Friday, May 19, 2006

"Ding Dong the Witch is dead?"

The trend of late in the Sixth Circuit Court of Appeals has been to cite to the "rebuttable presumption" language of United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) when affirming a criminal sentence upon appellate review, while still examining the sentencing process and findings of the district court. This reasoning has created confusion in the standard for appellate review of criminal sentences in the Sixth Circuit and has led many to question whether there is a split within the Circuit with respect to the correct standard. (See Sumter Camp's post "Williams' 'Per Se' Rule Clarified" February 8, 2006).

Just one of a number of examples of this confusion exists in the unreported case of United States v. John Jackson, 2006 WL 1208063, *1+, 2006 Fed.App. 0298N, 0298N+ (6th Cir. May 1, 2006). In this case, the defendant's sentence was affirmed over the defendant's claim that the "rebuttable presumption" was "overcome." The defendant argued that the presumption had been rebutted "because the court did not duly 'consider' the sentencing factors listed in 18 U.S.C. § 3553." In affirming the sentence, the Court cited to Williams, and stated: "[a]s this sentence is within the advisory guidelines range, it is credited with a rebuttable presumption of reasonableness." Yet, the panel still examined the district court's review process and reasons for imposing the sentence and determined that the district court had "clearly articulatet[ed] the reasons for the sentence imposed."

Perhaps today's opinion in United States v. Daniel Morris, -- F.3d --, No. 05-1623 (6th Cir. May 19, 2006), (opinion available here), sounds the death knell for the "rebuttable presumption." In a well reasoned and articulated concurrence, Judge Clay wrote:

The majority opinion cites United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), for the proposition that a sentence within the Guidelines range creates a "rebuttable presumption" of reasonableness. While the majority goes on to note that this "rebuttable presumption" does not relieve the district court of its obligation to articulate its sentencing rationale, I believe that the Williams' "rebuttable presumption" language is surplusage in light of controlling Sixth Circuit precedent that the district court must consider the §3553 factors and provide this Court with some indication that it has properly done so. See United States v. Webb, 403 F.3d 373, 385 n.8, n.9 (6th Cir. 2005)(requiring the district court to provide a reasoned explanation for its sentence and rejecting the proposition that a sentence within Guidelines ranges is per se reasonable). The Guidelines range is only one of a number of factors which §3553 requires sentencing judges to consider. Without an adequate statement from the sentencing court that it properly considered other relevant §3553 factors, and not just the Guidelines range, a sentence should not be credited with a "rebuttable presumption" of reasonableness.
Judge Clay continued by citing to Judge Martin's explanation of "Williams' proper place" in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006). Judge Clay concluded his concurrence with a forward looking desire for future panels to essentially abandon the "rebuttable presumption" when conducting appellate review of criminal sentences in the Sixth Circuit. Judge Clay wrote:

Hopefully, future panels of this Court will not attempt to use the "rebuttable presumption" language of Williams as semantic leverage simply to avoid the considered appellate review we are duty-bound to perform. It should be remembered that Circuit precedent which antedates Williams requires district courts to consider all relevant §3553 factors and make a record which provides this Court with some indication that such consideration was properly undertaken. See Jackson, 408 F.3d 305; Webb, 403 F.3d at 385 n.8, n.9.
The future of the "rebuttable presumption" in the Sixth Circuit continues to dim. Hopefully, as more panels conduct appellate review of criminal sentences, the "rebuttable presumption" will die, or at least fade away. . . .


Paul Nelson said...

The Sixth Circuit, intentionally or not, continues to send a very strong signal to the district courts that a sentence in the guideline range will not be reversed. As promising as statements such as those made by Judge Clay and a few others are, the presumption of reasonableness remains a major impediment to meaningful appellate review.

Richard Smith-Monahan said...

Is anyone really intending to appeal a lot of sentences imposed within a correctly calculated guideline range? It seems to me that whether the Sixth Circuit calls it a "presumption of reasonableness" or not, as a practical matter, it would be an extraodinarily unusual case where the court would reverse an in-guideline-range sentence at any rate....