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September 22, 2006

Eighth Circuit reverses yet another below-guideline sentence

Providing yet another variation on a tired story, a split panel of the Eighth Circuit today in US v. Likens, No. 05-3901 (8th Cir. Sept. 22, 2006) (available here), reverses a below-guideline sentence of three-years probation down from a guideline range of 15-21 months.  The first reason given for the reversal is that "the district court failed to consider the need to avoid unwarranted sentencing disparities [because the] sentencing guidelines ... continue to be guideposts that must be respected." 

Once again, I am troubled to see the guidelines get so much respect from the Eighth Circuit when a district judges goes below the guidelines, but not when a judge goes above them.  Just earlier this week, as discussed here, the Eighth Circuit affirmed in Zeigler an upward variance of 400% from a guideline range of 0-6 months to a sentence of 24 months' imprisonment and never even discussed concerns of unwarranted sentencing disparities.

Judge Bright dissents today in Likens, beginning with these sentiments: 

The majority's determination that the district judge erred when sentencing Mr. Likens to probation serves as yet another example of the upside down world of sentencing in the federal courts.

In this present case, the district judge determined that probation is right and just given all the circumstances. That was his reasoned judgment based on his significant experience and consideration.  To reverse this exercise of discretion in such a close case seems wrong.

September 22, 2006 at 01:25 PM | Permalink


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