Friday, November 09, 2007

Unbuckled seatbelts and prior gun case do not justify "officer safety" patdown

Drugs found in "officer safety" pat-down were properly suppressed. No reason to believe that driver and passenger (defendant Wilson) were armed or dangerous, and therefore no reason to pat down defendant Wilson, when they are pulled over for seatbelt violations, even though the driver was rambling to police and admitted that he previously served federal time on a gun charge. The opinion also notes that the "officer safety" concern in traffic stops arises not solely from the person in the stopped car, but also from accidental injury from passing traffic. US v. Wilson, No. 06-6339 (6th Cir. 10/29/07)

Friday, October 05, 2007

Now is the Time to Challenge Acquitted Conduct

Today in US v. White, No. 05-6596, a Sixth Circuit panel (Merritt, Daughtrey and Griffin) reluctantly upheld a sentence which included a 14 year enhancement based on conduct for which the jury had acquitted the defendant. Despite upholding the sentence, all three judges expressly agreed that such use of acquitted conduct is an issue that needs to be considered via en banc review. So if this comes up in any of your cases, be sure to raise it at sentencing and on appeal.

Saturday, August 18, 2007

Possession of Sawed-off Shotgun Not A Violent Felony

In United States v. Amos, the Sixth Circuit became the first circuit court to rule that a conviction for the possession of a sawed-off shotgun does not constitute a violent felony under the Armed Career Criminal Act. Six circuits had previously ruled to the contrary, on the idea that, since a sawed-off shotgun generally lacks any legitimate purpose, its possession must present a serious potential risk of injury. The Amos panel rejected that idea, relying on the plain language of the statute and then-Chief Judge Breyer's seminal decision in United States v. Doe that a felon--in-possession conviction does not constitute an ACCA violent felony. The basic rationale of the court was that the ACCA definition aims to embrace offenses of an active, rather than passive, nature, and that not all instances of possession of a sawed-off shotgun carry a serious potential risk of injury. Amos is the latest in a series of post-Leocal circuit decisions where the courts have taken a closer look at the violent felony or "crime of violence" definition, and recognized that the statuory language simply does not embark essentially passive offenses which do not, by the terms of their definition alone, create a dangerous situation. Great work by attorneys Michael Holley and Doug Thoresen at FPD in M.D. Tenn.

Wednesday, August 08, 2007

Rita Fallout

In U.S. v. McGee, No. 06-1554 (6th Cir. 7/11/07) Judge McKeague writes, "Finally, Appellant argues that the presumption of reasonableness applicable to a sentence within the Guidelines range 'is not necessarily the appropriate way to review sentences,' and he asks us 'to reconsider its standard of review and to better define what a criminal defendant must do to rebut the presumption of reasonableness.' ... As we are bound by the Supreme Court's decision in Rita, we must deny the first part of Appellant's request." (Emphasis added) This overstates the holding in Rita.

The Supreme Court defined in issue in Rita as “whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” Rita v. United States, No. 06-5754 (2007) (Slip Op. 7) (emphasis added) He later explained that “we permit courts of appeals to adopt a presumption of reasonableness.” Id., slip op. 15. In answering that a court of appeals could apply such a presumption, the Supreme Court did not mandate that every court of appeals must apply such a presumption, only that one could if it chose to do so.

Justice Breyer wrote for the Chief Justice and Justices Alito and Kennedy. In order to get a majority of the Court to sign off on this proposition, Justices Stevens and Ginsburg signed on, but wrote a separate concurring opinion. In that concurring opinion, Justice Stevens notes that he did not agree with the remedial part of the Booker decision, but is now bound to it by stare decisis. He notes that reasonableness review is simply the former abuse-of-discretion standard. As such, “[w]hile reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge’s individualized sentencing determination.” Id., at slip op. 5 of the concurring opinion. (emphasis added)

The Court’s decision in Rita affirms the expanded role that the district court must now play in sentencing, including its duty to reject the Guidelines if it finds them to be in conflict with the 3553(a) factors in a given case or that they would result in a sentence greater than necessary to effect the sentencing goals. In doing so, it attempts to give meaning to Booker’s command that the Guidelines are now “advisory.” As Justice Stevens notes, “I trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.” Id., at slip op. 7 of the concurring opinion.

To be “bound” by the Supreme Court’s decision in Rita, therefore, is to recognize in the first place that the appellate presumption is not mandatory and, in the second, that “the rebuttability of the presumption is real.” (Id.) This McGee does not do.

Thursday, June 21, 2007

No More Tolling

In a unanimous, en banc decision issued today, the Sixth Circuit held that district courts may not order tolling of a term of supervised release. See United States v. Ossa-Gallegos, Case No. 05-5824. This issue frequently arose in cases involving non-citizen defendants expected to be deported after completing their terms of imprisonment. Many times the district court would include a special condition of supervised release, providing that supervision would not commence until the defendant lawfully returned to the United States (and not many defendants could ever expect to return legally). As a result, defendants who did find their way back to the US often were subject to both a new illegal reentry charge AND a violation of supervised release, even if the defendant did not return until years later. Kudos to attorneys Ron Small and Jennifer Coffin, both attorneys at the FPD in Nashville, who argued and briefed the case.

Wednesday, May 09, 2007

Lip Service to the Sixth Amendment

This morning the state of Tennessee killed Philip Workman for the shooting death of police lieutenant Ronald Oliver. It did so despite serious questions about whether or not it was Mr. Workman’s gun that fired the fatal shot, or was a round of friendly fire by another police officer. This factual dispute would have affected both whether Mr. Workman was guilty of a capital murder (which, at the time, required that the shot be fired by the defendant or his associate) and, even if so, whether he should receive a death sentence. This factual dispute was never resolved by a jury.

This is particularly ironic given the recent attention that the Sixth Amendment right to a jury trial has been given in the U.S. Supreme Court in Blakely v. Washington and United States v. Booker. This right was found to be so important that the entire federal sentencing scheme was declared unconstitutional because of its failure to honor that right. But not for Philip Workman.

In 1998 a three-judge panel of the Sixth Circuit Court of Appeals affirmed the denial of Mr. Workman’s habeas petition because, in part, it found that fragmentation of the bullet could have explained why the exit wound was not larger (and, therefore, why it could still have come from Mr. Workman’s gun). Workman v. Bell, 160 F.3d 276 (1998). The opinion, written by Judge Siler, quotes a medical paper not part of the record as support for this argument as well as a note in the autopsy about a gunshot wound to a rib. What the opinion doesn’t cite is factual support from the record of the fragmentation of the bullet. The opinion notes, "Dr. Bell did not recover any bullet segment, to be sure, but no x-ray was taken and the small piece of metal could simply have been overlooked." 160 F.3d at 284. (emphasis added). Based on this supposition of what happened, the Court of Appeals affirmed the death sentence. After the issuance of this opinion, however, the x-rays of Lieutenant Oliver – for which the defense team had been asking for years - all of a sudden turned up. They show no fragmentation of the bullet remaining in the body.

Returning to the Court of Appeals, Mr. Workman’s lawyers pointed out to the en banc Court that the proof now showed that the supposition on which the Court had earlier based its denial of relief was not supported by the record. Seven of the then-sitting Judges agreed with Mr. Workman. Unfortunately seven others did not. With the death penalty, unlike baseball, a tie does not go to the runner (or the person who would be called "out"). A tie means you lose and your death sentence stands. The dissenting opinion was written by Judge Siler. Rather than conceding that his original supposition was wrong, Judge Siler spends several pages attacking the defense expert and his conclusion that the bullet that killed Lieutenant Oliver had not come from Philip Workman’s gun. (The other part of the opinion refers to this as "talk[ing] out of the other side of our mouths" (slip op. at 13).)

