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August 14, 2006

More Booker fun from the Sixth Circuit

As I highlighted here, the Sixth Circuit merits considerable credit for its strong work on post-Booker reasonableness review.  And that work continued today in US v. Davis, No. 05-3784 (6th Cir. Aug. 14, 2006) (available here).  How Appealing provides some of the highlights here of a must-read opinion for followers of the post-Booker world.  Here is the concluding paragraph of the majority opinion in Davis:

No doubt, the district court retains ample discretion to grant Davis a variance on this record.  And it will have an opportunity to do so on remand.  But, for the reasons given, even the most animated application of the parsimony requirement — that the district court impose "a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in" § 3553(a)(2) — cannot justify a one-day sentence in this case.  To rule otherwise, we respectfully submit, would intimate that reasonableness review is a theory, not a practice, and would fairly leave litigants wondering what downward (or upward) variances exceed a district court's discretion if a 99.89% downward variance on less-than-extraordinary facts lies within that discretion.  Modest though reasonableness review may be, it is not non-existent.

Judge Sutton leads up to this conclusion with a rich and detailed explanation for why he (together with Judge Boggs) believes that such a large variance was substantively unreasonable.

Judge Keith dissents in an equally thoughtful opinion, which starts this way:

I am saddened and distressed by the majority's opinion, which totally disregards the district court's authority to impose a fair and reasonable sentence that is "sufficient but not greater than necessary" to effectuate the purposes of sentencing.  Reversing the district court's sentence is a complete miscarriage of justice.  Therefore, I respectfully dissent.

UPDATE:  Orin asks here why I think Judge Keith's dissent is "thoughtful."  Here are a few reasons:

  1. Judge Keith correctly notes the "current trend across the circuits ... to afford less deference to district court sentences that depart below the advisory guideline range over sentences that depart upward from the advisory guideline range." 
  2. He rightly asserts that Booker "instructs the appellate courts to review a sentence for reasonableness regardless of where the sentence falls in relation to the advisory guidelines range." 
  3. He astutely suggests that a "formulaic assessment of how much the sentence varies from the advisory guideline range ... starts this Court down the path of the pre-Booker days where the district courts were bound by an algebraic application of the guidelines."
  4. He reasonably argues that "the time between Davis's criminal conduct and his sentencing" and Davis's age are permissible considerations that support the reasonableness of his original sentence.
  5. He appropriately expresses concerns about circuit courts "micromanaging the sentencing process and second guessing the district court's determination after presiding over the hearings."

Though Orin or others might believe the panel majority makes a stronger case than the dissent in Davis, both opinion demonstrate far more thoughtful engagement with a range of post-Booker issues than a lot of opinions coming from a few other circuits.

August 14, 2006 at 10:44 AM | Permalink


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Can you hum a few more bars on why you think Judge Keith's opinion was "equally thoughtful"? I'm not the expert in this area that you are, but the opinion struck me as rather odd, actually. As best I can tell, the key language seems to be that "While each factor considered separately might not justify a variance from the guidelines, viewing these facts together, justice is in no way served by this Court remanding for the district court to impose a higher sentence." Notably, however, Judge Keith does not explain why the totality changes the picture. Also, does binding law task judges with determining whether remanding would serve justice? Is that the doctrinal test?

Posted by: Orin Kerr | Aug 14, 2006 11:24:55 AM

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