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January 21, 2005

So, what is "reasonable"?

The remedial majority's decision in Booker makes "reasonableness" the new standard of appellate review in all federal sentencing cases.  Though I suspect we may get some guidance soon from circuit courts about what this standard means, it is fun now to reason through what the reasonable minds of reasonable people might reasonably think qualifies as reasonable.  (Of course, until we hear from courts, there is good reason to keep reasonable speculations about reasonable understandings of reasonableness within reason.)

Interestingly, and perhaps unsurprisingly, as detailed the Second Circuit letter briefs available in this post, US Attorneys in some cases are asserting that "sentences within the Guidelines range should be upheld as reasonable, whereas sentences that deviate from the Guidelines should be presumptively unreasonable."  Similarly, in a letter I was forwarded (and provide here) from the US Attorney for the WD of New York, there is a strong suggestion that concepts of reasonableness should be closely tied to guideline ranges: Download wdny_usa_letter_re_booker.pdf

But, according to an article I received from federal law clerk Laurie Kelleher and her colleagues, it would be improper to define reasonableness in this way given the holding of the Booker merits majority.  In an article you can download below, Ms. Kelleher writes:

If the reasonableness standard proposed by Justice Breyer is interpreted to mean that reasonableness is still defined in light of the relevant Guideline range, then the system would remain one of mandatory ranges....  This result would be inconsistent with the constitutional requirements of Justice Steven's opinion, and therefore, Justice Breyer’s opinion cannot be read in this impermissible way.

Ms. Kelleher's article provides a wealth of additional important insights and suggestions for how to reason through what reasonableness now means.

Download a_reasonable_reasonableness_standard.pdf

January 21, 2005 at 12:05 PM | Permalink


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The remedial majority's reasonableness standard has long been employed in the Sixth Circuit in the context of federal supervised release violation sentences. Chapter 7 of the United States Sentencing Manual sets for a guideline range for such violations in a series of "policy statements." The Sixth Circuit (and I believe all others) have held these guidelines are simply advisory. Appeals of such sentences are governed by a standard where if the court considered the guidelines and the sentence was reasonable will be upheld. I am not aware of any case reversing a sentence as "unreasonable" although there are some remands where the record was not clear that the court considered the guidelines. When I read the remedial majority opinion it struck me as the same standard that has been employed in supervised release violations all along. (A senior federal probation officer I talked to said the same thing.) Just my two cents.

Andrew Wise
Federal Defender Office
Detroit, MI

Posted by: Andrew Wise | Jan 21, 2005 1:01:12 PM

Having now read Laurie Kelleher article mentioned in the post, I see she has made the same observation with respect supervised release violations.

Posted by: Andrew Wise | Jan 21, 2005 1:41:10 PM

While I wish it were otherwise, I'm not sure I agree that the concept of "departures" no longer exists. If a court follows the procedures sketched out to me by one judge in the SDNY, it will first analyze the guidelines (including any approved departures), arrive an an overall offense level, and only then proceed to determine whether other (now permissible) factors warrant a lower or higher sentence. As I previously noted, this judge believes a lower initial guidelines (with departures) sentence would make any further deviations smaller and more likely, therefore, to be found "reasonable" on appeal.

If this process is followed, then won't it create a dueling set of standards for review? I'd think the "guidelines" calculations and classic "departures" would be reviewed under the standards the authors suggest are no longer applicable. Then further deviations from that sentence would be reviewed under the standards they suggest should be put in their place.

This dual system would be so complicated that it would be utterly unworkable. On that basis, I agree that one overall standard of "reasonableness" along the lines the authors suggest has to be implemented. Just for slightly different reasons.

Posted by: Alex E. | Jan 21, 2005 9:04:25 PM

Alex--I think your definition of "departure" differs from most others. Under the pre-Booker guidelines, departures occurred only after the court determined the initial base level, increased or decreased because of additional (relevant) conduct (e.g. obstruction of justice, acceptance of responsibility, etc), arrived at a guideline range and then finally, chose to depart from that range. So the phrase "approved departures" would be somewhat oxymoronic under the pre-Booker scheme. By definition, departures could only occured after the court determined a total offense level (base level +/- any increases or decreases), looked at the applicable guideline range, and then chose to depart by a number of months. It seems to me that under the old scheme, judges departed from sentencing ranges (e.g. 0-6 months, but awarding 12 months), not from offense levels as your comment seems to suggest.
I think the author's point about departures was that with an advisory system, courts are no longer bound to award sentences within the guideline range and so their decision to award a sentence outside that range cannot be characterized as a "departure." You can't depart from advice, you can only chose to take or leave the advice. Because there are no longer "departures," there is no longer "de novo" review of such departures (in fact such a standard was excised by the remedial majority opinion). After Justice Breyer's opinion, the only standard of review is one of "reasonableness."

Posted by: Jim | Jan 21, 2005 10:27:33 PM


It's true that many judges granted departures simply by reducing or adding a certain number of months, but on many occasions in cases I've handled, judges indicated they were granting an additional such and such level departure. This is, in fact, the way so-called "horizontal" departures concerning criminal history, in particular, were supposed to be done.

I use the term "approved" departures because the guidelines specifically permit departures on some grounds and prohibit them on others. See USSG 5K2.0 to 5K2.23. If a judge engaged in a straightforward guidelines analysis, then departed under a ground permitted under one of these provisions, I'd think such a lower sentence based on such a departure would be less susceptible to being overturned on appeal as "unreasonable" than a deviation based on a ground prohibited under the guidelines.

Again, I'm not arguing in favor of this, in fact, I'm against it because I don't want to weight the guidelines so heavily. Strictly as a matter of intellectual honesty, however, I think it's a defensible way to proceed. In fact, because the current crowd of district judges either grew up with the guidelines, have become so influenced by them or because they simply don't want to goad Congress into action by ignoring them, I'm betting many judges will follow this type of procedure.

