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January 11, 2011

En banc Sixth Circuit struggles through relationship between 35(b) and 3553(a)

The full Sixth Circuit has a lot of interesting things to say about sentencing procedure and practice in a lot of opinions today in US v. Grant, No. 07-3831 (6th Cir. Jan. 11, 2011) (available here). Here is how the opinion for the majority gets started:

Defendant–appellant Kevin Grant pled guilty to possession of a firearm, conspiracy to commit money laundering, and operation of a continuing criminal enterprise. The district court sentenced Grant to twenty-five years in prison, the mandatory minimum sentence for those charges.  After Grant’s sentence was affirmed by a panel of this court, the government filed a motion pursuant to Federal Rule of Criminal Procedure 35(b) to reduce his sentence based on his substantial assistance in the prosecution of others.  The district court granted the motion and reduced Grant’s sentence to sixteen years.  Grant now appeals. He claims first that the district court erred by not considering the 18 U.S.C. § 3553(a) factors when deciding the Rule 35(b) motion.  Second, Grant claims that the district court erred in its calculation under the United States Sentencing Guidelines during his original sentencing. For the following reasons, we affirm.

This first paragraph from the principal dissent highlights why there is so much to this federal sentencing case:

In an apparent attempt to craft a tacit compromise, the en banc majority and concurring opinions shift their focus away from Petitioner and instead create an unmanageable legal standard.  Because the district court erroneously concluded that it may not consider the factors enumerated in 18 U.S.C. § 3553(a) on a Rule 35(b) motion, this Court should vacate the district court’s decision and remand for reconsideration.   Without deciding whether the district court was required to consider § 3553(a), it is clear, as the panel majority found, that a district court is not prohibited from doing so.  In finding that it was prohibited from doing so, the district court committed legal error.  I therefore respectfully dissent.

January 11, 2011 at 11:25 AM | Permalink


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