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May 4, 2005

A dissent from circuit business as usual post-Booker

In addition to all the notable circuit Booker action detailed in this post, late yesterday the Fifth Circuit released US v. Creech, No. 04-40354 (5th Cir. May 3, 2005) (available here), which is noteworthy principally because of Judge Emilio Garza dissent from footnote 2 of the court's opinion. 

In footnote 2 of Creech, the Fifth Circuit, drawing on its prior Villegas decision (discussed here), asserts that "Booker did not alter the standard of review we must employ when reviewing a court's interpretation and application of the Guidelines."  In that footnote, the Creech court cites post-Booker decisions from other circuits to the same effect, and just this week the 8th Circuit in Mathijssen and the 11th Circuit in Crawford came to the same conclusion.

Not so fast, says Judge Garza, who asserts in his partial dissent that "footnote 2 and Villegas's dicta contravene the clear language in Booker."   Here are highlights from Judge Garza's articulation of his understanding of appellate review after Booker:

Nothing in Booker suggests a de novo review.... I believe we review sentencing decisions for unreasonableness regardless of whether the district court applies the Guidelines and, in cases where the district court does apply the Guidelines, regardless of whether it does so correctly....

Having excised § 3742(e), we no longer review sentences for "violation of law" and "incorrect application," but rather for unreasonableness.... 

By replacing Booker's unreasonableness standard of review with a de novo review, the court is essentially reimposing 18 U.S.C. § 3553(b)(1), the severed provision that made the Guidelines mandatory.  Booker recognizes that de novo review is used in conjunction with mandatory systems....  Following Booker's admonition, de novo review is inconsistent with an advisory system.

Here, the district court properly interpreted and applied the Guidelines, resulting in a reasonable sentence.... I agree that to ascertain whether the Guidelines have been applied properly, a preliminary step in our review, requires de novo review of legal issues and clearly erroneous review of factual issues.  However, any determination that either or both determinations are error does not end the inquiry as it did pre-Booker.  The court must take the additional step to determine whether the sentence decision is unreasonable in light of the factors listed in § 3553(a)....  In reviewing for reasonableness, we must remember that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410 (2000) (discussing unreasonable applications under AEDPA) (emphasis in original).  Here, the district court’s sentence was a correct application of the advisory Guidelines, and I agree that we should hold Creech’s sentence reasonable.  Thus, I concur in the judgment and in most of the opinion except for this most important, but erroneous, footnote.

May 4, 2005 at 01:28 AM | Permalink


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Judge Garza confuses the question of whether the sentence imposed in reasonable (which is what Booker was about) with the question of whether the Guidelines were correctly calculated.

Posted by: Anonymous | May 4, 2005 1:54:54 PM

I am sure if Judge Garza were confused he would have said so in his dissent. It was not a question of wether the guidlines were calculated (perhaps you were confused) but wether they were applied correctly. Furthermore to concur on the judgement but dissent from a footnote would indicate someone who does not glance over details and is not confused, for glancing over details would lead to confusion on this topic. In conclusion perhaps you glanced over a few details.

Posted by: Anonymous2 | May 20, 2005 12:13:05 PM

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