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February 11, 2010

Fourth Circuit reverses two notable sentences as (procedurally?) unreasonable

The Fourth Circuit has two notable sentencing reversals today, in US v. Morace, No. 09-4007 (4th Cir. Feb. 11, 2010) (available here) and US v. v. Herder, No. 08-4420 (4th Cir. Feb. 11, 2010) (available here). 

In Morace, the government prevails in its appeal of a below-guideline sentence of probation for an offense of possession of child porn.  In Herder, the defendant prevails in his appeal of a within-guideline sentence of 41 months in prison for a drug offense involving a small amount of crack.  In both cases, it is fair to surmise that the reviewing panel is not truly convinced of the substantive justice of the sentence imposed; but, in both cases, the basis for the reversal is formally procedural unreasonableness. 

I see both these cases as further examples of circuit courts being much more willing to reverse a sentence on purported procedural grounds rather than saying that the district court reaching a substantively unreasonable sentencing outcome.

February 11, 2010 at 06:43 PM | Permalink


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Herder is proof positive of how incomprehensible and inconsistent Gall is. Supposedly Gall held that "proportionality review" imposed a greater standard of review on some sentences than on others, and that such an approach is inconsistent with the abuse-of-discretion standard. At least that's what the holding purports to be.

But then, as the Fourth Circuit notes, the same opinion instructs an appellate court it "must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance." Gall at 50. A major departure from the advisory range "should be supported by a more significant justification than a minor one." AND HOW IS THAT NOT PROPORTIONALITY REVIEW?!

Now let's look at how Circuit are applying this holding, which again, purports to do away with proportionality review. In footnote 3 of Herder, the parties are arguing over whether a variance is "major". Given that the Court held the variance was "major," on page 11 they're arguing whether the reasons were "sufficiently compelling." Isn't this proportionality review?

Ultimately, I agree that the district court's probationary sentence in Herder probably needed better explanation. But that belief stems from my overall feeling that so long as a sentence is well-reasoned and supported by thorough explanation, it should be affirmed. If it's not, it should be reversed. But that feeling of mine goes for both Guideline and non-Guideline sentences. Under current jurisprudence, however, this type of explanation does not occur with Guideline sentences because Gall says "not much needs to be said." Yet, at the same time, a district court is not to presume a GL sentence. Does this make sense?

Appellate sentencing review is filled with conflicting and often confusing principles. In my opinion, what it comes down to is that when an appellate panel feels a sentence is too low, it reverses on procedural grounds. Procedural reasonableness is nothing more than substantive reasonableness in disguise.

Posted by: DEJ | Feb 12, 2010 12:12:49 AM

Sorry my previous post was meant to reference the Court's opinion in Morace.

As far as Herder is concerned, I think it proves my point that procedural reasonableness is substantive review in disguise. I am glad to see the Court remand a case where the District Court clearly presumed a Guideline sentence. Yet, if this were anything but a crack case (where everyone, including the Commission knows the GL is too high), would the Circuit have reversed? As a matter of principle, I hope so. But, I think Herder is more driven by the fact the crack GL (even at a 67:1 ratio) is still too harsh.

Posted by: DEJ | Feb 12, 2010 12:21:08 AM


I agree with you that courts are treating procedural reasonableness as substantive review in disguise. But I don't think Gall is to blame. I think two factors are working here. The first is that so many judges are used to doing proportionality review that they don't know how not do it and so they construe Gall as supporting proportionality review because it's easier than the tough work. The second reason is that here are lots of judges who don't agree with Gall on substantive grounds; they don't agree with giving more discretion to the DJ and/or resent being put in the position of having to deal with the fallout from doing substantive review.


More than a year and a half ago when in a rush of enthusiasm I had an idea of doing a blog this was one of the few issues I actually addressed. You can read that here: http://tiny.cc/PN18L

Posted by: Daniel | Feb 12, 2010 11:04:57 AM

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