In all of this discussion of what the facts might or might not have been, one fact becomes clear: the jury never got to decide for itself and for or against Philip Workman. It didn’t get to decide because the local Medical Examiner’s Office never turned over this evidence either before or during the trial of the case. It didn’t get to decide because the District Attorney’s Office apparently never pushed for production of the evidence. It didn’t get to decide because the police officers involved all swore that none of them had ever fired their weapons (which other evidence later established was also not true). And it didn’t get to decide for itself because some appellate judges decided to make factual decisions despite a lack of evidence in the record. (The "majority" of the en banc Court noted, "We emphasize that we are not a trial court, and we have not been given the opportunity to actually review and weigh the evidence which our hypothetical reasonable jury would have reviewed." (Slip op. at 13)

In any other case in the system we hold up to the world as being the most just, such a result might be lamentable. When a man is killed because of such failures, however, such a tragedy must force us to ask whether the rights which our Constitution purports to guarantee to all men have any meaning or are just nice ideas which we can take out and parade around on the Fourth of July, but which we can ignore when hard decisions have to be made. Death penalty cases are, by definition, the worst of the worst. But if our rights do not apply in even (or especially) those cases, then they are not rights worth having, and no one can call the results just.

[Disclaimer: the author works in the office that represented Philip Workman]

Thursday, April 12, 2007

Post-Sentencing Assault = +15 Years

Reginald Ragland was sentenced in his possession of over 5 grams of crack cocaine case to 300 months as a career offender. His record included two separate aggravated assaults, two separate kidnappings, and an attempted rape. His Guidelines sentencing range was 265 - 327 months. He appealed this sentence and, when Booker was decided during the pendency of his appeal, had his case remanded for re-sentencing.

While his case was on appeal, however, Ragland got into an argument with his appointed counsel and assaulted him, causing counsel to move to be relieved. This might have just passed as one of those things that appointed counsel have to go through, except that the U.S. Attorney urged the district court at the sentencing hearing to use this assault as the basis for an upward variance to the statutory maximum of 40 years. New appointed counsel for Ragland objected that the government had provided no notice of its intent to seek an upward variance. The district court overruled this objection and sentenced Ragland to 480 months, citing his assault on his attorney as evidence of the public’s need to be protected from him. Ragland appealed anew.

The Court of Appeals in United States v. Ragland, No. 05-6732 (6th Cir. 4/2/07) (unpublished), with Judge Norris writing for Judges Cole and Clay, dispenses with the notice issue in two pages and the 15-year upward variance in a page, affirming both the notice and the sentence.

The government argued that Ragland had notice "because he was well aware of his own conduct." (Slip op. 5) Amazingly, the Court finds this position to equal "reasonable notice," noting that Ragland "had some prior notice that the incident would be discussed at the hearing." (Id.) Knowing that something will "be discussed" and knowing that a party will use that "something" to ask for a sentence 60% greater than the sentence originally imposed are two different things. Indeed, Ragland’s prior aggravated assaults had been used to find him a career offender and increase his sentence into the 265 - 327 month range. Who could imagine that another assault would then be used to increase his sentence by another 180 months?

In affirming the 480-month sentence, the Court notes that the district court "provided a reasoned explanation for variance and concluded that Ragland was likely to commit violent crimes in the future and that the public needed protection from him." In United States v. (William) Davis, 458 F.3d 491 (6th Cir. 2006), in which the Court reversed as substantively unreasonable a downward variance of 30 months, the Court ruled that "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 farther the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)’ must be." 458 at 496. An extraordinary variance must be based on extraordinary factors. Id.

Although the upward variance in Ragland is 6 times the number of months varied downward in Davis, there is no discussion in Ragland of proportionality. This is all the more remarkable since the only intervening factor between imposition of the mid-range sentence of 300 months originally imposed by the district court and the 480-month sentence on remand is the assault on his attorney. Without diminishing the extent of that conduct, the court's approach raises a number of questions that go unanswered. Why does this conduct deserve a sentence 60% greater than that originally imposed by the district court? Why is the statutory maximum "sufficient, but not greater than necessary" to achieve the goals of sentencing? Why was a mid-range sentence appropriate at the first sentencing, but an above-range, statutory maximum sentence appropriate at re-sentencing based on the assault? While the district court may be right that such behavior indicates the defendant is a violent person, why does that justify a 15 year increase in his sentence, especially when the district court already knew he was a violent person (based on his record) to begin with? Why is this also true when Ragland is being sentenced for a drug conviction, not a crime of violence?

Another disturbing aspect of this case is the willingness of the Court to use post-sentencing negative conduct to enhance a sentence when it has expressly forbidden the use of post-sentencing positive conduct to lessen a sentence. See, e.g., United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006) ("Post-sentencing event or conduct [such as rehabilitative efforts] simply are not relevant to th[e] inquiry [of whether the district court would have imposed a different sentence in the absence of mandatory guidelines]."); United States v. Adams, No. 06-1185, 2006 WL 3791317, at *5 (6th Cir. 12/26/06) (district court properly declined to consider post-sentencing rehabilitative efforts); United States v. Feazell, No. 06-1147 (6th Cir. 3/7/07) (same); United States v. Smith, No. 05-4644, 2006 WL 3717660 (6th Cir. 12/18/06) (reversing lower sentence by district court based on post-sentencing rehabilitative conduct).

This case continues a recent trend in this Circuit in which sentences get longer and explanations get shorter. Having "a reason" has become synonymous with being "reasonable." Blacks Law Dictionary (5th Ed.) defines "reasonable" as "fair, proper, just, moderate, suitable under the circumstances . . . not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable." So, is a 15-year increase in a sentence to the statutory maximum based on post-sentencing conduct that, under the Guidelines, would've provided for an incremental increase in criminal history "not immoderate or excessive, honest, equitable, fair, suitable, moderate or tolerable"? Maybe so, but the record in this case would not indicate it.

[UPDATE: The original of this post described the assault as a misdemeanor simple assault based on the description in the Court's opinion. AFPD Randy Alden e-mailed me to explain that the injuries suffered by AFPD Pat Brown in this case were more serious than described in the opinion. He also explained that Pat was called to testify about the assault and the extent of his injuries at the sentencing hearing. Based on that information I have changed this post to reflect that this was not a misdemeanor. I don't think it changes the legal issues and problems with this case, but I do not want anyone to think that we are belittling what happened to Pat. I know Pat Brown to be a strong advocate for his clients and was sorry to hear the extent of his injuries in this case. - SLC]

Tuesday, April 03, 2007


In United States v. Husein, 478 F.3d 318 (6th Cir. 3/2/07), the government attempted to supplement the record with facts it cited as coming from "," but providing no other citation. The Court of Appeals held that a party may not by-pass the fact-finding process of the lower court and introduce new facts in its brief on appeal. While F.R.App.P. 10(e)(2) allows the correction of misstatements in the record, it does not allow the introduction of new evidence in the court of appeals. Nor did the circumstances of this case allow the application of judicial notice under F.R.Evid. 201(b) which requires that "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Referring to the generality of the government cite, the Court stated, "Although the relevant information might well be available in one of Westlaw's many online databases, that fact alone, without any guidance from the government as to where in Westlaw one might locate the information, hardly fulfills the mandate of Rule 201(d)."

Despite this position, in several cases recently the appellate record appears to have been supplemented with information from the Internet – by the Court. In United States v. Whited, No. 05-5959 (6th Cir. 1/9/07), a methamphetamine case, the issue was whether the 6-level Guidelines enhancement for "substantial risk of harm" applied. In deciding that it did, the Court of Appeals, noting that defendant had been arrested in a motel with a meth lab present in the room, states, "According to travel web sites, the motel is an 81-unit complex. ... Whited's methamphetamine laboratory was in a densely populated area. As noted, the motel room where Whited operated the laboratory was one of 81 units -- more than 10 times the number of units in Layne." (slip op. at 4). There is no cite to which websites were consulted to get this figure. That "fact" was used to affirm application of the enhancement.

