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May 24, 2005

6th Circuit discusses post-Booker requirements

Perhaps kicking off another big Booker day in the circuits, the Sixth Circuit this morning in US v. Jackson, No. 04-3074 (6th Cir. May 24, 2005) (available here), reversed a downward departure (granted before Booker) because the district court did not sufficiently justify its decision.  Along the way, the court spoke at length about how a post-Booker court must operate:

In this case, the district court decided to impose a sentence of three years of probation, including six months of home confinement, notwithstanding the fact that Jackson's criminal history category and base offense level placed him within a Guidelines range of twenty-seven to thirty-three months. In support of the imposition of this sentence, the district court provided a list of various characteristics of the defendant that it considered during sentencing. The district court's reasoning, however, did not include any reference to the applicable Guidelines provisions or further explication of the reasons for the particular sentence imposed.

We hold that, even post-Booker, the list provided by the district court, without any accompanying analysis, is insufficient to justify the sentence imposed, as it renders our reasonableness review impossible. Although we are fully cognizant of the fact that district courts are no longer bound by the Guidelines in the manner they once were, a fact which inevitably may empower district courts with greater flexibility in sentencing, we nonetheless find that, pursuant to Booker, we as an appellate court must still have the articulation of the reasons the district court reached the sentence ultimately imposed, as required by 18 U.S.C. § 3553(c).  In our view, Booker requires an acknowledgment of the defendant's applicable Guidelines range as well as a discussion of the reasonableness of a variation from that range.  Further, in determining the sentence, the district court must consider the advisory provisions of the Guidelines and the other factors identified in 18 U.S.C. § 3553(a).FN 3

FN 3 To the extent that the district court in resentencing relies on any factors which are deemed by the Guidelines to be prohibited or discouraged, see, e.g., U.S.S.G. §§ 5H1.1 (age), 5H1.4 (physical appearance or condition), 5H1.5 (employment record), 5H1.6 (family ties and responsibilities), 5H1.10 (race), the district court will need to address these provisions and decide what weight, if any, to afford them in light of Booker.

May 24, 2005 at 10:20 AM | Permalink


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Prof. Berman, out of you abundant kindness you always had provided a link to any case you expounded on. However, I can't find a link to Jackson.

Posted by: George | May 24, 2005 2:47:25 PM

By George, you are right. But now I have fixed the omission by adding the link. Thanks.

Posted by: Doug B. | May 24, 2005 3:04:25 PM

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