JOSEPH F. BATAILLON, Chief Judge.
This matter is before the court on defendant's "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" ("§ 2255 motion"), Filing No. 214.
William T. Monnier was charged in a two-count indictment with conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 846, and distribution of less than 50 grams of methamphetamine that resulted in death of Esperanza Mendoza in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). A conviction for conspiracy to distribute more than 500 grams of methamphetamine is subject to a mandatory minimum sentence of ten years and a conviction for drug distribution resulting in serious bodily injury or death carries a mandatory minimum sentence of twenty years. 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); 846.
The evidence adduced at trial showed that Monnier was one of several people
Three witnesses testified for the defendant. Valencia Polanco testified that Mendoza had stated "in a derogatory and joking way" that she was going to party in a motel room with some black guys. Filing No. 161, Tr., Vol. IV at 598. Ron Woodward testified that Mendoza had called him early in the evening of April 15, 2001, and stated that she and Brandy Stroud were going to a party later that evening. Filing No. 162, Vol. V at 716-17. He stated, however that he had no knowledge of where Mendoza went that night. Id. at 717. John McNeel, a private investigator hired by the defendant, testified that no one other than Brandy Stroud and Rick Edwards told him they were present with Monnier and Mendoza in the motel room on the night of Mendoza's death. Id. at 729.
Teresa James was also called to testify and was sworn in as a witness, but she invoked the Fifth Amendment. Filing No. 162, Tr., Vol. V at 745-50. Defense counsel then moved for a mistrial. Id. at 743. The motion for a mistrial was denied, but James Sali was permitted to testify that Teresa James had told him that she had been "doing dope" with Brandy Stroud on April 16, 2001, and was at the motel room with Stroud and Mendoza when Mendoza was sick. Id. at 819, 763-65. Medical evidence established that Mendoza died from "the effects of toxic levels of methamphetamine." Filing No. 160, Vol. III at 447.
Monnier did not testify. Outside of the presence of the government, the court questioned Monnier on the subject of his right not to testify and Monnier assured the court that he knowingly elected not to testify.
Prior to sentencing, the United States Probation Office ("Probation Office") prepared a Presentence Investigation Report ("PSR"). Filing No. 177, PSR (sealed). In the PSR, the Probation Office determined that the United States Sentencing Guidelines ("Guidelines") establish a base offense level of 38 for a conviction for distribution of methamphetamine that results in death.
Monnier objected to the base offense level and to the recommended enhancements for role in the offense and obstruction of justice. Filing No. 171. He also moved for a downward departure based on the victim's conduct under U.S.S.G. § 5K2.10 and for overstatement of his criminal history under U.S.S.G. § 4A1.3. Filing No. 175. He argued that the evidence showed that the victim's wrongful conduct contributed to her death in that she voluntarily ingested methamphetamine, participated in a "meth party" several
Monnier was sentenced after a hearing on November 19, 2003. Filing No. 178. Minute Entry; Filing No. 180, Judgment. At the sentencing hearing, the court sustained Monnier's objection to the role in the offense enhancement, but overruled the defendant's objection to the obstruction of justice enhancement, resulting in a total offense level of 40.
The court denied Monnier's motion for downward departure with respect to overstatement of his criminal history, but invited argument on the victim-conduct issue. Id. at 935. Monnier's counsel conceded that there were no cases exactly on point, but argued that "it's clear that the victim's conduct at least contributed at some point in time to her ultimate and tragic death by voluntarily consuming, whether it was by injection, nasally, or however, by eating methamphetamine, which I assume she knew was illegal because she had been using it for at least eleven months according to the defendant's expert," and that "the victim should bear some responsibility for, not provoking, but for significantly contributing to the events, which is ultimately her death." Id. at 927.
In response, the government argued that drug distribution resulting in death is a strict liability crime and therefore "the victim cannot contribute, no matter what, to decreasing the outcome of this crime." Id. at 928. It contended that a downward departure for victim conduct was prohibited under the Guidelines, relying on United States v. Sheridan, 270 F.3d 669, 673 (8th Cir.2001) and United States v. McIntosh, 236 F.3d 968, 973 (8th Cir.2001).
