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July 13, 2009

Eighth Circuit en banc ruling finally affirms big variance after Gall GVR

The Eighth Circuit today handed down an important en banc ruling today in US v. Feemster, No. 06-2059 (8th Cir. July 13, 2009) (avaialable here).  Here is the unofficial summary of the ruling from the circuit's website:

Judge Smith, Author for the Court En Banc: For the court's prior opinions in the matter, see United States v. Feemster, 435 F.3d 881 (8th Cir. 2006) and United States v. Feemster, 483 F.3d 583 (8th Cir. 2007).  On remand from the Supreme Court for further consideration in light of Gall v. United States, 128 S.Ct. 586 (2007).  The district court provided substantial insight into   the reasons for its sentencing decision, and the government's argument  that the court failed to adequately explain its chosen sentence is rejected; district court's justification for imposing a 120-month sentence rests on precisely the kind of defendant-specific determination that are within the special competence of the sentencing courts, and the court could not say that the district court abused its discretion or imposed an unreasonable sentence.  Judge Riley, concurring.  Judge Colloton, concurring.  Judge Beam, dissenting.

Though Judge Riley's concurrence is really tantamount to a dissent, it is notable that only two judges on the Eighth Circuit ultimately resisted signing off on what was a very big variance in Feemster.  Also, as a helpful reader wrote in an e-mail, "Judge Colloton’s concurrence on unwarranted sentencing disparity and the inability of the Circuits to correct it [is] particularly interesting."

July 13, 2009 at 12:07 PM | Permalink


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Judge Riley's "concurrence" and Judge Beam's dissent rail about the Government's so called "admission" that the factors the district court relied upon were relevant. The untold story is that the prosecutor did not lodge an objection that the judge committed procedural error by considering improper factors. In fact Judge Riley reversed the district court based on the government's complaints that the judge considered improper factors despite the fact the government made no objection on that bsais in the district court. In fact, the Shy case cited in the majority opinion reversed a sentence based on a procedural error the prosecutor did not allege in the distrit court -- OR IN THE GOVERNMENT'S BRIEF ON APPEAL. The continuing eagerness of Judge Riley and Judge Beam to grant relief for unpreserved procedural errors raised by the government negates any hope of confidence in the Eighth Circuit's willingness to apply the law with an even hand.

Posted by: DCH | Jul 13, 2009 12:34:00 PM

Reading the first concurrence I get the feeling Riley doesn't like the whole Booker/Gall/Kimgrough experience.

He seems to take a mighty thin read on what factors the guidelines already account for that a district court should be allowed to consider in regard to the other 3553(a) factors. He also seems to overlook why the district court even though the first aggrevated felony overstated the prosecution case, that the defendant was 17 at that time rather than a 20 something.

I can certainly agree with the idea that I might give this defendant more time, I also don't see that the district court got this case wrong under SCOTUS precident.

Posted by: Soronel Haetir | Jul 13, 2009 1:05:40 PM

This guy didn't learn his lesson. Therefore, it seems problematic to discount his youthful crimes. Not sure that makes the sentence unreasonable.

Unfortunately, the federal courts had a chance to incapacitate a criminal for 30 years, and that chance was blown. Hopefully, someone won't have to pay too heavily down the road for this stylishness.

Posted by: federalist | Jul 13, 2009 1:21:21 PM

I think the bigger story here is that an appeals court is taking the intent of the SCOTUS to heart rather than engaging in their usual obfuscatory tactics.

Posted by: Daniel | Jul 13, 2009 1:41:14 PM

Riley, Colloton and Beam almost always act like they are really working as U.A. Attorneys with a robe.(Colloton was one) And now Colloton wants to tell Congress what to do. He is a supreme court wannabe and judicial activist of the first order. It really boils down to this . These 3 would rather give all the discretion to 27 year old AUSA's tather than Article III district court judges. They have never seen an upward departure or variance they didn't drool over.

Posted by: SheliaB | Jul 13, 2009 6:36:11 PM

SheliaB, you should read the opinions before you comment.

Colloton in particular makes some very good points about the state of sentencing law and the relationship between Congress and the judiciary and the direction that the case law has taken after Booker.

The arguments in Beam's opinion have just about nothing to do with your complaints. The majority of sentencing appeals come from defendants, not prosecutors, so the logic of Beam's arguments is probably more favorable to defendants on balance.

