United States v. Boucher

• Decision Date: 09 September 2019
• Docket Number: No. 18-5683,18-5683
• Citation: 937 F.3d 702
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Rene A. BOUCHER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

937 F.3d 702

UNITED STATES of America, Plaintiff-Appellant,

v.Rene A. BOUCHER, Defendant-Appellee.

No. 18-5683

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2019

Decided and Filed: September 9, 2019

ARGUED: Bob Wood, UNITED STATES ATTORNEY’S OFFICE, Indianapolis, Indiana, for Appellant. Matthew J. Baker, Bowling Green, Kentucky, for Appellee. ON BRIEF: Bob Wood, UNITED STATES ATTORNEY’S OFFICE, Indianapolis, Indiana, for Appellant. Matthew J. Baker, Bowling Green, Kentucky, for Appellee.

Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.

JANE B. STRANCH, Circuit Judge.

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path. Without warning, Rene Boucher—Paul’s next-door neighbor, whom he had not spoken with in years—raced toward Paul and attacked him from behind. The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia. Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment. On appeal, the Government argues that Boucher’s sentence was substantively unreasonable. We agree and therefore VACATE his sentence and REMAND for resentencing.

I. BACKGROUND

A. Factual Background

Paul and Boucher were neighbors. According to Paul, their relationship was unremarkable—they had not directly spoken in years, though they might wave to one another if they crossed paths on the street. From Boucher’s perspective, however, problems between them began in the summer of 2017, when he decided to trim the branches of five maple trees in Paul’s backyard that had grown over the Boucher/Paul property line. Sometime shortly thereafter, Paul dropped a bundle of limbs and brush at the edge of his property, apparently in the sightline of Boucher’s home. A few weeks passed and the bundle remained. Frustrated by the sight of yard debris, Boucher crossed onto Paul’s property, removed the limbs and brush, and hauled them off in dumpsters.

The following month, Boucher noticed another bundle of limbs and brush in roughly the same location. He hauled it off again. A few days later, a bundle reappeared. This time Boucher did not haul it away; he poured gasoline over the debris and lit a match. The ensuing fireball caught him by surprise. The debris was burned, but so was Boucher—he suffered second-degree burns on his arms, neck, and face.

When Paul got on his lawnmower the next day, Boucher was watching him from the top of a hill overlooking Paul’s property. According to Boucher, he saw Paul "blow all of the leaves from his property onto Boucher’s yard." Paul then got off his lawnmower, picked up a few more limbs, and turned toward the site of the burned debris pile. While Paul had his back to the hill, Boucher ran 60 yards downhill and hurled himself headfirst into Paul’s lower back. The impact broke six of Paul’s ribs, including three that split completely in half. After a brief fracas, Paul left the scene and called the police.

The Kentucky State Police were the first to respond. In an interview with officers, Boucher admitted to tackling Paul but denied doing so because of Paul’s politics. Instead, he described the assault as the culmination of "a property dispute that finally boiled over."

B. Procedural History

The Warren County Attorney initially charged Boucher with Fourth Degree Misdemeanor Assault under Kentucky law. He was taken into custody for a few days, after which the FBI intervened and the state charges were dropped. The Government then indicted Boucher on one count of assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Boucher pleaded guilty. His presentence report (PSR) recommended a five-level sentencing enhancement because Paul had suffered "serious bodily injuries." Boucher did not object. The five-level increase was partially offset by a three-level reduction for acceptance of responsibility, resulting in a Guidelines sentencing range of 21 to 27 months in prison.

At his sentencing hearing, Boucher called three witnesses. The first was Amy Milliken, the Warren County Attorney. Milliken testified that "many times in assault fourth cases, where ... you’re looking at someone older, [ ] who has ties in the community, [ ] who has a job, [ ] who is productive, [and] who has no criminal history, we have somewhat of a standard plea ... and that would generally be 30 days in the Warren County Regional Jail." But she also clarified that misdemeanor assault charges were appropriate for only "minor" injuries, and she did not know "the extent of [Paul’s] injuries" when she charged Boucher with Fourth Degree Misdemeanor Assault. Shortly after the attack, she had asked the Commonwealth Attorney (who is responsible for filing felony charges) if he would prefer to charge Boucher with a felony. He told her that "until [they] had all the facts, ... he wanted [her] to go ahead and issue the warrant for assault fourth" so that they could "get the defendant picked up and get the case moving." But before the Commonwealth Attorney could make a determination about felony charges, "federal prosecutors assumed [ ] jurisdiction" over the case.

