Another government blow-out in the Eighth Circuit

Those who like close sporting events should not make a habit of keeping score of criminal appeals in the Eighth Circuit.  The Eighth Circuit's official opinion page has six criminal dispositions today, and the government pitches a 6-0 shutout.  And the six cases include two in which the Eighth Circuit affirms an above-guideline sentence (though this is not, I suppose, surprising: as this list partially documents, over 90% of above-guideline sentences have been affirmed in the Eighth Circuit, even though nearly 90% of below-guideline sentences have been reversed).

The most interesting decision may be US v. Zeigler, No. 05-4001 (8th Cir. Sept. 18, 2006) (available here), in which the court affirms an upward variance of 400% from a guideline range of 0-6 months to a sentence of 24 months' imprisonment based on the defendant's criminal history.  Zeigler is interesting because the Eighth Circuit affirms an extraordinary variance without even discussing its precedents indicating that extraordinary facts are needed to support such a variance.  I do not think this omission was accidental, since the facts in Zeigler hardly seem extraordinary and the variance seems based on the district judge's policy disagreement with how the guidelines calculate a criminal history score.  Apparently policy disagreements with the guidelines are okay as long as they lead to sentence increases, not decreases.

Zeigler is a worthwhile read not only to see how readily a circuit court will approve rejection of the guidelines to move a sentence upward.  In Zeigler, Judge Hansen concurs to emphasize the important distinction between departures and variances in the Eighth Circuit (a distinction which, I must note, has been deemed obsolete by the neighboring Seventh and Ninth Circuits).  Judge Hansen urges his colleagues "not to commingle" its analysis of departures and variances. 

Meanwhile, Judge Bye concurs to urge his colleagues "to take a critical look at the disparity in our treatment of upward and downward departure cases."  Unfortunately, I think Judge Bye's call for review commingles departure and variance cases.  Ahh, the joys of the post-Booker world.