U.S. v. SHAW, 2009 WL 510323 (11th Cir. March 3, 2009)
The defendant appealed for his statutory maximum sentence of 120 months for possession of a firearm by a felon, claiming it was an unreasonable upward variance from the sentencing guidelines range of 30 to 37 months. Predictably, the outcome was not good for Mr. Shaw, as three sentences into the opinion Judge Carnes described his rap sheet as “long enough to require extra postage.” The Court applied a two-step process for reviewing this upward departure. First, determining whether the district court committed a significant procedural error (e.g. improperly calculating the guidelines range, treating the guidelines as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly erroneous facts or failing to adequately explain the chosen sentence, including any deviation from the guidelines.) If the first step is met, the second step is to review the sentence’s “substantive reasonableness under the totality of the circumstances” including “the extent of any variance from the Guidelines range.” Quoting from Gall v. United States 128 S. Cr 586, 597 (2007). After discussing Shaw’s lengthy prior criminal history and his continued recidivism, the appellate court upheld the sentence as reasonable given the district court’s wide latitude, reasoning that the defendant had many chances and the public needed to be protected from Shaw’s further crimes.
