Federal Judge Departed Too Far From Federal Sentencing Guidelines

April 11, 2006 | Roger McEowen


If you remember the television show Bonanza, a typical story line was that some cowboy who was down on his luck would commit a crime and the law would hunt him down and pursue justice. Ben and his boys would see some merit in the person, plead for the crook’s life and work out some solution where the cowboy’s debt to society could be paid and benefit the community at the same time. Often that meant working in town or on the Ponderosa instead of going to jail. That story line played itself out recently in a case from the Sandhills of Nebraska, but with a different result.

The defendant operated three feedlots in O’Neill, NE, and found himself struggling financially due to tough times in the cattle industry from 2000-2003. In an attempt to keep his feedlots full, he hatched a plan - he would get a sizable loan from the local bank (with whom he had worked for years) by telling the bank that he had investors that would be putting cattle in the feedyards. The bank trusted the defendant, never once coming out to the feedyard to look things over or asking him for the names of the investors. So, the bank loaned the defendant $900,000 and the defendant pledged the cattle in his feedlot as security for the loan.  Unfortunately, the defendant neither owned the cattle pledged as security nor had investors lined up. After a tornado hit in the summer of 2003, the defendant knew that his plan was foiled. The hole had gotten so deep that there was no way out.  He called the bank and confessed. 

The defendant was ultimately charged with bank fraud, the sentence for which is 24-30 months in prison under the U.S. Sentencing Guidelines. Before sentencing, the U.S. probation office recommended that the defendant be sentence to time served (presumably for time to be served on a related state charge - the defendant was later convicted on a corresponding state charged and served six months in the state penitentiary) and five years of supervised release, because the defendant had no prior criminal history, the crime did not involve violence, and he reported the crime personally to the bank. The federal district court judge agreed, imposing sentence of five years of supervised release and 80 hours of community service. The judge specifically noted the tough times in agriculture, that the community had already opened another feedyard and put the defendant in charge as the manager, and that the defendant was rehabilitated. The judge also received 75 character letters from local people testifying to the trust they placed in the defendant and the good works he had performed for years for the community. As such, the judge believed that jail time would serve no useful purpose.

The appellate court didn’t agree. They ruled that the district court judge abused his discretion in departing so drastically from the sentencing guidelines. The court “failed to see” how the defendant had been rehabilitated because, except for this one event, he had always been an upstanding citizen. They also opined that the plight of rural America was irrelevant, as was his self-disclosure of the crime because it would eventually have been discovered. 

While the appellate court didn’t say that the trial court judge couldn’t depart from the sentencing guidelines somewhat, they did rule that the sentence imposed was too much of a departure. The case is now back with the trial court judge to arrive at a sentence that is more in accord with the sentencing guidelines. United States v. Givens, No. 05-1711, 2006 U.S. App. LEXIS 8796 (8th Cir. Apr. 11, 2006).