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December 5, 2005

Where is the reasonableness review?

Late last week I was complaining here about the Seventh Circuit's sloppy discussions of post-Booker legal standards, and now I have to bemoan the Booker work of the Eighth Circuit after seeing US v. Smith, No. 03-2862 (8th Cir. Dec. 5, 2005) (available here).  Smith is a case that the Supreme Court GVRed back to the Eighth Circuit, and the Eighth Circuit now holds (1) that the defendant did not preserve his claimed Sixth Amendment error under Booker (despite pre-Blakely making a sufficiency challenge to the evidence at sentencing and a pro se brief citing Apprendi), and (2) that he has not shown plain error in the sentence imposed.

In part because a very long sentence was based on contested judicial findings of drug quantity, I think Smith is shaky on its merits.  But I am especially troubled that the Smith decision has no discussion whatsoever of reasonableness even though, according to the opinion, "Smith asserts that ... his sentence as imposed is unreasonable."  I suspect that the Eighth Circuit would (did?) find Smith's sentence to be reasonable; but, given that he received a sentence of nearly 35 years for a drug offense, it seems that the Eighth Circuit at least ought to mention the ultimate standard that the Booker court said is now the test for appellate review of federal sentences.

UPDATE: In a similar vein, today the 11th Circuit in US v. Caldwell, No. 05-12640 (11th Cir. Dec. 5, 2005) (available here), discusses a lot of interesting sentencing issues, but never discusses the reasonableness of a year-long sentence for the defendant's illegal "possession of his brother sporting rifle."  In Caldwell, however, it does not appear that the defendant argued that his sentence was unreasonable.

December 5, 2005 at 12:33 PM | Permalink

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Comments

The circuit courts, at least from a reading of published cases from the past six months, hve largely failed to explicate the contours of "reasonableness" review. Many decisions are quite conclusory, merely declaring, without much reasoning, that a district court's decision is reasonable. Perhaps more troubling, the courts appear to give great deference to sentences that are within the advisory guidelines' range, despite the facrt that the guidelines do not rest upon a principled foundation. Ultimately, I think sentencing law will continue to remain muddled, with the courts not taking advantage of the opportunity to create doctrinally based sentencing jurisprudence.

Posted by: Adam Lamparello | Dec 27, 2005 4:20:18 PM

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