Riley's opinion has an aggressive tone, but I think it's totally fair in this context. The full court is sitting en banc, and if the majority opinion was left to speak for itself, there would be future dispute about whether the factors the district court considered were relevant or irrelevant. The government conceded that point, so it wasn't passed upon by the en banc majority, but prosecutors and defendants alike might argue otherwise in future cases if Riley's opinion did not make that clear.

I agree with Daniel's comment. Happy about it or not, all of the opinions sound like judges honestly grappling with what the Supreme Court told them to do with appeals in sentencing cases.

Posted by: anonymous | Jul 13, 2009 7:40:52 PM

Daniel, the AUSA who handled Feemster is 55, not 27, and is doing the smart thing by not commenting any further.

Posted by: Ray | Jul 13, 2009 11:02:16 PM

Ray --

It was SheliaB, not Daniel, who pegged the AUSA's age at 27. Shelia says that the more conserative appellate judges never saw an upward departure they "didn't drool over," leaving the impression, albeit unstated, that she never saw an upward departure she didn't gag over.

Posted by: Bill Otis | Jul 14, 2009 7:51:05 AM

The unmentioned “elephant in the room” here is race, a factor that is certainly improper and unconstitutional as a sole basis for sentencing, and which quite understandably, no judge in this case (and few judges in other such cases) is willing to bring to the surface.

I’m going to make a few assumptions here, which might seem wrong or even somewhat unfair, but here they are – first, that the defendant is African American, second that Judge Shaw is familiar with the voluminous literature documenting beyond dispute the enormous degree of overincarceration of African American males, and third, that this deplorable aspect of American justice was (whether he articulated it or not) a part of Judge Shaw’s thinking in initially sentencing Feemster and then sticking to his guns when the Circuit fought its post-Booker/Rita/Gall “rear guard action” to maintain quasi-mandatory guidelines.

There has been much lip service, wringing of hands, and gnashing of teeth (all very ineffective uses of body parts) about racial disparities in sentencing, and the irony that recent federal sentencing law and policy while purporting to make sentencing practices race-neutral, have seriously exacerbated those disparities. In this case, Judge Shaw, put his ass into the problem (and on the line). Feemster seems to be a paradigm defendant so prevalent in our federal and state prisons – young African American adult male, involved in the crack trade (which will almost inevitably entail acts of violence), guilty as hell, not very sympathetic despite his difficult beginnings, and certainly worthy of serious punishment.

The real motive for the judge imposing the mandatory minimum 10 year sentence (try serving such a sentence and then see if you still think it’s “light”) rather than the potentially tripled guideline sentence, has to have been an unwillingness to impose a sentence that would have irreversibly (no pun intended) thrown a young black defendant, guilty as he is, on society’s scrap heap. Granted, this has been Congress’s policy since its sentencing “reform” of the 80's, but all three branches of government (the Supreme Court in Kimbrough, Attorney General Holder, the Sentencing Commission, and Congress itself) have gotten around to at least acknowledging the problem and taken some modest steps toward alleviating it.

The dilemma for sentencing judges and reviewing courts is how to do justice in a given case by avoiding draconian sentences (but still imposing sentences of appropriate severity), and also avoid reversal. A judge who expressly says that he or she is sentencing a defendant a particular way because the defendant is black (or white, or Hispanic, or Asian), is certainly courting reversal, even in the post-Gall sentencing world. The Supreme Court more or less recognized this dilemma in Kimbrough and came very close to acknowledging the racial invidiousness of our drug laws and policies. But can a federal judge properly make overt reference to the now-acknowledged racial disparities in sentencing law, policy, and practice (i.e., the elephant in the room) as a reason for departing from the Guidelines ?

I don’t know the answer to that one – just asking.

Professor Stan Adelman, Albany Law

Posted by: Professor Stan Adelman | Jul 14, 2009 8:49:12 AM

That is one interesting issue in this case that didn't get discussed by the sentencing judge. How much less remarkable would this case have been if the judge had first tossed the crack guideline entirely?

I am somewhat surprised, given the timing, that Kimbrough wasn't part of the sentencing hearing, especially given that the judge obviously wanted to give a low sentence here.

Posted by: Soronel Haetir | Jul 14, 2009 9:13:57 AM

Soronel, correct me if I am wrong, but I don't believe the "crack Guideline" was not being used to sentence Feemster. It was the Career Offender Guideline. That being said, it would have been an interesting move for the district court to invoke Kimbrough and say he disagreed with the policy of the Career Offender Guideline (regardless of whether it be an "in this case" or a "categorical" rejection).

Posted by: DEJ | Jul 14, 2009 12:16:01 PM

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