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February 4, 2005

Booker debate continues with another potent district opinion

The circuit courts had started to take over the Booker judicial headlines with all the major rulings Wednesday (discussed here) and the remarkable intra-circuit split developing in the Sixth Circuit over plain error (discussed here).  But the potent work of US District Judge Richard Kopf in US v. Wanning, No. 4:03CR3001-1 (D. Neb. Feb. 3, 2005), is a reminder that there are still many district courts with much to contribute about Booker.

In Wanning, which can be downloaded below, Judge Kopf weighs in on the growing debate over how to weigh and integrate the guidelines into post-Booker sentencing decision-making.  Reiterating the legal perspective of Judge Cassell's Wilson opinions and expressing concerns about judges relying on personal views in an echo of Judge Holmes' Barkley opinion, Judge Kopf delivers a very sharp (and often very comical) defense of why he will give the guidelines "substantial weight even though the are now advisory."

Judge Kopf's work in Wanning must be read in full to be fully appreciated, but here are judge a few choice quotes from the opinion:

Judge Cassell thought Booker meant that the Guidelines, and the ranges they produce, should be given "considerable weight."  Wilson, 2005 WL 78552, at *3.  Judge Pratt, on the other hand, believes that Judge Cassell is incorrect.  Judge Pratt (and others who agree with him) would apply relevant portions of the sentencing statutes in a given case, without giving the Guideline ranges any particular weight, in order to arrive at a just sentence.  Myers, 2005 WL 165314, at *2-3.

In my opinion, Judge Cassell's position — that the Guideline range provides the presumptively reasonable sentence — is correct....

The Guidelines and their ranges were explicitly crafted by the Sentencing Commission at the direction of Congress to implement the statutory purposes of sentencing.... Congress also retained the power to amend the sentencing statutes and control the Sentencing Commission if it thought there was a mismatch between the purposes of sentencing and the Guidelines....

[J]udges cannot reasonably conclude that Congress willfully or negligently allowed Guideline ranges to be implemented that contradicted the statutes that Congress enacted for the purpose of setting sentencing goals.  It is more logical, and far more consistent with the proper role of an unelected judge, to presume that those ranges are most often consistent with, and do not contradict, the statutory sentencing goals and factors....

If one reads the decisions of judges who give the Guidelines and their ranges no particular significance ("weight"), one is, sadly, left with the conclusion that well-meaning sentences are now being imposed with little or no coherent organizing principles.  One day it may be deterrence (general or specific).  Another day it might be "just punishment" that catches our fancy.  On the third day we may be seen as promoting "respect for the law."  Of course, we never want a sentence longer than necessary. And so on, and so on.  We end up selecting the sentencing goal(s) of the day (and thus the sentence of the moment) with much the same whimsy and lack of coherence as children picking the flavor of the day at the ice cream shop.

What is really going on here is that we judges think that Congress and the Commission are frequently too harsh.  Goodness knows, I believe that.  But, no matter how loudly we proclaim that it is not so, the impact of following the "mix-and-match" approach is to return federal sentencing practices to the period before the Guidelines when old white men like me could and did sentence anywhere they wanted so long as they uttered some legal mumbo jumbo.

Download wanning_kopf_opinion.pdf

February 4, 2005 at 05:59 AM | Permalink


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Right on, Judge! Judicial realism at its finest. Correctly reduces the highfalutin' talk of some judges (and, excuse me, law professors), and gets to the points.

1. Congress has picked the system it prefers. It has chosen to maximize uniformity (and give sentences it thinks are appropriate).
2. The Supreme Court has said judges should give weight to the guidelines, but view them as advisory.
3. The guidelines were enacted after, and to implement, the statutory goals.
4. Nobody agrees with all the guidelines, and most of us think that many (particularly the drug guidelines) are too harsh, but there is no principled basis for not following them in the average case.
5. Any judge can come up with sentencing reasons for any result, unless the judge chooses to exercise self-restraint or is (excuse me Second Circuit), restrained by the appellate courts.

Can I buy Judge Kopf a beer? I don't practice in his district.

Posted by: A prosecutor | Feb 4, 2005 12:21:04 PM

Good going Judge Kopf! Turning next to those judges who officially disregard the advisory or mandatory guideline, they forget that those guidelines have increased the base level therefore indirectly /directly already affect their decision making. If the court is gonna make a decision on sentencing the "old fashion way", then they need to do it from a "tabula raza" sense approach. Que no?

Posted by: pax | Feb 4, 2005 12:48:26 PM

I don't recall ever having read a decision in such a down to earth non-technical style.
But I think the Judge is wrong on the resitution issue.
The defendant committed a fraud, and the MVRA requires that a defendant make complete restitution for a fraudulent act, regardless of whether the victims feel satisfied with some substantial amount of money that is less than the total amount of money of which they were defrauded.
The mandatory restitution statute is very specific about requiring complete restitution.

Brian Kleinhaus
Fordham '06

Posted by: Brian Kleinhaus | Feb 4, 2005 3:05:09 PM

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