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April 3, 2005

Circuit dicta suggesting guideline sentence could be unreasonable

As hinted in prior posts here and here, I have largely given up trying to track and report all the Booker circuit decisions.  With the three-way circuit split on plain error firmly entrenched (although we still await en banc plain-error ruling from the 8th, 9th and 10th Circuits), these days we mostly see unremarkable remands in those circuits not applying the toughest plain error standard, and some affirmances in those circuits applying the toughest plain error standard. 

Though some circuit opinions still merit a close read — such as the First Circuit's work in US v. González-Mercado, No. 03-2173 (1st Cir. Apr. 1, 2005) (available here), which is discussed by Appellate Law & Practice here — I plan only to post about decisions that seem to break new ground or raise new ideas.  (And I hope readers will help me identify those circuit decisions.)

I noticed this weekend decisions from the Second and Seventh Circuits that meet my new blogging standard because of dicta suggesting that sometimes even a guideline sentence might be found unreasonable post-Booker.  The Seventh Circuit's decision in US v. Newsom, No. 03-3366 (7th Cir. Apr. 1, 2005) (available here), does not directly speak to reasonableness, but its concluding comments when remanding a lengthy sentence in a pornography case almost encourages a variance.  Here's the key passage from Newsom:

The factors outlined in 18 U.S.C. § 3553(a), which now must directly inform criminal sentencing, reflect the need to take into account factors like the full nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense, and the need to afford adequate deterrence.  The district judge may conclude, on remand, that these and the other parts of § 3553(a) can be satisfied by something less than the 324-month sentence derived from the Guidelines grid.

Similarly, the Second Circuit's decision is in US v. Rubenstein, No. 03-2173 (2d Cir. Mar. 31, 2005) (available here), does not speak to reasonableness because it reverses and remands on the basis of a guideline calculation error.  But Judge Cardamone concurs in an interesting opinion (available here) in which he directly speaks to the concept of reasonableness and states that a guideline sentence could nonetheless be unreasonable.  In his words:

Correct application of the Guidelines is but one factor to be considered under 18 U.S.C. § 3553 in reviewing reasonableness, and it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasonable upon consideration of other factors.

These cases, and especially Judge Cardamone's comments, seem quite important as the plain-error dust settles and the new appellate battleground becomes the meaning of reasonableness review.  (Recall that the Fifth Circuit in Mares, as detailed here, nearly suggested that a sentence within the applicable guidelines will be per se reasonable, and I believe the government has been urging as much in its briefs.  But my own reading of Booker is more in line with Judge Cardamone's perspective on the need for "plenary" reasonableness review of even within-guideline sentences.)

April 3, 2005 at 09:00 PM | Permalink


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Dear Professor Berman:
I just wanted to post a quick "thank you" for your insightful analysis of the Booker-Fanfan decision. My firm represents an individual facing a sentence for violation of federal environmental laws, and your blog has helped us a great deal in trying to figure out what the judge may or may not do.
As a side note, you may not remember, but you were my criminal law professor in the fall of 1998. Hope all is well. Again, many thanks.
J.R. Hall

Posted by: J.R. Hall | Apr 4, 2005 10:26:19 AM

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