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December 17, 2008

Eighth Circuit affirms reduced sentence on resentencing in light of Gall

Despite a well-deserved reputation for rigorous reasonableness review after Booker, the Eighth Circuit today in US v. Bueno, No. 06-4216 (8th Cir. Dec. 17, 2008) (available here), shows its softer side in the wake of Gall.  The full opinion in Bueno merits a close read, especially for those who consider using family circumstances as a basis for a below-guideline sentence.  Here are some extended passages from the panel's opinion that summarize the case and the Bueno holding:

After considering the above-described evidence, as well as Bueno’s testimony at the resentencing hearing, the district court found that Mrs. Bueno was in fact suffering from life-threatening diseases and maladies and that Bueno was the only person who could provide the continual care that she required. Accordingly, the district court imposed upon Bueno a sentence of five years probation, the conditions of which include house arrest with electronic monitoring, if that additional condition was determined by the United States Probation Office to be required, with Bueno being given the freedom to leave the home to go to work and to provide the necessary care to his wife.

The government objected to the sentence, arguing that Mrs. Bueno’s medical condition had been addressed, although in abbreviated form, in our decision in the first appeal and that the information regarding Mrs. Bueno’s medical condition had been presented in abbreviated form at Bueno’s initial sentencing. The government noted the seriousness of the offense of which Bueno had been convicted, pointing out that 71 kilograms of cocaine had been found in the hidden compartment of the vehicle that Bueno was driving at the time he was apprehended. It pointed out that in our opinion vacating Bueno’s original sentence, we held that the eighteen-month sentence did not adequately reflect the seriousness of the offense, afford adequate deterrence, or adequately avoid sentencing disparities among similarly situated defendants.  Finally, the government reiterated its position that a sentence within the Guidelines range of 108 to 135 months would be appropriate.

At the outset, one could well ask how, in light of our earlier determination that an eighteen-month sentence constituted an unreasonable departure from the applicable Guidelines range, it could plausibly be contended that a sentence of five years’ probation is not equally an unreasonable sentence. The short answers are the substantially more detailed evidence submitted at resentencing regarding Mrs. Bueno’s physical and emotional condition and the Supreme Court’s December 10, 2007, opinion in Gall v. United States, 128 S. Ct. 586 (2007)....

Although the sentence imposed in this case stretches the allowable downward departure under § 5H1.6 to its very limits, we cannot say that it is unreasonable, and thus it is affirmed.

December 17, 2008 at 12:47 PM | Permalink


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