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March 3, 2009

Eleventh Circuit upholds large upward variance to statutory maximum as reasonable

There are some appellate opinions that, though the analysis is lengthy, the start of the discussion provides a clear signal as to how the analysis is likely to come out.  The Eleventh Circuit's work today in US v. Shaw, No. 07-14693 (11th Cir. Mar. 3, 2009) (available here), is one of those opinions.  Here is how Shaw starts:

When Robert Shaw was thirteen years old he hurled a rock through a car windshield, sending shards of glass into his victim’s face.  Fifteen years later Shaw was speeding through Miami, with a cocked and loaded pistol and ski masks, on his way to burglarize a “drug hole.”  His rap sheet during the intervening years is long enough to require extra postage.  It shows 27 arrests involving 62 counts, and sentences totaling at least 105 months in spite of receiving one break after another from the system.  Indeed, from Shaw’s criminal record it seems as though he is determined to serve a life sentence, albeit on the installment plan.  The question this appeal presents is whether the current installment is a reasonable one.

Shaw, who pleaded guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), contends that it was unreasonable for the district court to vary upward from the guideline range of 30 to 37 months and impose the statutory maximum of 120 months. More specifically, he complains that the district court relied solely on its own ideas of “how sentencing purposes could best be achieved” instead of giving due weight to each factor outlined in 18 U.S.C. § 3553(a), and that it failed to provide a “significant” justification for the variance.

March 3, 2009 at 02:19 PM | Permalink


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Geez, Doug, looks like this guy got the urban discount.

Posted by: federalist | Mar 3, 2009 2:39:49 PM

On a quick skim, I have little problem with the conclusion that the sentence was within the district court's discretion, but I am a little concerned by the heavy reliance on "incidents" of criminal behavior that appear to amount to PSR summaries of state court arrests and charges that were then never pursued. The court seems to presume that each of these "incidents" was an instance where the defendant committed a crime and the system "gave him a break", but I cannot see why this explanation is a more likely one than, for exmaple, mistaken identity, a complete failure of proof, overzealous policing, etc.

Again, given all of the (apparently largely undisputed) evidence of past wrongdoing here, my snap impression is that it doesn't affect the outcome of the case. But I am nevertheless worried about the principles defining when, and to what extent, the courts can rely on mere charged conduct in justifying a sentence. It would seem that, at the very least, the court should have to make a determination by a preponderance of the evidence that the defendant actually committed the crime of arrest, before holding the arrest against the defendant in any way.

Posted by: Observer | Mar 3, 2009 3:33:20 PM

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