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August 13, 2008

Does Gall preclude calling any sentencing factor "inappropriate"?

The Sixth Circuit's ruling yesterday to reverse a below-guideline sentence as unreasonable in US v. Davis, No. 05-3784 (6th Cir. Aug. 12, 2008) based on reliance on an "inappropriate sentencing factor" has generated some especially interesting and thoughtful comments. Of particular note, the defendant's attorney has a comment questioning whether the rationale adopted by the Davis court is inconsistent with the Supreme Court's work in Gall:

I am Mr. Davis' attorney, and I'm a longtime fan of this blog.  As I consider a petition for rehearing (for a number of reasons) as well as another cert. petition, I'd appreciate any serious thoughts about the existence of "inappropriate sentencing factors."  DEJ writes that there is "almost" no such thing. I'm curious what s/he and others think about this -- are there impermissible factors (or facts) that may not be examined at sentencing?  If so, specifically, what are they?  Race?  Gender?  Religion?  What else?  What cases establish them and explain their role post-Gall?

At first blush, this [Davis] opinion looks to me like a semantic way to get around Gall's heightened standard of appellate review ("We disagree with the sentence that you, the district court, imposed, but we can't say that you abused your discretion after Gall so we're going to say that you looked at something that was 'impermissible' even if that fact is entirely relevant to many 'permissible' factors under 3553.")....

Because these issues go right to the heart of what federal sentencing review now means and requires, I thought this fresh post might foster a focused blog discussion on whether it is inappropriate for circuit courts to establish "inappropriate sentencing factors" as part of reasonableness review after Gall and Kimbrough.

August 13, 2008 at 05:15 PM | Permalink


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Considering my comment was mentioned, let me clarify. I believe that after Gall/Kimbrough, there are very, very few improper sentencing factors. This is true given the breadth of 3553(a). Mr. Davis' attorney named the ones I was thinking of (race, gender, religion, ect.). So long as the "factor" can be relevant to a 3553(a) analysis, it is undoubtedly "appropriate" and "proper."

I would agree (as alluded to by Mr. Davis’ attorney) that a holding otherwise would be nothing but a disguise for substantive reasonable review in the name of procedural reasonableness, in an attempt to circumvent the discretion Gall requires.

(Let me point out that I expressed similar comments in this post http://sentencing.typepad.com/sentencing_law_and_policy/2008/07/two-notable-win.html when the 8th Cir. found in Femsteer factors to be "irrelevant.").

My comments about the 6th Cir. case pointed out that the panel didn't exactly say "this is an inappropriate factor." In fact, they said that it MAY be appropriate; however, they reversed b/c the record did not make clear HOW the factor was relevant: "To be sure, an interval of years between a crime and ... a sentence may affect the application of certain § 3553(a) factors. ... But, on this record, it remains to be seen how the passage of time by itself justified this variance."

This may be slicing the baloney a little thin, but it's what the Court said. I'll admit that quoted statement certainly struck me as odd because the relevance seems obvious to me. My point was that upon remand the district court could impose the same sentence after making the record more clear on WHY that factor justifies a lower sentence.

To the extent the panel was suggesting that the length of time between crime & sentence would not be relevant unless the govt. was responsible for the delay or the defendant was prejudiced (which is one plausible reading of the opinion) then I believe that is wrong.

Posted by: DEJ | Aug 13, 2008 6:09:36 PM

Let me also point out that in Irizarry, SCOTUS explained "there is no longer a limit...on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. §3553(a)."

The only limits would be constitutional ones (i.e. race, gender, religion).

Posted by: DEJ | Aug 13, 2008 6:36:35 PM

It's difficult for me to communicate the fullness of my thoughts in this forum but I will try. I believe that the 6th Circuit fundamentally misunderstands what Gall requires. In United States v. Grossman (2008) the 6th writes, “which is to say, not just abuse-of-discretion review to the reasonableness of a sentence but abuse-of-discretion review to the district court’s determination that there is a legitimate correlation between the size of the variance and the reasons given for it, see id. at 591.”

This understanding is correct if and only one accepts these words as a logically stepped process. After Gall, the court should be looking at the reasons for the variances only if they have determined that there is something wrong with the variance itself. If the *sentence* passes reasonable review then the *reasons* for imposing the sentence must also pass review unless the district court fails to provide *any* legitimate justification for the sentence. Once the appeals court has concluded that the sentence itself is reasonable, only the most cursory of reviews need be given to the reasons advanced for that sentence. Even the case of race etc that DEJ mentions, so long as the court provides a legitimate reason for the sentence, it should be upheld. As I noted in my prior comment, there is no merit to attacking the form of the decision if the overriding sentence is reasonable.

