In U.S. v. Crisp, No. 05-12304 (July 7, 2006), on a government appeal, the Court held that the district court erred when, in imposing sentence on a fraud defendant and in taking account of the defendant’s substantial assistance, the sentencing court imposed a sentence of five hours’ incarceration and probation.
At sentencing, the district court initially stated that it would impose a sentence of no incarceration, and probation, but when the government pointed out that incarceration was required for a Class B felony offender, the court imposed five hours of incarceration and probation. The district court explained that it wanted the defendant to be able to make restitution to the bank that he had helped defraud.
Reversing, the Court pointed that even post-Booker a below the Guideline sentence based on cooperation must be, in fact, based on cooperation, not on the prospect of restitution.
Turning to the district court’s discretion under § 3553(a), the Court found it unreasonable for a sentencing court to rely so heavily on restittution as a factor in sentencing. "Crisp did not receive so much as a slap on the wrist – it was more like a soft pat." The sentence failed to achieve the other purposes of sentencing besides restitution, e.g. reflect the seriousness of the offense. Moreover, given the defendant’s limited assets and income, the prospect of restitution of more than $400,000 was illusory. The Court also noted the wrong incentive in rewarding a defendant with less jail time, in order to make restitution, as the greater the loss the less the sentence would be.
