"Reasonableness" Dreams of Booker, Bullfrogs, and Wheelbarrows

United States v. McBride, No. 04-4347 (6th Cir. Jan. 17, 2006) (opinion available here) is the latest Sixth Circuit discussion of Booker reasonableness review. The import of this opinion was nicely captured by Prof. Berman when he wrote: "McBride covers a lot of important basic ground concerning the ground rules for reasonableness review, and does so in a cogent and engaging way." I urge those who haven't before, to got to Prof. Berman's award-winning blog and review the commentary on McBride, which is available here.

In this opinion, written by Circuit Judge Martin, the McBride panel begins by finding the Booker error in the case, harmless, because the district court announced an identical alternative sentence. Judge Martin then described the current state of post-Booker issues among the circuits in a unique comparison. He wrote:

Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow. The courts have particularly struggled to -- and often failed at -- properly applying the remedial portion of Booker along with the remedy. One murky area is what to do about the pre-Booker concept of "departures" under the Guidelines now that the Guidelines are merely advisory.

The main issue in McBride was whether a district court's refusal to grant a downward departure under the sentencing guidelines was reviewable on appeal. In discussing United States v. Puckett, 422 F.3d 340 (6th Cir. 2005), the panel held that Puckett does not prevent the court of appeals from reviewing "a defendant's claim that his sentence is excessive based on the district court's unreasonable analysis of the section 3553(a) factors in their totality." Puckett only precludes the court from reviewing "the narrow determination of a denial of a Chapter 5 Guideline departure within the context of the Guideline calculation."

Judge Martin went on to describe how a district court must still determine the appropriate advisory guideline range, to include departures, and then proceed to consider the statutory factors and arrive at a reasonable sentence. He wrote:

Before Booker, we reviewed the district court's sentence to determine whether it properly calculated and applied the Guidelines. Now when a district court imposes and we review a sentence for reasonableness, the focal point is on 18 U.S.C. § 3553(a). In section 3553(a), there are numerous factors for a court to consider, and under Booker's remedial holding, the Sentencing Guideline range is one of those factors. That is, while the Guidelines remain important, they are now just one of the numerous factors that a district court must consider when sentencing a defendant.

An important point to note in the opinion is what is stated about the scope of reasonableness review. Judge Martin wrote:

Once the appropriate advisory Guideline range is calculated, the district court throws this ingredient into the section 3553(a) mix. Considering, as Booker requires, all of the relevant section 3553(a) factors, including the Guideline range, the district court then imposes a sentence. This sentence we may -- and Booker requires us to -- review for reasonableness. See Webb, 403 F.3d at 383-85 (discussing reasonableness review). This is so, even if the district court rejects a defendant's claim for a lesser sentence in light of the section 3553(a) factors.

This opinion suggests that the court of appeals is obligated to review each sentence for reasonableness, in every case, absent a valid appellate waiver. Two practical lessons can be taken from this opinion. First, Practitioners should note this opinion to the sentencing judge in urging a consideration of all of the statutory factors and the advisory guideline range. This opinion arms practitioners with the argument that the advisory sentencing guidelines constitute one of the factors, not the most important factor, in sentencing.

Second, this opinion suggests that the sentencing hearing/record is more crucial than ever on appeal. If the court of appeals is going to make an independent determination of whether a sentence is reasonable, the record must be fully developed for that review.