« "Priority Test: Health Care or Prisons?" | Main | Plaxico Burress cuts a plea deal requiring two-year prison term for his gun possession »

August 20, 2009

Split Eighth Circuit discusses reasonableness review and cooperation discounts at length

The entire Eighth Circuit today in long opinions discusses the relationship between reasonableness review and substantial assistance discounts in US v. Burns, No. 04-2901(8th Cir. Aug. 20, 2009) (available here). All followers of federal sentencing discretion and review will want to find time to read all of Burns, though this unofficial summary from the Eighth Circuit opinion page provide an effective overview of the majority opinion:

[Judge Wollman, for the Court En Banc]  On remand from the Supreme Court for reconsideration of the court's en banc opinion in light of Gall v. United States.  For the court's panel opinion in the case, see United States v. Burns, 438 F.3d 826 (8th Cir. 2006). For the court's prior en banc opinion, see United States v. Burns, 500 F.3d 756 (8th Cir. 2007).  The government is under no obligation to apprise the district court with respect to the bases underlying its recommendation of a particular downward departure under 18 U.S.C. Sec. 3553(e) in the absence of a showing that the its recommendation was based upon an unconstitutional motive such as race or religion; Gall has not affected the limitations imposed by 18 U.S.C. Sec 3553(e) upon the district courts' authority to impose a sentence below the statutory minimum; the standard of appellate review laid down in Gall applies to the court's review of a sentence imposed under the provisions of 18 U.S.C. Sec. 3553(e); after putting aside all notions of exceptional/extraordinary circumstances, departure percentages, proportionality review and similar data-based standards of review, the question for the appellate court is whether the reduction granted the defendant is substantively unreasonable; here, the court could not say the sentence was unreasonable or an abuse of discretion, and it is affirmed.

Judge Bright, concurring, joined in part by Judge Bye.

Judge Colloton, dissenting, joined by Chief Judge Loken and Judges Riley and Gruender.

August 20, 2009 at 02:13 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Split Eighth Circuit discusses reasonableness review and cooperation discounts at length:


Well, I'd say the majority has the better argument here, at least as far as the abuse of discretion standard goes, as well as the duty of prosecutors to disclose their reasoning. I haven't seen enough substantial assistance sentencings to have an opinion on on whether the reduction can only be based on the degree of assistance.

I am however fairly surprised that the prosecution wouldn't make their reasoning available, if they did it would likely carry more persuasive force than just a bare number.

The dissent just appears to be trying to limit Gall and the other sentencing cases as much as possible, rather than reading them honestly. SCOTUS has spoken and district courts now have a great deal of freedom.

Posted by: Soronel Haetir | Aug 20, 2009 4:00:20 PM

"Second, the rule stated today suffers from another, potentially more serious,
fault. Information and experience are the strongest bulwarks against discretion’s slide
into caprice. I have no doubt that our district courts are experienced. The question
is whether they will have adequate information to properly exercise their discretion.
This is why I strongly disagree with a process that inherently restricts the efficacy of
judicial discretion by encouraging the government to withhold crucial information
from the district courts."

I am truly surprised to see this type of wisdom in a federal judge.

I concur with his assessment.

Posted by: Daniel | Aug 20, 2009 10:21:54 PM


I just see that as an area that should but need not be done. And like I said, if the prosecution were to provide more than just a number perhaps it would be followed more readily. Or perhaps they would be seen as just not counting cooperation for very much, in which case I can understand their reticence.

Posted by: Soronel Haetir | Aug 20, 2009 10:45:27 PM

I am a defense lawyer in civil cases and follow the 8th circuit cases closely and my new husband of a few years does a lot of criminal defense, especially white collar cases, so I read important criminal cases as well. Seems like these four dissenter, especially former U.S. Attorneys, Judges Colloton and Gruender, have rarely, if ever, met a goverment argument in a civil or criminal case they did not endorse. You can tell how they are going to vote 99% of the time or more by merely looking at the caption of the case. The dissent appears to me to be totally result driven and ignors the central holding of Gall. Also, why should a judge give any weight to an percentage recommendation when the government refuses to tell the judge how it got there? Certainly the Circuit, especially the dissenters, would be all over a judge who failed to state her resons for her ruling.

Posted by: SheliaB | Aug 21, 2009 7:14:47 PM


There are plenty of judges whose vote can be known with a fair degree of accuracy whom I would disagree with just as readily for their pro-defendant jurisprudence. Merrit of the 6th comes readily to mind.

Posted by: Soronel Haetir | Aug 21, 2009 9:31:46 PM


While you make a good point my husband says that the dissenters in Burns almost never, never vote against the government in a criminal case while Judge Merrit frequently votes in favor of the prosecution with many notable exceptions.

Posted by: SheliaB | Aug 24, 2009 5:12:43 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB