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August 6, 2008

Third Circuit Holds that Alternative Sentence Under § 3553(a) Renders Potential Guidelines Error “Harmless”

Monday, in United States v. Santiago-Bautista, available here, the Third Circuit effectively allowed a sentencing court to insulate itself from appeal by holding that any error in calculating the guidelines was rendered harmless by the district court’s articulation of an alternative, equivalent sentence under § 3553(a).  The defendant, Mario Santiago-Bautista, had been convicted of illegal reentry following deportation.  At sentencing, the district court concluded, over Santiago-Bautista's objection, that a prior state conviction for possession of a weapon was an “aggravated felony” for sentencing purposes, and thus raised his base offense level by several levels.  But the district court explained that even if it erred in concluding that the weapon offense was an aggravated felony, it would impose the same sentence in an exercise of its § 3553(a) discretion. The Third Circuit affirmed:

At sentencing, the district court imposed a custodial sentence of 19 months based on two independent grounds. The district court concluded that violation of N.J.S.A. 2C:39-5(d) constituted a crime of violence under 18 U.S.C. § 16(b), resulting in an offense level 13, criminal history category 3, and yielding an advisory Guideline range of 18 to 24 months. However, the court went on to explain that even if that legal conclusion was incorrect (and the offense level should have been 10), the court would nevertheless have ‘var[ied] up 2 points, and using a range of 15 to 21 months, impose[d] a sentence of 19 months.’ App. 101. This variance would be based on ‘the nature and circumstances of this defendant, . . . [the] nature and circumstances of the offense, [his] violent act regarding Miss Chan, prior membership in a gang, his lack of candor [towards] law enforcement, and his use of fraudulent documentation.’ Id. The court further explained that such a sentence would address some concerns about danger to the public, as well as ‘reflect the seriousness of the reentry,’ and ‘promote respect for the law.’ Id.

Thus the court clearly considered the sentencing factors set forth in 18 U.S.C. § 3553(a) when imposing this sentence. Based upon our review of the record, we conclude that even assuming arguendo that the district court erred in its analysis of Defendant’s prior conviction, that error was harmless as the court would have imposed the same sentence anyway for the reasons it explained. We are convinced that the district court engaged in a careful and extensive explanation of the reasoning underlying the sentence under either Guidelines framework. We find no error in the alternate sentence, nor do we find any merit in Santiago-Bautista’s argument that a district court abuses its discretion when it articulates an alternate sentence.

Is the Third Circuit’s ruling consistent with the spirit of Gall, which states that judges must calculate the guidelines first and then consider § 3553(a)?  One could reasonably argue that a correct guidelines determination is a necessary prerequisite before considering whether a § 3553(a) variance is appropriate.

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Every circuit to consider alternative sentences like this one has upheld the practice. This helps criminal defendants more often than it hurts them. Moreover, it reinforces the idea that the guidelines are advisory. So a district court can reasonably look at two different potential guideline ranges and decide that regardless of which one applies, the sentence the makes the most sense in this case is X. A contrary holding would essentially mean that not only must courts "consider" the guideline range, but they must give a certain amount of weight to the guidelines.

Posted by: Not the same | Aug 6, 2008 9:50:33 PM


Posted by: | Aug 7, 2008 7:26:33 AM

"A contrary holding would essentially mean that not only must courts 'consider' the guideline range, but they must give a certain amount of weight to the guidelines."

What can it possibly mean to "consider" the Guidelines and yet assign them no weight at all? I'm no fan of the Guidelines but reasoning like this further demonstrates the intellectual vacuity of the post-Booker sentencing regime.

Posted by: Anon | Aug 7, 2008 10:51:21 AM

No, it's just another way for a lazy judge to keep from having to do any real work. 'just saying "You're getting 19 months any way I calculate it. I can use the guidelines, I can use 3553, or I can use tealeaves, but you're getting 19 months no matter what"

God forbid the judge actually serve justice and not some chart.

Posted by: babalu | Aug 7, 2008 10:57:09 AM

"Not the same" writes: "Every circuit to consider alternative sentences like this one has upheld the practice."

INCORRECT. The Tenth Circuit has held just the opposite. US v. Pena-Hermosillo, 522 F.3d 1108 (10th Cir. 2008).

After holding that the district court procedurally erred by incorrectly calculating the Guideline, the panel then held:
"We also find that the court’s alternative holding that the 121-month sentence 'would be imposed even if the advisory guideline range was determined to be improperly calculated' was likewise procedurally unreasonable. We therefore reverse and remand to the district court to vacate and resentence."

