February 22, 2006
Fourth Circuit (thoughtfully) declares below-guideline sentence unreasonable
The Fourth Circuit today in US v. Moreland, No. 05-4476 (4th Cir. Feb. 22, 2006) (available here), continued the ugly pattern of reasonableness review in the circuit courts (discussed here and here) — where we are seeing all within-guideline sentences and nearly all above-guidelines sentences being affirmed as reasonable, whereas many below-guideline sentences are being reversed as unreasonable. But, along the way, the Moreland sets forth a lot of important statements about departure authority and reasonableness review. Here are some snippets:
We believe, however, that so-called "traditional departures" — i.e., those made pursuant to specific guideline provisions or case law — remain an important part of sentencing even after Booker....
"[R]easonableness" is not a code-word for "rubber stamp." Our task is a "complex and nuanced" one, Green, 2006 WL 267217, at *5, requiring us to consider the extent to which the sentence imposed by the district court comports with the various, and sometimes competing, goals of § 3553(a)....
Reasonableness review involves both procedural and substantive components. A sentence may be procedurally unreasonable, for example, if the district court provides an inadequate statement of reasons or fails to make a necessary factual finding. A sentence may be substantively unreasonable if the court relies on an improper factor or rejects policies articulated by Congress or the Sentencing Commission.
Generally, if the reasons justifying the variance are tied to § 3553(a) and are plausible, the sentence will be deemed reasonable. However, when the variance is a substantial one — such as the two-thirds reduction from the bottom of the advisory guideline range that is at issue here — we must more carefully scrutinize the reasoning offered by the district court in support of the sentence. The farther the court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.
Turning to the particulars of the sentence imposed by the district court, the Fourth Circuit in Moreland ultimately affirms the decision to grant a Booker variance, but rejects its extent (which was from a guideline minimum of 360 months down to the statutory minimum of 10 years).
The Moreland Court says "a variance was warranted here" and notes that "[a]pplication of the career offender guideline is fraught with potential imprecision." However, it also concludes that the circumstances of this case were not "so compelling as to warrant the maximum possible downward variance, i.e., the imposition of the statutory mandatory minimum sentence." And, interestingly, the Court concludes by remanding "for the imposition of a sentence of no less than 20 years imprisonment."
February 22, 2006 at 04:00 PM | Permalink
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I must be missing something - how can an appellate court direct the district court to sentence at a specific range?
Joshua Snow Kendrick
Attorney at Law
1720 Main Street, Suite 202
Columbia, SC 29201
Posted by: Joshua Snow Kendrick | Feb 22, 2006 4:35:43 PM
Good point, Joshua. There's no real discussion of why a sentence of at least 20 years is reasonable or why it would be "sufficient, but not greater than necessary" to achieve the goals of sentencing.
Posted by: JDB | Feb 22, 2006 4:47:07 PM
Didn't you know? The Fourth Circuit has decided to create its own, separate Sentencing Commission. It looked at the factors considered by the U.S.S.G., took into mind additional factors relevant to this case, and then created a new MANDATORY non-statutory, non-Guidelines minimum sentence. To avoid violating the Sixth Amendment, it simply kept its findings of the facts leading to its minimum sentence a secret (who could object?).
This is what "reasonableness" review is: appellate judges making things up as they go along. It's the new rule of "2" -- we didn't oversee the trial or sentencing, but we've got two votes, we make $15k more per year than district judges, and SCOTUS is too small and takes too few cases to do anything about our decisions, so here's OUR mandatory minimum!
The New, Improved Imperial Judiciary marches on, while the Rule of Law gets trampled. At least Justice Scalia and the remedy minority were principled enough to acknowledge the Sixth Amendment violation and permit the LEGISLATURE to fix their constitutional violation. The remedy majority, with Justice G's flip-flop, put the decision-making exactly where they want it: out of the hands of district judges (to fractious), out of the hands of Congress (elected? Bad.), out of the hands of the Sentencing Commission (see district judges, supra, and substitute President (again, "Elected? Bad.")) and into the hands of the sole repository of all legitimate power in the United States: the unelected federal appellate courts.
"Oh, if only we had enough time to decide every case! At least we'll have the next best thing: appellate judges deciding every case in America.
Now, if we can only get Congress to grant us authority to give an advisory opinion on the legality of the NSA's domestic/foreign (who needs facts?) spying program."
It's all so sad.
Posted by: mark | Feb 22, 2006 5:57:02 PM
Wow...how dramatic. Why doesn't anyone ever talk about the discretion judges have to use 3553 factors to max defendants out to the stat max? Many judges are going "downward" but others, in my district, are going way up too! This did not happen before Booker.
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