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April 11, 2006

Important Ninth Circuit ruling on post-Booker sentencing

The Ninth Circuit today has issued a very important decision on post-Booker sentencing in US v. Zavala, No. 05-30120 (9th Cir. Apr. 11, 2006) (available here).  Here is how the per curiam decision begins:

Juan Antonio Zavala appeals the sentence that was imposed upon him after he was convicted of conspiracy to distribute or to possess with intent to distribute methamphetamine and of distribution of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846.  His sole claim on appeal is that the district court violated Booker when it "presumed" that the advisory Sentencing Guideline calculation set forth the proper range for sentencing.  We vacate the sentence and remand.

And, within an opinion that is a great read, here is one of the many money paragraphs:

In this area, were a presumption proper, we suppose it would be a mandatory rebuttable presumption.  But even that is more than a mere starting point because it gives particular weight to the thing presumed.  It would indicate that the Guideline range is to be used unless (by some evidentiary standard) a party can prove the contrary.  That is much more than a mere consult for advice, and the Guidelines are to be no more than that.  See Booker, 543 U.S. at 264, 125 S. Ct. at 767.  If a district court presumed that the sentence should be a Guideline range sentence, it would thereby make it much more than something to be consulted and would give it much heavier weight than § 3553(a) now does.  That leaves it as a factor in the sentencing alchemy.

Needless to say, defendants and defense attorneys are likely to enjoy Zavala more than prosecutors.  Especially because the case has lots and lots of pro-discretion dicta, it will be especially interesting to see reactions to, and ripple effects of, this important opinion.  (E.g., I would not be surprised by en banc and/or cert petitions from the government in Zavala.)

April 11, 2006 at 01:52 PM | Permalink


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In these parlous times, it is refreshing to read a decision that's clearly not in the mine run of cases. However, it shouldn't be necessary to consult a periplus in order to decipher it.

Posted by: Andrew Fine | Apr 11, 2006 2:15:47 PM

The Ninth Circuit in Zavala took the trip back to the future, in restoring sentencing power to the judge’s discretion, “… Booker has resuscitated the much-lamented discretion that the sentencing statute seemed to take away from district courts, and has at least partially restored that halcyon condition that district judges have longed for these many years. District courts neither should, nor can, ignore that by placing undue weight on the Guideline portion of the sentencing chemistry. They must properly use the Guideline calculation as advisory and start there, but they must not accord it greater weight than they accord the other § 3553(a) factors. Rather, they must consider all of the information before them, as they used to do, and then reach for the correct sentence under all of the circumstances. For our part, we will then review the ultimate result for reasonableness. See Booker, 543 U.S. at 264; 125 S. Ct. at 767; Cantrell, 433 F.3d at 1280-81.
The “start there” terminology creates the concept of a required “starting point” instead of a formula with seven unknowns, in that the variables cannot answer the question until all variables have value. X ± Y ± Z ± Q ± P ± U ± V = BOL.
Each number which is part of a solution can be regarded as a "pole" in the surface of solutions, and it is the pivot point for a helical surface of infinitely many windings.
So the 3553(a) factors are poles which may change the direction of the sentence computation as each is addressed and there is not a single one that can be considered as a starting point. The Ninth Circuit has provided a lexicon in ancient sailing without the loadstar for the district courts, maybe if the courts start with the other factors of 3553(a) and give plus or minus values to those first, then add the missing integer from the guidelines last, it would prevent the presumption of a starting point.

Posted by: Barry Ward | Apr 11, 2006 4:11:25 PM

The more things change, the more they stay the same. The Ninth Circuit makes a reasonable (so to speak) application of _Booker_ in a way that at least makes it relevant, just days after the Fourth Circuit (US v. Johnson, 05-4378) explains to us all how presumptive Guidelines are OK because the Guidelines take 3553(a) factors into account anyway. *sigh*

Posted by: JDB | Apr 11, 2006 4:31:06 PM

Query: Is it possible to have a "per curiam" opinion where one of the 3 panelists dissents? Seems a rather odd use of the (silly to begin with) "per curiam" concept ...

Posted by: ycl | Apr 12, 2006 2:50:36 PM

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