August 9, 2006
More strong Sixth Circuit reasonableness work
Though the Sixth Circuit's recent in-fighting over death penalty cases has been ugly, the Circuit merits considerable credit for its very strong work on post-Booker reasonableness review. To my knowledge, the Sixth Circuit has been the only circuit to take seriously the key parsimony provision of 3553(a), and I can think of numerous of Sixth Circuit judges who have written very thoughtful post-Booker sentencing opinions.
Today Judge Gilman contributes to the Sixth Circuit's reasonableness common law in US v. Ferguson, No. 05-3998 (6th Cir. Aug. 9, 2006) (available here). Ferguson upholds an above-guideline sentence, though along the way (1) stresses the parsimony provision, (2) emphasizes the importance of reasoned judgment by the district court, (3) exercises its own reasoned review of the procedures and substance of the decision below, and (4) cites my recent piece in the Yale Law Journal Pocket Part has been cited by the Sixth Circuit. This last facet of the opinion might make me a bit biased about the Ferguson opinion, but I am not too biased to urge other circuits to follow the lead on the Sixth Circuit's approach to reasonableness review.
Of particular note in Ferguson is the court's thoughtful decision to focus on reasonableness instead of a guideline calculation issue raised by the government. I wish all circuits would prioritize reasonableness considerations focused around 3553(a) over the minutae of particular guideline provisions. I read Booker as requiring this change of focus, and it is nice to see one circuit getting with the program.
UPDATE: The Sixth Circuit Blog has this extended post on Ferguson, including a visual aid.
August 9, 2006 at 11:55 AM | Permalink
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One interesting issue in this case is that the district got the Guidelines calculation wrong. Yet the Sixth Circuit (apparently) found no error because the sentence was reasonable. Will this approach be applied consistently? Will the CoA be forced to decide reasonableness in all cases where a sentencing calculation is incorrect, or will there be some cases in which the CoA will say, "The district court got the sentencing calculation wrong, but we're go to remand for resentencing instead of deciding whether the sentence was reasonable." In particular, if the district court gets the sentencing calculation incorrectly HIGH, will the court also do a "reasonableness" review? What if the "variance" is below the Guidelines, will that change the likely procedure?
I'll bet we're not through figuring this one out.
Posted by: Mark | Aug 9, 2006 1:14:00 PM
Excellent catch. A couple of possible responses. First, because the Guidelines calculations were erroneously low, Ferguson doesn't appear to have appealed those. In cases where the defendant challenges both the calculations and the overall reasonableness of the sentence, my understanding is that appellate courts will remand for resentencing if they find a non-harmless calculation mistake. That's because 18 USC 3742(f) survives Booker. See U.S. v. Cantrell, 433 F.3d 1269, 1280-81 & n.5 (9th Cir. 2006). It appears that the Sixth Circuit normally does the same thing. U.S. v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005). But as you say, the panel's quick mention of the issue in the last paragraph doesn't clarify why, if at all, this case is different from Hazelwood. It will be interesting to see how this develops.
Posted by: LT | Aug 9, 2006 3:40:51 PM