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April 16, 2008

Telling trio of reasonableness reversals in the circuits

Anyone who expected or hoped that the Supreme Court's rulings in Gall and Kimbrough would radically change the nature and nuances of circuit court reasonableness review should be sure to check out this trio of circuit sentencing reversals from Tuesday:

There is a lot of thoughtful nuance in all of these rulings, which defy simple summaries.  It can and should be readily noted, however, that the government prevails in its sentencing appeal in all three cases.

April 16, 2008 at 04:09 AM | Permalink


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The 9th and 10th Cir. rulings are not extremely problematic, even for someone like me who "hoped that...Gall and Kimbrough would radically change the nature...of reasonableness review."

Both the 9th and 10th Cir. opinions deal with procedural reasonableness. As the 9th Cir. explains in footnote 2, Gall/Kimbrough only effect appellate substantive reasonableness review.

Although I have some problems with the 10th Cir. opinion, it's really a holding on Rule 32 and doesn't go to the heart of Gall/Kimbrough. And the 9th Cir. opinion actually concludes by pointing out that the def. is eligible for a lower sentence under the crack Amend., and explicitly allows the Court to consider Kimbrough arguments on remand.

Posted by: DEJ | Apr 16, 2008 1:03:49 PM

The 7th Cir. opinion is an entirely different story. After recognizing that the proportionality principle is invalid after Gall, the panel proceeds to engage in a de facto proportionality principle analysis. The panel also concludes, contrary to Gall, that the sentence is unreasonable because it is not convinced that the mitigating factor warrants this sentence (slip at 13). Gall doesn't require convincing of the panel...it requires deference.

The panel also explains that the district court's view of the case is "speculative" (at 16). But isn't a major part of a sentencing judge's job to "speculate" on the defendant's future?

Finally, the court is "struck by" the dist. ct's "negative tone" at sentencing (at 13) contrasted with the post-sentencing written document (at 15-16). Well, isn't it reasonable for a sentencing judge to impress upon the defendant, in person, why he better not mess up again (i.e. tell him he got a break here and he could have gotten a much higher sentence), while then thoroughly explaining his sentencing reasoning for appellate purposes in writing post-sentencing? That's probably exactly what occurred here. (Plus, most of the post-sentencing written explanations I have seen include a disclaimer that state (paraphrased) "anything written here is controlling over anything said at sentencing".)

In sum, I don't think the 9th and 10th need to re-read Gall. But, the panel in the 7th Cir. certainly denigrated its principles.

Posted by: DEJ | Apr 16, 2008 1:06:56 PM

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