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December 8, 2006

Eleventh Circuit balks about consideration of post-sentencing behavior

In a per curiam opinion, the Eleventh Circuit in US v. Lorenzo, No. 05-16119 (9th Cir. Dec. 8, 2006) (available here) suggests that the district court's consideration of post-sentencing behavior is never an appropriate consideration at a Booker resentencing.  Because Lorenzo is a short opinion dealing with a quirky (though perhaps quite common) re-sentencing situation, I do not want to read too much into its reversal of a district court's lenient sentence.  But the Eleventh Circuit's analysis hints that post-sentencing behavior is never a proper consideration, and I have a hard time squaring such a broad crude rule with the nuanced text of 3553(a).

December 8, 2006 at 04:39 PM | Permalink


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How do you square that with 18/3661?

Posted by: | Dec 8, 2006 5:02:54 PM

Can you elaborate on why you think the Eleventh Circuit's analysis is inconsistent with 3553(a)? It seems to me that the Lorenzo court is probably right that the sentencing commission never intended for post-sentencing behavior to be taken into account by 3553(a)(1), and, as the court points out, USSG 5K2.19 certainly appears to indicate a policy that post-conviction rehabilitation is never relevant at re-sentencing.

3661, if taken literally, might cause more of a problem for a court wishing to categorically exclude this kind of information, though.

(EDNY law clerk and former DAB student).

Posted by: James Dillon | Dec 8, 2006 5:29:32 PM

Section 3553(a) says, inter alia, that the "court shall impose a sentence sufficient, but not greater than necessary, ... to protect the public from further crimes of the defendant." Post-sentence behavior seems quite relevant to this determination.

Posted by: Doug B. | Dec 8, 2006 7:06:56 PM

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