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April 6, 2005

Blockbuster 6th Circuit decision on plain error and reasonableness!

Continuing to lead the way with post-Booker circuit rulings of interest, today the Sixth Circuit in US v. Webb, No. 03-6110 (6th Cir. Apr. 6, 2005) (available here) affirmed a sentence over Booker objections.  The Webb decision is interesting in part for its plain error discussion: in an extended analysis, the court finds that the Circuit's Barnett "presumption of prejudice" was rebutted on the facts because "the trial record contains clear and specific evidence that the district court would not have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime."

But making Webb a true Booker blockbuster is the court's subsequent discussion of reasonableness.  Here are just some of the highlights (with a lot of the important points in footnotes):

As the Second Circuit recently noted, "review for 'reasonableness' is not limited to consideration of the length of the sentence."  Crosby, 397 F.3d at 114.  Instead, we read Booker as instructing appellate courts in determining reasonableness to consider not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.  Thus, we may conclude that a sentence is unreasonable when the district judge fails to "consider" the applicable Guidelines range or neglects to "consider" the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.  We decline, however, to define rigidly at this time either the meaning of reasonableness or the procedures that a district judge must employ in sentencing post-Booker.  Instead we believe it prudent to permit a clarification of these concepts to evolve on a case-by-case basis at both the district court and appellate levels.  Any specific clarification of the reasonableness standard is also unnecessary in this case, as we conclude that there is nothing in the record which suggests that the district court's sentencing determination was unreasonable.

The district court in reaching its sentencing determination properly calculated and considered the appropriate Guidelines range.FN 6...

FN 6 Although we hold that the district court properly calculated the appropriate Guidelines range in this case, we decline to address whether a district judge must always calculate the precise appropriate Guidelines range in order to comply with BookerSee Crosby, 397 F.3d at 112 (indicating that "precise calculation of the applicable Guidelines range may not be necessary" in certain situations where the district judge imposes a non-Guidelines sentence).

Finally, there is no evidence in the record that the district judge acted unreasonably by, for example, selecting the sentence arbitrarily,FN 8 basing the sentence on impermissible factors, failing to consider pertinent § 3553(a) factors, or giving an unreasonable amount of weight to any pertinent factor.FN 9 Instead the record indicates that the district judge carefully reviewed and weighed all the relevant information provided by Webb, the government, and the probation office before arriving at Webb’s sentence.  As a result, we find nothing in the record that indicates that Webb's sentence is an unreasonable one with regard to the length, the factors considered, or the procedures employed by the district court in arriving at Webb’s sentence.FN 10

FN 8 Post-Booker we continue to expect district judges to provide a reasoned explanation for their sentencing decisions in order to facilitate appellate review. See 18 U.S.C. § 3553(c)

FN 9 While we decline to indicate what weight the district courts must give to the appropriate Guidelines range, or any other § 3553(a) factor, we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable.  Such a per-se test is not only inconsistent with the meaning of "reasonableness," see Crosby, 397 F.3d at 115 (noting that reasonableness is "a concept of flexible meaning, generally lacking precise boundaries"), but is also inconsistent with the Supreme Court's decision in Booker, as such a standard "would effectively re-institute mandatory adherence to the Guidelines."  Crosby, 397 F.3d at 115.

FN 10 We do not hold that the procedure followed by the district court in sentencing Webb would be reasonable in every case.  Certainly there will be cases in which further procedures are required, particularly now that district judges, unlike the district judge in this case, have more discretion under Booker to determine the proper sentence.

April 6, 2005 at 11:47 AM | Permalink

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