The 8th Circuit speaks (strangely) on reasonableness

In a late entry on another busy Wednesday, the Eighth Circuit in US v. Killgo, No. 03-3407 (8th Cir. Feb. 9, 2005) (available here), had occasion to address the new Booker appellate review standard of reasonableness.  But due to the procedural context and the court's avoidance of a core Booker/Blakely issue, the Eighth Circuit's discussion of reasonableness makes this review standard seem ever more opaque.

Critically, the Killgo court reviews the defendant's sentence for reasonableness even though the court refused to address the defendant's Blakely claim because of an appeal waiver (citing, inter alia, a similar post-Booker ruling by the Eleventh Circuit in Rubbo).  The Eighth Circuit explains in a footnote, "While Killgo's appeal waiver is sufficient to bar his Sixth Amendment claim, we recognize that it did not waive the application of a constitutional standard of review on appeal." 

Turning then to the substance of the defendant's claims about the district court's "relevant conduct" determinations, the Eighth Circuit explains:

We review the sentence imposed for unreasonableness, judging it with regard to the factors in 18 U.S.C. § 3553(a).  Killgo's appeal relates directly to § 3553(a)(4)(A); that is, he essentially claims that the reasonableness of his sentence is directly linked to the district court's misapplication of a relevant Guideline.  Stated another way, Killgo's argument on appeal is that the district court erred in determining relevant conduct under the Guidelines thus rendering his sentence of thirty-three months' imprisonment unreasonable. [FN 5]

[FN 5] Relevant conduct also relates to the "history and characteristics of the defendant," § 3553(a)(1), as well as the need to "protect the public from further crimes of the defendant," § 3553(a)(2)(C). Using relevant conduct in sentencing a defendant also aids in the "need to avoid unwarranted sentence disparities." 18 U.S.C. § 3553(a)(6).

The Guidelines generally provide that specific offense characteristics, such as the calculation of fraud losses, are determined on the basis of "relevant conduct," not the acts underlying the offense of conviction. See U.S.S.G. § 1B1.3(a)....  The district court's determination of Killgo's relevant conduct is entirely consistent with our holdings in similar cases. In this case, Killgo used Interjet as the common business front from which to solicit his victims.  Each case was premised on Interjet securing a lease for a transport grade aircraft.  Furthermore, Killgo executed substantially similar documents in setting up each separate fraudulent transaction.  The four acts occurred within months of each other.  In addition, Killgo operated the scheme with the same accomplice.  We hold that Killgo's dealings are part of the same common scheme or plan.  Accordingly, the district court properly considered the three dealings with Lineas Aereas Allegro, Southend Cargo, and Falcon Air as relevant conduct under § 1B1.3.  Based on the relevant consideration, we cannot say that Killgo's thirty-three month sentence is unreasonable or that the district court erred.