Sentencing turmoil flusters full 8th Circuit

A chastened 8th U.S. Circuit Court of Appeals last week affirmed a lenient prison sentence it had once thrown out, following a U.S. Supreme Court decision that has helped roil the world of sentencing guidelines.
On Thursday, the court en banc issued a divided opinion on the fate of Travis Ray Burns, a defendant in Iowa who had come before the court twice before. Burns was indicted on drug charges and faced 30 years in prison. Because of Burns’ cooperation, federal prosecutors asked that his sentence be reduced by 15 percent. Instead, Judge Mark Bennett of the Northern District of Iowa reduced the sentence by 60 percent, to 12 years.
In 2006, a divided 8th Circuit panel affirmed the decision. A year later, the entire court heard the case again and rejected the sentence reduction, saying it “exceeds the bounds of reasonableness.”
However, Burns’ case went to the U.S. Supreme Court, which remanded the case last year as part of the high court’s ongoing reformation of the way criminal sentences are determined. In its 2005 decision U.S. v. Booker, the Supreme Court said the previously mandatory Sentencing Guidelines were “effectively advisory.”
Then in 2007, the high court reversed an 8th Circuit case, Gall v. U.S. The decision rejected an 8th Circuit rule, articulated in the first en banc Burns decision, requiring that deviation from the guidelines had to be justified by extraordinary circumstances. The rule also said the reduction needed to be proportional to the circumstances, which the Supreme Court derided as using a “rigid mathematical formula” to determine whether a sentence should be upheld.
Burns was remanded in the wake of the Gall ruling.
On Thursday, eight judges acquiesced to the Supreme Court and affirmed the district court’s original opinion. The majority indicated that its job was to make sure the sentence was “capricious, whimsical, impressionistic, or ire-driven.”
“The question then is whether, after putting aside all notions of exceptional/extraordinary circumstances, departure percentages, proportionality review, and similar data-based standards of review, the reduction granted to Burns is substantively unreasonable. We conclude that it is not,” Judge Roger L. Wollman wrote.
Judges Diana E. Murphy, Michael J. Melloy, Lavenski R. Smith, Duane Benton and Bobby E. Shepherd agreed.
Judges Myron H. Bright and Kermit E. Bye wrote an almost gleeful concurring opinion congratulating the court for abandoning its previous rule and putting sentencing discretion “in the district court, just where it should be.”
“Thus begins a new era in sentencing, hopefully creating fairer sentences than many meted out under the mandatory guidelines regime,” Bright wrote.
Both Bright and Bye were in the majority on the original panel that sided with the district judge.
However, Judges Steven M. Colloton, James B. Loken, William Jay Riley and Raymond W. Gruender dissented, writing that the Gall ruling “does not justify wholesale abandonment” of the 8th Circuit’s proportionality rule and that Thursday’s decision is an “elimination of meaningful appellate review.”
Colloton, writing for the dissent, said Burns’ sentence reduction was done under a different section of statute than in the Gall and Booker cases. The statute used in Burns allows judges to reduce sentences if the defendant has cooperated with authorities.
Colloton said the Supreme Court’s concern has been that excessive sentences violated defendant’s Sixth Amendment protections against cruel and unusual punishment. However, he said, under the statute in question, sentences can only go down, not up.
“With no Sixth Amendment concerns … there is no reason to abandon a framework that is designed to keep sentence reductions tethered to the structure of the guideline system that Congress created,” he wrote.
Colloton also wrote that the decision puts more power in the hands of the U.S. attorney, who has the sole discretion whether to seek the sentence reduction for cooperation.
“The decision is a victory for Burns, but it will not necessarily benefit the class of cooperating defendants as a whole,” he wrote.
The U.S. Attorney’s Office for the Northern District of Iowa did not return a call seeking comment. Burns’ attorneys, R. Scott Rinehart and Doug Berman, could not be reached for comment. Berman is a professor at Ohio State University’s Moritz College of Law who writes frequently on sentencing disparity issues.
This is not the first time the 8th Circuit has divided over sentencing. Last month, the court en banc split in U.S. v Feemster, a case from the Eastern District of Missouri concerning a 20-year sentence reduction. The 10-1 decision resulted in four opinions.
The case is U.S. v. Burns, 04-2901.