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July 14, 2017

Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough?

The question in the title of this post was the one kicking around my head as I reviewed a DC Circuit sentencing opinion handed down last week in US v. Pyles, No. 14-3069 (DC Cir. July 7, 2017) (available here). A helpful reader made sure I did not miss this lengthy opinion (nearly 50 pages), in which the panel splits over the reasonableness of a (nearly-top-of-the-guideline-range) sentence of 132-months imprisonment for child pornography distribution.   In addition to finding generally reasonable the extended reasonableness discussion of both the majority and the dissent in Pyles, I was struck by how the discussion and debate over the nature and operation of reasonableness review has really not changed much at all in the 10 years since the Supreme Court gave us Rita, Gall, and Kimbrough.

I am not sure anyone should have expected many major jurisprudential developments in the circuit courts after Rita, Gall, and Kimbrough. But, on this summer Friday morning, I am struggling to really think of any major reasonableness review developments. Though there are some important specific rulings from specific circuits on specific issues (like the Dorvee ruling on child porn sentencings from the Second Circuit), I am not sure I could describe any defining characteristics  of reasonableness review circa 2017 that is distinct in any big way from the basic reasonableness review template set by Rita, Gall, and Kimbrough in 2007.

I would especially like to hear from federal practitioners about whether I might be missing something obvious or subtle when noting the seemingly staid nature of reasonableness review jurisprudence over the last decade.  What really strikes me in this context is the fact that debates over federal sentencing laws, polices and practices have been anything but staid over the last decade even as reasonableness jurisprudence has sailed forward ever so smoothly.

July 14, 2017 at 10:26 AM | Permalink


In an April 17, 2017 opinion, the Second Circuit said that a defendant's below-Guideline sentence in a child pornography case was "substantively unreasonable". See United States v. Jenkins, 854 F.3d 181, 196 (2d Cir. 2017). I've cited the case as a defense attorney and would like to be able to cite to more of the same.

Posted by: Daniel Hillis | Jul 14, 2017 11:09:42 AM

Thanks, Daniel. Jenkins continues the Dorvee line in CP cases, which is perhaps the most consequential line of substantive reasonableness review in any circuit. But we have not really see this Dorvee line spread to other circuits OR spread to other types of cases in the 2d circuit.

Posted by: Doug B. | Jul 14, 2017 3:56:33 PM

I think reasonableness for most federal sentences is for Lots of big Pyles.

I just couldnt let that slip past, its so fitiing, hits the mark and was lots less than 50 pages.

Have a nice day to all.

Posted by: MidWestGuy | Jul 14, 2017 4:36:36 PM

While I think the requirement for a contemporaneous objection to not considering an argument on the record is nuts I think Pyles should have come out the same even if it were reviewed for abuse of discretion rather than plain error. If discretion is to be meaningful then it has to be open to departure both high and low. This wasn't even the case of an above-guideline departure, simply the high end of the recommended range). As I see it, sentencing arguments are simply a guide to the §3553 factors rather than having any independent force.

The judge did clearly state why the high-end sentence was chosen, seeing this (correctly, I believe, from the fact description) as much more than a simple possession or even distribution offense. Here Pyles undertook the effort of travel with the expectation of engaging in sex with a minor.

There are a couple facts that I didn't see in a quick perusal of the opinions that might change my analysis. The first is Mr. Pyle's age, the second is the age of the minors he expected to meet. The younger Mr. Pyles is and the older the fictitious minors the more likely that becomes. Conversely the older Pyles is and the younger the minors the less likely that becomes. Although given that at least some of the images were described as "prepubescent children" my suspicion would be that the minors were to be toward the young side (which for this purpose I would define as anything younger than mid-teenage).

Posted by: Soronel Haetir | Jul 14, 2017 6:32:21 PM

The use of the word, reason, is unlawful in our secular nation. It violates the Establishment Clause. None of you lawyer remember Western Civ 101, because it was erased by your law school indoctrination. Reason is a superior path to moral decision making to intellect. The latter is misled by the Fall from Eden, and by the tendency to the Seven Deadly Sins. Reason is the ability to perceive God. The best guide to Reason is the New Testament. That book is the story of one man, Jesus. Reason originates from the making of man in God's image. It is the ability to perceive and to appreciate supernatural phenomena, such as God's will.

I have no criticism of religion whatsoever. However, that word, reasonable, should result in the automatic voiding of any legal utterance.

Posted by: David Behar | Jul 14, 2017 10:18:05 PM

Did any of you lawyers learn why reason is the central word of the common law? Were any of you ever told the technical meaning, outside of Western Civ 101 in freshman year of college? There is an uninterrupted paper trail from 13th Century scholasticism to today's use of the word. Did Porf. Berman take a course in Medievel philosophy?

Here is something I do not understand. Why is it that students who are Jews, Protestants, and Muslims do not strongly object to these terms plagiarized from the Catechism?

Posted by: David Behar | Jul 14, 2017 11:47:59 PM

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