Tenth Will Not Often Second-Guess Within-Guidelines Sentence

U.S. v. Garcia, 2006 WL 2076799 (7/27/06)(unpub'd) - The defendant was not entitled to a lesser harms departure solely on the grounds that he inadvertently possessed the gun his wife inadvertently left in his truck. The defendant's sentence was reasonable even though the d.ct. did not impose a sentence below the range due to the unusually innocuous circumstances of the defendant's gun possession. The 10th's explanation reveals a lot about the 10th's philosophy in reviewing within-range sentences: "If the d.ct. had credited the defendant's account and rendered a below-range sentence we might well agree the reduction was reasonable. But, Booker was not intended to give appellate courts the freedom to determine sentences in accord with our sense of justice. It was to give district courts the latitude to do justice in an individual case." In other words, it's up to the district courts, not the 10th, to do justice.