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January 9, 2006

Eleventh Circuit confirms within-guideline sentences are reviewable post-Booker

200pxpyrrhus Echoing recent decisions of the Seventh and Eighth Circuits, the Eleventh Circuit today US v. Martinez, No. 04-12706 (11th Cir. Jan. 9, 2006) (available here) clarifies that "that a post-Booker appeal based on the 'unreasonableness' of a sentence, whether within or outside the advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law pursuant to § 3742(a)(1)."  I suspect that, before long, the government will have officially lost this jurisdictional war in every circuit — i.e., I will be surprised if even a single circuit accepts the government's contention that circuit courts lack jurisdiction to review the reasonableness of correctly-calculated within-guideline sentence.

However, though the government lost this jurisdictional war in Martinez, it won the reasonableness battle — i.e., the Eleventh Circuit affirmed the defendant's within-guideline sentence as reasonable.  Indeed, it has now been almost a full year since Booker, and to my knowledge we still have not seen one single circuit court decision reversing a correctly-calculated, within-guideline sentence as unreasonable.  Unless and until the circuit courts start putting more teeth into reasonableness review, defendants are just claiming Pyrrhic victories when prevailing in the jurisdictional war.

January 9, 2006 at 05:07 PM | Permalink


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