The citation to the Internet in Whited suggests that the information concerning the size of the motel was not available in the record. Without a citation to the specific websites from which the information came, it is also not possible to determine whether the sources are those whose accuracy cannot reasonably be questioned.

In United States v. Martin, No. 04-6428 (6th Cir. 2/21/06), the appellant/defendant was attacking the meth conversion ratio in the Guidelines as not being in compliance with the Congressional directive creating it. As a part of its holding, the Court of Appeals notes, "The DEA report on which the Commission based its conversion ratio is no longer available on the DEA website and is not part of the record in the present case. A document that appears to be the report, however, remains available through another publically accessible website. See Gene Haislip, Methamphetamine Precursor Chemical Control in the 1990's (1996), (stating that '[a]ctual yield in clandestine labs is typically in the range of 50 to 75 percent') (last visited Feb. 14, 2006)."

At least in this case the Court notes the source of the information and the date on which it was viewed. Even so, the appellate court can't find a document in the record so it searches it out on the Internet, finds what might be the document (unchanged at least as of the last time the Court visited the website) and then cites it in a published opinion. In both Whited and Martin the Court has filled in the blanks for the prosecution when its proof was lacking.

In Scipio v. Sony Music Entertainment, Inc., 173 Fed.Appx. 385 (6th Cir. 2006) (unpublished), a music copyright contest, the court refers to different websites where one can listen to the songs alleged by the plaintiff to have been sampled. "fn 2: To hear 'Dove,' go to (click on 'Cymande 1972,' and then song six, 'Dove'). fn 4: For an excerpt, go to,,226252,00.html (scroll down to song nine)." Now, maybe these songs are in the record, but if so, there is no corresponding record cite. While the issue in the appeal was whether or not one of the parties should be bound by an agreed settlement, would the legitimacy of the claim affect the appellate court's decision? That is, if the Court of Appeals listened to the songs and decided for themselves that the song had been sampled, would that affect the way they viewed the potential settlement? Should they have the ability to go outside the record? If they already have that ability (which this case makes clear they do), should they exercise it?

Does this use of the Internet raise any issue about the integrity of the appellate record? For what information can the Court of Appeals look on the Internet? For what information can it not look? What says so? What about the reliability of the information that it searches? (the Wikipedia factor) What if the report that it found in Martin had been changed after being used by the DEA? How would one know (since the original was never put into the court record in the first place)? What if the Court bases its decision on information not in the record but retrieved from the Internet, as in Whited? If the Court can cite to information outside the record, but garnered from the Internet, can the parties do the same? What are the limits of such citation? Just what is the source of the information that is being cited? That is, who’s on the other end and what is their motive or angle for posting the information in the first place?

What is to stop the Department of Justice from directing other executive branch law enforcement agencies to post on their websites on the Internet information to which DOJ wants to cite in their briefs (but which is not in the record developed in the district court)? In civil cases, where companies often have very active websites, what is to stop them from posting information that could be helpful to their appeal?

The Internet is full of information, some accurate, some not. If it is going to be cited to just like the dictionary, there should be some discussion about when such is appropriate and what rules must be in place to protect the integrity of the fact-finding function of the courts and the parties. In Husein, the Court discusses some aspects of this question when the citation is being done by a party. To date, however, no discussion appears to have taken place when the citing is being done by the Court.

Tuesday, March 27, 2007

Compound Interest on the Nickle-and-Dimed

In its Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, the United States Sentencing Commission, discussing the career offender provisions of the Guidelines, noted that the career offender provision was a sentencing rule "that [has] a disproportionate impact on a particular offender group [namely, African-Americans] but that serve[s] no clear sentencing purpose . . . The recidivism rate for career offenders more closely resembles the rates for offenders in the lower criminal history categories in which they would be placed under the normal criminal history scoring rules in Chapter Four of the Guidelines Manual. The career offender guideline thus makes the criminal history category a less perfect measure of recidivism than it would be without the inclusion of offenders qualifying only because of prior drug offenses." At 134 (emphasis in original). "[C]riminologists and law enforcement officials testifying before the [Sentencing] Commission have noted that retail-level drug traffickers are readily replaced by new drug sellers so long as the demand for a drug remains high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else." Id.

Jimmy Gene Brumley was a nickle-and-dime street dealer who appears to have sold drugs mainly to support his own habit. He was caught by police in Memphis, Tennessee, with such a small amount of Dilaudid and Vicodin tablets that his offense level based on the quantity of drugs was an 8. [While federal court has, in most districts, been reserved for large quantity drug cases, the U.S. Attorney for the Western District of Tennessee has for years prosecuted what would anywhere else be small quantity state drug cases, using the hammer of the crack cocaine sentences and the career offender provisions to the benefit of the Bureau of Prisons and the stockholders of Correctional Corporation of America.] When the calculation of Jimmy Gene's criminal history was factored in, his Guidelines range was 12 - 18 months. Coupled with some intensive drug treatment, a high-end of the range sentence might have helped Jimmy Gene break the cycle of drug use and imprisonment at a total cost to taxpayers of about $37,000.

In addition to other things, however, Jimmy Gene was also a career offender under the Guidelines. This pushed his offense level from 8 to level 32 and pushed his criminal history to the highest category, VI, with a concomitant range of 151 - 188 months. At the sentencing hearing, Jimmy Gene's defense attorney pointed out that this was a twelve-fold increase for the conduct to which he had pleaded guilty, pointed out the role that his drug addiction had played in his life (and its impact on his criminal history) and urged the court to impose a lower sentence. Although acknowledging the impact of his drug usage and his "urgent need for drug counseling," the district court imposed a sentence of 144 months.

On appeal, Brumley argued that the district court had failed to analyze how the 144 months would further the objectives of § 3553(a) more than the lower sentence he proposed, and had failed to explain its rationale for the imposition of the 144 months. United States v. Brumley, No. 05-6747 (slip op. 5) (6th Cir. Jan. 9, 2007) (unpublished). Writing for Judges Moore and Clay, District Judge Bell notes the presumption accorded to sentences within the Guidelines range. Id. at 3. Brumley's sentence, of course, was actually just below the Guidelines range. "However, because it was below the guideline range, and because we are considering a challenge to the sentence by Brumley rather than by the government, his sentence is entitled to the presumption of reasonableness." One searches in vain for the legal support for this newly-crafted proposition. There is none. One searches, also in vain, for the dissent from Judge Moore, who originally refused in U.S. v. Webb to find a within-range sentence to be per se reasonable.

One continues this same Grail quest for some sign of objection from Judge Clay, who once wrote, "While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. ... Nothing in the text of the § 3553(a) elevates the now-advisory Guidelines sentence above other factors or permits the district court to 'presume' that the advisory sentence would be reasonable for an individual defendant." United States v. Cage, 458 F.3d 537 (6th Cir. 2006) (Clay, J., dissenting). In a footnote in Cage, Judge Clay noted, "I also question whether the rebuttable presumption language in Williams should be considered to be binding on this Court given the fact that the Webb Court had already stated that it declined to hold that a sentence within the Guidelines range is per se reasonable." Id. at n2.

What happened to the objections of these two reasoned jurists to the march back to mandatory Guidelines that they saw as contrary to the Supreme Court's holding in Booker? Have they changed their positions? Have they been overwhelmed by the press of sentencing appeals? That is not clear. The only thing that is clear is that they go along with Judge Bell's expansion of the presumption of reasonableness where, apparently, no one has gone before. But I digress ...

