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May 8, 2006

A reason-less application of reasonableness

In my article "Conceptualizing Booker" (which I posted in early draft form here and which should appear soon in final form in the Arizona State Law Journal ), I set out this vision of reasonableness review of sentences: reasonableness review requires a circuit court to exercise its own reasoned judgment to assess whether a sentencing court has properly exercised reasoned judgment in selecting a sentence in a particular case in accord with the directives of section 3553(a).  A decision today by the Eighth Circuit shows how my vision is aspirational, and does not reflect what some circuit courts are actually doing.

In US v. Annis, No. 05-3521 (8th Cir. May 8, 2006) (available here), the defendant appears to be a meth addict who pled guilty to manufacturing meth and faced a guideline range or roughly 20 to 25 years (for his first offense?) because of debatable guideline calculations — including the rejection of an acceptance-of-responsibility reduction even though he pled guilty and confessed to how much meth he made.  The bulk of the nine-page opinion in Annis involves the Eighth Circuit rejecting the defendant's various arguments that the guideline calculations were improper.  Then, in a final section, this is the sum total of the review for reasonableness (with rote cites omitted):

Annis states his sentence is unreasonable because the district court failed to apply the sentencing factors in 18 U.S.C. § 3553(a).  This court reviews the reasonableness of a defendant's sentence for abuse of discretion.....

The district court calculated the Guidelines range to be 235 to 293 months, sentencing him to 235 months in prison.  A sentence within the Guidelines range, as here, is presumptively reasonable.  Also, at the sentencing hearing the district court expressly considered the § 3553(a) factors.  Annis's real argument is that the court did not apply these factors correctly, otherwise he would have received a lesser sentence.  But, the record reflects the district court did not abuse its discretion in sentencing him within the Guidelines range.

I find it quite troubling the Eighth Circuit simply asserts that the defendant's "real" reasonableness argument is just another way of asserting that guideline calculations were wrong.  In Annis, this assertion is especially troubling because, even accepting the guideline calculations were proper, the underlying facts suggest that the consequences of these calculations could be unreasonable in light of the non-guideline factors that have to be considered under 3553(a).  But, after spending many pages justifying a set of harsh guideline determinations, the Eighth Circuit apparently lacked the energy or inclination to consider whether reasonableness might have any "real" meaning outside the guideline framework.  Bleech...

May 8, 2006 at 12:10 PM | Permalink


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Professor, see the 8th circuits remanding in U.S. v. Thorpe, No. 05-2627, May 5, 2006, where the district court judge concluded “that United States v. Booker, 543 U.S. 220 (2005), required that any factor which might increase a defendant’s sentence must be found beyond a reasonable doubt.”
“The district court, however, expressed dissatisfaction with the guidelines. It explained that it was uncomfortable with the severity of controlled substance laws and with how little the government must prove in conspiracy cases. It also determined that methamphetamine is a far more serious drug than crack cocaine and that conspirators who are responsible for a certain amount of drugs over a longer period of time, rather than a shorter period, are less culpable. The district court then imposed a nonguidelines sentence of 120 months in prison for Count I—the statutory minimum for this offense. The district court determined that § 2K2.4(b) of the guidelines required that Thorpe receive a consecutive sentence of not less than sixty months on Count II. Accordingly, the district court imposed a sentence of 180 months in prison for Counts
I and II.
The government appealed the 15 year sentence arguing “that the district court erred in sentencing Thorpe based on the drug quantity found by the jury beyond a reasonable doubt instead of on the
amount proved by a preponderance of the evidence.”
I don’t see where a judge deciding that justification for imprisonment requires belief beyond a reasonable doubt that the sentence is correct,
The appellate courts are reviewing sentences for reasonableness and most have assumed findings made on a preponderance of the evidence are reasonable, if within the guideline. Review of reasonableness of a finding made on a preponderance of the evidence is requiring a district court judge to be 95% sure the 50% or better determination was 100% correct.
In following the clear language of standards of proof, beyond a reasonable doubt seems to specifically require a determination of reasonableness, is there a reasonable doubt.
To preponderate is to exceed something else in weight and then to review whether the weighing was reasonable, where review of findings made beyond a reasonable doubt would require a preponderance of the reasonableness.
The district court judge made a reasonable determination, but was reversed because “Judicial fact-finding based upon a preponderance of the evidence standard is permitted…” and the judge “could constitutionally find Thorpe accountable for a drug quantity greater than that found by the jury”, but the “district court, however, expressed dissatisfaction with the guidelines” and found 180 months sufficient. Can sentencing ever again be accomplished by experienced courtroom judges?

Posted by: Barry Ward | May 8, 2006 12:54:24 PM

More importantly: as any MAD Magazine reader could tell you, it's spelled "blecch" not "Bleech".

Posted by: anon | May 8, 2006 1:54:32 PM

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