10th Circuit Rejects the Consideration of Collateral Consequences at Sentencing

By: Zachary M. Nielsen

In an unpublished opinion, United States v. Morgan WL 6773933 (10th Cir. 2016), the Court found the district court’s analysis of collateral consequences to be impermissible and remanded for re-sentencing. Following the Sixth, Seventh, and Eleventh Circuits, it determined that collateral consequences to a felony conviction are irrelevant in assessing what sentence is appropriated under 18 U.S.C. § 3553(a). Collateral consequences, it held, are not part of the sentence.

Mr. Morgan was found guilty by a jury of one count of bribery 18 U.S.C. § 666(a)(1)(B). At the time of his criminal conduct, Mr. Morgan, a lawyer, was also a member of the Oklahoma State Senate. The advisory guideline range for his offense is 41 to 51 months in prison. The trial court sentenced Mr. Morgan to five years of probation and no jail time. It found the sentence appropriate, at least in part, because Mr. Morgan had already suffered public humiliation and would likely lose his law license following his conviction.
The Court held that a trial court’s consideration of such collateral consequences would create an illogical system favoring privileged defendants such as Mr. Morgan. Because it was based on improper factors, the Court “easily” concluded that Mr. Morgan’s sentence was substantively unreasonable. It remanded for resentencing and suggested that a prison sentence would have been more appropriate.
A concurrence by Judge Holmes emphasized that the sentencing guidelines were adopted in light of the collateral consequences that similar white-collar defendants face. Accordingly, he argued that absent extraordinary circumstances, such consequences to should not be used to rationalize the continued sentencing disparities between white-collar defendants and others.