COA Reissues Decision in US v. Pruitt

U.S. v. Terri Pruitt --- F.3d ----, 2007 WL 2430125(10th Cir. August 29, 2007)

The earlier published opinion from June 4 is pulled and the 10th issued this opinion, with corrections (adding Rita, and clarifying that D did not object to the presumption of reasonableness in the district court, but objected to its application on appeal) , after granting a panel re-hearing. En banc consideration was denied. The holding and reasoning did not change.

The Tenth affirmed a 292-month GLs sentence for a career offender with old, petty nonviolent drug priors because the district court correctly analyzed the 3553(a) factors and reasonably found the GLs sentence appropriate to promote respect for law and adequately punish Ms. Pruitt. She did not rebut the presumption of reasonableness accorded to her GLs sentence and "the sentence would be reasonable-even if marginally so-absent the presumption." McConnell writes a thoughtful concurrence, noting that the rebuttability of the presumption of reasonableness is more theoretical than real. In the two years since Booker, only one of the thousands of GLs sentences reviewed by the twelve COAs has been declared substantively unreasonable and the exact same sentence was imposed on remand in that case, later affirmed by the 8th Cir. "This makes me suspect that the real holding of this case-and of dozens like it-is that a substantively unreasonable within-Guidelines sentence does not exist. This raises the question of what we all are doing, and why." Although McConnell characterizes this case as an "ideal candidate" for a variance or a departure and concludes that Ms. Pruitt's sentence was "wildly excessive," he also concludes that it is sensible to presume reasonable the district court's exercise of discretion to impose a GLs sentence.