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March 9, 2009

The persistence of pre-Booker precedents in a post-Booker world

The Sixth Circuit's work today in US v. Blue, No. 07-5296 (6th Cir. March 9, 2009) (available here), provides yet another example that, even years after the Bookerdecision, many sentencings and appeals march forward as if the pre-Booker world was still in place.  The Blue decision does not really break any new ground in rejecting an appeal of a district court's refusal to depart for substantial assistance absent a government motion for such a departure.  But the start of the panel's analysis provides an example of how hard it has been to get lawyers to fully inculcate the import and impact of Booker:

We must begin by situating Blue’s appeal in the context of appellate review of sentencing post-Booker— a task that, regrettably, the parties did not undertake in their briefs.[FN1]

[FN1] The government cites United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000) — a case that pre-dates Booker by five years — for the proposition that we should “review the district court’s interpretation of the Sentencing Guidelines de novo.”  And Blue’s counsel fares no better by citing United States v. Hawkins, 274 F.3d 420 (6th Cir. 2001).  By the time the parties filed their appellate briefs with this Court in late 2007, Bookerhad been on the books for over two years. This Court expresses its fervent hope that the parties’ persistent recitation of pre-Booker cases is not evidence that counsel are unaware that the appellate standard for sentencing review now focuses on “reasonableness,” Booker, 543 U.S. at 262; Rita, 127 S.Ct. at 2464.

March 9, 2009 at 10:15 AM | Permalink

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Comments

Sounds like the panel and the parties are addressing different questions. From the footnote, it looks like the parties were addressing whether the district court erred in its interpretation of some specific portion or requirement of the sentencing guidelines. That SOR for that issue should be de novo. The panel, on the other hand, looks like it wants to skip that question and go right to the overall reasonableness of the sentence. That's got a different SOR, sure, but it's not the right question.

I haven't read the briefs or the decision, so I'm deliberately ignorant here, and someone can correct me if my premise is wrong. But it looks like the panel is switching quesitons and then chastising the lawyers for not addressing the panel's preferred question.

Posted by: Anon | Mar 9, 2009 2:59:42 PM

Anon,

On the face of the opinion, you're exactly correct. The D argued that the Court erred in its application of 5K1.1--an argument as to which de novo review applies. The opinion chastises the parties for not placing the decision under review into the correct post-Booker box ("procedural reasonableness," i.e., were the Guidelines correctly calculated). For decisions in that box, you're right that pre-Booker standards, not an amorphous "reasonableness" standard, apply.

But what's really going on is the Court is also chastising defense counsel for not making a second available argument--that apart from whether the 5K1.1 motion was correctly denied, the sentence was arguably unreasonable (either procedurally or substantively) because the district court could have taken the D's cooperation into account under 3553(a), irrespective of 5K1. According to the opinion, defense counsel made that argument only half-heartedly at sentencing, and not at all on appeal. Judge Martin, perhaps frustrated at the guidelines-centric view of the world that continues even among defense counsel, explained the argument in detail before finding it waived and affirming the sentence.

Posted by: Def. Atty. | Mar 10, 2009 1:31:21 PM

It's clear that the panel got this one wrong (not the case - but allowing this FN to stay) Even after Booker, the COA reviews the district court's interpretation and application of the sentencing guidelines de novo. See, e.g., 486 F.3d 408 (8th Cir. 2007). I don't see what the problem is here. I read Judge Martin's decision. He obviously doesn't get it. Defendants can challenge their sentences by making (among others): statutory arguments (e.g., the dct messed up applying the guidelines), procedural arguments (e.g., the dct didn't consider all of the 3553(a) factors), or substantive args (i.e,. the dct did everything right but the result was substantive wrong). Here, Blue made a statutory argument - that the dct court didn't properly apply 5k.1. The fact that Judge Martin thinks he could have made the same arg. under the 3553(a) factors is besides the point. In short, I don't really see the point of his ill-advised (and apparently ill-informed) chiding of counsel.

Posted by: Alex | Mar 10, 2009 1:38:39 PM

It's clear that the panel got this one wrong (not the case - but allowing this FN to stay) Even after Booker, the COA reviews the district court's interpretation and application of the sentencing guidelines de novo. See, e.g., 486 F.3d 408 (8th Cir. 2007). I don't see what the problem is here. I read Judge Martin's decision. He obviously doesn't get it. Defendants can challenge their sentences by making (among others): statutory arguments (e.g., the dct messed up applying the guidelines), procedural arguments (e.g., the dct didn't consider all of the 3553(a) factors), or substantive args (i.e,. the dct did everything right but the result was substantive wrong). Here, Blue made a statutory argument - that the dct court didn't properly apply 5k.1. The fact that Judge Martin thinks he could have made the same arg. under the 3553(a) factors is besides the point. In short, I don't really see the point of his ill-advised (and apparently ill-informed) chiding of counsel.

Posted by: Alex | Mar 10, 2009 1:39:32 PM

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