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January 31, 2006

Sixth Circuit embraces presumption of reasonableness

This morning through a brief opinion in US v. Williams, No. 05-5416 (6th Cir. Jan. 31, 2006) (available here), the Sixth Circuit joined a few other circuits in expressly declaring that a within-guideline sentence is presumptively reasonable.  Here is some key language from Williams:

Although several of our sister circuits have concluded that any sentence within the applicable Guidelines range garners a presumption of reasonableness, this court has yet to articulate what weight should be accorded the Guidelines relative to the other sentencing factors listed in § 3553(a).  We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness.  Such a presumption comports with the Supreme Court's remedial decision in Booker.

Folks interested in this issue should also know that the First Circuit has scheduled an argument for next week to consider en banc whether to adopt such a presumption.  The buzz I have heard is that some judges on the First Circuit may not be too keen on such a presumption. 

I am concerned about an appellate presumption of reasonableness because, though such a presumption may comport "with the Supreme Court's remedial decision in Booker," I am not sure it comports with the Supreme Court's merits decision in Booker.  Indeed, I am trying to finish up a draft of an article in which I suggest that, at least in cases involving judicial fact-finding to support a higher guideline range, appellate courts ought to be applying a presumption of unconstitutionality to any within-guideline sentence.  I hope to say more about this (crazy?) idea in the days ahead.

January 31, 2006 at 12:35 PM | Permalink

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The premise of a presumption of unconstitutionality tied to judicial fact-finding in the guidelines context is exactly what needs to be sold post Booker. I hope you fully proceed with your intended article, and through it - provoke some meaningful re-examination by our courts. Otherwise, if we have to live with presumptive reasonableness (as opposed to the Kelly/Okai inherent unreasonableness), aren't we right back where we started even before Blakely with little more than lip service to anything outside the "mandatory, oh, excuse me - 'advisory'" guidelines? Seems to me we're going full circle to justified departures as a result of our courts gravitating back to what they are already familiar with.

I'm a defense attorney, by the way.

Thx for all your work. Lex Coleman

Posted by: Lex Coleman | Jan 31, 2006 1:18:05 PM

“The Court assumes that the [sentencing] in these cases violated the [Sixth] Amendment yet refuses to… [correct the error] because the Court concludes that it was "reasonable"… because punishment within the advisory guideline range is presumptively reasonable]. Justice Stevens in concurring and dissenting opinion found, “an official search and seizure cannot be both "unreasonable" and "reasonable" at the same time. {Nor can a sentence in violation of the Sixth Amendment right to jury and proof beyond a reasonable doubt], be both unconstitutional and reasonable. “The doctrinal vice in the Court's holding is its failure to consider the separate purposes of the two prohibitory Clauses in the Fourth Amendment. The first Clause prohibits unreasonable searches and seizures, and the second prohibits the issuance of warrants that are not supported by probable cause or that do not particularly describe the place to be searched and the persons or things to be seized. We have, of course, repeatedly held that warrantless searches are presumptively unreasonable, [See, e.g., Payton v. New York, 445 U.S. 573, 586 (1980); Chimel v. California, 395 U.S. 752, 762-763 (1969), and that there are only a few carefully delineated exceptions to that basic presumption. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 474-475 (1971); Vale v. Louisiana, 399 U.S. 30 (1970). But when such an exception has been recognized, analytically we have necessarily concluded that the warrantless activity was not "unreasonable" within the meaning of the first Clause. Thus, any Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless "reasonable" within the meaning of the first. On these questions, the constitutional text requires that we speak with one voice. We cannot intelligibly assume, arguendo, that a search was constitutionally unreasonable but that the seized evidence is admissible because the same search was reasonable. United States v. Leon, 468 U.S. 897”.
The same conundrum is working where there is a Sixth Amendment violation recognized Booker, Part I the constitutional decision, but a reasonable advisory sentencing is permissible in the remedial Booker, Part II decision to correct the constitutional violation. It is unconstitutional but reasonable, who would have thought such an animal existed except in VVonderzland.

Posted by: Barry Ward | Jan 31, 2006 4:24:42 PM

"Seems to me we're going full circle to justified departures as a result of our courts gravitating back to what they are already familiar with."

You have succinctly identified why Justice Breyer tortured severability principles beyond belief in order to render the Guidelines "advisory."

Posted by: Steve | Jan 31, 2006 5:50:23 PM

Hello,

I am a paralegal student (8 hours from receiving a degree. My husband and myself are involved personally in a case where marijuana plants were discovered on our property. We are told that normally others in the county would be given a warning with no charges.

We had many service people on the property (example telephone company, repair persons etc.) after a lightning strike July 4, 2006, and they did not see the plants either.

The "raid" took place on August 16, 2006. While opening our electronic gate one of the sheriff's cars hit the gate, the property was litered, Gayle was detained approx. 4 hours, husband was arrested and released.

My husband has had no problems with the law in over 20 years, never drug problems and I have never even had a speeding ticket.

However, the local prosecutor is proceeding.
26,330 grams is claimed to have been found. A mandatory eight years if convicted but we are NOT
GUILTY.

We are in a civil case against an insurance carrier and we were handed the judge's signature in open court along with instructions. It is not the same signature as on the search warrant (We had a forensic document analysis performed, that agrees).

Nothing was found inside the premises. Only the plants which we have no idea who planted them. We intend to take this to the district court in Cincinnati, Ohio.

We have an attorney from Maysville, Kentucky helping with the criminal charge of cultivating.

We are not having much luck persuading our attorney, a change of venue is needed. We believe if we are suing the Sheriff's Department County and Commissioners there is a question of conflict and it is not likely we will get a fair and impartial trial in the County.

Any suggestions?

GWhitt

P.S. We were not charged until four months after the search, no indictment, and only as we were entering the courtroom door to request the return of our property were we served with papers. Many items were under lock and key and can be proven to have no association with crime.

Our next appearance is in Adams County Court, January 5, 2007 at 8:30am. Court normally begins at 9:00am

Posted by: Gayle Whitt | Jan 1, 2007 12:23:55 PM

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