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May 8, 2006

First Circuit finds huge upward variance unreasonable

As detailed here, reasonableness review rarely goes the defendant's way in the post-Booker world.  However, on the heels of the Eighth Circuit's reversal last week of a large upward variance in Kendall (basics here), the First Circuit today in US v. Zapete-Garcia, No. 05-1352 (1st Cir. May 8, 2006) (available here) finds unreasonable a sentence of 48 months in prison which was "eight times the maximum guideline-recommended sentence [of] zero to six months."

Appellate Law & Practice has complete and effective coverage of Zapete-Garcia here.  AL&P also discusses some other recent noteworthy First Circuit dispositions with sentencing issues here and here and here.  Also, while I am catching up, never forget that the defender blogs (assembled at this link) always merits a few checks each week for significant sentencing decisions or commentary.

May 8, 2006 at 03:58 PM | Permalink


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It caught my eye in the Zapete-Garcia opinion that the defendant was arrested in October 2004. I looked up the docket online -- he was detained without bail on 11/4/2004. So he's been in custody for about 20 months for an offense worth about 6 months at most. I'm wondering why this wasn't presented as an emergency appeal to expedite the resolution. You know what they say about justice delayed...

Posted by: bob jenkins | May 9, 2006 1:17:33 PM

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