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February 14, 2006

Third Circuit weighs in on Booker

In a lengthy and thoughtful opinion, the Third Circuit today has weighed in on a number of Booker sentencing and appellate review issues through US v. Cooper, No. 05-1447 (3d Cir. Feb. 14, 2006) (available here).  Cooper covers a lot of ground (and arguable produces some circuit splits along the way), and here is a segment of its nuanced approach to post-Booker appellate review:

At least one court has held a sentencing judge is presumed to have considered all of the § 3553(a) factors if a sentence is imposed within the applicable guidelines range.  United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).  We decline to follow this approach. Although a within-guidelines sentence demonstrates the court considered one of the § 3553(a) factors — namely, the guidelines range itself, 18 U.S.C. § 3553(a)(4) — it does not show the court considered the other standards reflected in that section, assuming they were raised....

In addition to ensuring a trial court considered the § 3553(a) factors, we must also ascertain whether those factors were reasonably applied to the circumstances of the case.  In doing so, we apply a deferential standard, the trial court being in the best position to determine the appropriate sentence in light of the particular circumstances of the case.

While we review for reasonableness whether a sentence lies within or outside the applicable guidelines range, ... it is less likely that a within-guidelines sentence, as opposed to an outside-guidelines sentence, will be unreasonable.  The advisory guidelines range is itself one of the § 3553(a) factors, 18 U.S.C. § 3553(a)(4), and continues to play an integral part in sentencing decisions....

Although a within-guidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range, a within-guidelines sentence is not necessarily reasonable per se.  Otherwise, as several Courts of Appeals have concluded, we would come close to restoring the mandatory nature of the guidelines excised in Booker....  Nor do we find it necessary, as did the Court of Appeals for the Seventh Circuit in United States v. Mykytiuk, to adopt a rebuttable presumption of reasonableness for within-guidelines sentences.  Appellants already bear the burden of proving the unreasonableness of sentences on appeal.

To sum up, appellants have the burden of demonstrating unreasonableness.  A sentence that falls within the guidelines range is more likely to be reasonable than one outside the guidelines range. There are no magic words that a district judge must invoke when sentencing, but the record should demonstrate that the court considered the § 3553(a) factors and any sentencing grounds properly raised by the parties which have recognized legal merit and factual support in the record.

Noably, Judge Aldisert writes a long separate opinion to explain his "agreement with the government" when it contends that his court does not have "jurisdiction under 18 U.S.C. § 3742(a)(1) to review Cooper's argument that the sentence imposed by the District Court was unreasonable."

February 14, 2006 at 01:06 PM | Permalink


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The Third Circuit Blog points out here, that the 3d ruled: 1) it does have jurisdiction to review within-guidelines sentences for reasonability; and 2) within-guidelines sentences are not presumptively reasonable. But, “the Court expressly withheld ru... [Read More]

Tracked on Feb 14, 2006 8:06:31 PM


I agree that Chief Judge Scirica's analysis of post-Booker appellate review is the best and most thoughtful yet in any circuit. (Perhaps it's relevant that before becoming a federal judge, he was a designer of the more flexible Pennsylvania Sentencing Guidelines system.) Even so, the decision hardly mentions (if it mentions at all; perhaps I missed it on my first quick run-through) the controlling statutory standard that now binds district judges since 3553(b) was stricken -- that the sentence be sufficient, but not greater than necessary, to achieve the purposes of the criminal justice system. 18 USC 3553(a). Either party may claim that the sentence does not meet that test, and on that basis appeal, since such a sentence would be in violation of law.

Be that as it may, I can't help noticing that the jurisdictional issue which splits this panel is not posed by the case: whether there is jurisdiction to consider a defendant's appeal from a decision that falls within a properly calculated guideline range. As the statement of facts reveals, Ms. Cooper was the beneficiary of a 7-level downward departure under USSG 5K1.1. The result of that departure, contrary to the apparent assumption of all 3 judges and counsel for both sides, is *not* a lower guideline range; rather, it is a sentence far *below* the guidelines. Whether there is appellate jurisdiction over a defendant's appeal from that sentence, claiming it is "greater than necessary" and not "reasonable," is the question actually presented, and is a different question from the one discussed by the panel.

Posted by: Peter G | Feb 14, 2006 9:31:10 PM

I have a more basic observation/question: it appears that the Third Circuit did not hold, as some other circuits have held, that a district court's resolution of particular Guidelines issues will present legal questions that are reviewed de novo. Does anyone view this as significant, or is it because that particular issue was not formally before the Court, such that it remains an open question?

Posted by: Steve Sanders | Feb 15, 2006 7:44:27 AM

That a sentence is unreasonable and too high appellate courts should seta aside the sentence and remand to the district court with instructions.
“In other words, the text told appellate courts to determine whether the sentence “is unreasonable” with regard to §3553(a). Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” Id Booker, Part II, remedial Breyer opinion.
Whether the sentence is unreasonable was discussed in Justice Souter’s dissent in Burns v. United States, 501 U.S. 129, 155, where he explains:
“The second procedure available to minimize the risk of serving an unreasonable sentence is appellate review of the sentence itself. "If the court of appeals determines that the sentence . . . is outside the applicable guideline range and is unreasonable . . . [and] too high . . . it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate." 18 U.S.C. 3742(f)(2)(A). While this right to review is only as good as the record that a defendant can present to an appellate court, prehearing notice of a sentencing judge's intentions will not likely enhance the record for the defendant's benefit. A defendant already has the opportunity and impetus to challenge the factual predicate on which a sentence must stand or fall as reasonable or not. And since the comprehensive factual predicate is supplemented by the sentencing judge's statement of reasons for departing from the Guidelines, see 3553(c), it is difficult to imagine how the record could be more conducive to a comprehensive review of a defendant's claim that his sentence outside the guideline range is unreasonably high.” Id.
While Burns dealt with lack of notice of departure as violating Rule 32 requirement that the court give reasonable notice that it is contemplating such a ruling, specifically identifying the ground for the departure. Burns has not been overruled and by obvious extension, 3742 provides jurisdiction if the sentence is outside the applicable guideline range as established by admissions of the defendant or a jury’s finding of guilt and is unreasonable, and too high….

Posted by: Barry Ward | Feb 15, 2006 12:28:41 PM

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