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August 15, 2007

Eighth Circuit upholds massive upward variance

The Eighth Circuit rarely affirms below-guideline sentences, but today it affirms another massive upward variance in US v. Gillmore, No. 06-3545 (8th Cir. Aug. 15, 2007) (available here).  Here is the official summary of the ruling for the Circuit's opinion page:

U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Shepherd, Author, with Murphy and Beam, Circuit Judges] Criminal Case - sentence.  District court's grant of upward variance on second degree murder conviction within Indian country from 188 months to 396 months was not unreasonable, in light of district court's thorough and well-reasoned explanation for imposing exceptional variance, namely, the brutal nature of the offense and the threat defendant posed to herself and the public due to her mental illness and chemical dependancy. District court did not abuse its discretion.

August 15, 2007 at 02:27 PM | Permalink


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Good thing Booker lets us lock up those mentally-ill, chemically-dependant people.

Posted by: S.cotus | Aug 15, 2007 2:53:38 PM

Did the jury find "the brutal nature of the offense and the threat defendant posed to herself and the public due to her mental illness and chemical dependancy?"

Posted by: rothmatisseko | Aug 15, 2007 3:03:58 PM

rothmatisseko, have you been asleep for the last two-and-a-half years? The answer is "no"; and like it or not (I, for one, don't), Booker said the answer does not have to be "yes".

Posted by: | Aug 15, 2007 3:16:17 PM

Not to excuse her heinous crime, this defendant nonetheless is plainly a defendant who was victimized at every stage of her life, and the resulting mental problems were used as an excuse to further victimize her. I see from the Minn. statutes that second-degree murder under state law is punishable by up to 40 years (480 months in Federal Guideline-speak), so this Native American's sentence was not harsher than the potential state sentence (not always the case -- Native Americans frequently do worse in federal court than they would in state). However, perhaps some Minn. practitioners can tell us what the usual state sentence for 2nd-degree murder is? Would she have been better off in the Minn. courts?

Posted by: defense attorney | Aug 15, 2007 3:32:01 PM

All below-guideline sentences are alike; each is unwarranted and must be reversed. Every above-guideline sentence is different; each is fully warranted and eminently justifiable.

Posted by: Michael Lelvine | Aug 16, 2007 9:24:01 AM

She killed a man because he wouldn't loan her money to buy drugs. Is that someone we really want to be on the street ever again?

Posted by: William Jockusch | Aug 16, 2007 12:17:05 PM

Um, rothmatisseko, there was no jury at all; she waived a jury trial and was bench-tried.

Posted by: Booker fan | Aug 16, 2007 5:14:53 PM

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