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October 19, 2009

Split Seventh Circuit declares that 3553(a) factors cannot be considered in Rule 35(b) reductions

Though the numerical provisions mentioned in the title of this post may only make sense to federal sentencing practitioners, the start of the majority and dissenting opinions in US v. Shelby, No. 08-2729 (7th Cir. Oct. 19, 2009) (available here), spotlights what's at issue in a split panel ruling handed down by the Seventh Circuit today.  Here is how Judge Posner's majority opinion gets started:

Rule 35(b)(2) of the federal criminal rules authorizes the district court, “upon the government’s motion made more than one year after sentencing,” to “reduce a sentence if the defendant’s substantial assistance” falls into specified categories.  The only question we are asked to decide is whether the rule allows the district judge to reduce the sentence on the basis of the factors that he would consider in initial sentencing under the Booker regime — namely the factors listed in 18 U.S.C. § 3553(a).

Here is how Judge Evans's dissent begins:

Judge Kocoras sentenced the then 26-year-old Gregory Shelby to serve 285 months back in 1996. At that time, the judge expressed regrets — the sentence was far too long, he lamented, but his hands were tied by mandatory guidelines that shackled his ability to impose a sentence that was fair and reasonable.  Today, the majority holds that Judge Kocoras overstepped his bounds when he recently reduced the now 40-year-old Shelby’s sentence to a term of 180 months.  Because I would affirm the judge’s well-reasoned decision, I respectfully dissent.

October 19, 2009 at 03:39 PM | Permalink


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