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January 4, 2008

A circuit's struggles after Gall and Kimbrough

Writing in the Fulton County Daily Report, Alyson Palmer has this long article headlined "11th Circuit Wrestles With Sentencing: Panels split in upholding sentences in child pornography and bribery cases that fell below sentencing guidelines."  Here are excerpts from the start of the piece:

To many, the justices from the U.S. Supreme Court last month sent a simple message to appeals courts around the country: When reviewing the sentencing decisions of trial judges, back off.

But last week a judge on the 11th U.S. Circuit Court of Appeals signaled that he's not rolling over. Judge Joel F. Dubina's response to the high court came in a case in which federal prosecutors in Florida had challenged as too lenient a seven-year sentence for a distributor of child pornography. The sentence was more than five years under the sentencing range outlined in the federal sentencing guidelines, but over Dubina's dissent, two other judges affirmed the seven-year term.

That decision appears to follow the deferential approach adopted by the high court in a pair of major sentencing decisions issued Dec. 10, Gall v. United States, 128 S.Ct. 586, and Kimbrough v. United States, 128 S.Ct. 558.... While it didn't cite Gall specifically, another dissent issued this week, in the long-running bribery case of two men convicted over a Fulton County, Ga., bond deal, also demonstrated that the 11th Circuit is wrestling with sentences. In that case, Judge Edward Carnes was on the losing end of a 2-1 vote that affirmed the sentences of Michael deVegter and Richard P. Poirier Jr., which prosecutors argued were too short.

January 4, 2008 at 06:57 AM | Permalink


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