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January 10, 2006

Remarkable new district court ruling on applying Booker

Though the circuit courts have been mighty Booker active of late, it's been a while since I have seen a major district court ruling on Booker.  But, much to my pleasure, US District Judge Steven Merryday made yesterday merry through his amazing work in US v. Valencia-Aguirre, No. 8:03-cr-445-T-23EAJ (M.D. Fla. Jan. 9, 2006) (available for download below).  Especially as we approach the one-year anniversary of Booker, the far-reaching and thoughtful review of the state of federal sentencing in Valencia-Aguirre makes the decision an absolute must-read.

I am still working my way through the 40 pages of trenchant analysis in Valencia-Aguirre, although I see that there is much discussion of the First Circuit's recent Pho decision (basics here, commentary here and here and here).  Indeed, there is even a footnote in Valencia-Aguirre engaging with my critique of Pho

Here are just a few of the many choice quotes from Judge Merryday's work in Valencia-Aguirre:

The principal task now is to define "reasonable sentence" in a manner calculated not to impinge the (tenuous and strange) requirements of Booker but calculated neither to repair to the rejected and disreputable regime of unfettered discretion nor to deploy a substitute regime that permits an incremental retreat toward disorder and disparity....

The issue for the district court in the first instance is whether the circumstances of the offense at issue and the characteristics of the offender at hand mitigate, aggravate, distinguish, or supersede the presumed but confined circumstances and attributes arrayed illustratively in the guidelines.  But, because the guidelines neither fully nor dispositively prescribe a sentence for any particular offender or offense, Booker presents no occasion to announce any attribute of the theoretical guidelines sentence, including whether it is "per se" or "presumptively" or "prima facie" reasonable.

Though I am wowed by many parts of Valencia-Aguirre, I am disappointed to see an obviously thoughtful district judge discussing his sentencing task in terms of determining and imposing a "reasonable sentence."  No where does section 3553(a) of the Sentencing Reform Act or the remedial opinion in Booker define the district court's sentencing task in these terms.

As I have stressed before, reasonableness is only an appellate review standard: it is the standard created by Booker that a circuit court is to use when reviewing a sentence that has been appealed.  At a defendant's initial sentencing in the district court, there is a higher authority that provides the controlling legal standard: in section 3553(a) of the SRA, Congress has plainly instructed district judges to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2).  Thus, the task Congress has given expressly to district judges is to figure out what sentence is "sufficient, but not greater than necessary" to comply with the SRA's statement of sentencing purposes.  Booker simply provided that circuit judges are to assess how district judges do their job by the standard of reasonableness.

Judge Merryday's opinion in Valencia-Aguirre speaks often of congressional "policy" and "will," but yet again we see in this opinion a remarkable disregard of the actual congressional text of 3553(a).  (Disconcertingly, Judge Merryday never actually quotes from 3553(a) in his long opinion, and he is dismissive of what Congress has actually enacted as he declares that "Section 3553(a) is fancy default.")  Judge Merryday rightly asserts that "a sentencing judge owes the legislative authority the good faith enforcement of the law," but in my view that should start with the actual text of the law that the judge is duty-bound to apply.

Download judge_merryday_sentencing_memorandum.pdf

January 10, 2006 at 10:37 AM | Permalink


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Professor Berman:

I am a defense attoney in Cedar Rapids, Iowa.

I'm not sure I see the difference between reasonableness as a standard of review and a requirement the district judges must render a reasonable sentence. If the appellate court is to determine if the sentence is reasonable, why is the district court not required to impose a reasonable sentence?

I think the problem is that my circuit, the Eighth, and I believe the other circuits, say that a guideline sentence is presumptively reasonable. I don't see anything in 3553(a) or Booker that justifies that presumption. 3553(a) simply makes the guidelines one of several factors the court should consider. Also, by saying that a guideline sentence is presumptively reasonable, that ignores theh language you empahsize, that the sentence should be sufficient but not greater than necessary.

