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October 1, 2008

Interesting amicus brief on post-Booker sentences of probation

As noted here, the Third Circuit a few months ago  granted rehearing en banc in US v. Tomko (panel decision blogged here), a case in which a panel members had written at length about reasonableness when reviewing a probation sentence given to a white-collar defendant.  I just receive a copy of an amicus brief filed this week by defender groups in Tomko, which I provide for downloading below.  Here is how an e-mail described this brief:

This Amicus Brief filed today on behalf of NACDL and the Federal and Community Defenders of the Third Circuit ... address[es] in detail the failure of the Sentencing Commission to comply with statutory mandates relative to probation, as applied in particular to tax and other white collar cases, concluding that under the Supreme Court's recent decisions in Gall and Kimbrough judges should be especially free to reject the guidelines' excessive reliance on imprisonment and instead to grant a great deal more probationary sentences than has been the case in the last 20 years.

Download tomko_brief_of_amici_curiae_nacdl_et_al.pdf

UPDATE:  A helpful reader passed along a copy of the other briefs just filed in the Third Circuit in conjunction with the en banc proceedings in Tomko.  I provide them below for you reading pleasure:

Download tomko_en_banc_govt.pdf

Download tomko_en_banc_defendant.pdf

October 1, 2008 at 08:10 PM | Permalink


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Well, I just read through the panel decision and have a hard time seeing it survive post Gall. I wasn't able to read the amici since it is not formatted for text to speech use.

Posted by: Soronel Haetir | Oct 2, 2008 1:08:47 AM

I have posted, Soronel, a different version of the NACDL brief. I hope you can access this new version.

Posted by: Doug B. | Oct 2, 2008 10:08:18 PM

Well, the history behind the guideline range is certainly interesting. However even discounting the history, I would have to think the panel decision fails to survive Gall.

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