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March 23, 2007

Busy sentencing times around the circuits

Though I surmise some sentencing work in the circuits is on hold as SCOTUS sorts through Claiborne and Rita, a quick tour of circuit websites reveals that parts of the sentencing show must still go on.  In fact, I have seen notable opinions covering sentencing issues today from the DC, First, Third, Sixth, Seventh and Eighth Circuits.  Here are the two items in today's released opinions that really caught my attention:

1.  Criminal history fans will want to check out the DC Circuit's work in US v. Andrews, No. 03-3030 (DC Cir. Mar. 23, 2007) (available here), which is another case debating what constitutes a "crime of violence" and has a long thoughtful concurrence by Judge Williams.

2.  Booker fans will want to check out the Sixth Circuit's (unpublished) work in US v. Kosinki, No. 05-2664 (6th Cir. Mar. 22, 2007) (available here), which reviews lots of post-Booker basics, but then makes this not-so-basic assertion about the scope of post-Booker discretion when ordering resentencing:

[T]he district court has discretion to calculate and consider the tax loss amount for sentencing purposes provided that 1) the district court does not consider itself required to do so, and 2) as long as the calculation is based on reliable information and supported by a preponderance of the evidence.  See United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005).... [T]he district court may — but is not required to — calculate or consider Defendant's tax loss amount... (emphasis added)

A district judge sitting by designation, concurring in Kosinki, questions the Kosinki majority's suggestion here that a district court after Booker has discretion not to calculate a loss integral to determining the applicable guideline range.   A helpful reader pointed me to this potentially important (though unpublished) decision.  A district judge in the Sixth Circuit might now point to Kosinki to support a decision not to bother working through particular guideline intricacies in a particular case.

March 23, 2007 at 03:59 PM | Permalink


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