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February 18, 2006

A reasonableness double shot from the Fifth Circuit

I noted here that the Fifth Circuit was having a big sentencing week, and Friday it finished up with two important opinions addressing reasonableness review.  In US v. Smith, No. 05-30313 (5th Cir. Feb 17, 2006) (available here) and US v. Duhon, No. 05-30387 (5th Cir. Feb 17, 2006) (available here), the Fifth Circuit sets forth its general approach to reasonableness review in the course of examining two non-guideline sentences.

In Smith, the Fifth Circuit explains that, "[t]hough flexible, the reasonableness standard is not unbounded."  The Smith court clarifies that the Fifth Circuit applies a "deferential standard for reviewing sentences within a properly calculated Guideline range[:] ... such a sentence is afforded a rebuttable presumption of reasonableness."  Discussing non-guidelines sentences, the Smith court embraces "the framework articulated by the Eighth Circuit in assessing the reasonableness of a court's statutory support:"

A non-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.

In Duhon, the Fifth Circuit reiterates these points and stresses that "[u]nder section 3553(a), ... a sentence must be supported by the totality of the relevant statutory factors."  The Fifth Circuit in Duhon also works thoughtfully through some of the provisions of 3553(a), though yet again there is nary a mention of Congress' command in 3553(a) that a sentence should be "not greater than necessary" to serve the purposes of punishment.

Though both Smith and Duhon are thoughtful opinions (with thoughtful concurrences by Judge Garza), I still believe, as explained fully here, that a "presumption of reasonableness" for within-guidelines sentences on appeal after Booker is badly misguided.  Even more troubling, these decisions continue the ugly pattern of reasonableness review: in Smith, a sizable above guideline sentences is affirmed as reasonable, whereas in Duhon a below guideline sentence is reversed as unreasonable.   

Smith and Duhon thus further my observation in this post, that the circuit courts are virtually creating de facto through reasonableness review a kind of post-Booker mandatory "minimum guideline system."  All within-guideline sentences and nearly all above-guidelines sentences are being found reasonable on appeal, but many below-guideline sentences are being reversed as unreasonable. 

February 18, 2006 at 01:39 AM | Permalink


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