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Fifth Circuit rebukes effort to give a lot more bite to reasonableness review

By Douglas A. Berman

The Fifth Circuit has just released an important little opinion in in US v. Duarte, No. 08-50902 (5th Cir. June 1, 2009) (available here). The ruling covers a lot of important ground in only a few pages, and here are some of the most notable passages: Citing language from the Supreme Court?s judgment in Kimbrough that highlighted a lack of empirical support for crack versus powder cocaine sentencing disparities as a factor supporting the district judge?s discretionary downward departure in that case, Duarte claims that an examination of a Sentencing Guideline?s empirical basis is now indispensable before appellate courts can apply a presumption of reasonableness to within-Guidelines sentences imposed by district judges.  In essence, Duarte asks us to remove the presumption of reasonableness as to this and other allegedly non-empirically-grounded provisions of the Guidelines...continue to full post

Full post as published by Sentencing Law and Policy on June 03, 2009 (boomark / email).