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December 12, 2006

Eighth Circuit reverses another below-guideline sentence

So much for the Claiborne effect.  In this post, I speculated that Eighth Circuit's affirmance of a downward variance last week might be the echo effect of the Supreme Court's recent cert grant in Claiborne, the Eighth Circuit case involving a reversal of a downward variance.  But today, in US v. Grinbergs, No. 06-2369 (8th Cir. Dec. 12, 2006) (available here), the Eighth Circuit returns to its old ways when reversing a downward departure/variance. 

Grinbergs is a child-porn possession case in which a district judge imposed a 12-month sentence for a first offender facing a guideline range of 46 to 57 months.  Here are snippets from the panel's reasoning rejecting the reduced sentence:

Even when viewed through the lens of reasonableness, the district court's reliance on Grinbergs' mental capacity falls short of providing adequate justification for the large departure in this case....

[T]he district court found that Grinbergs was an atypical offender because he was making progress toward rehabilitation and because he was not likely to become an active sexual predator.  Neither of these circumstances was sufficient to take this case out of the heartland, however.... That Grinbergs had been regularly attending therapy sessions, had been avoiding the triggers of his pornography addiction, and had come to acknowledge the wrongfulness of his conduct are all commendable actions, but they are not the marks of extraordinary or atypical rehabilitation....

When measured against the factors in Ā§ 3553(a), the sentence was also unreasonable. Neither Grinbergs' reaction to his arrest and indictment nor the progress he has made in therapy set him apart from other offenders to any great degree.  There is also nothing unusual about the nature or circumstances of his offense. Even if the individually deficient reasons for the departure or variance are aggregated, they still fall short of providing the justification required for a departure of this degree.  Since there is nothing in the record that significantly differentiates this case from other cases of child pornography possession, the sentence imposed failed adequately to take account of Congress's stated desire to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."

December 12, 2006 at 12:09 PM | Permalink


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