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August 7, 2008

Riding the Booker Rapids

Yesterday, the First Circuit announced its decision in United States v. Russell, available here, a case that “crystallizes the difficulties confronted by defendants - and district court judges - as they navigate the turbulent waters of Booker and its aftermath.” The court affirmed Antron Russell’s sentence of 180 months for distribution of crack cocaine.  Russell had already been sentenced three times in relation to this conviction, first for 235 months, prior to the Supreme Court’s decision in United States v. Booker, 151 months following Booker, and then 180 months after the First Circuit rejected the district court’s calculation of the variance in the second sentence.  On the third remand, the district court noted that it had substantial discretion to vary from the guideline sentence, considered various factors including the proposed crack cocaine guideline amendments, and imposed a 180-month sentence after explaining that it previously undervalued several aggravating factors.  Russell appealed this third sentence on the ground that it was unreasonable, relying in part on the Supreme Court’s Kimbrough decision, which was decided while his third appeal was pending.

With respect to this third appeal, the First Circuit framed the issue as follows:

The question, then, is whether the district court avoided procedural error at Russell's third sentencing hearing by properly considering all of the relevant factors – including the crack/powder disparity – in making its § 3553(a) determination that a 180-month sentence was "sufficient, but not greater than necessary" in this particular case.

In answering that question, the Circuit held that there was no error.  Also, even though the third sentence was imposed prior to the Kimbrough decision, the First Circuit found that the district court’s approach “presciently anticipated the guidance that the Court would provide in Kimbrough.”

As disappointed as the First Circuit must be that it will likely not get a fourth opportunity to address Russell’s sentence on direct appeal, it can always look forward to the inevitable habeas petition.

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August 7, 2008 at 04:01 PM | Permalink


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