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March 16, 2005

Eighth Circuit finds downward departure sentence unreasonable

The Eighth Circuit today, in US v. Rogers, No. 04-1461 (8th Cir. Mar. 16, 2005) (available here), became I believe the first circuit to reverse a sentence post-Booker on the grounds that it was unreasonable.  The district judge in Rogers had departed downward on the basis of extraordinary rehabilitation from a guideline range of 53-61 months down to 5 years of probation.  In reversing, the Eighth Circuit explained:

The facts in this case do not show extraordinary or atypical rehabilitation justifying a downward departure.  Rogers's reuniting with family and remaining drug-free, while commendable, are not extraordinary or atypical.  See United States v. Patterson, 315 F.3d 1044, 1049 (8th Cir. 2003).  In the absence of extraordinary or atypical post-offense rehabilitation, the departure was impermissible. However, because the Guidelines are not mandatory, the sentence is reviewed for unreasonableness.

The sentence is unreasonable when measured against the factors of reasonableness set forth in section 3553(a).  The possessing-rifle-after-hunting is Rogers's second parole violation in eight months.  Earlier, Rogers was found trespassing in a restricted area at Truman Dam, while two men — also on probation for manufacturing a controlled substance — fished nearby with his son in a no-fishing area.  Trespassing with felons does not demonstrate respect for the law.  See 18 U.S.C. § 3553(a)(2)(A).

Rogers's second parole violation illustrates that parole/probation is not adequate deterrence.  See 18 U.S.C. § 3553(a)(2)(B).  He understood the terms of parole, yet knowingly possessed the rifle. Moreover, as the violations show, probation would not protect the public from criminal conduct. See 18 U.S.C. § 3553(a)(2)(C).

The sentence of probation does not adequately address the history and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1).  Aside from (admitted) use of marijuana, cocaine, and methamphetamine, Rogers has convictions for assault, stealing, resisting arrest, attempting to manufacture methamphetamine, and trespassing. While the district court was not bound to the suggested range of 51 to 63 months imprisonment, probation is unreasonable.

The sentence of probation does not properly consider Congress's desire to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(6). It is unreasonable to expect that defendants with similar records, guilty of similar conduct, would receive probation.

By the factors in section 3553(a), the district court's sentence was unreasonable. The judgment is VACATED and REMANDED for re-sentencing.

March 16, 2005 at 04:05 PM | Permalink


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Not a word about the standard of review for "reasonableness." It seems to me that discussion of "downard departures" after Booker is at least problematic. It's not clear from this opinion--to me, anyway--what is now advisory about the Guidelines.

Posted by: Michael Ausbrook | Mar 16, 2005 4:28:03 PM

For 8th today: 04-3407, 04-3010, 04-3312, 04-1461

Posted by: Learner | Mar 16, 2005 4:42:33 PM

That sentece was unreasonable. You cant expect to go to probation given that guideline range and a defendant with that history. This kind of sentence in cases like this is going to be a big problem and cause Congress to react. These type of decisions from judges are going to cause Congress to come in and kill the goose that laid the golden egg. It will only take a few high profile cases like this where something like this happens and the defendant does something terrible while on probation.

Posted by: Steve | Mar 16, 2005 11:06:53 PM

Michael notes a big problem with Rogers. If a non-guidelines sentence is "unreasonable" because it is "out of line" with the guidelines, then the guidelines are not "effectively advisory". Roger's opinion tends to make the guidelines "effectively mandatory" and only "technically advisory". If the Rogers decision stands, hasn't the Eighth Circuit gone some distance to invalidate the constitutional remedy declared by Booker's remedial majority?

Posted by: David Hemingway | Mar 17, 2005 12:58:13 PM

Unreasonableness? This panel treated it more like de novo review. If we wouldn't reach the same result, it is per se unreasonable.

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