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May 11, 2006

Eighth Circuit reverses yet another downward variance

While a number of circuits have not yet even issued an opinion in any post-Booker downward variance cases, the Eighth Circuit today in US v. Bradford, No. 04-3493 (8th Cir. May  11, 2006) (available here), delivered its sixteenth(!) reversal of a below-guideline sentence as unreasonable.  Here are snippets:

The thirty-six month sentence imposed in this case represents a sixty-seven percent downward variance from the bottom of the applicable advisory guideline range....  The district court's observation that Bradford's criminal history score overstated his actual criminal history does not support this extraordinary variance.  It is true that Bradford's most recent felony conviction occurred nearly ten years before the arrest in this case.  That fact, however, even combined with some evidence of good behavior by Bradford in the interim, does not entirely eliminate Bradford's criminal history.  But even if Bradford had no criminal history and were placed in a criminal history category of I, his total offense level of twenty-five would leave him with an applicable guideline range of fifty-seven to seventy-one months.  The thirty-six month sentence imposed would still be a thirty-six percent variance from the bottom of the guideline range.

Although the sentencing guidelines are no longer mandatory, they must be considered by the district court in fashioning an appropriate sentence. We are still operating "within the framework of an advisory guideline scheme designed to reduce unwarranted sentencing disparities among similar defendants." United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2006).  It is not reasonable to expect that other similarly situated defendants are receiving similar extraordinary reductions....

May 11, 2006 at 11:44 AM | Permalink


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If the Guidelines are truly advisory, then district judge must have the discretion to choose to sentence a defendant below the applicable Guidelines range. In the Eighth Circuit, at least, it appears that below-Guidelines sentences have little chance of surviving appellate review. But we don't know how far this line of cases will go to eliminate "advisory Guidelines," because these cases involve fairly large gaps from the Guidelines minimum. I'd like to see an enterprising 8th Cir. district judge sentence a defendant to one month below the G. minimum -- and then two months in another case -- and then three months in another case, just to see if the Guidelines are "advisory in name only" in the 8th and what the limits are.

Any ideas on another CoA that is permitting some sentences, maybe even with large "variances," below the applicable Guidelines range?



Posted by: Mark | May 11, 2006 12:36:29 PM

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