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May 18, 2007

Guideline sentences looking reasonable to the Eighth Circuit

In notable contrast to the recent trend of sentencing wins for defendants that are unpublished (examples come from from the Fourth and Fifth and Tenth and Eleventh Circuits), the Eighth Circuit today publishes two rulings in which panels affirm within-guideline sentence.  My friends cut-and-paste allow a quick summary from the Eighth Circuit's official opinion page:

062965P.pdf   05/18/2007  United States  v.  Scott K. Goldsmith
   U.S. Court of Appeals Case No:  06-2965
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Shepherd, Author, with Riley and Melloy, Circuit Judges]
   Criminal case - Sentencing. District court was aware of its authority to grant departure based on defendant's mental health, and its refusal to do so is unreviewable on appeal; sentence was not unreasonable.
 

063161P.pdf   05/18/2007  USA  v.  S. Mosqueda-Estevaz
   U.S. Court of Appeals Case No:  06-3161
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Melloy, Author, with Bowman and Gruender, Circuit Judges]
   Criminal case - Sentencing Guidelines. Sentence is not unreasonable.

Of course this is really just a dog-bites-man story, since more than 99% of all within guideline sentences get affirmed on appeal.  But both rulings provide yet further examples of the general failure of most circuit courts to thoughtfully consider whether within-guideline sentences are truly reasonable in light of the substantive provisions of 3553(a).  Neither ruling even mentions to parsimony mandate of 3553(a).

Rulings like these make me very hopeful (though still not especially optimistic) that the Supreme Court will significantly alter the look of reasonableness review through its rulings in Claiborne and Rita.

May 18, 2007 at 01:58 PM | Permalink

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"But both rulings provide yet further examples of the general failure of most circuit courts to thoughtfully consider whether within-guideline sentences are truly reasonable in light of the substantive provisions of 3553(a). Neither ruling even mentions to parsimony mandate of 3553(a)."

Aren't the courts of appeals supposed to give some deference to a district court's judgment that the sentence is reasonable (and parsimonious)? If your argument is that the court of appeals are supposed to exercise independent judgment, then you're probably right that they've been insufficiently thoughtful thus far, though I'd be curious about the specifics of the argument. If not, then I don't really understand what the problem is.

Posted by: Bill | May 18, 2007 2:56:49 PM

The problem is the results-orientated nature of the courts of appeals' analysis. All guidelines sentences are reasonable. All upward variances are reasonable. All downward variences are unreasonable.

Posted by: Anon | May 18, 2007 3:59:29 PM

"Aren't the courts of appeals supposed to give some deference to a district court's judgment that the sentence is reasonable (and parsimonious)?"

Bill, "the problem" is that the Eighth Circuit refuses to grant any deference to a district court judge who imposes a sentence below the guidelines. Typically, the Eighth Circuit reverses such sentences by declaring the district court gave "too much weight" to mitigating factors or "too little weight" to punitive concerns, despite the fact the appellate judges never saw or examined the defendant and were not in any position to opine on the "weight" particular factors deserved from the sterile appellate record. The Koon standard of review granted strong deference to the district court’s decision to impose a non-guideline sentence, recognizing the incompetence of appellate courts to weigh the myriad of factors that figure into a decision to vary from the guidelines and the extent of such variations. Koon deference remained until the 2003 Protect Act, but the Booker mandate of an “effectively advisory” guideline system declared the pre-2003 style of appellate review should apply. The Eighth Circuit simply refuses to apply the pre-2003 style of review for below guideline sentences and has established a pattern of reversing below Guideline sentences based on appellate judge’s opinions about how much weight various factors should receive is effectively the de novo standard of review Booker said had to be changed.

Posted by: bab | May 18, 2007 7:20:15 PM

To add to these points, Bill, I think the district judges has to explain the basis for the decision to impose a within-guideline sentence before any deference is appropriate. Especially in Mosqueda-Estevaz, the district judge was just silent on 3553(a) particulars. Blind deference is not appropriate without evidence the district court exercised reasoned judgment below.

Posted by: Doug B. | May 19, 2007 9:31:12 AM

Complaints about the Eighth Circuit's selectiveness in deciding which district court sentences to look at closely seem to me to have very little do do with the question I aked. If there is any merit to these complaints (I'm aware that Prof. Berman tracked a lot of cases shortly after Booker came out and showed that there is reason to think that there is merit to these complaints), then I'm in total agreement with "bab" and "anon." That wasn't my question, though. Again, the passage I quoted is this:

"But both rulings provide yet further examples of the general failure of most circuit courts to thoughtfully consider whether within-guideline sentences are truly reasonable in light of the substantive provisions of 3553(a). Neither ruling even mentions to parsimony mandate of 3553(a)."

It seems to me that it's the job of the district court to "thoughtfully consider" the reasonableness of a sentence, and it's the job of the appellate court to figure out whether the district court did in fact do this.

Prof. Berman's comment is actually responsive to this. I'm curious, though. How much is the district court supposed to explain itself, and what's the authority for requiring lots of explanation? I don't know how it works in most circuits, but in the few with which I'm most familiar, the question on appeal largely boils down to whether the defendant or the prosecution made any 3553(a) arguments that the district court failed to consider or failed to consider adequately.

In the crack sentencing context, defendants often make arguments that a within-Guidelines sentence is substantively unreasonable, and it's unfortunate that most of the courts of appeals have foreclosed most of these arguments (regardless of whether they've adopted a presumption of reasonableness). But that doesn't seem to be what this post is about, and I'm struggling to understand the argument.

Posted by: Bill | May 19, 2007 5:46:13 PM

Bill: To begin, the district court's job under 3553(a) is to "thoughtfully consider" the what sentence is "sufficient, but not greater than necessary" to achieve the punishment purposes set out in 3553(a)(2). In neither of these district court cases was it obvious that the district court did this, and thus in neither case should the circuit court assume the district court did its job OR that its sentence is presumptively reasonable. The Tenth Circuit, but the way, recently got this right in US v. Mahan, No. 05-1518 (10th Cir. May 16, 2007).

Posted by: Doug B. | May 20, 2007 4:06:55 PM

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