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03-3366 U.S. v. Newsom

By: dmc-admin//November 7, 2005//

03-3366 U.S. v. Newsom

By: dmc-admin//November 7, 2005//

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“Prior to Booker, disparities resulting from the proper application of the Guidelines were not a permissible reason for a departure from a properly calculated sentencing range. See United States v. Meza, 127 F.3d 545, 549-50 (7th Cir. 1996). Now that the district court is obliged directly to confront all of the § 3553(a) factors, however, comparison of sentences has become a permissible part of the overall sentencing determination. Both before the district court and before this court, Newsom has attempted to rely on our earlier expressed concern about marginal deterrence. In affirming the district court’s application of the Guidelines, we noted that the length of Newsom’s overall sentence, 324 months or 27 years, was troubling in light of theories of marginal deterrence, which provide that the harshest sentences should be reserved for the most heinous behavior. Newsom I, 402 F.3d at 785-86. What, we asked, of the defendant who does something even worse than Newsom?

“While comparisons are appropriate, it is important in the first instance to recall that the Guidelines were intended to create national uniformity, and that this goal remains important post-Booker. It is not enough for a defendant to argue that a few cases from any particular circuit seem to cast doubt on his sentence. In addition, one needs to know more than the crime of conviction and the total length of the sentence to evaluate disparities; the specific facts of the crimes and the defendant’s individual characteristics are also pertinent. The district court was entitled to conclude that the differences in the facts of each of the cases Newsom cited justified the more severe sentence for Newsom. For example, in Cunningham, the defendant was convicted of a single crime involving a single victim, not 23 crimes involving two children in his own home as well as the many others depicted in pictures found on his computer. In Schmeilski, the defendant pleaded guilty, thereby giving some reason to think that he recognized his wrongdoing and thus was worth the risk of a lower sentence. In Snyder, the defendant was not in a position of authority or trust relative to the victim; in addition, his convictions were based upon actions with only one victim, although what happened to that victim was particularly egregious. In none of these cases was the defendant’s sentence enhanced for obstructing justice. Newsom has only himself to blame for the increase attributable to his flight from the jurisdiction.”

Affirmed.

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Wood, J.

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