« Sidebar discussion of "The Subjective Experience of Punishment" | Main | The specifics of criminal justice in the Obama Administration still coming into focus »

March 12, 2009

Split Fourth Circuit ruling upholding above-guideline sentence shows another circuit struggling with reasonableness review

The Fourth Circuit today through its decision in US v. Heath, No. 07-4715 (4th Cir. March 12, 2009) (available here), provides yet another example (like yesterday's opinions from the Ninth Circuit) of circuit judges struggling to give meaning and content to substantive reasonableness review after Gall.  Here is how the majority opinion in Heath starts:

Toby Franklin Heath pleaded guilty to interfering with commerce by robbery, in violation of 18 U.S.C.A. § 1951 (West 2000) ("Count One"), and possessing a firearm after being convicted of a felony in violation of 18 U.S.C.A. § 922(g)(1) (West 2000 & Supp. 2007) ("Count Two").  The district court sentenced him to a 240-month prison term for Count One, approximately double the Guidelines’ advisory range of 100-125 months, and a concurrent 120-month prison term for Count Two.  On appeal, Heath argues that the district court failed to adequately explain its reasons for making the upward departure in Count One. We placed Heath’s case in abeyance pending the Supreme Court’s decision in Gall v. United States, 128 S. Ct. 586 (2007) and now affirm.

Here is are some passages from Judge Gregory's dissent that show the basic struggle these reasonableness cases are presenting in the wake of Gall:

I have already expounded upon my views of Gall in United States v. Evans, 526 F.3d 155, 167 (4th Cir. 2008) (Gregory, J., concurring).  But the facts of this case compel me to reiterate my position that substantive reasonableness must encompass more than the rote recitation of § 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today....

The district court failed to articulate a sufficient justification for imposing the statutory maximum upon Heath, and my independent review of the record finds it similarly devoid of any such justification. Therefore, I believe Heath’s sentence to be both procedurally and substantively unreasonable, respectively.... The rigor with which we assessed reasonableness in finding a floor for downward departures must necessarily be applied in finding a ceiling for upward departures. Therefore, given the record in this case, I must conclude that if Heath’s circumstances are so compelling as to warrant a 92% upward departure to the statutory maximum, it is difficult to imagine any meaningful limit on the discretion of the district court.

Admittedly, the Supreme Court has not provided us with further guidance on these undoubtedly important sentencing issues. But a close reading of Gall reveals careful distinctions that logic and justice cannot ignore — yet, the majority does so today.  With all due respect to my colleagues, I cannot join their opinion.  Therefore, I dissent.

March 12, 2009 at 05:51 PM | Permalink


Good God, is Judge Gregory a hack . . . .

A habitual violent criminal robs a store at gunpoint and then breaks into a home and he gets 20 years, and Gregory acts like this is the biggest injustice since he didn't get a WQ rating from the ABA . . . .

Posted by: federalist | Mar 12, 2009 6:16:34 PM

Of course, even I have admit that Boyle is the prototypical party hack. Still, Gregory is black.

Posted by: federalist | Mar 12, 2009 8:41:22 PM

Cute--I did not post at 8:41:22. I guess when you cannot win with argument, you try to win with cheap crapola like using my name. Really cute.

Posted by: federalist | Mar 12, 2009 8:52:15 PM

Is "argument" the word you use for your posts here?

Posted by: Mark | Mar 12, 2009 10:19:22 PM

Mark, the infirmities in Gregory's opinion are so obvious. The defendant here is a bad guy, a really bad guy, who has done a lot of bad things, both in prison and out. He robs a store with a gun and breaks into a home to steal guns. He gets twenty years, and Gregory is handwringing over exactly what?

If possible, were I the judge, I would have had the burglary charge run consecutively and maxed this clown out. Pretty easy to justify.

Posted by: federalist | Mar 12, 2009 10:48:17 PM

Everything always seems "so obvious" to federalist. I sometimes wonder why we have courts that -- unlike federalist -- actually articulate analysis. This is especially true when outcomes must be so "clear" and "obvious" and "of course" (some of his/her favorite words).

Posted by: DEJ | Mar 13, 2009 11:26:26 AM

Because DEJ, there are some things that just aren't that hard. This is one of them. Gregory's opinion obfuscates the obvious--this guy has demonstrated, repeatedly, that he cannot conform his conduct to that demanded by the law and he cannot even come close--even while incarcerated. He is a very violent criminal (stabbing someone in the chest), and he needs a long time-out.

What really is obvious is Gregory is a criminal loving hack.

Posted by: federalist | Mar 13, 2009 11:57:59 AM

Criminals have, by definition, generally (hopefully!) done bad, morally reprehensible things. Part of the difficult role of the courts is to try to apply punishment proportionally and fairly to this group of people by making distinctions among levels of culpability. Cutting that gordian knot by insisting on "max[ing]" all the "clown[s] out" is one way out of this conundrum, but I, for one, am glad that most of our Platonic guardians of Article III (even the W appointees) at least attempt to apply a more thoughtful approach.

What's up with race-baiting federalist, though? That's like withholding Brady evidence on an obviously guilty dude, just to "make sure". Not cool!

Posted by: Observer | Mar 13, 2009 2:16:32 PM

I think, Observer, that my post shows why this guy getting 20 years is not an issue. I didn't say "max all the clowns out", I said to max this clown out.

As I have posited before, there are times when mercy on crimnal defendants is justified. But ones who repeatedly transgress in violent ways (even while incarcerated) simply need to be aged out.

Moreover, Observer, I am not sure I am "obviously guilty" . . . .

Posted by: federalist | Mar 13, 2009 3:15:47 PM

thank you for this information I love to read this post because it is very useful and easy to understand, after reading this page I will see see the other pages of this web hopefully have a lot of good information , my page :kata mutiara indah , kata mutiara dan gambar gambar , kata mutiara , kata kata lucu

Posted by: jen | Feb 20, 2013 4:31:29 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB