COURT UPSET WITH 'ROBOTIC' SENTENCING

Citing Knox Murder Case, Appellate Panel Says Federal Judges' Reasons
Must Be Clearer

An appeals court is using the case of a Knoxville killer to serve
up a judicial throwdown to federal judges in four states, including
Tennessee. The challenge: Stop the robotics.

Using convicted murderer Alvin Vonner's case as a backdrop, the 6th
U.S. Circuit Court of Appeals warns federal judges to do a better job
of justifying their sentencing decisions or face a nasty reversal on
their appellate record.

In an opinion made public last week, the appellate court chastises
U.S. District Court Judge Tom Varlan for doling out a prison term for
Vonner in a drug case without going into detail about why.

Citing a short speech Varlan - and virtually every other Knoxville
federal judge - makes when announcing sentencing decisions, the
appellate court complains that it is seeing far too many cases where
judges appear downright robotic in deciding the fates of criminals in
their courts. It stops, the opinion said, with Vonner.

"This type of offhand dismissal of a defendant's claims provides mere
lip service to the district court's responsibility to carefully weigh
all the facts and provide a defendant with a well-reasoned,
well-thought-out sentencing decision," Appellate Judge Boyce F. Martin
Jr. wrote. Vonner, 44, who already had served state prison time for a
1979 fatal stabbing of a Knoxville man, was charged in federal court
in Knoxville with dealing cocaine in 2003. He pleaded guilty, and
Varlan ultimately sentenced him to 117 months in prison.

It was a penalty that was 18 months less than the maximum called for
under sentencing guidelines but more than defense attorney Stephen
Ross Johnson had argued was appropriate.

Johnson, in fact, listed a series of reasons why Vonner should get a
sentencing break, including tough conditions at the Blount County Jail
where Vonner had been housed for more than a year awaiting sentencing,
and a bad childhood. Assistant U.S. Attorney Charles Atchley had
countered that Vonner was a career criminal and murderer who
immediately turned to crime upon his release from prison.

Varlan said when making his decision that he "considered" all the
information he had in the case, including Johnson's arguments. But a
two-judge panel of the 6th Circuit insists it wasn't enough and
instead is representative of a trend among federal judges in the days
since a landmark U.S. Supreme Court decision gave them the power to
use something other than a mathematical formula to decide a criminal's
fate. The appellate warning comes as the federal judiciary is still
finding its way in the months since that landmark decision struck down
mandatory sentencing guidelines for federal criminals.

Before the decision known as the Booker case, federal judges had
little artistic license in crafting appropriate punishments for the
criminals who stood before them. Instead, it was a painting-by-numbers
game, with a mathematical grid laying out a narrow penalty range from
which judges could choose. Post-Booker, judges, on paper at least,
were free to design punishments based on a large landscape of factors,
from a criminal's crime and background to family history and odds of
rehabilitation. That math grid was still there. It was still used to
pencil in penalty range boundaries. But judges need only "consider"
the so-called sentencing guidelines in their decision-making.

More than a year later, though, it's not entirely clear what this
newfound freedom has actually meant - for criminals or the taxpaying
public that foots the bill for the lion's share of federal criminal
defense work. Nor is it clear what is expected of judges.

Take Vonner's case. Even the 6th Circuit cannot agree on what Varlan
should have said or done in the case. Appellate Judge Eugene E. Siler
Jr. issued a dissenting opinion in which he said Varlan was plenty
thorough in laying out his sentencing reasons.

More importantly, Siler said the 6th Circuit, which serves as a kind
of corporate boss to federal judges in Tennessee, Kentucky, Michigan
and Ohio, has done more to confuse judges than help them make sense of
their newfound sentencing freedom and how to apply it.

"The numerous cases by our court on the reasonableness of sentences
post-Booker have confused attorneys and district courts alike," Siler
wrote. "Sentencing hearings will soon exceed trials in length if we do
not simplify the process."

It's that disagreement even among the federal appeals judges that
Knoxville-based U.S. Attorney Russ Dedrick says makes Vonner's case
ripe for the grand daddy of appellate court hearings known as "en
banc." Rarely requested or granted, an en banc hearing has the entire
16-judge appellate panel deciding the case rather than the typical
panel of three judges. "I think it's an important case to be decided
because of a divergence of opinion," he said. "We believe the trial
judge in this case, Judge Varlan, acted appropriately."

Dedrick's counterpart, Federal Defender Beth Ford, noted that a recent
study shows little has changed in the sentences judges have handed out
after the Booker case. Most stick to the guidelines, even though they
now are not required to do so, she said.

She wonders what an en banc hearing in the Vonner case ultimately will
accomplish.

"How can the 6th Circuit quantify exactly what a district judge
(should say)?" she asked. "You want to know a judge carefully
considered (all information), but how much does it take? I think it's
an issue we can expect to come up again."

Right now, Vonner is entitled to a new sentencing hearing thanks to
the 6th Circuit ruling. Dedrick's office is awaiting permission from
highers-up to ask for an en banc hearing.