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April 1, 2005

8th Circuit affirms above-range sentence

In this post last week, I commented on above-guideline-range sentences imposed post-Booker, and in previous posts here and here I questioned whether due process/ex post facto principles permit a post-Booker sentence increase above the applicable guidelines range based on pre-Booker conduct.  In an unpublished decision Thursday in US v. Pablo-Lepe, No. 04-2837 (8th Cir. Mar. 31, 2005) (available here), the 8th Circuit affirmed an above-range sentence.

The 8th Circuit in Pablo-Lepe considered a sentence imposed before Booker, though the district court apparently had decided in the wake of Blakely to declare the guidelines advisory and in this case "chose to impose a higher sentence" than the guidelines.  In a three-paragraph per curiam opinion, the 8th Circuit affirms, stating simply that the sentence imposed "was neither unguided nor unreasonable." 

It is unclear whether due process/ex post facto issues were even raised in Pablo-Lepe, and these issues clearly were not addressed by the 8th Circuit's cursory per curiam opinion.  Nevertheless, I believe Pablo-Lepe stands as the first case in which an above-range sentence imposed under advisory guidelines has been affirmed.

April 1, 2005 at 01:56 AM | Permalink

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Comments

Your blog is of immense help to those of us trying to follow the circuit approaches to the aftermath of Booker/Fanfan. Plus, it was nice to see my Fourth Circuit case (U.S. v. Scott) featured today. Judge Bennett took seriously the Fourth Circuit's suggestion to impose an alternative sentence pre-Booker decision. He considered all the 3553(a) factors and imposed a sentence 16 months under the [mandatory] guidelines. Our Office has had some success (but not complete) in convincing our AUSAs to not oppose remands for imposition of the (so far) always lower alternative sentence.

Assistant Federal Public Defender

Posted by: Jeff Risberg | Apr 1, 2005 8:11:26 PM

I would like to know the status of my case
(#OR 02-84-RHK????) or No. 03-2762 in the
Court of Appeals (8th Circuit). How can I find
out if my case has been set on the District Court
calendar for re-sentencing?

Posted by: Raymond C. Leatham | Apr 5, 2005 8:37:42 PM

I would like to know the status of my case
(#OR 02-84-RHK????) or No. 03-2762 in the
Court of Appeals (8th Circuit). How can I find
out if my case has been set on the District Court
calendar for re-sentencing?

Posted by: Raymond C. Leatham | Apr 5, 2005 8:38:43 PM

MY FIANCE WAS SENTENCED TO 16 YRS FOR AGGREVATED ASSAULT WITH A DEADLY WEAPON AND I WOULD LIKE TO FIND OUT IF THERE IS ANY WAY TO GET THE SENTENCED REDUCED AND IF THERES ANY WAY TO LOOK FOR TECHNICALITIESSHE IS IN THE POLK COUNTY JAIL CASE NUMBER 19468 HER NAME IS CRYSTAL CHAPMAN ON HER CASE BUT HER LEGAL NAME IS CRYSTAL AGEE

Posted by: raY MORGAN | Apr 21, 2008 12:11:58 PM

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