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May 6, 2012

Making a full-throated pitch for SCOTUS to again address reasonableness review

Regular readers may know that I am generally underwhelmed with how some circuits have approached reasonableness review, and I have long been troubled with the disinclination of some circuit to review rigorously within-Guideline sentences. Driven in part by those concerns, I have authored an amicus brief support in cert in the US v. Rubashkin case in which I lament the state of reasonableness review and urge SCOTUS involvement. The full amicus (which I filed aided by the fine folks at the Washington Legal Foundation) can be downloaded below, and here are excerpts from the state of the argument:

Problematically, in the half-decade since this Court’s rulings in Rita, Gall, and Kimbrough v. United States, 552 U.S. 85 (2007), the circuit courts have developed inconsistent and sometimes constitutionally suspect approaches to reasonableness review.  Some circuits now regularly reverse sentences as procedurally unreasonable; others almost never do. Some circuits now regularly engage with the statutory factors of § 3553(a) when reviewing for substantive reasonableness; others almost never do.  Accordingly, reasonableness review is not helping to “iron out sentencing differences” nationwide, but rather is exacerbating these differences.  Tellingly, in recent official testimony, the U.S. Department of Justice has lamented the circuits’ disparate approaches to reasonableness review, and the U.S. Sentencing Commission has urged Congress to amend the SRA to resolve circuit splits over the application of reasonableness review.  And many federal judges and commentators have asserted that appellate review of sentences — and all of modern federal sentencing under advisory Guidelines — would benefit significantly from this Court’s further guidance on the contours of reasonableness review.

Reasonableness review has been distinctly dysfunctional in those circuits that have adopted a so-called “presumption of reasonableness” for reviewing within-Guideline sentences.  Curiously, there has yet to be a single appellate ruling that expounds upon — or, for that matter, even discusses — when and how this “presumption” can be rebutted or the legal consequences of any (phantom) rebuttal.  Rather than function as the true “presumption” this Court outlined in Rita, the “presumption of reasonableness” has been used to convert the Guidelines into a sentencing safe-harbor, making all within-Guideline sentences effectively immune from substantive reasonableness review.  (Indeed, despite the appeal of thousands of within-Guideline sentences since Rita, not one single within-Guideline sentence has been found substantively unreasonable in the “presumption” circuits.)  That some circuits treat within-Guideline sentences as per se reasonable not only conflicts with this Court’s clear holding in Rita and Congress’s instructions in § 3553(a), but also raises serious constitutional concerns in light of this Court’s Sixth Amendment jurisprudence in Booker and its progeny....

[D]ue to the Eighth Circuit’s routine of always affirming within-Guideline sentences, the district court approached the sentencing of Mr. Rubashkin as if only the Guidelines mattered; in turn, the Eighth Circuit affirmed an extreme prison sentence for a nonviolent first offender using the rubber-stamp approach to reasonableness review it has adopted only for within-Guideline sentences.  This case thus highlights how some (but not all) district courts are still disregarding the statutory instructions of § 3553(a) that Booker made central to federal sentencing, and how some (but not all) circuit courts are disregarding this Court’s instructions for reasonableness review set forth in Rita, Gall, an Kimbrough.  Absent this Court’s intervention, the rulings below will stand as a high-profile reminder that district and circuit courts can feel free to treat Booker and its progeny as merely a lengthy “tale told by [the Justices], full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act V, Scene 5.

Download WLF-Rubashkin v United States

May 6, 2012 at 10:41 PM | Permalink


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To the extent that appeals courts are not overturning sentences as procedurally unreasonable due to a lack of explanation I agree with you. They should be overturning them.

When it comes to substantive reasonableness I think your case is weaker. I think the distinction between a "safe harbor" and a "presumption of reasonableness" is exceedingly thin, if it exists at all. I think it's a problematic distinction given the lack of explanation.

In short, I agree that some courts are not giving due consideration to 3553(a) factors for within-guideline sentences. But until they tell such courts tell us why that's the case, I'm not willing to leap to the conclusion that they are doing it for suspect reasons.

Posted by: Daniel | May 7, 2012 2:35:44 AM

Well-phrased argument. But is it entirely forthcoming to criticize the 8th Circuit for its "routine of always affirming within-Guidelines sentences"? To my knowledge, Post-Gall the 8th Circuit has a routine of finding all sentences substantively reasonable, whether above, below, or within guidelines. The only exception I am aware of is United States v. Kane, 639 F.3d 1121 (8th Cir. 2011), a case that is arguably sui generis in terms of the horrific criminal conduct. The circuit's reluctance to engage in substantive reasonableness review is broader than you have asserted.

