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January 24, 2006

Taking Booker and 3553(a) seriously

I have lamented today, and many times before (here and here and here), the failure of some federal courts to focus on Congress's commands in section 3553(a) of the Sentencing Reform ActBooker makes clear that all the provision of section 3553(a), and not just the diktats of the guidelines, are now to guide district court sentencing and appellate court review of sentences.  And yet so many opinions — especially coming from the circuits as they presume guideline sentences to be reasonable — still seem to take the guidelines more seriously than Booker and the text of section 3553(a).

But I should know better than to give up on the post-Booker world, and today I received hope in the form of an opinion recently filed by US District Judge Gregory Presnell.  Judge Presnell, who long ago already secured a place in my Sentencing Hall of Fame, provides a wonderful lesson in how to take Booker and the text of section 3553(a) seriously in US v. Pacheco, No. 05-cr-137 (M.D. Fla. Jan. 20, 2006) (available for download below).  And, along the way, Judge Presnell appropriately takes prosecutors to task for not doing the same.  Here's a selection from Pacheco, which is today's must-read:

After Booker, no one can reasonably dispute the fact that sentencing courts have discretion to impose a sentence lesser than the low end of the Guideline range, so long as that sentence is reasonable in light of the Section 3553(a) factors.  Nonetheless, the Department of Justice ("DOJ") continues to do so.  At every sentencing hearing before this Court, the prosecution recommends a Guideline-range sentence, making no effort to explain that recommendation in light of the Section 3553(a) factors.  After any below-Guideline sentence, the prosecutor routinely objects, and the only explanation offered is that the sentence falls short of the Guideline range. Obviously (though not openly), the government continues to maintain its policy that the only reasonable sentence is one that falls within or exceeds the Guideline range — a position that obviously contradicts the Supreme Court's pronouncements in Booker.  And DOJ has maintained this posture even though the Eleventh Circuit has explicitly rejected its argument that a sentence in the Guideline range is, per se, a reasonable sentence.

By continuing to insist that this Court rigidly adhere to the Guidelines, prosecutors are violating their obligation as officers of the Court and failing to provide this Court with any meaningful assistance in crafting a reasonable, just sentence.

Download judge_presnell_sentencing_order_in_pacheco.pdf

January 24, 2006 at 05:49 PM | Permalink


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Judge Presnell is reckless and this order wll get slapped down quickly. There is nothing reasonable about completely ignoring Congress's range with regard to criminal history. For you to praise this action is even worse. If Presnell can radially depart from the Guidelines to order a sentence many dozen months below what is apppropriate under the Guidelines range, then I expect to see you equally praise the "hang'em high" district judge who follows Presnell's lead and departs upward several dozen months because the crime was especially heinous. I look forward to that post.

Posted by: Article III Clerk | Jan 24, 2006 11:53:25 PM

Article III Clerk: I will praise any judge who takes the mandates of Booker and 3553(a) seriously and explains in detail how his or her sentence qualifies as "sufficient but not greater than necessary" to serve the purposes of punishment detailed in 3553(a).

I am troubled by your reference to the guidelines as "Congress's range." Congress has NEVER duly enacted the guideline range applicable in the Pacheco case. But Congress did enact (and President Reagan did sign) the Act which contains the instructions of 3553(a). This is why I think judges should be praised for following 3553(a) and faulted for blindly following the guidelines. Only 3553(a) has been enacted by Congress.

You call the Pacheco case "reckless." Might you explain what you think is "reckless" about the decision other than the fact that Judge Presnell did not blindly follow the guidelines?

Posted by: Doug B. | Jan 25, 2006 7:15:16 AM

The law requires the USSC to send its initial guidelines to Congress by April 13, 1987 and under present statute they take effect automatically on November 1, 1987. The USSC may submit guideline amendments each year to Congress between the beginning of the regular session and May 1. The amendments will take effect automatically 180 days after submission unless a law is enacted to the contrary. Thus because the guidelines and any amendments to them have to be reviewed, approved and enacted by Congress the guidelines belong to Congress.

Posted by: John | Jan 25, 2006 9:23:35 AM

I've been away from this blog for a while, but I'm disappointed to see such a knee-jerk reaction by Article III Clerk. When I was a clerk, I was obviously influenced to a large degree by the fine judge for whom I worked. I'd expect that AIIIC is no different and that his or her judge probably gives out the "max" in typical sentencings in the belief that this is the best way try to control crime (not necessarily the best way to treat the offender as well). Perhaps, like so many current judges and law clerks who have come of age only in the guidelines era, AIIIC understandably has no perspective except the skewed one often held by those for whom a 5 or 10 year sentence for small time participants in crimes seems eminently reasonable.

