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Unpublished Sixth Circuit ruling addresses departure/variance distinction

By Douglas A. Berman

The Sixth Circuit released an interesting unpublished ruling in US v. Simpson, No. 08-5293 (6th Cir. Sept. 16, 2009) (available here), which finds procedurally unreasonable a district court sentencing determination that failed to properly distinguish its departure authority and its post-Booker variance authority.  Here are some key sections of the ruling (with cites left out): Both at sentencing and in the STR, the court followed the same model of (1) calculating the Guidelines range; (2) determining if any of the mitigating factors presented ?extraordinary circumstances? sufficient to justify a Guidelines departure; and (3) determining what sentence within the relevant range was justified in light of the factors set forth in § 3553(a). This approach is impermissible for several reasons...continue to full post

Full post as published by Sentencing Law and Policy on September 18, 2009 (boomark / email).