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October 6, 2004

More proof the guidelines limit "windfalls"

I have explained previously here and here that I am more concerned about lowered sentences if the guidelines are made wholly advisory than if they are severable if (when?) Blakely is applied to the federal system. A decision I received today from the Ninth Circuit, US v. Antondo-Santos, No. 04-10095 (9th Cir. Oct. 6, 2004), confirms my view that at least some sentences could be far more lenient after Blakely if the guidelines are made wholly advisory.

In Antondo-Santos (available below), the Ninth Circuit reverses for the third time a significant downward departure for a (first-time) drug offender. Indeed, this time, the Ninth Circuit granted the government's request for a remand to a different sentencing judge:

In light of the history of this case and our previous remands, it is clear that the district court would have substantial difficulty in putting out of its mind its repeated, previously-expressed views that a 66 month sentence is appropriate in this case.

Significantly, since it appears that the district judge in Antondo-Santos strongly (and perhaps accurately) believed that 5+ years for the defendant was "a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment as required by 18 USC 3553(a), I think the Ninth Circuit would have had to affirm the sentence in this case if the guidelines were simply advisory. Food for thought.
Download Antondo-Santos.pdf

October 6, 2004 at 04:07 PM | Permalink


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