042901P.pdf   08/20/2009  United States  v.  Travis Ray Burns
   U.S. Court of Appeals Case No:  04-2901
                          and No:  04-2933
   U.S. District Court for the Northern District of Iowa - Sioux City   
   [PUBLISHED] [Judge Wollman, for the Court En Banc]
   Criminal case - Sentencing. On remand from the Supreme Court for
   reconsideration of the court's en banc opinion in light of Gall v. United
   States. For the court's panel opinion in the case, see United States v.
   Burns, 438 F.3d 826 (8th Cir. 2006). For the court's prior en banc opinion,
   see United States v. Burns, 500 F.3d 756 (8th Cir. 2007). The government
   is under no obligation to apprise the district court with respect to the
   bases underlying its recommendation of a particular downward departure
   under 18 U.S.C. Sec. 3553(e) in the absence of a showing that the its
   recommendation was based upon an unconstitutional motive such as race
   or religion; Gall has not affected the limitations imposed by 18 U.S.C.
   Sec 3553(e) upon the district courts' authority to impose a sentence
   below the statutory minimum; the standard of appellate review laid down
   in Gall applies to the court's review of a sentence imposed under the
   provisions of 18 U.S.C. Sec. 3553(e); after putting aside all notions of
   exceptional/extraordinary circumstances, departure percentages,
   proportionality review and similar data-based standards of review, the
   question for the appellate court is whether the reduction granted the
   defendant is substantively unreasonable; here, the court could not say the
   sentence was unreasonable or an abuse of discretion, and it is affirmed.
   Judge Bright, concurring, joined in part by Judge Bye. Judge Colloton,
   dissenting, joined by Chief Judge Loken and Judges Riley and Gruender.
  
042901P.pdf   08/27/2007  United States  v.  Travis Ray Burns
   U.S. Court of Appeals Case No:  04-2901
                          and No:  04-2933
   U.S. District Court for the Northern District of Iowa - Sioux City   
   [PUBLISHED] [Wollman, Author, joined by Loken, Chief Judge,
   Arnold, Murphy, Riley, Melloy, Smith, Colloton, Gruender, and Benton,
   Circuit Judges]
   Criminal case - Sentencing. Determination of the value of the
   assistance a cooperating defendant provides law enforcement in any given
   circumstance must be viewed in light of the entire defendant behavior
   associated with that circumstance, and requiring more qualitatively
   impressive substantial assistance to justify progressively larger departures
   furthers the goal of reducing unjustified sentencing disparities while
   recognizing that situations exist at the tapering edge of the assistance
   bell-curve that justify departures that substantially exceed the Sentencing
   Guideline's range; here, the district court abused its discretion in granting
   defendant a 60% departure based on his substantial assistance, as the
   timeliness of his assistance and its truthfulness and completeness were
   not so exceptional as to merit the size of the departure; further, while the
   nature and extent of defendant's assistance was not inconsiderable, to
   grant such a large departure on this basis would leave little room for more
   substantial and extensive assistance by other defendants; district court did
   not err in using 360 months as the starting point for any departure, as the
   government's filing of a 5K1.1 motion did not waive the application of
   the mandatory life sentence which applied in the case. Judge Bright,
   dissenting in part on the issue of the extent of the departure and
   concurring in part on the issue of the starting point, joined by Judge Bye.
   Judge Bye, dissenting in part on the issue of the extent of the departure
   and concurring in part on the issue of the starting point, joined by Judge
   Bright. 
  
042901P.pdf   02/16/2006  United States  v.  Travis Ray Burns
   U.S. Court of Appeals Case No:  04-2901
                          and No:  04-2933
   Northern District of Iowa   
   [PUBLISHED] [Bye, Author, with Wollman and Bright, Circuit Judges]
   Criminal case - Sentencing. District court's sixty percent downward
   departure based on defendant's cooperation was not excessive. Judge
   Wollman, dissenting.