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February 3, 2006

The ugly look of reasonableness review

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 (basics here).  To my knowledge, a full year+ after Booker, not one single within-guideline sentence has been declared unreasonable on appeal.  But many below guideline sentences have been reversed as unreasonable, and yet many above guideline sentences have been affirmed as reasonable. 

[UPDATE: A commentor rightly notes that Seventh Circuit did vacate a within-guidelines sentence in Cunningham because of the district court's "inadequate explanation."   But, as detailed here, Cunningham is hardly a pro-defendant (or even pro-Booker) ruling.]

The ugly look of reasonableness review can be seen today in the Seventh and Eighth Circuits.  In US v. Williams, No. 05-2380 (7th Cir. Feb. 3, 2006) (available here), the Seventh Circuit affirms another within-guideline sentence despite case facts strongly suggesting a lower sentence might well have better complied with Congress' command in 3553(a) to impose a sentence "not greater than necessary" to serve the purposes of punishment.  The Seventh Circuit says in Williams that a within-guideline sentence "will rarely be unreasonable."  But, based on reasonableness review to date, it would be more accurate for the court to state that a within-guideline sentence may never be found unreasonable.

Reasonableness review looks even uglier in the Eighth Circuit today as a result of two opinions by the same panel in US v. McMannus, No. 04-3560 (8th Cir. Feb. 3, 2006) (available here) and US v. Larrabee, No. 05-1143 (8th Cir. Feb. 3, 2006) (available here).  In McMannus, the panel reverses as unreasonable two below-guideline sentences, while in Larrabee the same panel affirms as reasonable an above-guideline sentence.  And, yet again, there is not mention of Congress' command in 3553(a) that a sentence should not be "not greater than necessary" to serve the purposes of punishment.

If nothing else, these decisions confirm my instinct (discussed at the Debate Club and here) that it is impossible to assess thestate of post-Booker sentencing until we get statistics about reasonableness review from the US Sentencing Commission.  The cumulative post-Booker district court statistics are highly misleading if, as it seems, prosecutors are regularly convincing circuit courts to reverse below-guideline sentences.

February 3, 2006 at 04:37 PM | Permalink


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To be fair, the Seventh Circuit did have _US v. Cunningham_, 05-1774, in which it reversed a within the Guidelines sentence because the district court didn't sufficiently "show its work" in reaching that conclusion. Not great, but at least it might make some judges jump through the 3553(a) hoops.

Posted by: JDB | Feb 3, 2006 4:54:31 PM

Although I understand the concern about the direction of things, let's not give up on a discretionary system yet. While you note that "some" below-Guidelines sentences are being reversed, there are still plenty that will be affirmed. We don't know percentages yet, but those cases will at least be an improvement.

Also, the standards that Circuits use to examine below-Guidelines sentences will be important for the ultimate development of this area of the law. As long as they don't develop a "presumption of unreasonable" standard for below-Guidelines sentences, then some of the damage can be contained. District judges will guard their prerogatives jealously, and the CoAs will probably have a hard time policing all below-Guidelines sentences. Of course, there will be variations around the country, but, again, it will be an improvement over the old system.

It is also likely that the new system will be more internally flexible because of Booker. I am seeing a lot of "foreseeability" findings, or findings involving monetary loss, that appear to be altered post-Booker. And then there's the effect on guilty pleas. So, to fellow practitioners, I say: "DON'T GIVE UP THE SHIP."


Posted by: Mark | Feb 5, 2006 6:44:49 PM

Mark - although the McManus case doesn't state that non-guidelines are presumed to be unreasonable, the two judges who participated in the opinion (the third Judge, McMillian, unfortunately passed away) agreed that a within guidelines sentence is presumed to be reasonable and a non-guidelines sentence is not presumed to be reasonable. The magic number seems to be about 50% - if the sentence is less than 50% of the guidelines sentence, this is too much for the judges who participated in McManus to swallow. One of these judges was very recently an Assistant United States Attorney and the other an Sentencing Commission VIP, so this deference to the guidelines in McManus is understandable.

What is not clear to me is why the Courts should be presuming that within guidelines sentences are reasonable. United States v. Lincoln is the Eighth Circuit case that is usually cited for this proposition. This proposition was simply stated in one sentence and not explained or discussed in Lincoln. Now it appears to be the official position of the Circuit.

Posted by: Mark | Feb 6, 2006 10:22:21 AM

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