Posted by: Wallace Taylor | Jan 10, 2006 8:12:46 PM

It seems as though your peculiar critique represents something of a distinction without a difference. As a technical matter, de novo and plainly erroneous are standards of review, a "reasonable sentence" is NOT a standard of review, but obviously refers to the substantive requirement each sentence must satisfy. But, more practically, if every district court judge engaging in "A" will be held on appeal to the standard of "B", why in God's name wouldn't any decent District Judge contemplate "B"--especially when virtually every instance of his engaging in "A" is appealed pro forma?

Of course, 3553(a) informs no one (neither district nor circuit judge) what a reasonable sentence is in any given circumstance. In this respect 3553(a) is merely aspirational language, useless when consulted on its own. Reading his opinion, I believe this was in large part Judge Merryday's point.

Posted by: Atticus Finch | Jan 11, 2006 9:21:11 AM

I have a couple of observations on "appellate reasonable" v. "trial court reasonable," but they are somewhat extrastatutory in nature; I can't point to anything in section 3553 (or anywhere else in Title 18) that really supports this. I'm a primarily civil lawyer (7th Circuit) whose practice often involves representing the victims of fraud and other varieties of white-collar crime.

First, there's the record question. Remember that the circuit court doesn't get to weigh the evidence absent an abuse of discretion (or purely documentary record, but that's pretty rare). That gives the trial court some discretion that the circuit court can never have: the discretion to impose the judge's view of whose testimony is more credible after having the opportunity to actually observe every aspect of demeanor. I am not entirely sure that imposing "reasonable" on top of that discretion is either required or appropriate, precisely because sometimes those credibility determinations will reach a result that from the stale written record alone will appear "unreasonable." As a commanding officer on active duty, this dichotomy was a consideration for me in every disciplinary proceeding involving a dispute of fact--up to and including courts martial.

Second, remember that (with very rare exceptions) the court of appeals has never met the defendant, but the trial judge certainly has. This is obliquely related to the "record" issue I described above, which referred primarily to the evidentiary record. However, this is an aspect that is rather different because it is a decision that the trial judge reaches outside the record: In the judge's opinion, what is "sufficient, but not greater than necessary" to deal with this particular defendant. Appellate judges, although they are dealing with a specific case, simply are not in a position to impose that judgment on all courts that will be bound by their opinion. Thus, appellate judges have to use a more generally applicable (and less precise) standard in reviewing the particular sentence of a particular defendant. Consider the hypothetical instance in which, despite the mountain of evidence that the defendant is a "truly bad person" who will require an upward departure to adequately punish, the trial judge believes that much of that mountain rests on the statements of interested parties whom the judge found difficult to credit--but whose statements the judge could not entirely discredit or refuse to admit. This is a distinction that an appellate court simply is not in a position to make--or second-guess, unless it is on its face "unreasonable," in which instance the trial judge has an opportunity to explain his reasoning in response to the framework the appellate court establishes for that particular defendant on remand for resentencing. Thus, the two standards--however similar they might appear, or even be--respect the different roles of the two courts.

In short, the different roles of the courts make it at least logically possible to reconcile the difference between "reasonable" and "sufficient, but not greater than necessary" under the statutorily mandated "purposes" of sentencing. (That those purposes differ substantially from what law students are taught about the theory of sentencing is an issue for another time.)

Posted by: C.E. Petit | Jan 11, 2006 2:18:54 PM

C.E. Petit provides some nice nuanced ways in which there could be a difference that defines the distinction between appellate review for "reasonable" and a district court's obligation to impose a sentence "sufficient, but not greater than necessary" under 3553(a). Of course, most fundamentally, there could logically be a range of sentences that are reasonable, but perhaps only one sentence that is "sufficient, but not greater than necessary" under 3553(a).

Beyond these matters, part of my concern is that courts and litigants actualy read, understand, and properly apply the rules which now govern federal sentencing. Reading and properly applying Booker and 3553(a) at the district court level means that judges should be asking themselves what sentence is "sufficient, but not greater than necessary" under 3553(a). Reading and properly applying Booker at the circuit court level means that judges should explore whether the sentence imposed under 3553(a) is reasonable.

I can see why there is an inclination to collapse these distinct standards, but this is a formal legal error and it could have a number of pernicious (though surely subtle) impacts on sentencing decision-making.

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