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April 12, 2006

First Circuit en banc affirms above-guideline sentence

The First Circuit, sitting en banc, today approved an above-guideline sentence as reasonable in US v. Scherrer, No. 05-1705 (1st Cir. Apr. 12, 2006) (available here).  (I will have to soon update this post noting that the government is prevailing in nearly all reasonableness battles on appeal.)   The interesting majority opinion in Scherrer, authored by Judge Boudin (who also authored other recent First Circuit work on reasonableness), reaches this conclusion:

In sum, the district judge had a reasonable basis for exceeding the guideline maximum. The only close call is whether the amount by which he exceeded the maximum is also reasonable: the guideline maximum was five and a quarter years; the sentence imposed was eight years. Numerically, the jump is not vast; as a percentage it is considerable.  Deciding just how far a judge should vary from the range, where a basis for variance is made out, is quite hard to measure. In this case the sentence is not out of line with other upward variances in egregious cases.

Judge Lipez adds an interesting and thoughtful concurrence in Scherrer, which culminates with these sentiments:

Of all the important work done by the district courts, nothing is more important than their sentencing work.  With so much at stake -- for defendants, victims, prosecutors, and the public -- the district courts should take the extra time, which will be minimal, to respond in some detail to the specific arguments of the government and the defendant.  That will be time well spent.

April 12, 2006 at 04:09 PM | Permalink


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It's interesting that in some of the cases out there reversing below guidelines statements, the courts are willing to say that the court is required to state its reasons for going below the guidelines. In Scherrer, where the district court departed upward, the First Circuit endorsed the district court's method of merely giving lip service to the defendant's mitigation arguments ("taken into account") and sees no problem filling in the blanks by "inferring" the reasons why the court might have been willing to dismiss those arguments. Lipez' concurrence was fine but instead of saying, "Gee, it would be nice if the court had explained its reasons for the upward departure in light of the defendant's mitigation arguments," he had said, "Courts are required to address mitigating as well as aggravating arguments in the statement of reasons." Anyone else have any thoughts about this? I'm a defense attorney by the way.

Posted by: Jeff Levin | Apr 15, 2006 9:28:19 AM

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