« Federal executions stayed due to lethal injection concerns | Main | Still clearing out the Booker pipeline »

March 7, 2006

Eighth Circuit affirms another large upward variance

Continuing a pattern detailed in this post (and in an informative comment), the Eighth Circuit today has yet again affirmed a significant upward departure and variance in US vs. Porter, No. 05-2342 (8th Cir. Mar. 7, 2006) (available here).  In Porter, the guideline range was 41-51 months, an upward departure took the range to 57-71 months, and the district judge ultimately imposed the statutory maximum of 120 months in a felon-in-possession case.

Disappointingly, the Porter opinion has three full pages explaining why the district court's upward departure was justified, but then only three sentences explaining why an additional "significant upward deviation" qualifies as reasonable.  And, not surprisingly, there is no direct discussion of how a sentence far more than twice the original guideline range satisfies Congress's plain instruction in section 3553(a) of the SRA that a district judge impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2).

The facts of Porter, which involve a serious state crime as well as the federal charge, make understandable why the district court desired (and the Eighth Circuit approved) to impose the maximum sentence permitted by law.  But Porter serves as another example of how discretionary sentencing systems allow defendants to be sentenced for crimes beyond those that are the basis for conviction.

March 7, 2006 at 01:59 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200d834aed0c869e2

Listed below are links to weblogs that reference Eighth Circuit affirms another large upward variance:

Comments

Look at your citation. Usually, the 8th Circuit doesn't issue 7th Circuit opinions.

Posted by: ohwilleke | Mar 7, 2006 2:38:20 PM

Thanks for the correction, now made.

Posted by: Doug B. | Mar 7, 2006 3:01:21 PM


If the statutory maximum is 120 months, the sentence in this case, how on earth is this defendant being "sentenced for crimes beyond those that are the basis for conviction?????"

Posted by: RL Swainston | Mar 8, 2006 12:22:04 AM

The offense for which Porter was convicted was being a felon in possession of a firearm. The facts that drove his sentence up, however, were based on state-law kidnapping (and related) offenses for which he was not convicted (in federal court anyway). Thus, he was "sentenced for crimes beyond those that are the basis for the conviction."

Posted by: JDB | Mar 8, 2006 8:39:01 AM

No, he was sentenced within the statutory range based on, among other things, the nature and circumstances of the offense and the history and characteristics of the defendant. Post Booker, there simply is no limit to what judges can consider in determining an appropriate sentence, and notwithstanding the hopes and wishes of the defense bar, this means (as posted here by the professor ad nauseum), that some defendants will receive sentences above the advisory guideline range.

Posted by: RL Swainston | Mar 8, 2006 3:40:08 PM

"No, he was sentenced within the statutory range based on, among other things, the nature and circumstances of the offense and the history and characteristics of the defendant."

The "nature and circumstances" of a felon in possession offense are exactly two things: (1) he was a felon and (2) he possessed a firearm. It has nothing to do with what he did with the firearm. Indeed, he need do nothing at all with it. My point (and Prof Berman's, I think) is that the driving force in Porter's sentencing was not his illegal possession of a firearm, but that he possessed it while engaging in several state offenses. The proper place for punishment on those offenses is in the state court system (as the judge seemed to indicate, ordering that this sentence run concurrently with any state sentence on those offenses). That would only come, presumably, after a trial or guilty plea that fully complied with the Sixth and Fifth Amendments and due process.

There is no Blakely/Booker Sixth Amendment problem with Porter's sentence, I agree. Whether it's good or bad policy (or it should be a Sixth Amendment problem) is another matter.

Posted by: JDB | Mar 8, 2006 5:15:17 PM

Whoops - that should read "Indeed, he need not do anything at all with the firearm to be guilty of illegally possessing it."

Sorry, folks.

Posted by: JDB | Mar 8, 2006 5:16:39 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB