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May 22, 2008

Lots of sentencing action in the circuits

A quick review of the circuit court websites reveals a whole lot of recent sentencing action: I see notable new rulings posted today coming from the First, Fifth, Sixth, Eighth and Eleventh Circuits.  Perhaps the most notable of the bunch are the Eleventh Circuit's work protecting a defedant's allocution right in US v. Carruth, No. 07-12060 (11th Cir. May 22, 2008) (available here), and the Eighth Circuit's rejection of the attempt by a district court to impose alternative sentences in US v. Desantiago-Esquivel, No. 07-1170 (8th Cir. May 22, 2008) (available here).

As long-time readers may recall, I wondered about and questioned (as did others) the use/encouragement of "alternative sentences" during the post-Blakely period of constitutional uncertainty in the federal sentencing system.  Against that backdrop, these statements coming from the Eighth Circuit in Desantiago-Esquivel are intriguing:

We do not read the Gall list of procedural impediments to be all inclusive.  The procedure utilized in this case, imposing alternative sentences, also constitutes a significant error and requires reversal.  Section 3551(b) states the types of authorized sentences and does not authorize alternative sentences. 18 U.S.C. § 3551(b).  The district court is only authorized to impose “a term of imprisonment.” 18 U.S.C. § 3551(b)(3) (emphasis added). District courts imposed alternative sentences only after Blakely in the event that the Guidelines were found unconstitutional.  See United States v. White, 439 F.3d 433, 434-35 (8th Cir. 2006) (discussing the district court’s imposition of alternate sentences). Further, the type of alternative sentences used in this case involves a change of fact — if Desantiago-Esquivel voluntarily stipulates to removal — that is wholly in Desantiago-Esquivel’s control, that occurs after sentencing, and that has significant legal consequence without any judicial oversight.  This is distinct from the post-Blakely alternative sentences that were wholly dependent on changes in the law.

Since a significant procedural error occurred, we will not speculate as to what sentence the district court might have imposed if it imposed a single sentence on Desantiago-Esquivel.  We leave it to the district court to impose what it considers to be a reasonable sentence in the first instance. To the extent either party believes the sentence to be unreasonable, we will consider the appeal issues at that time, taking into consideration the district court’s reasons for imposition of the sentence it imposes and the arguments of the parties.

When noting this case to me, a helpful reader rightly suggested that the Eighth Circuit's reversal here makes the creative federal sentence given yesterday to boy-band mogul Lou Pearlman (discussed here) look even more legally questionable.

May 22, 2008 at 04:26 PM | Permalink


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