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October 9, 2006

Tracking reasonableness review outcomes ... final update?

EARLY FALL UPDATE:  A new season has not changed the patterns spotlighted below; indeed, I believe September only brought reversals of below-guideline sentences as substantively unreasonable and affirmances of above-guideline sentences as substantively reasonable.  The month did bring, however, this new post about these patterns.

ONE MORE UPDATE:  I had hoped that by now others would be more systematically cataloging reasonableness review outcomes.  But, not yet having seen other accounts like this one, I have now added some August developments to the list below.

END-OF-JULY UPDATE: With this update, I have now tracked reasonableness review outcomes long enough to conclude the basic patterns are well-established.  In addition, I believe the Sentencing Commission and the Federal Judicial Center (and perhaps others) have assembled more comprehensive lists.  Moreover, with so many non-guideline sentences now having been reviewed, it is time for folks to start developing more refined analyses of what's going on in all these cases.  Consequently, I may no longer update this list on a monthly basis.

END-OF-JUNE UPDATE:  Though the Sentencing Commission seems to have abandoned its monthly updating of post-Booker sentencing statistics, I am continuing my end-of-month updates of this list of reasonableness review outcomes.

ANOTHER UPDATE: Usually I wait until the end of a month to update my list of reasonableness outcomes in the circuits, but a lot of early June action (and a cite to this list in the Tenth Circuit's Cage opinion) prompts this mid-month update.   As documented by the four added reversals of below-guideline sentences and five affirmances of above-guideline sentences, the reasonableness song remains the same.

BUMP AND UPDATE YET AGAIN:  With May complete, I have updated yet again this list of post-Booker reasonableness rulings previously noted on the blog.  Recall that this is not comprehensive (and I will happily post any similar list created through by other means sent my way).

BUMP AND UPDATE AGAIN:  To celebrate the last work day of April, I have updated yet again my list of post-Booker reasonableness rulings previously noted on the blog.  As I have noted before, this is certainly not comprehensive (and I would love to see and post any other lists anyone else has assembled).

BUMP AND UPDATE:  To celebrate the end of March, I have updated my list of post-Booker reasonableness rulings previously noted on the blog.  The list below is now current through the end of March (although it is certainly not comprehensive; I surely have missed some rulings).

Original prelude (3/3/2006): In this recent post, I reviewed Booker reasonableness review doctrines circuit-by-circuit.  There and elsewhere I noted a disconcerting pattern: it seems all post-Booker within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable.  To further explore these realities, I have assembled below (in reverse chronological order) some reasonableness rulings previously noted on the blog. 

Reversal of within-guideline sentence as unreasonable:

  1. Goodwin (Lazenby)(8th)

Affirmance of within-guideline sentence as reasonable: Far too many to list

Reversal of above-guideline sentence as unreasonable

  1. Zapete-Garcia (1st)
  2. Kendall (8th)
  3. Davenport (4th)
  4. Castro-Juarez (7th)

Affirmance of above-guideline sentence as reasonable

  1. Zeigler (8th)
  2. Mohamed (9th)
  3. Ferguson (6th)
  4. Barton (6th)
  5. Howard (7th)
  6. Maurstad (8th)
  7. Meyer (8th)
  8. Chase (8th)
  9. Mack (8th)
  10. Youngbear (8th)
  11. Lyons (8th)
  12. Matheny (6th)
  13. Hacker (8th)
  14. Orlandez-Gamboa (2d)
  15. Donelson (8th)
  16. Valnor (11th)
  17. Dean Little Hawk (8th)
  18. Mix (9th)
  19. Jones (5th)
  20. Eldick (11th)
  21. Reinhart (5th)
  22. Porter (8th)
  23. Fairclough (2d)
  24. Smith (5th)
  25. Larrabee (8th)
  26. Jordan (7th)
  27. Winters (8th)
  28. Shannon (8th)

