Wednesday, August 16, 2006

Retreat Toward Mandatory Guidelines - Part II

The next round of post-Booker litigation didn’t have to wait long – a day, in fact. In United States v. Cage, No. 05-5241 (6th Cir. 8/15/06), a panel of the Court finds that a "district court does not err in viewing the Guidelines as a presumptively reasonable starting point and ‘considering the Sentencing Guidelines and the Guideline ranges before the court does anything else.’" Slip p. 6.

At issue was the sentencing of the less-than-sympathetic Ms. Cage [sorry, April and Ed] who, while awaiting sentencing on her $132,000 worth of credit card and access device fraud committed another $108,126 worth of additional fraud. In imposing a sentence of 37 months the district court stated, "Under Booker, there is a presumption in favor of the Guidelines because the Guidelines express the public policy and the intention of Congress as to the court’s authority of these matters and the considerations that the court should address. And I think that . . . a sentence under the Guidelines would be a reasonable sentence." Slip p. 3. This appeal followed.

In responding to appellant’s argument that the district court erred by referring to the appellate standard of reasonableness in setting the sentence, the majority holds that her claim is foreclosed by the Court’s decision in United States v. Williams, 436 F.3d 706 (6th Cir. 2006), in which the presumption of reasonableness was first announced. The majority then spends a fair amount of ink defending the presumption before finding that the district court did not err in citing the reasonableness standard as appropriate for sentencing court consideration. As a final kick, the majority notes, "Cage has failed to identify a single factor that might support her claim that her sentence of 37 months in prison is unreasonable under the circumstances." Slip p. 7.

The dissent comes out gunning: "The majority opinion in this case represents the latest step in an ongoing push within this Circuit to subvert [Booker] and to make the sentencing Guidelines de facto mandatory. . . . The majority’s holding in this case directly contravenes Booker, 18 U.S.C. § 3553(a), and this Court’s prior holdings that district courts are to consider all the § 3553(a) factors in arriving at a sentence sufficient to, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a)." Slip p. 8. (emphasis in original) The dissent, in footnote 2, directly challenges the binding effect of Williams given the refusal by the Court in Webb to adopt a per se reasonableness rule. The dissent would hold the sentence procedurally unreasonable due to the district court’s reliance on the appellate standard of reasonableness. "This method of calculating Defendant’s sentence violated Booker in that the district court mistakenly believed that it was required to start with a Guidelines sentence and could only depart upward or downward if some other § 3553(a) factor, or combination thereof, compelled a departure. That is not now, nor has it ever been, this Court’s understanding or treatment of the Guidelines post-Booker." Slip p. 11.

This most recent series of cases mirrors the struggle nationally as the Courts of Appeals try to determine what the Supreme Court’s decision in Booker means on a practical, day-to-day level. As highlighted in the Sixth Circuit’s latest series of cases, the fight is between those who think that federal criminal sentencing is business-as-usual with the Guidelines (and a nod and a wink to "advisory") and those who are taking Booker at its word that the Guidelines are just one factor among equals and are trying to fashion a sentencing approach that includes the Guidelines, but also focuses more on the defendant as an individual than the Guidelines ever did and gives more flexibility to the district court’s to craft an appropriate sentence. This leaves the federal criminal defense practitioner (or prosecutor) in a bind as the procedures and standards change from day to day. The only thing we know for sure is that Cage won’t be the last word in this struggle.

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