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August 16, 2007

Effective district court elaboration of post-Rita realities

I have received (and provided for downloading below) an effective "sentencing memorandum" issued earlier this week by US District Judge Dan Polster in US v. Ortiz, No. 1:06-CR-417-004 (N.D. Ohio Aug. 14, 2007).  In Oritz, Judge Polster throughtfully explains his reasoning for imposing a below-guideline sentence in a career offender drug case, and in so doing he takes stock of the state of federal sentencing law in the Sixth Circuit after Rita.  Here is a key paragraph from Judge Polster's work in Ortiz:

Therefore, when one considers the Sixth Circuit’s post-Rita line of decisions, along with the Rita opinion itself, it is clear that the district courts have tremendous sentencing discretion in the final determination of the sentence imposed.  The sentencing courts are to consider the relevant § 3553(a) factors, the advisory Guideline range, and any other nonfrivolous arguments that each side may make, and indeed, may use the Guidelines as an advisory resource.  Ultimately, however, the courts must impose a sentence in accord with § 3553(a)’s parsimony provision, and provide a reasoned explanation of the basis for the sentence.

Download polster_opinion_in_ortiz.pdf

August 16, 2007 at 04:36 PM | Permalink


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It's nice to see a district judge recognize and act on his discretion post-Booker and post-Rita. Problem is, will the Circuit Court recognize it? The overwhelming trend in the circuits has been: within guideline sentence, reasonable; above guideline sentence, reasonable; below guideline sentence, unreasonable. District judges don't like to get flipped on appeal, so generally don't risk it. Thus, the main result of Booker and Rita has been to encourage those district courts that would like to impose harsher sentences to do so, especially since all the bad old doctrines like sentencing based on acquitted conduct and the preponderance of the evidence standard at sentencing remain. Those doctrines (as well as most mandatory minimums) must be disposed of if there is any hope of returning rationality to federal sentencing.

Posted by: defense attorney | Aug 17, 2007 10:47:12 AM

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