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June 22, 2007

Fifth Circuit channelling Rita majority(?)

Though surely authored before Rita, the Fifth Circuit yesterday released US v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (available here) reversing an above-guideline sentence because "the degree of departure in this case is substantial, and there must be more than mere lip service to the ยง 3553(a) factors to justify such a departure," and "the court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence."

June 22, 2007 at 10:37 AM | Permalink


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Would you agree that Rita overrules the Fifth Circuit's prior holding, which is noted in Walters, that "factors already accounted for by the Sentencing Guidelines are improper factors to consider for a non-Guideline sentence[?] United States v. Walters, No. 05-51634, at 5 (5th Cir. June 21, 2007) (citing United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007). It seems to me that when Rita lists the tasks that the sentencing judge performs and the tasks that the Commission performs there are a number of factors (apparently all or nearly all of the factors in 3553) that both are to consider. Rita v. United States, No. 06-5754, 2007 WL 1772146, at *6 (U.S. June 21, 2007). What do you think?

Posted by: doug | Jun 22, 2007 12:21:09 PM

They've sure upheld other substantial departures upward, so this is a good sign. Thanks for pointing it out.

Posted by: Gritsforbreakfast | Jun 23, 2007 2:03:47 PM

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