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July 3, 2008

Two notable Eighth Circuit sentencing wins for federal prosecutors

Two rulings from the Eighth Circuit today reflect the reality that federal prosecutors still seem to prevail more often than not in tough sentencing appeals.  Here are links and unofficial summaries from ,the circuit's official opinion page:

US v. Femsteer, No. 06-2059 (8th Cir. July 3, 2008) (available here):

On remand from the Supreme Court of the United States for further consideration under Gall.  The district court committed procedural error and abused its discretion in sentencing defendant to 120 months because, in attempting to explain its reasons for varying downward 240 months from the bottom of the applicable Guidelines range, the court gave significant weight to irrelevant factors (defendant's age, the absence of a weapon in his prior crimes and his completion of probation) and failed to support the extent of its variance with sufficient justifications.

US v. Dodds, No. 07-3403 (8th Cir. July 3, 2008) (available here):

District court carefully considered the factors set out in 18 U.S.C. Sec. 3553(a), and defendant's sentence was not unreasonable; assuming, without deciding that the government misrepresented defendant's relevant conduct at sentencing, there is no evidence that the court considered those statements, and they are not grounds for resentencing.

A defendant did prevail on a sentencing issue, however, in US v. Anderson, No. 07-1181 (8th Cir. July 3, 2008) (available here), where the panel turned away the government complaints about the unreasonableness of a below-guideline sentencing in a white-collar case.

July 3, 2008 at 11:57 AM | Permalink


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Feemster is incredible. It completely disregards Gall! What's the deal with the 8th Circuit?

Posted by: Not the same | Jul 3, 2008 12:46:11 PM

Femsteer is wrong. I would re-petition to SCOTUS and ask them to GVR again in light of Gall. If SCOTUS does this, maybe the 8th will get the message.

First, the panel is trying to disguise its obvious dislike for the sentence's length (i.e. substantive reasonableness) by finding procedural error. This is an example of substantive reasonableness review in disguise.

Second, after Gall there are very, very few "irrelevant factors." And certainly "defendant's age, the absence of a weapon in his prior crimes and his completion of probation" should not be considered as such. They plainly come within the ambit of several 3553(a) (e.g. "history and characteristics of the defendant", "to protect the public from further crimes of the defendant"). And the careful analysis of 3553(a) engaged in by the district court, see slip at 4-5, must be respected.

The opinion's reasoning in rejecting the 3 reasons for variance can be attacked on so many levels. SCOTUS should GVR this case again!

And if SCOTUS doesn't want to GVR a second time in light of Gall, Irizarry makes clear that procedural error did not occur. After Booker and Gall (and contrary to the 8th Cir's belief that these are "irrelevant"), "there is no longer a limit...on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. ยง3553(a)."

Posted by: DEJ | Jul 3, 2008 1:05:19 PM

assuming, without deciding that the government misrepresented defendant's relevant conduct at sentencing


That was funny. Thank you Doug, I needed that today.

Posted by: BABALU | Jul 3, 2008 1:16:10 PM

By the way, the link for Dodds takes you to the Femsteer opinion.

Posted by: DEJ | Jul 3, 2008 1:47:20 PM

Let me just join in with the party here. Feemster would be funny if it wasn't so sad. Seriously, I don't believe that the judges even read Gall.

I won't comment further because DEJ nailed most of the main points.

I do hope this gets appealed yet again, although I doubt that the 8th will get the message. It's beginning to remind me of the 5ths attitude towards death penalty cases.

Posted by: Daniel | Jul 3, 2008 6:57:03 PM

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