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February 28, 2006

Second Circuit affirms above-guideline sentence

As I have noted before here and here, it seems that the circuit courts through reasonableness review are creating de facto a kind of post-Booker mandatory minimum guideline system: all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being deemed unreasonable.  Yesterday, as detailed here, the Eighth Circuit reversed three below-guideline sentences; today the Second Circuit affrims an above-guideline sentence in US v. Fairclough, No. 05-2799 (2d Cir. Feb. 28, 2006) (available here).  Here is a court's summary of its work in Fairclough:

The defendant-appellant argues that the District Court violated the Sixth Amendment and ex post facto principles when it applied United States v. Booker, 543 U.S. 220 (2005), to conduct that occurred prior to that decision and sentenced him to a term above the United States Sentencing Guidelines range established by his admissions.  He also argues that his sentence is unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a).  We hold that district courts do not violate ex post facto principles by applying the remedial holding of Booker to pre-Booker conduct, that the defendant-appellant's Sixth Amendment rights were not violated, and that the defendant-appellant's sentence was reasonable.

February 28, 2006 at 05:23 PM | Permalink


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What happened to Fairclough and others should make people realize that entering a plea leaves you at the mercy of the court “Fairclough pleaded guilty to a superseding indictment charging him with possessing a firearm after having been convicted of a felony on December 4, 2003, in violation of 18 U.S.C. § 922(g)(1). The plea agreement and Pre-Sentence Report stated Fairclough’s offense level under the United States Sentencing Guidelines (“Guidelines”) to be 12 and his Criminal History Category to be IV, corresponding to a range of 21 to 27 months’ imprisonment.” If the judge will not agree to a pre-plea PSR establishing the punishment to which a defendant will face upon pleading guilty, go to trial. If the courts continue to violate Sixth Amendment rights after a plea, then force their hand and everyone go to trial, they only deprive you of rights when it’s obvious you are willing to give up the right to a trail by jury. I went to trial and received a 235 month sentence, but I never waived any of my constitutional rights and one day it will mean something, it means something to me today.

Posted by: Barry Ward | Feb 28, 2006 5:42:53 PM

Surely it *is* a violation of Ex Post Facto principles, as applied to judicial decisionmaking by the due process clause, to impose on a defendant convicted of pre-Jan. 12, 2005, conduct a sentence higher than the top of the properly calculated guideline range, on any basis that would not have supported a valid upward departure under 18 USC 3553(b) and the Guidelines as they stood pre-Booker.

Posted by: Peter G | Feb 28, 2006 10:03:10 PM

Mr. Ward, I guess it "means" you're in jail for 235 months.

Posted by: RL Swainston | Feb 28, 2006 10:57:55 PM

If the 2nd Circuit can apply Booker to offense conduct that was decided prior to 1/2/2005, are they not applying it "retroactively?" In effect, is this not a violation of their mandate that Booker may not apply retroactively (to collateral proceedings)?

Posted by: Paul Kurtz, Federal Inmate Advocates | Mar 1, 2006 7:20:59 AM

Mr. Swainston, I just finished serving my sentence and I reviewed a lot of cases for fellow inmates who pled guilty and didn't like the deal they wound up with, most had waived any rights to appeal. I didn't win my appeal or 2255, and I didn't like my sentence, but I had the right to fight. As far as my sentence goes, there are numbers so high like 10, 15, or 20 years that amount to so much time, why would you give up all your appellate rights. In the beginning whether it's 10 years or 30 years, it seems like more than you can do, but I had a right to fight and I did and still am fighting for others as a certified paralegal.

Posted by: Barry Ward | Mar 1, 2006 7:49:36 AM

Defense attorney. But, the decision appears to indicate that the government's position Booker/Crosby is that the sentencing court can ignore the guidelines; i.e., that post-Booker and in following Crosby a sentence need NOT be within the Gudieline range. Doesn't this cut both ways?

Posted by: Bernie Kleinman | Mar 2, 2006 6:09:55 PM

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