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January 11, 2007

Eleventh Circuit affirms huge upward variance

I have gotten pretty used to the reality that, in Booker reasonableness review, most downward variances are picked apart by circuits when the government appeals, while nearly all upward variances are affirmed over a defendant appeal (evidence here and here).  But the Eleventh Circuit today got my attention by affirming as reasonable in US v. Turner, No. 05-14388 (11th Cir. Jan. 11, 2006) (available here), an upward variance that added 15 years to a sentence when the guidelines advised around 5 years. 

Trelliny Turner was convicted (with her boyfriend) of "multiple offenses arising out of her role in the theft of approximately $266,000 from a U.S. Post Office in Valdosta, Georgia."  She faced a guideline range of 51 to 63 months imprisonment.  At sentencing, she sought "a sentence below the range, [stressing that she] had no prior criminal history, that she had been gainfully employed during her adult life, that she had honorably served in the U.S. military, and that she was the mother of four children."  Obviously unmoved, the district court imposed a sentence of 240 months, stressing particularly a lack of remorse and a call in which the Turner and her boyfriend "discussed the willingness to murder federal agents during the execution of a search warrant at [her] residence." 

The Eleventh Circuit affirms this huge upward departure, asserting that " we cannot say the district court's sentencing rationale was unreasonable under Booker."  As is the norm, there is no express consideration of how this huge upward variance conforms to Congress's commands in section 3553(a) of the Sentencing Reform Act that a federal sentence be "sufficient, but not greater than necessary, to comply with the purposes of punishment."  Even if it was reasonableness to view the guideline range as unreasonable, was it necessary to quadruple the sentence for Turner?

January 11, 2007 at 06:14 PM | Permalink

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Comments

This case is truly disgusting. No allegations of any firearms or other weapons used in the theft. No threats during the theft. No one harmed at all. And the Court finds 20 years reasonable??? If 20 years is reasonable why not 30 or 50? Extremely disappointing; I wish I could ascribe it to "southern justice", but this happens all too often in all of the circuits.

Posted by: Bernie Kleinman | Jan 12, 2007 5:27:32 PM

Thanks for the comments on the case and taking notice. I assisted in writing Ms. Turner's brief, although my name wasn't on it because I wasn't admitted to the 11th Circuit at the time. John Beall is the lead attorney, and needless to say, we were most shocked by the Court's application of plain error review when the Bruton issues were discussed HEAVILY in the trial transcripts. Nice to see the case got published, but I would have preferred an unpublished victory. This was a real heartbreaker, but I'm working right now on the Petition for Rehearing En Banc, and I hope the Court takes an opportunity to re-examine several aspects of the case.

Posted by: Travis Smith | Jan 30, 2007 11:45:07 PM

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