Posted by: DEJ | Aug 7, 2008 11:01:06 AM

Anon, you can consider something and decide it is not relevant to a specific case. The guidelines are just one factor among many for the district court to consider. Must the district court, in every case, give at least some weight to each of the 3553(a) factors? How would that even work?

Posted by: Not the same | Aug 7, 2008 11:24:02 AM

DEJ, the Tenth Circuit did not hold that a district court cannot give an alternative sentence. Rather, it held (as many other circuits have) that to give an alternative sentence, you must give a sufficient explanation to support the alternative sentence. As the 10th Circuit notes, without giving a thorough explanation stating why you would give the same sentence even if you are wrong on a particular Guideline calculation, the appellate court cannot be sure that you have actually “considered” both Guideline ranges.

Also please note that the Tenth Circuit case involved an alterative sentence that would have greatly benefitted the defendant. As I noted before, in many of these cases, the beneficiary of the alternative sentencing practice is the defendant, not the government.

Posted by: Not the same | Aug 7, 2008 11:31:21 AM


"God forbid the judge actually serve justice and not some chart."

The problem is that we have roughly 500 different versions of what it means to "serve justice," which is, obviously a "standard" so subjective and content-free as to be no standard at all.

The "chart," on the other hand, at least provided visibility and accountability. With Booker, Gall and Kimbrough, those virtues are greatly diminished. That is why, on this blog, we see, about every other day, an account of some sentence either grossly below the guidelines or considerably above them, with the appellate court more-or-less washing its hands in the new era of Deference Uber Alles.

The overall results of this new "system" have yet to be seen. But in tilting so far away from law and toward idiosyncracy, the Supreme Court has made a gigantic and unnecessary blunder.

The Court's most liberal member (Stevens) and its most conservative (Scalia) agreed on this. To those who might care to survey their unanswerable reasoning, I commend Justice Stevens' dissent to the remedial portion of Booker.

Posted by: Bill Otis | Aug 7, 2008 11:42:31 AM

Not the same:

I do not agree with your result-orientation. And I would not agree even if the results were different, i.e., it the prosecution were more often the beneficiary of alternative sentences. Result-orientation tends to trade in analysis for partisanship, all depending on which side you're rooting for.

With that exception, I think you have the better of the argument here. Alternative sentences serve judicial economy, and are congruent with the thinking behind the ancient and uncontroversial (so far as I know) rule that a judgment will be affirmed if supported by any basis in the record, even if the basis principally relied upon below is erroneous.

Posted by: Bill Otis | Aug 7, 2008 12:01:49 PM

Not the same,

No, I don't think it is possible under Booker and Gall for a court to legitimately find that the Guidelines are not relevant to the calculation of a defendant's sentence under 3553. For one thing, the Guidelines supposedly incorporate all of the other 3553 factors. Moreover, Gall stated explicitly that the Guidelines remain the "the starting point and the initial benchmark" in sentencing calculations. This isn't remotely similar to a situation in which one of the narrowed 3553 factors might be found not applicable to a particular case (e.g., the need for specific deterrence or rehabilitation might not apply to a first offended in some unique circumstance in which the court could be fairly certain that no risk of recidivism existed). If Booker's instruction that the courts "consider" the Guidelines means anything, it must mean that the calculation of the Guidelines range makes some appreciable difference to the outcome of the sentencing calculation in every case, at least where mandatory sentences are not applicable. Again, I'm not a big fan of the current system but if it's the one we're stuck with it should at least be applied with some degree of intellectual honesty.

Posted by: Anon | Aug 7, 2008 2:04:05 PM

Apologies-- not sure why I typed "d" instead of "r" twice. Should be "narrower" and "offender."

Posted by: Anon | Aug 7, 2008 2:06:38 PM

Bill, I don't know what you mean by you don't agree with my "result-orientation." You disagree with me that the practice of alternative sentencing has, on average, helped out defendants more than the government?

