Tenth Affirms Within-GL Sentence Post-Gall

U.S. v. McComb, --- F.3d ----, 2007 WL 4393142 (10th Cir. Dec. 18, 2007).

A first, not very elucidating grappling with Gall, in an opinion by Gorsuch, in which a within guidelines sentence at the low end is deemed reasonable. There is the discussion of procedural and substantive reasonableness. This panel made a point to assert that there was still an appellate role post-Gall. It quoted the Gall language about a major departure needs to be supported by significant justifications, and it reviewed the component parts of an abuse of discretion review, emphasizing that an error of law constitutes an abuse of discretion.

It was interesting that the 10th acknowledged compelling reasons for the defense- requested variance–D had a very debilitating stroke after his arrest supporting a claim that any danger of continuing criminal behavior was minimized and that he was better medically cared for outside of the BOP. However, there was record evidence that D was more capable than he argued, and the sentencing court received assurances from the BOP that they could care for D–these were factors taken into account by the district court in not going with the variance requested by the D.