The Champion

April 2009 , Page 53 

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Sentencing

By Christopher R. Clifton

Procuring the Parsimony Provision of § 3553(a) Through Expert And Lay Witnesses

Gall1 and Kimbrough2 signaled a potential sea change in federal sentencing, and several significant subsequent cases mandate that defense counsel provide sentencing courts with evidence upon which those courts can hang their proverbial hats. As all federal practitioners are aware, Gall held that a district court does not abuse its discretion by basing a below-guidelines sentence on offender characteristics. Equally important — and more deadly to the “guidelines-light” approach still resorted to by trial and circuit courts — is Kimbrough, which held that a district court does not abuse its discretion when it bases a below-guidelines sentence on disparities caused by the guidelines themselves.

Recently, the court in Spears v. United States3 reiterated the principles enunciated in Kimbrough. The district court recalculated Spears’ offense level based on a 20:1 crack-to-powder ratio. The Eighth Circuit (which als

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