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August 28, 2007

A triple discretion smack-down from the Eighth Circuit

I just finished reading the Eighth Circuit's troubling en banc work yesterday in Burns (basics here), which led Judge Bright in dissent to express concern than a "majority of my colleagues ... grant more deference and discretion to prosecuting attorneys than to the district judges of this country."  And, providing no rest for the weary sentencing judge, today brings three more examples of the Eighth Circuit's disinclination to credit its district judges' sentencing judgments.  Here are summaries from this Eighth Circuit opinion page of today's discretion carnage:

US v. Michael Hatcher, No. 06-2814 [Smith, Author, with Bye and Beam, Circuit Judges] (available here): Under the Guidelines, a mandatory consecutive sentence under 18 U.S.C. Sec. 924(c) is an improper factor to consider in making a departure on related felony sentences, and the district court erred when it reduced defendants' sentences on the underlying felonies because of the length of the sentence required under 18 U.S.C. Sec. 924(c); the recidivism provision of 924(c) is a sentencing factor and not an element of the offense.

US v. Marlon J. Bradford, No. 06-3018 [Wollman, Author, with Riley and Benton, Circuit Judges] (available here): The Guidelines expressly limit the extent of a departure to a single criminal history level when the district court determines that the offender's criminal history score is overstated, and the district court erred when it departed by five levels; none of the other factors cited by the court justified the extent of the departure, and the case is reversed and remanded for resentencing.

US v. Thomas M. Coughlin, No. 06-3294 [Riley, Author, with Loken, Chief Judge, and Bye, Circuit Judge] (available here): District court erred in finding defendant suffered from an extraordinary physical impairment and abused its discretion in departing downward eight levels pursuant to Guidelines Sec. 5H1.4; when it imposed an alternative non-Guidelines sentence, the court did not state the reasons for the sentence with sufficient specificity and relied on irrelevant and discouraged grounds in reaching the sentence. Judge Bye, dissenting.

With the below-guideline reasonableness cases Gall (an Eighth Circuit case) and Kimbrough in the SCOTUS works, I thought we might expect the courts of appeals to hold back on reversing below-guideline sentences.  Indeed, many other circuits have issued precious few non-guideline reasonableness decision in 2007.  But, apparently confident in its own views, the Eighth Circuit keeps telling its district judges that they do not understand the scope and import of their post-Booker discretion even as these SCOTUS cases are pending.

August 28, 2007 at 12:34 PM | Permalink


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Possible explanation: the court is simply following strict-constructionist, conservative philosophy: a below guideline sentence must be reversed because it suggests compassion or mercy, words nowhere found in the Constitution.

Posted by: Michael Levine | Aug 28, 2007 2:25:28 PM

Or, perhaps the 8th Circuit is trying to get district court judges to impose higher sentences before Gall tells the Court of Appeals the abuse of discretion standard compels great deference (a la Koon) to the district court's expertise measuring the factors the sentencing commission failed to accomodate (as Rita confirmed) and for which too many prosecutors (in the DOJ and on the bench) have only contempt and scorn.

I hope the attorneys in these cases will realize they should, at minimum, seek a petition for certiorari based on Gall, which could well salvage the work of the district court judges being reversed.

Posted by: OMG | Aug 28, 2007 5:45:52 PM

What part of not mandatory is so hard to understand?

Posted by: ohwilleke | Aug 28, 2007 7:23:38 PM

...could be some of the Eighth Circuit district judges.

Many commentators assume that a high reversal rate in the Eighth Circuit of below-Guidelines sentences is evidence of a problem with the court of appeals. Conventional wisdom would suggest that the problem lies with the trial courts. I wonder if there's anything to that. The government doesn't appeal very many sentences, afaik

Posted by: | Aug 28, 2007 9:49:09 PM

Why would "conventional wisdom suggest" that? The Courts of Appeal have been hostile to the Supreme Court's Apprendi jurisprudence from day one.

Posted by: | Aug 28, 2007 10:32:45 PM

Booker and Rita don't just say "not mandatory," they say provide reasons under 3553. What's so hard to understand about that? "I think the Guidelines stink" is not a 3553 factor, HTH.

Posted by: Dweedle | Aug 29, 2007 10:36:23 AM

Why would "conventional wisdom suggest" that?

When an appellate court reverses a district court, the idea is that the district court "erred." If there are lots of reversals in a particular appellate court, one possible explanation is that there are a lot of errors.

It's certainly not the only explanation, but the problem isn't necessarily with the appellate court.

Posted by: | Aug 29, 2007 12:08:06 PM


It's not that the "the guidelines stink" in general; it's that this particular guideline, applied to these facts and this defendant, stinks. That this argument can justifiy a below guideline sentence is conceded by the government in its brief to the S.Ct. in Kimbrough. Prof Berman has given the cite in an earlier post.

Posted by: Michael Levine | Aug 29, 2007 12:26:23 PM

Mike: The Solicitor General's opinion is not the law, Rita is. HTH.

Posted by: Dweedle | Aug 29, 2007 1:06:06 PM

Is Michael a former clerk and apologist for the most mean spirited and result oriented Circuit in America?

Posted by: Tim S | Aug 29, 2007 3:09:41 PM

I've never seen "Mike" mention the Ninth Circuit before.

Posted by: | Aug 29, 2007 4:44:43 PM

I find this case difficult to square with Stevens' concurrence in Rita. Though it's a concurrence, the breakdown in Rita suggets a majority of the Court proves closer to Stevens' position on substabtive reasonableness review than any other clearly articulated position.

I wonder about this, too. In Rita, Stevens spoke directly to circuits like the Eighth (and others like it) that have routinely reversed reasoned below guidleines sentences. He expressed his "trust" that such circuits would, post-Rita, understand that the guidelines truly are advisory. What if they don't? Will nothing happen? Will something happen? If so, what?

Posted by: AF | Aug 30, 2007 1:30:34 AM

Stevens can "trust" all he likes in his concurrence, I still have not seen any authority from Rita, or otherwise, that would allow a court to simply "disagree with USSC policy" and vary on that basis *if* that basis is not also an articulable 3553(a) factor. I know that everyone "trusts" that this should be the case, but I'd like to see some reasoning other than pointing out that the Solicitor General gets his advice from the same forward thinking "legal scholar" that advised the President on Libby's clemency language. I firmly believe the guidelines baby is still happily splashing in it's bathwater despite the fervent attempts to promote the Solicitor General to the Supreme Court on this blog.

Posted by: Dweedle | Aug 30, 2007 12:26:29 PM

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