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December 28, 2007

Split Eleventh Circuit affirms below-guideline sentence in another post-Gall ruling

When it rains, it pours (at least when it comes to reasonableness review on a Friday afternoon).  Not long after I saw the Fourth Circuit's Pauley decision upholding a below-guideline sentence as reasonable, I discovered a similar (though split) Eleventh Circuit ruling in US v. McBride, No. 06-16544 (11th Cir. Dec. 28, 2007) (available here).  Here is how the majority opinion in McBride begins:

In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3553(a) factors and imposed an unreasonable sentence.  Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.

Here are snippets of the dissent in McBride:

Though I agree with the majority that the district court followed the proper procedures in calculating the Guidelines range and considering the 18 U.S.C. § 3553(a) factors, I disagree with the majority’s conclusion that the sentence imposed is substantively reasonable, and thus, I respectfully dissent....

Though the district court gave lip-service to other § 3553(a) factors, the district court’s downward departure was based largely, if not solely, on the defendant’s childhood, which it deemed to be one of the worst it had ever seen.  Some reduction might have been appropriate based on the defendant’s childhood, but a downward departure of almost 50% from the bottom of the Guidelines range was unreasonable when the other § 3553(a) factors, such as reflecting the seriousness of the offense, the need for deterrence, and the need to protect the public, all support a more lengthy term of incarceration than the one given.

December 28, 2007 at 04:34 PM | Permalink


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Surprised Edmondson went along with that.

Posted by: Jay | Dec 29, 2007 4:24:16 AM

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