The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Sheryl Lipman is not a fan of the federal sentencing guidelines, nor the way the guidelines are interpreted and applied by the U.S. Court of Appeals for the Sixth Circuit. Nonetheless, as a district court judge, she is obligated to follow applicable precedent and the law of the circuit. She also has an obligation to follow the Sixth Circuit's instructions on remand. Yet that's not what she did in the case of Dane Schrank, and the Sixth Circuit is not amused.
Today, in U.S. v. Schrank, the Sixth Circuit reversed Judge Lipman for the second time for the same mistake: Imposing a substantively unreasonable sentence. To ensure this does not happen again, the panel sua sponte reassigned the case to another district court judge on remand.
Judge Thapar's (incredibly brief) opinion for the Court begins:
We have seen this case before. Dane Schrank visited the dark web and downloaded "nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated." United States v. Schrank, 768 F. App'x 512, 515 (6th Cir. 2019). After a government investigation identified Schrank, he confessed and pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
The Sentencing Guidelines called for a sentence of 97 to 120 months in prison. Yet the district court imposed a noncustodial sentence of just 12 months' home confinement. The government appealed, and we vacated the sentence because it was substantively unreasonable. It both "ignored or minimized the severity of the offense" and "failed to account for general deterrence." Schrank, 768 F. App'x at 515. Yet on remand, the district court imposed the same sentence. The district judge criticized our court for "second-guess[ing]" her sentence and said that she refused to impose a sentence that "does not make sense." R. 47, Page ID 249, 271. But the district judge didn't stop there. She also found time to criticize the "sophistication of the judges on the Sixth Circuit when it comes to computers" and said that Schrank's misconduct—accessing the dark web over the course of five days and downloading nearly 1,000 images of children being raped—was "much less exaggerated" than "the Sixth Circuit judges realize." Id. at 250. She concluded by noting, "maybe the Sixth Circuit will reverse me again." Id. at 271.
We now do just that. Because Schrank's sentence remains substantively unreasonable, we vacate it and remand for resentencing. And given the district judge's conduct, we order that the case be reassigned on remand.
A bit more from the opinion:
we have repeatedly held that sentences are substantively unreasonable in child pornography cases when they require little or no jail time. . . . Indeed, in this very case we held that Schrank's noncustodial sentence was substantively
unreasonable given his misconduct.
Because the district court imposed the same sentence on remand, the sentence remains substantively unreasonable for the reasons set forth in our earlier opinion. . . .
To be sure, district judges have considerable discretion when imposing sentences. . . . But that discretion is not unfettered. And when a district court abuses its discretion by imposing a fundamentally unjust sentence—as occurred here—we must reverse. For our job is to review sentences, not rubber stamp them. Since Schrank's punishment does not fit his very serious crime, we once again vacate his sentence and remand for resentencing. . . .
And here's Judge Thapar's explanation of the reassignment on remand:
On remand, we order this case be reassigned to another district court judge for resentencing. This court has a duty to supervise district courts to ensure "proper judicial administration in the federal system." . . . Although the government did not request reassignment, appellate courts may sua sponte order reassignment on remand. . . .
In two prior cases involving nearly identical facts . . . our court has ordered reassignment because the record showed that the "original judge would reasonably be expected . . . to have substantial difficulty in putting out of [her] mind previously-expressed views or findings." Bistline, 720 F.3d at 634 (quotation marks omitted) . . . That same rationale compels reassignment here.
The district court began the resentencing hearing by stating, "I disagree with the Sixth Circuit." . . . The district court then imposed the same substantively
unreasonable sentence. And at one point during the hearing, the district court even acknowledged, "maybe the Sixth Circuit will reverse me again, but I can't impose a sentence on Mr. Schrank that otherwise does not make sense to me." . . . Thus, despite our binding holding, the district judge refused to follow the law and impose an appropriate sentence.
Schrank's sentence is vacated, and the case remanded for reassignment and resentencing.
Update: For Judge Lipman's perspective, here is the transcript of the proceedings below. Judge Lipman explains her reasoning at pages 27-30.