Boucher’s second witness was Jim Skaggs, one of the developers of the gated community where Boucher and Paul live. Skaggs testified that "we had absolutely no problems" with Boucher, who "always paid his homeowner’s dues and kept a neat place." He had "no complaints" about Boucher as a neighbor but conceded that if he "had broken ribs, maybe [he would] feel differently about it." Boucher’s final witness was Father John Thomas, the priest at his church. Thomas testified that Boucher was "a friendly, open, kind, faithful person." He recalled that Boucher had visited sick parishioners "a couple of times" and had "helped with preparation for those who [were] interested in learning more about the Catholic faith."

Boucher and his counsel also spoke. Boucher told the court that he was "sincerely sorry" for the assault, apologized to Paul and his family, offered to pay for Paul’s medical expenses, and assured the court that he would "never do ... anything like this again." He added that he would "prefer not to go to jail for this situation" and "plead[ed] for the mercy of the court and forgiveness." Boucher’s counsel made a similar plea for leniency. Citing Milliken’s testimony, he argued that "if anyone else in Warren County [had gotten] involved in a scuffle over yard trash, ... we would be in the Warren District Court" and "the resolution would be a 30-day jail sentence ...." Counsel also emphasized Boucher’s status in the community:

A felony conviction carries with it, Judge, a very real stigma, and maybe to some people a felony conviction isn’t that big of a deal, but for a person who has become board certified in two specialties, who’s 60 years old, who is a devout member of his church, who’s the father of two wonderful children, and who lives in the nicest neighborhood in Warren County, by my evaluation, a felony conviction is a very real punishment in and of itself.

In lieu of live testimony, the Government responded by introducing two victim impact statements—one from Paul and another from his wife, Kelley. Paul described the extent of his injuries. Because displaced ribs "heal in a crooked fashion," "the free ends of [his] ribs grinded over top of and into each other with any movement," causing him "intense pain." He "had trouble finishing sentences for lack of air to expel," and "throughout the night [he] would pace [while] suffering from involuntary spasmodic breathing." After an attempted return to work 10 days after the assault, his "fever spiked to 102.6 F, despite being on medication to prevent fevers." He returned to the hospital for testing, and "[a] CAT scan showed pneumonia and fluid around [his] lungs." Antibiotics briefly resolved the illness, but a few weeks later "the fevers and spasmodic breathing returned." Another trip to the hospital revealed that Paul had "recurrent pneumonia." This second bout of pneumonia cleared after another round of antibiotics, but additional scans "still show[ed] an area of damaged lung." Paul wrote that he might "be at risk for future pneumonias" and that he still suffered from "chronic lateral back pain over the ribs."

Kelley likewise testified that Boucher’s assault began "a long odyssey of severe pain and limited mobility for" Paul. "A cough or hiccup would literally drive him to his knees, his face in a white grimace," and "[t]he trauma to his body caused him to suffer night sweats accompanied by uncontrollable shivering and shaking." Because Boucher remained the Pauls’ next-door neighbor after the attack, Kelley said "the home and backyard [she had] loved for 23 years no longer fe[lt] like my safe sanctuary." Every time she walked in their backyard she "wonder[ed] if he [was] watching out the windows of his house."

In its closing remarks, the Government argued that Boucher’s sentence should not be "about who the victim is" but should reflect "what was done to him, the physical harm, the being placed in continued fear to even be in his own backyard, [and] the apprehension of every time he sees Dr. Boucher in the neighborhood [wondering] what is going to happen." The Government also disputed Boucher’s claim that he would have served only a 30-day jail sentence if the case had been prosecuted under Kentucky law, maintaining that Boucher’s charge "would have been a felony" given the severity of Paul’s injuries.

The district court nevertheless sentenced Boucher to 30 days in prison. The court’s rationale rested primarily on two observations. First, it found that the confrontation was "strictly [ ] a dispute between neighbors." Although Paul said he had not spoken with Boucher in years and was aware of no tension between them, the court reasoned that "actions speak louder than words, and...