South-Western Legal Studies in Business

Trial Judges May Not Stray Far from Sentencing Guidelines

Appeals court held it unreasonable for a trial judge to impose a sentence of 60 months’ probation when the Sentencing Guidelines recommend a sentence of 7-8 years’ in prison, possibly reduced to 5 years’ for cooperation in investigation. The judge must impose a sentence justified by the Guidelines.

Topic Criminal Law
Key Words

Sentencing Guidelines; Requirements; Court Sentence

C A S E   S U M M A R Y

Livesay, former assistant controller at HealthSouth, was convicted of fraud in financial records involving a $1.4 billion scandal. He pled guilty to conspiracy to commit wire and securities fraud and to falsification of financial information. The Presentence Investigation Report under the Sentencing Guidelines showed Livesay to have a level 28 offense, punishable by 78 to 97 months’ imprisonment. The government filed a § 5K1.1 motion under the Guidelines, recommending a reduction for cooperation in the investigation. That would reduce his imprisonment to 60 months. The district court imposed a sentence to 60 months’ probation. The government appealed the sentence. The appeals court vacated and ordered the trial judge to review the sentence to be consistent with the Guidelines. The judge again set punishment at 60 months’ probation, holding that sentence to be appropriate, given Livesay’s “history and personal characteristics.” The government again appealed the sentence.


Vacated and remanded. District courts are required to correctly calculate the appropriate advisory Guideline ranges. After doing that, the court may then consider imposing a more sever or more lenient sentence, which the court reviews for reasonableness in light of factors provided in § 3553(a) of the Guidelines. The departure from the Guidelines here is not reasonable. The probation sentence shows a clear error of judgment in weighing the sentencing factors by arriving at a sentence that lies outside the range of reasonable sentences given the facts of the case.


United States v. Livesay, 484 F.3d 1324 (11th Cir., 2007)

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