What of Jimmy Gene's arguments against the reasonableness of his sentence? Addressing the district court's alleged failure to explain the sentence it chose, Judge Bell writes, "A defendant's 'mere allegation that the sentence imposed is greater than necessary to achieve the goals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of reasonableness,' and the fact that the district court did not give a defendant the more lenient sentence he requested does not jusitfy setting his sentence aside." Citing U.S. v. Dexta, 2006 WL 3589790 (6th Cir. 2006). This, of course, does not answer the question of whether the district court complied with the procedural requirement that it explain its sentence. Judge Bell finds that because the district court addressed the § 3553(a) factors the sentence was both procedurally and substantively reasonable.

No one ever explains why a twelve-fold sentence for a drug addict, that will cost the taxpayers around $300,000, is "sufficient, but not greater than necessary" to accomplish the aims of sentencing as opposed to the lower sentence requested. Given the acknowledgement by the Sentencing Commission itself in its Fifteen Year report that the career offender provisions are a poor measure of recidivism, the blind faith adherence to the Guidelines (and worse, given the expansion of the presumption) shown by both the district court and the Court of Appeals in this case raises questions about the continued vitality of Booker.

Thursday, March 22, 2007

Makes You Think

In Booker the Supreme Court told us that the Guidelines were but one factor to be considered in deciding the sentence. The Court of Appeals has since confirmed that the Guidelines do not have any more weight than any other factor at sentencing. Review of a sentence in the Court of Appeals is for the reasonableness of the sentence. A Guidelines sentence is accorded a presumption of reasonableness. [But Webb at fn9?] A sentence must be procedurally and substantively reasonable.

Surely, the first measure of what is reasonable would be to examine the Guidelines in the context of the statutory range? Surely, too, the statutory range would set the limit of what could possibly be reasonable? Maybe in some world where everyone agreed about what the post-Booker structure of sentencing would be, but not here.

In United States v. Merrell, No. 05-6577 (6th Cir. 2007), the Guidelines range in this methamphetamine case was 360 months - life, but the statute carried a maximum of 20 years (240 months). Judge Katz (district judge, NDOhio), writing for Judges Clay and Rogers, finds the maximum sentence of 240 months to be substantively reasonable noting that the 240 months was "a figure one-third less than the low end of the Guidelines range." (Slip Op. at 12)

Some might think that a Guidelines range that exceeded the statutory maximum by 50% (and more) would itself be per se unreasonable. Some might think that such a Guidelines calculation would demonstrate the very Sixth Amendment problem in Blakely and Booker where uncharged conduct is used to increase a potential sentece above the statutory maximum. Some might take this to be evidence that the Guidelines are, in fact, deeply flawed and out of true with the very statutes to which they purport to pertain. Some might think that the statutory maximum would be reserved for the worst of the worst who had no mitigation, instead of a case involving meth manufacture by a meth addict where even the sentencing court noted that the defendant's criminal history was all related to his drug addiction. Some might think so, but not this court.

Friday, March 16, 2007

Departure Affirmed

Just as there is much backsliding toward a scheme that would effectively re-institute mandatory Guidelines, the Sixth Circuit's decision in United States v. Husein, No. 05-2548 (6th Cir. 3/2/07) (Gilman, Martin & Cole, JJ.), shows clearly how advisory guidelines can work post-Booker.

Fadya Husein pleaded guilty to her role in two sales of a total of 763 ecstasy pills. (She helped arrange the meetings and was physically present, but was neither the buyer nor seller.) Her Guideline sentencing range was found to be 37 - 46 months in prison. As mitigation at sentencing, she offered that her father was a stroke victim who required around-the-clock attention which she and her mother provided, and that she was the only one in the household with a driver's license, critical for those occasions when her father needed to be taken to the doctor or the hospital. (Interestingly, after reading this information in defendant's sentencing memorandum, the district judge sent the probation officer to the house to report on the extent of the father's problems, which he did.) After hearing proof about Ms. Husein's necessary part in the household, the district court granted a downward departure and sentenced her to 1 day of imprisonment and 3 years supervised release with 270 days of home confinement as a condition thereof.

In affirming the district court sentence, the Court of Appeals confirms certain principles that would seem to naturally flow from a finding that the Guidelines are advisory and are but one factor to be considered. The panel first notes that the circumstances of Ms. Husein's situation meet the definition in §5H1.6 for exceptional family circumstances. Beyond that, however, the court points out that "'[p]ost-Booker caselaw confirms Husein's understanding that family circumstances can form the basis of either a Guidelines-authorized departure or a non-Guidelines, § 3553(a)-based departure, also known as a variance." (Slip op. at 8) Adopting language from the Ninth Circuit, the court notes that "[i]n the broader appraisal[ ] available to district courts after Booker, courts can justify consideration of family responsibilities, an aspect of the defendant's history and characteristics, 18 U.S.C. § 3553(a)(1), for reasons extending beyond the Guidelines; district courts now have the discretion to weigh a multitude of mitigating and aggravating factors that existed at the time of mandatory Guidelines sentencing, but were deemed not ordinarily relevant, such as age, education and vocational skills, mental and emotional conditions, employment record, and family ties and responsibilities.'" (Slip op. at 9) (citing U.S. v. Menyweather, 431 F.3d 692 (9th Cir. 2005).

In finding the sentence to be substantively reasonable, the court noted that there was no mandatory minimum sentence applicable to Ms. Husein. The significance of this fact may resonate beyond the facts of this case: "Congress thus not only envisioned, but accepted, the possibility that some defendants found guilty of that subsection of the statute would receive no jail time at all. This is especially significant in the area of drug-related crimes, where mandatory minimum sentences ... are most common. ... Accordingly, if a mandatory minimum denies discretionary authority to a sentencing judge, then that authority is a fortiori restored where, as here, no mandatory minimum exists." (Slip op. at 11)

The Court also notes that, as to departures from the Guidelines (and not variances under § 3553), the pre-PROTECT Act standard of abuse-of-discretion review was the appropriate standard of review.

The sentence in this case was affirmed because of the work of defense counsel in presenting the district court with all of the facts that it needed to make this decision, and by the careful and thoughtful way that the district court approached this sentencing and explained its decisions. The result here is consistent with the Sixth Circuit's rulings in cases like United States v. (Lonnie) Davis, 458 F.3d 505 (6th Cir. 2006), in which the Court upheld a district court's within-Guidelines sentence based on the district court's careful review of the facts and its thorough explanation of the reasons for its sentence. Its recognition of the broader landscape in which judges can work post-Booker also appears to be more consistent with the intent of Booker than those decisions that would take us back to mandatory guidelines (de facto if not de jure).

Dicta About Dicta

It is axiomatic that one panel of a Court of Appeals cannot overrule a decision of another panel. See, Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985). This apparently, however, does not prevent attempting to limit to nothingness the holding of the other panel's decision.

In discussing what the Court of Appeals requires of district judges in order to conduct its own reasonableness review, the Sixth Circuit has held, "We emphasize the obligation of the district court in each case to communicate clearly its rationale for imposing the specific sentence. Where a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable." United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).

In United States v. (Dontay) Tyler, No. 05-2252 (6th Cir. 3/2/07) (unpublished) (Per Curiam: Merritt, Daughtrey & Griffin, JJ.), the defendant/appellant argued that the district court had failed to address the mitigation presented at the sentencing hearing, citing Richardson. The per curiam court states, "We conclude that the defendant has read too much into our opinion in Richardson. ... And, in dicta, we further suggested that '[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it.'" (Slip op. at 4)

While this "holding" would seem to limit the holding above in Richardson out of existence, it should be noted that the statement in Tyler appears to be dicta itself. It is certainly not critical for the ruling because the court finds that the district court complied with "both the holding and the dicta in Richardson." Such a holding is not, therefore, necessary and would seem to be dicta in and of itself. So if dicta is not persuasive authority, what is the impact of dicta about dicta?