I'm hoping that the qualities of intelligence and skill that prompted AIIIC's judge to hire AIIIC will allow him or her to keep an open mind about what is reasonable when he or she gets out into the real world and learns that it operates in greys and not black and white. Justice, as AIIIC surely knows deep down inside, is an individual exercise, highly dependent on the facts of an individual case. The flaw in the guidelines is that they stripped judges of making that most important determination. As Professor Berman suggests, responsible judges should go below or above the guidelines whenever individual facts warrant. None should be criticized for doing that when their actions are justifiable in that manner.

Posted by: Alex E. | Jan 25, 2006 10:19:12 AM

my comments id Blakely should of helped myson,but the judge just refuse to admit he sentence my on hear say. He recently did a appeal to the fifth circuit court and they agree he had been done wrong,but the judge didn't agree. I beleive they should remover theses judge or fined them for sentencing people wrong. This effects the wholr family. my son had never been in troule before and was setup.

Posted by: lilly esau | Jan 25, 2006 10:31:41 AM

John: I suppose it is accurate to say that the guidelines have been "reviewed" and "approved" by Congress, but they have not been duly "enacted" --- i.e., both houses of Congress have not voted to officially adopt particular guidelines, rather Congress has simply refused to reject the guidelines promulgated by the Commission. This is perhaps a subtle distinction, but still an important one.

Beyond the subtle realities of the guidelines, the broader point is that Congress has enacted specific instructions to sentencing judges in 3553(a). That is the key "higher authority" that judges are required to follow, and I have been disappointed that a lot of smart judges and others still want to emphasize the particulars of the (now advisory) guidelines over the mandates of 3553(a).

Critically, following the mandates of 3553(a) will not always result in lower sentences. There may be many instances where the imperfect guidelines recommend sentences that are too lenient and faithful compliance with 3553(a) will require a judge to sentence above the guidelines. For me the key is that the guidelines should not be viewed, unthinkingly, as the gold standard (especially since, after Booker, treating them as such risks unconstitutionality).

Posted by: Doug B. | Jan 25, 2006 10:34:23 AM

Article III Clerk states that: "There is nothing reasonable about completely ignoring Congress's range with regard to criminal history."

The thing is, the judge didn't do that (even setting aside whose range they are, and while Congress may have had a role in ratifying those guidelines, they certainly weren't a product of the usual legislative process). He calculated the guideline range. It made one of the two criminal history adjustments suggested by the guidelines, and he imposed a sentence of two and a half times that level, instead of the five times that level suggested by the guidelines.

If he had ignored the guidelines with regard to criminal history entirely, the sentence would have been 8 months. Had he followed them blindly, the sentence would have been 47 months. The judge imposed a 30 month sentence. When a sentence is enhanced by 22 months by virtue of a Defendant's criminal history, that factor has not been ignored.

He then discussed at length the considerations that led him to reach the conclusion that two and a half times, rather than five times the criminal history adjusted base sentence was reasonable.

Booker made clear that this is precisely what judges are supposed to do. And, nothing at all justifies the DOJ conduct that draws his particular picque, its policy decision to completely ignore recent, binding and controlling U.S. Supreme Court precedent in Booker.

Far more important than whether or not Congress created those guidelines, is the point that the U.S. Supreme Court found that the guidelines as enacted, were unconstitutional, not because they were cruel and unusual, but because, as enacted they violated the right to trial by jury. Congress passed a law banning flag burning for political purposes as well, but I would be first in line to scorn any judge who did not ignore Congress's unconstitutional enactment on this point.

Posted by: ohwilleke | Jan 25, 2006 10:50:45 AM

Article III clerk seems to hold that “what is appropriate under the Guidelines range” has some authority greater than any other factors of 3553(a), but the Supreme Court found that punishment is more than a grid selection of the highest possible sentence after a jury verdict or plea of guilty, and the Sixth Amendment is violated when “what is appropriate under the Guideline range” is mandated on district court judges. For “the judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law.” Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000). If a citizen charged with a crime may be imprisoned for a term of imprisonment exceeding one-year, the force of the Fifth and Sixth Amendments ensure, indictment, jury determination with proof beyond a reasonable doubt of his guilt, or an admission. The same should hold true if the punishment is to be increased more than one-year greater than the base offense level for the charged crime. Each 6 levels under the guidelines doubles the sentence, a 16 level increase multiplies the sentence 2.67 times, with no constitutional protections, and then the Criminal History Category propels the range skyward without formal charges. An “appropriate sentence” is found by the appropriate “sentencer”, not the prosecutor.

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