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April 11, 2011

Rough day for defendants pressing sentencing appeals in Eighth Circuit

A set of opinions released today provide still more proof that, despite repeated SCOTUS post-Booker sentencing reversals, the Eighth Circuit continues to believe precious few defense sentencing arguments are convincing.  My friends cut and paste help me provide these unofficial summaries of three notable defense losses from this official circuit webpage:

United States v. Rocio Ortiz, No. 10-1101 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Riley, Author, with Bye and Melloy, Circuit Judges]:   No error in allowing representatives of retailers victimized by defendant's shoplifting scheme to testify at sentencing regarding national losses; district court did not err in departing upward from criminal history category II to category VI or in adding a further offense level for criminal history; where court indicated it would impose the same sentence and for the same reasons, any procedural error in not discussing intermediate criminal history categories was harmless; district court adequately considered the 3553(a) factors and possessed a keen awareness of its authority to sentence outside the guidelines.

United States v. David Mills Becker, No. 10-2263 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: District court's comments regarding his prior service on the North Dakota Board of Parole did not create a Rule 32 violation as the court's comments about what might happen in the state system were merely an academic discussion and did not affect its sentencing decision, which was based on the severity and nature of defendant's offense; district court did not err making defendant's federal sentence consecutive to his state time; Guideline Sec. 5G3.1(b) did not apply to defendant's sentence.

United States v. Victor Jones, No. 10-2667 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: Defendant's argument that his 188-month was unreasonable is foreclosed by his plea agreement which agreed to a sentence within a 188 to 235 month range; in any event, the sentence was not substantively unreasonable.

These summaries lead me to believe the Oritz case my be the most interesting and consequential of this bunch, but perhaps readers will help me see if there is anything especially important jurisprudentially within this troika of sentencing rulings.

April 11, 2011 at 02:38 PM | Permalink


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I was the defense attorney in Jones. What is odd about the opinion is that it doesn't expressly discuss the main argument I was making. Jones' criminal history showed someone who was a burglar/robber in his youth, then turning to drug dealing in middle age. He came as close as you can get to being a career offender without crossing the line, due to his burglary/robbery convictions being a little too old and a successful plea bargain of a possession with intent to possession. In order to avoid the mandatory life sentence due to his prior drug felonies, we agreed to an upward departure of one criminal history level and seven offense levels to place him where he would have been if a career offender.

The argument to the Eighth Circuit was that a sentence at the bottom of the new range was adequate to cover all of the 3553(a) factors. The District Court had gone to the top of the range and the sole reason given for going from 188 to 235 months was Mr. Jones' criminal history. Thus, it was argued that the additional 47 months was substantively unreasonable given that a sentence of 188 months would have been a substantial increase from the Guidelines 92-115 month range for the same reason.

The Court only gives brief mention (and no cites) to the two comparison cases where defendants with much worse criminal histories were given substantially lower departures for understated criminal history. The main case of comparison was United States v. Bradley, 2006 U.S. Dist. LEXIS 61127 (N.D. Iowa 2007), aff’d 261 F3d. Appx. 923 (8th Cir. 2008) (per curiam). The opinion simply does not discuss that comparison. In my view, the 8th Circuit has been doing its best to duck questions of unwarranted sentencing disparity.

The opinion makes several references to not raising procedural error. That was because there wasn't any procedural error.

Posted by: Webb Wassmer | Apr 12, 2011 12:57:19 PM

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