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February 6, 2006

Big Fourth Circuit opinion on reasonableness review

The Fourth Circuit today in US v. Green, No. 05-4270 (4th Cir. Feb. 6, 2006) (available here), discusses reasonableness review at length.  Here are highlights from the Fourth Circuit's overview of what Booker and 3553(a) mean for federal sentencing (with cites omitted):

[T]o sentence a defendant, district courts must (1) properly calculate the sentence range recommended by the Sentencing Guidelines; (2) determine whether a sentence within that range and within statutory limits serves the factors set forth in § 3553(a) and, if not, select a sentence that does serve those factors; (3) implement mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a sentence outside of the Sentencing Guideline range better serves the relevant sentencing purposes set forth in § 3553(a).

The Fourth Circuit in Green also goes on to officially adopt the a presumption of reasonableness for within-guidelines sentences:

In this area, the district court is given some latitude to tailor a particular sentence to the circumstances without discarding the overarching guidelines and policies.  But we agree with the Seventh Circuit, which has concluded that a sentence imposed "within the properly calculated Guidelines range . . . is presumptively reasonable." United States v. Newsom, 428 F.3d 685, 687 (7th Cir. 2005).

A sentence falling outside of the properly calculated Guidelines range is not ipso facto unreasonable.  But if that sentence is based on an error in construing or applying the Guidelines, it will be found unreasonable and vacated.  The same is true if the sentence is imposed outside the Guideline range and the district court provides an inadequate statement of reasons or relies on improper factors in departing from the Guidelines' recommendation....

I suppose I am not surprised to see another circuit jump on the "presumptively reasonable" bandwagon (while reversing a below guideline sentence), but I continue to be disappointed at the culture of guideline compliance we are seeing from the circuit courts.  As I lamented in this post last week,  the more circuit opinions I read, the more it seems the circuit courts are creating de facto through reasonableness review a kind of post-Booker mandatory "minimum guideline system" that AG Alberto Gonzales called for last summer.

February 6, 2006 at 03:52 PM | Permalink


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First, district courts should determine from the offense of indictment, the crime alleged. Second, the court should calculate the sentence from the guidelines, a must do function, based on the facts reflected in the jury’s verdict or admitted by the defendant.
Third, the court should determine the Criminal History category from prior convictions.
Fourth, the court should follow the guidelines from the base offense level to the criminal history category intersection and find the prescribed range which he must consider.
And Fifth and finally the judge should determine where within the prescribed range, to set the punishment after taking into account, those other factors of §3553 (a) either in mitigation or aggravation, but within the range. The entire guideline table is not a dart board where any hit counts; the prescribed range is established through fact-finding by the fact-finder. The district court’s first, starts his count on the middle finger, and that is raised to the defendant under the advisory scheme.

Posted by: Barry Ward | Feb 6, 2006 4:45:45 PM

Dear Professor Berman,

It is my prayer that this email finds you and those you love doing well. Because of my fiancee, I have been able to review many of your posted articles from your blog. I have found them interestng and useful.
I write to thank you for all of your efforts in trying to obtain justice for those whose rights, guaranteed under The Constitiution have been ignored and violated.The article that was written by David E. Johnson in the Ohio State Law Journal, the article written by Haifeng Peng in the Cardoza Law Review and the article by Nic Eichenseer are all greatly appreciated and enlightening; but as noted by Mr. Johnson until the three branches of the government, the judicial, legistlative and the executive take seriously their sworn oaths of office to uphold the Constitution there will be many individuals who will continue to serve illegal unconstitutional draconian sentences that were imposed upon them. Timing needs to be important.
As stated by inmate Salimonu "who is going to mount the vigorous and spirted campaign this cause so deserves?" Though what has been stated in the articles previously is appreciated... there is more that needs to be done! A grass root movement by up and coming lawyers needs to start to address these issues. But what hinders is the fact that no one wants to lobby for "convicted felons and their rights". It would not be considered a wise choice. But there is no doubt that some form of protest needs to be organized specifically to the Supreme Court through the media by individuals who truly care and believe in the Constitution. It has been said "to those that much is given, much is expected".
In closing, I wish to mention this on last thing as a thought for you. Because the three branches would be in no rush to agree on correcting what should be obvious, I request that you read 18 3582 (c)(1)(A)(i). With enough support by individuals mounting a protest to correct the injustices that have occurred along with the fact of the lack of funding for the BOP bureaucracy to sustain and incarcerate(188,000+) the director of the BOP can do the "right thing" to provide correction of those unconstitutional sentences while also lowering the population that he needs to sustain with less funding that has been provided by Congress. What can be more "extraordinary and compelling reason warranting such a reduction" than the sentences imposed in direct violation of the Constitution?
As I stated... just a thought for you. Something so simple, yet no one wants to see.

Rafael Cornejo

I am serving a 30 year sentence because of enhancements on a drug conspiracy. I have been in custody since 1992, took 3 years to go to trial, 18 months to get sentenced in May 1997 and it is in only through God's grace that I continue. I agrued 5th and 6th Amendment violations during sentencing and direct appeal years before the Apprendi ruling!!

Posted by: Rafael Cornejo | Feb 6, 2006 5:24:05 PM

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