FURTHER READING

CASE LAW

Military Service and Discharge

Porter v. McCollum, 130 S.Ct. 447 (2009)

The U.S. Supreme Court unanimously held that the Eleventh Circuit erred when it held that the Appellant’s Sixth Amendment right to counsel was not violated when his attorney failed to present evidence of Appellant’s war record and service-related mitigation, including a possible diagnoses of PTSD, during sentencing. The Court wrote that there was a reasonable probability that Appellant’s sentence would have been different if the judge and the jury had heard this mitigating evidence. Read the full opinion.

Kimbrough v. United States, 552 U.S. 85 (2007)

The U.S. Supreme Court held that trial courts may consider a defendant’s military service and honorable discharge as factors supporting a variance under sentencing statute. Read the full opinion.

Rita v. United States, 551 U.S. 338 (2007)

The U.S. Fourth Circuit Court of Appeals affirmed Defendant’s sentence, finding that a sentence within the advisory guidelines range was subject to a presumption of reasonableness. The U.S. Supreme Court reviewed the circumstances surrounding a defendant who had performed over 25 years of active and reserve military duty and had received 35 medals, awards, and nominations. After doing so, the Court “simply [could not] say that Rita’s special circumstances [were] special enough that, in light of § 3553(a), they require[d] a sentence lower than the Guidelines provide.” A concurring opinion by Justice John Paul Stevens highlighted the need to consider military service as a sentencing factor. Read the full opinion.

United States v. Theunick, 651 F.3d 578 (6th Cir. 2011)

The Sixth Circuit held that the district court’s denial of a downward departure for military service was reasonable in spite of denial of downward departure motion.

United States v. Chesnut, 421 Fed. Appx. 662 (8th Cir. 2011) (unpublished)

After Defendant pleaded guilty to five bank robberies, the district court denied a downward departure for sentencing, despite Defendant’s prior military service and lack of criminal record.

United States v. Carper, 659 F.3d 923 (9th Cir. 2011)

The trial court granted a variance in sentencing based on Defendant’s military service and because there was “little to no likelihood of recidivism.”

United States v. Hughes, 370 Fed. Appx. 629 (6th Cir. 2010)

In Defendant’s sentencing for fraud, the district court departed from 24-30 month range and imposed a 14 months imprisonment. The Court considered the seriousness of offense against Defendant’s service to under-served medical population, as well as his military service.

United States v. Fogle, 331 Fed. Appx 920 (3d Cir. 2009)

The U.S. Third Circuit Court of Appeals held that the district court was reasonable when it departed downward from 46-57 month range to 41 months after considering Defendant’s “long period of military service, long history of gainful employment, and the way he accepted responsibility in the case.”

United States v. Velasquez, 329 Fed. Appx. 365 (3d Cir. 2009)

The Third Circuit held that a sentence of 360 months was reasonable where district court varied downward from an advisory life imprisonment after considering Defendant’s service in the Navy, lack of criminal record, military injuries, and positive letters received in support.

United States v. Howe, 543 F.3d 128, 132 (3d Cir. 2008)

The Third Circuit, in upholding the district courts sentencing departure, recognized that 20 years in the military was factor that could be used by the sentencing court to depart from the guideline range. Defendant, in this case, had served in the military for 20 years and was honorably discharged with the rank of Master Sergeant.

United States v. Cope, 282 Fed. Appx. 369 (6th Cir. 2008)

In upholding a sentence for drug offenses, the Sixth District rejected Defendant’s claim that the lower court placed did not put enough emphasis on his military service during the Vietnam War and his accompanying PTSD. The district court remarked that “even individuals with [this] disorder[ ] have to take responsibility for their actions.”

United States v. Arnold, 263 Fed. Appx. 507 (7th Cir. 2008)

The Seventh Circuit held that the district court’s imposition of a 20-year statutory maximum sentence was not unreasonable for child pornography offenses. The court recognized Defendant’s service, calling him courageous; however, the court also recognized that Defendant also communicated with underage women and forwarded them child pornography while he was serving on active-duty in Iraq.

United States v. Robinson, 516 F.3d 716 (8th Cir. 2008)

The Eighth Circuit held that the district court did not abuse its discretion by sentencing Defendant to 33 months incarceration, despite also finding that Defendant had served 25 years in the military.