Posted by: Alex E. | Jan 21, 2005 11:20:10 PM

This discussion of "departures" is very interesting. Who cares if the Judge "departs" from the guidelines if the prosecutor get all the enhacements that they want. You assume that the enhacements are real facts and what congress intended - they are not. These enhacements are not "facts" they are accusations by the prossecutors office that are not proven or agreed to. Do you think that congress intended that in a conspiracy involving say 10 people 4 could be enhaced as "leaders and organizers". Why do you think 98% of all federal cases are plea bargins - The prosecutors throw all the "enhacements" at the accused then pull them back to get a plea. Then go into court and add a couple on that the defense didn't think of and the defendant get 5 years when they thought the plea they signed gave them 6 months. If I am wrong let me know. Enhacements are "departures" unless they are proven beyond a reasonable doubt.

Posted by: bbigler | Jan 22, 2005 12:04:44 AM

Alex--I think we're on the same page, but I think the term "departure" is used differently where I practice. Departures in my district are (or, more appropriately, were) deviations that occurred after the judge looked at offense level increases and decreases.
Thus, in the pre-Booker scheme, if a judge decided not to apply a particular enhancement (say, obstruction of justice), she did not need to support that ruling with as many reasons on the record as when she decided to increase or decrease the length of sentence after the base level +/- any increases or decreases. That's the term of art "departure" in my district--when judges increase or decrease for a term of months based on things outside of the total offense level. In equation form, I think it's like this: sentence = (b +/- e) +/- d, where "b" is the base level, "e" is the increase or decrease, and "d" is departure.
So I guess I've used departure the way the author used it. And I don't think either of us has assumed that these things are proven beyond a reasonable doubt. That's what the merits portion of Booker was all about. So I think the author has a good point that "departures" in the sense I use the word no longer exist, at least if we take the remedial portion seriously when they say that the guidelines are truly advisory.

Posted by: Jim | Jan 22, 2005 11:03:45 AM


Your definition of "departures" is the same is mine. But you agree that under the mandatory guidelines, some departures were permissible and some were not, right? If the guidelines are not advisory, the SDNY judge about whom I'm speaking suggested that if courts analyze the guidelines to determine what sentence they suggest, they should also analyze what departures they would have permitted and make specific findings about any the court finds meritorious. Then, they go ahead and decide whether they will follow the guidelines sentence, departures and all.

I agree it's odd to imagine a court finding a certain "authorized" departure applicable but then departing only a certain extent, and then going ahead and "deviating" (my term) further based on factors one can't analyze under the guidelines. I think you believe, and I think it's perfectly sensible, that the guidelines analysis should stop with (b +/- e) and then skip the departure analysis and just throw in any grounds that might have warranted a departure into the whole 3553 mix.

I agree that's the most sensible and practical approach, but do you agree with the SDNY judge who believed a comprehensive guidelines analysis (b +/- e) +/- d that resulted in a lower sentence would be more likely to be found "not unreasonable" on appeal than the one you suggest (b +/- e) +/- 3553 factors and former "departure" grounds? Maybe it's all too metaphysical to distinguish the two approaches--and, again, I'm in favor of yours--but theoretically, doesn't the SDNY judge's approach provide a stronger basis to affirm on appeal (assuming courts end up deciding the guidelines are entitled to additional weight than 3553 factors)?

Posted by: Alex E. | Jan 22, 2005 1:48:22 PM

By the way, if they're monitoring all of this, I'd like to hear what Laurie Kelleher, Jeff Vollmer and Amanda Walker (the authors) think about our discussion.

Posted by: Alex E. | Jan 22, 2005 1:51:51 PM

Whoops, re-read my earlier post and saw a typo in the second sentence, which should have read "Even though the guidelines are now merely advisory, the SDNY judge about whom I'm speaking suggested . . . ."

Posted by: Alex E. | Jan 22, 2005 1:55:19 PM

After a quick read of the article and these posts, I think more emphasis needs to be placed on what is left of 3742. I think by not excising 3742(a),(b) and (f) appellate review has changed very little from pre-Feeney practice. First, just as before under 3742(a) and (b) there appears little if no room for an appeal that is within the guideline range. Second, under 3742(f) the appellate court must still remand when there has been an incorrect application of the guidelines and when the district court fails to provide the required statement of reasons in the judgment and committment. In light of the above, there is a strong argument that the "unreasonableness" standard only applies in cases involving sentences outside the guideline range.
As to the unreasonableness standard if you are trying to get a high sentence reversed, I would try to avoid the probation/supervised release cases and focus on the extent of departure cases. Appellate courts generally have taken a harder look at the "unreasonableness" of a departure. Compare United States v. Working, 287 F.3d 801, 806 (9th Cir. 2002)("The district court must explain the reasoning for both the direction and degree of the departure in sufficiently specific language to allow appellate review") with United States v. Salinas, 365 F.3d 582, 589 (7th Cir. 2004)(The Court "need only make comments reflecting that the appropriate factors [the guideline range and sentencing factors of 3553(a)] were considered"). Unfortunately, Beyer cites the probation/supervised release cases even though it is arguable a "plainly unreasonable" standard applies in those circumstances because there is no applicable guideline, ie Ch 7 is not binding.

Posted by: Vince B. | Jan 23, 2005 11:19:02 AM

Paralegal - I'm trying to do some research and have run into a block. Hopefully you can help. Question? Felony offenders are"state" inmates, and equal treatment under federal and state law prevents inmates in one coundy from being treated differently from inmates in other counties unless there is some reasonable basis. What is the reasonable basiss that makes being a felon unique?

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