September 26, 2011
Has the Seventh Circuit essentially abolished substantive reasonableness review?
The question in the title of this post is prompted by the Seventh Circuit's ruling today in US v. Vance, No. 10-3245 (7th Cir. Sept. 26, 2011) (available here), which seems to indicate, in substance and style, that the circuit will always affirm a within-guideline absent a procedural error. In Vance, a defendant with a long criminal history appealed a within-guideline sentence of nearly 22 years for offenses involving a small amount of crack. The panel majority set up the issues for review this way:
In this case, the defendant has conceded that the range of 262 to 327 months’ imprisonment was computed correctly. We therefore apply the presumption of reasonableness and consider whether (1) the defendant’s arguments for a below-Guidelines sentence were given meaningful consideration and (2) the factors that formed the basis of the judge’s sentence were adequately communicated at the hearing. If these requirements are satisfied, we conclude that the sentence imposed was a reasonable exercise of the sentencing judge’s broad discretion.
As I read this paragraph, it seems the Seventh Circuit really does not merely presume the (substantive) reasonableness of within-guideline sentences. Rather, this paragraph suggests the Seventh Circuit will consider any and all within-guideline sentences per se reasonable if the sentencing record below reflects "meaningful consideration" of the defendant's arguments and the district judge's sentencing ruling was "adequately communicated."
To its credit, the Seventh Circuit has applied the most rigorous form of procedural reasonableness review among the circuits: Seventh Circuit panels have often remanded for resentencing after finding that a district judge failed to give "meaningful consideration" to arguments or that a sentencing decision was not "adequately communicated." But the US Supreme Court in Rita indicated that circuits must conduct substantive reasonableness review as well as procedural reasonableness review after Booker even for within-guideline sentences. It also hinted in Rita that only a presumption of reasonableness, not a per se affirmance rule, would comply with the Sixth Amendment part of the Booker ruling.
Notably, Judge Williams had a brief dissent in Vance, though she asserts merely that "the proper course of action is a limited remand to ask the judge whether he would have sentenced Vance any differently in light of the disparity in crack and powder career offender guideline ranges in this case." In other words, she takes no issue with the lack of any substantive review of a 22-year prison sentence for small-fry crack offenses, but rather just urges a limited remand to ensure the district court knew what it was doing.
Especially given that the defendant in this cases was sentenced after the passage of the Fair Sentencing Act lowered crack sentences dramatically, but before the guidelines were amended to reflect the FSA's reduced sentencing terms, there is a lot that could and probably should be said about the substantive (un)reasonableness of the defendant's sentence here. But it seems the Seventh Circuit is not merely content, but actually eager, to treat the guidelines as a "sentencing safe-harbor" so that within-guideline sentences are immune from the substantive reasonableness review that the Supreme Court has purportedly required after Booker. Sigh.
September 26, 2011 at 04:04 PM | Permalink
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