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December 27, 2006

Two more notable Booker wins for the government

There is nothing especially notable about the government prevailing in a sentencing appeal after Booker; post-Booker statistics show that the government prevails on reasonableness review in the circuits roughly 99% of the time.  Nevertheless, two rulings yesterday are notable because of their facts and discussion of the applicable law.

From the Tenth Circuit, US v. Mateo, No. 05-2266 (10th Cir. Dec. 26, 2006) (available here), affirms a huge upward variance, affirming a sentence of 120 months up from a guideline range of 15 to 21 months.  Mateo reviews the circuit's post-Booker rulings at length; among many notable aspects is a concurrence by Judge Murphy complaining about the guideline-centric nature of the circuit's approach to reasonableness review.  Both defendants and Orwell fans should like this passage from the concurrence:

Nothing in either Booker or the plain text of § 3553(a) indicates that the sentencing factors relating to the Sentencing Guidelines have primacy over the sentencing factors not relating directly to the Guidelines.  Under this circuit's precedents, however, some of the statutory sentencing factors are apparently more equal than others.

From the Eleventh Circuit, US v. Bohannon, No. 05-16492 (11th Cir. Dec. 26, 2006) (available here), also reviews circuit rulings on reasonableness review in the course of affirming a long sentence over the defendant's objections.  Technically, a below-guideline sentence was at issue in Bohannon, but the facts highlight how easily a guideline sentence can be doubled through the alchemy of relevant conduct allegations.

December 27, 2006 at 08:52 AM | Permalink


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The most interesting thing about the 10th Cir. case is the concurring opinion by Judges Murphy and Kelly. The two believe there is an "irrationality of appellate review of sentences in th[e Tenth] circuit."

While this concurrence is written in an opinion that is reviewing an upward variance, the rationale should (I stress should) equally apply to downward variances as well.

On another note, I wonder whether this concurrence was motivated by Rita and Claiborne cert grants?

Posted by: DEJ | Dec 27, 2006 1:45:57 PM

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