Id. at 930-31. Defense counsel continued to argue that a downward departure was permitted and appropriate. Id. at 932.
The court addressed the victim's culpability, stating "I know that this sounds like the less than courageous way out, but— I'm fully mindful of Blackbird Sheridan's case." Id. at 935. The court commented: "I don't think this case fits into that same category, but I don't know that I'm authorized under the law to grant this motion for downward departure, because I don't know that this departure is applicable to this offense." Id. at 936. The court continued:
Id. at 936.
At allocution, Monnier commented at length about the difficulty he had accepting responsibility for Ms. Mendoza's death. Id. at 937-47. He continued to maintain that he did not give Mendoza the drugs that killed her, though he admitted to being an addict and an adulterer. Id. at 947, 945, and 937. The following discussion then ensued:
Id. at 947-49. Later, the court stated "I have already made the decisions that I can make as far as your case is concerned. Now the next set of decisions have to come from the Appeals Court or in a postconviction action and then I get it again." Id. at 949. The court sentenced Monnier to a term of imprisonment of 360 months (30 years) on each count, to be served concurrently. Id. at 951.
Monnier appealed his conviction and sentence to the Eighth Circuit Court of Appeals ("Eighth Circuit" or "Appeals Court"). Monnier was represented by the same attorney at sentencing and on appeal, although he had been represented by a different attorney at trial. On appeal, Monnier's appellate counsel argued that the evidence was insufficient to support Monnier's conviction. He also challenged the application of a two-point enhancement for obstruction of justice. He did not appeal the district court's denial of Monnier's motion for downward departure.
While Monnier's appeal was pending, on June 24, 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Court invalidated the State of Washington's mandatory sentencing regime, finding it unconstitutional. Id. at 304-05, 124 S.Ct. 2531. Shortly thereafter, Monnier's counsel moved for leave to file a supplemental brief with the Appeals Court. The Appeals Court granted the motion and Monnier's brief was filed on July 19, 2004. In the supplemental brief, Monnier's counsel challenged the application of a two-level enhancement for obstruction of justice under the then-mandatory Guidelines, and argued that Monnier's sentence violated Blakely. Absent application of the enhancement, Monnier's base offense level would have been 38, resulting in a Guidelines range of 292 to 365 months. Notably, Monnier's appellate counsel did not challenge the district court's denial of a downward departure under U.S.S.G. § 5K2.10, nor did he address the issue of drug quantity, or argue the sentencing factors under 18 U.S.C. § 3553(a).
At oral argument, Monnier's counsel argued that the evidence was not sufficient to support his conviction, and generally argued that the mandatory federal Guidelines were unconstitutional under Blakely. Specifically, Monnier's counsel argued that the two-level enhancement for obstruction of justice could not stand under Blakely, and that Monnier's sentence should be 292 months. There was some discussion of the Booker and Fanfan cases that were then pending before the Supreme Court and were to be argued in October of 2004. Counsel commented that if the Supreme Court were to hold that Blakely was applicable to the federal Guidelines, Monnier would be subject to an indeterminate sentence of twenty years to life, at the district court's discretion.
In response to questioning by the panel, Monnier's counsel stated that there was nothing in the trial court record to indicate that the sentencing court would have sentenced Monnier to a lower sentence. Counsel stated, however, that he would "bet the farm" that this court would have sentenced Monnier to 292 months under Blakely. He did not address drug quantity, the propriety of a downward departure, or consideration of the sentencing factors set out in 18 U.S.C. § 3553 at oral argument.
Monnier's case remained under submission when the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), on January 12, 2005. In Booker, the Court found that judicial fact-finding is unconstitutional under a mandatory sentencing scheme, but remedied the Constitutional violation by rendering the Guidelines advisory. Booker, 543 U.S. at 233, 259-60, 125 S.Ct. 738. After Booker, district courts must consult the Guidelines, but are not obligated to follow them and a sentence imposed in the exercise of discretion will be upheld if reasonable. Id. at 264, 125 S.Ct. 738.
