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July 15, 2006

Reasonableness patterns persist (and get noted) in the Eighth Circuit

The remarkable pattern of reasonableness review in the Eighth Circuit, where nearly all below-guidelines sentences get reversed and nearly all above-guidelines sentenced are affirmed, continued this past week with rulings in US v. Brown, No. 05-3896 (8th Cir. July 13, 2006) (available here), and US v. Meyer, No. 06-1283 (8th Cir. July 11, 2006) (available here) .

Brown reverses a below-guideline sentence and has some notable dicta about the crack-powder differential; Meyer affirms an above-guideline sentence and includes a notable footnote from Judge Heaney.  Here are highlights from that footnote:

In the year and a half since the Supreme Court found the mandatory federal guidelines regime unconstitutional in United States v. Booker, 543 U.S. 220 (2005), our court has affirmed twelve sentences that exceeded the recommended guidelines range, including the instant case, but reversed only one.  [Cites omitted]. Meanwhile, when it comes to sentences that are lower than the guidelines range, just the opposite trend has emerged. Our circuit has reversed sixteen of these sentences, and has affirmed only three. [Cites omitted].

Certainly, other considerations may reconcile the disparity in our court's disposition of these cases. Perhaps the United States Attorney does not regularly appeal downward variances, although the statistics indicate there are nearly as many appeals by the government as there are by defendants when a court sentences outside the guidelines range.  It could be that the guidelines, which our court has noted "are fashioned taking the other [18 U.S.C.] § 3553(a) factors into account and are the product of years of careful study," United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006), nonetheless regularly fail to account for factors which would warrant higher sentences.  I would hope that such a "careful study" as the Sentencing Commission has undertaken would have accounted for such factors.

Affirming upward variances at a rate of 92.3% while affirming downward variances at a rate of 15.8% could hardly be viewed as uniform treatment, and seems contrary to 18 U.S.C. § 3553(a)(6)'s concern with eliminating unwarranted sentence disparity.  It is consistent, however, with our circuit's disposition of sentence departures before Booker.  See United States v. Yirkovsky, 338 F.3d 936, 942-44 (8th Cir. 2003) (Heaney, J., dissenting) (noting that the Eighth Circuit affirmed upward departures at a rate much higher than with downward departures).  It is difficult to accept that § 3553(a)(6) is satisfied where a circuit treats sentencing appeals in a consistently disparate manner.

July 15, 2006 at 11:32 PM | Permalink

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