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June 19, 2015

Split Eleventh Circuit panel discusses reasonableness review at great length

More than a full decade after the Supreme Court's Booker decision, federal circuit courts and judges continue to struggle with their post-Booker responsibility to review sentences for reasonableness.  That struggle is on full display today in the lengthy Eleventh Circuit panel ruling in US v. Rosales-Bruno, No. 12-15089 (11th Cir. June 19, 2015) (available here). The start of Chief Judge Carnes' opinion for the Court provide a crisp outline of the "sole issue" before the appellate court:

This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326.  In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir. 2012) (Rosales-Bruno I).  That error had increased Rosales-Bruno’s advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment.

On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment.  After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term.  That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment.  The sole issue in this appeal is whether that sentence is substantively unreasonable.

Chief Judge Carnes thereafter has a 50-page explanation for why he thinks the sentence is substantively reasonable.  In turn, Judge Wilson need 40 additional pages to provide a contrary view on the reasonableness of this sentence.  The dissent starts this way:

For illegally reentering the United States, a crime with no statutory minimum and a base Guidelines range of 0–6 months, Rosales-Bruno was sentenced to more than 7 years in prison. In imposing this sentence, the district court more than tripled the upper end of the applicable Guidelines range.  The justifications supporting this major variance are insufficient, and this sentence — the product of a clear error in judgment — is “greater than necessary[] to comply with the purposes set forth” in 18 U.S.C. § 3553.  See United States v. Irey, 612 F.3d 1160, 1187, 1189 (11th Cir. 2010) (en banc). Therefore, I dissent.

June 19, 2015 at 04:35 PM | Permalink


"why he thinks the sentence is substantively unreasonable."

You meant to say either "is NOT substantively unreasonable," or "is substantively reasonable."

Basically, the trial court gave the Court of Appeals the finger very blatantly, and two of the three judge's said, "fine." Typical, depressing work from the 11th Circuit.

Posted by: ohwilleke | Jun 19, 2015 4:53:00 PM

Thanks for the correction...

Posted by: Doug B. | Jun 19, 2015 5:17:37 PM

If Booker along with the following decisions affirming that district court judges can sentence according to their own thoughts about what makes a reasonable outcome the discretion afforded certainly needs to act as a grant to district court judges and not just a ratchet toward lower sentences. Especially with the cases saying that district court judges are free to completely ignore what the sentencing commission says about certain crimes because they simply disagree I would think reasonableness review needs to come something very close to review for abuse of discretion.

Posted by: Soronel Haetir | Jun 19, 2015 6:32:50 PM

Mr. Haetir has it. Booker threw the guidelines into a closet. Kimbrough went in and tied the hands and feet. Innumerable appellate decisions put a gag in the mouth. And the commission, with their ceaseless tinkering and half-baked guidance free amendments, have made many judges feel fine about ignoring the muffled screams for relevance.

Posted by: USPO | Jun 19, 2015 7:20:55 PM

Once again. Reason is a technical word in Scholasticism. It is the ability to perceive God. It is a better guide to moral decisions than intellect. The latter is easily mislead by the Fall from Eden and the deadly sins. The New Testament is the best guide to the will of God. That book is the biography of one man, Jesus. The terms, reasonable, reasonable person, is lawyer euphemism for Jesus. I will ask if Prof. Berman was ever told during his Harvard Law education the definition of the word, reasonable. He likely was not, for good reason. It is a lawless violation of the Establishment Clause, and unconstitutional in our secular nation. Prof. Volokh, a national expert on the First Amendment, blocked me from his blog after a brief explanation of the concept. Not only did he not know about this high school stuff, he did not want to know anything about it. H then added a lengthy policy statement about kicking people off. Curse words, personalized death threats, and links to sex with animals sites, no problem for this sophisticated lawyer victim of cult indoctrination. Talk about the word, reasonable, gone.

I recall it from 10th Grade World History. My high school education has not been erased as his has by 1L. That is why no lawyer will ever take me on in a debate. They will get crushed by that high school education, totally excised by the criminal cult indoctrination of 1L. He may have even learned this stuff in greater depth during college freshman Western Civ 101, Fall term. Goners, excised by the cult.

Posted by: Supremacy Claus | Jun 19, 2015 7:54:44 PM

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