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January 16, 2008

Eighth Circuit gets the message from SCOTUS

The Eighth Circuit today in US v. McGhee, No. 07-1064 (8th Cir. Jan. 16, 2008) (available here), affirms a below-guideline sentencing is a way that shows it understands the meaning and import of the Supreme Court's work in Gall and Kimbrough.  Here's a snippet from the opinion (with cites omitted):

The government’s argument that the sentence is unreasonably lenient due to the absence of “extraordinary circumstances” fails in light of Gall....  Assuming the district court’s variance from the advisory guidelines range on the drug count could be characterized as “extraordinary,” we understand the Court’s opinion in Gall also to preclude a requirement of “extraordinary circumstances” to justify an “extraordinary variance,” for that was the only type of sentence outside the guidelines range to which this court had applied an “extraordinary circumstances” requirement.  Applying the “deferential abuse-of-discretion standard” described in Gall, and abiding by Gall’s direction to refrain from “proportionality review,” we affirm the judgment of the district court.

January 16, 2008 at 05:02 PM | Permalink


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Well, its about time. What about the hundreds or thousands of defendants that are currently serving much longer sentences than are reasonable under Gall? Are the right-wing pro prosecution judges on the 8th cir. led by former prosecutors Gruender and Colloton going to do anything about this? I bet they will sleep just fine knowing they reversed by substituting thier own views for the district court judges who granted variances based on Booker and the 3553(a) factors without giving these expereinced trial judges any deference whatsoever.This is a national disgrace.

Posted by: Jason Frank | Jan 16, 2008 7:31:22 PM

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