The 3rd is quite correct that Brooker requires the courts to “ensur[e] that there is some
consistency between and among district-court sentencing practices, see Booker, 543 U.S. at 263 (noting that appellate review permits “sentencing differences” to be “iron[ed] out”), and in ensuring that variances turn on legitimate sentencing considerations,” But I don’t read this line of cases to mean that the rationales district courts give for their sentences need to be consistent; its whether the sentences themselves bear a rough consistent to each other. There is a difference between the phrase “sentencing practices” and the phrase “justification practices”. Conflating the two is simply error.

As a consequence, spending a great deal of time on wondering what exactly is an inappropriate sentencing factor is not apposite in the broad picture. One of the main thrusts of the SC’s whole line of cases in this area is to get the appeals courts away from managing rationales (which is what they were doing when the guidelines were mandatory) and back to managing sentences (now that the guidelines are advisory). This is why I was pleased to see Doug also link to US v. Tankersly which, as I noted in my comments to that posting, is taking the correct approach. I don’t want to say that I could never conceive of an inappropriate sentencing rationale; the one’s DEJ mentions come to mind if one was the exclusive rationale given. But I think the far graver threat is not district courts imposing sentences because of explicit racism or sexism; the graver threat is appeals courts using “inappropriate sentencing factors” as a tool to completely avoid reasonableness review in the first instance (which is exactly what happened in Judge Sutton’s opinion) and thus avoid the very task the SC wants them to do now that the guidelines are advisory.

Posted by: Daniel | Aug 13, 2008 7:51:10 PM

“Are there impermissible factors (or facts) that may not be considered at sentencing? If so, specifically what are they?

I believe the answer is yes, because the subjects and predicates of a sentence must correspond. By this I mean that each sentencing action that is taken must correspond with its underlying provocation. For example, determinate provocations should correspond with determinate responses; indeterminate provocations should correspond with indeterminate responses. A sentencing system should accommodate both. Some provocations are determinate such as the commission of a crime, while others are indeterminate such as the risk posed by an offender.

Of course, it is impossible to sort this out in a definitive way if the provocations at issue are not analyzed correctly at the outset. The Federal guideline system does not do so. In fact, it muddles things up at the outset with its phony grid approach, by mixing apples and oranges.

Posted by: Tom McGee | Aug 13, 2008 7:55:40 PM

I went back and read DEJ's post more closely and I think he and I agree on everything except one point.

"My comments about the 6th Cir. case pointed out that the panel didn't exactly say "this is an inappropriate factor." In fact, they said that it MAY be appropriate; however, they reversed b/c the record did not make clear HOW the factor was relevant"

This 6th's concern here is misplaced. This is the reason that my very first post on this topic was to bring up the 3rd's recent decision on alternative justification. The issue isn't "are there are any inappropriate factors?" That's not the standard. The issue is, "are there any appropriate factors?". That's what "abuse of discretion" means. The district court clearly articulated legitimate justifications for its sentence including the fact that the person was aged, retired, no longer in business, was no longer a threat to commit similar crimes, etc. All rationales that the appeals court glossed over. Instead, the court focused on two factors that it, as you point out, MAY have a problem with and then overturned the sentence. Silly, stupid, outrageous all are words that spring to mind.

I don't know what I would do if I were the attorney except to keep playing the game. Personally, I believe the way Judge Sutton groped for the slimmest reed to upturn this sentence is a signal that he thinks the sentence is unreasonable. For whatever reason, he didn't want to conduct an explicit reasonableness review (maybe he couldn't get another vote there). This is why I remain flabbergasted at the opinion. If I were Judge Rice I wouldn't know what to do. If they didn't like my new sentence, why didn't they come right out and say so. If they did like it, why are they nitpicking it. If I were in his situation I'd simply be confused.

Posted by: Daniel | Aug 13, 2008 8:31:45 PM

One important point to note: Sutton loved the good ol' "proportionality review" that prevailed prior to Gall -- indeed, *this very* Davis case adopted proportionality review for the Sixth Circuit. With the case having been GVRed in light of Gall, it's pretty galling (sorry) for Sutton to persist in bullishly pushing forward toward his desired result. Activist, results-oriented judging from a "conservative"? Shocking.

Posted by: Reader | Aug 14, 2008 9:05:23 AM

Thanks, Professor, for this renewed article. Also, thanks to all for their comments. Very helpful. Now I've got to start drafting.

Posted by: Mark Pickrell | Aug 14, 2008 10:07:03 AM

Mr. Pickrell,

Re Booker breathing new life into 18 USC 3661 (placing no limitation on what information the sentencing court may consider), see, e.g., United States v. Jones,531 F.3d 163, 172 n.6 (2d Cir. 2008); U.S. v. Doe, 398 F.3d 1254 (10th Cir. 2005).

Posted by: Def. Atty. | Aug 15, 2008 4:48:21 PM


Posted by: harry williams | Aug 27, 2008 8:03:52 AM

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