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October 11, 2007

Split Sixth Circuit ruling upholding large upward variance

A divided Sixth Circuit panel this morning in US v. Smith, No. 06-5681 (6th Cir. Oct. 11, 2007) (available here), upholds a large upward variance. Here is how the majority opinion authored by Judge Griffin begins:

Defendant Ronald Russell Smith pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a).  After noting that Smith committed the robbery while on supervised release for two other federal felonies, had 22 prior state convictions, and continued to commit crimes while in custody, the district court sentenced him to a term of 132 months of incarceration.  The district court considered the advisory Sentencing Guideline range of 46 to 57 months, but concluded that a 132-month sentence was warranted because of defendant’s extraordinary criminal history and exceptional danger to public safety. Defendant now appeals his sentence as being unreasonable.  For the reasons set forth below, we affirm Smith’s sentence. In doing so, we hold that defendant’s above-the-Guidelines sentence is both procedurally and substantively reasonable, and thus the district court did not abuse its sentencing discretion.

Here is how the dissenting opinion authored by Judge Cole ends:

[I]n affirming the district court’s sentence as reasonable, the majority has departed from our central task in reviewing sentences–to ensure ‘“a sentence [is] sufficient, but not greater than necessary, to comply with the purposes set forth in’” section 3553(a).  Under our “proportionality review,” the record simply does not permit this Court to conduct a meaningful review as to whether an upward variance of 158 percent is proportionate to the instant offense or offender. Had therebeen a fuller explanation from the characteristically thorough, experienced, and competent judge who sentenced the defendant–a defendant who clearly has an extensive criminal past–then my review might have come to a different result.

October 11, 2007 at 09:53 AM | Permalink


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The Second Circuit vacated an above-Guidelines sentence today: http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTQ1OTEtY3Jfb3BuLnBkZg==/05-4591-cr_opn.pdf#xml=

Posted by: | Oct 11, 2007 10:57:57 AM

A person’s risk of committing another crime in the future, and that person’s accountability for having committed a crime in the past are two very different things. The former is forward looking; the latter is backward looking. Sentencing systems that mix the two are mixing apples and oranges. How can a judge today determine what a person’s risk of committing another crime will be five years from now. Certainly, insurance companies would not make that bet.

Posted by: Tom McGee | Oct 11, 2007 12:19:20 PM

it appears to me that this guy had alot of chances, and while the time is excessively high, the judge obviously had good reasons for it. Another problem is that this may be a statement to show what could happen without making the guidelines mandatory. I never thought I would say this, but the sixth circuit was right.

Posted by: EJ | Oct 11, 2007 7:45:28 PM

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