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August 12, 2008

Ninth Circuit affirms above-guideline sentence with Kimbrough twist

In a long and intricate opinion covering lots of issues, the Ninth Circuit today affirmed an above-guideline sentence in US v. Tankersly, No. 07-30334 (9th Cir. 2008) (available here). Here are snippets from the start of the opinion:

Kendall Tankersley appeals a 41-month sentence imposed following her guilty plea to a three-count Information charging her with conspiracy to commit arson and destruction of an energy facility...

We must decide whether a sentence outside the applicable advisory guidelines range is per se unreasonable when it is based on the district court’s efforts to achieve sentencing parity between defendants who engaged in similar conduct: with some targeting government property and who were properly subject to the terrorism enhancement, and others targeting only private property who were not. We hold that such a sentence is not per se unreasonable.  We also conclude that the district court did not clearly err by declining to apply a fourlevel downward adjustment for a minimal role in the offense. See U.S.S.G. § 3B1.2(a). In light of the district court’s proper application of the statutory factors set forth in 18 U.S.C. § 3553(a), we hold that Tankersley’s 41-month sentence is reasonable.

August 12, 2008 at 10:12 PM | Permalink


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Despite the length of the opinion, the framework is the correct one and the one that should have been adopted by the 6th Circuit.

(1) Is the district court's final sentence per se unreasonable? At this stage the appeals courts owes minimal deference to the district court.

(2) If the answer is no, did the judge clearly error in the justification for the sentence. At this stage the appeals court owes a great deal of deference to the district court.

Since the court found nothing per se unreasonable about a three year sentence for helping to commit a million dollar arson AND there was no clear error on how the judge arrived at that sentence, it was upheld.

Exactly the way it should be done post-Gall.

Posted by: Daniel | Aug 13, 2008 1:57:43 AM

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