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May 2, 2006

Eighth Circuit reverses extraordinary upward variance

Through a relatively cursory, to-the-point opinion in US v. Kendall, No. 05-2863 (8th Cir. May 2, 2006) (available here), the Eighth Circuit today reversed a large upward variance.  Here is the heart of the analysis (with cites omitted):

Kendall ... argues his sentence was unreasonable under § 3553(a).  He notes the advisory range was twenty-seven to thirty-three months given his total offense level of twelve with, assuming he is not a career offender, his eleven criminal history points and thus criminal history category V.  Nonetheless, he was sentenced to eighty-four months, an increase of 155%, or more than eight offense levels, from the maximum guidelines range.  This increase is "extraordinary."

An extraordinary departure must be supported by extraordinary circumstances. The district court focused on the seriousness of methamphetamine manufacture and Kendall's criminal record in varying upwards.  To the extent the district court discussed the seriousness of methamphetamine manufacture, there is nothing which sets Kendall's case apart from any other methamphetamine case.  Moreover, as the district court noted, he was "low on the chain" and not actually involved in methamphetamine manufacture.

Regarding Kendall's criminal record: at 17, he was convicted of second degree burglary and stealing; at 22, he was convicted of careless driving and driving while impaired; at 29, he was convicted of driving while intoxicated; at 30, he was convicted of driving while intoxicated; at 32 he was convicted of the felony driving while intoxicated (persistent offender) and misdemeanor possession of a controlled substance.  This is not the type of extraordinary record to justify an extraordinary variance.

May 2, 2006 at 11:27 AM | Permalink


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In this case, though, the guidelines may do what the Court can apparently not do. The Eighth Circuit en banc has decided (since Kendal was argued) that DWI is a crime of violence. So, on remand, if Kendal's prior involve driving while intoxicated (as opposed to merely sitting in a running car) his reversed sentence will be within the applicable guidelines range and, under Eighth Circuit law, presumptively reasonable.

Posted by: Tom | May 2, 2006 11:48:07 AM

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