Sentencing: Upward variance; 18 USC § 3553(a) factors; The Assimilative Crimes Act; §§ 13 & 7(3); Substantive reasonableness; 40%t upward variance from the advisory guideline range; Whether the district court overemphasized defendant’s criminal history; Sentencing disparities; Blood alcohol concentration (BAC)

The court held that the district court did not err by varying upward from the Guidelines advisory range by approximately 40% in sentencing defendant-Axline where it offered an extensive explanation for why it found the § 3553(a) factors warranted it. While traveling at over 90 miles per hour in the Great Smoky Mountains National Park, Axline, who was 19 years old, drove off the road into an embankment, killing one of his 19-year-old passengers and significantly injuring another. His BAC was found to be 0.02, exceeding “the per se intoxication level for someone under 21.” He was charged with vehicular homicide and vehicular assault on federal lands. The Guidelines recommended a range of 37 to 46 months. The government moved for an upward variance, arguing the § 3553(a) factors warranted a higher sentence given his prior drug and alcohol related history and the need to deter drunk driving. The government argued that had Axline been prosecuted in state court, his sentence would have been more severe, and under the Assimilative Crimes Act, “state law is applicable to guide the proper punishment for conduct occurring on lands reserved by the federal government, such as the Great Smokey Mountain National Park.” The district court sentenced Axline to 65 months in prison, followed by 3 years of supervised release. He argued that the sentence was substantively unreasonable. Axline asserted that the district court placed too much emphasis on the seriousness of the offense where the Guidelines already accounted for this. The court disagreed, holding that “the Involuntary Manslaughter Sentencing Guideline does not necessarily contemplate the lethal combination of Axline’s decision to drink underage and his decision to fully accelerate his car at over 90 miles an hour on a winding mountain road.” The court also concluded that the “grouping rules” in Chapter Three of the Guidelines “do not necessarily contemplate the degree of severity attributable to multiple deaths or multiple injuries.” Further, the district court did not put undue emphasis on Axline’s minimal criminal history. The court concluded “the combination of his criminal history with his characteristics fairly paints a picture of a young man ‘display[ing] a pattern of intentional and reckless conduct leading up to the [instant] extremely serious felony offenses,’ further warranting an upward variance.” Finally, the court rejected his argument that his sentence created “‘an acute risk of unwarranted disparities.’” Affirmed.