February 8, 2007
Sixth Circuit affirms significant below-guideline sentence
Though unpublished (for reasons that are not clear), the Sixth Circuit has a major ruling today affirming a below-guideline sentence against a government appeal in US v. Fuson, No. 05-3782 (6th Cir. Feb. 8, 2007) (available here). In addition to encouraging everyone to check out this opinion, I also hope someone might move to have this potentially important ruling published.
UPDATE: A commentor asserts that the specific panel and outcome in Fuson "might well prompt a call for en banc review [but] the chances of such review are much less ... in the case of an unpublished opinion, which does not bind future three-judge panels."
February 8, 2007 at 01:58 PM | Permalink
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"Though unpublished (for reasons that are not clear) . . . "
Sadly, anyone familiar with the divisions on the Sixth Circuit knows why the decision was unpublished. A panel majority consisting of supposedly "liberal" judges has affirmed a sentence substantially below the guidelines minimum. To do so, it took pains to distinguish an on-point published opinion reversing a below-guidelines sentence under circumstances that were somewhat similar. In the Sixth Circuit, those events -- along with the tepid concurrence filed by Judge Gibbons (a long-time district judge) and the fact that the district judge is a Clinton appointee -- might well prompt a call for en banc review. The chances of such review are much less, however, in the case of an unpublished opinion, which does not bind future three-judge panels.
Posted by: anon | Feb 8, 2007 5:00:46 PM
I disagree. Had Judge Gibbons dissented, the case might be an en banc candidate. The fact that Judge Gibbons concurred actually insulates the case from en banc review on the Sixth Circuit. Compare Vonner, where Judge Siler vigorously dissented. In that case, the methodology Judge Martin attempted to force on the circuit is the real reason it's going en banc, not the result in Mr. Vonner's actual case.
Posted by: Anonymous | Feb 8, 2007 11:18:00 PM