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October 18, 2011

Important "fast-track" disparity reversal from the Eighth Circuit permits variances in non-fast-track districts

I have long wondered how many times the Supreme Court would have to reverse the Eighth Circuit concerning its tendency to place post-Booker restrictions on the sentencing discretion of district judges before the Eighth Circuit would get the message that the Justices are eager to emphasize the word "advisory" over the word "guidelines" in the modern sentencing system.  An important new unanimous ruling today by an Eighth Circuit panel in US v. Jimenez-Perez, No. 10-3757 (8th Cir. Oct. 18, 2011) (available here) suggests that the Circuit has finally knows which way the federal sentencing winds have been blowing after Booker.  Here are some snippets from Jimenez-Perez that explain what I mean:

In his first point on appeal, Jimenez-Perez contends that the district court procedurally erred when it concluded that it lacked the discretion to vary downward from the Guidelines advisory sentencing range based on the allegedly unwarranted sentencing disparity caused by the lack of Fast Track.  The government attempts to rebut Jimenez-Perez's argument by relying on our unpublished per curiam decision in United States v. Rosario-Moctezuma, 411 F. App'x 942 (8th Cir. 2011), in which we held that Jimenez-Perez's "argument is squarely foreclosed by our decision in United States v. Gonzalez–Alvarado, 477 F.3d 648, 651 (8th Cir. 2007), abrogated on other grounds by Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed.2d 445 (2007), where we concluded that 'variances based on the absence of [F]ast-[T]rack programs are impermissible.'"  Rosario-Moctezuma, 411 F. App'x at 943–44.

However, as Jimenez-Perez points out, we decided Gonzalez-Alvarado, upon which our unpublished Rosario-Moctezuma relied, before the Supreme Court decided Kimbrough v. United States, 552 U.S. 85 (2007), which held that district courts are permitted to vary downward from a properly calculated Guidelines range to compensate for the Guidelines' then-applicable 100:1 ratio governing powder- and crack-cocaine offenses.  Our four-paragraph decision in Rosario-Moctezumamakes no mention of Kimbrough and, because it is unpublished, lacks controlling authority....

Upon review of these cases [from other circuits], we hold that Kimbrough undermines the rationale of our prior decisions that disallowed variances based on the unavailability of Fast- Track in a particular judicial district....

All four of our sister circuits that have concluded that a district court may vary downward to compensate for the sentencing disparities that Fast Track's unavailability creates in a given judicial district, have done so based on the observation that nowhere in the PROTECT Act does Congress purport to limit a district court's sentencing discretion under all § 3553(a) factors.  These courts have based that conclusion on the Supreme Court's rejection in Kimbrough of the notion that Congress could effectuate such a limit on a district court's sentencing discretion implicitly....

We join the majority of our sister circuits to have addressed this issue.... Indeed, as stated earlier, the Supreme Court admonished that "[d]rawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms."  Kimbrough, 552 U.S. at 103 (emphasis added). The PROTECT Act lacks any such express directive....

In conclusion, we hold that the Supreme Court's decision in Kimbrough undermined this circuit's precedent holding that the PROTECT Act evinced a congressional intent to limit a district court's sentencing discretion to vary downward in recognition of the unavailability of Fast Track in a given judicial district.

Related posts on related issues and rulings:

October 18, 2011 at 01:04 PM | Permalink


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About time.

Posted by: Michael R. Levine | Oct 18, 2011 2:53:44 PM

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