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.