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November 23, 2009

Sixth Circuit panels splitting over many aspects of reasonableness review

Anyone longing for some juicy federal circuit court opinions on reasonableness review to discuss over the long weekend now need look no further than a couple of split panel rulings — dare I say turkeys? — handed down by the Sixth Circuit this morning.  Specifically, via US v. Petrus, No. 08-1706 (6th Cir. Nov. 23, 2009) (available here), and US v. Simmons, No. 07-3449 (6th Cir. Nov. 23, 2009) (available here), two different Sixth Circuit panels talk lots of turkey concerning both substantive and procedural reasonableness review after Booker and its progeny. 

Neither Petrus (which runs 17 pages) or Simmons (which runs 76 pages!) can be easily summarized, and thus I will be content here to quote a key section from the start of Judge Clay's potent 50-page dissent in Simmons:

Even more troubling [than doctrinal errors] is just how fundamentally unbalanced and unjust the approach endorsed by the majority is.  On the one hand, the majority is willing to speculate as to what the district court “appears” to have “implicitly” considered, while on the other hand faulting defense counsel for not “specifically” identifying the procedural errors to which she was objecting.  The majority also insists that the procedural rule confirmed in Vonner somehow eliminates the need for a contextual inquiry when determining the sufficiency of a defendant’s objection, despite the fact that Vonner explicitly requires us to conduct such a contextual review when evaluating the sufficiency of the district court’s sentencing pronouncement. See Vonner, 516 F.3d at 387 (explaining that a “lengthy explanation” of the sentence chosen may not be required in all cases “because ‘circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence’” (quoting Rita v. United States, 551 U.S. 338, 357 (2007)); see also Rita, 551 U.S. at 356 (“The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.”).

In both respects, the majority’s decision typifies a troubling imbalance that plagues our case law in this area.  It also reveals that the majority’s professed concern for clarity in this area is disingenuous.  If the majority truly was interested in adopting rules that will lead to a clear record for appeal, then its first order of business obviously should be to hold the district court accountable for failing to address Simmons’ primary, repeated, and nonfrivolous argument in favor of downward departure.  Instead, the majority bends over backward to guess at whether the court considered Simmons’ argument.  It makes no sense, and is fundamentally unfair, to place the burden for creating an adequate record for appeal on criminal defendants rather than district court judges.

Let me be clear: I acknowledge that we are bound to apply the rule that the en banc majority announced in Vonner, but I emphatically reject the assertion that Vonner requires the outcome reached by the majority.  The narrow scope of the majority’s inquiry and its insistence on a rigid application of the plain-error standard is contrary to the “common-sense” approach required under Vonner, and repeatedly confirmed in subsequent reported decisions.  If the majority is right, however, and Vonner requires either the inquiry undertaken or the outcome reached by the majority, then the time has come for this Court to reconsider the wisdom of our decision in Vonner.  And if this Court is unwilling to acknowledge its mistake, then perhaps the Supreme Court should intervene to rectify this imbalance.

Notably, the "swing" voter helping to make up the majority opinions in Petrus and Simmons  — both of which declare procedurally reasonable a sentence imposed in a procedurally questionable manner — both happen to be district judges sitting by designation.  Though I do not generally have a problem with district judges sitting by designation, I think there is a worrisome sort of conflict-of-interest for district judges to be very involved in defining a circuit court's standards for when district judges are sentencing in a reasonable manner. 

November 23, 2009 at 10:12 AM | Permalink


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I haven't finished these opinions but, being a practitioner in the Sixth, I do not understand why they have so many district judges who sit by designation. The Court has sixteen judges and many other senior judges, and none of the stats seem to indicate that they are overworked. Indeed, the Circuit is one of the most contentious and has more en banc cases than most others, many of which are the result of panels where a district judge forms the majority. For a circuit that lacks cohesion (both interpersonal and in legal terms), an easy fix is to get more panels where the whole panel is made up of actual sixth circuit judges.

It also presents a lot of difficulty for practitioners. You draw a panel with two circuit judges on opposite ends of the ideological spectrum, with no idea how the district judge might rule, and in any event your case might get en banc granted. That's not saving anyone time. And even the ones that don't have en banc granted end up just muddying the law. Again, this is not a knock on district judges, but the more judges you add to the mix the more incoherent and unruly the law becomes. If they reduced the number of district judges who sat on the Circuit by 40% I think it'd really help things.

Posted by: Greg | Nov 23, 2009 10:41:01 AM

Though I do not generally have a problem with district judges sitting by designation, I think there is a worrisome sort of conflict-of-interest for district judges to be very involved in defining a circuit court's standards for when district judges are sentencing in a reasonable manner.

This is a very interesting thought. How is all that different, though, from any typical case in which a district judge sits by designation? The courts of appeals are almost always reviewing decisions from district courts. And the issues raised on appeal almost always implicate discretionary standards of review...

Posted by: anonymous | Nov 23, 2009 5:01:39 PM

The Simmons decision is almost unfathomable. The only lesson a defense lawyer can draw is to repeat every objection made before sentence was imposed, and then critique the judge's ruling extemporaneously, including noting what the judge did not address, or else risk not preserving an issue. A ridiculous burden, when one considers that the defense has two weeks to consider objections to the presentence report, but no time to organize a challenge to what the judge did and did not do.

Regarding district judges sitting by assignment, I had the experience of having a 2-1 panel grant a 2254 writ in a murder case, only to reverse it 2-1 on rehearing. The district judge changed his vote without a word in either opinion. I often wondered what in chambers lobbying occurred between the opinions.

Posted by: John Minock | Nov 24, 2009 8:00:17 AM

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