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November 30, 2006

Sixth Circuit adds to split on Rule 32(h)

Adding to a circuit split that the Supreme Court may have to resolve, a split panel of the Sixth Circuit today in US v. Cousins, No. 05-3225 (6th Cir. Nov. 30, 2006) (available here) decided that it found "persuasive the reasoning of the circuits that continue to apply Rule 32(h) to all sentences that deviate from the Guidelines."   As Cousins notes four circuits have formally held that Rule 32(h) does not apply to Booker variances (the 3d, 7th, 8th and 11th), and now it appears that five have held that Rule 32(h) does apply to Booker variances (the 2d, 4th, 6th, 9th and 10th).  Not too long ago, there was talk of this split being resolved by the group that drafts the Federal Rules of Criminal Procedure through a post-Booker amendment to Rule 32(h), but rumor has it that such an amendment may not be forthcoming.

Cousins is also significant because the majority holds that "Cousins's sentence is unreasonable under Booker because the district judge failed to provide an adequate explanation for his imposition of a sentence with an upward variance."  The majority opinion, authored by Judge Moore and joined by an (out-of-circuit) district judge sitting by designation, is quite thoughtful.  So too is an interesting partial concurrence/dissent in Cousins coming from Judge Gibbons.

November 30, 2006 at 12:14 PM | Permalink


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I practice in the 2d Circuit. If you read US v Jones, 460 F3d 191, it is clear [at least to me] that there ain't no such thing anymore as a "departure". The Guidelines are just one of many factors to be considered by the sentencing court. All that exists are non-Guideline and Guideline sentences. Hence, there is no presumption of reasonableness [rebuttable or otherwise] to a Guideline sentence. I think the Sixth Circuit has it wrong here.

Posted by: Bernie Kleinman | Dec 1, 2006 8:38:42 AM

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