There has been much ado lately about the Sixth Circuit’s current 15-game losing streak and the Ninth Circuit’s perpetual trouncing by the Supreme Court. But gone unnoticed is another losing streak, one that has been just as disrespectful to the spirit of Supreme Court precedent: the Eighth Circuit’s dismal record in sentencing cases.
Over the course of six years the Eighth Circuit has steadfastly refused to follow the Court’s precedent when they think a criminal defendant deserves more punishment. For example, in Gall v. United States, 552 U.S. 38, 56 (2007), the Court stated that the Eighth Circuit “gave virtually no deference” to a district court’s decision to grant a substantial downward variance from the advisory Sentencing Guideline range even though that deference is what United States v. Booker, 543 U.S. 220 (2005) required.
After the Eighth Circuit reversed a criminal case for a sentencing error that neither party had raised (and which increased defendant’s sentence by 15 years), the Court stated in Greenlaw v. United States, 554 U.S. 237, 246 (2008), that “
In Spears v. United States, 555 U.S. 261 (2009) and Moore v. United States, 555 U.S. 1 (2009), the Court concluded that the Eighth Circuit’s decisions warranted the “bitter medicine of summary reversal.” (C.J. Roberts, dissenting).
Just last week, in Pepper v. United States, No. 09-6822, the Court added to the Eighth Circuit’s streak. And, just like they had in Greenlaw, the SG’s office refused to defend the judgment so the Court was forced to appoint amicus to do so. In reversing the Eighth Circuit’s ruling, the Court stated that:
The United States Court of Appeals for the Eighth Circuit concluded in this case that the District Court, when resentencing petitioner after his initial sentence had been set aside on appeal, could not consider evidence of petitioner’s rehabilitation since his initial sentencing. That conclusion conflicts with longstanding principles of federal sentencing law and Congress’ express directives in §§ 3661 and 3553(a).
It is interesting to me that little has been said in the media and blogosphere about the Eighth Circuit’s record on sentencing cases. The Ninth and Sixth get all the blame for being too liberal, but the Eighth is their counterpart—too conservative. I wonder how much more “judicial disregard” is needed before the Court addresses the Eighth in the manner it did to the Ninth earlier this year.