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August 22, 2012

Seventh Circuit talks through reasonableness review of above-guideline sentences

In part because it is an opinion by Judge Posner, and in part because it concerns an issue that arises with relative frequency, federal sentencing practitioners will want to be sure to check out the Seventh Circuit's work today in US v. Castillo, No. 11-2792 (7th Cir. Aug. 22, 2012) (available here). Here are excerpts from the panel opinion (with most cites omitted):

We write to clarify an ambiguity concerning the scope of appellate review of an above-guidelines sentence.  We have said that “the farther the judge’s sentence departs from the guidelines . . . the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.”  United States v. Courtland, 642 F.3d 545, 550 (7th Cir. 2011).... The ambiguity is in the word “farther.”  It can be conceived of in either relative or absolute terms.  A sentence of 60 months is 30 percent longer than a sentence of 46 months (the top of the applicable guidelines range in this case); and a 30 percent increase is large in relative terms. But in absolute terms, given the severity of federal criminal punishments, it is a smallish 14 months; the average federal prison sentence in 2009 was 57 months.

It seems to us that the relative is generally more important than the absolute, as is implicit in a number of our previous decisions.  The guidelines range is the Sentencing Commission’s estimate of the reasonable range of punishments for the defendant’s offense.  Usually (an important qualification, as we’re about to see), a judge who imposes a sentence far above the top or far below the bottom of that range is challenging the Commission’s penal judgment, and given that the Commission’s knowledge of penology exceeds that of most judges, the judge needs to provide more in the way of justification than if he were departing incrementally.

Guidelines ranges are inherently arbitrary, so had the judge in this case sentenced the defendant to 47 months instead of the guideline maximum of 46 it would not have been a significant challenge to the Commission’s penal judgment and so would not have required much in the way of justification.  A 30 percent departure requires more; “substantial variances from the Sentencing Commission’s recommendations require careful thought.” United States v. Kirkpatrick, supra, 589 F.3d at 415.  Yet less thought is necessary when the applicable guideline is “not the product of the Commission acting in ‘its characteristic institutional role,’ in which it typically implements guidelines only after taking into account ‘empirical data and national experience.’ ” United States v. Reyes-Hernandez, 624 F.3d 405, 418 (7th Cir. 2010), quoting Kimbrough v. United States, 552 U.S. 85, 109 (2007).

We acknowledge that focus on the sentencing judge’s percentage deviation from the guidelines range can mislead, at least when the sentence is below rather than, as in this case, above the sentencing range....  But it’s hard to see how a court can carry out the command of Gall to require a justification “sufficiently compelling to support the degree of the variance,” 552 U.S. at 50 (emphasis added) — “degree” being a relative rather than absolute measure — without at least considering the percentage deviation.

August 22, 2012 at 03:15 PM | Permalink

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Comments

"It seems to us that the relative is generally more important than the absolute"

As a categorical philosophical statement I find that position fascinating.

Posted by: Daniel | Aug 23, 2012 1:55:59 PM

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