Still more government Booker wins around the circuits
Perhaps it is a cold dark winter that is making me feel cold and dark about the prospects for sensible sentencing reform. Though Supreme Court rulings like Cunningham help keep me warm, the all-too-common tales of extreme punishments are getting me down. Also getting me down, though this is not a new development, are circuit court Booker rulings. A set of rulings today from the Third and Eighth Circuits show, yet again, how reasonableness review in the circuit means “the government almost always wins.”
The Third Circuit ruling, US v. Colon, No. 05-3684 (3d Cir. Jan. 29, 2007) (available here), affirms an upward varaiance of more 43 months, and in so doing stresses the relative unimportance of the guidelines when a district judge decides to sentence upward: ” The fact is that when a court sentences post-Booker and views all of the section 3553(a) factors the guidelines range is simply one factor for it to consider in arriving at the sentence.”
The Eighth Circuit rulings, in telling contrast, both reverse downward variances. See US v. Pool, No. 06-2096 (8th Cir. Jan. 29, 2007) (available here) and US v. Williams, No. 06-2532 (8th Cir. Jan. 29, 2007) (available here). In Pool, the Eighth Circuit concludes that the district court, by varying down 33 months, “gave too much weight to the effect of any potential incarceration on Pool’s employees, Pool’s charitable record, and his medical condition.” In Williams, the Eighth Circuit reaches the (debatable) conclusion that, even after Booker, a district court is only authorized to rely on substantial assistance factors (and no other factors) when departing below a mandatory minimum based on a government’s motion.