Even as dicta, however, this appears to signal a retreat from that arm of the court that has been trying to give teeth to the changes wrought by Booker. (See, Paradigm Shift or Business as Usual?, below) Given the questions asked by the Court during the arguments in Rita and Claiborne, it is unclear how much of the post-Booker mess the Supreme Court will clean up. There may yet be much to be done in Vonner. More to come.

Thursday, March 01, 2007

How Much Is Enough?

How much does a district court have to say when imposing a sentence in order to protect that sentence on appellate review? "A district court’s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination. Absent from the district court’s statement of reasoning is any application or explanation of the various § 3553(a) factors..." United States v. Harden, 195 Fed.Appx. 382, 386 (6th Cir. 2006) (unpublished) "Although we have held that it is not necessary for a district court to engage in a ‘ritualistic incantation’ of the Section 3553(a) factors, we have also not held that the mere recitation of the magic words ‘Section 3553(a)’ is itself sufficient to immunize a district court’s sentencing decision from reversal. To so hold would send a false message to district courts that all they need to do at sentencing is list the Section 3553(a) factors, impose a Guideline sentencing, and conclude by stating that the sentence provides ‘just punishment and affords adequate deterrence.’ Magic words are not necessary, but nor are they alone sufficient." United States v. Vonner, 452 F.3d 560, 568 n4 (6th Cir. 2006), rehearing en banc granted, judgment vacated (Oct 12, 2006) (emphasis in original).

According to the opinion in United States v. Snowden, No. 05-6778 (6th Cir. 2/26/07), the district court’s explanation for the imposition of a 240-month sentence for 15.7 grams of crack cocaine and a gun in possession of a felon was, "[T]he guideline range affords the Court more than enough discretion in imposing an appropriate sentence [in this case]. Such a sentence will reward the defendant for the substantial assistance that he’s rendered the government; it will also serve to reflect the seriousness of the offense, provide just punishment for the offense, to afford adequate deterrence for this type of criminal conduct, and also protect the public from future crime that Mr. Snowden might be inclined to commit." The Court of Appeals found that "These considerations directly comply with those laid out in § 3553. ... Hence, the sentence is procedurally reasonable." (Slip Op. at 7-8)

But is it? Why is this perfunctory statement of enumeration of the factors sufficient? Because it is certainly true about the statement in Snowden that absent from it is any "application or explanation of" the factors. Harden. What does the statement in Snowden tell us about why the district court imposed a sentence of 20 calendar years on a young man who had never served more than 1 year before? About why 20 years is "sufficient, but not greater than necessary" to achieve the aims of sentencing in this case? While the district court certainly recites the factors, missing is any true application of the factors to the facts in Snowden, or any explanation of why the factors mandate a two-decade sentence.

What this case does tell us about is the ideological distinctions within the Sixth Circuit over the development of post-Booker reasonableness review. Clearly one part of the fight is over the extent to which a district court should have to "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). There are those judges of the Sixth Circuit who, as in Harden and Vonner, insist that the explanation be meaningful and sufficient for the appellate court to understand why the particular sentence was chosen. There are those judges who would find it sufficient for the district court to simply state that it had considered the factors without requiring any further explanation. While the questions accepted for review in United States v. Rita could resolve this issue, they by no means have to. It may very well be that this issue takes the fore in the Vonner en banc. In the meantime, the result in sentencing cases in the Sixth Circuit continues to depend on who’s on the panel.

Friday, February 23, 2007

Forward We March Into the Past

Two recent Sixth Circuit cases dealing with reasonableness review showcase the continuing problem of how to make both the constitutional and remedial parts of Booker work in practice.

The district court in United States v. (Conrad) Smith, No. 05-4425 (6th Cir. 1/26/07) (Kennedy, J., & Aldrich, D.J. (NDOhio); Gibbons, J., concurring), departed upward from the Guidelines range of 30-37 months to 57 months under §4A1.3 based on the inadequacy of the defendant's criminal history calculation. In reviewing the sentence for reasonableness, the Court of Appeals decides to apply the pre-Booker 3-step approach of U.S. v. Joan, 883 F.2d 491 (6th Cir. 1989). In doing so, the court notes the "obvious conclusion" that "review of a district court's upward departure to a higher offense level should mirror our analysis of its variance from the guidelines range." While this purports to be a discussion about departures, exactly the opposite is happening -- review of a post-Booker variance is being put in the straightjacket of Guidelines departure review. The two are not co-equal. The first step in Joan is "whether the circumstances of the case are sufficiently unusual to justify departure." Post- Booker, however, the review of a variance is not limited to the strictures of departure. See, e.g., U.S. v. McBride, 434 F.3d 470, 476 (6th Cir. 2006) ("Furthermore, many of the very factors that used to be grounds for a departure under the Guidelines are now considered by the district court – with greater latitude – under section 3553(a).") (emphasis added). Recognizing that, in fact, review post-Booker is not the same as review under the Guidelines, the Court in Smith notes that its ultimate job is to determine whether the sentence is reasonable and so imports reasonableness review, but only into the 3rd step of Joan (where it already existed).

While a step backward from the guidelines-are-advisory direction of Booker, this case should not be expanded beyond what it actually is -- review of a departure (not a variance). The higher sentence here was given pursuant to §4A1.3 and not as a consideration of the § 3553(a) factors. As such, it should not be used in any case involving the discussion of a post-Booker variance, even based on criminal history factors.

Judge Gibbons' concurrence would accord a presumption of reasonableness to the range to which the district court departs (in this case 46-57 months) because the §4A1.3 departure occurs within the structure of the Guidelines, as opposed (she notes) to a §5K2.0 et seq. departure. Such an extension, however, would accord such upward departures even greater protection than they had under the mandatory Guidelines.

In United States v. Funk, No. 05-3708 (6th Cir. 2/22/07) (Batchelder, J., Boggs, C.J., & Bell, C.D.J. (WDMich.)), the Court confronts the opposite situation of Smith – the district court in this post-Booker re-sentencing remand found that the career offender provision overstated the defendant's criminal history and applied the Guidelines without reference to the career offender provision, sentencing the defendant to 150 months, instead of within the 262 - 327 month range career offender would have required. The district court gave a lengthy explanation at the re-sentencing hearing and supplemented its decision further in the judgment and commitment order. In reversing the district court, the Court accords no presumption to the sentence since it is outside the Guidelines range. (Implicitly rejecting, without discussing, Judge Gibbons’ suggestion in Smith that a §4A1.3 departure should be accorded such a presumption because it is a "within the Guidelines" change. It is also not clear from the opinion whether this is a departure or a variance, though the opinion treats it as a variance.)

What the Court of Appeals takes biggest issue with is the district court’s finding that a sentence of 150 months would be sufficient in this particular case. "Sufficient, but not greater than necessary" is, of course, the standard imposed on district court’s by Congress in § 3553(a). The Court finds that the district court’s sentence reflected "a disagreement with Congress about what an appropriate sentence for a repeat offender meeting the criteria of U.S.S.G. §4B1.1 would be." The Court therefore holds that "a district court making sentencing determinations may not implicitly reject Congress’s policy decision to prescribe harsher penalties for career offenders by ignoring or outright rejecting a defendant’s status as a career criminal offender."

How then to reconcile the district court’s Congressional mandate to impose a sentence "sufficient, but not greater than necessary" with the Congressional (and Supreme Court’s Booker) dictate that the Guidelines are one of the factors the district court must consider in setting the sentence? To do as the Court has done in Funk is to once again accord the Guidelines status as a mandatory body of law, something that Booker forbids. If the Guidelines are truly "advisory only," then they must always be subservient to higher dictates of law, such as the parsimony provision of § 3553(a). What the Court has done in Funk is to say that one of the factors of § 3553(a) trumps the over-riding dictate of § 3553(a) to impose a sentence sufficient but not greater than necessary to achieve the aims of sentencing. If the Guidelines are truly advisory, a district court must always be free to say, "for the following reasons, I find that the Guideline range, and the basis for getting there, does not meet the aims of § 3553(a)."

