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July 26, 2006

Fascinating First Circuit reasonableness opinion

In a decision with a little something for everyone (including folks who think appellate judges should be tasked with sentencing), the First Circuit in US v. Thurston, No. 05-2271 (1st Cir. July 26, 2006) (available here) today reversed as substantively unreasonable a below-guideline sentence in a Medicare fraud case.  As noted by AL&P here and DotD here, there are many interesting facets of Thurston, and even though the case finds a large variance unreasonable it has a good bit of pro-variance statements.  What makes the case more interesting and notable interesting is the panels decision to not merely remand for resentencing, but also to declare that a sentence of at least 36 months (in light of a guideline minimum of 60 month) is likely needed to survive reasonableness review.

UPDATE:  Carl Jones has started a new blog called Law Story, which seeks to provide the "stories behind the law."  In this post, Carl provides more details on the Thurston case and decision.

July 26, 2006 at 09:58 PM | Permalink


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If the district court on remand sentences the defendant to 35 months, do you think that the CoA would reverse on appeal?


Posted by: Mark | Jul 27, 2006 11:19:33 AM

As I stated before, the appellate judges find the district court judges lack reasonableness, and are therefore unable to issue a sensible sentence to the defendant they just heard evidence against in a trial or at sentencing. The trial judge may have seen something in the eyes of the guilty defendant or the tenor of his voice that may aggravate or mitigate the punishment, so the sentence is therefore not reasonable. The circuit judges on the other hand can sit in their appellate offices away from the crying, moaning and tear-stained faces and be more reasonable. We need the automated system the Guidelines envisioned, no trial just the facts; what did he do and what is the quantity of drugs or money, punch it in the appellate computer and get the reasonable sentence. Appellate courts must be better at determining reasonableness, because they didn’t set through Thurston’s trial, but on the bare record could see that 36 months was the mandatory minimum sentence Congress would have enacted had they passed a mandatory sentence for medicare fraud. District Judges should pass on the difficult task of issuing punishment to the appellate courts, then they could sleep better, they weren’t forced to issue a sentence they didn’t think was fair and the appellate judges can see how reasonableness review of their work is scrutinized by the public or even one day by the Supreme Court.

Posted by: Barry Ward | Jul 27, 2006 3:29:25 PM

“No trial, just the facts.” What does this mean? I think that this argument may be a bit problematic since issues of “what did they do” and “how much drugs” are often disputed, and there is a considerable amount of disagreement even as to the correct way to determine “drug quantity.” Granted, trials are long and inconvenient, and they often give defendants who have little in common with lawmakers (since they lack education and proper breeding) a chance to impeach the testimony of people offering pure “facts.”

The guidelines are hardly “automated.” They still require considerable judgment.

Posted by: S.cotus | Jul 28, 2006 7:56:41 AM

What does a trial have to do with sentencing in federal court, it is the relevant conduct determined at the sentencing hearing. Even if acquitted of 9 out of 10 charges, the sentence will include quantities alleged in the PSI. I only try to point out the absurdity of going to trial in front of a judge who was appointed because of his qualifications as a jurist, only to have an appellate panel that never saw the proceedings decide the judge was not reasonable. If my boss overrules every decision I make then why should I make the decision in the first place, let the appellate courts handle all sentencing and see how reasonable their sentences are. Trial have become no more than the opening act to the sentencing hearing, where the punishment is determined.

Posted by: Barry Ward | Jul 28, 2006 8:50:25 AM

S.cotus, you might be missing the sarcasm in Barry Ward's post.

Posted by: Anonymous | Jul 28, 2006 9:18:45 AM

Off topic FYI: Upward departure affirmed in 10th Circuit.


Posted by: ohwilleke | Jul 28, 2006 11:44:12 AM

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