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May 10, 2005

8th Circuit sets out post-Booker review procedures

As detailed here and here and here, the Eighth Circuit is now setting the pace with post-Booker rulings, and today the Circuit in US v. Mashek, No. 04-2560 (8th Cir. May 10, 2005) (available here) discusses at length its process for post-Booker sentence review.  Here is a snippet of the Mashek court's discussion (with citations omitted):

[W]e believe the most appropriate standard for reviewing a district court's interpretation and application of the guidelines is the de novo standard.  We see no reason to deviate in this one instance from our normal practice of reviewing de novo a district court's legal conclusions. We would expect that if the Supreme Court intended to change fundamentally the manner in which we review a district court's legal conclusions, even in just one circumstance, it would have said so explicitly. Finally, we believe that applying the de novo standard of review to the application of the guidelines under § 3742(f)(1) before reviewing the resulting sentence for reasonableness ensures fidelity to Congress's goal of diminishing sentencing disparities while preserving the constitutionality of the nowadvisory guidelines.

In summary, post-Booker review of a timely raised challenge to the district court's interpretation and application of the guidelines is a two-step process. First, we will continue to examine de novo whether the district court correctly interpreted and applied the guidelines. We will also continue to review findings of fact for clear error.  Finally, we will review a district court's decision to depart from the appropriate guidelines range for abuse of discretion.  If the sentence was imposed as the result of an incorrect application of the guidelines, we will remand for resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the reasonableness of the resulting sentence in light of § 3553(a).

The 8th Circuit also decided some other sentencing cases today, and below I have reprinted the Circuit's official description of the one other published sentencing decision:

US v. Townsend, No. 04-3110 (8th Cir. May 10, 2005) (available here): Iowa state-court conviction could be counted in calculating defendant's criminal history as the conviction was not expunged for any of the reasons set out in section 4A1.2, cmt. n.6 - constitutional validity, innocence or mistake of law; district court correctly counted defendant's jail terms, imposed due to his previous contempts of probation, in calculating his aggregate prior sentence of imprisonment.

May 10, 2005 at 12:29 PM | Permalink


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Many federal judges (including, IMHO, many of the "Booker remedy" SCOTUS majority) want to just keep the Guidelines mandatory without admitting that they are mandatory. This 8th Circuit decision is a great example. So, the 8th will examine departures from the Guidelines for "abuse of discretion." How much discretion will district courts have in the 8th Circuit? If the Guidelines are truly advisory, then you'd think that district judges will have a lot of discretion, but don't bet your house on it. Under this decision, if a district court in the 8th Circuit "misapplies" the Guidelines, then the district court must resentence the defendant even if the original sentence was "reasonable." If the Guidelines were only advisory, this exercise would be a complete waste of time. But of course, the Guidelines ARE NOT just advisory. They are MANDATORY for district judges, while they are ADVISORY for appellate courts only.

The Booker remedial majority (in particular, the silent Justice G) knew what they were doing. It will only get worse before it will get better. Sadly, only Congress can eliminate SCOTUS' judicial hypocrisy.

Posted by: Mark | May 10, 2005 2:52:34 PM

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