On July 5, 2005, the Eighth Circuit issued its opinion affirming Monnier's conviction and sentence. See United States v. Monnier, 412 F.3d 859, 862 (8th Cir.2005). The Eighth Circuit first found that the evidence was sufficient to convict Monnier on both counts. Id. at 861-62. It also found no abuse of discretion in the district court's denial of the defendant's motion for a mistrial. Id. at 863. Because Monnier
In order to satisfy the requirement that the error affected Monnier's substantial rights, the Eighth Circuit stated that Monnier would have to demonstrate "a `reasonable probability,' based on the appellate record as a whole, that but for the error, he would have received a more favorable sentence." Id. Although it acknowledged the district court's statement that "I think that under the guidelines I really don't have much choice, other than to do what I'm doing ... I'm going to give you the minimum sentence," the Eighth Circuit noted that "`sentencing at the bottom of the range is the norm for many judges, so it is insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.'" Id. (quoting Pirani, 406 F.3d at 553). Accordingly, it found that Monnier had not demonstrated prejudice as a result of the Constitutional error, and was not entitled to redress. Id. Monnier filed a petition for rehearing by the panel, as well as by the court en banc, and that petition was denied on August 24, 2005.
In his § 2255 motion, Monnier argues ineffective assistance of counsel at trial and on appeal. He contends, in pro se pleadings and in supplemental briefing by appointed counsel, that his trial counsel was ineffective in pressuring him not to testify in his own defense and in failing to call certain witnesses. He asserts that appellate counsel was ineffective in failing to challenge the denial of the downward departure motion and failing to properly raise and argue Blakely/Booker issues. He contends that the district court would have sentenced him to the mandatory minimum sentence under advisory guidelines regime, and accordingly asks to be resentenced to a term of 240 months (twenty years). In opposition to the motion, the government submits the affidavits of trial and appellate counsel. Filing No. 244, Index of Evid., Document 2, Affidavit of Stuart J. Dornan; Document 3, Affidavit of W. Russell Bowie.
Under 28 U.S.C. § 2255, a federal prisoner has "an avenue for relief if his `sentence was imposed in violation of the
Deficient performance "is that which falls below the `range of competence demanded of attorneys in criminal cases.'" Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir.2010) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). "The standard is an objective one, viewed in light of professional norms prevailing when the representation took place." Id.; Bobby v. Van Hook, ___ U.S. ___, ___, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009) (per curiam). We must consider "whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The reasonableness of counsel's challenged conduct must be judged on the facts of the particular case, viewed as of the time of counsel's conduct. King, 595 F.3d at 852.
Under Strickland, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. Rodela-Aguilar v. United States, 596 F.3d 457, 464 (8th Cir.2010). The Eighth Circuit has "consistently held that a reasoned decision not to call a witness `is a virtually unchallengeable decision of trial strategy,' in part because `there is considerable risk inherent in calling any witness because if the witness does not hold up well on cross-examination, the jurors might draw unfavorable inferences.'" Id. (quoting United States v. Staples, 410 F.3d 484, 488-89 (8th Cir.2005)). Also, counsel is not necessarily ineffective for failing to raise an argument that may have had merit but was a wholly novel claim at the time. Id. at 853; Alaniz, 351 F.3d at 368 (finding deficient performance in failure to raise improper aggregation of drug quantity at sentencing and on appeal).
To establish prejudice under Strickland, a petitioner must "demonstrate that there is a reasonable probability that, but for counsel's claimed unprofessional errors, the result of the proceeding would have been different." Christenson v. Ault, 598 F.3d 990, 996 (8th Cir.2010). In the sentencing context, prejudice can be found with a showing that, had an argument been presented, a defendant likely would have received a much shorter sentence.
When a Supreme Court decision results in a "new rule" of criminal procedure, that rule applies to all criminal cases still pending on direct review. Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir.2005). The constitutional rule of criminal procedure established in Blakely is available to defendants whose criminal cases were not yet final at the time the decision was issued.
In the wake of Booker, the district court's duty at sentencing is not merely to calculate the appropriate Guidelines range and then determine if a departure is appropriate, but to consider Guidelines ranges and tailor the sentence in light of other statutory concerns as well. Spigner, 416 F.3d at 711. The district court may not presume that the Guidelines range is reasonable and should consider all of the § 3553(a) factors to make an individualized assessment based on the facts presented.
