Wednesday, February 08, 2006

Williams' "Per Se" Rule Clarified

The Sixth Circuit's caselaw on the scope of "reasonbleness" review was advancing in a fairly straight line until the release of United States v. Williams, __ F.3d __, No. 05-5416 (6th Cir. 2006), on January 31, 2006, appeared to throw a wrench in the works by announcing that a sentence within the Guidelines range would heretofore be considered per se reasonable. In a decision released today (February 8, 2006), however, another panel of the Court clarifies the holding in Williams. United States v. Foreman, No. 04-2450 (6th Cir. 2/8/06) (found here, http://caselaw.lp.findlaw.com/data2/circs/6th/042450p.pdf) addresses a Booker remand and concludes by holding the following:

Finally, in United States v. Williams, we held that a Guidelines sentence is afforded a
presumption of reasonableness. – F.3d –, No. 05-5416 (6th Cir. January 31, 2006). Although this statement seems to imply some sort of elevated stature to the Guidelines, it is in fact rather unimportant. Williams does not mean that a sentence outside of the Guidelines range – either higher or lower – is presumptively unreasonable. It is not. Williams does not mean that a Guidelines sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors. A sentence within the Guidelines carries with it no implication that the district court considered the 3553(a) factors if it is not clear from the record, because, of course, under the Guidelines as mandatory, a district court was not required to consider the section 3553(a) factors. It would be unrealistic to now claim that a Guideline sentence implies consideration of those factors.

Moreover, Williams does not mean that a sentence within the Guidelines is reasonable if there is no evidence that the district court followed its statutory mandate to "impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing in section 3553(a)(2). Nor is it an excuse for an appellate court to abdicate any semblance of meaningful review. Appellate review is more important because the Guidelines are no longer mandatory. Under the mandatory Guideline system, appellate review was not integral to assuring uniformity. Now, with the advisory Guidelines and more sentencing variables, appellate review is all the more important in assuring uniformity and reducing sentencing disparities across the board. See S. REP. NO. 98-225, at 151 (1983); United States v. Mickelson, – F.3d –, 2006 WL 27687 (8th Cir. January 6, 2006).

United States v. (Marco) Foreman, No. 04-2450 (6th Cir. 2/8/06), Slip Op. at pp. 5-6.

While this decision is more in keeping with the Circuit's decisions before Williams having to do with the scope of review for "reasonableness", and is, therefore, helpful in soothing the waters that Williams had disturbed, it appears to hold that Williams doesn't say what it says. While one might be tempted to argue that Foreman violates the Court's rule that one panel cannot overrule the decision of another panel (only the en banc court can), see, Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir. 1985); and Meeks v. Illinois Central Gulf R.R., 738 F.2d 748, 751 (6th Cir. 1984), there is an argument that Williams violated the rule first and that Foreman only restores the proper balance. (See, Randy Alden's January 31st post "Peer Pressure? Guidelines Presumptively Reasonable in the Sixth Circuit" and comment by this author that follows) The Foreman decision is consistent with the Court's earlier decisions in United States v. Webb, 403 F.3d 373, 385 fn 9 (6th Cir. 7/19/05), and United States v. McBride, __ F.3d __, 2006 WL 89159 (6th Cir. 1/17/06), in describing "reasonableness" review as a process related to the 3553(a) factors, and not one that is overly-deferential to the Guidelines.

What all of this may presage is an en banc review of Williams. It is anticipate that a petition for rehearing will be filed in Williams and the decision in Foreman may make it more likely than not that the full court would be willing to grant rehearing to clear up any lingering confusion. The refusal to grant rehearing en banc could be taken as approval of Foreman's clarification of the Williams ruling. Stay tuned for more on that!

Footnote 1 of the decision in Foreman contains an important point for keeping sentencings in district court in perspective: "It is worth noting that a district court’s job is not to impose a 'reasonable' sentence. Rather, a district court’s mandate is to impose 'a sentence sufficient, but not greater than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task." Foreman, Slip Op. at p. 5.

5 comments:

Dennis Terez said...

An interesting situation if rehearing en banc does not occur in Williams. Might we still have a split in the Sixth Circuit as to what Booker really means? In other words, could we analyze this split in the court not only as divided views over whether the guidelines are presumptively reasonable, but also as divided views over what Booker really is supposed to do? The opinions, beyond creating confusion in our circuit, are screaming for clarification from the Supreme Court itself. (AFPD, NDOH)

Caryll Alpert said...

Not to be overlooked is the Foreman court's analysis of whether a Tennessee fleeing conviction is a crime of violence. The court focuses on what it means to pose a serious potential risk of physical injury, emphasis on the use of the modifier "serious":

"According to the Guidelines, the potential risk must be SERIOUS in order for the offense to be a 'crime of violence.' Therefore, the potential risk can not be based on conjecture, but must be 'weighty, important, dangerous, or potentially resultign in death or other severe consequences.'"

Along with the recent Supreme Court case of Leocal v. Ashcroft, this analysis helps put the brakes on further broadening what constitutes a 'crime of violence'.

Paul Nelson said...

FYI -- I received a motion from the government asking for an extension of time to file a petition for rehearing or for rehearing en banc in Foreman. The SG needs more time to decide whether to seek review by the full court. I will update as the case progresses.

Also, in response to Caryll's post, I have been arguing for quite a while that the word "serious" must be there for a reason and that there has to be more than just a "potential" risk of injury to qualify as a crime of violence. I finally had a panel that agreed.

Paul Nelson said...

The March 24, 2006, deadline for filing a petition for rehearing en banc passed. I confirmed today with the AUSA on the case that the Solicitor General decided not to seek rehearing en banc.

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