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July 14, 2005

Eighth Circuit finds huge sentence increase reasonable

The Eighth Circuit, following up yesterday's record day with nearly 15 sentencing rulings, has another large batch of sentencing opinions today on this official opinion page.  And the court's decision in US v. Shannon, No. 04-2895 (8th Cir. July 14, 2005) (available here), jumped out from the bunch because the court concludes that a sentence of 58 months, when the applicable guideline range was 6-12 months, was not unreasonable.

Shannon involves a false statement charge and a defendant with a criminal history that the sentencing judge described as "abominable," and "some of the worst that I’ve seen since I have been on the bench." On that basis, the sentencing judge (who was sentencing post-Blakely and treating the guidelines as advisory while awaiting a ruling in Booker) increased the defendant's offense level from a sentencing range of 6-12 months to a range of 51-63 months in order to impose the sentence of 58 months' imprisonment. 

The Eighth Circuit concludes in Shannon that both the procedures and substance employed by the district court were sound post-Booker.  Here's a selection from the opinion:

The court considered several other factors that are appropriately weighed in arriving at an upward departure under USSG § 4A1.3.... The decision to depart upward was thus supported by several aggravating circumstances, and the totality of the circumstances leads us to conclude that there was no abuse of discretion in either the conclusion that departure was warranted or the extent of the departure.

We also conclude that the sentence imposed was reasonable with regard to § 3553(a).  In light of our conclusion that the upward departure from the guidelines was permissible, the sentence imposed was consistent with the now-advisory guidelines, and this is generally indicative of reasonableness. See 18 U.S.C. § 3553(a)(4), (5).  Even assuming the departure was excessive, however, the district court made clear that it would have imposed the same sentence even without regard to the sentencing guidelines, so any error in the guideline computation would not require a remand as long the sentence is reasonable with regard to § 3553(a). See Mashek, 406 F.3d at 1017.  Under Booker, as noted, the court has authority to tailor the sentence in light of statutory concerns other than the sentencing guidelines. 125 S. Ct. at 757.

For reasons similar to those discussed in connection with the upward departure, we believe that the sentence of 58 months' imprisonment is reasonable with regard to § 3553(a). The statute directs the sentencing court to consider, among other things, "the history and characteristics of the defendant," as well as the need for the sentence "to promote respect for the law," "to provide just punishment for the offense," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(1), (2).  The district court plainly believed that in view of Shannon's extensive criminal history and incorrigibility, a firm sentence was necessary to further these objectives. We believe this conclusion was not unreasonable.

July 14, 2005 at 12:01 PM | Permalink


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Hopefully someone will point this decision out to Alberto Gonzales.

Posted by: Matthew (3L, Cardozo) | Jul 14, 2005 12:21:15 PM

And to Rep. Sensenbrenner, too.

Posted by: dave | Jul 14, 2005 12:37:56 PM

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