United States v. Lett, 483 F.3d 782 (11th Cir. 2007)

At sentencing for crack cocaine offenses, the district court imposed a mandatory 5-year sentence, rather than the suggested 70-87 month range, noting that Defendant, who had served during Operation Iraqi Freedom, was “an extremely valuable asset to the United States Army, an outstanding non-commissioned officer, a model soldier, a role model with excellent work ethic, a dynamic, innovative leader, [and] a shining example for his peers and subordinates.” After deciding that the safety valve applied, the court resentenced Defendant under Federal Rule 35(a) to time served, plus supervised release. In addition to Defendant’s military record, the court cited his limited role in the offense, voluntary withdrawal from the criminal enterprise followed by re-enlisting in the Army, and lack of criminal history. On appeal, however, the Eleventh Circuit reversed because the district court lacked authority to resentence Appellant to less than the statutory minimum.

United States v. Deal, 237 Fed. Appx. 909 (5th Cir. 2007) (unpublished)

The Fifth Circuit held that, at sentencing for Defendant’s immigration offense, the district court did not err when declining to depart downward and where it “expressed concern that an educated man with a military background and an important trucking job would turn to being a felon.”

United States v. Chapman, 209 Fed. Appx. 3 (1st Cir. 2006)

The First Circuit held that a reduction was not unreasonable where the district court considered Defendant’s military service, among other factors.

United States v. Haworth, 187 Fed. Appx. 458 (6th Cir. 2006)

The Sixth Circuit upheld Defendant’s sentence from lower court, which had recognized Defendant’s military service but concluded that “adequate deterrence” outweighed it.

United States v. Brock, 433 F.3d 931 (7th Cir. 2006)

The Seventh Circuit held that, at sentencing for drug trafficking and firearms charges, the district court’s decision not to depart downward was not unreasonable. The district court recognized Defendant’s eight years of service in the Navy and his honorable discharge.

United States v. Day, 168 Fed. Appx. 87 (7th Cir. 2006)

The Seventh Circuit held that the district court did not commit error by holding that Defendant’s military service was “counterbalanced by his repeatedly taking advantage of the trusting and unsuspecting people in his own community and his excessive fraudulent activities over a significant period of time.”

United States v. Manuel, 208 Fed. Appx. 713 (11th Cir. 2006)

The Eleventh Circuit held that sentencing Defendant above the recommended guideline range was not unreasonable, even in light of his “childhood circumstances, character, and military service.”

United States v. Canova, 412 F.3d 331 (2d Cir. 2005)

The Second Circuit held that the district court did not err when departing downwards in consideration of Defendant’s six-year Marine Corps service, even though Defendant’s military service had occurred 20 years earlier.

United States v. Gill, 150 Fed. Appx. 205 (4th Cir. 2005)

The Fourth Circuit held that a bottom-of-range sentence for cocaine offenses was not unreasonable where district court imposed 262 months in consideration of Defendant’s previous, lengthy military service.

United States v. Jared, 50 F. App’x. 259 (6th Cir. 2002)

The Sixth Circuit Court found that the sentencing court erred in departing from the sentencing guidelines when it relied on military service that had taken place 25 years before the incident.

United States v. Neil, 903 F.2d 564 (8th Cir. 1990)

The Eight Circuit held that the district court reversibly erred by departing downwards from 63-78 month sentence to 28 months based upon Defendant’s military service. The appellate court recognized that military service “could constitute grounds for departure in an unusual case,” but stated that Defendant’s 11 years of service as stateside recruiter is essentially indistinguishable from analogous civilian employment and thus cannot support a departure.

United States v. Given, 164 F.3d 389, 395 (7th Cir. 1999)

Defendant pleaded guilty to mail fraud. The Seventh Circuit held that the district court did not err when it found that Defendant’s military service, though exemplary, occurred 25 years before sentencing and did not counter-balance the instant offense.

United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993)

Defendant had served for two years during the Vietnam War and suffered from a “grave affliction,” including flashbacks and anxiety. The Ninth Circuit held that the district court erred in determining that it could not depart from guideline range.

United States v. Jager, CR 10-1531 JB, 2011 WL 831279, at *11 (D.N.M. Feb. 17, 2011)

The Federal District Court for New Mexico declined to depart downward from the sentencing guidelines, despite Defendant’s “exemplary” military service. Defendant was highly decorated and had performance reports that showed “consistent outstanding performance.” In reaching this decision, the court relied on the fact that Defendant’s service was “not one of intense combat.”

United States v. Conyers, 2011 U.S. Dist. LEXIS 83949 (S.D.S.C. July 29, 2011)

Counsel’s failure to inform Defendant about a newly revised departure under USSG §5H1.11 did not constitute ineffective assistance of counsel, because district court took Defendant’s military service into consideration under the § 3553(a) factors. Further, the sentencing court would not have granted a departure under §5H1.11 because Defendant’s military service was not “present to an unusual degree” to warrant such a departure.