Anon, something can be the starting point but not have any appreciable affect on the outcome. Also please note that alternative sentencing does not allow a district court to say, “I don’t care if I made some error in the Guidelines calculation, I’m giving this particular sentence!” Rather, when the district court is faced with potential competing Guideline ranges, it can reason from the “starting point” of each Guideline range and determine that from there it ends up at the same spot, no matter which Guideline range is correct. And while I know we now think of sentencing as governed by Booker (and its progeny), but the Sentencing Reform Act specifically blesses alternative sentencing. It explicitly states that you need to remand for re-sentencing only when a sentence is “as a result of” a Guideline error. In the case of alternative sentencing, a sentence, by definition, is not “a result of” the Guideline error since the district court has considered (what later turns out to be) the correct Guideline and reached the same result.

Posted by: Not the same | Aug 7, 2008 3:48:03 PM

Not the same:

My view is that whether the defense or the prosecution is more likely to benefit from allowing alternative sentencing should not count in deciding whether alternative sentencing ought to be allowed. It should be allowed for the outcome-neutral reasons I discussed.

I do not disagree with your view that the defense is likely to be the more frequent beneficiary of this practice. But I don't think that counts for or against it.

This mirrors my overall view of sentencing. Although mandatory guidelines would probably produce longer sentences over the run of cases (of course with exceptions), that is not why I favor them. I favor mandatory guidelines because law, with all its flaws, is better than idiosyncracy, with its even more numerous flaws.

Posted by: Bill Otis | Aug 7, 2008 5:01:07 PM

"[S]omething can be the starting point but not have any appreciable affect on the outcome."

I just can't conceive of how that's possible. Saying that the court would arrive at the same sentence regardless of its starting point is tantamount to saying that the court is treating the starting point as irrelevant; it has made up its mind prior to undertaking the sentencing process prescribed by 3553, in which case the sentence is necessarily procedurally unreasonable.

A big problem with post-Booker sentencing is that procedural reasonableness review can already be easily evaded by the rote invocation of a few talismanic phrases while the sentencing court goes about doing whatever it wants; holdings like this take procedural reasonableness review one more step toward complete meaninglessness.

Posted by: Anon | Aug 7, 2008 6:25:31 PM


Your last paragraph sums up quite well what's wrong with what Booker hath wrought, abetted now by Gall and Kimbrough. Indeed, Gall virtually rehearses the "talismanic phrases" that, when employed by the district judge, pave the way for the anything-goes sentencing scheme to which the Supreme Court has returned us.

Posted by: Bill Otis | Aug 7, 2008 7:03:01 PM

"The problem is that we have roughly 500 different versions of what it means to "serve justice," which is, obviously a "standard" so subjective and content-free as to be no standard at all."

Well, we now know who is most certainly not a fan of Justice Holmes. "It is the merit of the common law that it decides the case first and provides the reasoning after." Justice Holmes whole career, every single judicial opinion, was predicated on the notion that 500 judges do not produce a "'standard so subjective and content-free as to be no standard at all." The whole point to Justice Holmes whole life was that you are 100% wrong Bill Otis. Perhaps you ought to read some of his works and inform yourself.

I haven't called anyone ignorant in a long time and I hesitate to do so here. But your comment can only reflect a personal lawlessness that knows no bounds. Far from 500 judges producing no standard, they have produced a very firm standard. That standard is exactly what is meant by the term "legal culture".

Posted by: Daniel | Aug 7, 2008 7:26:02 PM

Anon, if I start in New York and head West and you start in San Francisco and head East, we'll end up in the same spot, even though we started in different places. I think a similiar thing happens with alternative sentencing. One Guideline range seems too high. One seems too low. They meet somewhere inbetween. But regardless of whether the practice makes good policy sense, the statute blesses it. If it's bad policy, Congress is always free to amend the statute. Until they do, we're stuck with it.

Bill, I don't disagree with you in the abstract -- i.e., we should want fair and just procedures independent of who it helps. But since I view the Guidelines themselves as too harsh, I'm more likely to like process that lessens the unjustness of the Guidelines to begin with.

Posted by: Not the same | Aug 7, 2008 10:08:11 PM


If you believe that the phrase "legal culture" comes remotely close to defining a standard under which sentences should or could be determined -- or comes close to defining anything -- there's not a whole lot I can say.

The degree of irrational disparity in sentencing was scandalous before the SRA, and, as an increasing number of the post-Booker cases posted about here indicate, is headed back in that direction.

If you want to call that observation, or me, "ignorant," so be it. I've been called worse. But I had my share of success in court, so if I'm a target merely in cyberspace, I suppose I can handle it.

Personally, I do not regard you as ignorant, merely mistaken, and perhaps not all that experienced.

Posted by: Bill Otis | Aug 7, 2008 10:35:07 PM

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