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Below-Guideline Sentence Upheld Pursuant to Gall, Kimbrough

By Shari Allison

U.S. v. Smart, --- F.3d ----, 2008 WL 570804 (10th Cir. March 04, 2008) In the 10th?s first big post-Gall and Kimbrough decision, over Judge Hartz?s dissent, the panel (Judge Lucero writing the opinion) upholds the district court's variance of 48 months below the advisory guidelines, resulting in a sentence of 120 months in a child porn case. The government appealed. The panel designates the government?s claim that the district court relied on legally erroneous sentencing factors as claims of both procedural and substantive unreasonableness (it is this that draws the bulk of the dissent). By putting the claims in the category of ?substantive,? they are reviewed under the highly deferential abuse of discretion standard. Deference reigns, and U...continue to full post

Full post as published by Tenth Circuit Blog on March 05, 2008 (boomark / email).