US v. Martin, No. 06-1983. This case begins with “This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda.” The defendant, in this case sought to be sentenced at the statutory minimum for a career offender under 21 U.S.C. § 841(b)(1)(B), which would be ten years. The defendant got twelve years. The government appeals. A year later, the Judge wrote a post-sentencing memorandum.
The First ends by saying it does not like really late-filed sentencing opinions – that were filed after the case was briefed on appeal. The First says: 1) 18 U.S.C. § 3553(c) requires that the reasons for the sentence be stated in open court; 2) after the notice of appeal the District Court lacked jurisdiction; and 3) when the district court files a tardy sentencing memorandum after an appeal has been taken, it runs a risk of creating an unwelcome appearance of partisanship. But, still there might be some cases where a late-filed memorandum might be good.
After the appeal, Gall v. U.S., No. 06-7949 (Dec. 10, 2007) came down. The First sees Gall as adopting its way of sentencing, “A sentencing determination should begin with the calculation of the particular defendant's GSR. As a final step in arriving at a defendant's GSR, the district court must assess the appropriateness vel non of any departures.” On appeal, “Once the appellate court has satisfied itself that the sentence is procedurally sound, it must proceed, under the same abuse of discretion rubric, to review the substantive reasonableness of the sentence, taking into account the totality of the circumstances.”
The First explains that it will look at the District Court’s contemporaneous explanation for the sentence. The First rejects the government’s argument that a policy statement in the Guidelines precludes reliance on the defendant’s family circumstances, but concludes that “Nevertheless, such policy statements normally are not decisive as to what may constitute a permissible ground for a variant sentence in a given case.” Likewise, the First says that the defendant’s potential for rehabilitation seems pretty high, so 18 U.S.C. § 3553(a)(2)(C), helps him out.
The First rejects the government’s argument that consideration of co-defendant’s sentences is forbidden. It says it has some appeal, but Gall approves of its practice of “in appropriate cases, to align codefendants' sentences somewhat in order to reflect comparable degrees of culpability — at least in those cases where disparities are conspicuous and threaten to undermine confidence in the criminal justice system.” Moreover, “A quick canvass of the codefendants' sentences reveals that the majority were variant, below-the-range sentences, and a remarkable number of those sentences premised downward deviations on reasons quite similar to those proffered by the district court in the instant case.”
The First also explains that “Kimbrough, 128 S. Ct. at 574-75, opened the door for a sentencing court to deviate from the guidelines in an individual case even though that deviation seemingly contravenes a broad policy pronouncement of the Sentencing Commission.” So, the government’s argument that when sentencing a career offender near the statutory minimum contravene’s the commissions’s intent fails, because Kimbrough says that the judge can reject the commission’s policy positions.
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