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March 5, 2008

Tenth Circuit splits over reasonableness of below-guideline sentence

In a lengthy decision, a split Tenth Circuit panel upheld the reasonableness of a below-guideline sentence in a sex offense case in US v. Smart, No. 06-6120 (10th Cir. Mar. 4, 2008)(available here).  Here is how the majority opinion starts:

Christopher Wayne Smart was convicted of inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct in violation of 18 U.S.C. § 2251(a). Exercising its discretion under United States v. Booker, 543 U.S. 220 (2005), Smart’s sentencing court concluded that his United States Sentencing Guidelines (“Guidelines”) range of 168 to 210 months’ imprisonment overstated the seriousness of his offense, and varied downward, imposing a sentence of 120 months’ imprisonment. The government appeals.

We review this exercise of district court sentencing discretion under the recent Supreme Court holdings in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which substantially invalidate the rigorous form of review our circuit announced in United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007). Applying a deferential abuse of discretion standard, we AFFIRM.

The extended dissent by Judge Hartz begins by asserting that "the majority opinion has mischaracterized the government’s arguments in this case and has misconceived the meanings of substantive and procedural error."

March 5, 2008 at 01:16 AM | Permalink


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The government argument in a nutshell (as quoted in the dissenting opinion from its briefing) was as follows:

"The district court’s justification in this case rested on two erroneous grounds. First, the district court concluded that a higher sentencing range for Smart than co defendant Rousey, who pled guilty prior to trial, would punish Smart for going to trial. Second, the district court concluded that a greater term of imprisonment for Smart than co-defendant Rousey would contravene the unwarranted sentencing disparities provision in 18 U.S.C. § 3553(a)(6). The justification that a higher sentence for Smart would punish him for going to trial contravenes established authority. Furthermore, the unwarranted sentencing disparity provision in § 3553 is intended to be applied on a national level—not among co defendants in the same case. Because the district court’s justification was legally erroneous, the resulting sentence is unreasonable."

Thus, the government basically argues that 3553 forbids a judge to consider equity in the sentences given to co-defendants in a case, and the dissent agrees with that argument.

Posted by: ohwilleke | Mar 6, 2008 8:49:07 PM

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