February 13, 2006
More on reasonableness (and ex post facto) from the circuits
The Sixth and Eighth Circuits have provided some reasonableness opinions to kick off the week. In US v. Richardson, No. 05-1260 (6th Cir. Feb. 13, 2006) (available here), the Sixth Circuit does a reasonable job synthesizing its recent work on within-guideline sentences receiving a presumption of reasonableness (here and here). Here are choice quotes from Richardson:
This rebuttable presumption does not relieve the sentencing court of its obligation to explain to the parties and the reviewing court its reasons for imposing a particular sentence. Even when selecting a presumptively reasonable sentence within the Guidelines range, a district court must articulate its reasoning sufficiently to permit reasonable appellate review, specifying its reasons for selecting the specific sentence within that range.... We emphasize the obligation of the district court in each case to communicate clearly its rationale for imposing the specific sentence. Where a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable.
Meanwhile, in US v. Kelly, No. 05-1527 (8th Cir. Feb. 13, 2006) (available here), the Eighth Circuit affirms an above-guideline sentence as reasonable. Along the way, the Kelly court suggests that a district court does not have to make additional findings of fact to support exercising its post-Booker discretion to vary from the guidelines. The Kelly court also quickly rejects the defendant's contention that the imposition of an above-guideline Booker variance for a pre-Booker crime violates ex post facto principles. This holding is the first published opinion I can recall expressly rejecting an ex post facto claim concerning a sentence involving an above-guideline Booker variance.
February 13, 2006 at 11:41 AM | Permalink
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The federal sentencing system is a global decision making process. It is impossible to determine whether an all-in-one sentence is reasonable or unreasonable unless the sentence is deconstructed, differentiating between the several judgments upon which it is based. Each judgment must be reasonable, proportional and fair in its own right; otherwise the sentence as a whole is unreasonable. Obviously a reasonableness review is dependent upon the precision with which the sentencing decision-maker has articulated each of his or her underlying judgments, which include beliefs, feelings, intentions, objectives, strategies and tactics. Guidelines are needed for this task.
Posted by: Tom McGee | Feb 13, 2006 6:45:49 PM