« Sentencing-related initiatives this election season | Main | Can procedural injustice produce substantive justice? »

October 31, 2006

Sixth Circuit continues sparring over reasonableness review

In Vonner (discussed here and here and here), the Sixth Circuit has decided to consider en banc its approach to post-Booker reasonableness review.  But that pending action has not yet stopped the Circuit's internal bickering over sentencing appeals as evidenced by today's ruling in US v. Johnson, No. 05-6309 (6th Cir. Oct. 31, 2006) (available here).  In Johnson , the majority concludes that a within-guideline sentence was not "procedurally reasonable under Booker," while the dissent laments a ruling that "engage[s] the trial court in the futile exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down."

Here is a key passage from Johnson that should warm the heart of anyone troubled by the tendency of many courts to adopt a guideline-centric approach to sentencing after Booker:

We find persuasive Defendant's argument that the district court failed to consider the other § 3553 factors, and sentenced him solely on the basis of the Guidelines.  Despite the fact that the district court expressly acknowledged that the Guidelines are now advisory, and that the Guidelines are only one factor that should be considered, the district court failed to state on the record that it was considering any of the other § 3553 factors. In fact, the district court provides no indication at all of why it felt that Defendant's sentence was appropriate, other than to state that it was appropriate under the Guidelines. While it is true that the district court is not required to explicitly go through each sentencing factor, the district court is required to provide this Court with some evidence on the record that the § 3553(a) factors were considered.

October 31, 2006 at 02:35 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Sixth Circuit continues sparring over reasonableness review:


And the 7th Circuit thinks appealing ABOVE-guidelines sentences on reasonableness grounds is frivolous. Earth to Supreme Court: Is anybody out there?

Posted by: AFPD | Oct 31, 2006 3:27:52 PM

Great point, AFPD!

Posted by: Doug B. | Oct 31, 2006 4:10:04 PM


Posted by: Chris | Oct 31, 2006 4:19:32 PM

fixed, thanks!

Posted by: Doug B. | Oct 31, 2006 8:13:25 PM

Well, in defense of the 7th, there was no question that the sentence was procedurally reasonable. Indeed, Posner -- the author of the opinion in question -- was I believe the first judge to reverse a sentence as procedurally unreasonable.

Posted by: Bobbie | Oct 31, 2006 9:39:04 PM

As confusing as Booker is, it bottles my mind that any district court can ignore the 3553 factors and just give a guideline sentence. If Booker said anything, it was that you can't do that, and must apply all the 3553 factors, not just the sentencing guidelines one. Sentences should not start at the calculated guideline range, they should start at the bottom of the statutory range (due to the parsimony provision of 3553) and work their way up with consideration of all the 3553 factors.

Maybe if courts were told that the guildelines should be the LAST factor which they should consult the courts would better follow Booker.

Posted by: Bruce | Oct 31, 2006 10:52:45 PM

The question is will the SC stop the intercircuits conflict over sentencing appeals or will they allow it to continue to boil.

Posted by: seaton | Nov 1, 2006 1:21:44 AM

Eventually the SCOTUS will, in the face of idiotic statutory sentencing reform proposals, say a presumption of reasonability is consistent with the 6th Amendment. Scalia may dissent. Welcome back guildelines.

Posted by: Bruce | Nov 1, 2006 9:03:12 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB