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August 11, 2006

Ninth Circuit on reasonableness review and "anachronistic" departures after Booker

Today in US v. Mohamed, No. 05-50253 (9th Cir. Aug. 11, 2006) (available here), the Ninth Circuit, in the course of affirming a sentence way above the applicable guideline range, discusses at length its "approach to reviewing post-Booker sentences."  Here are a few highlights:

Consistent with the Supreme Court's remedial holding, we review post-Booker criminal sentences in two steps. First, we determine whether the district court properly calculated the applicable range under the advisory guidelines....  Second, whether the district court imposed a sentence inside or outside the applicable advisory range, we determine whether the sentence is reasonable....

We think ... the scheme of downward and upward "departures" [is] essentially replaced by the requirement that judges impose a "reasonable" sentence.  The discretion that the district court judge employs in determining a reasonable sentence will necessarily take into consideration many of the factors enumerated in Section 5K of the Sentencing Guidelines, but to require two exercises — one to calculate what departure would be allowable under the old mandatory scheme and then to go through much the same exercise to arrive at a reasonable sentence — is redundant.  In addition, the use and review of post-Booker departures would result in wasted time and resources in the courts of appeal, with little or no effect on sentencing decisions....

For these reasons, we side with the Seventh Circuit and we elect to review the district court's application of the advisory sentencing guidelines only insofar as they do not involve departures.  To the extent that a district court has framed its analysis in terms of a downward or upward departure, we will treat such so-called departures as an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range.  In other words, any post-Booker decision to sentence outside of the applicable guidelines range is subject to a unitary review for reasonableness, no matter how the district court styles its sentencing decision.

We do not mean to suggest, however, that the pre-Booker system of departures should be ignored. That system reflected the Sentencing Commission's judgment about what types of considerations should or should not take a case out of the "heartland of typical cases" such that an extraguidelines sentence would be justified.  Koon v. United States, 518 U.S. 81, 94 (1996).  If a district court's reasons for exercising its post-Booker discretion coincide with the factors allowed or encouraged under the pre-Booker system of departures, such overlap may suggest that the sentencing decision was reasonable.  Our holding today does not preclude consultation of the system of departures that existed under the mandatory regime, either by the district court or by this court.  Rather, out of a recognition that the concept of formal departures has become anachronistic, we hold that any deviation from the applicable advisory guidelines range will be viewed as an exercise of the district court's post-Booker discretion and reviewed only for reasonableness.

August 11, 2006 at 03:55 PM | Permalink


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Wife of defendant:

My husband was given 3 sentences for 1 count of mail fraud. 41 months if Booker was found totally unconstititional and 24 mos if found partially unconstitutional were the two sentences we are concerned with here today. He is serving the 41 mos, but clearly he should have the 24 mos as Booker was found to be partially unconstitutional. We have appealed 3 times and each time the magistrate stamps the appeal denied as to reasonableness of 41 mos. We are not arguing reasonableness of 41 mos. We are arguing that it should be changed to 24 mos based upon the direction of the judge in the court transcripts. How do we fight this and how do we make sure the judge sees that her ruling is not being abided?

Posted by: Kathy Craiglow | Aug 21, 2006 1:08:09 PM

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