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February 11, 2008

No rest for the sentencing weary in the Sixth Circuit

Though I just finished consuming the amazing Sixth Circuit opinions in the Vonner en banc ruling late last week, this morning brings another must-read for the Sixth Circuit sentencing aficionado.  The ruling comes in US v. Thompson, No. 06-6233 (6th Cir. Feb. 11, 2008) (available here), and once again Judge Merritt's dissent (and the majority's response) that provides the most potent quotables.  Consider these two sentences, for example, from the last paragraph of the dissent:

Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the deliberative or reflective process outlined by the two overriding principles stated above.  The determinate sentence based on judicial fact finding, including a consecutive mandatory sentence based entirely on facts never found by the jury or admitted, makes the principle of Blakely, Booker, and Cunningham a joke.

The majority gets in a few zingers during the jurisprudence debate, as evidenced by these lines of response:

The dissent proposes a “Golden Mean” to guide sentencing courts based in part on the principle that all judicial factfinding must be eschewed unless either the factfinding results in a sentence somewhere within the initial base-offense level under the Guidelines or the district court explicitly explains why the concepts of general and individual deterrence outweigh the mitigating circumstances and the likelihood of successful rehabilitation.  Dis. op. at 14.  In order to adopt this Golden Mean, however, courts would first have to don the crowns of philosopher-kings — for that is the only way that any court in this circuit could avoid the clear import, reasoning and holding of binding precedent.

Of course, courts are unlikely to be able to don the crowns of philosopher-kings anytime soon: few ivory-tower academics are likely to give up these crowns with a serious fight.

February 11, 2008 at 11:24 AM | Permalink


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Merritt's dissent, slip op at 13 n. 2, says: "It is significant that in ... Kimbrough ..., in which the Supreme Court upheld the district court sentences, the sentence was within or below the guideline range corresponding to the jury verdict or guilty plea. There was no ratcheting up of the sentence by enhancements outside of the initial sentencing range. There were no judicial fact findings that raised the sentence, and there is no Supreme Court case that allows a court to use guideline enhancements to raise a sentence above the guideline range corresponding to the jury verdict or plea."

But as the majority points out, slip op at 4, in Kimbrough the district court did make "judicial fact findings that raised the sentence" -- it found obstruction: "in the recent Supreme Court case of Kimbrough v. United States, 128 S. Ct. 558 (2007). The district court began with a base-offense level of 32 and a criminal history of II for Kimbrough. Id. at 565. The district court then found that Kimbrough had testified falsely at his codefendant’s trial and added 2 levels, resulting in an adjusted offense level of 34. Id."

Posted by: reader | Feb 11, 2008 1:09:33 PM

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