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March 11, 2009

Notable Ninth Circuit dissents about reasonableness review from deneial of rehearing en banc

I noted here last summer a notable split Ninth Circuit ruling affirming a below-guideline probation sentence in US v. Whitehead, No. 05-50458 (9th Cir. July 14, 2008) (available here). Today, rehearing en banc was denied in the Whitehead case, and that decision prompted two notable written dissents from Judges Gould and Reinhardt. 

Judge Gould quotes Cicero and Publius Syrus and Daniel Webster in his opinion, while Judge Reinhardt ends one sentence in his opinion with two question marks!!  In short, this is a must-read for federal sentencing fans.

March 11, 2009 at 04:37 PM | Permalink


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Both quite solid dissents. As Scalia noted in his separate opinions in Rita and Gall, substantive reasonableness review is incoherent in an age of advisory Guidelines that are not (and cannot constitutionally be) presumptively reasonable.

That said, the courts of appeals are stuck with substantive reasonableness review, and Judge Reinhardt and Judge Gould are correct to point out that the courts of appeals should think seriously about how to carry that out.

I think Judge Reinhardt's choice of a mandatory minimum sentence as an example is an unfortunate one because, as he had to concede in that case, if a court of appeals believes that a statutorily mandated sentence is substantively unreasonable, there's nothing they can do about it (unless he's trying to plant the seeds for a more expansive form of Eighth Amendment review, see, e.g., Genarlow Wilson).

Posted by: ab | Mar 11, 2009 5:35:49 PM

ab. I don't agree with that "substantive reasonableness review is incoherent in an age of advisory Guidelines that are not (and cannot constitutionally be) presumptively reasonable." At least I don't agree that it has to be that way. It is just the job of the appeals court to make it coherent.

On the other hand, I agree with both the dissents. It's hard to imagine any substantive reasonableness review in light of the position the 9th has now taken. It seems almost childish to me: either give direct and explicit orders or the 9th is going to sit and hold its breath till its face turns blue.

Posted by: Daniel | Mar 11, 2009 6:27:00 PM

Perhaps incoherent is the wrong word, but in light of Rita and Gall, it's hard to see how substantive reasonableness review can have any teeth. If a district court calculates the Guidelines correctly, doesn't make any procedural blunders, considers all 3553(a) arguments and gives a rational explanation of why the ultimate sentence is just, then it's hard to imagine a case where the appellate court would say that the sentence is substantively unreasonable or standard to which it could point for doing so.

I suppose that the courts of appeals can still pick off the outliers under the heading of "substantive reasonableness" review (imagine the most horrendous crime you possibly can, and imagine a district court writing an eloquent opinion sentencing the defendant to probation), but beyond that, I don't see substantive reasonableness having any teeth after Rita and Gall.

I suppose that's not the same as saying that it's incoherent.

Posted by: ab | Mar 11, 2009 7:18:51 PM

Someone smarter than I should look into this, but I'd be willing to bet that when courts repeatedly hand out lower sentences, that triggers the inevitable response, i.e., tough mandatory minimum sentences. So, in other words, criminals may win some battles, but ultimately lose the war. Plus, in the federal system, we have the increased layer of prosecutoral discretion and the ability to pick their cases.

Would we have exceedingly tough juvie sentencing laws here in America if courts hadn't gone hog wild and threatened people's safety?

Posted by: federalist | Mar 11, 2009 7:35:46 PM

ab. Then we agree. I think that policing the outliers is just what appeals courts are supposed to do in light of Gall. Giving discretion to the TJ means just that. If the TJ does not have any latitude, then he doesn't have discretion. Discretion means outcomes upon which reasonable people disagree. I recognize that reasonable people can disagree where the line separating the "outliers" from the rest happens to be, but if the case above is not an outlier, I truthfully don't know what is. Ted Bundy getting probation?

The problem with the 9th's approach is that there are no outliers anymore. Substantive reasonableness is not supposed to be a replacement for the guidelines. But it's not supposed to be a toothless dog either. And I get frustrated when I see courts taking an "all or nothing" approach; because I don't think that's what Rita and Gall meant. I'm sorry to say but after thinking about it IMHO the majority's opinion here is in bad faith.

Posted by: Daniel | Mar 11, 2009 9:08:22 PM

Well, federalist, we've never had tough (or any) statutory mandatory minimums for white-collar crimes (which is the focus of the Gould dissent). Why do you think that's so?

Posted by: Doug B. | Mar 12, 2009 8:55:24 AM

I have no idea, Doug, but I'm guessing that a few high-profile wrist-slaps will change that.

Posted by: federalist | Mar 12, 2009 9:45:38 AM

We have had plenty of "high-profile wrist-slaps" in this arena, and yet no change. Perhaps some other political forces are at work -- e.g., white-collar legislators are more sensitive to the impact of crude statutory mandatory minimums on white-collar communities. Indeed, that's part of what Judge Gould is stressing in this context --- namely that white-collar defendants often are well positioned (and have the help of effectively lawyers) to take advantage of increased sentencing discretion.

