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February 24, 2019

Another reminder that substantive reasonableness review has very little bite

A helpful reader made sure I saw a notable little federal sentencing ruling handed down by an Eighth Circuit panel in US v. Johnson, No. 17-2572 (8th Cir. Feb 22, 2019) (available here). The start of the main opinion sets out the basics for the reasonableness review discussion that follows:

Michael Johnson pleaded guilty in 2016 to possession with intent to distribute cocaine base.  Police arrested Johnson after a traffic stop and found him in possession of two baggies that contained rocks of crack cocaine.  A search of Johnson’s pocket discovered 22.9 grams of cocaine base and $895 in cash.

At sentencing, the district court calculated an advisory guideline range of 57 to 71 months’ imprisonment, but concluded that several factors justified an upward variance from the advisory range and imposed a sentence of 204 months.

The panel ultimately rejects the defendant's various claims that his sentence is unreasonable, but Judge Grasz write separately to lament the conclusion.  Here are excerpts from a short opinion worth reading in full:

While I believe the sentence here was excessive, I cannot conclude it is reversible error under the standard of review mandated by Supreme Court precedent.  This precedent makes the substantive reasonableness of a sentence nearly unassailable on appeal and renders the role of this court in that regard somewhat akin to a rubber stamp in all but the rarest cases....

So, what is left for appellate courts to review in terms of substantive reasonableness in sentencing when they cannot meaningfully police compliance with the Guidelines? Of course, sentences must still comply with the sentencing factors in 18 U.S.C. § 3553(a), but these “sentencing factors . . . are so broad that they impose few real restraints on sentencing judges.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  Thus, appellate review of substantive reasonableness is usually an exercise in futility.

There is no doubt that maximizing sentencing court discretion has its benefits.  See, e.g.,Kimbrough, 552 U.S. at 101–05 (allowing sentencing courts to depart based on a disagreement with the Guidelines’ unjustified disparity in treatment of powder and crack cocaine).  But the downside, in other contexts, is the resulting disparities and inconsistencies in sentencing. In the Sentencing Reform Act, Congress sought to reduce sentencing disparities by placing some limitations on the discretion of sentencing courts by means of the mandatory Guidelines.  However, “[i]t is unrealistic to think [the goal of reducing sentencing disparities] can be achieved over the long term if sentencing judges need only give lipservice to the Guidelines.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  In reality, the result of Gall and Kimbrough is that “district judges have regained most of the unconstrained discretion that Congress eliminated in 1984.” Feemster, 572 F.3d at 470 (Colloton, J., concurring).

February 24, 2019 at 05:42 PM | Permalink

Comments

One of these days, we are going to admit that uniformity of sentencing is impossible and that attempting to impose uniformity by a set of guidelines that cannot possibly take into account the various fact patterns presented by defendants and crimes are just going to make the non-uniformity more arbitrary. And aside from that, you have guidelines that are idiotic ab initio, well it's just a bleeding mess.

Posted by: Fat Bastard | Feb 24, 2019 10:36:27 PM

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