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January 29, 2005

More powerful Booker work from a district court

Just called to my attention and now appearing on-line is a recent district court opinion, US v Myers, 2005 WL 165314 (S.D. Iowa Jan. 26, 2005) (also available here), which provides broad and thoughtful Booker analysis.  In Myers, US District Judge Robert W. Pratt notes the distinct views of Booker reflected in Judge Adelman's Ranum opinion and Judge Cassell's Wilson ruling and explains:

This Court adopts Judge Adelman's view. To treat the Guidelines as presumptive is to concede the converse, i.e., that any sentence imposed outside the Guideline range would be presumptively unreasonable in the absence of clearly identified reasons. If presumptive, the Guidelines would continue to overshadow the other factors listed in section 3553(a), causing an imbalance in the application of the statute to a particular defendant by making the Guidelines, in effect, still mandatory.

After a long quote from the Ranum opinion noting how the requirements of § 3553(a) can conflict with aspects of the guidelines, Judge Pratt in Myers highlights:

In citing Ranum, this Court does not mean to be unduly harsh about the wisdom contained in the Guidelines, for wisdom is there.  Wisdom, however, also resides in the other statutory sentencing factors, but was not allowed expression under the former mandatory scheme.  Each of the factors enumerated under § 3553(a) is, in reality, an expression of our society's multiple interests in sentencing an individual.

Calling Booker an "an invitation, not to unmoored decision making, but to the type of careful analysis of the evidence that should be considered when depriving a person of his or her liberty," Judge Pratt proceeds to review thoughtfully the purpose factors of § 3553(a) in the context of what seems to be a remarkably minor gun possession case.  And, after finding that an "aberrant behavior" departure under guideline § 5K2.20 was sought by the defendant and not contested by the government, Judge Pratt concludes by explaining why the factors of § 3553(a) make a "term of imprisonment in this case is completely unwarranted," and why he imposes a sentence of probation "to deter others from committing similar acts."

January 29, 2005 at 09:32 AM | Permalink

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Comments

Dear Prof. Berman, Just received notice from the USSC that pet cert was granted and judgment vacated in Restrepo v. US, NO. 04-5106 with remand ordered back to the USCA 2nd Cir. Assume my client will ultimately get a re-sentencing hearing. Client received around 25.5 years after pleading guilty to a 6 kilo conspiracy in a case where there was no drugs, no weapons, no violence and def was a 1st offender! Poster boy for why FSG are uncon-l. Sentence should have been 10 years. I welcome any comments, thoughts or assistance. I am a CJA lawyer on this. Thanks. Conrad Ost Seifert, Old Lyme, CT

Posted by: Conrad Ost Seifert | Jan 31, 2005 10:10:47 AM

Dear Prof. Berman, Just received notice from the USSC that pet cert was granted and judgment vacated in Restrepo v. US, NO. 04-5106 with remand ordered back to the USCA 2nd Cir. Assume my client will ultimately get a re-sentencing hearing. Client received around 25.5 years after pleading guilty to a 6 kilo conspiracy in a case where there was no drugs, no weapons, no violence and def was a 1st offender! Poster boy for why FSG are uncon-l. Sentence should have been 10 years. I welcome any comments, thoughts or assistance. I am a CJA lawyer on this. Thanks. Conrad Ost Seifert, Old Lyme, CT

Posted by: Conrad Ost Seifert | Jan 31, 2005 10:11:53 AM

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