On March 27, 2009, the Circuit granted the government’s unopposed motion to dismiss the appeal with prejudice. The panel opinion that was going to be considered en banc remains vacated.
What this move means for us. . . .
It’s worth checking out fd.org to look at the materials in this case. In a nutshell, on July 22, 2008, the panel of Judges Boggs, Batchelder, and Bell (W.D. Mich.) concluded that the variance in the case was unreasonable. Guidelines were 262 to 327 b/c of career-offender status. Dist. ct gave 150-month sentence. Panel said sentence unreasonable b/c not based on individual circumstances of case, but rather, on disagreement with career-offender guideline. Dismissal of the appeal based on the government’s motion seems good.
And it seems natural after Spears v. United States, 129 S. Ct. 840 (2009), and United States v. Johnson, 553 F.3d 990, 992 (6th Cir. 2009) (vacating sentence and remanding for resentencing because "Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this" and "because the district court sentenced [the defendant] without the benefit of Spears"—remand for resentencing necessary "to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines"). Maybe Funk is a sign that courts are recognizing that policy disagreements with the Guidelines will support a variance outside the arena of the crack guideline.