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September 21, 2009

A (questionable?) Eighth Circuit reversal of a reduction in crack guideline retroactivity case

The implementation of the retroactive crack guidelines has produced a lot of federal circuit court rulings, though most have involved a circuit affirming a district court's decision to deny a reduction to a defendant.  But the Eighth Circuit has a ruling today in US v. Collier, No. 08-3306 (8th Cir. Sept. 21, 2009) (available here), in which a panel, upon the  government's appeal reverses a district court's decision to grant the defendant a sentencereduction based on the crack retroactivity provisions.

The particulars of Collier are complicated, but the case especially draws my attention because it would seem ripe for a viable cert petition because the defendant (a) seems relatively sympathetic, (b) prevailed in the district court by getting a lower sentence, and (c) had his reduced sentenced reversed by the Eighth Circuit upon the government's appeal.  As some astute readers may realize, this "abc formula" produced cert grants in Claiborne and Gall and Spears, and perhaps Collier might file a petition to see if he can get the formula to work for him as well.

September 21, 2009 at 12:58 PM | Permalink


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The 8th Circuit reversed because the defendant was a career offender. So far, all the Circuits that have addressed the issue have ruled career offenders ineligible for the 3582 crack sentence reduction.

Posted by: RAK | Sep 21, 2009 3:57:17 PM

The fact that Professor Berman thinks a career offender is a "sympathetic" offender REALLY backs my assessment that the views here, and in most law schools are tainted! This blog constantly is anti-death penalty, and pro-child pornography offenders! This was not a "questionable" reversal or a "sympathetic" offender. Unbelievable!

Posted by: Kelly | Sep 22, 2009 9:52:23 AM

I think Prof. Berman was referring to the defendant's honorable military service and his drug addiction, both of which the district court acknowledged as mitigating factors. I don't think it's unreasonable to say that the defendant is "relatively sympathetic" given these facts, especially when considering your mine-run crack defendants (many of whom are also History IV offenders).

Though perhaps my J.D. taints my views of things, and I am just blind to the wonders created by the crack sentencing laws...

Posted by: Res ipsa | Sep 22, 2009 12:27:55 PM

I am just curious, Kelly, about what kind of defendant you would describe as "relatively sympathetic." I think everyone who has honorably served our country in the military is "relatively sympathetic," but perhaps you think I take a commitment to supporting the troops too seriously.

Posted by: Doug B. | Sep 22, 2009 2:36:36 PM

Lewis Libby?

Posted by: Res ipsa | Sep 22, 2009 2:58:36 PM

So, a serial killer who happened to serve his country honorably is per se "relatively sympathetic." I think if you become a career criminal, you lose all sympathy points, no matter what positive actions you have done in your past. A former military person has access to drug treatment programs and other avenues if they lose their way after serving the country. I am quite sure during some of his past sentencings, he was given a "military discount." I disagree with the premise that he is automatically "sympathetic" based on military service. This blog is entirely too one-sided...porn sentences are too high (tell that to the kids whose pictures are being taken), etc! HAVE SOME BALANCE!

Posted by: Kelly | Sep 23, 2009 9:57:36 AM

You are right, Timothy McVeigh was not sympathetic. But a hint for the future--extreme examples aren't convincing. It's like saying we should distrust Muslims because al Qaeda is full of Muslims.

Nor are irrelevant examples. This case isn't about child pornography, it's about crack sentencing--a scheme so unbelievably bizarre that Congress is poised to amend it. Please explain why THIS defendant deserves a harsh sentence, not why we should think of the children.

Going to the latter point, this defendant was not a serial killer. Nor is there evidence that he has a violent criminal past, though he has an admittedly extensive history. In fact, given the trial judge's finding that the defendant's extensive history was mainly attributable to his drug addiction, it looks more likely that his priors were for drug crimes. Call me crazy, but I think it's reasonable, based on what we know (rather than what we infer without any evidence), to say that this defendant was "relatively sympathetic," i.e., more sympathetic than a mine-run defendant.

Posted by: Res ipsa | Sep 23, 2009 2:59:13 PM

I agree that I used an extreme example, but Professor Berman's exact words are "I think everyone who has honorably served our country in the military is "relatively sympathetic"...and he did use the word EVERYONE, so McVeigh, in his eyes, was "relatively sympathetic."

Posted by: Kelly | Sep 24, 2009 10:11:44 AM

I really don't think Prof. Berman was honestly thinking about McVeigh in particular or mass murderers in general. I can't think of another honorably-discharged soldier who has committed murder offhand, and I had to provide you with an example to make your own case. Not that I blame you for not being able to pull McVeigh out of thin air--it's easy to forget the details of Oklahoma City after 9/11, when we became accustomed to thinking of mass murderers as the type of people McVeigh fought against...

Just saying...the point Prof. Berman was making was that this defendant was relatively sympathetic and had a decent likelihood of prevailing in the Supreme Court given his circumstances. You said you couldn't believe he would make such a statement (which you misquoted as "sympathetic," not "relatively sympathetic"), and then attacked two straw men. When Berman and I called you out, you picked on another straw man. No doubt Dorothy and her three friends would be terrified of coming down to this blog for fear of losing a member, but I'm still waiting to hear why this particular defendant is not sympathetic relative to your average crack criminal, and why the Supreme Court won't even hear the case.

Posted by: Res ipsa | Sep 24, 2009 4:50:39 PM

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