1. CRITICAL CASE ANALYSIS

2. 1. Name: UNITED STATES of America, Appellant v. Malcolm G. HOWE.
US v. Howe, 543 F. 3d Court of Appeals, 3rd Circuit 2008

3. 2. FACTS
1. The defendant retired from the United States Air Force.
2. He was in the business of supplying goods to the United States Armed Forces.
3. He contracted with the Air Force to supply twenty embeddable computer encryption modules for $152,850.
4. He never purchased or delivered the devices.
5. He submitted electronically an altered straight bill of lading falsely indicating that the devices had been delivered.
6. The government paid him $152,850.

4. 2. FACTS
7. The defendant engaged in a sustained effort to obstruct the investigation in order to hide his crime.
8. He falsified documents.
9. He made untrue statements.

5. 3. TRIAL
The defendant was accused of wire fraud, in violation of 18 U.S.C. §§ 2 and 1343.
The defendant denied the charge

6. 4. APPLICABLE LAW
18 U.S. Code § Fraud by wire, radio, or television:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

7. 4. APPLICABLE LAW 18 U.S. Code § 3553 - Imposition of a sentence:
(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

8. 4. APPLICABLE LAW
U.S.S.G. Sentencing Guidelines issued by U.S. Sentencing Commission

9. 5. THE DECISION The jury found the defendant guilty.
The Government recommended a sentence of 18 months of imprisonment, arguing that ‘‘Mr. Howe utilized his knowledge of the contracting process, utilized his knowledge of the fast pay system in particular, in order to take advantage of that system.

10. 5. THE DECISION
The District Court sentenced the defendant to two years’ probation with three months’ home confinement. It also declined to impose any fine.

11. 6. REASONS FOR THE SENTENCE
1. An honorable and lawful life before, as attested by the many, more than 40 character letters.
2. Honorable military service before.
3. A well-regarded member of community.
4. Running business was difficult
5. A devoted husband, father, and son.

12. 6. REASONS FOR THE SENTENCE
“The Court believes you recognize the serious nature of the offense and are truly remorseful, as I think was well-evidenced by your statement, which I felt, quite frankly, was heartfelt today. This is also demonstrated by the fact that you immediately closed your business and seemed to be honestly committed to exploring new opportunities to provide for your family in a manner which, quite frankly, I think over the years has been quite extraordinary.”

13. 7. APPEAL: GROUNDS The Government: the sentence is unreasonable.
“the Court selected a sentence based on two clearly erroneous factual findings: first, that Howe committed a crime that was an ‘‘isolated mistake’’; and second, that Howe was remorseful.”
It is below the sentencing guidelines range. U.S.S.G. § 1B1.1 et seq

14. APPEAL COURT DECISION
The trial court was correct in sentencing.

15. 8 APPEAL COURT REASONS
1. “it was not clear error for the District Court to find that Howe made but an ‘‘isolated mistake’’ in perpetrating his crime.”
2. “In finding that Howe showed genuine remorse at sentencing, the District Court did not err at all, let alone clearly err.”

16. 8 APPEAL COURT REASONS
The statement of the defendant: “I have asked myself why am I in this predicament, after spending my entire life helping others and building a character of trustworthiness, integrity and love for all? The key reason I can find is that the Lord wanted to create a better person of me. This has been a life-changing experience for me. As a result of this experience, I have grown spiritually and developed an even closer relationship with my family. For this, I am extremely grateful. I am now faced with making amends for my poor judgment. And though I am prepared to accept the Court’s decision, Your Honor, I humbly ask that you afford me the opportunity to pay back the losses by assisting my community, thereby eliminating any further burden on my family.”

17. 8 APPEAL COURT REASONS
The Court: “While Howe’s statement might plausibly be read as insincere, we are not left with a firm and definite conviction that it must be read as such.”
“The Supreme Court in Gall also reiterated that ‘‘[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.”

18. 8 APPEAL COURT REASONS
“A defendant’s degree of remorse at sentencing may be considered as a basis for downward variance from the sentencing guidelines range under the statutory sentencing factors regardless of whether the defendant previously accepted responsibility.”

19. 8 ANALYSIS
1. The US courts accepted remorse as a reason to sentence below the range recommended by guidelines range.
Neither Guidelines nor any other law explicitly refer to remorse.
It is up to the trial court to establish the genuineness of remorse.

20. 8. ANALYSIS
The power of the court to pay attention to remorse is deduced from very general provisions of 18 U.S.C.A. § 3553(a).
The courts have significant powers to take moral considerations such as repentance in consideration even though it is not explicitly allowed by law.

21. 9 CONCLUSION
THE COURTS MUST INFLICT A MITIGATED PUNISHMENT ON REMORSEFUL OFFENDERS EVEN THOUGH IT IS NOT EXPLICITELY PROVIDED BY LEGISLATION
Reasons: this is required by the goals of rehabilitation and individual deterrence.