April 7, 2006
Fourth Circuit justifies presumption of reasonableness
The Fourth Circuit today in US v. Johnson, No. 05-4378 (4th Cir. Apr. 7, 2006) (available here), goes to great lengths to explain why, post-Booker, within-guideline sentences ought to be afforded a presumption of reasonableness. An extended general discussion of these topics culminates with this paragraph in Johnson:
As our repair to these admittedly basic points makes clear, the Guidelines are not arbitrary benchmarks, nor is their reasonableness simply a matter of administrative convenience. Booker found a fatal constitutional defect in the mandatory nature of the Guidelines system, 125 S. Ct. at 750-51, but those values that the Guidelines serve — uniformity, transparency in sentencing, and individualized factfinding — are features of a reasoned sentencing approach, and relevant to an advisory system just as they were to a mandatory one.
Though Johnson is a thoughtful opinion, it notably never addresses the reality that the guidelines do not seek to effectuate Congress's commands in section 3553(a) of the Sentencing Reform Act that judges impose sentences "sufficient, but not greater than necessary" to achieve punishment purposes. It also conveniently avoids any discussion of guideline particulars that cast doubt on just how reasonable the guidelines might really be. To give just one of many possible examples, consider this factum: under the guidelines, conspiracy to commit murder is assigned a base offense level of 33, and criminal sexual abuse is assigned an offense level of 30, while distributing around 5 ounces of crack is assigned a base offense level of 34.
Is a system that declares distribution of 5 ounces of crack more serious than conspiracy to commit murder and criminal sexual abuse really the sort of system that should be afforded a presumption of reasonableness?
April 7, 2006 at 05:34 PM | Permalink
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Doug, the "sufficient but not greater than necessary" language is a meaningless truism. It means "impose a sentence neither too low nor too high." Courts always implicitly review to ensure that is the case by reviewing for "reasonableness." Throwing in that a sentence should be neither too high nor too low wouldn't add anything.
Posted by: anonymouse | Apr 7, 2006 7:35:37 PM
So, anon, are you suggesting courts are allowed (perhaps even encouraged?) to completely ignore statutory language from Congress they consider meaningless? That's an interesting theory of statutory interpretation. I have a feeling a lot of judges will be eager to apply it in other contexts.
Posted by: Doug B. | Apr 7, 2006 7:54:28 PM
I'm saying that the language is relatively insignificant. It says that sentences should be neither too high nor too low. According to the sufficient-but-not-greater clause, district courts should impose sentences neither too high nor too low. Similarly, appellate courts should review to decide whether district courts have made a reasonable judgment as to what sentence is too high or too low.
But courts already do that. Why do they need to quote that language explicitly when its clearly implied in any workable conception of "reasonableness"?
I call it the Goldilocks clause. Not too hard, not too soft, but just right. What meaning would you assign to it beyond that?
Posted by: anonymouse | Apr 7, 2006 9:43:41 PM
When would a sentence be supported by the 3553(a) factors, as all circuits already require, but NOT "sufficient but not greater" than necessary?
Posted by: anonymouse | Apr 7, 2006 10:07:28 PM
The opinion also notably missates the so-called "merits" holding of the case? The passage you quote above states that "Booker found a fatal constitutional defect in the mandatory nature of the Guidelines system . . . ." No it didn't. It simply held that, because the Guidelines were mandatory, the Sixth (and Fifth) Amendment rule announced in Apprendi applied to factual findings that increased a guidelines sentence. Nothing about that holding rendered the guidelines unconstitutional (as I believe all of the justices acknowledged, including those in the "remedial" majority).
Sadly, nearly all of the opinions I've read discussing the post-Booker landscape make the same error the Fourth Circuit does here. I can't tell whether, or to what extent, the courts' fundamental misunderstanding of Booker is to blame for these presumption-of-reasonableness holdings, but it can't be helping matters any.
Posted by: B | Apr 8, 2006 12:19:57 AM
Anon, you seem to view a reasonable sentences as a point, while I think it could/should be viewed as a range. (And this is how circuits have discussed the concept of reasonableness.) So viewed, the parsimony clause instructs judges to give the sentence at the bottom of the "range of reasonableness."
Or, to be more precises, a judge might find in a particular case that any sentence between 10 and 15 years would be sufficient to achieve 3553(a) factors. If so, then the parsimony provision should be understood to require a 10-year sentence, since any longer sentence would be greater than necessary.
I think my reading gives respect and content to the language Congress used in 3553(a). You may not agree, but I am most troubled by courts' willingness to ignore the language altogether.
To put another spin on this (in mid April), don't you think most taxpayers aspire to pay sufficient, but not greater than necessary, taxes to comply with the tax laws? Or that governments aspire, when considering a tax hike, to raise taxes at a level that just sufficient, but not greater than necessary, under the circumstances?
I am not sure why everyone finds this language so mysterious, although I will readily admit that it is not as quantifiable as a certain number of grams of coke or a certain number of months of imprisonment.
Posted by: Doug B. | Apr 8, 2006 1:12:44 AM
I agree that reasonableness is a range. That's what distinguishes it from de novo review.
