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March 1, 2007

Amazing resentencing opinion from Judge Presnell

US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame, sticks to his guns in a fascinating Booker resentencing opinion in US v. Williams, 6:04-cr-111(M.D. Fla. Mar. 1, 2007) (available for download below).  As detailed in this latest opinion, Williams has a long history, but that does not keep Judge Presnell from explaining how he goes about doing sentencing justice after Booker

Download williams_opinion.pdf

March 1, 2007 at 11:35 PM | Permalink


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I wonder if, faced with this opinion, the Government will appeal again. Or will they just give up?

Posted by: William Jockusch | Mar 2, 2007 5:03:32 AM

I hope the government gives up. Judge Presnell does a great job explaining the current state of the law, and the "code" in which some judges must speak to avoid a remand under cases such as Pho and Eura.

At p. 5, Judge Presnell explains that "[t]he import of Williams I and Williams II is that any criticism of the guidelines when considering a sentence will be taken as impinging the prerogative of Congress and trumping the statutory factors actually considered by the trial court."

He's right, of course. The only thing I found unconvincing about his opinion was the part where he insists that he relegated his criticism of the guidelines to a footnote. The court of appeals remanded because Judge Presnell appeared to base his sentence, in part, on a rejection of the "policy" behind the 100:1 ratio. In the remand opinion, he basically admits that he did, but insists that there's no problem because he didn't completely reject the policy, and because he considered lots of other things too.

The Pho/Eura principle is a little silly, but the Eleventh Circuit seems to have adopted it. Judge Presnell's opinion is a great example of how to deal with it and what the district courts can do under the circumstances.

Thanks for posting this.

Posted by: | Mar 2, 2007 10:03:49 AM

I hope the government does not give up. Judge Presnell's opinion is terrific, and I hope the Eleventh Circuit is confronted with the directness of Judges Presnell's opinion. His opinion highlights the quandry that "reasonableness review" causes for the Courts of Appeals. They are not in the best position to judge the many factors leading to the sentencing judge's decision, yet that is exactly what they are trying to do under "reasonableness" review. I hope that Rita and Claiborne will establish broad deference to district-court sentencing decisions, but, in the meantime, I hope the Eleventh Circuit is confronted with the ridiculousness of their approach to federal sentencing appeals.


Posted by: Mark | Mar 2, 2007 12:01:41 PM

The footenote in this opinion citing to the Rita argument is very interesting.

By all accounts, most USA offices have a policy of arguing to district courts that any below-Guideline sentence would be unreasonable. I wonder whether defense counsel will take a cue from Judge Presnell and start arguing that the position of Main Justice is much more deferential to district courts.

Posted by: C.Hessick | Mar 2, 2007 12:42:06 PM

An excellent opinion. We need more judges who are not affraid to follow Booker and actually apply the Guidelines in an advisory manner, despite Circuit courts' efforts to the contrary.

Two things from the opinion jump out at me.

1) In footnote 2, it is both encouraging and appropriate that Presnell notes the US's position before the Supreme Court that district judges must have significant discretion under an advisory guideline system. The govt's statements about district court discretion made during Rita oral argument need to be highlighted at every sentencing hearing from now until Rita is decided.

2) On page 7, Presnell finds it important to note that the "presumption of reasonableness" does not apply in his Circuit. This highlights how the presumption (or lack thereof) - despite the govt's argument that it is only an appellate standard and should not impact district courts - does in fact pervade district court sentencing practices.

Posted by: DEJ | Mar 2, 2007 12:47:16 PM

His opinion highlights the quandry that "reasonableness review" causes for the Courts of Appeals.

In fairness to the Courts of Appeals, it was Justice Breyer's vague remedial opinion in Booker that created this mess in the first place.

By the way, it's not unusual that U. S. Attorneys at the local level argue one thing, and the Solicitor General's office another thing.

Posted by: Marc Shepherd | Mar 2, 2007 3:19:15 PM


I agree that Justice Breyer's remedial opinion is terribly vague. But I wouldn't let the Courts of Appeals off the hook. They could have held that "reasonableness review" will have deferential, or highly deferential, appellate review. But they, uniformly, have not. They have consistently developed highly deferential review for above-Guidelines sentences and highly non-deferential review for below-Guidelines sentences. Nothing Breyer wrote mandated this reality, but that's where we are. I hope that SCOTUS can correct this situation in Rita and Claiborne, but we'll have to see.


Posted by: Mark | Mar 4, 2007 9:44:19 PM

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