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February 7, 2006

Why a "presumption of reasonableness" is troubling

Depending on how you count, perhaps more than half the circuits have now adopted a "presumption of reasonableness" for within-guidelines sentences on appeal after Booker.  (The Fourth Circuit yesterday (details here) joined the Sixth, Seventh, and Eighth Circuits in clearly adopting this presumption; the Third, Fifth and Ninth Circuits have perhaps also embraced it.)  I find the presumption troubling for a number of reasons:

1.  Constitutional concerns:  Booker indicates a guideline system with enhancements based on judicial fact-finding is only constitutional if judges are exercising discretion in ultimately deciding whether to follow the guidelines.  Thus, I see a constitutional problem if and whenever a judge found fact to reach a higher guideline range and then blindly follows the guideline without considering the factors of § 3553(a).  That's why I believe appellate courts perhaps ought to be applying a presumption of unconstitutionality to any enhanced within-guideline sentence not clearly the result of an exercise of discretion, and why circuits ought to demand that sentencing courts fully explain and justify any decision to follow the guidelines.

2.  Statutory concerns:  Congress's commands in § 3553(a) — which after Booker are to guide district court sentencing and appellate review for reasonableness — provide no textual basis for finding a guideline sentence presumptively reasonable.  The text of § 3553(a) directs a sentencing court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment, and the US Sentencing Commission has never claimed that its guidelines completely comply with that mandate.  Moreover, the guidelines are just one factor that § 3553(a) calls for courts to consider at sentencing.  Thus, I do not see a statutory basis for creating a presumption of reasonableness for guideline sentences (especially in settings like crack offenses or the application of the career offender enhancement, where the USSC itself has said its guidelines are dysfunctional in light of the goals of § 3553).

3.  Practical concerns:  I suppose the presumption would not be too troubling if it could be readily rebutted (especially in settings like crack offenses or the application of the career offender enhancement, where the USSC itself has said its guidelines are dysfunctional in light of the goals of § 3553).  But we are now 13 months since Booker and are still awaiting a single circuit court ruling finding a guideline sentence unreasonable.  I fear that the review standard is actually "presumptive in theory, fatal in fact."  And that practical reality heightens the constitutional and statutory concerns outlined above.

As detailed here at the First Circuit Blog, later this afternoon there "will be an en banc oral argument in two First Circuit cases concerning the 'reasonableness' of a sentence."  Here's hoping that the First Circuit recognizes some of the troubling aspects of a presumption of reasonableness and considers taking a different path.

February 7, 2006 at 08:13 AM | Permalink


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The “presumption of correctness” should start with a determination of constitutionality of the fact-finder, then and only then can there be a “presumption of reasonableness” of the sentence imposed, for the judge should impose the sentence the jury has determined.
“As the trier of fact, the jury … we emphasized repeatedly the deference owed to the trier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency review.” Wright v. West, 505 U.S. 277, 295
Congress explicitly rejected the advisory guidelines, but Justice Breyer by judicial fiat; enacted a new sentencing scheme. Mandatory guidelines with the Sixth Amendment applied are both constitutional and congressionally approved, it is the “relevant conduct provision” of the U.S.S.G., which allow for preponderance of the evidence determinations by a constitutionally infirm fact-finder.
Fn. “9. …. Our task, however, is not to construe bills that Congress has failed to enact, but to construe statutes that Congress has enacted. The habeas corpus statute was last amended in 1966. See 80 Stat. 1104-1105. We have grave doubts that post-1966 legislative history is of any value in construing its provisions, for we have often observed that" 'the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.''' Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 117 (1980), quoting United States v. Price, 361 U. S. 304, 313 (1960). Compare also Sullivan v. Finkelstein, 496 U. S. 617, 628, n. 8 (1990) (acknowledging "all the usual difficulties inherent in relying on subsequent legislative history"), with id., at 632 (SCALIA, J., concurring in part) ("Arguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously").” Wright v. West, 505 U.S. 277, 295 (emphasis added)
Why is it so difficult to let a criminal defendant know exactly what punishment he is facing, before he enters a plea. The sentence should not be hidden, or some calculation that may be manipulated later. The mandatory guidelines let the defense attorney, defendant, prosecutor and judge all know the possible range of punishment for the crime charged in the indictment, it is the additional findings at sentencing, on a preponderance of the evidence, that cannot be defended nor prepared for by the defense, for there are no rules of evidence or criminal procedure at sentencing. If a verdict is to be rendered by a judge at sentencing then the “structure of a fair trial” requires rules of procedure or nothing can be considered fair and the sentence is unreasonable.

Posted by: Barry Ward | Feb 7, 2006 11:26:29 AM

I missed the USSC admission that the career offender guideline is dsyfunctional in light of 3553 and I have a career offender case coming up, can anyone point me to it. Thanks-G

Posted by: Greg Silvey | Feb 7, 2006 11:59:52 AM

In Blakely v. Washington, the Court rejected the State’s argument that the jury’s verdict authorized the judge to impose any sentence under the general statutory maximum because the law required a judge to find additional facts in order to impose a sentence outside the standard range. United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 749 (2005).

Here, courts are holding that a guideline range sentence is presumptively reasonable unless the other 3553(a) factors suggest otherwise. This holding requires a court to find additional facts in order to impose a sentence outside the standard range.

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