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February 20, 2005

A questionable 8th Circuit affirmance

An insightful reader has reminded me that, in addition to all the late week circuit Booker action spotlighted here, the Eighth Circuit's affirmance of a guideline sentence in US v. Lussier, 2005 U.S. App. LEXIS 2735 (8th Cir. Feb. 17, 2005) (available here), merits mention and some pondering.

This Lussier case is notable because, without any detailed exploration of new appellate review standards, the Court purports to apply a post-Booker "reasonableness" standard to affirm a district court's pre-Booker sentence.  In a fairly cursory opinion, the Lussier court begins its review of the district court's pre-Booker sentencing decisions by citing Booker in support of this statement of the standard of review: "We give deference to a district court's sentencing decision and will reverse a sentence applying the Guidelines only if it is unreasonable."

But after this mention of Booker, the Lussier court proceeds to analyze the case on review as if Booker did not change federal sentencing realities.  The court relies on pre-Booker precedents as it assesses (and affirms) the district court's judgment that the defendant had not met his burden of establishing an entitlement to a sentencing reduction under USSG 2K2.1(b)(2) providing for a reduced offense level if an illegal firearm was possessed "solely for lawful sporting purposes or collection."  In so doing, the Lussier court does not address the (quite significant) possibility that under the new Booker sentencing system, the district court might have sentenced the defendant much differently — indeed, might have been obliged to sentence the defendant much differently — in light of the 3553(a) factors.

As I read Justice Breyer's remedy opinion, a reviewing court's task post-Booker is not simply to review if guideline calculations were done reasonably, but rather to ensure that, in light of the 3553(a) factors, the sentence imposed was reasonable.  Since sentencing at the district court took place pre-Booker, no one had analyzed the Lussier case in light of the 3553(a) factors.  Consequently, even though the guidelines may have been calculated properly, I think a remand for reconsideration would have been more appropriate in this case.  (Notably, this seemed to be the Second Circuit's approach in US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005), where the court remanded on the basis of Booker and Crosby even after it concluded the applicable guideline range had been properly calculated.)

February 20, 2005 at 01:07 PM | Permalink


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03-3876 is an 8th Circuit pipeline case. Heard a few months ago in oral argument, held for Blakely then Booker decision and now Pirani will have to be decided before it can move forward I understand. White collar fraud case, no drugs or violence. Sounds like it was "won" on initial appeal but can't be moved forward until after Pirani on March 9th.

New Learner

Posted by: Cynthia | Feb 20, 2005 4:46:57 PM

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