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July 1, 2008

Reviewing all the (Tenth) Circuit sentencing action during SCOTUS distractions

While I was focused on the Supreme Court's work last week, there were a lot of notable circuit rulings that I did not have a chance to cover.  Helpfully, a friendly reader provided me with this amazing summary of the Tenth Circuit's sentencing opinions from last week:

US v. Huckins: The Circuit affirmed a downward variance in a possession of child pornography case. From an advisory Guideline range of 78-97 months, the district court imposed an 18 month sentence. In affirming, the Circuit explained: "But where, as here, the court decides to vary from the Guidelines after a careful, reasoned, and reasonable consideration of the § 3553(a) factors, we cannot say the court abuses its discretion." The concurrence stresses that the government did "literally, nothing" to argue that the sentence was unreasonable in a post-Gall setting.

US v. Scott: The Circuit affirmed several sentencing enhancements and held that an upward variance from a advisory Guideline of 70-87 months to sentence of 120 months in Mann Act case was substantively reasonable. The district court relied "upon a host of facts" to impose the upward variance. The Circuit, relying on Gall, gave due deference to the district court that the sentence "struck the proper balance" of 3553(a).

US v. Halley: The defendant argued his sentence was unreasonable because his more culpable co-conspirator received an 18 month sentence, while he received a 262 month sentence. The significantly higher sentence was due to his going to trial (the co-conspirator received a and being career offender. (If he was not career offender, his advisory Guideline range would have been 46-57 months).  In denying the defendant's variance request, "[t]he court explained that although the '[more culpable co-conspirator] situation is a little bit bothersome,' she did not have the same criminal history as Mr. Haley, she was not a career offender, and she received a downward departure for accepting responsibility." The Circuit rejected defendant's argument that this vast disparity with a more culpable co-conspirator, should result in his sentence not being more than 192 months, explaining "We find [the disparity] insufficient to upset the district court's exercise of discretion."

US v. Cerno: The Circuit held: "We agree with Cerno that the district court committed procedural error by refusing, as a matter of law, to entertain his argument that relatively little force was used to perpetrate the assaults. We reverse on this basis. . . . . . . Sentencing law simply does not foreclose a court's individual consideration of the specific nature and circumstances of the offense conduct at issue, including whether the offense committed was more or less heinous than offenses committed by other defendants convicted under the same statute. Indeed, the sentencing statute mandates that a court consider the 'nature and circumstances of the offense' in fashioning a sentence 'sufficient, but not greater than necessary' to accomplish the sentencing goals outlined in the sentencing statute."

US v. A.B.: The Circuit rejects the defendant's procedural reasonableness argument concerning the interaction between a govt. substantial assistance downward departure motion and defendant's additional downward variance motion. The defendant "argues that, even after departing downward from the Guidelines range on substantial assistance grounds to a point below the mandatory minimum sentence, the district court was obliged to consider his § 3553(a) factors in assessing the appropriateness of a downward variance [from that point]. . . . [A]lternatively [defendant] contends that the district court should have first considered the § 3553(a) factors in determining whether to vary downward from the advisory Guidelines range, and then granted a substantial assistance downward departure." The Circuit found no error occurred.

US v. Tiger: The Circuit held that U.S.S.G. § 4B1.2 is virtually identical to ACCA statute that was at issue in Begay.  Upon GVR, Circuit interpretation of § 4B1.2 requires reversal.

July 1, 2008 at 09:02 AM | Permalink


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In a 3-judge concurrence, a panel of the 10th Cir. expressed that its substantive reasonableness review was becoming an "empty gesture." I expressed that the Appellate Court can (and should) find a way to both engage in meaningful substantive reasonableness review, while still affording the district court judges the necessary significant sentencing discretion.
See http://sentencing.typepad.com/sentencing_law_and_policy/2008/06/third-times-alm.html.

Halley is the exact type of case I had in mind. In engaging in substantive reasonableness review, the Appellate courts should analyze whether the co-defendant disparity, the effect of the career offender guidelines, and the effect of going to trial makes this sentence unreasonable.

Doing so will not lessen district court sentencing discretion in individual (specific) cases, but it will encourage a common law of substantive sentencing review based on broader principles.

Posted by: DEJ | Jul 1, 2008 2:04:48 PM

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