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January 10, 2008

Sixth Circuit affirms above-guideline sentence based on Gall

More proof that the Gall decision will not always benefit defendants comes today in US v. Klups, No. 06-1931 (6th Cir. Jan. 10, 2008) (available here), which affirms an above-guidelines sentence by relying heavily on Gall.  Here is how the opinion ends (some cites tweaked):

Klups argues that because his sentence is “twice the high end of the advisory Guideline range” the district judge had to offer a “compelling justification” for the sentence. Prior to the Supreme Court’s opinion in Gall, we held “that the farther the sentencing court varies from the guidelines range one way or another, the more compelling the justification for that variance must be.”  United States v. Funk, 477 F.3d 421, 426 (6th Cir. 2007).  The majority opinion in Gall, however, “reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range . . . [as well as] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 128 S. Ct. at 595.  The Court in Gall explained “why the Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220 (2005).”  Id. at 594. Certainly, in considering the § 3553(a) factors in the course of determining “that an outside-Guidelines sentence is warranted,” the district judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.”  Id. at 597.  Gall, however, further clarified the distinction between the role of the district courts and that of the courts of appeals.  After Gall, “we no longer apply a form of proportionality review to outside-Guidelines sentences” ... United States v. Bolds, No. 07-5602, 2007 WL 4440403, at *10 (6th Cir. 2007).  We conclude, in the words of the Supreme Court in Gall, that “[o]n abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S. Ct. at 602.

January 10, 2008 at 10:09 AM | Permalink

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Comments

The Gall decision will have the downward effect in White collar non violent crimes maybe even some non violent first time drug offenses. This probably would have been confirmed with or without Gall.

Do you agree Gall will mostly effect White Collar?

Posted by: | Jan 10, 2008 12:27:49 PM

See Judge Posner's thoughts on Gall here in today's published opinion: http://www.circ7.dcn/tmp/9U0VUQYQ.pdf

Posted by: Dorah | Jan 10, 2008 3:58:11 PM

Posner's opinion includes this rather bizarre aside: "It is true that a sexual interest in teenage girls is not abnormal in the sense that pedophilia is; any female of reproductive age is a natural object of desire on the part of a male, whether in our species or any other."

Was that necessary? Is it even true? Is Posner now also a zoologist or biologist?

Posted by: Sentencing Observer | Jan 10, 2008 4:23:08 PM

Two points:

1. Aside from their one-factor-among-many status, wouldn't one expect the guidelines to have an anchoring effect on sentences post-Gall? What I mean is that guidelines calculations will have a gravitational pull on sentences simply by being the first number on the table by virtue of their inclusion in presentence reports. If such an anchoring effect exists, sentences as wide of the guidelines as this one seem especially unusual, and the reasons for these departures especially interesting.

2. It seems like the district court here was heavily influenced by the fact that while no mandatory minimum existed for this crime at the time it was committed, Congress later created a 5-year mandatory minimum for the crime (which it later increased to 10 years). The presentence report and the district court calculated the guidelines range as it would have been prior to the mandatory minimum to avoid ex post facto issues, but then the court used Gall to impose the new mandatory minimum anyway. As this blog has noted something like 243 times, you have to wonder what the Booker line is doing to the Ex Post Facto clause. It might or might not be reasonable to conclude that a given sentence should depart above the guidelines range because Congress later increased the relevant penalties, but isn't the Ex Post Facto clause supposed to take those kinds of reasons off the table?

Posted by: Clerk | Jan 10, 2008 5:09:32 PM

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