After Booker, district courts are required to follow a three-step sentencing procedure: (1) the district court must calculate the appropriate advisory Guidelines range based on the applicable offense level and the criminal history category; (2) the district court should consider whether any traditional Guidelines-based departures apply; and (3) the district court should then consider the other § 3553(a) factors to decide whether to impose a Guidelines or non-Guidelines sentence. United States v. Solis-Bermudez, 501 F.3d 882, 884 (8th Cir.2007). Since Booker, the Eighth Circuit has "attempted to carefully distinguish between" sentencing departures under the Guidelines and "sentencing variances, which are non-Guidelines sentences based on the factors enumerated in 18 U.S.C. § 3553(a)." Id. Before Booker, a district court's refusal to grant a downward departure was unreviewable on appeal, unless the district court had an unconstitutional motive or erroneously believed that it was without authority to grant the departure. United States v. Dabney, 367 F.3d 1040, 1044 (8th Cir.2004). Post-Booker, an appeals court will not review a district court's refusal to depart as part of its assessment of the correctness of the district court's Guidelines calculation at the first step of
Once a sentence has been vacated, or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing. United States v. Cornelius, 968 F.2d 703 (8th Cir.1992); United States v. Peterson, 507 F.3d 1115, 1119 n. 2 (8th Cir.2007). On resentencing after a Booker error, a district court should determine what sentence it would have imposed when originally sentencing a defendant under advisory Guidelines and to sentence him to that term. See Alaniz, 351 F.3d at 368; United States v. Goodman, 509 F.3d 872, 877 (8th Cir.2007) (the court could have validly considered any evidence it could have heard at the original sentencing).
With respect to trial counsel, the court finds that Monnier has not satisfied the Strickland standards. The record shows that Monnier knowingly and voluntarily chose not to testify in his own behalf. Trial counsel admittedly advised the defendant not to testify and the court finds that was a reasonable tactical decision. Under the circumstances of the case, Monnier's testimony could easily have done him more harm than good. Further, Monnier has not shown that the testimony of other potential witnesses would have benefitted him, since there is overwhelming evidence that Monnier supplied Mendoza with some methamphetamine on the night of her death.
With respect to appellate counsel, however, the court finds that Monnier has shown that counsel's performance was deficient
The Eighth Circuit affirmed Monnier's thirty-year sentence only because it found that the defendant had not met his burden, under plain error review, to show that there was a reasonable probability that the district court would have imposed a different sentence under advisory guidelines. Had appellate counsel argued more forcefully and provided evidence of record, the Appeals Court would have recognized the "reasonable probability" that, had the district court known the Guidelines were advisory and the court were free to consider the Guidelines together with other sentencing goals listed in 18 U.S.C. § 3553(a), the district court would have exercised its discretion by imposing a more favorable sentence.
The Eighth Circuit held that a sentence at the low end of a Guidelines range, without more, will not give rise to a reasonable probability of a shorter sentence, but in this case, there was clearly "more" that should have been presented to the Court of Appeals. Coupled with a sentence at the low end of the Guidelines, the record contained numerous indications that the court was predisposed to give a lower sentence if possible. The district court referred to the statute as "harsh"; the court characterized the thirty-year sentence as "too long" and as a death sentence; the court stated that it had no other choice; urged counsel to pursue the downward departure issue on appeal; and urged the defendant to pursue his rights in a 28 U.S.C. § 2255 action. Yet, on appeal, counsel not only failed to refer to these statements, but expressly disclaimed the existence of evidence in the record that would show the court's inclination toward a shorter sentence. Speculation such as "betting the farm" is not an adequate reason for a remand.
