Judge Posner's important and flawed work in Cunningham

The Seventh Circuit's ruling in US v. Cunningham, No. 05-1774 (7th Cir. Nov. 14, 2005) (accessible here), to vacate a post-Booker guideline sentence for "inadequate explanation" is perhaps the most consequential circuit Booker ruling in some time.  This is because Cunningham could (and should?) be read to mean that district judges commit reversible error if (and whenever?) they give in to "the temptation ... to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors" of 3553(a).

But, in addition to being important, Judge Posner's work in Cunningham is, by my lights, flawed for a few reasons.  Much of the prose is nuanced to the point of being incomprehensible.  For example, I am still trying to figure out the meaning of this seemingly important sentence from the Cunningham opinion:

We cannot have much confidence in the judge's considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.

Complaints about the prose aside, there is a substantive flaw in the opinion: the opening paragraph suggests that the post-Booker standard for a district court at sentencing is reasonableness.  See slip op. at 2 (explaining that a "defendant can try at the sentencing hearing" to show "that a guidelines sentence is unreasonable in the particular circumstances of the case").  But, critically, reasonableness is only an appellate review standard: it is the standard created by Booker that a circuit court is to use when reviewing a sentence that as been appealed. 

At a defendant's initial sentencing, there is a higher authority that provides the controlling legal standard: in section 3553(a) of the Sentencing Reform Act, Congress has plainly instructed district judges to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2).  Thus, the task Congress has given expressly to district judges is to figure out, "in the particular circumstances of the case," what sentence is "sufficient, but not greater than necessary" to comply with the SRA's statement of sentencing purposes.  Booker simply provided that circuit judges are to assess how district judges do their job by the standard of reasonableness.

Of course, as I explained in this post the night Booker was handed down, Justice Breyer's remedial opinion in Booker conspicuously fails to mention the "parsimony" mandate of 3553(a).  Nevertheless, it appears that most sentencing judges understand that they must follow Congress's commands in 3553(a).  Perhaps eventually appellate judges will fully get with the program.