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July 21, 2006

Bad day for defendants in Eleventh Circuit

While I was enjoying sea and surf today, the Eleventh Circuit issued two huge sentencing decisions.  Here is the report I received via e-mail:

U.S. v. Williams on crack/powder and career offender variances from guidelines range and U.S. v. Faust on use of acquitted conduct at sentencing.  Defendants lost on all counts, but there's a good concurrence on the acquitted conduct issue in Faust.

When time and family permit, I'll be reading and commenting on these notable rulings.

UPDATE: Judge Barkett concludes her thoughtful concurrence in Faust by stating that she does "not believe the Constitution permits this cruel and perverse result" of a sentence enhanced on the basis of acquitted conduct.  But, sadly, every circuit to date, even after Blakely and Booker, still finds no constitutional problem with enhancing a sentence based on acquitted conduct.  I think the Framers would be both shocked and disgusted by this reality.

The opinion in Williams smacks down all of the non-guideline work done by Judge Presnell at the defendant's initial sentencing.  Like the First and Fourth Circuits, the Eleventh Circuit in Williams completely avoids the central instruction from Congress to sentencing judges in 18 U.S.C. § 3553(a): "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." 

As I explained in this post entitled "Crack sentencing and the anti-parsimony pandemic," the USSC has repeatedly documented that the crack guidelines recommend sentences that are "greater than necessary" to achieve the purposes of § 3553(a)(2). Given the USSC's findings, the parsimony command of § 3553(a) supports — arguably even requires — a district court's decision not to follow the crack guidelines. Consequently, upon appellate review, it is hard to understand what is "unreasonable" about a district court's decision to follow Congress's parsimony command in light of the USSC's expert work by sentencing below the crack guidelines.

July 21, 2006 at 05:33 PM | Permalink


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Doug, on the perverted use of acquitted conduct, I wonder if we should start asking for a trifurcated verdict sheet which reads, Guilty, Not Proven, Innocent. ? Bruce

Posted by: bruce cunningham | Jul 22, 2006 8:47:11 AM

You need to go back and read page 31 of the opinion. It is a lie to say the court avoided the parsimony language.

Posted by: reader | Jul 22, 2006 9:27:23 AM

Simply quoting, on p.31, the parsimony language from a concurring opinion from another circuit hardly qualifies as a serious attempt to explain why the parsimony mandate does not itself justify a sentence below the crack guidelines.

The main opinion cites and/or discusses 3553(a) directly more than a dozen times in Williams, but the parsimony provision does not get directly addressed in any way.

Posted by: Doug B. | Jul 22, 2006 11:06:48 PM

The opinion did not "completely avoid" the parsimony provision, as you alleged, but it is not surprising that the opinion did not discuss the issue much. After all, the district court did not rely on the parsimony provision. The court of appeals explained that, had the district court applied the 3553 factors to make an individual assessment, rather than a general disagreement with policies of Congress, then the district court could have relied on the parsimony language.

Posted by: reader | Jul 23, 2006 1:25:43 PM

The opinion does not "discuss" the parsimony provision at all. It indirectly mentions it via a case cite parenthetical, but that strikes me as a clever avoidance technique. Moreover, Booker says that circuits should judge reasonableness in light of the provisions of 3553(a). Thus, a major decision such as Williams --- and other circuit decisions on reasonableness --- ought to actually discuss all the key provisions of 3553(a), not matter what provisions were key to the district court.

Posted by: Doug B. | Jul 24, 2006 6:04:37 PM

This suggestion is about as patently ridiculous as your earlier suggestion that a distrit court shold never discuss what constitutes a "reasonable" sentence.

Posted by: reader | Jul 25, 2006 11:24:24 PM

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