Reversal of below-guideline sentence as unreasonable

  1. Beal (8th)
  2. Likens (8th)
  3. Arevalo-Juarez (11th)
  4. McDonald (8th)
  5. Kahn (4th)
  6. Curry (4th)
  7. Guidry (5th)
  8. Portillo (8th)
  9. Wallace (7th)
  10. Castillo (2d)
  11. Davis (6th)
  12. Jointer (7th)
  13. Thurston (1st)
  14. Robinson (8th)
  15. Lee (8th)
  16. Martin (11th)
  17. Brown (8th)
  18. Crisp (11th)
  19. Perez-Pena (4th)
  20. Medearis (8th)
  21. Rattoballi (2d)
  22. Ture (8th)
  23. Cage (10th)
  24. Armendariz (5th)
  25. Rogers (8th)
  26. Desselle (5th)
  27. Gall (8th)
  28. Bradford (8th)
  29. Bryant (8th)
  30. McVay (11th)
  31. Bueno (8th)
  32. Givens (8th)
  33. Smith (1st)
  34. Pisman (7th)
  35. Goody (8th)
  36. Hampton (4th)
  37. Lazenby (8th)
  38. Rivera (8th)
  39. Myers (8th)
  40. Gatewood (8th)
  41. Shafer (8th)
  42. Claiborne (8th)
  43. Eura (4th)
  44. Moreland (4th)
  45. Duhon (5th)
  46. McMannus (8th) (two sentences reversed in opinion)
  47. Feemster (8th)
  48. Clark (4th)
  49. Pho (1st)
  50. Coyle (8th)
  51. Saenz (8th)

Affirmance of below-guideline sentence as reasonable

  1. Collington (6th)
  2. Jones (2d)
  3. Gray (11th)
  4. Krutsinger (8th)
  5. Halsema (11th)
  6. Baker (7th)
  7. Montgomery (11th)
  8. Williams (11th)

This list is by no means comprehensive: I typically focus only on published opinions in my blog coverage and there may be many notable reasonableness outcomes among unpublished opinions.  Indeed, in putting this list together, I am surprised by how many opinions come from just a few circuits.  (This is why, as I have stressed in prior posts here and here and here, it is critical for the US Sentencing Commission to produce data on post-Booker appeals and reasonableness review.) 

But the basic point is pretty simple: the pattern of reasonableness review outcomes is quite telling.

ADDENDUM:  A helpful reader has sensibly suggested that I note that the US Sentencing Commission's recent Booker report (available here) has a list of reasonableness rulings through mid-March on page 30.  The USSC's list includes more rulings (e.g., it lists six below-guideline sentences affirmed, and five above-guideline sentences reversed), although I am not sure I concur with how the USSC codes some of the circuit decisions.  Nevertheless, anyone following the reasonableness story ought also check out page 30 of the USSC Booker report.

October 9, 2006 at 07:00 AM | Permalink


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A sentence cannot be reasonable or unreasonable; for to reason is utilize think logically or utilize good sense. It is the district court judges that are being found to be reasonable or unreasonable. If so many district court judges decisions are in fact unreasonable, that would mean they are unfair, calling into question their ability to set on the federal bench. A prison sentence may be lenient or severe, but reason for its imposition comes from the person issuing the judgment and commitment order. Call it like it is Professor Berman, list the district court judges who have been found to be unreasonable, for if they really are unfair maybe sentencing should be a matter for reasonable appellate judges.

Posted by: Barry Ward | Mar 3, 2006 7:54:50 AM

The Eighth Circuit's post-Booker pattern of approving above guidelines sentences and disapproving below guidelines sentence continues a pre-Booker pattern documented by Judge Heaney in U.S. v. Yirkovsky. 338 F.3d 936, 942, 943 (8th Cir. 2003). "A simple survey of recent appeals from criminal sentences bears out this trend. Since May of 2000, the government appealed twenty-five cases in which the district court reduced the defendant's sentence. Of those, our court reversed the district court twenty-three times, and affirmed only twice [citations omitted]. When it comes to cases in which the district court increased the defendant's sentence, one would expect to see a similar pattern of reversals, inasmuch as we have employed similar standards of review for both upward and downward adjustments and departures. Unfortunately, that is not the case. Since May of 2000, we were presented with appeals from forty-six upward departures. Of those, we reversed only two, and affirmed the other forty-four. [citations omitted].

Judge Heaney concluded that, "I am deeply concerned with the trend and the message it sends to district courts-that more severe sentences are far more likely to withstand appellate review."

Posted by: Mark | Mar 3, 2006 6:53:48 PM

To refresh your memory, the big published 9th circuit case upholding a below guidelines sentence is USA v. Menyweather, 431 F.3d 692 (9th Cir. 2005)

Posted by: Greg Silvey | Mar 31, 2006 4:08:35 PM


I do not count Menyweather because the 9th Circuit upheld a pre-Booker decision to depart downward. My list is comprised of circuit review in cases where district judges exercised post-Booker discretion and circuit courts reviewed that exercise of discretion for reasonableness. Menyweather technically does not fit.

