1) The standard of review is set forth in Rita v. United States,XXXXX 2456, 168 L.Ed.2d 203, 551 U. S. 338 (2007). There the court
stated a sentence imposed within a properly calculated Guidelines range is presumptively reasonable. The "reasonableness" review merely asks whether the trial
court abused its discretion, the presumption applies only on appellate review. See: United States
543 U.S. 220 (2005). “A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Campa
, 459 F.3d 1121, 1174 (11th Cir.2006)
(en banc). As for the third way that discretion can be abused, a district court commits a clear error of judgment when it considers the proper factors but balances them unreasonably. See Ameritas Variable Life Ins. Co. v. Roach
, 411 F.3d 1328, 1330 (11th Cir.2005)
(“[A]n abuse of discretion can occur ... when all proper factors, and no improper ones, are considered, but the court, in weighing those factors,
commits a clear error of judgment.” (emphasis added) (quotation marks omitted)). The principle that discretion can be abused by unreasonably balancing proper factors is solidly established in Supreme Court precedent and our circuit law. See, e.g., Piper Aircraft Co. v. Reyno
, 454 U.S. 235, 257
, 102 S.Ct. 252, 266
, 70 L.Ed.2d 419 (1981)
(“The forum non conveniens
determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable,
its decision deserves substantial deference.” (emphasis added)); Ford v. Brown
, 319 F.3d 1302, 1308 (11th Cir.2003)
(“We conclude that the district court overlooked some highly relevant factors, and that it ultimately struck a balance that was an abuse of discretion.”).
2) The 11th Cir. takes these cases where the government makes recommendations at the bottom range to mean that anything within that "range" would be a reasonable sentence, even though it is not the absolute minimum in the bottom range. See: United States v. Howard, No. 07-15199 (11th Cir. 11/5/2008) (11th Cir., 2008)
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