Sixth Circuit affirms above-guideline sentence based on Gall
More proof that the Gall decision will not always benefit defendants comes today in US v. Klups, No. 06-1931 (6th Cir. Jan. 10, 2008) (available here), which affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion ends (some cites tweaked):
Klups argues that because his sentence is “twice the high end of the advisory Guideline range” the district judge had to offer a “compelling justification” for the sentence. Prior to the Supreme Court’s opinion in Gall, we held “that the farther the sentencing court varies from the guidelines range one way or another, the more compelling the justification for that variance must be.” United States v. Funk, 477 F.3d 421, 426 (6th Cir. 2007). The majority opinion in Gall, however, “reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range . . . [as well as] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 128 S. Ct. at 595. The Court in Gall explained “why the Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220 (2005).” Id. at 594. Certainly, in considering the § 3553(a) factors in the course of determining “that an outside-Guidelines sentence is warranted,” the district judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 597. Gall, however, further clarified the distinction between the role of the district courts and that of the courts of appeals. After Gall, “we no longer apply a form of proportionality review to outside-Guidelines sentences” … United States v. Bolds, No. 07-5602, 2007 WL 4440403, at *10 (6th Cir. 2007). We conclude, in the words of the Supreme Court in Gall, that “[o]n abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S. Ct. at 602.