Monday, December 26, 2016

Yes, Virginia, there is such a thing as a no-empirical-basis-based downward variance

A couple of months ago, we blogged about United States v. Godinez-Perez, in which the Tenth Circuit reversed a drug-conspiracy sentence on grounds that the district court failed to make particularized drug-quantity findings.

That holding still stands, but another part of Godinez-Perez has been revised in an important way.

Astute readers may have noticed that near the end of the opinion, the Court held that the absence of an empirical basis for the methamphetamine guidelines "does not constitute a valid basis for a downward variance." This may have surprised those of you who have argued for and even won various variances on a similar no-empirical-basis basis in drug and pornography cases. And it may have worried those of you planning to seek similar variances in the future.

Worry no more. The Tenth Circuit removed the anti-variance language from the opinion last week, granting Mr. Godinez-Perez's motion for rehearing on that score.

Darth Vader Chok - I find your lack of empirical evidence Disturbing

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