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An 8th U.S. Circuit Court of Appeals judge warned recently that the appellate court may be creating unconstitutional sentencing precedents that violate the spirit of last year’s Supreme Court decision in U.S. v. Booker, which gave judges discretion to shape reasonable sentences. Nationally, circuits have been grappling with how much leeway to give trial judges in fashioning sentences that are either more or less lenient than the traditional guideline range established by the U.S. Sentencing Commission. The 8th Circuit overturned the 11-year prison term for repeat offender Jeffrey A. McDonald in a methamphetamine case because it was less than half the recommended sentencing guideline range of 22 to 27 years and just one year more than the law’s minimum limit. The court ordered resentencing without such an extreme variance. This prompted Judge Kermit E. Bye to point out in dissent that, since the Booker decision, the 8th Circuit has reversed 25 sentences below the guideline range while affirming four, yet affirmed 16 sentences above guideline range while reversing just one. “If we fail to implement the promise of Booker and do no relinquish greater discretion to experienced district court judges whose proximity to sentencing renders them eminently more qualified to appreciate the subtleties of each case, we will find ourselves the architects of a new-and equally unconstitutional-de facto mandatory sentencing system crafted from the ashes of the last,” Bye wrote in U.S. v. McDonald, No. 05-1617. Around the country, six circuits have held that sentences within the guideline range are presumptively reasonable. Only the 2d Circuit declined to create a per se rule on the reasonableness of any sentence within approved ranges. U.S. v. Crosby, 397 F.3d 103 (2005). Last year, in U.S. v. Booker, 543 U.S. 220 (2005), the U.S. Supreme Court struck down the portion of the Sentencing Reform Act that made guidelines mandatory, holding that it violated a defendant’s Sixth Amendment right to trial by jury, and converting the 20-year-old guideline system to advisory status. Bye invited the circuit panel to re-examine its recent sentencing rulings, a challenge taken up by Judge Raymond W. Gruender in a lengthy footnote in his majority opinion. Seven of the 25 lower sentences were vacated because the sentencing judge did not explain the reason, and may be upheld when properly explained, according to Gruender. Another seven were reductions of more than 100 months and five others gave no prison time when guidelines called for one to five years, he said. McDonald’s attorney, Kevin Cmelik, an assistant federal public defender in Davenport, Iowa, said that his office may seek reconsideration by the entire court. “In this circuit there is a debate building over how right we are in our reasonableness doctrine,” he said. Andrew Kahl, chief of the criminal division in the U.S. Attorney’s Office in the Southern District of Iowa who argued the McDonald appeal said, the “variance wasn’t warranted on the facts presented” in the case. “It was a very extreme drop from the sentencing guidelines.”

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