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August 21, 2006

Eighth Circuit perpetuates a guideline-centric world

The Eighth Circuit has not been a big player in all the notable circuit Booker action lately (details here and here).  But today the circuit has two opinions that show, yet again, the Eighth CIrcuit's eagerness to perpetuate a guideline-centric world after Booker.

US v. Kiertzner, No. 05-1961 (8th Cir. Aug. 21, 2006) (available here), summarily reject a defendant's challenge to the reasonableness of a long (within-guideline) sentence in a felon-in-possession case involving seemingly benign facts.  Along the way, the Eighth Circuit's says that departures, and its per-Booker departure jurisprudence, remain central to the post-Booker world.

US v. Portillo, No. 05-3358 (8th Cir. Aug. 21, 2006) (available here), reverses a below-guideline sentence even though the district court expressly found that a 10-year sentence was "more than sufficient to punish to defendant for his first criminal offense, particularly given the defendant's young age at the time of the offense and the lack of violence related to the criminal conduct."  But because the sentencing judged stressed "one key witness's questionable credibility," the Eighth Circuit reversed because it believes "the district court cannot consider credibility as part of its § 3553(a) analysis."  Why this purported error could not be found harmless to save the time and energy of a resentencing is not explained.

August 21, 2006 at 12:24 PM | Permalink


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The appellate panel clearly explains and district court judges should listen and learn; “The court may still determine a witness’s credibility at sentencing [using a preponderance of the credible evidence], but if credibility is necessary to calculate the advisory guideline range, the district court cannot [later] consider credibility as part of its § 3553(a) analysis”. Id
The advisory guideline range calculation should be made after a “preponderance of the evidence” determination is made, so the PSI allegation does not establish an advisory guideline range, but a sentencing indictment from which the sentencing fact-finder, the judge, must consider the credibility of the witnesses and thereafter calculate the advisory guideline range.
The district court judge should, on remand, calculate the advisory guideline range on a preponderance of the credible evidence and resentence Portillo to the same, congressionally mandated, 10 year sentence.
I hope he does.

Posted by: Barry Ward | Aug 21, 2006 1:29:10 PM

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