Davis had originally been sentenced to 33 months (the low end of the Guideline range), but on appeal his sentence was reversed due to an error in the version of the Guidelines that had been used and pursuant to Booker. On remand, in what the Court of Appeals describes as "a thorough application of the § 3553(a) factors by an experienced and well-regarded district court jurist," Davis was sentenced to 1 day of imprisonment, three years of supervised release (with one year of home detention) and 100 hours of public service. The factors that led the district court to this sentence were the fact that the criminal conduct had occurred 14 years before sentencing, the defendant was over 70 years old and retired, rehabilitation was not an issue, the lack of sentencing disparity due to the paucity of 70-year-old people brought before the court 14 years after the offense, that he was no danger to the public, and others.
After noting that, post-Booker, it is the duty of the Courts of Appeals to try to eliminate unwarranted disparities circuit-wide, the panel, writing through Judge Sutton, first adopts an appellate review standard that starts with the Guidelines sentence. Slip Op. at 5. (The logic to this is based on Judge Sutton’s concurrence in United States v. Buchanan, 449 F.3d 731 (6th Cir. 5/26/06), in which he argues that the Guidelines account for most, if not all, of the 3553(a) factors.) The majority then notes that a within-Guidelines sentence ("when the independent views of the sentencing judge and the Sentencing Commission align") is then accorded a presumption of reasonableness. Id. [It may be worth noting here that Judge Sutton was the author of United States v. Koch, 383 F.3d 435 (6th Cir. 2004), cert. granted, judgment vacated by Koch v. U.S., 125 S.Ct. 1944 (2005), supporting the constitutionality of the Guidelines by holding that Blakely did not require a finding that the Guidelines were unconstitutional and that is was unlikely that the U.S. Supreme Court would find the Guidelines unconstitutional in order to understand his continued support for the primacy of the Guidelines.]
The majority then adopts a new rule to be applied to any sentence outside the presumptively-reasonable Guidelines sentence: "when the district court independently chooses to deviate from the advisory guidelines range (whether above or below it), we apply a form of proportionality review: ‘the further the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)’ must be." Id.
Having set the rules for review, the majority then posits, "Few would disagree that we have an extraordinary variance in this case – from a guidelines range of 30 to 37 months to one day, to what the government refers to as a 99.89% variance – so the question is whether extraordinary circumstances justify the full amount of the variance." Id. The majority found that it did not and reversed the sentence. [Whether a sentence of 12 months of home detention versus 30 months imprisonment is extraordinary may be a more open question than the majority here believes.]
Most notable in this opinion are the two new standards for review detailed above for hewing so closely to pre-Booker Guidelines standards. It is surely no accident that the majority talks in terms of "the further the [district] judge’s sentence departs from the guidelines." (emphasis added) The whole tenor of the majority’s approach here is as if it is dealing with a Guidelines departure. This is nowhere more apparent than the Court’s insistence that the variance be justified by "extraordinary circumstances." See, e.g., Introductory Commentary, Part H, Sentencing Guidelines Manual ("Furthermore, although these circumstances are not ordinarily relevant to the determination of whether a sentence should be outside the applicable sentencing range, they may be relevant to this determination in exceptional cases. They may also be relevant if a combination of such circumstances makes the case an exceptional one..."); §5K2.0(c) and Commentary thereto.
And what of the Court’s adoption of the government’s reference to the extent of the departure being 99.89%? It didn’t seem to matter to the Court when the district court in U.S. v. Scott Ferguson [see Randy Alden’s post, below] imposed a 100% higher sentence than the presumptively reasonable guidelines sentence. What will the break point be? 66%? 50%? 33%? Will there be a presumptively reasonable amount of variance?
This great march forward into the past seems to be at odds with other of this Circuit’s cases defining the scope of reasonableness review. In United States v. McBride, 434 F.3d 470 (6th Cir. 2006), for example, the court stated:
Now when a district court imposes and we review a sentence for reasonableness, the focal point is on 18 U.S.C. § 3553(a) (footnote omitted). 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 . .
Once the appropriate 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.
Instead of this approach, however, the majority in Davis suggests that, of all of the considerations in 3553(a), the Guidelines should be "first among equals." This presumption, when coupled with the new proportionality review noted above, would also seem to be contrary to the Court’s holding in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2000), that a sentence outside the Guidelines range is not presumptively unreasonable.
It is also worth noting that if Davis’ use of the presumption and its proportionality review prevail, we will find ourselves, as a practical matter, back at mandatory Guidelines. Mandatory guidelines, of course, could not support judicial fact-finding without running afoul of Booker. If the Court of Appeals has created a de facto mandatory guidelines system by presuming within-the-range sentences to be correct and establishing departure-like requirements for sentences outside the range, then defense attorneys in the Sixth Circuit should be objecting to any sentencing enhancements not found by a jury or admitted as a part of a plea.
In "vigorous" dissent, Judge Keith refers to the reversal of the sentence as "a complete miscarriage of justice." Slip p. 9. He also notes a disturbing pattern to post-Booker appellate review:
Slip pp. 9-10.
The current trend across the circuits is to afford less deference to district court sentences that depart below the advisory guideline range over sentences that depart upward from the advisory guideline range. This holding cannot be reconciled with Booker, which instructs the appellate courts to review a sentence for reasonableness regardless of where the sentence falls in relation to the advisory guidelines range.
Judge Keith details the many circumstances that support the sentence imposed by the district court. Addressing the majority’s approach to the review of sentences he states, "In engaging in this mechanical assessment, the majority starts this Court down the path of the pre-Booker days where the district courts were bound by an algebraic application of the guidelines." Slip p. 10.
Thus, Davis continues the Sixth Circuit’s tug-of-war between a new, post-Booker model of sentencing and review and a return to the business-as-usual Guidelines approach. Where from here? Stay tuned!