The point is that, generally speaking, some types of criminals win both the battle and the war, while other types of criminals typically lose both the battle and the war. Some would contend that relevant criteria (e.g., true culpablity, violence, risk of harm) often best explain consistent winners and losers, but others can point to data that suggest lots of troublesome factors (wealth, race, gender) are also central to who wins and who loses most sentencing battles.

Posted by: Doug B. | Mar 12, 2009 10:44:34 AM

"Well, federalist, we've never had tough (or any) statutory mandatory minimums for white-collar crimes (which is the focus of the Gould dissent). Why do you think that's so?"

Perhaps I am wrong about this but the way I see it is after Gall and Rita that makes little difference anymore. Even if there are not statutory minimums, that doesn't mean that there are no minimums located within the penumbra of substantial reasonableness.

Posted by: Daniel | Mar 12, 2009 11:26:31 AM

Well, Doug, there would have to be more than a few, but if we had a situation where notorious crooks were getting off constantly, you'd see some clamoring--my larger point was, of course, that lenient judges beget inflexible sentences.

As for race and sentencing, you're not talking about the urban discount, are you, e.g., Seattle Mardi Gras riots?

Posted by: federalist | Mar 12, 2009 11:35:54 AM

Daniel, I think we generally agree, but I think the line-drawing problem on this issue is a bit more slippery than you think it is.

At bottom, these sentences are exercises of raw moral judgment. 3553(a) and the Guidelines are there to ensure that the judgment is informed by relevant information and by the purposes of sentencing.

So if a judge follows all of the procedures correctly and doesn't say anything crazy, then on what basis can a court of appeals say that the district judge is substantively unreasonable?

What law wasn't followed? After Spears (and according to Spears, after Kimbrough), district judges can categorically disagree with structural features of the Sentencing Guidelines without being subject to reversal.

A reversal for substantive reasonableness where the district court decision has no procedural defects and didn't "fail to consider" anything is nothing more than 2 or 3 judges saying "our consciences differ substantially from yours, and ours carry the day because we're the court of appeals."

What's the point of that?

It's understandable that there's a human element to judging and that different trial judges view different crimes in different ways. That's unavoidable and in some ways a good thing. I see no point, however, in injecting a similar human element in appellate review. One panel may think that no child porn conviction can be reasonable without prison time and another may think that no first-time simple possession drug offense should ever lead to prison time, and the "substantive reasonableness" of the sentence under review will turn on little more than the personal makeup of the appellate panel.

I think "police the outliers" sounds reasonable, but the question of what an outlier is is tricky.

Posted by: ab | Mar 12, 2009 2:21:32 PM

I agree with ab here. After Gall/Kimbrough/Spears, substantive reasonableness review is unworkable. Daniel, ab, and I all agree that substantive reasonableness review is to "police the outliers." But, in the context of examining criminal cases and sentences, what you term an outlier is at best discretionary (up to the appellate courts) and at worst arbitrary (up to the panel you pull).

The two dissents prove the point. Gould is complaining about the leniency of this sentence, esp. in it being a white-collar case. Reinhardt is complaining about the harshness of our sentencing system and believes en banc review is warranted to clarify that appellate panels need to be engaging in serious review of (what are mostly) too harsh sentences. If either were a dist.ct. judge, would either position be "unreasonable"?

IMO, sentencing, at its core, is about how one looks at the world. While one's view of the world may -- at the extremes -- be an abuse of discretion (i.e. giving Bundy probation), there is significant room for disagreement. This makes an appellate panel's review for "reasonableness" unhelpful.

Any chance the en banc denial, coupled with the diverging viewpoints of the two dissenting opinions would garner cert attention? I feel very strongly that SCOTUS needs to grant cert in two cases to clarify: 1) after Gall/Kimbrough/Spears, what constitutes an “abuse of discretion”/ “unreasonableness” if a non-GL sentence is imposed; and 2) (unrelated to this case) when will a within GL sentence be an “abuse of discretion”/ “unreasonable”?

Posted by: DEJ | Mar 12, 2009 3:04:06 PM

DEJ and ab. I think the difference is that I am much more comfortable than either of you with a concept that is "slippery" or "tricky". Put another way, a certain degree of vagueness in the legal judgments doesn't bother me.

"I see no point, however, in injecting a similar human element in appellate review."

I do, if for no other reason than now four pairs of eyes have looked at the sentence and thought about whether it is reasonable or not. It's not like every case is appealed or accepted. If an appeal is accepted its typically because it's bothersome in some way. And the more people who look at a bothersome sentence, the better I feel.

Posted by: Daniel | Mar 12, 2009 8:12:22 PM

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