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February 23, 2005

Another questionable 8th Circuit affirmance

Though the Eighth Circuit has an en banc hearing scheduled for next month to address plain error (details here), the court continues to affirm a number of sentences imposed pre-Booker in ways that are, in my view, quite puzzling and do not seem fully in step instructions set out in Justice Breyer's last paragraph in Booker.  Prior curious affirmances came in Lussier (discussed here) and in Killgo (discussed here), and the latest example is in US v. Little Dog, No. 04-1834 (8th Cir. Feb. 22, 2005) (available here).

Because the defendant in Little Dog apparently sought to raise and brief a Blakely/Booker claim for the first time on appeal, I would think the Booker claim would be subject to plain error analysis.  But the Eighth Circuit does not address plain error in any way in Little Dog, nor does the court directly address the defendant's assertion that the district court "would have sentenced him differently if the Guidelines were not mandatory," or review the defendant's 30-year sentence for reasonableness. (Recall that the Eighth Circuit in Killgo suggested it should still conduct a review for reasonableness even if it finds no Sixth Amendment error.)

Rather, approaching the case almost in a pre-Booker manner, the Little Dog court first notes that enhancements based on criminal history "need to be established by proof beyond a reasonable doubt," and then cites an oblique statement from the district court concerning the prospect of a downward departure for the defendant.  The court then concludes by asserting: "We find no discord between the district court's decision and Booker."

February 23, 2005 at 09:29 AM | Permalink


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Lussier, Killgo and Little Dog have something in common. Each opinion was authored by Judge Smith, and was joined by Judge Beam and Judge Benton. And each case dates back to the court's November 2004 sitting. Are these judges avoiding difficult Booker issues in order to work down their caseloads?

Posted by: pkb | Feb 23, 2005 12:21:40 PM

You made a slight typographical error in your dissertation on Little Dog. The Little Dog opinion stated that the enhancements for criminal history need not be established beyond a reasonable doubt. Your note indicates the opposite as it left out the word "not."

Posted by: Thomas Yerbich | Feb 23, 2005 2:58:31 PM

When I sentenced Mr. Little Dog, I used the guidelines as advisory only. In every sentence I have imposed since Blakely, I have held the mandatory guidelines to be unconstitutional. I have sentenced people based upon 18 U.S.C. 3553. taking into account, however, the guidelines as advisory. No judge in S.D. has applied the guidelines as mandatory since Blakely.

Posted by: Judge Kornmann | Feb 24, 2005 1:23:55 PM

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