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November 27, 2007

Big Third Circuit ruling on post-Booker practices

Today, the Third Circuit has issued a very sizable and seemingly quite significant opinion in US v. Ali, No. 05-2098 (3d Cir. Nov. 27, 2007) (available here), reversing lenient sentences given to two defendants found guilty of fraud.  Here's how the 47-page opinion starts:

The Government appeals the sentencing calculations and downward departures from the Sentencing Guidelines ranges for defendants found guilty of fraud. A criminal jury convicted Faridah Ali (also known as Rita Spicer) and her daughter Lakiha Spicer (together, "defendants") for using a school to obtain federal funds for classes that were never conducted.

At sentencing, the District Court applied a reasonable-doubt standard to determine loss amounts far below the ones the Government had urged under a preponderance-of-the-evidence standard. The Court then looked to good works and community support along with other factors to depart downward from the suggested Guidelines ranges.  Defendants received no prison time. Instead, the Court sentenced each defendant to some term of probation with periods of in-home confinement and restitution payments in line with its determination of the loss amounts. 

The issues presented to us are whether the Court erred in its initial Guidelines calculations, whether it relied on inappropriate factors for its downward departures, and whether the resulting sentences were unreasonable.  We conclude yes for all three issues and remand for further proceedings.

November 27, 2007 at 03:39 PM | Permalink


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I love this phrase

"the suggested Guidelines ranges." If its suggested, how come they have to give reasons to deviate from them? I understand that a judge has to explain his/her sentence, but why would he have to explain why he deviated from "advisory" guidelines that under booker, they have no obligation to follow?

this circuit justices appearantly leave their commen sense at their home, If they have any.

Posted by: EJ | Nov 27, 2007 3:57:26 PM

EJ -- the opinion was written by perhaps the most Apprendi/Blakely friendly judge on that court. If you read the whole opinion, you'll note that the court suggests that once a district judge correctly calculates the Guidelines range (using the preponderance standard, as precedent requires), he might then be justified in varying the sentence because that standard caused the Guidelines range to over-emphasize the loss amount. That's quite an acknowledgement.

Posted by: | Nov 27, 2007 4:28:17 PM

EJ, have you been living under a rock for the past 2 1/2 years or so?

Posted by: | Nov 27, 2007 4:29:43 PM

Yes, I understand your point. I will read the opinion tomorrow because right now i'm kind of busy, however, my statement was meant to be more general. the appealate courts are making guidelines virtually mandatory. However, you are right, this particular case was overturned because there are clearly technical issues. I only read about 15 pages, but I think the the district judge was correct in applying the beyond a reasonable doubt method. Considering it was a criminal case.

Posted by: EJ | Nov 27, 2007 5:43:00 PM

Why can't a judge use a beyond a reasonable doubt standard rather than a preponderance of the evidence standard to determine sentencing facts?

I suppose one could argue that if the judge uses a BARD standard then the guidelines should have to be mandatory. But why can't the judge decide? Why is protecting a defendant's constitutional rights reversible error? I think judges should have the choice of binding guidelines and reasonable doubt standard for finding sentencing facts, OR advisory guidelines and a preponderance standard for finding sentencing facts. It seems mosts judges would prefer the latter. But why can't they choose? I don't read Booker so as to preclude a judge finding sentencing facts beyond a reasonable doubt.

Posted by: bruce | Nov 28, 2007 12:36:31 AM

The bottom line is the department of justice wants to sentence. If it was up to them they would rather not have a judge. Everything is put in their favor come up against the federal goverment unless your John Gotti early John Gotti not late you have no chance. They are like the Yankees and everyone else is the Royals you cant go up against them.

Posted by: | Nov 29, 2007 11:08:18 AM

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