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August 23, 2006

Two more ugly examples of reasonableness review

Yesterday in this post, I lamented that circuits have been improperly judging reasonableness in reference to the guidelines, when they should be judging reasonableness in reference to the provisions of 3553(a).  Since that post, two more ugly examples of this phenomenon came to my attention.

In US v. Wallace, No. 05-3675 (7th Cir. Aug. 14, 2006) (available here), the Seventh Circuit last week reversed a below-guideline sentence even though the district court, after a thorough review of the purposes set out in 3553(a)(2), decided to reject the "advisory guidelines range as 'a bit much' in light of the factors enumerated in 18 U.S.C. § 3553(a)."  The sentence had to be reversed, said the Seventh Circuit panel, because "the court may have been influenced by a disagreement with the command of the guidelines to base sentences on intended loss."  I thought after Booker that the guidelines were just advice, but apparently they are still "commands" in the Seventh Circuit (even though, according to Demaree (discussed here and here), ex post facto protections no longer apply in the Seventh Circuit).

Meanwhile, in US v. Paredes, No. 05-3675 (10th Cir. Aug. 22, 2006) (available here), the Tenth Circuit yesterday affirmed a within-guideline sentence even though the district court, sentencing after Booker, stated that "I'm basically stuck with the guidelines."  The Tenth Circuit panel held that "we will not interpret the court's imprecise comments on the extent of its discretion as blatant disregard of Booker.  We are not persuaded that the district court failed to recognize that the Guidelines are advisory." 

So, it is reasonable to carelessly treat the guidelines as mandatory, but unreasonable to thoughtfully treat the guidelines as advisory.  Yeah, sure, ... that's a fair reading of Booker.  Of course, such a guideline-centric, anti-defendant attitude has been prevalent in the circuit courts for 18+ months, as evidenced by the ugly patterns of reasonableness review.  As documented here, thoughtful district judges have come to believe, based on circuit precedents, that Booker does not really provide any additional sentencing discretion to sentencing judges.

Though I have now read hundreds of post-Booker circuit opinions, I still amazed and surprised by the judicial activism reflected in those appellate rulings that seem so eager to preserve the pre-Booker guideline sentencing system despite Booker's declaration that such a system is unconstitutional.  I am also troubled that the usual critics of judicial activism, who are so quick to assert that liberal judicial ruling are lawless, have not made a peep about the post-Booker circuit activism keeping the guidelines propped up.

August 23, 2006 at 12:31 PM | Permalink

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Comments

Although I tend to agree with Professor Berman's frustrations regarding reasonableness review, I think that he's being a bit hard on the Seventh Circuit decison in Wallace. The opinion offers an excellent summary of the existing law and would serve as a great intro for all of the new law clerks out there getting aclimated to the post-Booker world.

Furthermore, I don't think that Wallace can be dismissed simply as another case reversing a below-Guidelines sentence as unreasonable. If it fits into any group, it would be into a more narrow one: cases in which district courts have sentenced non-violent and/or white-collar defendants to no or virtually no jail time. Note that the Wallace panel cites the 11th Circuit's decision in Crisp, another case that fits within this category, as does the Second Circuit's thoughtful decision in Rattoballi.

What these cases demonstrates, I think, is that courts of appeals are looking none too kindly on sentences in white-collar cases that erase all jail time. Such a trend isn't surprising and in a way responds to the uniformity and seriousness-of-the-offense concerns embodied in 3553(a). Indeed, courts of appeals at least act consistently when they reverse as too low BOTH sentences imposed on low-level drug dealers and sentences imposed on wealthy former executives. We not like the end result, but at least courts haven't yet given in to the temptation of allowing the guys in suits to walk away without jail time, while the guy convicted of being a felon in possession is stuck with a Guidelines (or above-Guidelines) sentence.

Posted by: lt | Aug 23, 2006 2:50:49 PM

Fair points, LT, though note how it reflects a "level up" philosophy: we don't cut low-level drug dealers any breaks so we should not cut anyone else breaks. How about we cut everyone equal breaks -- if they do not appear to be future threats to society?

Posted by: Doug B. | Aug 23, 2006 2:57:13 PM

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