Posted by: Doug B. | Mar 31, 2006 4:14:10 PM

these posts are so helpful. please keep it up.

on another note, who is barry ward?

Posted by: anonymous | Mar 31, 2006 4:52:53 PM

Just thought you'd like to know that, although the Castro-Juarez case was remanded, the 7th Circuit left room for reimposition of the same sentence - and that's what he got (with new reasons). It's now on appeal again. This time the main issues are lack of notice of a 3553(a)factor considered to give an above-guidelines sentence (one of the new reasons) and failure to grant a requested continuance to resolve a defense assertion concerning the validity of a newly articulated reason.


Posted by: Stephen Williams | Apr 3, 2006 12:07:18 PM

Are the appellate criminal lawyers in the 3rd, 6th and 10th Circuits just slackers? It is hard to imagine that no sentences outside the guideline range have come up in those circuits.

Posted by: ohwilleke | Jun 5, 2006 6:01:54 PM

I've been wondering about the circuit distribution, too. I think it might be because some circuits are dealing with these cases via summary orders (which often escape my notice), but I'm not really sure.

Posted by: Doug B. | Jun 5, 2006 6:29:51 PM

What about United States v. Vonner, No. 05-5295 (6th Cir. June 29, 2006)? The Sixth Circuit "[b]ased on the district court’s lack of adequate explanation for its sentencing decision" reversed a sentence in the middle of the advisory range and therefore held the sentence to be "unreasonable." The court did say an identical sentence might be imposed on remand, but nonetheless, a within guideline sentence was reverse.

Perhaps a new category of "Reversal of within-guideline sentence due to inadequate explanation" is warranted.

Posted by: DEJ | Jul 2, 2006 7:09:35 PM

On the circuit distribution: I don't know the explanation, but I think that factors in the Sixth Circuit's dearth of listed cases on "reasonableness" review are: 1) the tendency of district judges in the Sixth Circuit to sentence within the advisory range (no empirical information on this, but it seems anecdotally true); 2) the Court's Booker-related jurisprudence; and 3) the nature of the Sixth Circuit's regular appellate practices.

The Sixth Circuit did not emphasize "alternative" sentences during the Booker uncertainty period, and usually remanded for resentencing post-Booker in a series of early opinions (Davis, Williams, etc.) that tried to clarify sentencing, post-Booker, for the district courts in the Circuit. This basic Sixth Circuit approach to dealing with Booker means that we are now only beginning to see the first series of appeals following Booker remands.

Some of the Sixth Circuit's (unique?) general practices probably add to the process of working out the meaning of Booker in the Sixth Circuit. Two routine practices are probably important: 1) The Sixth Circuit has a presumption of oral argument in all appeals in which argument is requested by counsel (thank God! -- although it adds six to twelve months to each appeal). If the remand decision and the decision following remand are each argued orally, that fact alone adds one to two years to the process. 2) The requirement in the Sixth Circuit of the production of a joint appendix and a resulting second round of briefing for each appeal adds one to two months to each appeal. If there is a remand decision, and then an appeal after remand, the joint appendix process alone adds several extra months to the entire process.

I've got a Sixth Circuit case in which a defendant, on remand post-Booker (after a thoughtful remand decision by the Sixth Circuit), received imprisonment for one day and one year of home confinement (as part of his supervised release) instead of the 41+ month advisory sentence. The United States appealed, the cause has been argued, and the case is under advisement. Although the Court has expedited the case slightly (shortening the time between briefing and oral argument), we may not receive a decision for several months. To my knowledge, it's the only case with such a dramatic "variance" -- either in the Sixth Circuit or in any Court.

Regardless of the outcome or composition of the panel, the Sixth Circuit tends to be pretty methodical with cases like this. I hope that the outcome of the Sixth Circuit's process will be better than the "Guidelines=presumptive minimum sentences but not presumptive maximum sentences" thinking that seems to be developing in other circuits (cf. 8th. Cir.).


Posted by: Mark | Jul 3, 2006 2:15:03 PM

The so-called ugly pattern sure looks like a story about the eighth circuit. I notice that the eleventh has more affirmances of below guidelines, than either affirmances above guidelines or reversals below guidlelines. The pattern looks like a circuit specific story.

Posted by: Anonymous | Sep 3, 2006 3:26:20 PM

The Third Circuit's Gunter decision last month doesn't fit into any of the categories (the court remanded because the trial court felt bound by the 100/1 crack/powder disparity), but I think it is really about reasonableness, too.

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