« Booker March madness set to begin with a hearing double-header | Main | Applying Ford and Atkins in the Fourth Circuit »

March 9, 2006

First Circuit speaks, en banc, on post-Booker sentencing and review

As already noted here by AL&P, the First Circuit this afternoon released it big en banc ruling in US v. Jiménez-Beltre, No. 05-1268 (1st Cir. Mar. 9, 2006) (available here), which is designed "to provide stable guidance in this circuit for the determination and review of post-Booker sentences."  Altogether, Jiménez-Beltre runs 39 pages with lots of highlights.  Here's a taste from the majority opinion written by Judge Boudin:

Central to the merits of this appeal is the question of what role the advisory guidelines should play in a post-Booker sentence.  To begin with the conclusion, the guidelines continue in our view to be an important consideration in sentencing, both in the district court and on appeal, which should be addressed in the first instance by the sentencing judge.  We do not find it helpful to talk about the guidelines as "presumptively" controlling or a guidelines sentence as "per se reasonable"....

Our conclusion is rooted in both parts of the Booker decision. In holding the mandatory regime unconstitutional, the flaw discerned by the five-Justice majority was that mandatory guidelines created mini-crimes requiring jury findings.  Booker, 125 S. Ct. at 750-52.  Although making the guidelines "presumptive" or "per se reasonable" does not make them mandatory, it tends in that direction; and anyway terms like "presumptive" and "per se" are more ambiguous labels than they at first appear.

At the same time, the guidelines cannot be called just "another factor" in the statutory list, 18 U.S.C. § 3553(a) (2000), because they are the only integration of the multiple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges, Booker, 125 S. Ct. at 766-67; 28 U.S.C. § 994(o).  The Sentencing Commission is also an expert agency charged by Congress with the task of promulgating guidelines and keeping them up to date. 28 U.S.C. § 994(c).  In its remedial opinion, the Supreme Court has stressed the continuing role of the guidelines in promoting uniformity and fairness.  Booker, 125 S. Ct. at 757-64.

Yet the guidelines are still generalizations that can point to outcomes that may appear unreasonable to sentencing judges in particular cases.  Some of the guidelines in particular cases were not reflections of existing practice but were deliberate deviations or turned tendencies into absolutes.  Others have been affected by directions from Congress.  See, e.g., Pho, 433 F.3d at 61-63.  Booker's remedial solution makes it possible for courts to impose non-guideline sentences that override the guidelines, subject only to the ultimate requirement of reasonableness. 

Accordingly, at sentencing, the district court must continue to "consider the Guidelines 'sentencing range.'"  Booker, 125 S. Ct. at 764 (quoting 18 U.S.C. § 3553(a)(4)).  In most cases, this will mean that the district court will have to calculate the applicable guidelines range including the resolution of any factual or legal disputes necessary to that calculation -- unless they do not matter -- before deciding whether to exercise its new-found discretion to impose a non-guidelines sentence.  Robinson, 433 F.3d at 35.

March 9, 2006 at 06:11 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference First Circuit speaks, en banc, on post-Booker sentencing and review:


The majority has staked out a cautious middle ground that encourages within-guideline sentencing (nothing to upset the Congress), while rejecting the government's radical positions that would have tied district judges' hands with respect to lower, individualized sentences where warranted. Also rejects, as did 3d Cir a few weeks ago in Cooper, the govt's argument that there is no 3742(a) jurisdiction in the court of appeals even to review the reasonableness of a within-guideline sentence. So, it's not a big win for the defense or anything, but it avoids a big loss; the standard of "substantial weight" is not as rigid as that adopted in quite a few other circuits.

Posted by: Peter G | Mar 9, 2006 8:34:57 PM

Dear Professor: I found this very helpful.

I am a Long Island New York attorney with a client held in West Texas Detention Center on an inordinately long sentence for re entry.

He is a former businessman here on Long Island, was in the Country wiout inspection for over 15 years and became a successful businessman. He is held now like an animal.

correspondence to the government is ignored. How Pathetic we have become in this Country. Anything new on Booker which might assist him. Also do you know any COMPETENT attorneys for this sort of thing in Western Texas? Thanks. I'm trying to help this guy the best way I can.
Bob Zysk

Posted by: Robert J. Zysk, Esq. | Jun 21, 2006 1:03:53 PM

asus l3000 battery

Posted by: | Oct 14, 2008 10:48:39 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB