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December 7, 2006

Man bites dog: Eighth Circuit affirms downward variance

Should we call this the Claiborne effect? Today the Eighth Circuit, the wake of the Supreme Court recent cert grant in an Eighth Circuit case involving a reversal of a downward variance, actually affirmed a significant downward variance in US v. Wadena, No. 06-2535 (8th Cir. Dec. 7, 2006) (available here).   The fact in Wadena are compelling (the defendant is an ill, older gentleman who committed fraud) and the opinion is really interesting.  Here is one passage that really caught my eye:

Although [four Eighth Circuit precedents] involved the reversal of downward variances that had resulted in probation when the Guidelines had called for imprisonment, they do not stand for a blanket rule that all such variances are unreasonable.  Such a rule would amount to the judicial elimination of a sentencing option that would otherwise be available under federal criminal statutes that do not impose mandatory imprisonment, including the statute at issue in this case.... That kind of categorical, mandatory approach to sentencing on the basis of judicially-found facts is precisely the type of sentencing regime the Supreme Court rejected in Booker.

The panel in Wadena goes on to distinguish on the facts its four prior precedents reversing downward variances, and does so with lots of dicta that defense attorneys will surely appreciate.

December 7, 2006 at 01:38 PM | Permalink


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Call me cynical, but this seems to be the classic case of the "convicted" being on "good behavior" while awaiting "sentencing" in the hope of "leniency." The only problem is such behavior does not usually last long after the sentence.

Convicted= The Eight Circuit, whose Claiborne case is pending before SCOTUS.

Good Behavior= Not being so pro-government in reasonableness review

Sentencing= SCOTUS's opinion in Clairborne

Leniency= Upholding the presumption of reasonableness

Posted by: DEJ | Dec 7, 2006 3:44:18 PM

Interesting. Also note the panel: Judge Melloy is known for being very fair-minded (and was a very good former trial judge), Judge Lay is as liberal as it gets in the 8th Circuit (and getting more and more so with age, I think), and then you've got Loken, who is pretty tough on criminals. The sentencing judge, Magnuson, is very highly regarded in the Eighth Circuit I think, so that may also have had an impact.

Posted by: (Former) District Clerk battling Booker | Dec 7, 2006 6:37:55 PM

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