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October 4, 2006

Confusing guideline-centric reasonableness ruling from the Fifth Circuit

The circuit have been relatively quiet on Booker matters lately.  I suppose this is good news, given that rulings like the Fifth Circuit recent work in US v. Roush, No. 05-10238 (5th Cir. Oct. 3, 2006) (available here), can produce more confusion than clarity about reasonableness review after Booker.

Roush involves sentencing in a tax evasion case that is complicated legally and factually both at the district and circuit level.  The case comes to the Fifth Circuit based on the defendant's appeal of his 27-month sentence, but the defendant seems to lose by winning.  The Roush panel finds the defendant's sentence unreasonable, but does so through an opinion that suggests that the defendant's should be higher, not lower, at resentencing.

Folks who know something about tax law — paging Paul Caron — might have a lot to say (and criticize?) about aspects of Roush.  I will just spotlight that Roush provides yet another example of a circuit framing and judging reasonableness in reference to the guidelines, rather than in reference to the provisions of § 3553(a).  As I have lamented the in prior posts here and here, circuits keep exploring how a sentence measures up relative to the guidelines, rather than exploring how a sentence measures up relative to the purposes of punishment set out in § 3553(a)(2).

October 4, 2006 at 03:01 AM | Permalink


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A sentence cannot be increased following an appeal by the defendant. The vacatur provision, 18 U.S.C. 3742(f)(2)(A), provides that when a defendant appeals a reviewing court can only set aside that sentence if it is unreasonable and it is "too high." The legislative history makes plain that this provision was designed so "that a sentence cannot be increased upon a section 3742[] appeal by the defendant." S. Rep. No. 98-225, at 155 (1983); see also United States v. Jones, No. 05-2289 (2d Cir. Aug. 9, 2006) (Walker, C.J., dissenting).

Posted by: | Oct 8, 2006 11:03:43 PM

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