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February 16, 2005

The importance of, and another great example of, district court Booker explanations

One huge theme that developed at the USSC hearings this week (links here) concerned how critically important it is for district judges to fully explain and document their sentencing decisions (and provide this information to the USSC).  On this point, Judge Cassell again stressed the always show your work point, and the Commissioners and other witnesses repeatedly emphasized that effective assessment of the post-Booker world would depend heavily on how well district courts document and justify their decisions.  (Indeed, some astutely suggested that Congress would be more troubled by reports that judges were flouting their responsibility to carefully consider the guidelines than by any well-reasoned sentencing outcome.)

Confirming why it is so valuable to have such explanations is a decision from North Dakota Chief Judge Daniel Hovland in US v. Peach, 2005 WL 352636 (D.N.D., Feb. 15, 2005).  In a truly peachy opinion, Chief Judge Hovland provides an up-to-date account of the jurisprudential debates over Booker and even quotes USSC Chair Hinojosa's data report from his House testimony to spotlight that "federal district courts are sentencing pursuant to the Sentencing Guidelines in the overwhelming majority of cases." 

Adopting language from Judge Hinojosa's testimony, Chief Judge Hovland explains why he thinks that the "proper methodology for sentencing in the post-Booker environment is that federal district courts should give the Sentencing Guidelines substantial weight."  And then Chief Judge Hovland goes on, in the case at hand, to thoughtfully explain how he has "carefully considered the factors enumerated in 3553(a)" and "considered the nature and circumstances of the offense as well as the history and characteristics of the Defendant."  He then imposes a 100-month sentence, which was at the bottom of the applicable guideline range, as punishment for a life-threatening drive-by shooting by a defendant who apparently had a long criminal record. 

In addition to spotlighting and praising another thoughtful district court Booker decision, I stressed the case's facts because it confirms my hypothesis here that the guidelines will likely be closely followed for violent crimes committed by repeat offender and variances are likely to arise mostly in non-violent crimes committed by first offenders.  This instict led me to stress in my USSC testimony the importance of having post-Booker analyses especially attentive to the distinction between first-time, non-violent offenders and repeat, violent offenders.

February 16, 2005 at 04:11 PM | Permalink


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I have 2 brothers who are in prisons for 8 yrs now, one convicted by jury and the other plead guilty for bank fraud and money laundery, we still dont know if they booker and fanfan applies for their case even their lawyers said to wait please enlite me on this.
thank you.

Posted by: fabian | Feb 17, 2005 12:10:58 PM

Are you going to post the text of the Peach decision or provide a link to it? It has not yet been posted on the D.N.D. site or on LEXIS.

Posted by: Peter Schmidt | Feb 18, 2005 4:05:04 PM

Professor.....long time tax defense attorney practicing in the Philadelphia area. Very informative blog. I'm putting together my very first post-Booker Sentencing Memo for a client who pled to one Count of tax evasion.

Are there any prototype/sample Federal Sentencing Memos you (others) could link me to? The concepts are identifiable, but I'd love to see how they are being applied in the context of an actually filed Sentencing Memo.

Thanks again.

Posted by: MICHAEL S. ADELMAN, ESQ. | Feb 23, 2005 1:29:17 PM

is the link for Peach opinion.

Posted by: buarising | Feb 23, 2005 5:07:34 PM

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