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January 15, 2008

Ninth Circuit issues (first?) Kimbrough circuit remand

Though perhaps other circuit have ruled similarly in other cases, the Ninth Circuit today in US v. Casteneda, No. 05-10372 (9th Cir. Jan. 15, 2008) (available here), issues a notable Kimbrough remand. Here is the key text of the ruling:

These statements [from the court at initial sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough.  Thus, the district court did not feel free to consider whether “any unwarranted disparity created by the crack/ powder ratio” produced a sentence “ ‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id. at 574-75.

We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence “greater than necessary” under § 3553(a).  As noted above, this issue comes before the panel as a Petition for Rehearing.  We grant the Petition for Rehearing with respect to the foregoing issue....

Though I might dispute characterizing the Kimbrough ruling as "extension" of  Booker, it is encouraging to see the Ninth Circuit correct its prior ruling here.

January 15, 2008 at 01:10 PM | Permalink

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