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August 8, 2007

Third Circuit adds to the ugly reasonableness hit parade

Continuing a week full of notable reasonableness opinions from the federal circuits, the Third Circuit today in US v. Lessner, No. 06-1030 (3d Cir. Aug. 8, 2007) (available here), rejects an array of claims lodged against a within-guideline sentence of 51 months and a $938,965.59 order of restitution.  The reasonableness discussion does not start until page 28, and the ruling spotlight the extraordinary lengths to which a circuit court will go to affirm a within-guideline sentence as reasonable.

In the district court, the "explicit discussion of the § 3553(a) factors was, admittedly, scant" and the defendant apparently made a significant record concerning "her lack of profit from her fraud, her diagnosis of depressive disorder, her exemplary work record, and the onerous nature of the restitution order."  Nevertheless, the Lessner panel is content to conclude that, becauseof "extensive and thoughtful questioning by the [district] Court over two days of hearings," the district court must have given "meaningful consideration [to] the pertinent factors."

I was hopeful (as was Justice Stevens) that the Supreme Court's Rita ruling might give just a little more bite to reasonableness review of within-guideline sentences.  But Lessner — along with other recent decisions like Hurn from the Seventh Circuit and Ruhbayan from the Fourth Circuit — further confirms that most circuit judge are generally content to treat any and all within-guideline sentences as virtually per se reasonable even after Rita.

August 8, 2007 at 05:15 PM | Permalink


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The problem, Professor, is that Justice Stevens in Rita (by not joining Justice Scalia's concurrence) removed the only objective criteria on which a circuit judge could base a reversal of a within-Guidelines sentence: facts. Now, all that such a judge do is whine, saying "But this sentence is 'too much.'" As Justice Scalia said in Blakely, "[I]t is always possible to disagree with such judgments and never to refute them." So please don't let Justice Stevens's lamentations form the basis of your criticisms when his view of the world is what allows them in the first place.

Posted by: | Aug 9, 2007 8:50:06 AM

Just a thought: Isn't this really just a slick political maneuver to postpone much of the "real" debate about sentencing until some later time?

Posted by: S.cotus | Aug 9, 2007 12:19:00 PM

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