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June 3, 2009

Fifth Circuit rebukes effort to give a lot more bite to reasonableness review

The Fifth Circuit has just released an important little opinion in in US v. Duarte, No. 08-50902 (5th Cir. June 1, 2009) (available here). The ruling covers a lot of important ground in only a few pages, and here are some of the most notable passages:

Citing language from the Supreme Court’s judgment in Kimbrough that highlighted a lack of empirical support for crack versus powder cocaine sentencing disparities as a factor supporting the district judge’s discretionary downward departure in that case, Duarte claims that an examination of a Sentencing Guideline’s empirical basis is now indispensable before appellate courts can apply a presumption of reasonableness to within-Guidelines sentences imposed by district judges.  In essence, Duarte asks us to remove the presumption of reasonableness as to this and other allegedly non-empirically-grounded provisions of the Guidelines....

Duarte argues with some force that the sixteen-level enhancement provided for illegal re-enterers who commit certain crimes can lead to excessive sentences for some defendants. He does not, however, point to any law suggesting how this possibility of unjust sentences  — a persistent possibility under any system of sentencing and, more to the point, under any form of appellate review of sentencing — gives us authority to overturn the presumption of reasonableness that this court applies to within-Guidelines sentences.

Intervening Supreme Court guidance, of course, could provide an avenue for our panel to revisit court precedent, but Duarte rests too much on the thin reed of Kimbrough, particularly reading Kimbrough in light of Rita, which expressly approves circuit courts’ presumption of reasonableness for Guidelines sentences.  It is true that the Kimbrough Court “recognized that certain Guidelines do not take account of empirical data and national experience,” but absent further instruction from the Court, we cannot read Kimbrough to mandate wholesale, appellate-level reconception of the role of the Guidelines and review of the methodologies of the Sentencing Commission.  Whatever appropriate deviations it may permit or encourage at the discretion of the district judge, Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines.  To the contrary, rather than aggrandizing appellate courts and sanctioning analysis from on high, the thrust of recent Supreme Court decisions has been to affirm the traditional entrustment of sentencing to the discretion of district courts, close to the ground and more cognizant of the details of offender and offense that should be determinative of sentence.  Indeed, the very district court cases that Duarte cites in his critique of the re-entry sentencing guidelines are exemplary of how district courts use their discretion to apply guidelines to particular facts.

June 3, 2009 at 10:38 AM | Permalink


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