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February 27, 2006

Eight Circuit reverses three below-guideline sentences

The Eighth Circuit today issued three opinions which continue the ugly look of post-Booker reasonableness review: US v. Gatewood, No. 05-1865 (8th Cir. Feb. 27, 2006) (available here); US v. Shafer, No. 05-2049 (8th Cir. Feb. 27, 2006) (available here); US v. Claiborne, No. 05-2198 (8th Cir. Feb. 27, 2006) (available here).  As I have noted before here and here, it seems the circuit courts are creating de facto a kind of post-Booker mandatory minimum guideline system: all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable. 

In the troika from the Eighth Circuit today, the same panel led by Chief Judge Loken reverses three post-Booker below-guideline sentences.  All three opinions are similar in tone and content, and it seems that the Eighth Circuits is especially (and, in my view, appropriately) focused on the extent of the departures or variances in these cases.  (For example, the facts in Claiborne seem to support leniency, but the panel assails the "extraordinary reduction" given by the district court.) Now, if only the Eighth Circuit and other circuit courts would apply the same sort of scrutiny to within- and above-guidelines sentences as they are applying to below-guideline sentences.

February 27, 2006 at 12:26 PM | Permalink


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The Eighth Circuit sees the advisory guidelines as establishing mandatory prohibitions;
“But the Guidelines prohibit departures based upon drug dependence or abuse because "[s]ubstance abuse is highly correlated to an increased propensity to commit crime." U.S.S.G. § 5H1.4 (policy statement); see U.S.S.G. § 5K2.0(d)(1) (policy statement). While a guidelines departure prohibition does not preclude the district court from considering that factor when the issue is a variance under Booker, the Sentencing Commission’s policy statements show the need to explain why a particular defendant’s drug problems warrant extreme leniency.” U.S. V. Gatewood, No. 05-1865 (8th Cir. 2006)
I didn’t think advisory guidelines could prohibit anything. The judge must review the guidelines and consider the policy statement, but not to the point of prohibition, advice should be considered as guidance not establishing that which is forbidden. The statement in Gatewood, epitomizes the appellate courts view of the guidelines as prohibitions which are perceived as mandatory bans, forbidding the district courts treating the guidelines as advisory.

Posted by: Barry Ward | Feb 27, 2006 2:33:12 PM

Prof. Berman,

I have had the double good fortune of clerking for Judge Pratt in the Southern District of Iowa, and doing so during the Blakely to post-Booker period. What an education. It seems to me that the cornerstone in each of these cases is the premise contained in this refrain, which is included in each case: "The Guidlines were fashioned taking the other § 3553(a)factors into account . . . ." This conclusion allows the Circuit Court to discount any reason offered by a sentencing court as, well, already considered, and not sufficient to justify a sentence below the Guidelines range. The effect: de facto mandatory Guidelines.

Also troubling is the Circuit Court's venture into fact finding in U.S. v. Claiborne, No. 05-2198 (8th Cir. 2006). The sentencing court reasoned that, among other things, the small quantify of drugs justified a reduced sentence. The Circuit Court disagreed and stated: "Substantially reducing the resulting guidelines range sentence based upon drug quantity is unreasonable because it is A FAIR INFERENCE that Claiborne distributed additional quantities of cocaine during the six months between the two occasions interdicted by the police." (emphasis added). Without evidence, in an appellate court, and by a standard way below even a preponderance, Claiborne is dinged for more drugs than used at his sentencing. My education continues.

Posted by: John Moorlach | Mar 1, 2006 12:23:58 PM

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