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January 29, 2008

Two great sentencing opinions from the true heartland

I am pleased this afternoon to spotlight two strong recent sentencing opinions from Chief District Judge Joseph Bataillon in US v. Baird and US v. McCormick.  This summary of Baird comes from a helpful reader:

I don't think you have already posted this case on your cite, but there's a great discussion of Kimbrough and the sentencing guidelines in Judge Bataillon's decision in US v. Baird, No. 8:07CR204, 2008 WL 151258, 2008 U.S. Dist. LEXIS 2338 (D. Neb. Jan. 11, 2008). I believe it is one of the most informative and developed discussions of Kimbrough since the decision came out last month.  In reference to the sentencing guidelines for child-exploitation offenses, Judge Bataillon observes that those guidelines were not developed under an empirical approach, and accordingly he "affords them less deference than it would to empirically-grounded guidelines."

Helpfully, today's McCormick opinion, US v. McCormick, No. 8:04CR218 (D. Neb. Jan. 29, 2008) (available for download below) covers similar post-Gall/Kimbrough ground in the third sentencing experience for the defendant.  The defendant in McCormick was initialy sentences before Booker, then resentenced (to a lower term) between Booker and Gall, but had to be resentenced yet again because the Eighth Circuit had reversed the second sentence.  Particulars aside, as the reader quote above highlights, Judge Bataillon does a strong job describing the current state of federal sentencing law at pp. 7-14 of the McCormick opinion.

Download mccormick_opinion.pdf

January 29, 2008 at 03:06 PM | Permalink


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Another example of Professor Berman touting a "great" opinion simply because it goes below the guideline. Judge Battalion's assertion that the child-exploitation guidelines are not based on an "empirical approach" is ludicrous. All one has to do is go to the Commission's website and see THREE reports on child-sex crimes over the last 10 years. Again, as long as judges go below the guidelines, Berman thinks it's "great."

Posted by: | Jan 30, 2008 7:00:56 AM

Another example of an (unsigned) commentor making aggressive criticisms without actually doing any research necessary to ground this critique in sound reasoning. Here is the full context of Judge Battalion's analysis of the guideline applicable in the Baird case:

"The court notes that the Guidelines for child exploitation offenses, like the drug-trafficking Guidelines, were not developed under the empirical approach, but were promulgated, for the most part, in response to statutory directives. See U.S.S.G.App. C, Amends. 537 & 538 (Nov. 1, 1996), 592 (Nov. 1, 2000), 615 (Nov. 1, 2001), 651 (Oct. 27, 2003), 664 (Nov. 1, 2006). The Commission itself acknowledges that '[t]he frequent mandatory minimum legislation and specific directives to the Commission to amend the Guidelines make it difficult to gauge the effectiveness of any particular policy change, or to disentangle the influences of the Commission from those of Congress.' Fifteen-Year Assessment at 73. Because the Guidelines do not reflect the Commission's unique institutional strengths, the court affords them less deference than it would to empirically-grounded guidelines.

"The court finds that a sentence of two years will more closely approximate the sentencing range that was in effect before the Sentencing Commission, in response to a Congressional directive, collapsed the guideline dealing with possession (formerly U.S.S.G. § 2G2.4) into the guideline dealing with trafficking of pornography (U .S.S.G. § 2G2.2) in 2003. That action, together with the expansive coverage of 'distribution' in U.S.S.G. § 2G2.2(b)(3)(A) through (F), and the application of significant quantity-driven enhancements for the number of images, has served to muddy the qualitative distinctions between 'mere possession' and 'distribution of child pornography.' It is clear that one possessing child pornography has far less culpability than one distributing pornography, who, in turn, has far less culpability than one who produces child pornography. The greater culpability of an actual predator or abuser should be reflected in a sentence that greatly exceeds the punishment for the exploitative crimes that do not involve acts of abuse by a defendant. In fact, the 'distribution' criteria is not helpful in this case. Notwithstanding the agreement between the parties concerning a two-point distribution enhancement, the court finds that the defendant's distribution of child pornography, if extant, was minimal. The Guidelines at issue do not adequately reflect those important distinctions in levels of culpability."

What makes Judge Battalion's work "great" is not the specific outcome, but the process: he comes to a sentencing result through reasoned judgment based on serious research and analysis, rather than just relying on gut instincts or just assuming the guidelines provide a bible of sentencing wisdom.

I greatly appreciate criticisms on the blog and elsewhere that involve reasoned judgment based on serious research and analysis. I have VERY little respect for (unsigned) critiques based on gut instincts.

Notably, in the post right before this one, I praised a Sixth Circuit opinion affirming two above-guideline sentences as "thoughtful" and involving "wisdom." I think that circuit opinion was "great" for the same reason as Judge Battalion's opinion: the panel engaged in reasoned judgment based on serious research and analysis. Perhaps anon commentors will follow this example in the future.

Posted by: Doug B. | Jan 30, 2008 9:41:32 AM

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