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June 5, 2007

Lots of sentencing action in the Circuits

Though I am still sorting through all the Libby sentencing news (basics here and here), I have also noticed consequential sentencing rulings from a lot of federal circuit courts today.  In addition to the DC Circuit ruling previously blogged today, the Third, Sixth, Seventh and Ninth Circuits all also have (lengthy) published decisions on a variety of distinct and important sentencing issues.

Based on very quick reads, I think think the Tenth Circuit work in Pruitt yesterday (discussed here) is the best long circuit read for sentencing fans this week.  But, perhaps readers can point me to holdings or passages in today's copious circuit work that should not be overlooked.

UPDATE:  DoD has this report on the Third Circuit's decision in US v. Voelker, No. 05-2858 (3d Cir. June 5, 2007) (available here), entitled "Third Circuit Strikes Down Draconian Sentencing Conditions."

June 5, 2007 at 02:56 PM | Permalink


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After reading Pruitt, I really don't see what the beef is with the circuits treatment of Guideline sentences. Let's assume for a minute that the court of appeals will *always* affirm a within-Guidelines sentence. That, in and of itself, does not make the Guidelines "mandatory in practice," nor does it negate Booker. Instead, we need to know *how much more likely* it is that a Guidelines sentence will be affirmed as compared to a below (and perhaps above) Guidelines sentence. It has suddenly occurred to me that *this* is why Claiborne and Rita were taken as a pair, and why the Court decided to address a *below* Guideline sentence before it addressed an *above* Guideline sentence, notwithstanding that the latter is where judicial fact-finding will far more often take place.

Now I think I see what the Court wanted to do in Claiborne and Rita. I might be proven wrong in the near future, but I think that the Court's initial inclination was to set forth the following rule: A court of appeals should scrutinze a below Guidelines sentence no more harshly than a within Guidelines sentence. If this is really what the Court had intended to do, then I don't see any ways for Rita to come out without Claiborne. The cases were not just companions, they were literally Siamese twins sharing a vital organ.

Posted by: Aaron | Jun 5, 2007 4:21:09 PM

Let's assume for a minute that the court of appeals will *always* affirm a within-Guidelines sentence. That, in and of itself, does not make the Guidelines "mandatory in practice,"

I'm missing something here, because this doesn't make a lot of sense to me.

Posted by: | Jun 5, 2007 8:31:44 PM

Let me explain:

The hypothesis of many commentators right now is is that the courts of appeals' methods of reviewing sentences for reasonableness have had the practical effect of "making the Guidelines mandatory" again.

In testing that hypothesis, however, we should not be looking at how often the courts of appeals will vacate *within Guidelines* sentences. Instead, we need to look at the disparity between how often they will affirm a variance and how often they will affirm a Guidelines sentence.

Suppose for example that the data showed that a within Guidelines sentence is vacated as unreasonable 0% of the time and a sentence outside the Guidelines is vacated 100% of the time. Clearly in that situation we could say that the courts of appeals' reasonableness review was making the Guidelines mandatory again, if not in name then in practice.

Suppose, however, that the numbers are 0% for Gudelines sentences and 25% for non-Guidelines sentences. In that situation, we could say that the courts of appeals aren't making the Guidelines mandatory in practice, but are at least giving district courts an incentive to issuing Guidelines sentences (because there would be less risk of vacatur).

Suppose now that the numbers are 0% and 0%. In that situation, the courts of appeals would not be giving a district court *any* incentive to choose a Guidelines sentence over a non-Guidelines sentence.

Posted by: Aaron | Jun 5, 2007 10:15:44 PM

What you say, Aaron, is entirely logical, but is nevertheless a red herring. What is wrong with rote affirmance of within-guideline sentences as "reasonable" is not mainly that it is unconstitutional (although it is, for another reason -- it establishes a rebuttable presumption of an unproven essential fact), but rather that it is contrary to the controlling statute. After Booker, "reasonableness" is the standard of appellate review. It is not the substantive standard of lawfulness of a sentence. A sentence is to be affirmed, in other words, not if the sentence is "reasonable," but rather if it is reasonable to conclude that the district judge complied with the statute governing lawful sentences. That is, did the district court reasonably conclude that the sentence imposed was "sufficient" and yet "not greater than necessary" to accomplish the 4 purposes set forth in 3553(a)(2), after considering all the factors listed under 3553(a)? It is entirely implausible to presume in every case that a sentence in compliance with just one of those seven factors is the least sufficient sentence that would satisfy all seven, or Congress wouldn't have required the judge to consider all seven; all it would have had to do is to require consideration of that one factor (the fourth, that is, the Guidelines.) In short, statutory construction flatly demands that Rita (and any Claiborne replacement) be reversed. Only realpolitik or a policy preference at odds with the statute could support an affirmance.

Posted by: Peter G | Jun 5, 2007 11:57:36 PM

Peter G,

I don't disagree with you from a normative perspective. I think that the parsimony clause itself is entirely irreconciliable with the Guidelines calculation being given any weight.

That said, I don't think that's where the Court is going. I could be wrong though.

The problem is that the Booker remedy opinion rests on a very thin foundation, and while the remedial majority purported to be concerned with "reasonableness," the remedial dissenters -- which make up the true Apprendi advocates -- are more concerned with ensuring that the courts of appeals don't effectively overrule Booker by pushing district courts toward Guidelines sentences. Ultimately, I think that's what the Court was going to do with Rita and Claiborne -- though, again, I could be wrong, and Tom Goldstein's prediction that Breyer is writing Rita may portend that I am wrong.

To the extent I'm right that Rita was going to be the remedial dissenters (along with a fifth vote) chance to ensure that the Booker remedial opinion didn't virtually undo the Booker substantive opinion, it's not relevant whether a within Guidelines sentence will be upheld as reasonable 100% of the time. It will only matter whether a variances are upheld 100% of the time too (or close to it at least).

Note that I think upward variances based on judicial fact-finding still pose Sixth Amendment problems in the minds of the remedial dissenters, and I think we'll see that within the next couple of Terms.

Posted by: Aaron | Jun 6, 2007 2:13:21 AM

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