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December 12, 2007

A Gall sighting (or citing?) in the Sixth Circuit

I think the Sixth Circuit wins the award for being the first federal appeals court to issue a published reasonableness decision incorporating the Supreme Court's work in Gall into its discussion.  In US v. Lalonde, No. 06-4536 (6th Cir. Dec. 12, 2007) (available here), a panel affirms a within-guideline sentence and starts its sentencing discussion with these Gall goodies:

Post-Booker, the Sentencing Guidelines are no longer mandatory, United States v. Booker, 543 U.S. 220, 260-61 (2005), and “the ‘range of choice dictated by the facts of the case’ is significantly broadened.” United States v. Gall, 552 U.S. --, No. 06-7949, Slip Op. at 20 (Dec. 10, 2007).  However, the Sentencing Act, 18 U.S.C. § 3553(a), “nonetheless requires judges to take account of the Guidelines together with other sentencing goals” when fashioning a defendant’s sentence. Booker, 543 U.S. at 261 (emphasis added). As the Supreme Court just recently clarified in Gall, “the Guidelines should be the starting point and the initial benchmark” in determining a sentence and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Slip Op. at 11 (emphasis added); accord United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006) (Post-Booker, “the district court must still consider the Guidelines in fashioning a defendant’s sentence, and must construe them correctly in doing so.”).

On appeal, we must ensure that the district court properly calculated the advisory Guidelines range as part of its overall consideration of the § 3553(a) factors. See Gall, Slip Op. at 12 (directing appellate courts to “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range”).

December 12, 2007 at 10:56 AM | Permalink

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Comments

Just a thought... If the guidelines are truly advisory, why does it matter that they be correctly calculated by the district court? Wouldn't it always be harmless error?

Posted by: bruce | Dec 12, 2007 11:07:38 AM

I would imagine that if the Guidelines were miscalculated, the district court would not have received the proper "advice" from them, and the sentence would therefore be procedurally unreasonable.

Posted by: M. | Dec 12, 2007 11:17:07 AM

I think it is more a matter of stategy (at least in terms of the way the 1st sees it, which I think is somewhat valid). I believe that a defendant can argue that his Guidelines sentence is in error, and THEN argue that any deviation from it was unreasonable.

Posted by: S.cotus | Dec 12, 2007 11:20:40 AM

Yeah, that's certainly the argument. But if they're truly advisory then so is the "proper advice" received from consulting them. If a judge can disagree with the "advice" of the guidelines (as we learned this week from the SCOTUS), then the proper calculation of them seems even more irrelevant.

Or maybe it's only irrelevant if the judge gives a non-guidelines sentence. If the jduge is still going to follow the guidelines, then I suppose it means something that they be properly calculated.

Posted by: bruce | Dec 12, 2007 11:24:02 AM

The effects of Gall will not be see fully, until sentences are given under Gall. The cases that the court of appeals get in the coming weeks will be pre-Gall cases. And before Gall, some Judges feld compelled to follow the guidelines to avoid having their sentences overturned.

Posted by: EJ | Dec 12, 2007 11:43:34 AM

I don't quite see your point, Bruce. Every case since Booker has stressed that sentencing judges need to consider the Guidelines. If they've been calculated incorrectly, then the judge is giving weight to an improper fact, i.e., a Guidelines recommendation that is not accurate.

There might be some cases in which a calculation error is harmless, but surely it can't always be harmless.

Posted by: Marc Shepherd | Dec 12, 2007 1:37:42 PM

Marc: I guess it all comes down to what "consider" the guidelines really means. I take it at this point the guidelines are first among equals of the 3553(a) factors. But if the judge decides based on all the other factors that probation is the proper sentence, then does it really matter if the offense level was improperly calculated to be 16 instead of 14? Clearly not, if the guidelines are advisory only.

Posted by: bruce | Dec 12, 2007 6:07:41 PM

Bruce, in that hypothetical, I agree that the error would probably be harmless. If the judge believed that probation was appropriate at an offense level of 16, he would probably still consider it appropriate at an offense level of 14.

It is not so clear if the judge's error was in the reverse direction.

Posted by: Marc Shepherd | Dec 12, 2007 6:28:01 PM

Consider how much discretion the judge has in determining the offense level in the first place. For example, the judge decides what loss amount to use (may consider the gov't, defense, or psr's number). With that kind of discretion whats the use in forcing the court to consider the guideline. Did that make sense?

Posted by: DAG | Dec 12, 2007 7:54:44 PM

Marc: what if in my example the offense level was improperly calculated at 14 when it should be 16? Or 34?

I'd still say it wouldn't make a difference, so long as the judge elaborated on his decision. If a judge thinks a defendant deserves 2 years in prison, he can give the defendant 2 years in prison as long as he reasonably explains himself. As such, I don't see it necessary the guidelines be properly calculated, at least insofar as the judge does not give a within-guidelines sentence.

Posted by: bruce | Dec 12, 2007 11:31:04 PM

If a judge thinks a defendant deserves 2 years in prison, he can give the defendant 2 years in prison as long as he reasonably explains himself.

Isn't this simple? If a particular fact is relevant at sentencing, then that fact must be stated accurately. The correctly calculated guideline sentence is such a fact.

To say that it no longer matters whether the guideline is properly calculated, is to say that the judge needn't consult the guideline at all. That's simply not what the Court has said. And clearly, it would be absurd to require judges to consider the guideline if its accuracy were considered irrelevant. If the guidlines are part of the sentencing calculus, as the Court has said, then there must be cases in which the failure to calculate them properly is reversible error.

Posted by: Marc Shepherd | Dec 13, 2007 10:55:51 AM

Marc: Why must the one fact that is not binding always be stated accurtely?

I think it would only be reversible error if the judge did not depart from improperly calculated guidelines. Clearly both sides will argue that improperly calculated guidelines improperly influenced, higher or lower, the sentence imposed, and will appeal on that basis. Depending on what the judge said, that might be a good argument. But if the judge merely gave a bare lip service to the guidelines: "After consulting all the 3553(a) factors I decide this defendant should get a non-guideline sentence of 2 years" (whether the guidelines say the sentence should be an average of 1 year or 15 years), I don't think it matters one bit that 2 points were erroneously added for alleged obstruction of justice, despite a clear statement in the Application Notes saying the particular situation alleged is not to be counted as obstruction of justice for purposes of 3C1.1 (i'm recalling that section from memory so it could be the wrong one, mea culpa, I'm bad at remembering which guidelines sections are which off the top of my head).

For what it's worth, I think your argument will remain the law. But I think there are cases where, due to the judge's use of discretion to impose a non-guidelines sentence, based on the sentence given and the reasons stated, the fact that the defendant's offense level was improperly calculated would be harmless error. Such a ruling would hurt the feelings of the USSC and might backlash into Congress re-instating some form of mandatory guideline scheme again. So I don't see it happening for political reasons.

I think my argument is somehwat similar to that 7th circuit case (discussed here a while back) that held ex post facto no longer applies to the gidelines now that they are advisory. Which is not to say that I necessarily agree with that case. But the underlying principal seems to be the same. If advisory guidelines, if they're truly advisory, make the 6th Amendment problem a non-issue, it obviously makes a lot of other things non-issues as well.

Posted by: bruce | Dec 13, 2007 7:56:45 PM

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