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February 8, 2006

Sixth Circuit reasonableness bullfrogs jumping around

As noted here, Sixth Circuit Judge Boyce Martin last month had a colorful description of the litigation mess in the wake of Booker: "Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow."   Perhaps in an effort to prove his point, Judge Martin today authored an opinion for a panel of the Sixth Circuit in US v. Foreman, No. 04-2450 (6th Cir. Feb. 8, 2006) (available here), in which the court seems to put a different spin on reasonableness review than did a different Sixth Circuit panel in the Williams case last week (details here).

I am in rapture over the Foreman decision in part because it is the first circuit decision I can recall which emphasizes Congress's commands in § 3553(a) that a sentencing court "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment: Judge Martin quotes this parsimony provision thrice in the main text of Foreman (at slip op. p.2 and p. 5).  And, be still my heart, Foreman also makes this key point in a footnote:

It is worth noting that a district court's job is not to impose a "reasonable" sentence.  Rather, a district court's mandate is to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" of section 3553(a)(2).  Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.

And, taking on the presumption of reasonableness, Foreman concludes with these notable paragraphs:

Finally, in United States v. Williams, we held that a Guidelines sentence is afforded a presumption of reasonableness.  No. 05-5416 (6th Cir. January 31, 2006).  Although this statement seems to imply some sort of elevated stature to the Guidelines, it is in fact rather unimportant.  Williams does not mean that a sentence outside of the Guidelines range — either higher or lower — is presumptively unreasonable.  It is not.  Williams does not mean that a Guidelines sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors.  A sentence within the Guidelines carries with it no implication that the district court considered the 3553(a) factors if it is not clear from the record, because, of course, under the Guidelines as mandatory, a district court was not required to consider the section 3553(a) factors.  It would be unrealistic to now claim that a Guideline sentence implies consideration of those factors. 

Moreover, Williams does not mean that a sentence within the Guidelines is reasonable if there is no evidence that the district court followed its statutory mandate to "impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing in section 3553(a)(2).  Nor is it an excuse for an appellate court to abdicate any semblance of meaningful review.  Appellate review is more important because the Guidelines are no longer mandatory.  Under the mandatory Guideline system, appellate review was not integral to assuring uniformity.  Now, with the advisory Guidelines and more sentencing variables, appellate review is all the more important in assuring uniformity and reducing sentencing disparities across the board.  See S. REP. NO. 98-225, at 151 (1983); United States v. Mickelson, 2006 WL 27687 (8th Cir. January 6, 2006).

February 8, 2006 at 11:31 AM | Permalink


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Judge Martin has provided the opening salvo in what I hope extends the discussion of “reasonable sentence review” of constitutional sentence imposition. I have to recognize one of the best appellate judges, a member of this panel, the Honorable and most esteemed Senior Judge Merritt. Judge Merritt recognized the unconstitutionality of the relevant conduct provisions of the sentencing guidelines and was at one time the most outspoken critic of the guidelines. I have to believe Judge Martin has been influenced by the sage teachings of Judge Merritt. I hope to have these two jurists as panel members in the future, when once again, the relevant conduct provisions of the advisory guidelines are called forth to answer for their unconstitutionality.

Posted by: Barry Ward | Feb 8, 2006 12:33:41 PM

Bullfrogs jumping! I don't believe it is even that consistent. The split in the 6th Circuit is reflected in the fact that the prior opinion in Williams never even gave Judge Moore (the writer of Webb) the courtesy of challenging her reasoning there, namely, that there should be no presumption of reasonableness. I have a couple of appeals pending there on this very issue. Last week the government responded with a letter to the court supplementing the authority already cited with Williams. I think I now have to return the kind favor and cite Foreman.

Posted by: Dennis Terez | Feb 8, 2006 1:00:47 PM

Would it be too much to say, HUZZAH!? The decision finally appears to display clear and deep thinking on post-Booker appellate review.

Posted by: Eric Citron | Feb 9, 2006 12:01:33 PM

I'll see your "huzzah" and raise you a "huh?" If a "presumption of reasonableness" for a Guideline sentence doesn't mean that the Guidelines get more weight than other factors (even if it's just a little bit), then what exactly does it mean? Such statements, contrary to Judge Martin, are "rather important," it seems to me. Or else Circuit after Circuit wouldn't be making them.

Posted by: JDB | Feb 9, 2006 2:24:21 PM

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