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July 31, 2007

Third Circuit approves of guideline-centric realities

The Third Circuit today in US v. Hankerson, No. 06-3291 (3th Cir. July 31, 2007) (available here), rejects a defendant's various claims that his within-guidelines sentence is unreasonable and that he received ineffective assistance of counsel at sentencing.  Hankerson is a classic post-Booker example of a defendant emphasizing personal circumstances in arguing for a below-guidelines sentence and of a district court obviously feeling the "gravitational pull" of the guidelines when deciding upon what sentence to impose.

There is a lot of notable ground covered in Hankerson, especially for those working within the Third Circuit.  And I found especially telling this rejection of a last argument by the defendant:

Finally, Hankerson argues that his counsel's argument remained "guidelines-centric," even though after Booker, the guidelines were no longer binding. First of all, contrary to Hankerson's characterization, counsel did present evidence tailored to the § 3553(a) factors, and did not argue his downward departure motions to the exclusion of argument on those factors. (See App. 37-40.)  Secondly, given that "[t]he advisory guidelines range . . . continues to play an integral part in sentencing decisions" after Booker, and that a sentence within the range is more likely to be reasonable than one without, it was entirely reasonable for defense counsel to focus much of his argument on the guidelines and on his successful argument for a downward departure. Cooper, 437 F.3d at 331.  As such, counsel's approach to sentencing was both reasonable and effective, and thus fails the Strickland test for ineffectiveness.

In other words, even after Booker and even in a case with significant mitigating personal circumstances, this Third Circuit panel still views a "guidelines-centric" approach to sentencing to be "both reasonable and effective."  Hmmm.

July 31, 2007 at 02:31 PM | Permalink


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Lawyers in many circuits have been forced into a "guideline-centric" mode because of the stringent appellate review exercised by the Circuits since Booker, which invariably focuses on the guidelines. (I see this in the Second Circuit, where defense counsel focus most of their arguments on getting a guidelines "departure.")

Whether appellate review based on the guidelines is proper is the real issue in Gall and Kimbrough. I expect the Circuits' approach to take a hard hit when the Supreme Court gets a look at it. It's just not consistent with Rita and Cunningham.

Posted by: David in NY | Jul 31, 2007 3:05:28 PM

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