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January 2, 2008

A notable (but unpublished) 2007 leftover from the Tenth Circuit

A helpful reader flagged for me a notable unpublished opinion from the Tenth Circuit last year in the case of US v. Garcia-Salas, No. 07-2126 (10th Cir. Dec. 27, 2007) (available here).  Here is how the opinion starts:

Having interpreted this court’s precedents as virtually foreclosing variances from the United States Sentencing Guidelines, the district court imposed a sentence at the bottom of the Guidelines range. We might disagree with that interpretation but it is unnecessary to revisit our precedents. Under the Supreme Court’s recent decisions in Gall v. United States, No. 06-7949, 2007 WL 4292116 (S. Ct. Dec. 10, 2007), and Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (S. Ct. Dec. 10, 2007), it is clear that the district court had greater sentencing discretion than it thought it did.  Accordingly, we reverse and remand for resentencing.

There are many interesting aspects of this ruling, and it spotlights for the Tenth Circuit and all other appellate courts the importance of making pellucidly clear to lower courts the extent of the sentencing discretion they have after Booker.

January 2, 2008 at 09:28 AM | Permalink


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Does this mean they are taking the new supreme court decisions serious? and sentencing judges can go ouside the guidelines

Posted by: | Jan 2, 2008 10:40:31 AM


I believe the answers to your questions are "yes" and "yes." Qualified by: "At least for this panel, at least for now." We'll see what happens over time, with other panels and other circuits.


Posted by: Mark | Jan 2, 2008 11:37:40 AM

now, this is a real Gall test.

Posted by: EJ | Jan 2, 2008 3:30:10 PM

"now, this is a real Gall test"
what do you mean if he comes back with the 18 month sentence the district judge talked about? to see if it stands up?

Posted by: | Jan 2, 2008 3:45:31 PM

If the Judge properly explains his reasons for the sentence, then the 18 month sentence will stand.

My point is that the circuit court acknowledge the power of the District Court, and that it was not restrained by the guidelines.

Posted by: EJ | Jan 2, 2008 8:13:03 PM

EJ Now is that a first considering if we look at the numbers basically over the last two years below guideline sentences got bounced back to the district for re sentencing? Have many circuits prior to Gall said the district courts are not restrained by the guidelines

Posted by: | Jan 2, 2008 8:20:59 PM

Yes, but all below-guidelines sentences were presumed unreasonable. In this case, the circuit notes the Judge's hesitation to apply what he things would be a proper sentence, in fear of reversal.

The fact that the circuit remands this case for re-sentencing, its a sign for other Judges to break free from the guidelines.

Posted by: EJ | Jan 3, 2008 12:22:19 AM

What's remarkable is that this decision was 2-1; there was one judge who would not have reversed, though he didn't state his reasons.

Posted by: Marc Shepherd | Jan 3, 2008 8:27:26 AM

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