Accordingly, the court finds that Monnier has shown both representation that fell below objective standards on appeal and prejudice as a result of the representation. Monnier is entitled to habeas corpus relief for the reason that his appellate attorney's performance cost him the opportunity to present a meritorious argument on direct appeal. His appeal was denied because appellate counsel erroneously stated that there was no evidence in the record that showed the district court would have given a shorter sentence. Appellate counsel's failure to point to the evidence in the record resulted in the Eighth Circuit affirming the sentence rather than remanding for resentencing. Monnier has undoubtedly shown prejudice because, had the case been remanded for resentencing, this court would have sentenced Monnier to the mandatory minimum sentence.
Other instances of deficient representation also support this conclusion. The court further finds counsel was ineffective for failing to raise the victim conduct issue in support of either a departure or a variance and failing to address sentencing factors under 18 U.S.C. § 3553. Monnier's motion for a downward departure for victim conduct was denied for the express
The advent of Blakely changed the sentencing landscape. In the interregnum between Blakely and Booker, sentencing courts responded to the altered landscape in several ways—by finding that Blakely did not apply to the federal Guidelines and continuing to follow them; by requiring that enhancing facts be either admitted or proved to the court or a jury beyond a reasonable doubt; or by returning to the pre-Guidelines scheme of unfettered indeterminate sentencing. The record of oral argument shows that appellate counsel, as well as the Appeals Court, contemplated the pending Booker and Fanfan cases and counsel acknowledged that no one could anticipate what action the Supreme Court might take. That being the case, competent appellate counsel would have presented alternative arguments to address potential outcomes.
Appellate counsel argued that the difference Blakely would make to Monnier's sentence would be to reduce it from 360 to 292 months—a 68-month difference. Although the sentencing court was not free to sentence below the statutory minimum of twenty years, there was still a ten-year difference between the statutory minimum and the Guidelines minimum. After Blakely, counsel had a reasonable legal ground to argue that the sentence should be reduced by as much as ten years. The record shows the trial court's inclination to sentence Monnier to a shorter sentence.
The appeal was still pending when the Supreme Court's Booker decision was released and the remedy for a Blakely violation was established. At that point, it was clear that the Guidelines were to be treated as advisory. Reasonably competent counsel would have sought leave to file a supplemental brief to point to evidence in the record that would show the Court of Appeals that the district court would have sentenced Monnier to a shorter sentence if the Guidelines were advisory. As noted, there was such evidence in the record. It then becomes apparent that counsel was deficient in failing to argue for a variance, as opposed to a departure, from the recommended Guidelines range. In the seven months between Booker and the Eighth Circuit's decision in this case, counsel did not present argument or point to evidence in the record that addressed the issue of the effect of Booker, rather than Blakely, on Monnier's sentence. Booker established that the Guidelines were advisory only, and opened up the prospect of truly discretionary consideration of the 18 U.S.C. § 3553 factors. Because appellate counsel failed to supplement his submissions and arguments on appeal, the Eighth Circuit was not presented with evidence or argument on the propriety of a variance as opposed to a departure, nor with the salient facts that would have had an impact on the court's consideration of the § 3553 factors.
Having found that Monnier's motion to vacate, set aside or correct his
With respect to the nature and circumstances of the offense, the court finds that drug distribution resulting in death is a serious and tragic crime. The seriousness of the crime is evident in the fact that it is a strict liability crime, punishable regardless of intent or foreseeability. Though the evidence in this case was sufficient to support the conviction, it was far from conclusive with respect to causation. Expert testimony established that Ms. Mendoza's death was caused by methamphetamine ingestion and the jury found that Monnier had distributed methamphetamine to her. The government did not prove, however, that additional drugs had not been provided to Mendoza by others. In considering the nature and circumstances of the offense, the court must consider Monnier's culpability relative to the others whose conduct also contributed to the tragic event. Sadly, the victim's conduct is also a consideration in this calculus. The evidence shows that Mendoza was a methamphetamine addict who had been consuming methamphetamine for at least eight months. She was an adult and there was no showing that she was a particularly vulnerable victim.
There are varying levels of participation and blameworthiness in any drug distribution scheme. Monnier's place in the drug distribution scheme is also relevant to the nature and circumstances of the offense. Again, although the evidence was sufficient to sustain the conviction on the drug conspiracy charge, the court found that Monnier was far from the leader or kingpin of the distribution network. There was evidence that others were bigger suppliers than Monnier. The evidence adduced at trial shows that Monnier's culpability in the drug conspiracy would fall closer to the low end than to the high end.
