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

I 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.