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February 7, 2006

Ninth Circuit backs away from presumption of reasonableness

There is a lot of sentencing action in the circuits today, as I see notable opinions from the DC, Sixth, Seventh, Eighth and Eleventh Circuits (which I'll discuss as time permits in future posts).  But the biggest news, I think, comes from a small amendment to the Ninth Circuit's decision US v. Guerrero-Velasquez, No. 05-30066 (9th Cir. Jan. 19, 2006), amended (Feb. 7, 2006) (available here), through which the Ninth Circuit appears to back away from embracing the idea that a within-guideline sentence is "presumptively reasonable."

As detailed in this post last month, Guerrero-Velasquez is not about reasonableness review, but Judge Jay Bybee included this (double-dicta) assertion for the panel in a footnote: "We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable."  The new amended opinion now deletes this assertion completely.

I am tempted to try to take credit for this important development: it occurred right after I explained in this post why a "presumption of reasonableness" is troubling.  But, I suspect this change was in the works for a while.  And, of course, far more important than how this change came about is what it might mean for reasonableness review in the Ninth Circuit.  I suppose it is still possible the circuit might eventually adopt, in an appropriate case, a "presumption of reasonableness."  But I am inclined to read this amendment as an indication that at least some Ninth Circuit judges can see the wisdom of taking a different path.

February 7, 2006 at 01:53 PM | Permalink


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Are you OK with departures being essentially unreviewable (Menyweather)? It seems to me that a within guidelines sentence ought to receive as much deference as an out of guidelines sentence.

You are right that none of the in Guidelines sentences are being pitched. Maybe they ought to be unreviewable, so long as the judge "considers" the 3553(a) factors and correctly calculates the guideline.

Wouldn't a statute that removed judicial review of sentences like that be consistent with Booker, and a sensible used of appellate resources?

Posted by: Ed Hagen | Feb 7, 2006 4:29:02 PM

A statute that removed appellate review of within-Guidelines sentences would not be consistent with Booker. The whole point of Booker was to return sentencing discretion to district judges as a remedy for the Sixth Amendment violation of mandatory "Guidelines."

If you really want a "sensible use of appellate resources," then you should advocate elimination of strict appellate review of discretionary sentences. There's no principled way to determine if a sentence is "unreasonable," so the appellate courts should give district courts wide latitude in sentencing. THAT would be permissible under Booker, but the DoJ is fighting it tooth and nail.


Posted by: Mark | Feb 7, 2006 5:09:11 PM

I think you are reading a bit too much into my post. If a judge knows he has discretion to sentence outside the Guidelines, properly calculates the Guidelines, considers the 3553 factors, and chooses to sentence within the Guidelines, shouldn't that decision be entitled to deference on review? And if there are hundreds of such cases, and, as Professor Berman has pointed out, every single one is affirmed, then are appeals of such sentences a wise use of anybody's time? These are two separate questions.

I don't see a Booker issue, because there are no mandatory Guidelines involved.

Posted by: Ed Hagen | Feb 7, 2006 5:37:13 PM

Professor Berman: You can take partial credit for the change. I know Ben used your rationale as part of his motion for reconsideration. I think he also got help from Steve Sady at the Ninth Circuit Blog. Thank you for the excellent blog and on-going analysis.

Posted by: T. Staab | Feb 8, 2006 10:17:45 AM

I wouldn't get too excited about it. Deleting dicta is the kind of thing that judges on the Ninth Circuit do all the time in deference to one another. So it's possible, for example, that Judge Reinhardt or someone else sent out an e-mail on the court-wide list saying, "Hey Bybee, how about deleting that dicta, because even if it's right, it clearly wasn't presented for decision." Under those circumstances, given how clearly dicta this was, it would be pretty unusual for Bybee & the rest of the panel to refuse.

Posted by: DelVerSiSogna | Feb 23, 2006 8:28:39 PM

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