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January 24, 2008

Two troubling rulings from the circuits

Wednesday brought a number of notable circuit sentencing ruling in addition to the previously noted decisions from the Third Circuit and from the Sixth Circuit.  The two that really grabbed my attention (and concern) are decisions from the Fifth and Eleventh Circuits:

UPDATE:  In response to some of the commentors, I have done this extended new post explaining more fully my conerns with the Ramirez ruling.

January 24, 2008 at 02:07 AM | Permalink


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So, it's ok with you for the Circuit Courts to use Gall and Rita to affirm below range sentences, but when the courts affirm an above range sentence, that is somehow wrong? You state "when the defendant had viable arguments that his sentence was far greater than necessary..." Viable arguments according to whom? You? Did you have access to the Presentence Report? Did you sit in on the arguments? As has been stated by the Supreme Court in Koon, the District Court is the closest to all the pertinent facts in the case and defference should be made to their decisions...so I guess Scalia should have added the caveat "unless Doug Berman deems the argument 'viable'"....

Posted by: Kelly | Jan 24, 2008 6:59:39 AM

Citing Gall and Rita extensively, the panel affirms with a cursory analysis suggesting that sound procedures employed by the district court made reasonable this high sentence. In so doing, however, the panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration.

Don't say you didn't see this coming.... Whenever someone gets probation and the Guidelines call for prison, the judge is "courageous," "sensible," and "taking account of the realities," and the appellate panel that affirms on appeal is "getting the message that advisory means advisory." Now the shoe's on the other foot, and it's "troubling."

I've been wondering since Gall and Kimbrough when a court of appeals can call a sentence substantively unreasonable, assuming that the district court has calculated the Guidelines correctly, considered all of the 3553(a) factors, explained its reasons for the resulting sentence, and stayed within the statutory bounds. Perhaps rulings like this will cause some other people to start considering the question as well.

Posted by: | Jan 24, 2008 7:43:15 AM

I am not surprised that Gall has led to this result, but I think substantive reasonableness review can and should eliminate extreme outliers (and Rita suggests as much). I am not sure Ramirez qualifies as an extreme outlier -- in part because the circuit court did not discuss the facts with any particularity. But the fact that he got the STAT MAX of 5 years when his guideline range was 8-12 months raises concerns. This concern is aggravated by the fact that the guidelines often cover/incorporate most traditional aggravating factors (though call most traditional mitigating factors "not ordinarily relevant").

If Padilla or Ebbers or Libby or the border agents were given a sentence of straight probation, I'd be inclined to call such sentences toooo lenient and thus substantively unreasonably given that their crimes of conviction seem not to have been the least awful version of the crime (and these folks meritted not credit for acceptign responsibility). In contrast, Ramirez did accept responsibility and still got stuck with the STAT MAX.

If the 11th Circuit had provides a full explanation of the facts that may have substantively supported the STAT MAX in this case, I'd be better able to judge whether or not this decision is really a problem. But Rita makes clear that there has to be some content to substantive reasonableness, and I think circuits have a responsibility to figure out --- through complete common law reasoning --- exactly how substantive reasonableness should apply.

Posted by: Doug B. | Jan 24, 2008 9:13:44 AM

I have to agree with the first two posters on this one. I really hope Professor Berman has more objectivity in his classroom than on his blog. Berman loves judges who go below the guidelines, but anyone who dares to go above is treated with scorn. Are all 3553(a) factors mitigators? According to the opinion,the District Court took into account these factors, as well as the defendant's substantial criminal history. In "Doug Berman's world" only judges who go below the guidelines are worthy of praise, all others should be shunned. Show some balance, or at least the illusion of balance!

Posted by: | Jan 24, 2008 9:32:22 AM

Hooray for the smear machine!
Doug, you seem to say that a reasonable sentence must be proportional relative to similar crimes/defendants. What other factors should inform substantive review of a sentence's reasonableness? Are there any concerns unique to over or under guidelines sentences?

Posted by: Gray Proctor | Jan 24, 2008 10:28:52 AM

In the wake of Rita, the question seems to be -- assuming the correct procedures are followed, what facts would it take for the appeals courts to find an out-of-guidelines sentence to be substantively unreasonable?

It feels as if we have swung from extreme lack of deference to extreme deference.

