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October 6, 2006

Interesting (and interestingly timed) Ninth Circuit reasonableness work

Today was the big en banc argument on reasonableness review in the Ninth Circuit (relevant links below).  I am hoping that someone in attendance at the argument might file a field report (although the audio should soon be available here). 

In the meantime, the Ninth Circuit issued an opinion today in US v Nichols, No. 03-30503 (9th Cir. Oct. 6, 2006) (available here), which interesting has an extended dicussion of reasonableness review.  Nichols is interesting for lots of reasons (and has lots of aspects).  It especially spotlights that prosecutors may often be far more lenient in the exercise of their discretion than judges.  In Nichols, the government "explicitly recommended a 30-month sentence" for a defendant with a "horrendous" criminal history.  But the sentencing judge, following 3553(a), concluded he needed instead to impose a sentence of 57 months.  The Ninth Circuit in Nichols finds this longer sentence reasonable, concluding with this sentiment:

The district court's approach was reasoned and addressed factors specified in § 3553(a).  More importantly, Nichols has not demonstrated that the district court overlooked any significant factor, gave improper weight to any factor or otherwise imposed an unreasonable sentence.  It may be that a 30-month sentence also would have been reasonable, but the issue here is whether the sentence imposed was unreasonable. It was not.

Recent posts about reasonableness review in the Ninth Circuit:

October 6, 2006 at 04:02 PM | Permalink


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Doug, the second sentence of your block quote sounds a lot like the general framework adopted by the Eighth Circuit in Haack and the Fifth Circuit in Smith/Duhon. Do you agree? Is that new for the Ninth?

Posted by: Josh Lee | Oct 6, 2006 5:20:09 PM

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