United States v. Graf, 2008 WL 5101696 (E.D.WI., Dec. 1, 2008)

In departing from month advisory range, the district court considered, among other factors, Defendant’s Marine Corp service during Operation Desert Storm.

United States v. Moses, (E.D. WI.), 2007 WL 42752 (Jan 5, 2007)

The district court imposed a downward sentence after it considered, among other factors, Defendant’s service in the Marine Corps, including his dishonorable discharge for larceny, as well as his National Defense Service Medal, Sharpshooter badge, and Good Conduct medal. Defendant was dishonorably discharged for larceny; however, the Court noted that the discharge was not related to Defendant’s service in the Marines.

United States v. Nellum, 2005 WL 300073 (N.D. IN. 2005)

At sentencing for crack cocaine offenses, the district court varied below guidelines after considering, among other factors, Defendant’s Army veteran status.

United States v. Bruder, 103 F.Supp.2d 155 (E.D.N.Y. 2000)

The U.S. Eastern District Court of New York departed downwards four offense levels based, in part, on Defendant’s military service in the Marine Corps, various decorations and honorable discharge, service in the Persian Gulf War, and service in the National Guard.

United States v. Vue, 865 F.Supp. 1353 (D.Neb., 1994)

The district court did not err when it departed downwards for Defendant, who fought against the Viet Cong during the Vietnam War, albeit as a Hmong tribesman rather than a serviceman of the U.S. Armed Forces.

United States v. Caruso, 814 F.Supp. 382 (S.D.N.Y. 1993)

The U.S. Southern District Court of New York held that the trial court was reasonable in its downward departure from 12-18 months to six months home confinement in light of Defendant’s age, medical problems, good employment record, and military service in the Navy, where he survived a two-year Pacific tour in World War II and received good conduct and Pacific Service awards. Defendant was also honorably discharged.

Vining v. State, 637 So. 2d 921, 928 (Fla. 1994)

In weighing the mitigating effect of Defendant’s military service, the sentencing court “concluded that it was entitled to little weight as it ended over thirty years ago, involved no sacrifice, and amounted to a government job from which Vining received a number of benefits.”

Medals and Valor

United States v. Winters, 105 F.3d 200 (5th Cir. 1997)

The Fifth Circuit overturned the district court’s sentencing of Defendant, because the district court abused its discretion in making a departure from the Guidelines based on Defendant’s service in the military and receipt of two Purple Hearts.

United States v. Goodluck, 103 F.3d 145 (10th Cir. 1996)

The Tenth Circuit agreed with the district court’s downward departure and notes that “[t]he district court also cited the defendant’s conduct during the Gulf War and the medals he received.” The appellate court, however, also recognized that “these medals were not awarded for the defendant’s individual activity.”

United States v. Henley, 50 F.3d 1032 (5th Cir. 1995)

The Fifth Circuit affirmed the district court’s downward departure because of Defendant’s “distinguished military career.” Notably, the Fifth Circuit acknowledges that Defendant “did more than merely serve in the armed forces; he served on active duty for 20 years,16 including service in Vietnam. During his career Henley received numerous decorations recognizing the quality of his service to his country. Such an extended, exemplary military record reflects a positive contribution to society. We are not prepared to say that the district court’s recognition of this distinguished service in the armed forces, including time in a combat theater, as extraordinary circumstances justifying a downward departure, was an erroneous application of the Sentencing Guidelines.”

United States v. Peters, 978 F.2d 166 (5th Cir. 1992)

At Defendant’s sentencing, the Fifth Circuit held that the district court did not err by refusing to depart downward based on the Defendant’s military service, which included the award of two Purple Hearts and a Distinguished Flying Cross award.

United States v. Jager, CR 10-1531 JB, 2011 WL 831279, at *11 (D.N.M. Feb. 17, 2011)

The Federal District Court for New Mexico declined to depart downward from the sentencing guidelines, despite Defendant’s “exemplary” military service. Defendant was highly decorated and had performance reports that showed “consistent outstanding performance.” In reaching this decision, the court relied on the fact that Defendant’s service was “not one of intense combat.”

United States v. Cole, 622 F.Supp.2d 632 (N.D. Ohio 2008)

At Defendant’s sentencing for securities fraud offenses, the district court departed from the advisory 30-37 month range and imposed a 366-day sentence with a $180,000 fine after considering, among other factors, Defendant’s admirable military service, which included a combat tour in Vietnam as a Special Forces Captain and the receipt of two Bronze Stars.