Posted by: eagle eye | May 7, 2012 11:22:41 AM

I'm a defense attorney, but I'm curious, for those who think that the Courts of Appeals should be more "rigorous" with reasonableness review, what you think they should do?

As I see it, district judges are in a far better position to sentence defendants than appellate courts. They see the witnesses, they see the defendant, they work with the prosecutors and probation officers regularly and therefore know better what their biases are. They often speak to jurors, and they certainly have they ability to read juries (when a case goes to trial), unlike the Courts of Appeals.

In the absence of that kind of specific knowledge, CoA judges are operating almost in a vacuum. They have a cold record, the Guidelines, and that's it. No human interactions. No history with many of the people involved. They don't possess the faculty of reason to any higher degree than district judges.

When Gall came out, I thought that "reasonableness" review would be a ratchet to increase sentences that are below the Guidelines, or at least to try to institutionally keep them within the Guideliness. Booker freed up the district judges, but strict reasonableness review will just put people who are in an inferior position to make a judgment back in charge (in some circuits, that's where they're heading).

I don't understand how anyone, aside from hardcore prosecutors who want a binding "Guidelines" system anyway, wants "rigorous" reasonableness review from appellate courts.

Posted by: Mark Pickrell | May 7, 2012 1:41:57 PM

No sentence is reasonable unless it responds separately to each provocation. Some are absolute, while others are variable. This is primarily an administrative problem. The Supreme Court should say so.

Posted by: Tom McGee | May 7, 2012 2:21:35 PM


Exactly. I think the significant weakness in Doug's brief is that he leaps from what is an administrative/procedural problem to a substantive problem and I don't see that leap as justified. At least not yet.


There is a sense in which CoA appeals judges are in an inferior position and a sense in which the are in a superior position to a DJ. They are in an inferior position insofar as your third paragraph points out regarding a cold record etc. But CoA judges are in a superior position in the sense that they have a much better overview of what is happening in their circuit than a DJ and are thereby better able assure that there is at least a rough equivalent between the sentences of the different district judges for similar crimes/circumstances.

I don't think anyone wants the CoA to be second-guessing DJs as a matter of practice. At the same time, they need to take their responsibility for assessing sentencing appeals seriously and not simply rubber-stamp the DJ either.

Posted by: Daniel | May 7, 2012 2:55:32 PM

Terrific brief.

Part of the problem in the Eighth Circuit is its haphazard employment of "plain error" review to short-circuit review of procedural sentencing errors -- a practice virtually unheard of prior to Gall when the government was challenging below guideline sentences left and right and one the circuit very rarely applies to government sentencing appeals.

Posted by: David | May 7, 2012 2:59:47 PM

Thanks for your comment, Daniel. I must admit that I don't even buy the "they have a better view of sentences within their circuits" argument. For starters, court of appeals judges don't have the factual basis to determine the extent to which two defendants in two different districts have committed their crimes under similar circumstances. District judges have the same capacity as appellate judges to keep abreast of sentencing trends in their circuits -- and, obviously, nationwide. Also, the subjective variability of individual district judges applies equally to appellate judges. Because panels are only composed of three judges, statistically there's not even a great likelihood of moderating subjective randomness.

That being said, there IS a useful role of the Sentencing Commission in examining nationwide variances from sentencing ranges and in providing that information to district judges for them to consider at sentencing. If district judges tend to go below the Guidelines in certain cases, tell them. If district judges tend to go above the Guidelines in other cases, tell them. More agglomerated information at the sentencing stage can help the process.

But granting more power to those with an institutionally inferior vantage point does not help the process. That's the greatest weakness, in my opinion, in a "rigorous" reasonableness review system.

This issue, ironically, may end up helping Rubashkin. While the professor's brief focuses on reasonableness review, the cert. petition focuses on some arguably peculiar facets of the district judge's involvement with law enforcement officials. (To be fair to the government, there appears to be a disagreement about the extent and nature of the judge's communications with the prosecution prior to Rubashkin's arrest.) If reasonableness appellate review is not going to be a strong brake on district court judges, then there is a greater need to review deviations from good district-court procedures. Rubashkin's attorneys are fighting hard to say that bad district-court procedures were at play here.

Posted by: Mark Pickrell | May 7, 2012 3:33:04 PM

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