I don't agree that district court judges should be in the business of imposing "reasonable" sentences. District court judges should impose the "best" sentence possible under the factors.
If a district court judge thinks between 10 and 15 years is reasonable, then she should think a lot harder and decide precisely what sentence within that range is the right one. In making that choice, district courts should consider all of section 3553(a), not just the clause you cite.
District courts should select the most just sentence based on all the factors, which is a point, not a range. The reasonableness standard has nothing to do with district courts. Its a standard of review. District courts shouldn't use the substantial evidence standard to find facts. They shouldn't use the abuse of discretion standard to make legal judgments. And they shouldn't impose reasonable sentences. In all of these situations, the trial judge should try to make the "right" decision.
Appellate courts then review to determine whether the sentencing point selected by the district court is within the range of reasonableness. The reasonableness standard reflects deference to district court judgments about the best absolute sentencing point is.
Also, I agree that taxpayers should pay an amount of taxes neither too high nor too low. They should pay just the right amount of taxes. Ultimately, the correct amount of tax liability is a point, not a range. I just wish IRS auditors would review for reasonableness.
Posted by: anonymouse | Apr 8, 2006 8:43:53 AM
Doug, your argument doesn't use reasonableness as a range. It uses sentence sufficiency as a range. Meanwhile, you're viewing "not greater than necessary" as a point. Those two parts of the clause seem parallel to me. I don't see anything in the language of the statute that privileges the not-too-high instruction over the not-too-low instruction in that way.
Posted by: anonymouse | Apr 8, 2006 8:55:31 AM
All your points are sensible, anon, but my broader complaint is courts' failure to engage these issues directly. Thoughtful jurists might have a range of different plausible interpretations of the provisions of 3553(a), especially the parsimony language; I just want to see courts complying with their obligation to respect and address the actual text that Congress has enacted.
Perhaps they will say it is a point, or a range, or a range of points, or something else. But don't you agree that courts should feel an obligation to talk through these issues on the record in its rulings about 3553(a) and post-Booker sentencing?
Posted by: Doug B. | Apr 8, 2006 9:46:07 AM
Yes. You are right, they certainly should wrestle with it. Even if they decide, as I believe, that the clause ultimately is not important. Courts should at least explain why that is so.
Posted by: anonymouse | Apr 8, 2006 10:00:52 AM
The “approach to post-Booker appellate review is required for three basic reasons: the process by which the Guidelines were established, their incorporation of Congress’s sentencing objectives, and the individualized factfinding required to apply them.”
Judge Wilkinson in Johnson, found three required reasons for appellate reasonableness review, the third reason has similarities to constitutional trial rights.
“[T]he third reason why Guidelines sentences must be treated as presumptively reasonable, namely, that such sentences are based on individualized factfinding and this factfinding takes place in a process that invites defendants to raise objections and requires courts to resolve them. Both of these features are designed to lead to a presumptively reasonable sentence.”
Sentences based on “individualized factfinding”, and “defendant’s objections” plus the resolution by the court, have all the requirements of a jury trial right, except for the jury and proof beyond a reasonable doubt. What would really be reasonable would be for a jury to decide that the defendant possessed 5 grams or 500 grams and that would establish the sentence, no more fact finding is required. The post verdict fact finding is what the Supreme Court and any reasonable person would find objectionable, for the verdict ends fact finding. The jury in my case found a measurable amount of amphetamine was possessed by someone in the conspiracy and the judge found 106 pounds as the appropriate quantity in which to base the sentence in 1990. While 106 pounds is certainly a measurable amount, it was not a quantity which was or could have been proved. The jury was merely a sideshow to the main event, the sentencing, when the prosecutor brought out allegations which they never presented to the grand jury or petit jury. Facts are facts and when the jury leaves the courthouse, the fact finding must end and the judge determine the sentence based on the jury’s findings of fact.
Punishment which is sufficient but not greater than the punishment for facts found by a jury would be reasonable and constitutional.
Posted by: Barry Ward | Apr 8, 2006 1:32:48 PM
I don't understand what a presumption of reasonableness means in practice. It seems unnecessary and redundant. Is it not already true that a judge's exercise of discretion is presumed correct on appeal?
Posted by: John F. Carr | Apr 8, 2006 6:10:56 PM
"A presumption of reasonableness" means that _Blakely_ and the merits portion of _Booker_ were mistakes and we're going to keep doing things the way the Guidelines have always done them. At least that's how it seems in practice.
Posted by: JDB | Apr 8, 2006 7:30:58 PM
It is weird to speak of a presumption of reasonableness when it is clearly already the defendant's burden to show a sentence is unreasonable. A "bursting bubble" presumption, at least, would seem to be totally incoherent.
I guess in practice I would guess the presumption acts more like a "warning sign" than a true presumption. I.e., it tells appellate judges, "don't rule this one unreasonable unless it really, really looks bad." In that way, it makes reasonableness review even more deferential for sentences within the Guideline range.
Posted by: anonymouse | Apr 8, 2006 10:18:05 PM