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July 7, 2006

Eleventh Circuit reverses below-guideline sentence

If you like crisp sentences of six words or less, you will enjoy the end of this introduction to the Eleventh Circuit's opinion today in US v. Crisp, No. 05-12304 (11th Cir. July 7, 2006) (available here):

As the comptroller of a corporation, Michael Crisp participated in a fraudulent scheme that bilked a bank out of nearly half a million dollars.  After being caught, he pleaded guilty to making false statements to a financial institution and helped the government prosecute a co-conspirator.  Grateful, the government moved for a substantial assistance departure.  The district court exceeded the limits of the government’s gratitude by departing to an offense level below the one that it had recommended.

The court then went even further, using its post-Booker authority to dip below the post-departure guidelines range, and sentenced Crisp to probation.  The government objected, pointing out that given the offense of conviction the law requires incarceration.  Persuaded of the legal correctness of the government's position, although not caught up in the spirit of it, the court modified the sentence to one of incarceration, or something meant to resemble it.  The court sentenced Crisp to five hours in custody of the Marshals.  Crisp had reason to be grateful. The government did not. This is its appeal.  We reverse.

Crisp is an interesting read, and it finishes with this intriguing conclusion:

Other courts have found that a district court's "unjustified reliance upon any one [§ 3553(a)] factor is a symptom of an unreasonable sentence." United States v. Rattoballi, __ F.3d __, __, 2006 WL 1699460, at *8 (2d Cir. June 21, 2006); accord [more cites].  That is what happened in this case.  The district court focused single-mindedly on the goal of restitution to the detriment of all of the other sentencing factors. An unreasonable approach produced an unreasonable sentence.

July 7, 2006 at 03:25 PM | Permalink


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The decision is interesting because the CoA says that the district court was unreasonable because it overemphasized one sentencing factor (the need to provide reimbursement). On remand, if the district court states that it is not overemphasizing one factor -- and then reinstitutes the original sentence -- does anyone doubt that that sentence will be overturned?


Posted by: Mark | Jul 7, 2006 4:56:49 PM

this case looks like it went too lenient with it's sentence....the question is, in a post-booker world, who is going to have the final say on the reasonableness of a sentence.....if a defendant receives a 67% reduction in his sentence, is the 33% that remains going to be reasonable? If it was 25% would that still be reasonable? Where does the legal line get drawn?

Is the appeal system going to fall back to a system where the luck of the draw is the most important thing?

Is this going to open the flood gates to add years to all newly resentenced defendants still on direct govt appeal from their booker resentnecing?

Posted by: D | Jul 9, 2006 11:25:54 AM

I'm worried about this whole thing turning into a nasty loop where even if a Judge does get his sentence back on remand and reaffirms it, it can get appealed again (I'm not a lawyer, so I'm not sure if it can get appealed again). If I am right, then the Judges my decide on their own to sentnence higher than what they want in order to avoid being overturned by the higher court.....this is not what SCOTUS had in mind with Booker.....they wanted to give the Judges the ability to sentence on a case by case basis as they are the most familiar with it.

How can you define reasonableness???

Posted by: D | Jul 12, 2006 10:01:35 AM

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