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February 24, 2005

A simple solution to the pipeline problem?

The Second Circuit's powerful decision late yesterday in Williams explaining its Crosby approach to plain error (discussed here, now available on-line here), as well as the cert. petition in the Eleventh Circuit's Rodriguez decision (discussed here), spotlight dramatically the disparate circuit approaches to some of the pipeline cases.  And considering that plain error is only one of the challenging pipeline issues facing the circuit courts, I have lately been thinking about whether there is some easier way to deal with all the pipeline cases.

Here is my latest thought.  How about this blanket rule to be applied to all non-final cases at any stage of appellate review: if the original sentence was at the guidelines minimum, a strong (but rebuttable) presumption that resentencing is appropriate; if the original sentence was above the guidelines minimum, a solid (but rebuttable) presumption that resentencing is not needed?

In other words, forget about plain error, harmless error, Rule 28(j) letters, etc; let's just have, in the name of greater uniformity, one blanket rule for all non-final cases still in the system.  If this is a good idea, could Congress or the USSC make it happen?

February 24, 2005 at 12:14 PM | Permalink

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Comments

I have to disagree with you professor. I don't think it is fair to have a presumption that if the judge did not sentence at the bottom of the guideline range that resentencing is not needed. Judges sentence people in different areas of the guideline range for all sorts of reasons, and we simply cannot get into their heads that easily. Some judges sentence right in the middle of the guideline range most of the time, regardless of which range they are in. Also, some judges will appease prosecutors who want a higher point level calculation by sentencing at the top of the range. There is just too many variables for such a presumption.

Posted by: Laura | Feb 24, 2005 12:25:55 PM

With the caveat that I am of course and advocate and not a neutral, I think that the first part of the proposal (presumption in favor of resentencing if judge sentenced at bottom of guidelines range) is clearly correct. The second part (opposite presumption if not) seems to me to suffer two flaws, though I may feel them to be bigger flaws than others would: (a) it does not reckon with the fact that many lawyers probably did not put in a great deal of evidence of the sort that would now make a variance reasonable, since the incentive for putting in such evidence was lower when all it could get you was a few months' difference within the range -- so the judge who sentenced in middle of range the first time might well say, upon seeing a fuller picture on remand, "this is a case for a variance." (b) the problem of downward-departures-correctly denied. A judge who correctly denied a downward departure under old law might have sentenced in the middle of the range out of deference to the sentencing commission's view that this was not a good reason to reduce a sentence, while the same judge emboldened by Booker might well say "Departure or not, I'm varying on this basis."

Then again I seem to have the flu so this may all be stupid.

Posted by: Sam Heldman | Feb 24, 2005 12:45:26 PM

This is the approach suggested by Judge Bogg's dissent in Barnett. I think it is basically correct, although we would want to leave open the possibility that something the record might rebut this presumption (such as a sentencing Judge's statement that a sentence at the bottom of the range was fair and the defendant didn't deserve anything more lenient).

A Judge who sentences in the middle of the range is already choosing not to be more lenient even when they have the discretion too. No reason to think that piling on more discretion would change that outcome.

Posted by: Anon | Feb 24, 2005 1:06:53 PM

I disagree. A judge may have sentenced at the top of a guideline range, but that doesn't mean he would again if factors not addressed at the original sentence were brought to his attention.

Posted by: Richard Crane | Feb 24, 2005 3:27:43 PM

I disagree. A judge may have sentenced at the top of a guideline range, but that doesn't mean he would again if factors not addressed at the original sentence were brought to his attention.

Posted by: Richard Crane | Feb 24, 2005 3:27:47 PM

This doesn't necessarily make sense. Even aside from the fact that different arguments might be made to the judge in a discretionary system, a judge who accepts the Guidelines range as binding might mechanically sentence a defendant to the middle of the range because he or she views the defendant as an average offender for his offense level, but might think the entire range is too high, for one reason or another, and impose a lower sentence if given more freedom in determining the starting point.

Posted by: Meir Feder | Feb 24, 2005 4:56:47 PM

The comments above are well taken, and Judge Newman's opinion in Williams really adresses them. When all elements of plain error except prejudice are present, and there exists the ready expedient of making inquiry of the district judge as to prejudice, is it not unjust (to either party potentially) not to make that inquiry? That is, the Crosby solution is both pragmatic and just: what more do you want?

Posted by: David in NY | Feb 24, 2005 5:10:31 PM

I agree that Crosby presents the most reasonable and practical solution. If another were needed, however, maybe a modified Professor Berman-type approach could work as follows: (1) resentencing would per se be required when the sentencing court had originally granted a downward departure or made any comments suggesting the sentence would have been lower absent mandatory guidelines, (2) a rebuttable presumption requiring resentencing would apply when the sentence was anywhere but the top of the applicable range and (3) a rebuttable presumption against resentencing would apply when the court had originally granted an upward departure, sentenced at the top of the applicable range or made any comments suggesting that the sentence would have been higher absent mandatory guidelines.

As with the other commentators, I believe there are reasons to resentence or reconsider even in the last category and I would not restrict Crosby-style, limited, remands in any case in which a sentence was imposed under mandatory guidelines. But, for unlucky defendants in circuits like the 11th, for example, I'd rather see the possibility of more widespread relief, even if a nationwide approach were more restrictive than the wise, noble and intellectually-honest one articulated in Crosby.

It's sad that we might have to compromise the protection of all defendants' fundamental rights simply because some courts have brushed them aside in decisions that appear to have been driven less by principled analysis than a philosophy favoring the preservation of harsh sentences at any cost.

Posted by: Alex E. | Feb 25, 2005 9:46:16 AM

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