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April 23, 2008

Pair of notable circuit reasonableness rulings

This afternoon brought two notable circuit reasonable rulings.  Notably, the Eleventh Circuit ruling reversing a below-guidelines sentence in a high-profile white-collar case, US v. Livesay, No. 06-11303 (11th Cir. Apr. 23, 2008) (available here) is published; the Fourth Circuit ruling affirming a below-guidelines sentence in a low-profile child porn case, US v. Smith, No. 06-4885 (4th Cir. Apr. 23, 2008) (available here) is unpublished.

April 23, 2008 at 07:53 PM | Permalink


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Can some one please tell me which is the 5th circuit's view after Gall?

Posted by: EJ | Apr 23, 2008 10:33:04 PM

The 4th Cir. opinion should be published.

The 11th Cir. opinion reverses because: 1) the dist. ct. considered an improper factor in deciding the size of a 5K1.1 departure, and 2) the dist. ct. did not adequately explain the alternative variance sentence. Assuming 1) is correct, I think the second conclusion is really a masking of de novo substantive reasonableness review (i.e. "if we keep remanding due to an inadequate explanation (procedural reasonableness), eventually a higher sentence that we agree with will have to be imposed (substantive reasonableness)").

The problem with the "inadequate explanation" reversal is that Rita/Gall have language that can support whatever position the appellate court wants to do. This is how appellate courts can now "mask" substantive reversals under the "procedural" banner.

For example, if an appellate panel feels a sentence is too low, all it has to do is reverse for procedural reasonableness and cite Rita b/c the dist. ct. did not give it enough explanation. That is exactly what occurred in this case.

For a counter example, if an appellate panel feels a sentence is appropriate, even though the dist. ct. may not have given explicit facts/explanation to support the sentence, all it has to do is cite Rita b/c "the record makes clear that the sentencing judge considered the evidence and arguments" and the law does not require the judge to explain "more extensively." Rita at 2469.

Finally, I will note that while the 11th Cir. panel felt that the dist. ct. could not have considered "Livesay’s repudiation of or withdrawal from the conspiracy in determining the
extent of its § 5K1.1 departure," this certainly is a consideration under 3553(a). The panel however, completely ignores this fact when concluding that the dist. ct. did not "adequately explain" the variance sentence.

Posted by: DEJ | Apr 24, 2008 1:25:53 PM

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