A triple discretion smack-down from the Eighth Circuit

I just finished reading the Eighth Circuit’s troubling en banc work yesterday in Burns (basics here), which led Judge Bright in dissent to express concern than a “majority of my colleagues … grant more deference and discretion to prosecuting attorneys than to the district judges of this country.”  And, providing no rest for the weary sentencing judge, today brings three more examples of the Eighth Circuit’s disinclination to credit its district judges’ sentencing judgments.  Here are summaries from this Eighth Circuit opinion page of today’s discretion carnage:

US v. Michael Hatcher, No. 06-2814 [Smith, Author, with Bye and Beam, Circuit Judges] (available here): Under the Guidelines, a mandatory consecutive sentence under 18 U.S.C. Sec. 924(c) is an improper factor to consider in making a departure on related felony sentences, and the district court erred when it reduced defendants’ sentences on the underlying felonies because of the length of the sentence required under 18 U.S.C. Sec. 924(c); the recidivism provision of 924(c) is a sentencing factor and not an element of the offense.

US v. Marlon J. Bradford, No. 06-3018 [Wollman, Author, with Riley and Benton, Circuit Judges] (available here): The Guidelines expressly limit the extent of a departure to a single criminal history level when the district court determines that the offender’s criminal history score is overstated, and the district court erred when it departed by five levels; none of the other factors cited by the court justified the extent of the departure, and the case is reversed and remanded for resentencing.

US v. Thomas M. Coughlin, No. 06-3294 [Riley, Author, with Loken, Chief Judge, and Bye, Circuit Judge] (available here): District court erred in finding defendant suffered from an extraordinary physical impairment and abused its discretion in departing downward eight levels pursuant to Guidelines Sec. 5H1.4; when it imposed an alternative non-Guidelines sentence, the court did not state the reasons for the sentence with sufficient specificity and relied on irrelevant and discouraged grounds in reaching the sentence. Judge Bye, dissenting.

With the below-guideline reasonableness cases Gall (an Eighth Circuit case) and Kimbrough in the SCOTUS works, I thought we might expect the courts of appeals to hold back on reversing below-guideline sentences.  Indeed, many other circuits have issued precious few non-guideline reasonableness decision in 2007.  But, apparently confident in its own views, the Eighth Circuit keeps telling its district judges that they do not understand the scope and import of their post-Booker discretion even as these SCOTUS cases are pending.