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July 21, 2006

Eighth Circuit continues rebuilding guideline world

The Eighth Circuit continues to reverse neary every district court effort to bring better procedures and more humanity to federal sentencing.  Here are the official descriptions of its three reversals of below-guideline sentences on Thursday:

  • US v. Lee, No. 05-3526 (8th Cir. July 20, 2006) (available here): District court adequately articulated its reasoning for imposing a 54% variance, however, given the factual record, the court clearly erred by basing its variance primarily upon defendant's age and history of drug abuse as the record shows his characteristics in these areas are not exceptional and do not justify the variance.
  • US v. Okai, No. 05-3560 (8th Cir. July 20, 2006) (available here): Except in certain limited cases, Guidelines Sec. 6A1.3 requires sentencing courts to apply the Guidelines enhancements that are proven by a preponderance of the evidence, and the district court's failure to do so here resulted in an incorrect advisory Guidelines calculation; defendant's generalized constitutional objections to the sentencing enhancements were insufficient to serve as objections to the specific facts supporting each enhancement, and the factual allegations of the Presentence Report were, therefore, admitted for sentencing purposes; case remanded for resentencing.
  • US v. Robinson, No. 05-4268 (8th Cir. July 20, 2006) (available here): Extraordinary variance of imposing probation, when the low end of the applicable Guidelines range for defendant's firearm offense was 63 months, was not supported by extraordinary circumstances and was unreasonable; case remanded for resentencing.

July 21, 2006 at 08:42 AM | Permalink


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The Eighth Circuit's post-Booker jurisprudence is in patent opposition to the actual decision in Booker itself -- that is, the remedial decision. There is no basis in the statute, once sec. 3553(b) has been "stricken," to require an "extraordinary" justification for a sentence below the guidelines range, so long as the sentencing judge has genuinely "considered" that range along with the other ten considerations found among the seven subsections of 3553(a). I hope these defense attorneys will seek rehearing en banc to articulate the grounds on which such decisions as these violate controlling authority, will reach out to national organizations that might supply amicus support -- such as the Nat'l Assn of Federal Defenders, FAMM, and NACDL -- and then, if necessary, will petition for certiorari.

Posted by: Peter G | Jul 22, 2006 11:34:32 AM

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