October 24, 2007
Spotting the many statutory errors in Peltier
Commentors here have done a great job highlighting the practical craziness of the Fifth Circuit's adoption of a "plain error" approach to reasonableness review in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here). But the problems with Peltier run deeper: at the most fundamental level, the Fifth Circuit's approach seems to misunderstand that reasonableness review was embraced in the Booker remedy to "iron out sentencing differences," not simply to protect a defendant's rights. The whole goal of reasonableness review emphasized by the Booker remedial opinion is undermined by affirming unreasonable sentences because errors are not plain enough.
Moreover, spotting the many statutory errors in Peltier would make for a good exam in my sentencing classes. Here are just a few I saw based on a quick read:
1. Peltier asserts in a footnote that "reasonableness has become ... a substantive standard to be applied by the district court," but that claim transgresses the congressional directive in section 3553(a), which states clearly that a sentencing court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 3553(a)(2).
2. Peltier affirms a statutory maximum sentence of 10 years for a defendant who pleaded guilty to a not-particularly-serious version of felon-in-possession (the defendant had a shotgun in his shed). Given the requirement in 3553(a)(3) to consider "the kinds of sentences available" and in 3553(a)(6) to "avoid unwarranted sentence disparities," what is reasonable about the district court's determination that the defendant should get the highest legally available sentence for this type of crime (especially given that his guideline range was less than half as long)?
3. Peltier makes much of the "weight given to the proper factor of need for treatment" to justify the district court's extra long prison term. However, 18 USC 3582(a) plainly states that courts must "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation."
I could go on, but perhaps I need to first re-read Peltier to make sure I'm not overlooking reasons it might not be as bad as it seems.
October 24, 2007 at 04:02 PM | Permalink
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How's this for problematic: the Fifth Circuit decided to review the sentence for plain error even though "Peltier urged the district court to consider deviating below the guidelines range, and he suggested that he would benefit from a halfway house." What must a defendant do in the Fifth Circuit to alert the district court to his argument that an above-guidelines sentence is not warranted under the law? Even if there are situations in which appellate review of a sentence should be for plain error, the Peltier decision essentially requires attorneys to urge their sentencing requests twice -- once before imposition and, if they fail, again afterwards.
Posted by: Apu | Oct 24, 2007 5:25:54 PM
Point three is foreclosed by Fifth Circuit precedent: United States v. Giddings, 37 F.3d 1091, 1097 (5th Cir. 1994).
Posted by: | Oct 24, 2007 5:48:34 PM
"The issue before this court is whether a district court may properly consider a defendant's rehabilitative needs in determining the length of a sentence of imprisonment upon revocation of supervised release." United States v. Giddings, 37 F.3d 1091, 1095 (5th Cir. 1994). Peltier is distinguishable, no? The court was working within the context of mandatory revocation; all that was required was determining the sentence length. Even when dealing with permissive revocation, the Fifth Circuit noted that the issue was really resentencing. That is still distinct from initial sentencing, which is the case here.
This decision can be compared to United States v. Watson, 482 F.3d 269, 275 (3rd Cir. 2007): "What a court can not do is to impose or lengthen a term of imprisonment for the purpose of providing correction and rehabilitation." In Peltier, the judge specifically stated: “I don’t think just one or two years or even three or four years
is going to be able to help you get this fixed. What I’m trying to do is give you enough time to
truly make a change in your life . . . .”
Seems very different, at least to me.
Posted by: Alec | Oct 24, 2007 6:24:49 PM
This is somewhat disappointing because I've always thought of Judge Higginbotham at least, who joined the opinion in its entirety, as a pretty careful jurist. In the court's defense, the briefing in the Fifth Circuit is not so great, and it sounds like that this case in particular was not briefed well. Someone should file an amicus suggestion for rehearing en banc, if that's allowed in the Fifth.
Posted by: anonymouse | Oct 24, 2007 10:32:23 PM