The problem with even describing a sentence outside the Guidelines as "a variance" is that by definition it accords the Guidelines preeminence and status as the default starting point. If Booker and its progeny are correct, and the Guidelines are but one of the factors that are to be considered under § 3553(a), then the Guidelines cannot be the starting point and a sentence that is not within the Guidelines is not "a variance," but is simple the sentence that is "sufficient, but not greater than necessary" to accomplish the aims of § 3553(a).

While this might suggest a system that is as uncontrolled as the pre-Sentencing Reform Act days, the check on runaway district court judges is an appellate requirement that the district court give a meaningful explanation for its sentence that focuses on the 3553(a) factors and the parsimony provision of 3553(a). This is, of course, one of the issues pending in Vonner.

Both Smith and Funk give scant attention to the view of the Guidelines as but one part of the district court’s consideration and continue the recent trend forward to the past of binding Guidelines sentencing by importing the stricture of departure standards into post-Booker discussions and by according the Guidelines stature that is inconsistent with the decision in Booker. The idea that the further one "varies" a sentence, cited in both Smith and Funk, the greater must be the explanation in support of it was met with skepticism by Justice Breyer during the argument in Claiborne. ("And if he has a good reason, well, why doesn't it justify a lot just as much as it might justify a little?") Given that Justice Breyer was the author of the remedial part of the decision in Booker, this may only highlight the confusion caused by the Supreme Court’s failure in Booker to explain how such an advisory-only system would work. Hopefully we will get that explanation in Rita/Claiborne.

Tuesday, February 13, 2007

Paradigm Shift or Business As Usual? A Brief History of Reasonableness Review in the Sixth Circuit

The Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), provided the opportunity for a wholesale re-examination of the federal sentencing scheme that had held judges, defendants and practitioners alike in thrall for some 17 years. Booker’s emphasis on the § 3553(a) factors, with the Sentencing Guidelines relegated to the status of one-among-equals, seemed to restore much needed discretion to the sentencing courts and humanity to those being sentenced. The question for everyone post-Booker was what would this new landscape look like? Would it, in fact, be a brave new world and a bold step forward, or would it be the same darkling plain?

With no surprise to anyone, after circling the wagons, the government position was to continue on with the Guidelines as if Booker had never happened. In a memorandum dated January 28, 2005, Deputy Attorney General James B. Comey directed "all federal prosecutors" to "take all steps necessary to ensure adherence to the Sentencing Guidelines." p. 1. He further directs, "[f]ederal prosecutors must actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases." Id. p. 2. (emphasis added) "[I]n any case in which the sentence imposed is below what the United States believes is the appropriate Sentencing Guidelines range ... federal prosecutors must oppose the sentence... ." Id. (emphasis added) Any sentence outside of the Guidelines must be reported to the Department of Justice. Id., p. 3. This would certainly appear to be a directive by the second highest federal law enforcement officer in the country to ignore the law of the United States Supreme Court.

The last two years in the Sixth Circuit has seen the parallel development of two distinct bodies of law on post-Booker practice that appears to have finally led to some kind of en banc resolution. The first part of the year after Booker was released was spent dealing with which cases would be remanded for re-sentencing under Booker. Because United States v. Oliver, 397 F.3d 369 (6th Cir. 2/2/05), was released the day before United States v. Bruce, 396 F.3d 697 (6th Cir. 2/3/05), vacated in part by 405 F.3d 1034 (6th Cir. 2005), most cases saw remand under Booker. Once that was done, the Court got down to the business of deciding what the new obligations of the district courts were in sentencing post-Booker and what "reasonableness" review would mean.

The first attempt at defining reasonableness review came in United States v. Webb, 403 F.3d 353 (6th Cir. 4/6/05). In Webb, Judge Moore, joined by Judge Martin, explained that reasonableness review would include not only a review of the length of the sentence (substantive reasonableness), but also a review of the manner in which the sentence was imposed and the explanation given by the district court (procedural reasonableness). The Court at this point refused to "define rigidly ... the procedure that a district judge must employ in sentencing post-Booker." The Court also noted in footnote 9 that it was "declin[ing] to hold that a sentence within a proper Guidelines range [would be] per-se reasonable. Such a test is not only inconsistent with the meaning of ‘reasonableness’ [citation omitted], but is also inconsistent with the Supreme Court’s decision in Booker, as such a standard would effectively re-institute mandatory adherence to the Guidelines." In dissent, Judge Kennedy notes that a Guidelines sentence should be presumed reasonable since the type and number of factors considered by the Sentencing Commission in its creation of the Guidelines were themselves reasonable.


The start of the new year Judge Martin explained in United States v. McBride, 434 F.3d 370 (6th Cir. 1/17/06), that "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." Footnote 3 begins to flesh out the parameters of the Court of Appeals’ review of a district court’s imposition of sentence explaining that a district court must explain the reasons for its sentence, and that simple recitation of the § 3553(a) factors will not be enough. Distinguishing this brave new world from the Age of the Guidelines, the Court notes that while Guidelines-era caselaw would prohibit the Court from considering the extent of a departure, post-Booker the Court could – and Booker requires - review the length of the sentence for reasonableness. Noting the more expansive landscape post-Booker, the Court explains, "many of the very factors that used to be grounds for a departure under the Guidelines are now considered by the district court – with greater latitude - under section 3553(a)."

Webb -- McBride

Two weeks later Judge Cook, writing for Judges Siler and Sutton, announced that "We now join several sister circuits in crediting sentences properly calculated under the guidelines with a rebuttable presumption of reasonableness." United States v. (Leonard) Williams, 436 F.3d 706 (6th Cir. 1/31/06). Although the cited authority for this proposition is the Booker opinion, the quoted section actually seems to support the reverse. ("holding that the modified Federal Sentencing Act ‘requires a sentencing court to consider Guidelines ranges, but ... permits the court to tailor the sentence in light of other statutory concerns as well.’ (citation omitted).") There is no discussion in Williams of footnote 9 in Webb.

Webb -- McBride

A week later, however, Judge Martin announced what the presumption meant (or didn’t mean). In United States v. Foreman, 436 F.3d 638 (6th Cir. 2/8/06), the Court explained,

"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 guideline range—either higher or lower—is presumptively unreasonable. It is not. Williams does not mean that a guideline 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."

The Court also points out that "reasonableness" is the appellate standard of review, not a description of the district court’s responsibility. That task is defined in the parsimony provision of § 3553 as imposing a sentence "sufficient, but not greater than necessary, to comply with the purposes" of § 3553(a)(2).

Webb -- McBride -- Foreman

The next week Judge Moore, writing for Judges Siler and Batchelder, further clarified that in addition to addressing the 3553(a) factors, the district court must also, where a defendant raises a particular argument in seeking a sentence below the Guidelines, address the proffered mitigation and explain its basis for rejecting it. United States v. Richardson, 437 F.3 550 (6th Cir. 4/17/06). In mentioning the Williams presumption, the Court here notes in a footnote that "[w]e have previously rejected the argument ‘that a sentence within a proper Guidelines range is per-se reasonable.’" Citing Webb.

