Wednesday, April 06, 2005

Tangled up in Webb

United States v. Webb, No. 03-6110 (6th Cir. April 6, 2005).
In this must-read published opinion, the Sixth Circuit addresses some of the previously unanswered questions arising in the aftermath of Booker: (1) what is the impact of joint recommendations and stipulations in a pre-Booker plea agreement; (2) when is the rare instance when Booker error might not be prejudicial to the defendant; and (3) how do we start conceptualizing the reasonableness of the sentence imposed by the district court.

Facts: Webb pled guilty to knowing possession of a machine gun in violation of 18 U.S.C. 922(0) . He stipulated that he knowingly possessed a machine gun in a duffle bag. As part of his plea agreement, the parties jointly recommended a base offense level of 22, a 3 level increase for destructive device, and a 2 level increase for stolen firearm.

No Sixth Amendment Violation: The court found that because Webb admitted in the plea agreement that the machine gun was a destructive device and was stolen, no Sixth Amendment violation arose from the district court's reliance on those facts to enhance Webb's sentence.

Plain Error, But No Prejudice: The district court plainly did err by determining Webb's sentence under the assumption that the sentencing guidelines were mandatory. Further, as held in US v. Barnett , prejudice should be presumed where a defendant has been sentenced under the assumption that the guidelines are mandatory rather than advisory. In Webb's case, however, the presumption of prejudice is rebutted by the clear and specific evidence in this record: (1) Webb merely received the sentence he bargainned for with the specific recommendations in his agreement; (2) at sentencing, the district court referred to Webb as a "menace" and considered an upward departure; and (3) the court sentenced Webb to the maximum sentence possible in the applicable guideline range. Thus, this is an "exceptional case where the record contains clear and specific evidence that the district court would not have sentenced Webb to a lower sentence under an advisory Guidelines regime,"and the presumption of prejudice has been rebutted.

Reasonableness of Sentence: In determining the reasonableness of the sentence imposed, the appellate court must consider the length of the sentence, the factors evaluated, and the procedures employed by the district court in reaching its sentence. So, a sentence is unreasonable if the district court fails to consider the applicable guidelines range or other factors listed under 18 U.S.C. 3553(a). In Webb, the Sixth Circuit declined to set out a rigid definition of "reasonable" or specific procedures that a district judge must employ. Finding that nothing suggested that Webb's sentence was unreasonable, the court noted that the district judge properly calculated and considered the guidelines; properly considered other pertinent 3553(a) factors; took into account other characteristics of Webb such as his lack of education and substance abuse problems; and did not appear to select the sentence arbitrarily, base the sentence on impermissible factors, or give unreasonable weight to any pertinent factor.

Guideline Sentence is Not Per-Se "Reasonable:" Footnote 9 indicates that "While we decline to indicate what weight the district courts must give to the appropriate Guidelines range, or any other Section 3553(a) factor, we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of "reasonableness". . . but is also inconsistent with the Supreme Court's decision in Booker, as such a standard 'would effectively re-institute mandatory adherence to the Guidelines.'"

Validity of Appeal Waiver: Compare Webb, in which the panel permits Webb to challenge the validity his guilty plea despite an apparent appeal waiver, to US v. McGilvery, No. 04-1013 (6th Cir. April 5, 2005), in which the panel admonishes the parties for taking up time and resources on an appeal alleging that the government breached the plea agreement, when the defendant had waived his right to appeal as part of a plea agreement.