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December 29, 2006

Third Circuit karate chops the parsimony provision [update: and so does the Fourth Circuit]

DragonI wonder what Bruce Lee might think about how the Third Circuit entered the Dragon.  A Third Circuit panel today in US v. Dragon, No. 05-4906 (3d Cir. Dec. 28, 2006) (available here) gives the parsimony provision of § 3553(a) the Kung Fu treatment in the course of affirming an within-guideline sentence near the top of the calculated guideline range.  Here's the key nunchaku blow that the Dragon panel gives to the defendant's argument that the parsimony provision at least called for a sentence at the bottom of the applicable guideline range:

Following the reasoning set forth in Cooper, we have rejected an argument that the District Court is required to articulate "why a low-end Guidelines-range sentence . . . was insufficient to meet § 3553(a)(2)'s penological goals."  Id. at 833.  To this end, we hold that district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in § 3553(a)(2).  We note that the First Circuit considered this issue and reached the same result in United States v. Navedo-Concepcion, stating, "we do not think that the 'not greater than necessary' language requires as a general matter that a judge, having explained why a sentence has been chosen, also explain why some lighter sentence is inadequate."

So, to review, after Booker district courts must still precisely and accurately calculate advisory guideline ranges, but they need not explain how their sentences comply with the one mandatory directive that Congress set forth in § 3553(a).  Might one suggest this is another example of activist judges putting their policy preferences over the express text enacted by Congress?

UPDATE: In a similar ruling, the Fourth Circuit in US v. Smith, No. 06-4358 (4th Cir. Dec. 28, 2006) (available here) has also kept the parsimony provision from having a clear consequential impact on post-Booker sentencing outcomes.  Here are the parsimony highlights in Smith:

Smith contends that this court's holding in United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) — that sentences within a properly calculated guidelines range are "presumptively reasonable" — requires that a district court always sentence a defendant to the lowest term within the relevant guidelines range.  Accordingly, Smith maintains that the district court erred when it sentenced him to 180 months instead of 151 months, which was the lowest possible sentence in the applicable guidelines range of 151-188 months.

In Green, we also instructed district courts to consider the factors set forth in 18 U.S.C. § 3553(a) when imposing a sentence. Id. at 455. That provision requires that a court "impose a sentence sufficient, but not greater than necessary," to achieve the sentencing goals outlined in the statute. 18 U.S.C. § 3553(a).  Smith reads Green's "presumptively reasonable" holding in tandem with this portion of § 3553(a) to require district courts to sentence defendants to the lowest end of the applicable guidelines range.  Smith argues that under Green all of the available sentences within a properly calculated guidelines range are presumptively reasonable. Thus, according to Smith, the lowest sentence within the presumptively reasonable range is "sufficient" to comply with § 3553(a)'s sentencing goals, and all other sentences within the range are "greater than necessary" and therefore unreasonable.

Smith's argument, while clever, has no merit. The holding in Green that a sentence within the properly calculated guidelines range is presumptively reasonable does not mean that the sentencing judge must conclude that the lowest possible sentence within that range is actually sufficient to satisfy § 3553(a)'s goals.  Rather, Green requires a district court to calculate the appropriate guidelines range, and then to consider the factors outlined in § 3553(a) to determine which sentence within that range, if any, is sufficient, but not greater than necessary, to comply with § 3553(a). Smith's argument thus rests on a logical fallacy: the fact that a sentence at the lowest end of the guidelines range could be reasonable if the sentencing judge concluded it was sufficient does not mean that the sentencing judge must conclude that it is sufficient.  It is the sentencing judge who must initially determine what is sufficient.  To hold that the lowest sentence in an applicable guidelines range is always sufficient would rob § 3553(a) of its force.

December 29, 2006 at 01:40 PM | Permalink


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» CA2: the parsimony provision does matter, afterall from Appellate Law
So parsimony does matter after all. SLP analyzed the lack of attention paid to the parsimony clause of 18 U.S.C. § 3553(a)(2) here, here, here, and here. But, in U.S. v. Rosa, the “[g]overnment concedes that remand is necessary because [Read More]

Tracked on Apr 11, 2007 2:17:40 PM


Note that 3553(c)(1) requires a district judge to state the "reason for imposing a sentence at a particular point within the range," which seems to run contrary to the panel's decision. On the other hand, 3553(c)(2), which relates to sentences that fall outside of the Guidelines range, requires the district court to state the "specific reason for the imposition of a sentence different from" the recommended Guidelines sentence. The distinction between these provisions may provide some support for the panel's decision: A district court may have to cite the parsimony clause to support a sentence different from the Guidelines range, but it need only state that a within Guidelines sentence was the most appropriate sentence to support the specific sentence it imposed within the range.

Posted by: Anonymous | Dec 29, 2006 2:30:10 PM

So, how is the court following the mandate here? The express text does not seem capable of being more clear. The interpretation would be, according to Anonymous (and the court), that "reason ... at a particular point within the range" really only means "anywhere within the range requires no reason other than a reason for being within the range." No wonder Shakespeare hated lawyers.

Posted by: "Major" Mori | Dec 29, 2006 5:54:40 PM

The parsimony provision is Defendant-friendly language that, while consistently ignored by the courts, will be immediately repealed by Congress the minute it is applied to help a defendant get a new, lower sentence. I think it's best that defense lawyers don't try to press to hard for substantive and procedural rights based on the parsimony provision, because if a defendant is actually successful, 3553(a) will immediately be modified by congress to remove the parsimony provision setting forth that as long as the sentencing court considers all the 3553(a) factors, and makes findings with an explanation of its decision, a court can sentence a defendant to whatever it wants so long as it's above any applicable statutory mandatory-minimum. If a sentence is objectively greater than necessary, it will be upheld as long as all factors were considered.

Then federal sentences will increase by 20% across the board. As such, I feel trying to use the parsimony provision to reduce sentences on appeal is a bad strategy. The only reason it's still around is that all courts ignore it.

Posted by: Bruce | Dec 29, 2006 9:16:34 PM

Bruce, that is like telling the patient here is some good medicine in the cabinet, but the doctors don't really want you to have it, so keep quiet and you can look at it on the shelf but as soon as you touch it we'll take it away. So in whose interest is it to keep quiet?

Posted by: Major Mori | Dec 30, 2006 7:33:10 AM

Bruce: I think you are also overlooking the reality that there are new bosses in Congress who are less likely to always go tougher on federal sentencing issues.

Posted by: Doug B. | Dec 30, 2006 8:10:51 AM

Mixed martial arts has gained so much popularity in the past few years. It's really becoming a widely recognised sport. It's good to see those guys who go out and battle like they do, get some well deserved attention.

Posted by: Layla | Sep 18, 2008 9:44:04 AM

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