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September 5, 2006

Examining reasons for the ugly reasonableness review patterns

Following up this post about another Eighth Circuit reversal of a below-guideline sentence, a favorite reader sent me an e-mail to "respectfully suggest that footnote 7 of US v. McDonald, No. 05-1617 (8th Cir. Sept. 5, 2006) would benefit from discussion in your blog."  I aim to please, so let's discuss footnote 7 of old McDonald.

In this footnote, the McDonald majority purports to "take a critical look" at the fact that, in post-Booker sentencing review cases, the Eighth Circuit has "tended to affirm sentences imposed above the advisory guidelines range (sixteen affirmed, one vacated) and vacate those below the range (five affirmed, twenty-five vacated)."  According to this footnote, there are "several mundane explanations for the disparity."  In short form, here are the McDonald majority's mundane explanations:

  1. Seven sentences were vacated "because the sentencing court did not explain any reasoning for the downward variance."
  2. Seven sentences went "downward more than 100 months [from the advisory guideline range], but only one ... departs or varies upward by that amount."
  3. Five sentences "imposed no prison term at all, despite a lower end of the advisory guidelines range of 12, 24, 30, 46 and 63 months respectively."
  4. Statistics indicate that "about three-quarters of below-guidelines range sentences do not reach us for appellate review and are, thus, effectively affirmed," and "the limited number of below-guidelines sentences actually appealed by the Government represent those that appear to be the most debatable, and, thus, the most likely to be overturned on appeal."

These insights provide a good explanation for why defendants almost always lose in sentencing appeals in the Eighth Circuit.  But, in my opinion, they do not provide a good justification for the ugly pattern of reasonableness review in the Eighth Circuit and elsewhere.

Tellingly, the first three points above are all guideline-centric: as I have lamented before, the Eighth Circuit and other circuits are framing and judging reasonableness in reference to the guidelines, when Booker indicates they should be framing and judging reasonableness in reference to all the provisions of 3553(a).  Consider point 3: if thoughtful district judges, following the instructions of 3553(a), concluded that no prison terms were required in five cases, why should the low end of the (advisory) guideline range be critical?

In addition, though point 4 may explain the high rate of reversal of below-guideline sentences, why are nearly 95% of above-guideline sentences affirmed?  If the Eighth Circuit is going to be so guideline-centric after Booker, shouldn't defendants get the benefit as well as the burden of the guideline-focused world?  The cumulative pattern suggests that the Eighth Circuit only trusts sentencing judges when they decide to be extra harsh, but not when they decide to be lenient.

September 5, 2006 at 08:35 PM | Permalink


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I think that this part of the footnote is also worth looking at: "Finally, and most tellingly, statistics published by the Sentencing Commission establish that, between the publication of Booker and February 2, 2006, sentencing courts in the Eighth Circuit pronounced 767 below-guidelines range sentences (169 departures and 598 variances; not counting those sponsored by the Government) and 94 above-guidelines range sentences (17 departures and 77 variances), a ratio of more than 8:1 below-guidelines to above-guidelines sentences."

Posted by: Booker fan | Sep 6, 2006 10:05:33 AM

Doug's point about non-imprisonment sentences is an important one. Under 3553(a), the "kinds of sentences available" is one factor that must be looked to in determining an appropriate sentence. By requiring imprisonment as the sine qua non of a reasonable sentence, the Eighth, as well as many other circuits, are overriding Congress' specific instructions in 3553(a).

Let's just face the fact that we have de facto mandatory "Guidelines" (except when the U.S. decides not to appeal) and get on with re-creating another unconstitutional sentencing scheme. This time, since the unconstitutional scheme will be created by judges, rather than Congress and the Sentencing Commission, it has a much better chance of surviving judicial review.

The Rule of Law be damned.

Posted by: Mark | Sep 6, 2006 10:52:36 AM

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