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A judge’s decision to give a defendant a lower sentence because he had a “gut” feeling about him has been upheld by a federal appeals court. Western District Judge David G. Larimer told the defendant, “I still have the sense that Eric Jones is capable of doing much better,” before ordering that he serve 15 months in prison instead of the 30-37 months called for by the U.S. Sentencing Guidelines. The government appealed, arguing that the judge relied on several reasons that the U.S. Sentencing Commission has found are not “ordinarily” relevant in “determining whether a departure is warranted” and that Judge Larimer was wrongly employing a subjective analysis when he cited his “gut feeling” about Mr. Jones. The circuit split on the issue, with Judge Jon Newman and Robert Katzmann ruling against the government in United States v. Jones, 05-2289-cr, and Chief Judge John M. Walker dissenting. The decision will be published Wednesday. The issue was the degree of discretion afforded judges in the wake of United States v. Booker, 543 U.S. 220 (2005), where the U.S. Supreme Court ruled unconstitutional those aspects of the guidelines that require a judge to issue a sentence in a particular range. Under the new “advisory” guidelines, judges are required to “consider” them and then issue a sentence that is reviewed for “reasonableness” as to whether the sentence is within the structure set forth by the commission or whether, as in the case of Judge Larimer, a “non-guidelines” sentence is applied. Mr. Jones was arrested after police found five bags of marijuana at his barbershop along with three guns. With a criminal record that already included a guilty plea of attempted criminal possession of a controlled substance, Mr. Jones pleaded guilty in November 2004 to being a felon in possession of a firearm under a plea agreement that called for, under the then-mandatory guidelines, 30-37 months. But when the Supreme Court handed down Booker in January 2005, Judge Larimer indicated he thought the sentence was too harsh. Mr. Jones was able to withdraw his guilty plea and, in anticipation of a lighter sentence, plead guilty to both the firearms count and another count of possession of marijuana. Judge Larimer cited Mr. Jones’ work ethic, his support of his wife and son and other members of his family, the recent death of his father, his attempt to finish college, and “his very good and positive” adjustment to probation. Finally, the judge noted the fact that Mr. Jones, who was ordered to spend three years on supervised release, would be eligible for a much longer prison sentence if he strayed. “I just had a gut feeling about you,” he told Mr. Jones. At the circuit, Judge Newman and Judge Katzmann dismissed the government’s argument on the lower court’s use of factors that are not “ordinarily” grounds for departure. “With the entire guidelines scheme rendered advisory by the Supreme Court’s decision in Booker, the guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated guidelines ranges themselves,” Judge Newman wrote. And while judges have an obligation to consider the guidelines as well as any relevant policy statements by the commission, “consideration does not mean mandatory adherence.” The majority also rejected the government’s objections to Judge Larimer’s “gut feeling.” While the sentencing judge must consider all the relevant factors outlined in 18 U.S.C. �3553(a), he said, “the judge is not prohibited from including in that consideration the judge’s own sense of what is a fair and just sentence under all the circumstances.” That is the historic role of sentencing judges, and it may continue to be exercised, subject to the reviewing court’s ultimate authority to reject any sentence that exceeds the bounds of reasonableness.” Judge Larimer, the court explained, did not give specific reasons on why he chose 15 months as opposed to say, 14 or 16 months. “We decline to impose a requirement for such specific articulation of the exact number of months of an imposed sentence,” Judge Newman said. “Selection of an appropriate amount of punishment inevitably involves some degree of subjectivity that often cannot be precisely explained.” Judge Newman then addressed deference to the lower court, telling the government that it has to afford as much deference when a judge goes outside the guidelines to impose a higher sentence as when he goes outside to set a lower one. “Obviously, the discretion that Booker accords sentencing judges to impose non-guidelines sentences cannot be an escalator that only goes up,” he said. The court remanded the case solely for Judge Larimer to provide a written list of his reasons for the sentence. In dissent, Judge Walker said the failure to provide written reasons for the sentence should have led to the sentence being automatically vacated. And because “vacatur is already compelled by the lack of writing, I would not reach the question (as the majority did) of whether Jones’s sentence is substantially reasonable,” Judge Walker said. He said he had “difficulty accepting the fact that a district judge’s ‘feelings’ can support a fifty percent deviation from the low-end of the recommended guidelines range.” Judge Walker continued, “By upholding this below-guidelines sentence as reasonable, without first vacating to obtain adequate reasons in the written judgment, we invite a return to the days of wide-open discretion at the expense of both reduced sentencing disparity and fairness.” Assistant U.S. Attorney Steve Baczynski and U.S. Attorney Michael A. Battle represented the government. Assistant Federal Defender Roxanne Mendez Johnson and Jay S. Ovsiovitch represented Mr. Jones. Mark Hamblett can be reached at [email protected]

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