Webb -- McBride -- Foreman -- Richardson

What seemed to be a fairly straight-forward rule in Richardson lasted barely two months before being limited. In United States v. Jones, 445 F.3d 865 (6th Cir. 4/17/06), Judge Polster (D.J., NDOhio), joined by Judge McKeague, wrote that a sentence within the applicable Guidelines range does not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence. Judge Moore, who wrote the opinion in Richardson, dissented, pointing out that circuit precedent required that the record reflect both that the district court considered the defendant’s argument and that the judge explained the basis for rejecting it.

Webb -- McBride -- Foreman -- Richardson
Williams -- Jones

While the opinion authored by Judge Guy in United States v. Morris, 448 F.3d 929 (6th Cir. 5/19/06), upheld the within-Guidelines sentence imposed in "an excellent post-Booker sentencing hearing," Judge Clay took the opportunity to note in his concurrence that the "rebuttable presumption" language used in the panel decision was surplusage in Williams in light of controlling Sixth Circuit precedent (Webb) that the district court must consider the 3553(a) factors.

Webb -- McBride -- Foreman -- Richardson -- Morris
Williams -- Jones

A week later, reviewing what the panel referred to as a "model approach to sentencing in the aftermath of Booker," the per curiam panel of Judges Batchelder, Sutton and Coffman (D.J., E&WDKy.) noted that "to the extent Buchanan means to argue that courts of appeals may not give a properly calculated guidelines sentence a rebuttable presumption of reasonableness, he is wrong." United States v. Buchanan, 449 F.3d 731 (6th Cir. 5/26/06). In his concurrence, Judge Sutton expands on the idea first put forth by Judge Kennedy in her dissent in Webb that a Guidelines sentence should be presumed reasonable since the type and number of factors considered by the Sentencing Commission in its creation of the Guidelines were themselves reasonable. In addition to detailing the variety of procedures through which a district court in the Sixth Circuit must go in imposing a sentence, he also notes that "the guidelines remain the one § 3553(a) factor that accounts for all § 3553(a) factors." The presumption of reasonableness is warranted, therefore, because the Guidelines actually contain everything that Booker said should be considered by the district court at sentencing. [This, of course, begs the question why, if Congress in 28 U.S.C. § 991 had directed that the Guidelines contain all the 3553(a) factors, would 3553(a) have to list any factor other than the Guidelines?] In detailing the district court’s responsibilities, the concurrence notes that the district court judge must "give a reasoned explanation for the sentence." [For an exhaustive review of why the Guidelines do not contain all of the factors in § 3553(a) see Amy Baron-Evans’ excellent work (here).]

Webb -- McBride -- Foreman -- Richardson -- Morris
Williams -- Jones -- Buchanan

The Richardson/Jones debate would flare back up in United States v. Vonner, 452 F.3d 560 (6th Cir. 6/29/06). In Vonner, the defense counsel argued for a sentence below the guidelines range citing as mitigation defendant’s traumatic childhood, long history of alcohol and drug abuse, the circumstances around his involvement in the offense, the conditions of his presentence confinement, and his cooperation and assistance to the government. In imposing sentence the district court simply noted the 3553(a) factors and announced that it felt the sentence in the middle of the guidelines range was a reasonable one. Reversing, Judges Martin and Clay found that the lack of explanation for both the sentence and why the mitigation offered by the defense didn’t warrant a lower sentence was procedurally unreasonable. The Court noted that while the ritualistic incantation is not necessary, neither is it, by itself, sufficient. Along the way the Court referred to the decision in Williams to create the presumption of reasonableness as being done "without a reasoned explanation." The dissent by Judge Siler cites to Jones as not requiring the district court to address each and every item of mitigation offered by the defense, and says that if the defendant wants a more specific reason for not considering his mitigation, he should’ve asked the district court for it. He also notes, "The numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike." In a separate case, the Court - through Judges Cole, Daughtrey and Graham (D.J.; SDOhio) - reversed a 600 month sentence in United States v. Ray, 2006 U.S. App. LEXIS 18285 (6th Cir. 7/19/06) (unpublished), due to the district court’s failure to adequately explain the 25-year upward departure, noting that the farther the departure, the more compelling the explanation must be.

Webb -- McBride -- Foreman -- Richardson -- Morris -- Vonner -- Ray
Williams -- Jones -- Buchanan

The first substantively unreasonable sentencing case would come not from those members of the Court trying to create a meaningful post-Booker sentencing process, but from those trying to continue to conform to the Sentencing Guidelines as the presumptive sentencing scheme. In United States v. (William) Davis, 458 F.3d 491 (6th Cir. 8/14/06), Judge Sutton and Chief Judge Boggs reversed a sentence of 1 day imprisonment and 12 months of home detention in a bank fraud case in which the guidelines range was 30-37 months. In so doing, Judge Sutton now made explicit what he had put in his concurrence in Buchanan, that because the guidelines ultimately purport to account for most, if not all, of the 3553(a) factors, the Court’s review starts with the Guidelines which are presumed to be reasonable. The Court also adopted in this published opinion the proportionality review from Ray: the farther the departure from the guidelines, the more compelling the reasons must be. Since the departure in this case was "extraordinary," the circumstances justifying the sentence must also be extraordinary. [The use of the language of departures under the Guidelines must surely be no accident.] In dissent, Judge Keith notes, "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." Referring to the majority’s discussion of the sentence as a percentage relation to what the Guidelines would’ve required, he notes, "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."

Webb -- McBride -- Foreman -- Richardson -- Morris -- Vonner -- Ray
Williams -- Jones -- Buchanan -- (William) Davis

The next day, the Court issued two opinions addressing sentencings in which the district court discussed whether the sentence to be imposed would be "reasonable." In United States v. Cage, 458 F.3d 537 (6th Cir. 8/15/06), Judges Batchelder and McKeague noted not only that a sentence within the guidelines would be reasonable, but also that, under Booker, there was a presumption in favor of the guidelines. In addressing appellant’s objection to the district court’s reference to the presumption of reasonableness of a guidelines sentence, the panel majority ruled the issue foreclosed by Williams’ adoption of the presumption. The panel majority then spends no small amount of ink defending the presumption and finally holds that "the district court did 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. ... such a presumption comports with the Supreme Court’s remedial decision in Booker."

In dissent, Judge Clay sets out in the starkest fashion the differences between the two different approaches in the Sixth Circuit: "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. ... While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. The majority’s holding in this case directly contravenes Booker, [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, but not greater than necessary, to comply with the purposes of [3553(a)]." Addressing the presumption, Judge Clay goes on to say, "Nothing in the text of the [sic] § 3553(a) elevates the now-advisory Guidelines sentence above other factors or permits the district court to ‘presume’ that the advisory sentence would be reasonable for an individual defendant. ... The district court’s job is not to start with a Guidelines sentence and then decide whether a departure is warranted." In a footnote Judge Clay also noted, "I also question whether the rebuttable presumption language in Williams should be considered to be binding on this Court given the fact that the Webb Court had already stated that it declined to hold that a sentence within the Guidelines range is per se reasonable." [Addressing this footnote, the panel majority states, "A rebuttable presumption is, by definition, subject to rebuttal, which a sentence that is per se reasonable is not." Judge Clay notes, "Although the terminology is different, in reality I see very little real difference between saying that a Guidelines sentence is presumptively reasonable versus per se reasonable."] "It is not the district court’s job to assume the reasonableness of a Guidelines sentence; rather ... reasonableness is the appellate standard of review ... ." "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."

