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March 30, 2006

Ninth Circuit affirms above-guideline life sentence

In a thorough opinion, the Ninth Circuit today in US v. Mix, No. 05-10088 (9th Cir. Mar. 30, 2006) (available here), affirmed an above-guideline life sentence in a case involving a defendant who "committed numerous violent acts of sexual and physical assault against his live-in companion."  The court in Mix discusses post-Booker sentencing and sentence review at length, and here is how it sums up its legal discussion:

In summary, it is both important and legally necessary under 18 U.S.C. § 3553(a) and under Booker that the district court conduct parallel analyses — first employing the Guidelines, and then considering non-guideline sentencing factors under § 3553(a). In many instances, there will be no non-Guidelines issues in sentencing; and, in those cases, review by this court will be de novo for accuracy as regards the calculation of Guidelines ranges.  In other cases, such as this one, substantial questions may arise as to whether or not the Guidelines adequately take account of the § 3553(a) sentencing factors.  Where, as here, the district court determines that the Guidelines do not adequately take account of § 3553(a) sentencing factors, the district court, may, in furtherance of Booker, impose a sentence outside and apart from the Guidelines.  Because the scope of review differs depending upon the sentencing methodology employed by the district court, it is important that district courts clearly and carefully differentiate between the findings and conclusions as regards the application of the Guidelines, and the findings and conclusions as regards the application of non-Guidelines factors pursuant to 18 U.S.C. § 3553(a).  Here, we are able to discern the sentencing methodology that the district court ultimately applied, and why it did so.  In light of the non-Guidelines, § 3553(a)(1) and (2) analysis performed by the district court, we conclude that the sentence imposed on Mr. Mix was reasonable.

Interestingly, though the Ninth Circuit has not formally addressed whether a within-guideline sentence gets a presumption of reasonableness, this account of post-Booker review seems to treat the guidelines as still the center of the post-Booker universe.  In particular, I find the assertion that "[i]n many instances, there will be no non-Guidelines issues in sentencing" to be suspect and potentially harmful in light of my belief that Booker requires a less guideline-centric approach to federal sentencing.

March 30, 2006 at 01:25 PM | Permalink


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The More Things Change, The More they Remain the Same

Posted by: seaton | Mar 30, 2006 6:30:49 PM

Whether deemed reasonable or not, in the absence of one of the other specified grounds, a sentence within the Guideline range is not appealable. 3742(a)(3)[above the Guideline range], (b)(3) [below the Guideline range]. So unless the sentence was imposed in violation of law [3742(a)(1), (b)(1), or the Guidelines were improperly applied [3742(a)(2), (b)], the Court of Appeals lacks jurisdiction.
Whether one may raise one of the appealable issues and failing to prevail on that still attack the "reasonableness" of a sentence within the Guidleine range poses an interesting question. One interpretation of 3742 is that Congress has indicated appellate courts are not to review sentences within the Guideline range.

Posted by: Thomas Yerbich | Mar 30, 2006 8:33:21 PM

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