November 3, 2006
Seventh Circuit suggests guideline sentence too low
The Seventh Circuit, per Judge Easterbrook, in US v. Elliot, No. 05-4523 (7th Cir. Nov. 2, 2006) (available here), accepts a defendant's argument that the district court at sentencing improperly applied an enhancement for obstruction of justice. Thereafter, the court explains at length why it views the applicable guideline sentence as too lenient. Here are some notable passages from Elliot:
Because the district judge miscalculated the Guideline range, which he used as a starting point, the error may have affected Elliott's sentence, and we must remand. This does not imply, however, that a sentence of 21 months is unreasonably high; to the contrary, it strikes us as unreasonably low, and United States v. Booker, 543 U.S. 220 (2005), gives the district court ample authority to impose an appropriate sentence on remand.
Guideline 2J1.6 does not take into account the duration of the flight from justice. How long the fugitive remains on the lam is vital to assessing the deterrent effect of a sentence, so 18 U.S.C. §3553(a)(2)(B), which comes to the fore after Booker, requires the district court to give this subject close attention. If Elliott had been caught by the end of October 1989, then tacking 21 months on to his 60-month sentence might well have provided appropriate deterrence and desert. But he remained at liberty for almost 15 years, which substantially eroded the deterrent force of his 60-month sentence....
Under Booker the district judge, not the appellate tribunal, is principally responsible for selecting a reasonable sentence. But defendants often suppose that Booker means "lower sentences" rather than "sentences selected with greater discretion from the statutory range." Booker does not require lower sentences; nor does a conclusion that the district court erred in calculating the Guideline range. More discretion can produce higher sentences as well as lower ones. Whether this is one of the cases in which the sentence should rise is for the district court in the first instance.
Elliot provides a thoughtful exploration of a § 3553(a)(2) factor and notices that the guideline in this case misses a relevant consideration. One would hope that cases like Elliot would help the Seventh Circuit (and other circuits) recognize problems with affording the guidelines a blanket presumption of reasonableness. But I am not holding my breath.
November 3, 2006 at 07:12 AM | Permalink
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"Under Booker the district judge, not the appellate tribunal, is principally responsible for selecting a reasonable sentence."
Can someone please send all 7th Circuit judges a note explaining that district court's are not tasked with giving a reasonable sentence, but a sentence that complies with the 3553(a) factors? This is the second or third time they've made this mistake.
Posted by: Bobbie | Nov 3, 2006 9:10:55 AM
You are correct, of course. But I think that distinction is of little real import. After balancing all the factors, district courts select a 3553(a)-compliant sentence in the shadow of the circuit courts' reasonableness review. Shouldn't a district court have that review in mind? And even if they shouldn't, is it realistic to think that they won't?
Posted by: | Nov 3, 2006 9:52:56 AM
Friday, November 03, 2006
Court will rule on Guidelines issue
01:48 PM | Lyle Denniston | Comments (0)
The Supreme Court agreed on Friday to decide whether a criminal sentence that is within the federal guidelines is to be treated as reasonable, and thus valid. It also said it would rule on whether a sentence below the guideline range is reasonable. It accepted for review two cases on an issue that has led to a multitude of rulings in lower courts, producing a conflict at least on key aspects of that question. Today's orders are here. (Doug Berman of Sentencing Law and Policy blog raises some interesting issues about potential "ripple effects" of the Court's review of the new cases; see his post here.)
The Court will hear Claiborne v. U.S. (06-5618) and Rita v. U.S. (06-5754), with oral argument probably in February. The cases were not consolidated, but they presumably will be heard back-to-back.
In Claiborne, the Court will examine whether a sentence below the guideline range is reasonable, and whether a sentence that varies substantially from the guidelines can only be imposed in extraordinary situations. In Rita, it will decide whether a sentence within the range is reasonable, whether such a sentence may be presumed to be reasonable, and whether such a sentence may be imposed without full analysis by the judge of factors that might justify a lesser sentence.
The Court has been asked repeatedly, since its U.S. v. Booker decision in 2005 that upheld the federal Sentencing Guidelines as long as they are advisory only, to rule on the meaning of a new appellate review standard that Booker laid out. Prior to that decision, federal law reinforced the mandatory nature of the guidelines by limiting review on appeal. Booker said that, from then on, appeals courts would review sentences for "reasonableness."
In rulings since then, six federal appeals courts have ruled that, if a sentence is within the Guideline range, that is presumed to be reasonable on appellate review. Four other appeals courts have disagreed. The Solicitor General had repeatedly urged the Supreme Court to bypass the issue for the time being, arguing that Booker was so recent that it would be premature to go into the issue promptly. The Solicitor General also has argued that the claimed conflict is not as clearcut as the challengers have contend, with only shadings in terminology between court decisions.
In challenging rulings of reasonableness in their appeals to the Supreme Court, convicted federal offenders had argued that using a presumption of reasonableness in essence revives the mandatory nature of the guidelines, contrary to Booker's key conclusion. If a guidelines-based sentence is presumed to be valid, that will discourage courts from going outside of the guidelines even if justified in a given case, those appeals have argued.
At its private Conference Friday, the Court had before it a long list of cases on the issue. From those, it chose the Claiborne and Rita cases, presenting an array of specific questions on the core issue of reasonableness. The Solicitor General had opposed review in both. In the two cases, the Court itself wrote the questions it will be reviewing. Those are spelled out in the orders, linked above.
The Claiborne case is from the Eighth Circuit.. Mario Claiborne of St. Louis was convicted of distributing cocaine base and possession of more than five grams of the illegal substance. He was sentenced to 15 months in prison. The guideline range was 37 to 46 months. The Circuit Court ruled that a sentence within that range was presumed to be reasonable so it ordered new sentencing. It did say that a sentence outside the range could be found reasonable if the judge found "extraordinary circumstances" to exist.
Rita is from the Fourth Circuit. It involved a North Carolina man, Victor A. Rita, who was convicted of giving false testimony to a grand jury and obstructing justice in an investigation of illegal trafficking in machine gun kits. After his conviction on five counts, he was sentenced to 33 months on all counts -- within the guideline range. The Fourth Circuit upheld that as reasonable, because it was within the range for his case.
Posted by: seaton | Nov 3, 2006 3:50:53 PM