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March 6, 2006
Fifth Circuit affirms significant upward criminal history departure
Following up some notable work late last week (details here), a split panel of the Fifth Circuit today in US vs. Zuniga-Peralta, No. 04-50575 (5th Cir. Mar. 6, 2006) (available here), affirms a significant upward departure in an illegal reentry case. The case is an interesting read, especially because Judge DeMoss in dissent asserts that "the case should be remanded to the district court for supplementation of the written order with specific reasons for the decision to upwardly depart." Judge DeMoss closes his dissent with this sentiment: "In the 'brave new world' of sentencing post-Booker, I would hope that sentencing judges would make a habit of giving written and specific factual reasons for any sentence above or below a properly calculated Guideline range."
March 6, 2006 at 03:56 PM | Permalink
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Chief Judge Jones found that sufficiency of informing the parties, aid the reviewing court and assisting the Sentencing Commission satisfy advisory sentencing,“we conclude that “while the district court might have stated its reasons for the upward departure with a higher degree of specificity in writing,” the district court’s written statement nevertheless was sufficient to inform the parties, aid the reviewing court, and assist the Sentencing Commission.” US vs. Zuniga-Peralta, No. 04-50575 (5th Cir. Mar. 6, 2006).
While ignoring the sufficiency requirements of ;
§ 3553(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— ,
and making the “shall state in open court”, merely advise as to what a court may do;
(c) Statement of Reasons for Imposing a Sentence.— The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and commitment,…
The Chief judge finds the “must be stated with specificity in the written order”, to mean “might”, the shalls are mays, the musts are mights, and prisoners loose all their rights. “[w]hile the district court might have stated its reasons for the upward departure with a higher degree of specificity in writing,” what was done “was sufficient” in the quasi-advisory reasonableness review process.
Thy will shall, may, must, might be done! Judge DeMoss thy will should be done.
Posted by: Barry Ward | Mar 6, 2006 4:55:41 PM
