Wednesday, August 23, 2006

Third Circuit affirms above-range sentence but urges adherence to Hickman and Kikimura

In United States v. King, No. 05-1728 (July 11, 2006), the Third Circuit affirmed as reasonable an above-guidelines sentence despite recognizing the district court’s failure to follow the ratcheting and analogic procedures set forth in Hickman and Kikimura. At sentencing, the court denied the government’s motion for an upward departure based on non-economic harm to the victim, instead considering that factor under § 3553(a), and imposed an above-guidelines sentence on the bases of harm to the victim, King’s criminal history, and his lack of remorse.

Identifying support for the court’s sentencing decision in its discussion of relevant § 3553(a) factors, the Third Circuit nevertheless instructed the district courts to follow the requirement to "consider" the Guidelines by calculating a Guidelines sentence as they would have pre-Booker, including ruling on motions of both parties and stating on the record whether they are granting a departure and how the departure affects the Guidelines calculation; to state adequate reasons for the sentence on the record; as well as to consider this Circuit’s pre-Booker case law, which continues to have "advisory" force, specifically noting that courts must follow the procedures in Hickman and Kikimura before determining the appropriate sentence to be imposed.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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