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May 30, 2008

Thoughtful sentencing opinion from the hearland to close out the week

I am pleased to call it a work week with the posting of an effective new opinion from Sentencing Hall of Famer Judge Joseph F. Bataillon in US v. Bennett, No. 8:07CR235 (D. Neb. May 30, 2008) (available for download below).  As is his practice, Chief Judge Bataillon covers lots of ground effectively and efficiently in this latest effort.  Here is one of a number of notable passages:

[F]or policy reasons, and because statutory mandatory minima dictated many terms of the Guidelines, the Commission departed from past practices in setting offense levels for such crimes as fraud, drug trafficking, and child crimes and sexual offenses.  Fifteen-Year Assessment at 15, 72-73; see Kimbrough, 128 S. Ct. at 567.  Consequently, the Guideline ranges of imprisonment for those crimes are a less reliable appraisal of a fair sentence. See Kimbrough, 128 S. Ct. at 574. In cases involving application of Guidelines that do not exemplify the Commission's exercise of its characteristic institutional role — basing its determinations on “‘empirical data and national experience, guided by a professional staff with appropriate expertise,’” — it is not an abuse of discretion for a district court to conclude when sentencing a particular defendant that application of the guideline will yield a sentence “greater than necessary”to achieve the purposes set out in § 3553(a). Kimbrough, 128 S. Ct. at 574-75 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)).

Download bennett_sentencing_opinion.pdf

May 30, 2008 at 04:24 PM | Permalink


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