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February 22, 2007

A fascinating (and funky) Sixth Circuit reasonableness ruling

The Sixth Circuit today in US v. Funk, No. No. 05-3708 (6th Cir. Feb. 22, 2007) (available here), issued an interesting — and perhaps now suspect — ruling reversing as unreasonable a sentence that turned on the district judge's decision not to apply the career offender guideline.  In a detailed opinion, which reprints the district court's extended justification for its sentencing decision, the Sixth Circuit concludes "the district court erred in mitigating Funk's sentence on the basis of an impermissible sentencing factor, namely, the court's disagreement with Congress's policy decisions as implemented by the Sentencing Commission in the career offender provisions, and by failing adequately to justify its substantial deviation from the applicable guidelines range."

I find the Sixth Circuit's ruling in Funk troublesome in part because it relies very heavily on the guidelines (and barely mentions other 3553(a) factors) when deciding that Funk's sentence is unreasonable.  That said, I can understand why, in light of some existing circuit precedents, the Sixth Circuit was put off by the district court's decision to disregard the applicable career offender enhancement. 

For even more intrigue, consider that the Government in the recent Rita argument suggested that it is "necessary for [a district] court to have the legal freedom to be able to disagree with what the Sentencing Commission said." (transcript at p. 35).  In light of that (official?) concession — and the fact that the career offender guideline is a Commission creation, not a statutory mandate — I cannot help but feel a bit funky about how the Sixth Circuit brought in the Funk.

February 22, 2007 at 05:01 PM | Permalink


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The Sixth Circuit in Funk has given elevated status to one of the 3553(a) factors (the Guidelines) over all the others. The Guidelines now serve as a trump over the other factors, i.e. if you do not do what the Guidelines say, the sentence is unreasonable. Although purporting to give deference to Congress' intent with regard to the career offender provisions of the Guidelines, the Sixth Circuit ignores Congress' directive that the listed factors in 3553(a) must all serve the parsimony provision of 3553(a) that a district court's job is to impose a sentence that is "sufficient, but not greater than necessary" to achieve the sentencing goals. This is effectively mandatory Guidelines, which Booker supposedly declared unconstitutional.

During the arguments in Rita, Justice Scalia said that a district court,"can simply disagree with the basic reasons of the [sentencing] commission, can simply disagree with the fact that the commission considers white collar crime, for example, something that should justify incarceration." This is what Funk says a district court can NOT do. This district judge found in Funk that 150 months was sufficient to achieve the aims of the sentencing act, and that a sentence in the guidelines range of 262-327 was greater than necessary. This would appear to be exactly what Booker instructs a district court to do (and how Justice Scalia, at least, envisions it working). The Sixth Circuit, however, continues to bravely march forward into the past.

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