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January 26, 2009

Sixth Circuit issues first Spears remand

The per curiam ruling by the Supreme Court last week in Spears (basics here) stressed that it acted via summary reversal because of the need to "promptly remove from the [jurisprudential] menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible" in light of the teachings of Kimbrough.  Today, the Sixth Circuit has the distinct honor of being the first lower court to serve up a Spears remand through US v. Johnson, No. 07-2447 (6th Cir. Jan. 26, 2009) (available here):

In light of the Supreme Court’s recent decision in Spears v. United States, — S. Ct. —, No. 08-5721, 2009 WL 129044 (Jan. 21, 2009), we VACATE Johnson’s sentence and REMAND for resentencing. Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this.  Because the district court sentenced Johnson without the benefit of Spears, we remand for resentencing to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines.

Disappointingly, Sixth Circuit Judge Cook was not on the panel, so I can take the culinary metaphors just so far with this first ruling.  Mangia!

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January 26, 2009 at 03:48 PM | Permalink


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Given that it should have been apparent before now that disagreement with the crack guideline on purely policy grounds is fine, I find this ruling a bit much. Is agreement with the 100:1 guideline to be treated as reversible error now even if the district judge agrees with it?

Posted by: Soronel Haetir | Jan 26, 2009 5:42:47 PM

Pedant's Note: the imperative of 'mangiare,' which means to eat in Italian is 'mangia.'

Posted by: | Jan 26, 2009 6:05:07 PM

Thanks for the Italian lesson, fixed...

Posted by: Doug B. | Jan 26, 2009 8:50:24 PM

Haetir, seems from the opinion that the defendant was sentenced not just before Spears, but before Kimbrough. Thus, the result likely should have been the same before Spears, but the Court just chose to discuss this new ruling, which basically took away any debate about how this case should have come out. Gall explicitly mentions "treating the guidelines as mandatory" as a type of "significant procedural error," and, post-Kimbrough most courts treat failing to appreciate one's sentencing discretion to vary from the crack guidelines for policy reasons as this type of error.

Posted by: Applekeys | Jan 27, 2009 8:16:17 AM

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Posted by: חלקי חילוף לרכב בתל אביב | Jan 3, 2011 8:25:52 AM

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