Tenth Reels In Another Below-Guideline Sentence

U.S. v. Garcia-Lara, --- F.3d ----, 2007 WL 2380991(10th Cir. August 22, 2007)

10th reverses the district court’s below-career-offender-guidelines variance on Defendant’s plea to possession with intent to distribute over 500 gr. of meth., sentencing him to what the GL would be if he were not CO. (Judge Lucero dissents)

The 10th sets out to explain in detail its reasonableness review post-Booker, noting that Rita has not changed reasonableness review and that it has always been centered in an abuse of discretion standard.

The sentence imposed by the district court was 47% lower and a full 122 months less than the advisory guidelines. The district court erred in determining that Defendant’s drug priors, though involving small amounts when he was young and not entailing any violence, overstated his criminal history making the CO GL inappropriate. Moreover, the district court failed to consider that Defendant’s sentence was disparate when compared to other career offenders.

But...Judge Lucero dissents. He analyzes post-Booker and post-Rita Tenth Circuit case law as essentially mandating that district courts sentence within or above the guidelines range or risk reversal.