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December 11, 2007

Eighth Circuit needs no Gall to affirm above-guideline sentence

As many folks recognize, the pro-discretion ruling in Gall does not ensure lighter sentences for everyone: Gall seems to give district courts even more discretion to sentence above the guidelines and should lead circuit courts to review these decisions more deferentially.  However, a decision handed down this morning by the Eighth Circuit in US v. Jones, No. 07-1212 (8th Cir. Dec. 11, 2007) (available here), highlights that district and circuit courts really did not need Gall to feel comfortable imposing and approving above-guideline sentences. 

In Jones, the district court relied on the defendant's misconduct in jail while awaiting sentencing to add nearly 1.5 years of additional imprisonment to his suggested guideline sentence.  The Eighth Circuit panel in Jones, not surprisingly, finds a way to uphold this enhanced sentence despite a thin sentencing record that it has previously found insufficient to support reduced sentences.  This Jones opinion was likely completed last week; it does not mention Gall, though Jones now seems sounder in the wake of the Supreme Court's repeated assertion that reasonableness review should be highly deferential.

December 11, 2007 at 11:45 AM | Permalink


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Well even before Gall, the circuit courts were upholding every single above the guidelines sentence and reversing every single below the guideline sentence.

Posted by: EJ | Dec 11, 2007 3:29:40 PM

One could potentially argue that, because the Kimbrough case emphasizes the parsimony clause and characterizes it as an "overarching principle," upward variances should get closer scrutiny than the downward variance at issue in Gall. Not that I'd bet the rent on a circuit court adopting this argument.

Posted by: Jonathan Edelstein | Dec 11, 2007 4:16:13 PM

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