April 20, 2010
Third Circuit finds (way) below-guideline crack sentence unreasonable
In a lengthy opinion that covers lots of reasonableness review topics, a Third Circuit panel today in US v. Merced, No. 09-1844 (3d Cir. Apr. 20, 2010) (available here), reverses a 60-month sentence given to a crack offender with a long criminal history whose guideline range was 188 to 235 months. Here is a key concluding paragraph from the main opinion:
In summary, we hold that the District Court committed two errors. First, it may have sentenced Merced pursuant to a personal policy disagreement with the Guidelines; specifically, disagreement with the scope of the career offender provision of U.S.S.G. § 4B1.1. While granting a variance on such grounds may be permissible, the District Court must, at the very least, explain itself more thoroughly than it has so far. On remand, the District Judge should clearly explain whether he is granting a variance based on a policy disagreement with § 4B1.1. If so, he must justify that decision to the extent required by our precedents. Second, the District Court failed to analyze a highly relevant sentencing factor, § 3553(a)(6). The Court’s choice of sentence may have created a risk of unwarranted disparities between Merced and similarly situated recidivist crack cocaine dealers. The Court should have considered this issue, and addressed the government’s argument that a Guidelines sentence was necessary to promote uniformity in sentencing.
April 20, 2010 at 02:10 PM | Permalink
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"What I anticipate will happen is that 'unreasonableness' review will produce a discordant symphony of different standards, varying from court to court and judge to judge, giving the lie to the remedial majority's sanguine claim that 'no feature' of its avant-garde Guidelines system will 'ten[d] to hinder' the avoidance of excessive sentencing disparities.'"
Scalia's partial dissent in Booker
Posted by: Texas Lawyer | Apr 20, 2010 3:25:29 PM
"Absent the career offender provision, his base offense level would have been 28, his adjusted offense level 25, and his Guidelines range 110-137
Umm. Doesn't that mean that "absent the career offender provision" the corresponding base offense level for someone possessing powder would have been something like 12 or 14?
So adopting the 1:1 ratio (not controversial) and refusing to apply career offender (somewhat more controversial but still not that far outside the mainstream of sentencing practice) would result in a guideline recommendation way below the mand. min?
Posted by: Texas Lawyer | Apr 20, 2010 3:35:33 PM
This doesn't mean that he cant still have the 60 month sentence. Maybe a bit more, but the District Court just have to give some good reasons for the 60-80 months.
Posted by: N/A | Apr 20, 2010 4:26:51 PM
Concerning the second found error, the Circuit seems to overlook the Supreme Court's holding in this area:
"The Court of Appeals stated that “the record does not show that the district court considered whether a sentence of probation would result in unwarranted disparities.” 446 F.3d, at 890. As with the seriousness of the offense conduct, avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges. Since the District Judge correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities." Gall, 552 U.S. at 54.
Given this instruction, so long as the district court considered and reviewed the GL, then it is tough to see how it "failed to analyze a highly relevant sentencing factor, § 3553(a)(6)." I think the 3d Cir. may have erred in this regard.
Posted by: DEJ | Apr 20, 2010 5:24:07 PM
I read the entire Merced opinion last night and had many reactions. Most of those reactions, however, reminded me of a case a few months back. After looking for that case, I discovered it was also a 3d Circuit case and one that is extensively cited in this opinion: US v. Lychock. My comments about Lychock are in the Aug. 25 blog post cited below and most points I made there are also applicable to this case.
Specifically in regards to the Merced opinion, I have five main reactions:
1) Did the government object to these procedural error in the dist. ct.? Does the 3d. Cir. review un-objected to procedural errors for plain-error (like most Circuit do)? Since these were procedural error, I was surprised to not see a discussion about preservation or plain error.
2) Concerning the first error, the Court continuously says that 4B1.1 reflects BOTH the Commission's and Congress's policy/judgment. That is incorrect. 4B1.1 is NOT the result of the Commission's study or empirical analysis; it is only the result of Congressional directive, 28 usc 994(h). Under Kimbrough, a policy disagreement only warrants extensive explanation when it contradicts the Commission's role. Let me paraphrase Kimbrough:
"[C]loser review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's [policy disagreement with the GL].
The [career offender] Guideline, however, [does not present that situation] because those Guidelines do not exemplify the Commission's exercise of its characteristic institutional role. In formulating [4B1.1], the Commission looked to [28 U.S.C. 994(h)], and did not take account of 'empirical data and national experience.'" Kimbrough, 552 US at 109.
In sum, as in Lychock, the 3d Cir. was incorrect to believe it had to take a closer look and require greater explanation for a policy disagreement with 4B1.1.
That being said, I don’t have a problem with the Circuit remanding to have the dist. ct. state whether its variance was or was not based on a policy disagreement. As I’ve always maintained, the explanation for a sentence (both GL and non-GL) should always be clear and thorough.
3) Concerning the second found error, I stand by my comment yesterday, posted above. In light of Gall's instruction and given that the Merced panel specifically finding the dist. ct. "properly considered the GL range," I believe the panel erred in finding error.
4) The Circuit's requiring an explanation as to why a variance would not cause unwarranted disparities may be an attempt to make the GL more mandatory than they should be post-Booker. As Kimbrough explained: "some departures from uniformity were a necessary cost of the [Booker] remedy.”
5) On remand, the same sentence can and should be given, and doing so would not contradict anything in the panel’s opinion.
Posted by: DEJ | Apr 21, 2010 1:55:44 PM