Probation Violation Punishment Can Exceed Guidelines Range

Is a five-year prison sentence that exceeds the federal sentencing guidelines range excessive punishment for aiding and abetting tax return and Pell grant fraud?

The Eighth Circuit Court of Appeals says that it is not.

A district court sentenced Ronald Shepard to five years of probation in February 2009 after he pleaded guilty to aiding and abetting the filing of a false tax return and Pell Grant fraud. Shepard's probation officer subsequently notified the court that Shepard had violated three conditions of his probation: (1) that he not be "employed in any capacity in which he would act in a fiduciary capacity"; (2) that he not commit a federal, state, or local crime; and (3) that he answer truthfully all inquiries of his probation officer.

After a probation revocation hearing, the district court found that Shepard had violated all three of the probation conditions, and sentenced him to the statutory maximum of 60 months in prison, declining to impose a sentence within the federal sentencing guidelines range of 4 to 10 months.

Shepard appealed, arguing that the revocation sentence was substantively unreasonable because the sentence was disproportionate to the violations. The Eighth Circuit Court of Appeals disagreed.

The Eighth Circuit noted that the district court, which had also presided over Shepard's initial sentencing, rejected the four to ten month advisory guideline range because Shepard had committed repeated violations of his release beginning shortly after he was sentenced.

The district court described Shepard's behavior as "brazen" and expressed concern that he was a "genuine threat' who would "continue to do exactly what [he had] done in the past." In light of those recorded concerns, the Eighth Circuit Court of Appeals ruled that the district court had not abused its discretion in departing from the federal sentencing guidelines range.

Attorneys, this could serve as a great "scared straight" story for your clients who receive probation instead of a jail sentence. While you cannot control your clients' conduct during probation, you can explain to your clients that the courts are serious about probation violations.

Related Resources:

• U.S. v. Ronald Shepard (Eighth Circuit Court of Appeals)
• 2nd Circuit Upholds Sentence Despite Sentencing Guidelines Error (FindLaw's Second Circuit blog)
• Federal Sentencing Guidelines Punish Use of a Minor (FindLaw's Fifth Circuit blog)
• Guidelines Not Binding: Pre-Spears Claim Helps Vacate Sentence (FindLaw's Sixth Circuit blog)