The court has also considered Monnier's history and characteristics. The defendant is presently 49 years old. He has been diagnosed as having Hepatitis C, which he contracted while detained on this offense. He has also been diagnosed as polysubstance dependent and as having Atypical Anxiety Disorder, Personality Disorder, possible Bipolar Disorder, and Depression. He began drinking alcohol in seventh grade and taking drugs in ninth grade. He is a high school graduate and has been employed as a forklift operator and an over-the-road trucker and he has owned a sprinkler business. He served in the Air Force and was honorably discharged. Monnier has a history of assaultive behavior, but his alcohol and drug addictions are factors to consider.
The court has consulted the Guidelines and uses the Guidelines calculation as its initial starting point. However, in view of the fact that the drug distribution Guidelines are driven by Congressional directive, rather than grounded in any scientific, statistical, or empirical method, the advice imparted in the Guidelines is outside the Sentencing Commission's area of expertise and need not be accorded a high degree of deference by the court. The Sentencing Commission diverged significantly from its studied, empirical approach in formulating the drug distribution Guidelines and produced a sentence greater than necessary to provide just punishment.
The Guidelines sentencing scheme for drug distribution offenses illogically skews sentences for mid-level or "average" defendants to the upper end of the statutory range, regardless of the particular defendant's
The court also considers the need to avoid sentencing disparities. The evidence adduced at trial showed that several people were involved in and had varying levels of responsibility for the tragic event that culminated in the death of a twenty-year-old woman. Monnier was the only person charged with drug distribution resulting in death. Of the witnesses who also shared illicit drugs with the defendant and Mendoza, Rick Edwards was initially sentenced to a term of incarceration of 120 months with five years of supervised release to follow. After the government filed a substantial assistance motion, his sentence was reduced to 36 months with five years of supervised release. Brandy Stroud was never prosecuted in federal court. If prosecuted in state court, it is not likely that Stroud would have served any more time than Edwards. A sentence of twenty years for Monnier respects the relative levels of culpability between Monnier and the others involved in the events leading to Mendoza's tragic death.
The court finds that the thirty-year sentence recommended under the Guidelines is greater than necessary to protect the public and to deter Monnier from re-offending. The mandatory minimum sentence of twenty years is more that adequate to achieve the goals of sentencing in this case. Twenty years is a significant term of imprisonment for a person of Monnier's age and health. The public will be adequately protected by the imposition of concurrent terms of supervised release of five years on Count I and three years on Count II, with strict conditions, and by the provision of drug and alcohol abuse treatment to Monnier. To the extent that harsh punishment is necessary to deter drug distribution that results in death, the strict liability character of the crime creates the incentive for drug dealers to warn customers of the strength of the drugs being sold and to refuse to supply drugs to particularly vulnerable people. The deterrent value of a longer sentence is marginal in the context of a strict liability scheme. All offenders are subject to harsh punishment without regard to relative culpability as long as death or serious bodily injury results from their actions.
Accordingly, the court finds Monnier should be resentenced to concurrent terms of imprisonment of two hundred forty (240) months on Count I and two hundred forty (240) months on Count II. An Amended Judgment and Commitment and Statement of Reasons in accordance with this Memorandum Opinion and Order will issue this date.
IT IS ORDERED:
1. Monnier's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Filing No. 214) is granted.
2. The Judgment in a Criminal Case (Filing No. 180) is hereby vacated.
18 U.S.C. § 3553(a)(1). The second factor requires the consideration of the general purposes of sentencing, including:
18 U.S.C. § 3553(a)(2). The third factor pertains to "the kinds of sentences available," § 3553(a)(3); the fourth to the Sentencing Guidelines; the fifth to any relevant policy statement issued by the Sentencing Commission; the sixth to "the need to avoid unwarranted sentence disparities," § 3553(a)(6); and the seventh to "the need to provide restitution to any victim," 18 U.S.C. § 3553(a)(7).
Filing No. 147, Final Jury Instructions, Instruction No. 25.
