Eighth Circuit explains why within-guideline sentences are appealable

As we approach the one-year anniversary of Booker, the realities of reasonableness review are finally starting to be filled in.  Yesterday brought a major crack/powder ruling from the First Circuit in Pho (basics here, commentary here and here), and today now brings a major ruling on the scope of appellate review from the Eighth Circuit in US v. Mickelson, No. 04-2324 (8th Cir. Jan. 6, 2006) (available here).

As discussed recently here, DOJ has been arguing in a number of circuits that, under the strict terms of 18 USC 3742, appellate courts lack jurisdiction to review a properly-calculated within-guideline sentence.  The Eighth Circuit in Mickelson (in an opinion by former USSC Chair Diane Murphy) discusses this issue at length.  Here is a snippet:

By selecting a reasonableness standard of review as most compatible with the Act and applicable to sentences either "within or outside" the range of the now advisory guidelines, Booker, 125 S.Ct. at 765, the Court conformed the Act to its sixth amendment remedy and provided for appellate review over all discretionary sentencing decisions for unreasonableness.  As we recognized in United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005), calculation of the appropriate guideline sentence is only the first step in sentencing decisions under Booker, for the court must also consider the § 3553(a) factors before making its ultimate decision. Under this regime a guideline sentence, although presumptively reasonable, United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir. 2005), can still be unreasonable when all the § 3553(a) factors are taken into consideration. The extent of a departure was always reviewed under the Act for reasonableness using the § 3553(a) factors, 18 U.S.C. § 3742(e)(3), and consideration of these factors under the discretionary guideline system is similarly subject to review for reasonableness.

Adoption of the rule urged by the government, that a sentence within the guideline range is not subject to reasonableness review, would have the effect of returning federal sentencing to something like the mandatory guideline system found unconstitutional in Booker.  See 125 S.Ct. at 746.  Under such a rule trial courts would be encouraged to sentence only within the guideline range to avoid having sentences overturned on appeal.  This would effectively restore the rigidity in sentencing which the Booker majority held to violate the sixth amendment rights of defendants. See id. at 750-51.  It is unlikely that Congress would have intended the appellate review it created in § 3742(a) to be construed so restrictively since the legislative history shows its purpose in enlarging such review was to reduce disparity and to identify potential sentencing problems. See S. Rep. No. 98-225, at 49, 151 (1983).

In contrast to the sentencing scheme before Booker when a sentence outside the mandatory guideline range was permitted only on very limited grounds, there are now more sentencing variables.  Both the grounds to support a sentence outside the range and the sentencing judge's discretion in weighing those grounds have increased significantly.  While appellate review of sentences within the guideline range was not seen as essential to the functioning of the original mandatory system, with advisory guidelines appellate review of sentences both within and without the guideline range is critically important to meet the congressional goals of eliminating sentencing disparities and refining the guideline system.

Notably, the Eighth Circuit's official opinion page also shows that today the Court has issued a number of other notable Booker rulings.  Of particular note, Chief Judge Loken's concurrence in US v. Wing, No. 05-2263 (8th Cir. Jan. 6, 2006) (available here) adds some additional interesting spice to the Seventh Circuit's assertion, discussed here, that "the concept of 'departures' has been rendered obsolete in the post-Booker world."