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January 16, 2008

More notable Sixth Circuit reasonableness work

The Sixth Circuit continues to churn out notable sentencing rulings at a steady clip, today bringing us US v. Moon, No. 06-5581 (6th Cir. Jan. 16, 2008) (available here) and US v. Sedore, No. 06-2259 (6th Cir. Jan. 16, 2008) (available here).  Both are interesting reads, though for different reasons.

Moon is interesting primarily because of the facts: the defendant committed health care fraud by having "administered partial doses of chemotherapy medication while billing the insurance program for full doses."  Needless to say, these facts produced some intriguing sentencing issues, though the panel unanimously affirms the reasonableness of the long within-guideline sentence given to the defendant.

Sedore has the same panel as Moon, but here there's dissension in the ranks:  A district judge sitting by designation delivered the opinion of the court, while Judge Clay delivered a separate concurring opinion and Judge Merritt delivered a separate dissenting opinion.  This passage from Judge Clay's concurrence provides a good overview of the issues that led to the splintered panel:

In his dissent, Judge Merritt suggests that this case is an example of what he calls “the problem of guidelineism or ‘guidelinitis.’”  Merritt, J., dissenting at 10. While I fully appreciate Judge Merritt’s concern about the failure of many sentencing judges to engage an “individualized assessment based the facts presented,”  Gall v. United States, 128 S. Ct. 586, 597 (2007), I do not find that the sentencing judge in this case was derelict in his duty to tailor Defendant’s sentence based upon all of the sentencing considerations found in 18 U.S.C. § 3553(a), and not just upon the advisory Guidelines range.

I also find Judge Merritt’s explanation of the ideal sentencing procedure to be inconsistent with the Supreme Court’s most recent sentencing pronouncements.  Contrary to what Judge Merritt suggests, the Supreme Court in Gall did not direct district court judges to start only with the Guidelines base offense level and then make adjustments to that level based upon his or her own sentencing discretion. Merritt, J., dissenting at 12. Rather, the Supreme Court directed district judges to “begin all sentencing proceedings by correctly calculating the applicable Guidelines range” which would then serve as the “starting point and the initial benchmark” for sentencing.  Gall, 128 S. Ct. at 596.  This “applicable Guidelines range” includes not only the base offense level recommended by the Guidelines, but also any applicable adjustments to that level which the Sentencing Commission has recommended in the Guidelines.  Thus, contrary to what Judge Merritt claims, post-Booker, sentencing judges must begin their sentencing deliberations by properly calculating the entire recommended Guidelines sentencing range, including any sentencing enhancements, not just the Guidelines-recommended base offense level.  However, Judge Merritt is correct in emphasizing that after judges have determined this advisory Guidelines range, they must “then consider all of [the other] § 3553(a) factors” and “make an individualized assessment based on the facts presented.”  Id. at 596-97. In this process, judges must use their discretion and should not unreflectively impose a within-Guidelines sentence.  During this “individualized assessment” process, sentencing judges should not permit the Guidelines to be a strait-jacket which compel a particular sentence, but rather, as their name suggests, a helpful “guide” for crafting a sentence which is “sufficient but not greater than necessary to comply with the purposes” of sentencing set forth in § 3553(a).

January 16, 2008 at 04:49 PM | Permalink


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This is great work by Judge Clay. I've appeared before him many times, and I've followed his opinions for years. He is extremely thoughtful, hardworking, and fair, and this decision is a good example.

Posted by: Mark | Jan 18, 2008 5:52:49 PM

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