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December 7, 2006

Tenth Circuit affirms another above-guideline sentence

I never cease to be amazed after Booker how readily circuits approve upward variances based on reasons they typically reject for downward variances.  The recent example comes from the Tenth Circuit's work in US v. Shaw, No. 05-6074 (10th Cir. Dec. 6, 2006) (available here).

In Shaw, the Tenth Circuit notes that "[o]rdinarily, the disparity between co-defendants' sentences is not grounds" for deviating from the guidelines.  Nevertheless, the Tenth Circuit in Shaw approves the district court's large variance above the guideline range so Shaw's sentence matched a co-defendant's higher guideline sentence.

Apparently a concern for co-defendant disparity is reasonable when it prompts a sentence increase, but is more suspect when it leads to a sentence decrease.  As Arsenio Hall might have said on his long-ago show, this is another aspect of the post-Booker world "that makes you go hmmm."

December 7, 2006 at 06:39 AM | Permalink


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