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August 27, 2007

En banc Eighth Circuit ruling on departure particulars

Among many sentencing ruling appearing on this opinion page, the Eighth Circuit today issued a lengthy en banc decision in US v. Burns, No. 04-2901 (8th Cir. Aug. 27, 2007) (available here).  Here is the lengthy summary of the decision:

Determination of the value of the assistance a cooperating defendant provides law enforcement in any given circumstance must be viewed in light of the entire defendant behavior associated with that circumstance, and requiring more qualitatively impressive substantial assistance to justify progressively larger departures furthers the goal of reducing unjustified sentencing disparities while recognizing that situations exist at the tapering edge of the assistance bell-curve that justify departures that substantially exceed the Sentencing Guideline's range; here, the district court abused its discretion in granting defendant a 60% departure based on his substantial assistance, as the timeliness of his assistance and its truthfulness and completeness were not so exceptional as to merit the size of the departure; further, while the nature and extent of defendant's assistance was not inconsiderable, to grant such a large departure on this basis would leave little room for more substantial and extensive assistance by other defendants; district court did not err in using 360 months as the starting point for any departure, as the government's filing of a 5K1.1 motion did not waive the application of the mandatory life sentence which applied in the case.

Judge Bright, dissenting in part on the issue of the extent of the departure and concurring in part on the issue of the starting point, joined by Judge Bye.  Judge Bye, dissenting in part on the issue of the extent of the departure and concurring in part on the issue of the starting point, joined by Judge Bright.

August 27, 2007 at 11:06 AM | Permalink


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In the 8th circuit upward departures are routinely affirmed- even whoppping ones that more than double a defendant's sentence. This circuit, lead by former persecutors Gruender and Colloton and joined by a spinless core of former Republican activists micro-manage all downwared departures and give trial judges zero discretion. Have they even read Rita?

Posted by: George | Aug 27, 2007 6:58:02 PM

Professor B, please do a follow up column detailing the dissents. Judge Bright, for example, notes that the majority's ruling grants total deference to the prosecutor, and cites the fact the prosecutor never explained the reasoning for its position -- the position the majority opinion enforces.

Posted by: OMG | Aug 28, 2007 9:58:07 AM

The dissent by Judge Bright is masterful. I took a course from Judge Bright 35 years ago and attended his Objections At Trial seminar with Prof. Ronald Carlson in 1992. I am glad there is such an articulate conscience on the bench.

There is plenty of ammunition in both of these dissents for those of you who think the guidelines are counter productive and give all power to the executive.

I am wondering if Prof Berman could put up some excerpts of the dissent on the blog.

Posted by: M. P. Bastian | Aug 28, 2007 11:18:10 AM

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