August 10, 2005
Amazing reasonableness debate from the 8th
I have not been able to keep up with most of the Booker circuit action this week while I was attending the NASC Conference in DC. (Importantly, Appellate Law & Practice has some coverage of some recent Booker rulings, and I highly encourage readers to help me spot consequential cases I may have missed.) But there is one recent ruling on reasonableness coming from the Eighth Circuit that is important and fascinating for a number of reasons.
In US v. Winters, No. 04-3210 (8th Cir. Aug. 9, 2005) (available here) the district court, sentencing in a manslaughter case in the wake of Blakely, treated the guidelines as advisory and exercised discretion to disregard the guidelines' maximum sentence of 191 months in order to impose the statutory maximum of 240 months. By a split 2-1 vote, the Eighth Circuit upheld this sentence as reasonable. The majority opinion's discussion of reasonableness is light of the 3553(a) factors is relatively cursory, but it includes this interesting and important passage when rejecting the defendant's claim that his sentence was unreasonable for being outside the guidelines:
Applying Winters's argument, that the range of reasonableness is essentially co-extensive with the Guidelines range, would effectively render the Guidelines mandatory. We have been directed to review a sentence for reasonableness based on all the factors listed in § 3353(a)(6). The Guidelines range is merely one factor. We cannot isolate possible sentencing disparity to the exclusion of the all the other § 3553(a) factors.
Though this passage undercut Winters' argument for a lesser sentence, I suspect other defendants (and defense attorneys) in the Eighth Circuit will be very pleased with these sentiments. I read this passage as essentially a rejection of the claim, often suggested by prosecutors and seemingly embraced by the Seventh Circuit (background here), that a guideline sentence is per se reasonable and that the guideline range is still to be the dominant post-Booker sentencing consideration.
Notably, Judge Heaney's dissent in Winters adds more intrigue and import to the decision. Judge Heaney asserts that the district judge supported his upward variance by referencing the sentence the defendant would have received in state court. Judge Heaney complains about reliance on this factor, asserting that "sentencing judges may not attempt to equalize federal sentences to their state criminal analogs." But recall that Judge Heaney is writing in dissent; by negative inference one might conclude that the majority in Winters believes that, after Booker, a judge may attempt to equalize federal sentences to their state criminal analogs. Again, for defendant Winters this is not much help; but many other defendants may be able to use Winters as support for seeking a downward variance based on state-federal disparity. (Recall that this issue is causing a stir in the First Circuit.)
Also of interest is what is not discussed in Winters. First, no mention is made of parsimony provision of 3553(a), even though the thrust of Judge Heaney's dissent is that a guideline sentence was sufficient to serve the purposes of punishment in this case. Second, no mention is made of ex post facto/due process concepts, even though Winters committed his crime before Blakely, and his sentence apparently would have been firmly capped at 191 months but for Blakely. On these facts, I think a strong (though debatable) argument can be made that ex post facto/due process principles precludes the judicial addition of 4+ extra years of prison time here. Third, it is interesting that the one silent panel member in Winters just happens to be Judge Diane Murphy, former Chair of the US Sentencing Commission.
August 10, 2005 at 03:52 AM | Permalink
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