Posted by: William Jockusch | Jan 24, 2008 11:10:05 AM

Of the two, Newson is far more troubling. At least Ramirez could appeal. Evidently the 1st Amendment right to petition the government for a redress of grievances isn't a right after all, but is a criminal act worthy of (additional) incarceration.

That bubbly joy so many feel over criminals getting what they deserve is actually the sensation a frog feels while sitting in warm water -- before it comes to a boil.

Posted by: George | Jan 24, 2008 11:11:03 AM

Newson deals with a particular application of the Guidelines. District courts can't subtract one point for acceptance of responsibility without a motion from the government. The government wanted an appeal waiver in exchange. Newson said no, so the government didn't make its motion. Except for the fact that Newson lost his appeal, it seems like a smart move on his part.

Given that (1) the Guidelines are now truly advisory, and (2) the government can acceptance-of-responsibility motions as a bargaining chip, I see nothing particularly troubling about Newson

Posted by: | Jan 24, 2008 11:33:33 AM

"It feels as if we have swung from extreme lack of deference to extreme deference."

Yes, it does feel that way. I, for one, am glad that we've had this swing. Not because I favor longer or shorter sentences (both of which will now take place), but because the appellate courts are INSTITUTIONALLY ill-situated to have the primary say in sentencing decisions. They do not have the time to do the job, and they do not have the opportunity to see the witnesses. District judges have the time (because they've invested the time in pretrial hearings, trials, and sentencing hearings) to make good sentencing decisions, whereas appellate judges don't have and can't have the same time invested in each case. Appellate judges also NEVER have the opportunity to observe the witnesses.

The idea of significant appellate participation in sentencing -- to the point of having primary say in sentencing pre-Rita/Gall -- has been a flawed idea since 1984. Mistretta failed, but Booker-Rita-Gall-Kimbrough have finally morphed the Sentencing Reform Act into a reasonable system.

There still is, now, an appellate check on truly extreme cases (as there was prior to 1984), but the best person for the job -- the district judge -- is now back in the central sentencing position.

Gall and Kimbrough seem to be working, and for that I'm extremely grateful. If Congress wants to enact specific sentencing factors to be found by juries, I'm all for it. Get to work! But we never should have delegated so much sentencing power to the unelected civil servants in the DOJ (both prosecutors and probation officers) and Courts of Appeals. The law-enforcers are inherently biased, and the Courts of Appeals simply can't do the job.

It's been a long, hard road. I hope and believe that the journey is now almost over.

Posted by: Mark | Jan 24, 2008 12:42:38 PM


Newson proves that a defendant can't have his cake and eat it, too. He can't agree to plead guilty in exhcange for a lesser sentence, and then litigate claims on appeal without having to tender back the consideration he received.

If you want to litigate claims on appeal, you have to risk the imposition of a higher sentence. It is as it should be.

Posted by: Da Man | Jan 24, 2008 1:03:26 PM


We'll see if your boiling joy survives when the 2nd Amendment is merely a bargaining chip.

Posted by: George | Jan 24, 2008 1:24:54 PM

To George:


Posted by: Da Man | Jan 24, 2008 1:32:04 PM

I think George's point is that everything that harms criminal defendants is part of a slippery slope toward a police state.

That said, Da Man has it wrong. At least skim the case before you comment on it.

Posted by: | Jan 24, 2008 2:31:44 PM

I read -- not just skimmed -- the case. How do I have it wrong?

Posted by: Da Man | Jan 24, 2008 2:52:50 PM

"I think George's point is that everything that harms [the Constitution] is part of a slippery slope toward a police state."

See how easy it is to be right? Not only that, you could have been right and typed 4 less letters. Of course the opposite argument would be even more economical:

"Bill of Rights? We don't need no stinkin' Bill of Rights. Not in the war against ___________________."

Posted by: George | Jan 24, 2008 3:46:25 PM

Da Man wrote this:

He can't agree to plead guilty in exhcange for a lesser sentence, and then litigate claims on appeal without having to tender back the consideration he received.

Page 2 of the opinion says this:

He [Newson] pleaded guilty without a plea agreement.

Newson received no consideration at all. Rather, his argument on appeal was that he had accepted responsibility, that the government was prepared to tell the court such, and that the government's reasons for not making a motion to the court were illegitimate.

After a closer read, the opinion looks a bit more troubling than I'd initially thought. Though I'm a little puzzled as to why asking a defendant to waive his right to appeal is problematic, once you concede that he can waive his right to a trial.

Posted by: | Jan 24, 2008 7:12:04 PM

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