March 8, 2006
Seventh Circuit affirms within-guideline sentence
Perhaps I should stop reporting the dog-bites-man news of a within-guideline sentence being upheld as reasonable. But one line in the Seventh Circuit's work in US v. Ellis, No. 05-3676 (7th Cir. Mar. 8, 2006) (available here), really caught my eye.
In Ellis, the Seventh Circuit finds reasonable an 18-month within-guideline sentence for a former bishop who pleaded guilty to one count of willfully making and subscribing a false income tax return. Along with emphasizing the Circuit's presumption of reasonableness for a within-guideline sentence (background here), the Ellis court says: "While we would not necessarily impose the same sentence as the district court, our inquiry is bound by substantial deference to it." Though perhaps other rulings use this phrasing, I cannot recall previously seeing an assertion that reasonableness review binds a Circuit court to show "substantial deference" to a district court's sentencing judgment.
March 8, 2006 at 01:27 PM | Permalink
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Are you suggesting that circuit review should be de novo? I would think that the review for reasonableness prescribed by Booker implies a highly deferential standard of review.
Posted by: Steve Sanders | Mar 8, 2006 2:51:41 PM
I'm not sure what standard would be ideal, but I am not convinced that "substantial deference" is consistent with either Booker or the SRA.
Posted by: Doug B. | Mar 8, 2006 4:02:23 PM
Structurally, "reasonableness" review was supposed to give the Courts of Appeals the final say in sentencing, without establishing a discernible legal standard by which they will exercise that power. Therefore, "reasonableness" review need not be highly deferential, deferential, or even not-at-all deferrential. It will be up to each circuit to decide how deferential they interpret "reasonableness" to be.
It should come as no surprise that the Seventh was deferential to a within-Guidelines sentence. The $64,000 question is how deferential they will be for outside-the-Guidelines sentences, and whether that deference is a greater or not for above- or below-Guidelines sentences.
We're still working things out, and it will take years. I hope that reasonableness review will be deferential no matter whether a sentence is below, within, or above the Guidelines range, but I strongly suspect that the various Courts of Appeals will not be able to help themselves, ending up with different degrees of review within each circuit (depending on where the sentence compares to the Guidelines range) and, certainly, among the circuits.
Sadly, these differences will not constitute "law," primarily, but mere historical accident or personal whim.
Posted by: Mark | Mar 8, 2006 4:08:15 PM
I agree with you Mark. As a matter of appellate practice, I cannot envision a three-judge panel having to undertake sentencing review under a standard any more rigorous than "abuse of discretion" or "clearly erroneous." Things would grind to a halt, otherwise.
Don't get me wrong: I hate the Booker remedy. But my respect for the day-to-day work of the courts of appeals compels me to conclude that deferential review -- no matter where the sentence falls -- is appropriate.
Posted by: Steve Sanders | Mar 8, 2006 5:38:35 PM