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January 28, 2005

More interesting tales of tough post-Booker sentencings

Once again, the papers are filled with interesting accounts of federal sentencings in the wake of Booker (some prior stories are recounted in this post).  And, once again, these accounts provide little basis for anyone to fear that federal judges are consistently using their new discretion to "go soft" on federal offenders:

  • This article from Pennsylvania details at length the sentencing by US District Judge James Knoll Gardner in a fraud case.  According to the article, the applicable guideline range was calculated to be 46-57 months imprisonment, and the federal prosecutor was urging a sentence at the top of the range and the defense was urging a sentence at the bottom.  But Judge Gardner went his own way and imposed a sentence of 84 months!   (Of course, as detailed in this post, I am not sure due process principles readily permit such a post-Booker sentence increase based on pre-Booker conduct.)

  • Similarly, this article from Colorado reports on a fraud sentencing in which the guidelines apparently provided for a maximum of 41 months, but the federal judge imposed a sentence of 60 months.

  • This article from Illinois reports on a bank fraud defendant being sentenced to 15 months' imprisonment by  US District Court Judge Michael McCuskey.  According to the article, 15 months was the sentence recommended by the federal prosecutor whereas the defense was urging a sentence of only 4 months.

  • This article about a New Jersey fraud case reports on significant prison terms handed out by US District Judge Harold Ackerman to many defendants, and also indicates that one defendant was given a sentence "10 months longer than the maximum suggested by federal sentencing guidelines."

  • And this article about another New Jersey fraud case indicates that US District Judge William Walls "brushed aside the large number of letters written by [the defendants] friends, business associates and employees that requested leniency" to impose a guideline sentence of 24 months' imprisonment.

January 28, 2005 at 07:17 AM | Permalink


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Tracked on Jan 28, 2005 11:29:50 AM


The only silver lining to these types of sentences is that they will probably be upheld on appeal as "not unreasonable," thereby generating authority that would logically require the appellate courts to uphold sentences below the guidelines range.

Some of these harsher sentences are undoubtedly the product of individual judge's philosophies but if they're the product of the reported strategy that they'll help prevent congressional action, it's a sad (albeit pragmatic) day for justice.

In my dreams, I imagine the Supreme Court insulating individual sentencing from congressional directives. I have a mandatory minimum sentencing coming up in a few months, with a very progressive and influential judge, where I'm going to try to revisit the argument that mandatory minimums are unconstitutional. After Blakely, there's reason to hope that an argument that might have appeared futile a year or so ago might now might lead to something positive. Any suggestions and arguments would be welcome, as would any offers for organizations to weigh in as amici.

Posted by: Alex E. | Jan 28, 2005 9:37:15 AM

Reading this, I noticed that all the cases involved plea agreements and not Blakely issues raised from a jury trial.

Posted by: Josh | Jan 28, 2005 10:16:26 AM

i had a lawsuit in the court of judge harold a ackerman, newark new jersey. purvin vs. ecfmg, bergens, ama, et al..civ 90-530.. why cant i get anyrecords of the case..i wrote the writ of certiorari, which attorneys for the other side ,stated off the record was excellent..why cant i get any copies of this if judge ackerman signed not for publication, which he did, is this the reason i cant find any records that i had a case go to the supreme court of usa. thank you jack purvin

Posted by: jack m purvin,m.d. | Mar 25, 2005 9:23:42 AM

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