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April 12, 2007

Wonderful (but unpublished!?!) Fifth Circuit affirmance of below-guideline sentence

Thanks to a helpful reader, I am pleased to be able to spotlight a terrific (but unpublished) opinion today from the Fifth Circuit affirming a below-guideline sentencing in US v. Anderson, No. 06-40732 (5th Cir. Apr. 12, 2007) (available here).  Anderson involves a minor felon-in-possession charge, and anyone arguing for (or seeking to defend) a downward variance will want to read Anderson in full.  Here is a taste of its main flavors:

With due regard to the Sentencing Guidelines, we find that Anderson's sentence was reasonable.  The "nature and circumstances of the offense" reveal that Anderson was buying ammunition for his father and had no firearm compatible with the ammunition.  See 18 U.S.C. § 3553(a)(1).  The history and characteristics of the defendant, who had reintegrated into his community and showed no signs of repeating his long since past criminal behavior, also support leniency. Id.  The district court carefully articulated its reasons for this non-Guidelines sentence and had good reason to believe that Anderson was reformed and posed little risk to repeat his offense.  See United States v. Mares, 402 F.3d 511, 519 (2005)....

The government complains that too much emphasis was given to Anderson's work and family ties, but the sentencing transcript lends no credence to that argument.  The district court was concerned with Anderson's personal growth, the nature of his offense, and the importance of Anderson's job to his rehabilitation.  See 18 U.S.C. §§ 3553(a)(1), 3553(a)(2)(D).  While the court did note that it received many letters from prominent members of the community, the content of those letters largely spoke to the § 3553 factors discussed above, and the court did not substantially rely on the mere fact that Anderson had strong community ties.

While Anderson certainly violated the letter of the law, the circumstances of his offense and of his criminal history provide rational and legitimate reasons to sentence him below the Guidelines range. Just as we have upheld sentences more than thirty months above the applicable Guidelines range, see Smith, 440 F.3d at 705–06, we will not stop the pendulum from swinging the other way where the sentence is otherwise reasonable.

Perhaps the only disappointing aspect of Anderson ― besides the fact that DOJ even bothered to appeal a sentence that seems eminently reasonable to anyone not blindly committed to the guidelines ― is the Fifth Circuit's curious decision to have it "not be published."  Downward variances are rare in the district courts in the Fifth Circuit, and affirmances of such variances are even rarer.  I wish the pro-discretion pendulum would swing all the way to publication.  Perhaps counsel (or even a defender group) might move to have the Anderson opinion published; it deserves a place in F.3d.

April 12, 2007 at 01:28 PM | Permalink


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Keep in mind that unpublished opinions are now citable, even though they're not binding.

Posted by: Elson | Apr 12, 2007 3:12:58 PM

If the 5th Circuit is going to be nice to a criminal defendant, it doesn't want it's leniency and kindness being thrown back in its face by every defendant who follows. Unfortunately that desire doesn't "swing the other way" down here in the 5th....

Posted by: Bruce | Apr 12, 2007 4:57:05 PM

I'd be interested to know if the Fifth Circuit leads all circuit courts in pro-criminal defendant opinions that are unpublished.

Posted by: Elson | Apr 12, 2007 5:04:40 PM

At least we still have the (published) Husein case (478 F.3d 318) from the Sixth Circuit to cite. The analysis in that case is more thoughtful than that in Anderson in any event.

Posted by: anon | Apr 12, 2007 6:28:07 PM

I wonder what happens when people move to publish these opinions in the 5th?

Posted by: S.cotus | Apr 13, 2007 1:12:25 AM

The Booker case allows for a court to consider other factors besides the rigid guidelines. Sadly, prosecutors and many judges still give substantial weight to the guidelines which has led to the overwhelming majority of criminal defendants being sentenced within the guidelines. Although, clearly a factor to be considered, the guidelines should not be given more weight than say, family ties and responsibilities. Booker was supposed to change sentencing and we must adhere to this all important case. Good work 5th Circuit but publish these opinions because we must do our best to ensure that criminal defendants are given sentences that are sufficient but not greater than necessary as per 3553.

Posted by: Maimoon | Apr 13, 2007 4:14:10 AM

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