Webb -- McBride -- Foreman -- Richardson -- Morris -- Vonner -- Ray
Williams -- Jones -- Buchanan -- (William) Davis -- Cage

United States v. (Lonnie) Davis, 458 F.3d 505 (6th Cir. 8/15/06), was released the same day as Cage and involved the same district court judge talking about whether or not the sentence he was about to impose would be "reasonable." While the Court also upheld this sentence, the reasoning between Cage and (Lonnie) Davis is different in its approach to the post-Booker caselaw. Where Cage found no error in the district court viewing the Guidelines as a presumptively reasonable starting point, Judges Moore, Sutton and Katz (D.J.; NDOhio) in (Lonnie) Davis note that the district court used the wrong standard at sentencing. The Court does not find reversible error, however, because in looking at the substance of what the district court did, as opposed to the language it used, the Court finds that the district court complied with the procedural reasonableness demands of Sixth Circuit caselaw by addressing all of the relevant 3553(a) factors in such a way that it appeared to the Court that the district court’s concern was, in fact, with imposing a sentence that was sufficient, but not greater than necessary, to comply with 3553(a), and not just a "reasonable" sentence.

Webb - McBride - Foreman - Richardson - Morris - Vonner - Ray - (Lonnie) Davis
Williams - Jones - Buchanan - (William) Davis - Cage

The same panel that decided (Lonnie) Davis, the next day reversed as procedurally unreasonable an 188-month sentence imposed in United States v. Harden, No. 05-4079 (6th Cir. 8/16/06). In doing so, the Court noted, "the district court failed to meet these procedural requirements. While the [district] court repeatedly stated that it had considered the § 3553(a) factors as well as the advisory Guidelines ... the record lacks ‘sufficient evidence ... to affirmatively demonstrates the court’s consideration of them.’ A district court’s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination."

In all of the brouhaha about what reasonableness review will or will not be, the only defendant to have his sentence reversed as substantively unreasonable was William Davis whose sentence was found to be unreasonably low. In fact, for all of the to-ing and fro-ing noted above about how reasonableness review will function, very few sentences have been affected. Webb, McBride, Richardson, Morris and (Lonnie) Davis all upheld the district court sentences as reasonable.

On August 31, 2006, the Court decided United States v. Collington, 461 F.3d 805 (6th Cir. 8/31/06). In an opinion authored by Judge Martin, and joined by Judge Sargus, the Court affirmed as reasonable a sentence of 120 months in a crack cocaine/possession of a machine gun case where the Guidelines range was 188 - 235 months. In doing so, the Court noted that prior to Booker, sentences outside the Guidelines range were severely limited, but that now, with greater latitude, a district court need only consider the Guideline range along with its analysis of the section 3553(a) factors. The Court upheld the sentence because the district court's explanation for the sentence was a reasonable one and showed that it had considered both aggravating and mitigating factors in arriving at the sentence imposed. In trying to define what kind of sentence would be substantively unreasonable, the Court states that a sentence is substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor. The dissent by Judge Gilman highlights the tensions that have developed in the cases discussed above in the approach to be used in determining the reasonableness of a district court sentence.

Given the two series of different cases dealing with post-Booker reasonableness review, it is not surprising that the Court would take some case en banc in order to try to straighten out the mess, but why Vonner? In Judge Sutton’s concurrence in Buchanan he details the number of Sixth Circuit cases that have been reversed for procedural unreasonableness, most of which have to do with failing to explain the reasons for the sentence or failing to account for the § 3553(a) factors. The statement of the district court in Vonner is woefully inadequate, by even the most conservative of standards. Judge Siler’s dissent appears to target both the extent of explanation demanded of district court judges and the lack of deference paid by some to the presumption of reasonableness. ("I believe that the sentence pronounced in this case was reasonable because the court sentenced Vonner within the Guidelines and considered all of the relevant factors from § 3553(a).")

Judge Siler is correct about one thing: "The numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike." (See also McBride: "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."; but see, United States v. Cruz, 461 F.3d 752 (6th Cir. 8/25/06), in which Judge Sutton notes, "After more than a year and a half of applying Booker, some kinks remain but the ground rules for reviewing criminal sentences are becoming increasingly familiar.") What is at stake is whether sentencing after Booker will reflect a return of more discretion to sentencing judges with meaningful appellate review, or a return to mandatory Guidelines (de facto if not de jure) with appellate review so restricted as to be meaningless. With the Guidelines presumed to be reasonable and any sentence outside of the Guidelines range having to be supported by increasingly stringent standards of review reminiscent of nothing so much as Guidelines departures, it is difficult to see how anything has changed from the unconstitutional system struck down by Booker. See, e.g. United States v. Washington, 199 Fed.Appx. 521 (6th Cir. 10/10/06), 2006 WL 2873368 (unpublished) (requiring the defendant to explain how consideration of any particular § 3553(a) factor would have resulted in a lower sentence).

The Court pointed out in Foreman, "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." This important review becomes an illusion if the extent of the review is to look to whether the sentence is within the Guidelines range and the sentencing judge spoke the words of § 3553(a), as in Vonner.

Judge Siler complains in his dissent in Vonner that "[s]entencing hearings will soon exceed trials in length, if we do not simplify the process." While he may be right, he is about 19 years late with his observation. Ever since the enactment of the Sentencing Guidelines, sentencing hearings have become mini-trials involving contests of the extent of upward adjustments for relevant conduct in drug, fraud, and theft cases, and the use of uncharged conduct to enhance sentences in drug, gun and other cases. This writer had one Guidelines sentencing hearing that lasted for three days.

"Simplifying the process," however, is not always synonymous with increasing justice. What too often happens when the process is "simplified" is that it simply becomes easier to impose and affirm a sentence without the defendant having any meaningful review. There are, of course, practical reasons for this. Prior to the Guidelines there was no right to appeal a sentence unless the sentence exceeded the statutory maximum. As a result, the Courts of Appeals had little to do with review of sentences. The creation of the Guidelines, however, with its myriad of factual determinations that would (usually) increase a defendant’s sentence also brought the creation of a right to appeal the incorrect determination of those adjustments, both upward and downward. The practical consequence of this new right was to swamp the Courts of Appeals with sentencing appeals. This was particularly true in the Sixth Circuit which was short-handed for a number of years. Hence the rise of the "appeal waiver" as a part of plea agreements and the affirmance on appeal of its use.

What the Courts have perhaps overlooked is that while they might not care for the increased caseload from sentencing appeals, they are not the only part of the system affected by these appeals. Defense counsel have to write and argue such appeals and government attorneys must defend them. This is not a system that any of us created; Congress did that. But it is a system that we have to make work, and it doesn’t work when it is given short shrift. (In fact, one reason for allowing sentencing appeals in this new Guidelines structure in 1987 was that the creators of the Guidelines saw the appellate system as a self-correcting mechanism by which the Guidelines would be uniformly applied, thereby further reducing the disparity that was at the heart of the call for change that led to the creation of the Guidelines in the first place. The national spread of appeals waivers, of course, would tend to throw the self-correcting aspect of the mechanism out of true.)

The means to make the system work can be found in some of the cases detailed above, but which will the Sixth Circuit choose: the true paradigm shift to a system that takes into account in meaningful ways the individual who is being sentenced, or the business-as-usual Guidelines approach of sentencing cyphers instead of individuals? Perhaps Vonner will tell us. That answer may have to wait, however.

On November 2nd, the Supreme Court granted cert. In two Booker/reasonableness cases: Rita v. US, No. 06-5754, from the Fourth Circuit, and Claiborne v. US, No. 06-5618, from the Eighth Circuit. The questions from the Court in the former are : 1) Was the district court's choice of within-Guidelines sentence reasonable, 2) In making that determination, is it consistent with United States v. Booker, 543 U. S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences, and 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. Sec. 3553(a) factors and any other factors that might justify a lesser sentence?. The questions in Claiborne are: 1) Was the district court's choice of below-Guidelines sentence reasonable, and 2) In making that determination, is it consistent with United States v. Booker, 543 U. S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

These questions go to the heart of some of the divisions within the Sixth Circuit caselaw noted above and, therefore, it would appear, may be good reason for the Court of Appeals to hold Vonner in abeyance until Rita-Claiborne are decided.