October 30, 2007
Thoughtful reasonableness review discussions from the circuits
This afternoon brought two interesting and thoughtful discussions of various federal sentencing issues from two well-regarded judges in two circuits:
From the First Circuit, in US v. Milo, No. 06-2185 (1st Cir. Oct. 30, 2007) (available here), Judge Boudin discusses at length arguments made by the government assailing a district court's decision to give only time served and probation to a major pot dealer who had shown contrition and had cooperated with the government. The government ultimately prevails, but defense attorneys should like some of the discussion of pertinent sentencing considerations.
From the Tenth Circuit, in US v. Angel-Guzman, No. 06-4303 (10th Cir. Oct. 30, 2007) (available here), Judge McConnell discusses at length the standards for appellate review in light of Rita. Judge McConnell's work provides a great review of post-Booker and Rita realities in the course of affirming a within-guideline sentence.
Both of these rulings show what fine work the circuits can do to help create a rich common law of sentencing, if and only when they take the time to examine seriously a litigant's arguments concerning a district court's sentencing choices.
UPDATE: The Boston Globe has this piece on the Milo ruling.
October 30, 2007 at 11:52 PM | Permalink
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I just don't see a difference between what the appellate courts are doing in evaluating a sentence for "reasonableness" and Doug's notion that Eighth Amendment scrutiny of sentence length should be more "robust." Reasonableness review seems like a statutorily authorized cruel and unusual punishment analysis. They both present the same challenge of struggling to find limiting principles.
Posted by: bruce cunningham | Oct 31, 2007 6:42:21 AM
Bruce: I agree that similar challenges arise with reasonableness and 8th Amendment review, but the source of authority for this review should -- and does -- significantly impact both by whom and how such claims are brought and resolved.
Posted by: Doug B. | Oct 31, 2007 8:56:41 AM
The Tenth Circuit in Angel-Guzman takes a long time to get to the usual point, and along the way seems a little distraught at the idea that the guidelines' "gravitational pull" is not as strong as the court would like. It bemoans the fact that there are more non-Guidelines sentences "despite the presumption." How dreadful that district court judges are actually exercising their Booker discretion rather than just acknowledging its existence and then ignoring it!
Posted by: SW attorney | Oct 31, 2007 1:35:30 PM