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January 21, 2008

Sixth Circuit jurists struggling smartly with sentencing review

The Sixth Circuit deserved a rest during this long weekend.  On Friday, the Sixth Circuit capped a busy sentencing week with another split sentencing ruling in US v. Grossman, No. 06-2310 (6th Cir. Jan. 18, 2008) (available here).  In Grossman, the majority affirms a below-guideline sentence with Judge Sutton offering these insights about post-Gall sentencing realities:

Perhaps most importantly, Gall shows that the sentencing process involves an exercise in judgment, not a mathematical proof....

The government questions the reasons offered by the sentencing judge for lowering the sentence — namely, that he seemed to think that some of the enhancements bordered on double counting and that he categorically disagreed with some of the enhancements. To the extent the court viewed the guidelines as duplicative, that by itself would not justify a downward variance. But the defendant did not argue that the enhancements amount to impermissible double counting, and the record contains no evidence that they do. That is presumably why the court said that the enhancements “almost repeat one another” in this case, JA 27 (emphasis added), which speaks not to a problem of double counting but to a perception that the guidelines sentence is higher than this conduct deserves — a concern that Booker aptly allows a court to consider in applying advisory guidelines.

Writing in dissent, Judge Boggs says he "agree[s] completely with Judge Sutton’s analysis of the Gall and Kimbrough cases," but he is concerned that the district court's statements reveal a "clearly improper calculation" of the Guidelines which the majority improperly allows to be rescued simply by a "statement of reasons that could justify a variance." 

Some other recent Sixth Circuit action:

January 21, 2008 at 08:07 PM | Permalink


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