United States v. Shipley, 560 F.Supp.2d. 739 (S.D. Iowa 2008)

While child pornography offenses carry a 210-240 month advisory range, the trial court sentenced Defendant to 90 months imprisonment. The court considered, among other factors, Defendant’s 10 years of military service—including three years overseas service, a National Defense Service Medal, a Meritorious Service Medal, and an Army Commendation Medal—his honorable discharge, and his demonstrative remorse manifested in a suicide attempt.

United States v. Moses, (E.D. WI.), 2007 WL 42752 (Jan 5, 2007)

The district court imposed a downward sentence after it considered, among other factors, Defendant’s service in the Marine Corps, including his dishonorable discharge for larceny, as well as his National Defense Service Medal, Sharpshooter badge, and Good Conduct medal. Defendant was dishonorably discharged for larceny; however, the Court noted that the discharge was not related to Defendant’s service in the Marines.

United States v. Pipich, 688 F. Supp. 191 (D.Md. 1988)

The district court’s departure from the 1-7 month guideline range to impose probation for theft of mail offense was reasonable. The court recognized Defendant’s four-year military service, which included combat duty in Vietnam and receipt of over 45 awards, including two Purple Hearts and heroism award.

Johnson v. Singletary, 612 So. 2d 575, 581 (Fla. 1993)

In this case, Defendant was sentenced to death, but Justice Gerald Kogan’s concurring opinion acknowledges several facts that the trial judge neglected to consider during the sentencing phase. Justice Kogan’s opinion covers the level of detail that should be reached when investigating military service as a mitigating factor. “I am gravely disturbed that [Larry Joe] Johnson was not even permitted the tiniest mitigating value for his physical and mental disabilities, nor for the one thing that caused them: his years of good and productive service in the military.” Justice Kogan highlights that the trial court seemed to wholly ignore the fact that the defendant was “decorated during two tours of duty totaling some fifteen month in Vietnam.” Johnson v. Singletary, 612 So. 2d 575, 578 (Fla. 1993). Moreover, Justice Kogan points out “[t]here was psychological testimony at trial suggesting the reasons why the Defendant lost control of his own mind. An expert in post-traumatic stress disorder suffered by Vietnam veterans indicated that “the 1974 injury not only may have left some brain damage, but it also reawakened the nightmarish experiences that Johnson had endured in Vietnam.” Johnson v. Singletary, 612 So. 2d 575, 578–79 (Fla. 1993). Additionally, Justice Kogan comments on the psychological effect watching friends die in combat had on the defendant. Read the full opinion.

State v. Twelves, 463 So. 2d 493, 493 (Fla. 2d DCA 1985)

The Second District Court of Appeal held that the trial court in this case did not abuse its discretion when it suspended Defendant’s 10-year sentence based upon fact that Defendant’s military record discloses “a substantial amount of combat, the receipt of a Purple Heart and a Bronze Star.” Although Defendant acquired criminal history after his service, there was competent expert evidence that he suffered from PTSD which could be remedied by a veterans outreach program.

Promotions and Commendations

United States v. Williams, 332 Fed. Appx. 937 (5th Cir. 2009)

Defendant pleaded guilty to attempting to commit extortion affecting interstate commerce. The district court departed from 188-235 months to 120 months based upon Defendant’s pre-indictment military service. Documents showed that Defendant rejoined the Army between the commission of the offense and his indictment. The Court opined that Defendant’s “service to his country is admirable and worthy of consideration as a mitigating factor supporting a downward departure.” Defendant was promoted to sergeant and received letters of commendation from his superiors.

Peterka v. McNeil, 532 F.3d 1199, 1204 (11th Cir. 2008)
The Eleventh Circuit held that defense counsel’s failure to present positive military service (“chosen as platoon leader and had received two recommendations, including one for leadership”) at sentencing phase was not a violation of Defendant’s Sixth Amendment right to legal counsel, because the decision not to present such evidence was strategic. Counsel testified that he did not want to raise military history because it would also raise the fact Defendant was discharged for committing a felony in a different state. Lead counsel and defense investigator, however, both testified that had they known about Defendant’s commendations, they would have used his military record as evidence “regardless of the circumstances surrounding his discharge.”

United States v. Panyard, 2009 WL 1099257 (E.D. Mich. 2009)

The district court reasonably varied below the advisory 27-33 month range by imposing a 15-month sentence after considering Defendant’s military service during the Gulf War, where he was granted Top Secret clearance by the Navy. He also received several awards for his service.