(L), 12-1654-cr(CON) (2d Cir. Jan. 17, 2014) (Jacobs, Lohier, and Droney) (summary order), available here

Moore appealed his 120-month prison sentence for Hobbs Act robbery and related crimes. He argued that the district court committed plain error by upwardly departing from the Guidelines range without proper notice, in violation of Fed. R. Crim. P. 32(h). He also challenged the sentence as substantively unreasonable.
The Circuit was not persuaded. First, the Court held that, though the district court alluded to a “departure” twice and never mentioned a “variance,” the sentencing transcript made clear that the district court was imposing a non-Guidelines “variance,” which required no advance notice. Indeed, the district court stated after sentencing that its references to a “departure” were mistaken, and that only a variance was intended.
Second, the 120-month sentence was not substantively unreasonable. The defendant’s history reflected multiple instances of gun possession and robberies, including a robbery in which guns were aimed at two victims, one an infant.  Accordingly, the sentence was not “shockingly high,” unsupportable as a matter of law, or beyond the bounds of discretion.  
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