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August 28, 2007

More thoughtful sentencing thoughts from the Sixth Circuit

The Sixth Circuit provides more late summer sentencing food-for-thought today in US v. Franklin, No. 05-2539 (6th Cir. Aug. 28, 2007) (available here).  Here is how the majority's opinion begins:

Marcus Franklin (“Franklin”) and Jamaal Clarke (“Clarke”) were convicted of various bank robbery charges in 2003.  We affirmed their convictions in United States v. Franklin, 415 F.3d 537 (6th Cir. 2005), but remanded for re-sentencing under United States v. Booker, 543 U.S. 220 (2005).  Following re-sentencing, Franklin again appealed, arguing that his re-sentencing violated his Sixth Amendment right to fact finding by a jury.  We disagree based on Sixth Circuit precedents.  The United States has appealed the re-sentencings of both Franklin and Clarke, arguing that the new sentences are unreasonable on two grounds.  First, the United States claims that the district court improperly considered the impact of a mandatory, consecutive sentence when determining the reasonableness of the sentences under Booker.  Second, it claims that the district court imposed substantively unreasonable sentences based upon its misinterpretation of this Court’s prior opinion in the case.  We agree with the United States, VACATE the sentences, and REMAND for re-sentencing.

Judge Moore concurs only in the judgment and explains that she decided to "write separately because I believe that the majority unduly restricts the district court’s discretion on remand."

August 28, 2007 at 10:34 AM | Permalink


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